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Jacobs v. Giroux

United States District Court, W.D. Pennsylvania

January 4, 2017

ANDRE JACOBS, DQ-5437, Petitioner,
v.
SUPT. GIROUX, et al.,

          MEMORANDUM and ORDER

          Robert C. Mitchell United States Magistrate Judge

         Andre Jacobs an inmate at the State Correctional Institution at Albion has presented a petition for a writ of habeas corpus (ECF No. 7). For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Jacobs is presently serving a 49 to 98 month period of incarceration following his conviction by a jury of attempted escape, criminal conspiracy and possessing implements for escape at No. CP-02-CR-2109-2006 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on December 5, 2012.[1]

         An appeal was taken to the Superior Court in which the issues presented were:

1. Should Appellant's 18 Pa.C.S.§ 5122 Possession-or-control-of escape tools conviction be vacated on grounds of insufficient evidence, given that (a) it was not established that he was aware of presence of a metal pry bar found hidden somewhere in his cell's toilet (the prosecution's evidence permitting the conclusion that the metal bar was hidden unbeknownst to Appellant, out of sight in the toilet's tank by a prior occupant of his cell); and (b) it was not established that the strips of cloth that he possessed (commonly called a "fishing line" and commonly tied together by inmates to create a rope capable of moving objects from one cell to another) constituted an implement designed for escape?
2. Should Appellant's attempted escape conviction be vacated on grounds of insufficient evidence, given that (a) it was not established that he was the inmate who broke his cell's window and caused other damage to his cell (rather than either a prior occupant of his cell, or, alternatively, the inmate in an adjacent cell who fell to his death trying to escape); and (b) it was also not established that his intent in causing that damage (assuming that he was in fact the inmate who caused it) was to facilitate his escape from the Allegheny County Jail rather than to enable him to reach out of his cell window and grab hold of a neighboring inmate who, in trying to escape, found himself in danger of death as he dangled 16 stories above the ground?
3. Should Appellant's conspiracy to escape conviction be vacated on grounds of insufficient evidence, given that (a) there was no indication that he had agreed to assist a fellow inmate in his escape attempt or was being aided by that inmate in an attempt of his own; (b) the mere fact that he himself may have been attempting to escape (assuming arguendo that he was engaged in that endeavor) does not suffice to establish that he was assisting a fellow inmate in his own independent attempt to escape; and (c) the mere fact that he was aware of the fact that a fellow inmate was planning an escape attempt (assuming that he had such knowledge) does not establish that he was assisting that inmate in that effort?
4. Was Appellant illegally sentenced on all three of his convictions, given that (a) he received a 33-to-66 month prison sentence on his Misdemeanor I Possession-or-Control-of-escape-tools conviction (exceeding the 30-to-60 month statutory limit); (b) he received a pair of 16-to-32 month prison sentences on his Misdemeanor II attempted Escape and Misdemeanor II conspiracy-to-escape convictions (both exceeding the 12-to-24 month statutory limits); and (c) he was sentenced for both attempted escape and conspiracy-to-escape in violation of 18 Pa.C.S. § 906's ban on the imposition of multiple sentences for multiple inchoate convictions?[2]

         On August 24, 2009, the Superior Court affirmed the conviction but remanded for resentencing.[3]On February 21, 2012, the Supreme Court affirmed the conviction but remanded for resentencing pursuant to the directive of the Superior Court.[4] That resentencing occurred on December 5, 2012. Post-sentence motions were filed and withdrawn on February 14, 2013.[5] No appeal was pursued and for this reason his sentence became final on March 16, 2013 when the time in which to appeal expired. P.R.Crim. P. 720(A)(2)(c).

         On March 4, 2014, Jacobs sought post-conviction relief. Relief was denied on November 20, 2014 and an appeal was filed in which the issues were:

1. Did the trial court err in denying appellant's PCRA petition since trial counsel Phillps was ineffective for proceeding with jury selection without a judge and court reporter present, without appellant's consent?
2. Did the trial court err in denying appellant's PCRA petition since trial counsel Phillps was ineffective for insisting that appellant not utilize a "duress" defense since appellant told trial counsel that he knew that Seretich was going to escape, that Seretich stole photos of appellant's family from his cell and threated appellant with harm to his family if appellant did not assist in Seretich's escape attempt, and if the jury had heard this testimony from appellant it would likely have excused his minimal/forced participation in the escape attempt and rendered a not guilty verdict at all counts?[6]

         On June 1, 2015, the denial of post-conviction relief was affirmed.[7] Allowance of appeal was denied on October 27, 2015.[8]

         On December 9, 2015, Jacobs executed the instant petition which was received in this Court on December 16, 2015 (ECF No. 1). In the petition he contends he is entitled to relief on the following grounds:

1. Trial counsel was ineffective for proceeding to trial on charges which were contained in an information which had not been scheduled for trial at that time and for this reason counsel was unprepared.[9]
2. Petitioner did not voluntarily waive the presence of the trial court or a court reporter during jury selection.[10]
3. Trial counsel was ineffective for failing to raise a "duress" defense but rather encouraged petitioner to testify that he knew nothing about a planned escape.
4. PCRA counsel was ineffective for failing to investigate and secure photos found on the body of the escapee which would have demonstrated that the petitioner's actions were coerced.[11]

         The background to this prosecution is set forth in the opinions of the Superior Court citing the trial court's opinion:

The evidence to support the attempted escape conviction includes a four-inch hole between the defendant's cell and the cell of an escaped inmate, as well as items recovered from defendant's cell, including a removed window, a crowbar, and strips of cloth. The defendant was in cell number 218 of the disciplinary housing unit and an inmate named Frank Seretich, was in the next-door cell, number 217. Mr. Seretich was found dead on January 12, 2006, after falling from a hand-made "rope while attempting to escape. Authorities instituted a lock-down and unit search after Mr. Seretich's body was found. Incriminating items were found in the defendant's cell.
The defendant and Mr. [Seretich] shared one outer window, surrounded by concrete, which contained two individual cell windows and opened separately. The Lexan glass and screen had been removed from the window and were found in the defendant's cell. A pry bar that had been used to pry the [rivets] off the Lexan glass window panel was found in the toilet of defendant's cell. The outside metal bars from the shared windows were also found in the defendant's cell. The defendant's cell also contained strips of cloth, similar to the ones used by Frank Seretich to construct a 225 foot long rope. There was a 1"x4" hole in the wall of the defendant's cell that ran through the four-inch thick wall into Mr. Seretich's cell. Additionally, there was a line constructed of prison cloth that inmates used for "fishing", passing things from cell to cell.
The defense argued that the above evidence was merely circumstantial evidence and speculation without direct evidence of the crimes charged. The jury found the defendant guilty.[12]

         It is provided in 28 U.S.C. § 2244(d)(1) and (d)(2) that:

(1) A 1-year period of limitation shall apply to the application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) The date on which the judgment became final by the conclusion of direct review or the expiration of the time ...

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