United States District Court, Western District of Pennsylvania
Arthur J. Schwab, Judge
REPORT AND RECOMMENDATION
Maureen P. Kelly, Magistrate Judge
It is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By A Person In State Custody (the "Petition") be denied.
Edward Allan Belch ("Petitioner") has filed this Petition, seeking to attack state court convictions for third degree murder involving the killing of his former girlfriend and her male companion. The former girlfriend had a Protection From Abuse Order against Petitioner. Petitioner, while driving in his truck, chased the two victims who were on a motorcycle and ultimately hit the motorcycle, killing the two victims. Petitioner was sentenced to two terms of 20 to 40 years for each murder and those sentences were made to run consecutively, for a total aggregate sentence of 40 to 80 years. Petitioner now claims here that the sentences were excessive and that his Post Conviction Relief Act ("PCRA") counsel in his first PCRA proceedings was ineffective. Petitioner also attempts to raise claims of erroneous jury instructions that he raised in a second PCRA petition. However, the state courts ruled the second PCRA petition was untimely filed. As to Petitioner's excessive sentence claim, it is simply not a cognizable claim in federal habeas proceedings so long as the sentences did not exceed the statutory maximums for the crimes, and, the sentences imposed on Petitioner did not do so. Petitioner's claims of the ineffectiveness of PCRA counsel fail to raise a cognizable claim for relief in federal court. Lastly, any claims raised in the second PCRA petition, including the alleged wrongful jury instructions, are procedurally defaulted because the state courts held that second PCRA petition to be time barred. Accordingly, the Petition should be denied.
A. RELEVANT PROCEDURAL HISTORY
A jury in the Court of Common Pleas of Fayette County found Petitioner guilty of third degree murder in the death of the two victims. The Court of Common Pleas of Fayette County sentenced Petitioner in the high end of the standard guidelines range to 20 to 40 years for each count of third degree murder and ordered that the sentences run consecutively. Petitioner appealed to the Pennsylvania Superior Court and the sole issue raised in that appeal was that the trial court abused its discretion in imposing sentences that were excessive. See ECF No. 15-56 at 2 - 3; ECF No. 15-29 (Pa.R.A.P. 1925(b) Statement of Issues Raised on Appeal); ECF No. 15-13 at 2 - 3 (Trial Court opinion quoting issues raised). The Superior Court affirmed on June 12, 2008. ECF No. 15-39. The Pennsylvania Supreme Court denied the Petition for Allowance of Appeal, ECF No. 15-54, on October 29, 2008.
This issue of the trial court's alleged abuse of discretion in imposing the sentences, which Petitioner raised in the direct appeal to the Superior Court, is the identical issue that Petitioner raises as Ground One for relief in his habeas Petition filed herein. Compare ECF No. 15-31 at 3 (Superior Court's slip opinion quoting Petitioner's issues raised on appeal) with ECF No. 1 at 5; ECF No. 1-1 at 1.
According to the dockets of the Court of Common Pleas of Fayette County,  Petitioner filed his first PCRA petition pro se on or about December 30, 2008, ECF No. 15-41. Dianne Zerega, was ultimately appointed as counsel. Attorney Zerega filed a Motion to Withdraw and a Turner/Finley no-merit letter. ECF No. 15-43. The PCRA Court issued a Notice of Intent to Dismiss and the Petitioner filed a response. ECF No. 44. On June 5, 2009, the PCRA Court dismissed the first PCRA Petition. Petitioner filed pro se a notice of appeal to the Superior Court as well as a pro se appellate brief. The only issues raised in this appeal to the Superior Court were issues that Petitioner was denied his state law rule-based right to effective assistance of PCRA counsel. ECF No. 15-31 at 3. The Superior Court affirmed the denial of PCRA relief on May 10, 2010. The Pennsylvania Supreme Court denied the Petition for Allowance of Appeal on March 1, 20ll.
According to the dockets of the Court of Common Pleas of Fayette County, Petitioner filed a second PCRA petition on or about July 26, 2011. On August 24, 2011, the PCRA Court issued a Notice of Intent to Dismiss the second PCRA petition pursuant to Pa.R.Civ.P. No. 907. ECF No. 15-34. Petitioner filed a response to the Notice of Intent to Dismiss on September 2, 2011. ECF No. 15-35. According to the dockets of the Court of Common Pleas of Fayette County, on September 7, 2011, the PCRA Court dismissed the second PCRA petition as being time barred. Petitioner appealed to the Superior Court. The PCRA Court issued its statement in lieu of an opinion on January 5, 2012. ECF No. 15-36. The Superior Court dismissed Petitioner's appeal on March 8, 2012, for his failure to file a brief ECF No. 15-55.
Meanwhile, on September 16, 2011, while the second PCRA petition was still pending in the state courts, Petitioner filed the present Petition in this Court. After being granted three extensions of time, sought, in part, because the Petitioner's trial record was with the Superior Court due to his appeal of the second PCRA petition pending there, the Respondents filed their Answer on April 30, 2012. ECF No. 15. On July 12, 2012, Petitioner filed a third PCRA petition in state court. On July 24, 2012, Petitioner filed in this Court a Motion to Withdraw the habeas Petition. ECF No. 19. This Court denied the Motion to Withdraw and sua sponte ordered that this case be stayed, pending Petitioner's complete exhaustion of his state court remedies. ECF No. 21 at 3.
After Petitioner filed his third PCRA petition, the PCRA Court issued, on August 6, 2012, its Notice of Intent to Dismiss the third PCRA petition pursuant to Pa.R.Civ.P. 907. Petitioner filed his objections to the Notice of Intent to Dismiss on or about August 31, 2012. The PCRA Court issued its opinion and dismissed the third PCRA petition as being time barred. Petitioner appealed to the Pennsylvania Superior Court. On October 18, 2012, the PCRA Court issued its Statement in Lieu of an Opinion. On August 26, 2013, the Superior Court affirmed the dismissal of the third PCRA petition.
After the Superior Court affirmed the dismissal of the third PCRA Petition, this Court, on November 20, 2013, sua sponte lifted the stay in this case and ordered Petitioner to file an amended habeas petition to include all issues he wished to raise in one petition. ECF No. 30. In response, on December 16, 2013, Petitioner filed a '"Writ of Habeas Corpus' and 'New Unbiased Trial'" (The "Amended Petition"). ECF No. 32. Petitioner did not use the standard Petition Form A0241. Respondents filed their Answer on Behalf of the Commonwealth in Support of the Dismissal of the Petition for Writ of Habeas Corpus Filed Pursuant to 28 U.S.C. § 2254 on December 30, 2013. ECF No. 33. Although the Court ordered Petitioner to file an amended habeas petition to raise all of his claims in one petition, the Amended Petition lacks substantial clarity so as to permit this Court to discern and consider the grounds on which Petitioner claims that he is ...