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Rosado v. Wenerowicz

United States District Court, Third Circuit

October 2, 2013

FELIX ROSADO, Petitioner,
MICHAEL WENEROWICZ, Superintendent, DISTRICT ATTORNEY, County of Berks, ATTORNEY GENERAL, State of Pennsylvania, Respondents.


Norma L. Shapiro, J.

Petitioner Felix Rosado (“Rosado”) filed a counseled petition for a writ of habeas corpus pursuant to 22 U.S.C. § 2254. Rosado, currently incarcerated, is serving a life sentence. United States Magistrate Judge Henry S. Perkin filed a Report and Recommendation (“R&R”) (paper no. 24). Rosado filed timely objections (paper no. 29). For the following reasons, the R&R will be adopted in part. Rosado’s objections to the R&R will be sustained in part. Rosado’s petition for a writ of habeas corpus will be denied.


A. Factual and Procedural History[1]

On December 10, 1995, Hiep Q. Nguyen was shot in the head and killed while sitting in the driver’s seat of his car in Reading, Pennsylvania. Petitioner was arrested and charged with first-degree murder, third degree murder, aggravated assault, reckless endangerment, violation of section 6106 of the Uniform Firearms Act, possessing an instrument of crime, and altering or obliterating marks of identification. A jury trial before the Honorable Scott D. Keller of the Court of Common Pleas of Berks County commenced on July 3, 1996. On the third day of testimony, July 11, 1996, Rosado entered a guilty plea for first degree murder and was sentenced to life imprisonment without possibility of parole the same day. Rosado contends that, at the time of his guilty plea, he was unaware he could have asserted a voluntary intoxication defense, if successful, that would have reduced the charge from first degree to third degree murder.

On April 5, 1997, Rosado filed a pro se motion to withdraw his guilty plea, alleging that his trial counsel pressured him to plead guilty to first degree murder and that counsel should have fought for a lesser charge. The trial court denied the motion on April 17, 1997.

On or about September 7, 1997, Rosado mailed a motion to allow an appeal nunc pro tunc from the trial court’s order denying his motion to withdraw his guilty plea. This motion was docketed on November 8, 1997, when Rosado’s family delivered a copy to the Berks Country Clerk of Courts. The trial court treated Rosado’s motion as a request for relief under the Pennsylvania Post-Conviction Relief Act (“PCRA”). See 42 Pa. C.S. § 9541 et seq.

On October 14, 1997, Rosado filed a PCRA motion through counsel. In that motion, Rosado moved to amend the September 7, 1997, motion to allow an appeal nunc pro tunc and requesting reinstatement of Rosado’s direct appeal rights. Following a PCRA hearing on November 30, 1999, the PCRA court denied Rosado’s petition as untimely in an order dated the same day. Rosado filed a notice of appeal in the Pennsylvania Superior Court on December 27, 1999. On October 17, 2000, the Superior Court affirmed the denial of the PCRA petition. The Pennsylvania Supreme Court denied an allowance of appeal on May 7, 2001.

On December 21, 2006, Rosado filed another PCRA petition through counsel, in which he alleged ineffective assistance of counsel for failure to investigate voluntary intoxication as a potential defense and an unlawfully induced guilty plea. Rosado requested that the court vacate his sentence, permit him to withdraw his July 11, 1996, guilty plea, and grant him a new trial. After a hearing that took place on November 30, 2007, the PCRA court held that Rosado’s petition was timely and that he had not waived the issue of ineffective assistance of counsel. However, in its discussion and order dated June 10, 2008, the PCRA court concluded that Rosado’s trial counsel was not ineffective for failure to pursue a voluntary intoxication defense. On July 8, 2008, Rosado filed a timely notice of appeal with the Pennsylvania Superior Court. On July 11, 2008, the Commonwealth filed a cross-notice of appeal. On July 23, 2008, the Commonwealth filed a Concise Statement of the Errors Complained of on Appeal in which it argued that the lower court erred in finding Rosado’s petition timely and in holding that Rosado had not waived his ineffective assistance of counsel claim. On August 1, 2008, Rosado filed a Concise Statement arguing generally that the court erred when it held that Rosado’s trial counsel was not ineffective.

The PCRA court issued an opinion expanding on its June 10, 2008, order on October 14, 2008. The PCRA court found that Rosado’s 2006 petition was timely because it was filed within sixty days of discovering new evidence that could not have been ascertained at the time of trial. The PCRA court also found that the discovery of the testimony of Yamiel Tejeda, an acquaintance of petitioner, supported Rosado’s assertion that he had been intoxicated the night of Mr. Nguyen’s murder and that the testimony could not have been discovered at the time of trial even with due diligence.

The Pennsylvania Superior Court affirmed the decision of the PCRA court on September 21, 2009, and the Pennsylvania Supreme Court denied petitioner’s motion for an allowance of appeal on March 10, 2010.

Rosado had filed a petition for writ of habeas corpus in this court on October 22, 2007, along with a motion to stay. This court granted the motion to stay on October 31, 2007, in order to allow Rosado to exhaust his claims in state court. On June 3, 2010, following the exhaustion of claims in state court and on motion by the petitioner to reopen, this court removed this action from suspense and granted Rosado sixty days to file a brief in support of his petition. Rosado filed a brief on August 3, 2010. On August 25, 2010, this court referred the petition to Magistrate Judge Perkin for an R&R. Rosado filed timely objections to the R&R.

B. Report and Recommendation and Objections

Magistrate Judge Perkin concluded the following in his R&R: (1) Rosado’s December 21, 2006 PCRA petition was timely; (2) the state court’s holding that Rosado’s counsel was not ineffective for failure to pursue a voluntary intoxication defense was not objectively unreasonable; and (3) a certificate of appealability should be denied.

Rosado makes numerous objections to Magistrate Judge Perkin’s R&R, most of which merely iterate arguments considered and rejected by both the PCRA court and Magistrate Judge Perkin. Rosado also objects to certain factual inaccuracies contained in Magistrate Judge Perkin’s R&R, ...

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