United States District Court, E.D. Pennsylvania
PAUL S. DIAMOND, District Judge.
The Magistrate Judge has recommended that I grant this pro se Petition for habeas relief. (Doc. Nos. 33, 43); 28 U.S.C. § 2254. I will overrule the Objections filed by the Commonwealth of Pennsylvania and grant the Petition.
I. STANDARD OF REVIEW
I must review de novo those portions of the Report to which timely, specific objections have been filed. 28 U.S.C. § 636(b)(1)(C). I may "accept, reject, or modify, in whole or in part" the Magistrate Judge's findings or recommendations. Id . As to those portions to which no objections have been made, I must "satisfy [myself] that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b) Advisory Committee Notes; see Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining the district court's responsibility "to afford some level of review" when no objections have been made).
The Commonwealth charged that on October 5, 1997, Petitioner Vincent Wilkerson punched Nasir Hill, rendering him unconscious, and then pistol-whipped him and shot him in the chest. Commonwealth v. Wilkerson, No. 117 EDA 1999, slip op. at 3 (Pa.Super. Ct. Dec. 22, 2000) ("Wilkerson I"). The Commonwealth also alleged that Petitioner stole Mr. Hill's jewelry. Id . Hill survived, and on October 8, 1998, a state court jury convicted Petitioner of attempted murder, aggravated assault, and possession of the instrument of a crime. 18 Pa. Cons. Stat. §§ 2502, 2702, 907; (Resp. Ex. B, Doc. No. 23 at 2-3). The jury acquitted him of robbery. 18 Pa. Cons. Stat. § 3701; (Resp. Ex. B, No. 23 at 2-3). The trial court sentenced Petitioner to life imprisonment for attempted murder, based on Pennsylvania's "three strikes" law. (Id. at 3); see 42 Pa. Cons. Stat. § 9174. The court imposed no sentence on the other charges. (N.T. 12/10/98 at 37, 43.) On direct appeal, the Pennsylvania Superior Court upheld the convictions, but vacated the sentence and remanded, ruling that the three strikes law had been improperly applied. Wilkerson I at 17-18. The trial court then sentenced Petitioner to consecutive prison terms of 20 to 40 years for attempted murder, 10 to 20 years for aggravated assault, and 2½ to 5 years for the weapons offense-an aggregate sentence of 32½ to 65 years. (Resp. Ex. A, Doc. No. 23 at 36.)
Petitioner again appealed, contending that his attempted murder and aggravated assault sentences should have merged at sentencing. (Resp. Ex. E, Doc. No. 23 at 8.) The Superior Court disagreed, citing evidence that Petitioner beat Hill and then shot him. Commonwealth v. Wilkerson, No. 1521 EDA 2002, at 9 (Pa.Super. Ct. Sept. 10, 2003) ("Wilkerson II").
In March 2004, Wilkerson filed a pro se petition under Pennsylvania's Post Conviction Relief Act, contending, inter alia, that: (1) his trial counsel was ineffective for failing to call an alibi witness and refusing to call Hill to testify that he did not recognize Petitioner as his assailant; and (2) the court could not re-sentence him to separate terms for aggravated assault and the weapons offense when it did not do so in its original sentence. (Resp. Ex. G, Doc. No. 23 at 23, 25); 42 Pa. Cons. Stat. § 9541, et seq. The PCRA Court appointed counsel, who subsequently withdrew after filing a "no merit" letter. (Resp. Ex. H, Doc. No. 23); see Commonwealth v. Finley, 550 A.2d 13 (Pa.Super. Ct. 1988). The PCRA Court then dismissed the petition as meritless. (Resp. Ex. I, Doc. No. 23 at 19.) The Superior Court ruled that the "no merit" letter contravened controlling authority, however, and vacated the PCRA dismissal. Commonwealth v. Wilkerson, No. 3120 EDA 2004, at 5-7 (Pa.Super. Ct. May 18, 2006) ("Wilkerson III"). On remand, new counsel filed an amended petition, which the PCRA Court dismissed as meritless on July 12, 2010. (Resp. Ex. L, Doc. No. 23 at 10.) The Superior Court affirmed. Commonwealth v. Wilkerson, No. 2139 EDA 2010, at 8 (Pa.Super. Ct. Nov. 15, 2011) ("Wilkerson IV").
On April 12, 2012, Wilkerson submitted the instant pro se Habeas Petition, alleging that: (1) trial counsel was ineffective for failing to introduce evidence that Hill could not identify Petitioner; (2) his convictions for attempted murder and aggravated assault should have merged at sentencing; and (3) trial counsel was ineffective for failing to call several exculpatory witnesses. (Doc. No. 1 at 10, 13, 17); 28 U.S.C. § 2254. The Commonwealth filed a response, and Petitioner replied. (Doc. Nos. 23, 28.) Petitioner then submitted an "amended petition, " raising several new challenges to his sentence. (Doc. No. 31.) The Commonwealth filed a response. (Doc. No. 31.) Petitioner then filed a Motion to Amend, asking "the District Court to consider the United States Supreme Court decision in Alleyne v. [United States, ] 133 S.Ct. 2151 (2013)." (Doc. No. 32.)
Judge Strawbridge filed his Report and Recommendation on July 24, 2014, concluding that: 1) Petitioner was not entitled to habeas relief on his ineffective assistance claim related to failure to call the victim; 2) Petitioner's ineffectiveness claim related to the failure to call other witnesses was not procedurally defaulted but was meritless; 3) Petitioner was entitled to habeas relief on Fifth Amendment Double Jeopardy grounds; and 4) Petitioner was not entitled to habeas relief on any of his other sentencing claims. (Doc. No. 33.) Petitioner filed a notice of no objection on September 22. (Doc. No. 40.) The Commonwealth filed Objections on October 2. (Doc. No. 43.) On December 9, I denied Petitioner's Motion to Amend as moot, because Judge Strawbridge had recommended denying the Motion and neither Party objected. (Doc. No. 47.)
The Commonwealth objects to Judge Strawbridge's rulings that: (1) the Petition should be granted as to Petitioner's Double Jeopardy claim; and (2) Petitioner's ineffective assistance of counsel claim was not procedurally defaulted.
A. Double Jeopardy
The Commonwealth objects to the determination that Petitioner's aggravated assault and attempted murder convictions merged at sentencing. It contends that Petitioner failed to raise this issue in state court, and that Judge Strawbridge ...