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Wright v. Kerestes

United States District Court, E.D. Pennsylvania

November 17, 2014

JOHN F. WRIGHT, JR., Petitioner,
v.
JOHN KERESTES, et al., Respondents

JOHN F. WRIGHT, JR., Petitioner, Pro se, FRACKVILLE, PA.

For JOHN KERESTES, SUPERINTENDENT, ET AL, THE ATTORNEY GENERAL OF THE STATE OF, Respondents: REBECCA SNYDER FRANZ, OFFICE OF THE DISTRICT ATTORNEY, LANCASTER, PA.

MEMORANDUM

William H. Yohn Jr., Judge.

Petitioner John F. Wright filed a pro se 28 U.S.C. § 2254 habeas petition, which I referred to a magistrate judge. The magistrate judge issued a report and recommendation that proposed denying Wright's petition because he failed to file it within § 2254's one-year limitations period, and because he had neither demonstrated that statutory tolling or equitable tolling was applicable, nor made a showing of actual innocence.

Wright objected to the magistrate judge's finding that equitable tolling did not apply, and he also claimed that the magistrate judge failed to consider the constitutionality of his sentence under Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Because the court finds that equitable tolling and Alleyne are inapplicable to Wright's case, it will overrule his objections and dismiss his petition as time barred under § 2254.

I. Factual and Procedural History

A. Plea Agreement and Sentencing

In 2005, the Commonwealth of Pennsylvania charged John F. Wright with numerous offenses involving cocaine distribution. The charges stemmed from allegations that he delivered cocaine to a confidential informant four times while also using a cellular phone to facilitate these deals.[1] The Commonwealth also alleged a fifth deal in which Wright possessed cocaine with intent to deliver and possessed a firearm.

As part of a counseled plea agreement, he pleaded guilty to these offenses in the Court of Common Pleas of Lancaster County on July 26, 2005. His plea agreement involved the Lancaster County District Attorney's Office, as well as the United States Attorney's Office for the Eastern District of Pennsylvania. It required Wright to plead guilty to the state charges and serve fifteen to thirty years in prison. In exchange, the United States Attorney's Office agreed not to indict Wright on federal charges. That same day, the Honorable Emanuel Cassimatis sentenced him to imprisonment of fifteen to thirty years in accordance with this agreement.

B. Direct Appeal Process

Using the services of his second attorney, Michael V. Marinaro, who was not his plea agreement counsel, Wright appealed his sentence to the Superior Court. Marinaro filed a notice of appeal on August 24, 2005, and submitted his statement of matters for appeal on October 11, 2005. Marinaro claimed that Wright did not enter into his guilty plea knowingly, intelligently, and voluntarily. He also argued that Wright's trial counsel through the plea bargaining process was ineffective. On March 22, 2006, the Superior Court dismissed Wright's appeal for Marinaro's failure to file a brief with it.

Just over a month later, Marinaro wrote Wright a letter concerning the status of his case. In this letter, dated May 2, 2006, Marinaro first apologized to Wright for not contacting him earlier: " I would like to extend an apology to you for my failure in not responding sooner to your letters of inquiry." He then told Wright that he had met " with Assistant District Attorney Ken Brown regarding the appeal of your guilty plea" and that " Brown advised [him] that the plea was a voluntary, knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Calling Brown's response a " [t]ypical answer, " he went on to state that Brown " threatened or suggested that if the plea was overturned on the direct appeal the matter would be tried in Federal Court." He next proceeded to tell Wright that he thought Wright had ineffective assistance of counsel at the plea bargaining stage, and they should pursue this claim in a PCRA petition. He closed by stating that he " shall consult with ADA Brown regarding a potential PCRA, while inquiring about his thoughts on suppression issues. Following this meeting I will telephone your counselor, Ms. Summers, and speak with you directly."

Marinaro wrote Wright another letter a few months later. On August 12, 2006, Marinaro told Wright the following about the status of his case:

Please be advised that once again I have reviewed your case with prosecuting attorney Ken Brown. He stands by his position that they will seek Federal charges rather than State based upon the reasoning as outlined in your guilty plea and sentencing on July 26, 2005. Please review the transcripts and contact my office regarding your desire to proceed with an ineffective assistance claim on collateral appeal.

There is no evidence that Wright pursued this option in a reasonable time period.

Over a year later, on December 20, 2007, Wright filed a pro se motion nunc pro tunc to reconsider his sentence, which was denied about a week later.

C. State Collateral Review Process

Approximately four years later, sometime in 2010, Wright's family hired a new lawyer (his third), Cheryl J. Sturm, to investigate the status of his case. On December 3, 2010, Sturm wrote Wright a letter telling him that his direct appeal had been denied because Marinaro had failed to file a brief, and she asked Wright for permission to file a PCRA petition for him.

Sturm then filed a PCRA petition for Wright on March 3, 2011. In it, she claimed that Wright's PCRA petition should not be time barred and that he was denied the effective assistance of counsel during plea bargaining, at his plea hearing, and in his direct appeal. On June 13, 2011, the PCRA court issued a Rule 907 notice suggesting that the court lacked jurisdiction to address the PCRA petition because it was untimely. Wright's new counsel responded, arguing that the court should have treated his December 2007 motion to reconsider his sentence as a timely filed PCRA petition. The PCRA court, however, dismissed his petition as untimely on July 22, 2011.

Wright filed a pro se notice of appeal less than a month later. Sturm then withdrew as his counsel, and MaryJean Glick, a public defender (his fourth attorney), was appointed to represent him on his PCRA appeal in February 2012. On April 26, 2012, Glick filed a statement of matters for appeal. The Superior Court affirmed the PCRA court's dismissal on timeliness grounds on November 9, 2012, finding that Wright--by way of Sturm's representation--had failed to properly plead any of the exceptions to the PCRA's timeliness requirement.

The next month, Wright filed a pro se petition for allowance of appeal to the Supreme Court of Pennsylvania, ...


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