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Burgwin v. Folino

United States District Court, W.D. Pennsylvania

August 21, 2014

BRANDON RAY BURGWIN, HT-7463, Petitioner,
v.
LOUIS S. FOLINO, et al., Respondents.

MEMORANDUM and ORDER

ROBERT C. MITCHELL, Magistrate Judge.

Brandon Ray Burgwin an inmate at the State Correctional Institution - Waynesburg has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Burgwin is presently serving a twenty to forty year sentence imposed following his conviction by a jury of attempted homicide, aggravated assault and carrying a firearm without a license. The original sentence was imposed on October 6, 2008.

An appeal to the Superior Court was pursued in which the issues presented were:

1. Were Appellant's state and federal due process rights violated when he was convicted of Unlicensed Concealed Firearms Possession... absent evidence establishing, beyond a reasonable doubt, (A) that he shot the victim with a firearm that had been concealed on or about his person, and (B) that the firearm's length was such that it constituted a qualifying firearm...?
2. Did the trial court act within its authority when, after the Notice of Appeal was filed in the instant case, it reduced Appellant's sentence for Unlicensed Concealed Firearms Possession from 5-to-10 years of confinement to 3½-to-7 years of imprisonment - and, if it instead lacked such authority, must not the original 5-to-10 year sentence be vacated owing to its illegality?[1]

On May 11, 2010, the Superior Court affirmed his conviction of attempted homicide and aggravated assault but reversed the firearms conviction.[2] Resentencing occurred on September 21, 2010.[3]

On November 24, 2010, Burgwin filed a post-conviction petition. The latter was dismissed on February 15, 2012, and an appeal was filed in which the issues were:

I. Whether prior counsel was ineffective, which in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
II. Whether there was a violation of the Constitution of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt [or] innocence could have taken place.
III. Whether the trial court erred in dismissing appellant's PCRA petition without a hearing.[4]

On July 1, 2013, the denial of post-conviction relief was affirmed[5] and leave to appeal was denied by the Pennsylvania Supreme Court on January 16, 2014.[6]

In the instant petition executed on April 22, 2014 and amended on July 30, 2014, petitioner raises five claims for relief:

1. Unrightful incarceration with false imprisonment based on the victim's initial refusal to identify her assailant and her testimony that she heard five shots when only four fragments were located.
2. Insufficient evidence of criminal attempt-homicide in that evidence was based on hearsay.
3. Imposition of an illegal and excessive/impermissible sentence for criminal attempt-homicide.
4. Prosecutorial misconduct by introducing perjured hearsay testimony.
5. Ineffective assistance of counsel for failing to consult with petitioner as to whether he objected to a juror who at some time worked with petitioner's mother and the coroner.

The factual background to this prosecution is set forth in the Superior Court's Memorandum of July 1, 2013 setting ...


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