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Credico v. Attorney General of Pennsylvania

United States District Court, E.D. Pennsylvania

February 25, 2014

JUSTIN MICHAEL CREDICO, Petitioner,
v.
THE ATTORNEY GENERAL OF PENNSYLVANIA, et al., Respondents.

MEMORANDUM

WILLIAM H. YOHN, Jr., District Judge.

Petitioner, Justin Michael Credico has filed a petition under 28 U.S.C. ยง 2254 for a writ of habeas corpus. Upon consideration of the petition, the Commonwealth's response, the Magistrate Judge's report recommending dismissal of the petition, and petitioner's objections thereto, the court will overrule petitioner's objections, adopt the report and approve the recommendation.

I. FACTS AND PROCEDURAL HISTORY

On November 30, 2011, Credico was convicted of two counts of harassment following a bench trial in the Court of Common Pleas of Chester County. (Resp. App. A.) Credico was found not guilty of a third harassment charge. The charges stemmed from emails Credico sent to the President and Chief of Police at West Chester University, where he was formerly a student. On December 5, 2011, prior to his sentencing, Credico filed pro se motions for an arrest of judgment, ineffective assistance, mistrial, and a writ of error coram nobis. (Resp. App. A.) On December 19, 2011, at his sentencing hearing, Credico requested and was granted leave to proceed pro se. The court at that time "denied and dismissed" each of Credico's pro se motions. (Resp. App. A.) Finally, the court sentenced Credico to two consecutive terms of 146 days to 12 months, and 146 days to 11 months and 28 days. (Resp. App. I.) At that time, the court instructed Credico regarding his appellate rights and provided Credico with a written post-sentence colloquy form outlining those rights.

On December 27, 2011, Credico filed seven pro se motions for (1) an arrest of judgment, (2) judgment for a new trial, (3) acquittal, (4) modification of sentence, (5) petition for transcripts, (6) in forma pauperis, (7) informal request for discovery. (Resp. App. A.) On January 3, 2012, while his post-sentence motions were still pending with the trial court, Credico filed a notice of appeal to the Pennsylvania Superior Court. (Resp. App. A, B.) On February 10, 2012, the trial court filed a statement notifying the Superior Court that post-sentence motions were still pending and that Credico's appeal was premature. On February 21, 2012 the Superior Court filed an order directing Credico to comply with Rule 3517 of the Pennsylvania Rules of Appellate Procedure ("Pa. R.A.P."), requiring the filing of a docketing statement. (Resp. App. B, D.) And on February 23, 2012, the Superior Court filed an order directing Credico to show cause why his appeal should not be quashed as interlocutory. (Resp. App. B, E.) Credico did not respond to either of the Superior Court's orders and his appeal was dismissed on March 5, 2012 for failing to file a docketing statement as required by Pa. R.A.P. 3517. (Resp. App. B, F.) Credico did not seek to appeal the Superior Court's order. On April 23, 2012, the trial court either denied or dismissed Credico's post-sentence motions, notified Credico of his right to file a direct appeal within thirty days if its order, and again notified Credico of his right to assistance of counsel. (Resp. App. A.) Credico did not appeal this judgment of sentence, nor did he file for relief under Pennsylvania's Post Conviction Relief Act ("PCRA").

On May 20, 2013, Credico filed the instant petition for writ of habeas corpus.[1] Credico raised four claims which I quote here in their entirety, altering only the profanity:

Ground One: Free Speech - 1st Amendment.
It's free speech to cuss out government whether in email or on the street, the law defines communication as communication no matter the forum.
Ground Two: Harassment - 2709(A)(7) is vague.
The statute states "in a manner other than" the communication defined in 2709(A)(1) et seq. What the f**** does that leave? Broadcast or telepathy, the statute is vague.
Ground Three: Matters of public concern is not anything but free speech.
If you turn your attention to the massive internet support to people like the California Rogue Cop who killed other cops; people actually posted internet support to the assassin. I don't support s*** like that, but if I bring it up or mention it, that doesn't make me a sympathizer.
Ground Four: FERPA allows me to retrieve my college transcripts in their entirety.
FERPA allows me to obtain any courses I've taken and the West Chester University State School of Higher Education police have no need to interfere w/that nor handle $ nor handle my f***ing transcripts and further ...

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