United States District Court, Middle District of Pennsylvania
Before the court are Petitioner’s Objections to the Report and Recommendation of Magistrate Judge Malachy E. Mannion filed on June 3, 2010 (Doc. 20). For the reasons which follow, we will adopt the Report and Recommendation of the Magistrate Judge.
Petitioner, Thomas Lee Edrington, an inmate confined at the State Correctional Institution, Dallas, Pennsylvania, filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254 on March 31, 2009. In his Petition, Petitioner challenges his conviction for aggravated assault and false imprisonment in the Court of Common Pleas of Dauphin County. The Respondents filed a Response to the Petition for Writ of Habeas Corpus (Doc. 11) on June 1, 2009. Petitioner filed a Traverse on July 8, 2009 (Docs. 15 and 16).
On June 3, 2010, the Magistrate Judge filed a Report and Recommendation (Doc. 20), wherein he recommended that: (1) Grounds One (1), One (5), Two, Three and Four through Eleven be dismissed as procedurally defaulted; and, (2) Grounds One (2), One (3), and One (4) be denied on the merits. On July 26, 2010, Petitioner filed Objections (Doc. 24) to the Report and Recommendation. On November 23, 2010, Petitioner filed a Motion to Hold the Habeas Corpus Proceedings in abeyance, pending his filing of additional materials in state court (Doc. 27). On December 8, 2010, the Petition for Writ of Habeas Corpus was stayed and Petitioner was directed to provide the court with status reports at 90 day intervals (Doc. 28). On August 28, 2012, Petitioner filed a Motion to Lift the Stay and to reopen the case (Doc. 35). On March 6, 2013, the Motion to Lift the Stay and Reopen the Case was granted (Doc. 36).
STANDARD OF REVIEW
When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the Report to which objections are made. 28 U.S.C. §636(b)(1)(c); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. §636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge’s proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
In the Report and Recommendation, the Magistrate Judge set forth the factual history, as taken from the opinion of the Pennsylvania Superior Court, as follows:
In the early morning hours of October 19, 1999, twelve-year-old [“DC”] awoke to the sound of her mother, Rita Smith, arguing with [petitioner] her mother’s boyfriend, at Ms. Smith’s residence in Harrisburg. [“DC”] called out to her mother, who assured her that nothing was wrong. [“DC”] then went back to sleep. Thereafter, [petitioner] asked Ms. Smith to perform oral sex on him, and when she refused, he became angry and raised his fists at her. As a result, Ms. Smith ran from the house and called out to [“DC”], telling her to meet her outside. [“DC”] got dressed and ran outside, but could not locate her mother; thus, she reentered the house and went back to sleep.
[Petitioner] woke [“DC”] and instructed her to look for her mother. When [“DC”] stood up, [petitioner] put his hands around her neck and began choking her. He then forced [“DC”] onto her bed and pushed her face into a pillow. As [“DC”] struggled with [petitioner], she began to foam at the mouth and urinated on herself. [Petitioner] told her to remove her pants, but she refused. [Petitioner] stopped choking [“DC”], put a knife to her throat, told her to remain quiet, and threatened to kill her if she made any noise. [Petitioner] tied [“DC”] to her bed with wire and bed sheets, and he gagged her with a bandanna.
After securing [“DC”] to the bed, [petitioner] began pacing in the hallway, waiting for Ms. Smith to return to the house. When Ms. Smith finally returned, [petitioner] threatened her with the knife and stated that he had choked [“DC”]. When [petitioner] subsequently walked to the entrance of the house to peer outside, Ms. Smith closed the front door behind him. [Petitioner] fled the scene, and Ms. Smith summoned the police.
(Doc. 20, pp. 2-3, referencing, Doc. 12, Ex. E, pp. 1-2)
The Magistrate Judge then set forth the procedural history. As the Magistrate Judge points out, a criminal complaint was filed on October 16, 1999, charging Petitioner with aggravated assault, unlawful restraint, false imprisonment and simple assault by physical menace. On August 9, 2000, Petitioner pled guilty to the charges, in the middle of a jury trial. During the plea colloquy, Petitioner was advised that aggravated assault is a felony of the first degree carrying a maximum penalty of incarceration for twenty years. Petitioner was sentenced by the trial court to an aggregate sentence of ten to twenty years, fines totaling $300 and payment of the costs of prosecution. The Commonwealth filed an appeal to the Superior Court of Pennsylvania, claiming that the trial court erred in failing to impose the enhanced mandatory minimum sentence. Petitioner filed a cross appeal.
On July 20, 2001, the Superior Court vacated Petitioner’s sentence and remanded to the trial court for resentencing under the mandatory minimum sentence provision of 42 Pa. C.S.A. §9714(a)(2). Petitioner’s cross appeal was quashed because the notice of appeal was untimely. Thereafter, Petitioner filed a Motion to Withdraw his guilty plea, which was granted by the trial court.
On May 6, 2002, Petitioner waived his right to counsel and proceeded to a jury trial pro se. On May 8, 2002, the jury found Petitioner guilty of aggravated assault and false imprisonment and not guilty of unlawful restraint and simple assault. On July 24, 2002, Petitioner was sentenced to the mandatory minimum sentence of twenty-five to fifty years incarceration pursuant to 42 Pa. C.S.A. §9714(a)(2). Petitioner was also directed to pay fines totaling $200.00 and the costs of prosecution.
The Magistrate Judge next details Petitioner’s journey through the appellate and post conviction state court proceedings. Petitioner filed the instant Petition for Writ of Habeas Corpus on March 31, 2009. In his Petition, Petitioner raised the following grounds:
GROUND ONE: Ineffective assistance of pretrial counsel.
Petitioner’s conviction was obtained as a result of ineffectiveness of counsel at the critical stage – pretrial– of judicial proceedings. Pretrial counsel failed: (1) to examine physical discovery evidence; (2) subpoena prosecution witness who testified against Petitioner previously; (3) file pretrial motion for recusal of trial court; (4) Pretrial counsel postponed trial dates under false pretexts; (5) actions were constructive denial of counsel.
GROUND TWO: Petitioner was denied a fair and impartial trial.
Trial court participated in plea negotiations in Petitioner’s first trial, (precipitated by black female juror’s question). Petitioner pled guilty after counsel refused to defend him any further. Commonwealth appealed; Superior Court remanded case for resentencing to lower court; Trial court allowed Petitioner to withdraw guilty plea. Trial court presided over second trial. Trial court did not recuse itself.
GROUND THREE: Ineffective assistance of appellate counsel.
Appellate counsel was ill with cancer at the time he handled Petitioner’s appeal and was not competent. Appellate counsel failed to investigate and raise five meritable issues in Petitioner’s direct appeal of October 7, 2004. Petitioner mentioned appellate counsel being ill in Petition To File Appeal Brief (July 12, 2004; p.4, No. 19).
Superior Court denied Petitioner due process of law by claiming the following issues waived – when the fault was ineffective appellate counsel who was battling terminal illness at the time when handling Petitioner’s appeal. Appellate counsel laboring under such conditions could not function as counsel as guaranteed by Sixth Amendment of the U.S. Constitution.
GROUND FOUR: Petitioner was denied his constitutional right to fair trial and effective pretrial counsel by being forced into Hobson’s Choice between incompetent counsel or self-representation.
(1) Appellate counsel was ineffective in not investigating pretrial counsel’s actions and or failure to act in all critical stages of pretrial proceedings which forced Petitioner into involuntary waiver of trial counsel.
(2) All matters of pretrial counsel’s ineffectiveness was known by appellate counsel and is on record. Appellate counsel could have no reasonable basis for not raising this issue.
(3) The actions and/or failure by appellate counsel violated Petitioner’s Sixth and Fourteenth Amendment ...