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Benson v. Wingard

United States District Court, E.D. Pennsylvania

January 12, 2015

TREVOR WINGARD, et al. [1]




ELIZABETH T. HEY, United States Magistrate Judge.

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Damon Lamont Benson, who is currently incarcerated at SCI Somerset. For the reasons that follow, I recommend that the petition be denied.


On January 28, 2009, following a trial before the Honorable William J. Furber, Jr., of the Court of Common Pleas of Montgomery County, a jury found Benson guilty of burglary, [2] robbery, simple assault, recklessly endangering another person, unlawful restraint, theft by unlawful taking, and receiving stolen property. N.T. 1/28/09 at 42-43.[3]

The Pennsylvania Superior Court set forth the relevant facts as follows:

The victim in this case, Theresa Wisniewski, was a seventy-seven (77) year old woman who lived alone in Montgomeryville, Montgomery County, Pennsylvania. At trial, Ms. Wisniewski testified that, at approximately noon on January 15, 2008, she left her residence to run a series of errands. When Ms. Wisniewski returned home, she noticed an unfamiliar blue sedan parked in her driveway. Wondering if someone had come to visit her, she opened the screen door to the house, at which point she was grabbed by the defendant, who pulled her inside and threw her across the sofa, demanding money.
Ms. Wisniewski told defendant that her money was in her purse, which had fallen to the floor when she was tossed across the sofa. Defendant then took hold of Ms. Wisniewski by the shoulders and forced her into the kitchen and then through a door, which he mistook for a closet. Defendant then bolted the door behind her.
The door, in fact, led to the home's basement, where there existed another door leading to the outside. Ms. Wisniewski waited for some time in the basement, and then opened this door and peeked outside. When she realized that the blue sedan that had been parked in her driveway was gone, Ms. Wisniewski left the basement and the police were summoned.
During the course of the resulting police investigation, it was discovered that a number of items had been stolen from Ms. Wisniewski's home, including jewelry and an antique pistol, taken from Ms. Wisniewski's bedroom. Ms. Wisniewski's purse and its contents were also gone, including a $100 gift card, $90 in cash, and Ms. Wisniewski's credit cards. Defendant had even stolen a sandwich that Ms. Wisniewski had purchased while running her errands. Ms. Wisniewski reported that the total value of the property stolen was approximately $2, 400.
The jewelry and cash were never recovered. The stolen pistol was ultimately discovered during a search of a bedroom closet used by defendant in a Philadelphia residence where defendant lived with his then-girlfriend Tawanda Armour.
The police later discovered that, after the burglary and robbery at the Wisniewski residence, defendant used a J.C. Penny card which had been inside Ms. Wisniewski's stolen purse to purchase an Axion DVD Theater System, valued at approximately $300. The box for this theater system was discovered during the search of defendant's closet, and the theater system itself was discovered during a search of defendant's automobile.

Commonwealth v. Benson, 2010 PA Super 234, 10 A.3d 1268, 1269-70 (Pa. Super. 2010) (quoting Commonwealth v. Benson, No. 4962-08, Opinion, at 1-3 (Mont. Co. C.C.Pl. Feb. 24, 2009) (internal record citations omitted)). On July 6, 2009, Judge Furber sentenced Benson to a total period of incarceration of fourteen and one-half to thirty-three years, and he later reduced the maximum term to thirty years.[4]

Petitioner filed a direct appeal to the Superior Court, raising three grounds: (1) the trial court erred in denying his motion to suppress certain cellular telephone records; (2) the trial court abused its discretion when it refused to allow him to refer to a statement he gave to police during cross-examination of the interviewing officer; and (3) his sentence for both robbery and burglary was illegal because the counts should have merged. See Commonwealth v. Benson, 10 A.3d at 1271. On December 16, 2010, the Superior Court affirmed. Id. at 1272-76. On July 19, 2011, the Pennsylvania Supreme Court denied his petition for allowance of appeal. Commonwealth v. Benson, 611 Pa. 645, 24 A.3d 863 (Pa. Jul. 19, 2011).

On July 30, 2012, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (" PCRA"), 42 Pa. C.S.A. § § 9541-9551, claiming that his trial and appellate counsel were ineffective in not challenging the sufficiency of the evidence and that his robbery and theft convictions should have merged for purposes of sentencing.[5] See Commonwealth v. Benson, No. 4962-08, Opinion at 3-4 (Mont. Co. C.C.P. Feb. 14, 2013). New counsel was appointed who submitted a no-merit letter. See id. at 4 (citing Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa. Super. 1988)). In his response to Judge Furber's notice of intention to dismiss his petition, Benson argued that at sentencing his conviction for theft was changed to a conviction for access device fraud. Id. at 5. On December 4, 2012, Judge Furber dismissed the petition. Id. Benson appealed, following which Judge Furber issued his opinion recommending affirmance, and on September 10, 2013, the Superior Court affirmed. Id. at 11; Commonwealth v. Benson, No. 3 EDA 2013 (Pa. Super. Sept. 10, 2013). Benson did not seek review in the Pennsylvania Supreme Court.

On November 25, 2013, [6] Petitioner filed his pro se petition and memorandum of law in this court, identifying the following four grounds for relief:

Ground One: Counsel was ineffective for not raising a sufficiency of the evidence claim on direct appeal.
Ground Two: The evidence was insufficient as a matter of law.
Ground Three: The sentences for robbery and theft by unlawful taking should have merged with the sentence for burglary.
Ground Four: The PCRA court " erred in allowing the Commonwealth to split the petitioner['s] Theft sentence into multiple thefts for sentencing when petitioner was never charge[d] with that theft, to wit Access Device Fraud."

Doc. 1 at 5-11, 25-43 (ECF pagination). The District Attorney has filed a response, arguing that the claims are either procedurally barred or lack merit, and Benson has filed a reply. Docs. 16 & 18.


A. Exhaustion and Default

Before the federal court can consider the merits of a habeas claim, the petitioner must comply with the exhaustion requirement of section 2254(b), which requires a petitioner to " give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The doctrine of procedural default is closely related to the exhaustion requirement. It is not enough that the petitioner present his claims to the state court; he must also comply with the state's procedural rules in presenting his claims, thereby giving the state courts a full ...

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