United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
LYNNE A. SITARSKI, Magistrate Judge.
Donnell Sanders ("Sanders") has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Sanders asserts four grounds for habeas corpus relief arising out of his convictions for burglary, aggravated assault, and possession of instruments of crime. The District Attorney of Philadelphia County has filed a Response to the Petition for Writ of Habeas Corpus. Sanders has filed a Reply. For the reasons that follow, I respectfully recommend that Sanders' habeas petition be DISMISSED.
I. FACTS AND PROCEDURAL HISTORY
At the beginning of August 2001, Gerald Raynor ("Raynor"), allowed Sanders to stay with him at his apartment for a day and a half (Resp. Ex. B at 1). On August 15, 2001, Raynor and Sanders argued over items missing from Raynor's apartment. ( Id. ) The argument resulted in Raynor calling the police. ( Id. ) On August 18, 2011, Raynor was laying in bed when he awoke to find Sanders standing above him "with a scarf covering his mouth, a knife in one hand and a gun in the other." ( Id. ) Sanders then hit Raynor in the right eye and head with the gun, and cut and stabbed him in the chest and back with the knife as Raynor escaped to his living room. ( Id. ) Sanders then fled through the front door of the apartment. ( Id. )
In October 2002, Sanders was tried and convicted of burglary, aggravated assault, and possession of instruments of crime. (Resp. Ex. B at 2-3). However, on direct appeal, the Pennsylvania Superior Court vacated judgment and remanded for a new trial. (Resp. Ex. B at 3 (citing Commonwealth v. Sanders, 860 A.2d 1134 (Pa.Super. Ct. 2004)).) This decision was filed with the Prothonotary of the Superior Court on August 17, 2004. ( Id. )
On June 22, 2005, while still held in pretrial detention, Sanders filed a motion to dismiss the charges under Rule 600 of the Pennsylvania Rules of Criminal Procedure because he was not re-tried within 120 days of the date of the decision awarding him a new trial. ( Id. (citing Pa. R. Crim. P. 600(D)(2))). On July 6, 2005, the trial court declined to dismiss the charges, but authorized Sanders' release on nominal bail. ( Id. )
Sanders' second trial was scheduled to begin in September 2005. However, on September 19, 2005, Raynor failed to appear in court. ( Id. ) The Commonwealth detailed its unsuccessful attempts to locate Raynor and sought to admit his testimony from the first trial, asserting that he was unavailable to testify. ( Id. ) The trial court denied the Commonwealth's request, finding that it failed to make a reasonable, good faith effort to secure Raynor's presence at the second trial. ( Id. ) The prosecutor then moved to enter nolle prosequi without prejudice so the case could be reopened if Raynor could be found. (Resp. Ex. B at 3-4). The court granted the prosecutor's motion. (Resp. Ex. B at 4).
On September 26, 2005, Raynor was located, and the Commonwealth moved to reinstate the charges against Sanders. ( Id. ) Sanders responded by filing a motion to dismiss the charges pursuant to Rule 600(G), asserting that his right to a speedy trial was violated because he was not re-tried within 365 days of the Superior Court's remand decision. ( Id. ) After a hearing, the trial court denied Sanders' motion and permitted the Commonwealth to reinstate the charges. ( Id. ) Sanders' second trial commenced on September 29, 2005, and he was convicted of all the charges against him. (Pet. at 1). On November 17, 2005, Sanders was sentenced to an aggregate term of ten to twenty years imprisonment. (Resp. Ex. B at 2).
Sanders filed a direct appeal and, on December 29, 2005, filed a Rule 1925(b) statement of issues to be raised on appeal identifying three claims:
(1) the trial court erred in granting the Commonwealth's motion to vacate and lift the entry of the nolle prosequi dismissal;
(2) the court abused its discretion in denying the Rule 600(G) motion to dismiss all charges; and
(3) the court erred in denying a Batson motion.
(Resp. Ex. A at Appellant's 1925(b) Statement.) In February 2006, the Court of Common Pleas of Philadelphia issued a 1925(a) opinion recommending the denial of Sanders' claims. (Resp. Ex. A at Opinion of the Honorable Rosalyn K. Robinson.) Sanders, through appellate counsel, filed a direct appeal brief raising only two issues:
(1) the trial court erred in denying his Rule 600(G) motion to dismiss, and
(2) the trial court erred in granting the Commonwealth's motions to enter and then lift the nolle prosequi dismissal.
(Resp. Ex. A at 12-19.) Because Sanders did not assert the Batson claim in both the 1925(b) petition and direct appeal brief, the Superior Court viewed the claim as waived, and only addressed the two remaining claims. See Rep. Ex. B (addressing only his Rule 600(G) and nolle prosequi claims).
On October 17, 2006, the Pennsylvania Superior Court issued a decision affirming Sanders' sentence and conviction. (Resp. Ex. B at 1). The Superior Court held that Sanders' claims lacked merit. (Resp. Ex. B at 4). Although the court acknowledged that the Commonwealth was required to re-try Sanders within 365 days of the date of remand, it held that Sanders had miscalculated the running of the time period. (Resp. Ex. B at 5). The Superior Court reasoned that "[w]hen an appellate court awards a criminal defendant a new trial, the date of remand' for Rule 600 purposes is the date on which the prothonotary of the appellate court actually remands the record to the trial court." ( Id. (citing Commonwealth v. Sisneros, 692 A.2d 1105 (Pa.Super. 1997)).) Because the appellate court docket indicated that the record was remanded to the trial court on October 6, 2004, the Superior Court held that there was no violation of Rule 600 since the Commonwealth had until October 6, 2005 to re-try Sanders, and his trial actually took place on September 28, 2005, eight days before the time period elapsed. (Resp. Ex. B at 6). Because Sanders' speedy trial rights were not violated, the Superior Court also found no merit in Sanders' claim that the trial court erred in opening the nolle prosequi dismissal. ( Id. ) The Pennsylvania Supreme Court denied Sanders' petition for allowance of appeal on March 19, 2008. Commonwealth v. Sanders, 945 A.2d 169 (2008). Sanders did not file a petition for writ of certiorari with the United States Supreme Court.
On May 16, 2008, Sanders filed a pro se petition under the Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541-9546, alleging violations of his rights under federal and state law, and ineffectiveness of counsel. (Resp. Ex. C at 2). The PCRA court appointed counsel, (Resp. Ex. G at 2), who subsequently filed a "no merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. Ct. 1988), asserting that Sanders' issues were meritless, and requesting permission to withdraw as counsel of record. (Resp. Ex. D). On March 20, 2009, the PCRA court issued a notice, pursuant to Rule 907 of the Pennsylvania Rules of Criminal Procedure, that it intended to dismiss Sanders' petition without an evidentiary hearing. (Resp. Ex. G at 2). Sanders then filed a motion seeking additional time to respond to the Rule 907 notice. ( Id. ) The PCRA court did not rule on the motion, and formally denied Sanders' petition on May 1, 2009. ( Id. )
Sanders filed a timely pro se notice of appeal, and a brief asserting ineffective assistance of PCRA counsel and PCRA court error for failing to grant him an extension of time to respond to the court's Rule 907 notice. (Resp. Ex. E). On May 26, 2010, the Superior Court issued a memorandum opinion. (Resp. Ex. G). The Superior Court observed:
In the instant case, while PCRA counsel did file a Turner! Finley "no-merit" letter requesting permission to withdraw, the docket neither reflects nor does the record contain an order granting counsel leave to withdraw. ...