United States District Court, W.D. Pennsylvania
RICHARD E. TOKARCIK, JR., Petitioner,
DANIAL P. BURNS; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
The Honorable Maureen P. Kelly Chief United States Magistrate Judge
KIM R. GIBSON UNITED STATES DISTRICT JUDGE
Richard E. Tokarcik, Jr., ("Petitioner"), proceeding pro se, has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his convictions. The convictions arose out of theft of movable property from a resort located in Clearfield County.
The case was referred to Chief Magistrate Judge Maureen Kelly in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Civil Rules 72.C and D.
Chief Magistrate Judge Kelly's Report and Recommendation, ECF No. 11, filed on April 14, 2015, recommended that the Petition be denied. Petitioner was informed that he could file Objections to the Report. Petitioner filed Objections on May 1, 2015, ECF No. 13. Petitioner also prematurely filed a Notice of Appeal to the United States Court of Appeals for the Third Circuit. ECF No. 12.
Nothing in Petitioner's Objections merits rejection of the Report.
Petitioner's first objection is summarily addressed. Petitioner argues that the "confusion of the Chief Magistrate Judge is confirmed in the 'Report' section of the Report and Recommendation [when the Report states that Petitioner was convicted of two counts of burglary]. However, nowhere in the procedural history section does it even remotely suggest the Defendant was convicted of Burglary." ECF No. 13 at 1. Both in his Petition and in the PCRA Petition that Petitioner filed on October 12, 2012, Petitioner himself concedes that he was convicted of burglary. ECF No. 1, ¶ 5. See also State Court Record PCRA Petition under the section entitled "I WAS CONVICTED OF THE FOLLOWING CRIMES" Petitioner wrote "Burglary Burglary Theft by Unlawful Taking." Moreover, suffice it to say that if Petitioner were not convicted of Burglary by the trial court, his entire argument that he did not plead guilty to burglary but nonetheless was convicted of and sentenced for burglary would not need to be addressed and his first ground for relief would be summarily dismissed as meritless.
Nevertheless, as Petitioner conceded in both the Petition and in the PCRA petition and, as the Report correctly noted, Petitioner was convicted by the Trial Court and sentenced for, inter alia, the crime of burglary. ECF No. 4-2 at 89 ("AND NOW, this 9th day of November, 2010, Defendant having entered Guilty Pleas to the Offenses of Burglary, two (2) counts, Felonies of the First Degree, and theft by Unlawful Taking, a Misdemeanor of the First Degree, ... it is the SENTENCE of this Court that on each count of the Offense of Burglary .. . that he be incarcerated ... for a term the minimum of which shall be four (4) months and the maximum of which shall be three (3) years, with each count to be served concurrent to each other . ..."). The Report further correctly noted that Petitioner did not plead guilty to Burglary in either the oral plea colloquy as revealed by the transcript date August 26, 2010, or in the written plea, entitled "NEGOTIATED PLEA AGREEMENT AND GUILTY PLEA COLLOQUY" (hereinafter, "the Written Plea") dated August 26, 2010. ECF No. 4-2 at 67 - 74.
As the Report observed, Petitioner was accompanied by private counsel when the sentence for burglary on two counts and theft by unlawful taking on one count was imposed in open court and neither privately retained counsel nor Petitioner voiced any objection to the sentence for burglary at that time. It is entirely possible that no objection was voiced since the sentence imposed was the very sentence that Petitioner had previously bargained to receive in the rejected plea agreement of August 26, 2010, i.e., a minimum period of four months incarceration with a maximum to be determined by the Court. ECF No. 4-2 at 68; Id. at 4-2, p. 2 of transcript, lines 14-16. We note that although neither the Written Plea nor the Transcript of the Plea Colloquy indicates a specific maximum sentence of incarceration, it appears that the understanding of Petitioner and apparently the prosecution was that Petitioner's maximum sentence would be 36 months, i.e., the exact maximum sentence that he ultimately received. See ECF No. 4-2 at 12 (Petitioner "negotiated and executed a Guilty Plea and Guilty Plea Colloquy inwhich [sic] he agreed to plead guilty to (2), (3), (4) & (5) (aforementioned) in exchange for a minimum sentence of incarceration of 4 months to 36 months.").
Moreover, the Report correctly noted that Petitioner never raised in the state courts the claim that although he had not pleaded guilty to burglary he was sentenced for burglary. In order to exhaust, and consequently, in order to avoid procedurally defaulting a federal claim for failure to present an issue to the State Courts, a State prisoner must have first "fairly presented" in the State Courts all of his federal constitutional claims that he raises in his federal habeas petition.For claims to be "fairly presented" in state court, claims raised in state court must be "substantially equivalent to those raised in federal court." Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). Furthermore, not only must the legal theory presented to the state courts and the federal habeas courts be the same but the facts presented to the state courts underlying those legal theories must be the same facts presented to the federal habeas court. See, e.g., Gibson v. Scheidemantel. 805 F.2d 135, 138 (3d Cir. 1986)("Both the legal theory and the facts on which a federal claim rests must have been presented to the state courts.").
Despite the fact that the Report found Petitioner never raised Ground One in the State Courts, Petitioner objects and states that "Petitioner asserts that in fact this issue was raised in state court" and asserts that this issue was raised under the Issue III as raised in the brief to the Superior Court on appeal. ECF No. 13 at 1, ¶ 3. Issue III in the brief filed pro se in the Superior Court on appeal from the denial of PCRA relief was "Whether the colloquy itself is defective and entered into by [Appellant] unknowingly, unintelligently, [and/or] involuntarily[?]" Fortunately for the Court, Petitioner's pro se brief on appeal is contained in the record before this Court. ECF No. 4-2 at 4 - 22. One searches in vain through the pro se appellate brief for a factual claim by Petitioner asserting that although he did not plead guilty to burglary, he was nonetheless convicted of and sentenced for burglary.
Instantly, we find that Ground One of the habeas petition has not been fairly presented to the state courts because Ground One is not substantially equivalent to the grounds raised in the Petitioner's post sentence motions or in his PCRA petition and PCRA appeal. Review of the Petitioner's pro se brief and his post sentence motions and the record before this Court definitively establishes that Petitioner never raised Ground One in the state courts or, at the very least, he never raised ...