United States District Court, Western District of Pennsylvania
RONALD E. HOFFMAN, JR., Petitioner,
BRIAN THOMPSON, et al., Respondents.
OPINION AND ORDER
SUSAN PARADISE BAXTER, UNITED STATES MAGISTRATE JUDGE.
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Ronald E. Hoffman, Jr. ("Petitioner"). For the reasons set forth below, the District Attorney of Venango County's motion to dismiss is granted, all of Petitioner's claims are denied, and a certificate of appealability is denied on all claims. Also, Petitioner's motions for an evidentiary hearing and for appointment of counsel are denied.
1. Petitioner's 2009 Judgment of Sentence
In 2008, Petitioner was charged in the Court of Common Pleas of Venango County at Criminal Docket Nos. 03-2009 and 05-2009 with two counts of Forgery, two counts of Access Device Fraud, and Identify Theft. The charges resulted from his unauthorized use of two credit cards, one of which belonged to his mother, to obtain items at several gas stations in Venango County.
Petitioner pleaded guilty to the charges at Docket No. 03-2009 and was found guilty by a jury of the charges at Docket No. 05-2009. Assistant Public Defender Erik Rutkowski, Esquire, represented him.
On July 28, 2009, the Honorable Robert L. Boyer sentenced Petitioner to a total aggregate sentence of 93 to 240 months in prison (the minimum part was later reduced when it was determined that Petitioner was RRRI eligible). When he imposed the 2009 judgment of sentence, Judge Boyer stated in the sentencing order:
The Sentences imposed herein shall run concurrent with any and all sentences previously imposed upon this Defendant whether in Venango County or elsewhere; however, the Pre-sentence Investigation has not revealed any previous sentences to which this sentence could run consecutively and we are not aware of any county sentence which needs to be served by this Defendant prior to serving his state sentence in this case.
(Sentencing Hr'g Tr. at 27).
Petitioner, through counsel, challenged his 2009 judgment of sentence in a consolidated direct appeal with the Superior Court of Pennsylvania. He claimed that Judge Boyer abused his discretion by issuing an excessive sentence, considering inappropriate information, and failing to take into account significant mitigating factors.
On October 12, 2010, the Superior Court issued a Memorandum in which it affirmed Petitioner's 2009 judgment of sentence. Commonwealth v. Hoffman, Nos. 1568 & 1569 of 2009 (Pa.Super. Oct. 12, 2010). Petitioner did not file a petition for allowance of appeal ("PAA") with the Supreme Court of Pennsylvania. Accordingly, his 2009 judgment of sentence became final on or around November 11, 2010, upon expiration of the time to file a PAA. Gonzalez v. Thaler, __ U.S. __, 132 S.Ct. 641, 653-56 (2012) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (same).
On or around January 14, 2011, Petitioner filed a request with the Court of Common Pleas that he be appointed counsel to file a motion for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. That request was docketed on January 20, 2011. The next day, the PCRA court appointed Matthew C. Parson, Esquire, to represent Petitioner.
In the PCRA proceeding, Petitioner contended that his trial attorney (Attorney Rutkowski) provided him with ineffective assistance of counsel for:
1. failing to file pretrial motions prior to the jury trial requesting that the court order the Commonwealth not to bring up that Petitioner pleaded guilty to the charges at Docket No. 03-2009;
2. failing to argue that the crimes at issue were de minimis; and,
3. failing to withdraw from the case when counsel became incapable of acting in a professional manner.
(See Dec. 16, 2011, Opinion of the PCRA court at 2).
The PCRA court presided over evidentiary hearings on August 26, 2011, and November 22, 2011. On December 16, 2011, it entered an Opinion in which it held that Petitioner's claims had no merit. On that same date, it issued an Order of Court in which it dismissed the PCRA motion.
Petitioner had 30 days in which to file an appeal with the Superior Court. He did not pursue one. Accordingly, the PCRA proceeding concluded on or around January 16, 2012, the date upon which the time to file an appeal expired. Swartz, 204 F.3d at 419-21.
On or around February 29, 2012, Petitioner filed pro se a second PCRA motion. He claimed that Attorney Parson, who represented him during the first PCRA proceeding, was ineffective for failing to raise the following claims:
1. trial counsel (Attorney Rutkowski) was ineffective for failing to file a PAA after the Superior Court affirmed his 2009 judgment of sentence;
2. the trial court erred in allowing the prosecutor "to make many of the statements he made [at the] trial [at ...