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Kuehner v. Commonwealth

United States District Court, Third Circuit

December 2, 2013

TERRY KUEHNER, Petitioner,
v.
COMMONWEALTH OF PENNSYLVANIA, et al., Respondents.

MEMORANDUM [1]

MALACHY E. MANNION, District Judge.

Terry Kuehner, an inmate presently confined in the Retreat State Correctional Institution, Hunlock Creek, Pennsylvania (SCI-Retreat), filed this pro se habeas corpus petition pursuant to 28 U.S.C. §2254. (Doc. No. 1, petition). He attacks a conviction imposed by the Court of Common Pleas for Carbon County, Pennsylvania. Id . For the reasons that follow, the Court will dismiss the petition as untimely.

I. Background

The following background has been extracted from the Pennsylvania Superior Court's October 22, 2012, Memorandum Opinion vacating the lower court's decision and remanding for the appointment of PCRA counsel. (Doc. No. 1, Commonwealth v. Kuehner, No. 524 MDA 2012, Superior Court Opinion at pp. 1-4).

On October 2, 2008, Terry Kuehner ("Appellant") entered into a guilty plea to counts 2 and 5 of the information, which were aggravated assault (F2) and simple assault charges (Md) respectively.[2] As part of his guilty plea, Appellant was sentenced to a term of imprisonment [of] not less than eighteen (18) months nor more than ten (10) years on the aggravated assault charge and to an imprisonment term of not less than six (6) months nor more than twelve (12) months on the simple assault charge. As the signed stipulation stated, the sentence for the simple assault was to run consecutive to the sentence of the aggravated assault charge.

Trial Court Opinion (T.C.O.), 5/23/12, at 1-2.

Appellant did not file a direct appeal. On August 15, 2011, Appellant filed a pro se petition for writ of habeas corpus in which Appellant alleged violations of the plea agreement. Appellant alleged that his sentences should have been run concurrently rather than consecutively. In furtherance of this claim, Appellant alleged in the petition (and now alleges on appeal from the denial of the petition) numerous theories by which he seeks to obtain relief. Appellant claims the consecutive sentencing scheme was the result of violations of due process, ineffective assistance of counsel, and breach of contract.
The trial court dismissed Appellant's petition for writ of habeas corpus for want of subject matter jurisdiction. The Commonwealth argues that because the writ of habeas corpus has been largely subsumed by the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546, Appellant's petition for writ of habeas corpus should be treated as an untimely PCRA petition. We agree.

Id. On October 22, 2012, the Pennsylvania Superior Court treated Kuehner's petition for writ of habeas corpus as a PCRA petition, and remanded the case to the Court of Common Pleas of Carbon County for the appointment of counsel. Id . Relying on the holding in Commonwealth v. Stout , 978 A.2d 984, 988 (Pa.Super. 2009), the Superior Court found that "regardless of whether a petitioner has filed a PCRA petition that is untimely on its face, or whether such a petition is mischaracterized as a writ of habeas corpus or some other alternative form of relief, Pa.R.Crim.P. 904(B) requires that an indigent petitioner seeking collateral relief for the first time following a convictions is entitled to the appointment of counsel. Stout."

By Order dated February 19, 2013, Attorney Joseph V. Sebelin, Jr., was appointed as counsel to represent Kuehner, and was provided forty-five (45) days within which to review Kuehner's filings, including the timeliness of Kuehner's challenge to Judge Webb's sentencing, and either seek to withdraw, after filing a "no-merit' letter, or file an amended petition raising those claims deemed meritorious by counsel. (Doc. No. 14, Commonwealth of Pennsylvania v. Kuehner, No. CP-13-CR-0000691-2005, Criminal Docket Sheet).

On June 24, 2013, Kuehner filed the instant petition for writ of habeas corpus. (Doc. No. 1, petition). He claims that his petition is

"based on ineffective assistance of counsel, of a remand back to the lower court by the Superior Court, for appointment of counsel, due to a PCRA is time barred by the one year, to were the writ of habeas corpus petition should not be moot due to newly discovered evidence of the violations of the altered plea without consent, and wrongful application of improperly administering false conclusions of remand for correctiveness by the lower court, and failing to respond to the request to correct the recorded docket of the petitions and motions that were filed." Id.

On July 2, 2013, the Court issued an administrative order with notice of limitations on filing of future motions ...


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