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Lewis v. Attorney General

United States District Court, Third Circuit

May 30, 2013

KHALAIS Q. LEWIS, JH-0914, Petitioner,
v.
ATTORNEY GENERAL, et al, Respondents.

MEMORANDUM and ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Khalais Q. Lewis an inmate that the State Correctional Institution at Coal Township has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Lewis is presenting serving a 72 to 144 month sentence following his conviction by a jury of possession of a controlled substance and conspiracy possession of a controlled substance with intent to deliver at No. CP-26-2028-2008 in the Court of Common Pleas of Fayette County, Pennsylvania. This sentence was imposed on November 18, 2009.[1]

An appeal was taken to the Superior Court in which the questions presented were:

1. Did the lower court err in permitting Detective Ryan Reese to testify that defendant Khalise Lewis had the street name "Moody" after Detective Thomas O'Barto testified that "Moody" was a street name he is familiar with from this "dealings and drug work in Uniontown"?
2. Was it prejudicial for the co-defendant to testify that she had knowledge that her cousin [Appellant herein] may be involved in illegal activity "from him being in and out of jail before"?
3. Was the jury's verdict contrary to the weight of the evidence?[2]

On August 6, 2010, the judgment of sentence was affirmed.[3] Leave to appeal to the Pennsylvania Supreme Court was denied on May 4, 2011.[4]

On May 5, 2011, Lewis filed a post-conviction petition.[5] Relief was denied and an appeal was filed in which the question presented was:

Whether PCRA Court did err in not finding ineffective assistance of counsel at the following stages: (1) The failure to file Pretrial suppression motions, (2) trial counsel's failure to call two witnesses the Defendant had implored him to call at jury trial, and (3) the failure of trial counsel to object to the Defendant being identified by his street name.[6]

On September 21, 2012, the denial of post-conviction relief was affirmed.[7]

Petitioner mailed the instant petition on January 20, 2013 and in support thereof contends he is entitled to relief on the following grounds:

1. The lower Court erred in permitting detective Ryan Resse to testify that defendant Khalais Lewis had the street name "Moody" after the detective Thomas O'Barto testified that "Moody" was a street name that he has familiarity with from his dealings and drug work in Uniontown.
2. The lower Court erred when it allowed the prejudicial testimony of a co-defendant to testify to knowledge of petitioner's prior criminal record.
3. Keeping in mind that my PCRA petition was to be read liberally, many of the claims related directly and are elements of prosecutorial misconduct, this petitioner must speak of the use of the Firearm known as the "GLOCK" yet again. Though never charged which the record will reflect, that it was also used to intimidate one of jurors, one that had an innate fear of firearms. She was forced to remain a juror against her own objections and the prosecutor was waving it in her face as well as attempted to hand it to this petitioner.
4. Because a confidential witness was used, one that claimed to have bought drugs from this petitioner months prior to an arrest and never presented for testimony at trial, this petitioner's right to confrontation was violated. In court testimony was improperly submitted to the jury that informant/agents testimony was made trustworthy by implication of the officers themselves. And the prosecutor as well again leading to misconduct. This is known as malicious prosecution that can only be seen as outrageous. Again counsel did nothing to address this injustice. PCRA counsel failed to properly address the confrontation issues named in this PCRA petition.
5. Appeal counsel who was trial counsel failed to address the weight of the evidence in post-trial motions which made the use of such on appeal useless at best. Sufficiency of the evidence was lost also at the hands of trial/appeal counsel because he failed to take the right steps, and PCRA counsel again failed to address... appeal counsel's failures that are plain on the face of the record. It is true Attorney Peck raised it on appeal but it was too little too late.
6. Trial court erred when it improperly compounded the guide-lines by making this petitioner's sentence like or mandatory in nature because of information of a firearm called a Glock. Said court used this uncharged firearm as a factual element to use upward departure in the sentence itself. And the trial counsel did nothing to appeal such a violation of the sentencing code itself. It was highly improper to give this petitioner the time associated with guns at sentencing. This is also on the face of the record and again PCRA counsel failed to ...

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