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Emanon Shannon v. Jeffrey N. Dillman

November 19, 2012

EMANON SHANNON,
PETITIONER
v.
JEFFREY N. DILLMAN, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Petitioner Emanon Shannon ("petitioner" or "Shannon"), a Pennsylvania state inmate, initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the following 2006 Court of Common Pleas of Dauphin County convictions: robbery, aggravated assault, kidnaping, conspiracy and two separate firearms violations. (Doc. 1; Doc. 9-8, at 79.) For the reasons that follow, the petition will be denied.

I. Background

The following recitation of the facts is extracted from the opinion of the Superior Court of Pennsylvania affirming petitioner's judgment of sentence:

The record reflects the following facts and procedural history. On the morning of March 26, 2005, in the City of Harrisburg, Pennsylvania, Appellant, carrying a firearm, approached the car of Juan Matos. Appellant threatened to rob Juan Matos and Shamar McCollum who were near Matos' car. N.T., 3/8/2006, at 50-51. After McCollum refused to cooperate, Appellant and McCollum began to fight. During the altercation, Appellant struck McCollum with the gun and then shot him in the arm. Id. at 52-56. After being shot, McCollum fled the scene and was taken to the hospital by some friends. Id. at 57.

As McCollum fled the scene, Appellant and several other men forced Matos into the vehicle at gunpoint. Id. at 89. Matos felt his hat pulled over his face as the car began to drive away. The captors searched Matos for money and other valuables. Id. at 90-91. After the men drove for a couple of minutes, they forced Matos into the trunk of the car at gunpoint. Id. at 95. The men then drove to a motel in Fairview Township, York County. They led Matos into a motel room where they held him captive. Id. at 97-103.

At some point while Matos was held captive, police officer Tyson Baker pulled into the motel parking lot. Id. at 168. Officer Baker observed a suspicious looking car, later identified as Matos' car, with its windshield wipers on. No keys were in the ignition. Id. at 168-69. Because the car appeared as it if might be a stolen vehicle, Officer Baker stayed in the area to watch the exit of the parking lot. Id. at 168-170. As he was waiting, Officer Baker saw a cab leave the parking lot and stop a short distance from the motel. Appellant and another man exited the cab because they were fighting. Id. at 172. Officer Baker responded to the fight, placed the two men under arrest, and proceeded to issue the men their Miranda [v. Arizona, 384 U.S. 436 (1966)] rights. Id. at 170-173. During the search incident to arrest, the police found a receipt for a motel room in Appellant's name, jewelry, and a PNC bank card bearing the name of Juan Matos. Id. at 173-175.

Sometime after Appellant was arrested, Matos escaped the motel room. When he left, he still had some residual duct tape on his clothes. Id. at 176. Matos encountered the police as he left the motel room and told them what had happened, without naming his abductors. The police went to the room where Matos had been held captive. This was the same room designated on the receipt found on Appellant. The police also found duct tape on the floor and Matos' blue boxer shorts in the trash can. Id. at 176-179.

Appellant was charged with multiple crimes based on his involvement in the incidents above. On March 10, 2006, following trial, a jury found Appellant guilty of robbery, aggravated assault, kidnapping, conspiracy, and two separate firearms violations. Sentencing was deferred and a presentence investigation was ordered. On April 27, 2006, Appellant was sentenced to an aggregate term of 45 to 90 years incarceration in a state correctional institution.

(Doc. 9-8, at 77-80.)

II. Procedural History

Following his April 27, 2006, sentencing, Shannon pursued a direct appeal rasing claims of sufficiency and weight of the evidence and trial court abuse of discretion related to sentencing. (Doc. 9-8, at 81-82, citing Appellant's Brief at 8.) After the notice of appeal was filed, petitioner's trial counsel, Dale Klein (Klein), moved to withdraw as counsel. (Doc. 9-3, at 11.) Klein's motion was granted and Ari D. Weitzman (Weitzman), was appointed as appellate counsel. (Id.) Prior to disposition of the appeal, Weitzman moved to withdraw as counsel on the basis that he "conscientiously examined the entire record and has determined that the appeal is frivolous." (Doc. 9-8, at 81.) On August 21, 2007, the superior court issued a decision finding all issues raised to be frivolous, affirming the judgment of sentence, and granting counsel's petition to withdraw. (Id. at 89-90.)

Shannon then commenced collateral proceedings pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541 et. seq., which unfolded as follows:

On November 16, 2007, Appellant filed a pro se PCRA petition. On December 6, 2007, the PCRA court appointed counsel, William Shreve, Esq., to represent Appellant. On April 11, 2008, Attorney Shreve filed a Turner/Finley 'no merit' letter with the PCRA Court. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 16, 2008, the PCRA court issued an order granting PCRA counsel's petition to withdraw and giving Appellant notice of the PCRA court's intent to dismiss the PCRA petition. Thereafter, Appellant filed several pro se documents with the PCRA court. On December 31, 2008, the PCRA court issued an order which appointed Jeffrey B. Engle, Esq., to represent Appellant and scheduled a PCRA hearing. The PCRA court held an evidentiary hearing on March 19, 2009. On June 3, 2009, the PCRA court issued an order denying Appellant's PCRA petition. (Doc. 9-12, at 22.) A timely appeal to the superior court presenting the issues set forth below was filed on petitioner's behalf by Attorney Engle:

1. Whether prior PCRA counsel, William Shreve, was ineffective for failing to raise the issue of trial counsel's ineffectiveness for failing to object or request a mistrial due to Detective Lau reading [Appellant's] co-defendant's statement which incriminated [Appellant]?

2. Whether prior PCRA counsel was ineffective for failing to address trial counsel's ineffectiveness in failing to request a cautionary instruction due to the fact that evidence was introduced that the Commonwealth witnesses had pending charges?

3. Whether prior PCRA counsel was ineffective for failing to address trial counsel's ineffectiveness for failure to inform the trial court that a potential conflict existed with her representation of [Appellant]; namely, that her husband, Adam Klein, had previously prosecuted [Appellant] in a revocation hearing?

4. Whether Dauphin County Court of Common Pleas erred by accepting prior PCRA counsel's 'no merit' letter as it did not comply with the Finley standard because prior PCRA counsel only addressed the pro se issues and did not address his own independent review of the record?

(Doc. 9-3, at 15; Doc. 9-12, at 22-23.) In their August 27, 2010 decision, the superior court stated:

We have reviewed the briefs of the parties, the relevant law, the certified record on appeal, and the opinion of the PCRA court issued June 15, 2010. It is our determination that the PCRA court's opinion adequately disposes of the underlying merits of the ineffectiveness issues raised by Appellant on appeal. See PCRA Court Opinion, 6/15/10, at 4-6 (addressing underlying merits of ineffective assistance of counsel regarding failure to request a mistrial after Commonwealth witness read into testimony statement from co-defendant); 7-8 (addressing underlying merits of claim of ineffective assistance of counsel regarding failure to request cautionary instructions pertaining to evidence that a Commonwealth witness had pending charges); 8-11 (addressing underlying merits of claim of ineffective assistance of counsel for failing to inform trial court of potential conflict with trial counsel's representation of Appellant); 11-12 (addressing issue of whether the PCRA court erred in accepting previous PCRA counsel's "no merit" letter when it did not comply with the Finley standard). Thus, PCRA counsel cannot be deemed ineffective for failing to raise these allegations. Accordingly, we affirm on the basis of the trial court's opinion. (Doc. 9-12, at 24.)

On October 20, 2010, Shannon filed a second PCRA petition seeking to reinstate his right to file a petition for allowance of appeal to the Supreme Court of Pennsylvania. (Doc. 9-12, at 27-35.) Counsel was appointed. (Doc. 9-3, at 17.) On January 6, 2011, the PCRA court granted relief. (Id. at 18.) On February 9, 2011, counsel filed a "no merit" letter. (Id.) Counsel's motion was granted on February 15, 2011. (Id.) Shannon did not file a petition for allowance of appeal to the supreme court.

III. Grounds for Relief

On May 26, 2011,the instant petition for writ of habeas corpus was filed seeking relief on the following grounds:

1. Whether appellate counsel, Weitzman, was ineffective for failing to assert that trial counsel was ineffective because of his "failure to object to a second prosecution in Dauphin County on the basis that the Dauphin County charges arose from the same criminal episode for which petitioner had once pleaded guilty to in York County, a violation of 18 Pa.C.S.A. 110;

2. Whether appellate counsel, Weitzman, was ineffective for failing to assert that trial counsel was ineffective because of his "failure to object or preserve a Bruton argument in regards to admittance of the statement by a non-testifying co-defendant during an uncounseled extra judicial interrogation implicating the petitioner when said extra judicial statement was presented to the jury through the affiant, without cautionary instruction;

3. Whether appellate counsel, Weitzman, was ineffective for failing to assert that trial counsel was ineffective because of his failure to move for severance based on introduction of "a Liily [sic] extra-judicial statement from Petitioner's non-testifying co-defendant during their joint trials which only served to unduly prejudice the petitioner;

4. Whether PCRA counsel was ineffective for failing to raise the issue of trial counsel's "failure to inform the trial court that a potential conflict existed with her representation of petitioner; namely, that her ...


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