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Serrano v. Wetzel

United States District Court, Eastern District of Pennsylvania

March 21, 2014

JOHN OLMEDO SERRANO, Petitioner,
v.
SECRETARY WETZEL, et al. Respondents.

REPORT AND RECOMMENDATION

LINDA K. CARACAPPA, UNITED STATES MAGISTRATE JUDGE

Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution Forest, in Marienville, Pennsylvania. For the reasons which follow, it is recommended that the petition be DISMISSED.

I. PROCEDURAL HISTORY

On April 21, 2008, petitioner, represented by Attorney Andres Jalon, entered guilty pleas to two counts of attempted murder and one count of criminal conspiracy in the Court of Common Pleas of Philadelphia. (CP-51-CR-0008368-2007). On September 30, 2008, the Honorable Gwendolyn N. Bright sentenced petitioner to serve concurrent terms of not less than twelve and one-half (12 ½ ) years nor more than twenty-five (25) years imprisonment. These charges stemmed out of an incident in May 2007 in which petitioner was the driver of the vehicle from which petitioner’s co-conspirators fired weapons at two individuals.

Petitioner did not file a direct appeal. On June 23, 2009, petitioner filed a timely pro se collateral petition under the Post-Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541, et seq. Counsel was appointed. On November 9, 2009, petitioner filed a pro se amended PCRA petition. On February 11, 2011, petitioner’s court appointed counsel submitted a no-merit letter pursuant to Commonwealth v. Finely, 379 Pa. Super. 390, 550 A.2d 213 (1988) (en banc)[1], with a petition to withdraw. The PCRA court issued notice of its intent to dismiss the petition pursuant to Pa. R. Crim. P. 907, and petitioner filed a response to the PCRA dismissal notice. On September 15, 2011, the court dismissed the PCRA petition without a hearing.

On October 17, 2011, petitioner appealed the PCRA court’s decision to the Superior Court (Case No. 2836 EDA 2011). On January 23, 2013, the Superior Court affirmed the PCRA court’s denial of the petition.

On June 24, 2013, petitioner filed the instant timely petition for Writ of Habeas Corpus claiming:

(1) Ineffective assistance of trial counsel for advising petitioner as to an inaccurate sentence he would receive if petitioner plead guilty; and
(2) Ineffective assistance of trial counsel for failing to file a motion for reconsideration of sentence.

Respondents argue that petitioner’s first claim is without merit. Additionally, respondents argue that petitioner’s second claim is procedurally defaulted. We agree.

II. STANDARD OF REVIEW

Petitioner's first claim is subject to the following standard of review.

Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues - a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. ยง 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State ...

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