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David Eric Allen v. Commonwealth of Pennsylvania; A.D.A. Mr. Genovese; Public

August 7, 2012

DAVID ERIC ALLEN,
PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA; A.D.A. MR. GENOVESE; PUBLIC DEFENDER ASSOCIATION; : MR. MICHEAL JOHN, ESQUIRE; CHIEF OFFICE OF CLERK OF COURT; MR. RICHARD WINTER; AND COURT OF MONTGOMERY COUNTY, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

Before the court is an Application to Proceed In Forma Pauperis and two civil rights complaints filed by plaintiff David Eric Allen pro se. Plaintiff brings this civil rights action, pursuant to 42 U.S.C. § 1983, against the Commonwealth of Pennsylvania; Montgomery County Assistant District Attorney Genovese; the Montgomery County Public Defender Association; Michael John, Esquire; the clerk of the Court of Common Pleas of Montgomery County; Richard Winter, Esquire; and the Court of Common Pleas of Montgomery County, Pennsylvania. He seeks to proceed in forma pauperis. For the following reasons, I grant plaintiff leave to proceed in forma pauperis and dismiss his complaints pursuant to 42 U.S.C. § 1915(e)(2)(B). *fn1

JURISDICTION Jurisdiction in this case is based on federal question jurisdiction pursuant to 28 U.S.C. § 1331.

VENUE Venue is proper pursuant to 28 U.S.C. § 1391(a)(2) because a substantial part of the events giving rise to plaintiff's claims allegedly occurred within this judicial district.

CONTENTIONS OF PLAINTIFF Plaintiff's claims are based on events that allegedly occurred during the course of criminal proceedings which were brought against him in the Montgomery County Court of Common Pleas nearly two decades ago. According to the complaints, on May 27, 1993 Richard Winter, an attorney who was either appointed to represent plaintiff, or who purported to represent plaintiff, waived plaintiff's right to a preliminary hearing "in [plaintiff's] absence."

Plaintiff contends that Attorney Winter deprived him of due process of law by waiving the preliminary hearing, and "fraudulently conspired with [the] prosecution to waive [the] hearing" by claiming that he represented plaintiff, even though plaintiff had not retained him.

Plaintiff further alleges that the Commonwealth of Pennsylvania, the Montgomery County Court of Common Pleas, and the Montgomery County Assistant District Attorney Genovese deprived him of due process of law by allowing Attorney Winter to waive the preliminary hearing and by failing to conduct a colloquy concerning plaintiff's intention to waive the hearing, or to obtain a written consent from plaintiff that he intended to do so. *fn2

Plaintiff either pled guilty or nolo contendere on January 5, 2000. He contends that his plea is invalid because the court (1) failed to notify him of the factual basis underlying the charge to which he pled; (2) failed to explain the elements of the offense with which he was charged; (3) failed to explain that he was subject to a statutory mandatory minimum term of three years imprisonment; and (4) lacked jurisdiction to accept the plea because plaintiff never received a preliminary hearing and, despite the events of May 1993, never waived his right to a hearing.

Plaintiff also contends that the plea was procured "through fraudulent measures" because the charges were held over for court after the allegedly improper 1993 waiver.

Plaintiff claims that the Commonwealth of Pennsylvania and the Montgomery County Court of Common Pleas deprived him of due process of law by accepting the invalid plea. He also claims that Montgomery County Assistant District Attorney Genovese deprived him of his due process rights by procuring the invalid plea, failing to conduct a presentence investigation before plaintiff accepted the plea, and by testifying prior to the plea that plaintiff had waived his right to a preliminary hearing. *fn3

Additionally, plaintiff claims that his attorney at the time, Michael John of the Montgomery County Public Defender's Association, failed to provide effective assistance of counsel during the plea colloquy and deprived him of his due process rights by withdrawing as his attorney instead of filing post-sentence motions or an appeal on his behalf.

Finally, plaintiff claims that the Commonwealth, the Montgomery County Court of Common Pleas, and the clerk of that court deprived him of his due process rights in connection with a motion for modification and/or reconsideration that was filed by plaintiff pro se after he was sentenced. He claims that the clerk improperly docketed the motion as filed on January 13, 2002 instead of "on or before December 21, 2001" pursuant to the prison mailbox rule.

Plaintiff contends that as a result of the clerk of court's failure to docket his motion on an earlier date, plaintiff lost his right to appeal. Alternatively, he claims that the clerk of court should have treated the motion as a timely petition for relief under the Pennsylvania Post Conviction Relief Act. 42 Pa.C.S. §§ 9541-9551.

Based on those alleged constitutional violations, plaintiff seeks to withdraw his plea and asks this court to vacate his conviction and sentence. He also seeks more than ...


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