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Romansky v. Folino

United States District Court, M.D. Pennsylvania

March 1, 2017

STEVEN L. ROMANSKY, Petitioner
v.
LOUIS S. FOLINO, et al., Respondents

          MEMORANDUM

          SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE

         Presently before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended on April 15, 2016, filed by Petitioner Steven Romansky, a state inmate currently incarcerated at the State Correctional Institution at Greene, in Waynesburg, Pennsylvania. (Doc. 63.) In the petition, Petitioner challenges his 1987 and 2000 convictions and sentences in the Court of Common Pleas in Pike County, Pennsylvania (“trial court” or “Pike County court”). For the reasons that follow, the habeas petition will be denied.

         I. Background

         The underlying facts relating to Petitioner's convictions are as follows, as summarized in the Grand Jury Presentment related to his case:

Pursuant to the submission of Notice No. 7, this Investigating Grand Jury began hearing evidence relative to stolen motor vehicles and insurance fraud throughout Pennsylvania. Through education, experience, informant information and eye witness statements, the Office of Attorney General, Bureau of Criminal Investigation (OAG/BCI) and the Pennsylvania State Police (PSP) have learned that groups of individuals have been working together as an enterprise and engaging in racketeering activities to steal and dispose of various types of motor vehicles. This specific investigation has revealed that a group of individuals is operating in the northeastern part of Pennsylvania, New York and New Jersey. They have been obtaining wrecked or other low cost vehicles in order to acquire vehicle identification number (VIN) plates and titles. They would attach these VIN plates to the fraudulently obtained vehicles and, to the extent necessary, would alter or deface other identification numbers located on the vehicle frames so as to avoid any trace of the original vehicle. These individuals were also engaged in stealing various motor vehicles and dismantling them in order to sell the part[s] or to reassemble other vehicles.
* * *
Special Agent [Russell] Thomas [of the Office of Attorney General] received information that [Petitioner] had possession of a stolen green and white Ford Bronco. After checking official Pennsylvania Department of Transportation records, it was determined that the purported 1979 Ford 4-wheel drive Bronco (vehicle number 27) was using a VIN for a 1974 Ford Pinto wagon. The title records revealed that [Petitioner] had been issued a special state replacement vehicle identification number plate for this vehicle based upon title work submitted to the department. Pennsylvania State Police troopers observed this vehicle which obviously appeared to be a Bronco rather than a Pinto station wagon. Based upon this information, a search warrant was obtained and the vehicle was seized at [Petitioner]'s residence on August 28, 1984 in Sterling, Pike County, Pennsylvania. An examination revealed that this Ford Bronco was reported stolen January 7, 1981 in Mount Pocono, Monroe County, Pennsylvania. Further investigation revealed that the Pinto VIN came from a vehicle given to Thomas Smithers, former owner of the Happy Hooker garage, Mount Pocono, Monroe County, Pennsylvania. Thomas Smithers is a part-time police officer in Mount Pocono, Barrett Township, Monroe County, Pennsylvania. Records show that this vehicle had been inspected at Smithers' garage when the Pinto VIN was on the Bronco. Furthermore, the investigators learned through other investigation that Smithers suspected that the vehicle was stolen when it was inspected.
On August 28, 1984, while serving the search warrant at [Petitioner]'s address, the Pennsylvania State Police observed a blue Pontiac Firebird having a vehicle identification number 2U87T2N527826 (vehicle number 28). They also noted that the vehicle had a special, hatch-type roof. Pennsylvania Department of Transportation records showed that the vehicle belonged to Frances Romansky. It was listed in the records as a 1972 Pontiac. On September 1, 1984, Officer David Swiderski, Mount Pocono Police Department, seized this Pontiac from Otto Stranak. Stranak told his Grand Jury on February 4, 1985 that [Petitioner] had loaned him this car sometime in August of 1984. Stranak had driven this car to Smithers' Mount Pocono garage where Smithers told him that the car was “hot” and to get off his property because the police were watching him. The Mount Pocono Police seized this car from Stranak three days later. An examination of the car by the police revealed that the vehicle was a 1977 Pontiac TransAm that had been reported stolen in Mount Pocono on September 27, 1983. Officer Swiderski locked this vehicle in the Mount Pocono police garage. Later that evening, the garage was broken into and the vehicle was stolen.
Frances Romansky appeared before this Grand Jury on February 4, 1985 and stated that she was the owner of this Pontiac, that it was a 1972 Pontiac, and that she had purchased it from a dealer in 1973.
* * *
As a further result of the examination of the inspection records of Smithers, it was determined that [Petitioner] had a truck inspected on October 1, 1982 that was identified as a 1978 Chevrolet, vehicle identification number K1546T136444. The records also showed that a year prior to that time, the truck had been inspected but was listed then as a 1979 model. Trooper Novatnak interviewed Smithers on October 4, 1984. Smithers admitted that he knew that this truck was probably stolen. The investigators contacted Special Agent Fuller who traced the VIN and told them that the VIN was for a 1966 Chevrolet truck (vehicle number 36). The vehicle was seized pursuant to a search warrant on October 5, 1984 at [Petitioner]'s residence in Pike County. On October 11, 1984, the truck was examined and it was determined that it was not a Chevrolet truck, but a 1977 GMC truck that had been reported stolen [on] April 28, 1981 from Mount Pocono, Barrett Township, Monroe County, Pennsylvania.

(Doc. 71-14 at 3; 16-18, Ex. N, Grand Jury Presentment.)

         The remaining procedural history, referred to as a “procedural quagmire” by the state courts, is collected from the briefs and state court record filed in the case. Following grand jury proceedings, on August 27, 1985, Petitioner was charged in Pike County, Pennsylvania with three (3) counts of receiving stolen property, see 18 Pa. Cons. Stat. Ann. § 3925; three (3) counts of dealing of removal/falsification of identification numbers, see 75 Pa. Cons. Stat. Ann. § 7102; three (3) counts of dealing in vehicles with incorrect identification numbers, see 75 Pa. Cons. Stat. Ann. § 7103; three (3) counts of dealing in titles/plates for stolen vehicles, see 75 Pa. Cons. Stat. Ann. § 7111; two (2) counts of false application for certificate of title/registration, see 75 Pa. Cons. Stat. Ann. § 7121; and criminal conspiracy, see 18 Pa. Cons. Stat. Ann. § 903. These charges related to a 1977 Pontiac Trans Am (“1977 Pontiac”), a 1979 Ford Bronco (“1979 Bronco”), and a 1977 GMC truck (“1977 GMC”).

         On February 15, 1986, Petitioner was charged in Wayne County, Pennsylvania with arson and related offenses pertaining to the 1979 Bronco that had been seized by police pursuant to the Pike County investigation. On September 17, 1986, Petitioner was convicted of these charges in Wayne County and sentenced on February 10, 1987 to a term of imprisonment of four (4) to ten (10) years.

         On April 3, 1986, Petitioner was arrested in Monroe County, Pennsylvania for arson involving a lumber yard. On November 10, 1986, Petitioner was convicted in Monroe County and sentenced on March 26, 1987 to a term of imprisonment of three (3) to six (6) years.

         After being convicted and sentenced in Wayne and Monroe Counties, on May 6, 1987, Petitioner was convicted following a jury trial in Pike County of receiving stolen property, removal/falsification of identification numbers, and dealing in vehicles with incorrect identification numbers for the offenses related to the 1977 Pontiac. Petitioner was also convicted of receiving stolen property, removal/falsification of identification numbers, dealing in vehicles with incorrect identification numbers, dealing in titles/plates for stolen vehicles, and false application for certificate of title/registration for the offenses related to the 1979 Bronco. He was also convicted of conspiracy. He was found not guilty of dealing in titles/plates for stolen vehicles for the 1977 Pontiac and all offenses charged relating to the 1977 GMC.

         On December 17, 1987, Petitioner was sentenced in Pike County to a term of imprisonment of nine (9) to eighteen (18) years incarceration. This sentence included a two (2) to four (4) years term of incarceration on the conspiracy conviction, and the entire sentence was directed to run consecutively to Petitioner's convictions in Wayne and Monroe Counties. It is the Pike County conviction and sentence that is the subject of these habeas corpus proceedings.

         Petitioner filed a timely notice of appeal from the Pike County conviction. On July 22, 1988, the Superior Court of Pennsylvania affirmed the conviction. Commonwealth v. Romansky, 548 A.2d 693 (Pa. Super. Ct. 1988). Petitioner did not seek allowance of appeal in the Supreme Court of Pennsylvania or a writ of certiorari in the United States Supreme Court. Thus, Petitioner's judgment of sentence became final on August 22, 1988.[1]

         On December 21, 1990, Petitioner filed an untimely pro se petition for post-conviction relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., alleging ineffective assistance of trial and appellate counsel. On July 13 and 31, 1992, Petitioner filed pro se amended petitions. On May 3, 1994, a counseled amended PCRA petition was filed on behalf of Petitioner by James P. Albrecht, Esquire. Thereafter, on June 5, 1994, PCRA relief was denied, but Petitioner's sentence was amended to omit a sentence on a count for which he had been found not guilty.

         Petitioner filed a timely notice of appeal from the denial of PCRA relief on June 26, 1994. On January 10, 1996, the Pennsylvania Superior Court affirmed the denial of relief. Commonwealth v. Romansky, 676 A.2d 285 (Pa. Super. Ct. 1996). Petitioner's request for allowance of appeal was denied by the Pennsylvania Supreme Court on August 16, 1996. Commonwealth v. Romansky, 681 A.2d 177 (Pa. 1996).

         On October 10, 1996, Petitioner filed a second pro se PCRA petition alleging that the Commonwealth had failed to disclose impeachment evidence pertaining to Commonwealth witness Thomas Smithers. Smithers' testimony at the 1987 trial related only to the offenses involving the 1979 Bronco. Gregory Chelak, Esquire, was appointed to represent Petitioner, and a counseled amended PCRA petition was subsequently filed. Thereafter, on February 24, 1997, the second PCRA petition was denied.

         Petitioner filed a timely notice of appeal from the second denial of PCRA relief on March 5, 1997. On October 31, 1997, the Pennsylvania Superior Court reversed denial of PCRA relief on the second petition as to the claims related to the 1979 Bronco only. Commonwealth v. Romansky, 702 A.2d 1064 (Pa. Super. Ct. 1997). The court remanded for a new trial after determining that the Commonwealth failed to disclose an agreement with Thomas Smithers. Id. The court also remanded in order to correct inaccurate testimony with respect to Smithers. Id. Further, the court affirmed the denial of PCRA relief as it pertained to the 1977 Pontiac. Id.

         On August 12, 1998, still represented by Attorney Chelak, Petitioner filed a motion to dismiss the remanded charges based on double jeopardy grounds. The motion was denied on September 2, 1998. After Petitioner appealed, on April 15, 1999, the Superior Court affirmed the denial of the motion to dismiss. Commonwealth v. Romansky, 938 A.2d 1056 (Pa. Super. Ct. 1999). The Pennsylvania Supreme Court denied Petitioner's application for allowance of appeal on October 5, 1999. Commonwealth v. Romansky, 745 A.2d 1221 (Pa. 1999).

         Petitioner's new jury trial in Pike County was held in January 2000 (“2000 retrial”). On January 11, 2000, a jury convicted Petitioner again on the charges of receiving stolen property, removal/falsification of identification numbers, and dealing in vehicles with incorrect identification numbers. All of these charges related to the 1979 Bronco. On March 2, 2000, Petitioner was sentenced to a term of imprisonment of three and one-half (3 ½) to seven (7) years.

         Petitioner filed a post-sentence motion on March 13, 2000, which was denied by the sentencing court on June 6, 2000. Subsequently, on June 21, 2000, Petitioner filed a timely notice of appeal through counsel, Attorney Chelak. In the direct appeal, Petitioner raised the following issues:

1. Did the lower court commit reversible error of law by denying the Defendant's pre-trial motion for continuance in violation of both the Pennsylvania and Federal Constitutions?
2. Did the lower court commit reversible error of law by allowing the Defendant's conviction for receiving stolen property to stand when the Commonwealth failed to prove the necessary element of possession thereby violating Defendant's state and federal constitutional rights to compulsory process and due process of law?
3. Did the lower court commit reversible error of law in sustaining the guilty verdicts for the vehicle related offenses when the evidence was insufficient as a matter of law and fact to sustain the verdicts in violation of both state and federal constitutional law?

(Doc. 71-2 at 7, Ex. B, Pet. Br. Jan. 3, 2001.) On June 22, 2001, the Superior Court affirmed the convictions from the second trial, which related to the 1979 Bronco only. Commonwealth v. Romansky, 779 A.2d 1222 (Pa. Super. Ct. 2001). Petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court and, therefore, his judgment of sentence became final on July 23, 2001.[2] See Pa. R.A.P. 1113(a) (“a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed.”).

         During the pendency of that direct appeal and prior to the date on which Petitioner's March 3, 2000 judgment of sentence became final, on April 26, 2001, Petitioner filed a premature third pro se PCRA petition which pertained to his second conviction involving the 1979 Bronco only. John Sanders, Esquire was appointed to represent Petitioner with respect to that third PCRA petition on June 18, 2001. However, on January 11, 2002, Attorney Sanders was permitted to withdraw and Allen Howell, Esquire was appointed to represent Petitioner on the PCRA matter pertaining to the 2000 re-trial. On April 16, 2002, Attorney Howell filed a motion to withdraw as counsel as to Petitioner's third PCRA petition, along with an accompanying “no-merit” letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988).

         On April 19, 2002, Petitioner filed a pro se PCRA petition pertaining to the original 1987 trial. At the time, the third PCRA petition relating to the 2000 re-trial was pending. On April 22, 2002, Attorney Howell was permitted to withdraw from his appointment relating to the third PCRA petition addressing claims from the 2000 re-trial involving the 1979 Bronco only. On June 11, 2002, the Pike County court dismissed the third PCRA petition after determining it did not have jurisdiction because the petition had been filed during the pendency of the direct appeal from the 2000 re-trial.

         On July 10, 2002, Petitioner filed a pro se notice of appeal from that dismissal of the third PCRA petition. On September 19, 2003, the Superior Court vacated the PCRA court's June 11, 2002 order and remanded with the directive that counsel review Petitioner's April 19, 2002 PCRA petition, and then file either an amended PCRA petition or request withdrawal from the case. See Commonwealth v. Romansky, No 976 EDA 2003 (Pa. Super. Ct. Sept. 19, 2003) (unpublished memorandum) (Doc. 63-1, Ex. 4). Further, the court noted that the April 19, 2002 PCRA petition should have been treated as Petitioner's first PCRA petition relating to the 2000 retrial.[3] After remand, on June 28, 2004, Jeremy Haugh, Esquire was appointed to represent Petitioner on the April 19, 2002 PCRA petition, and leave to amend was granted. On November 2, 2004, counsel filed an amended PCRA petition, raising issues related to both the 1987 and 2000 trials.

         After the filing of the amended PCRA petition, on March 3, 2005, the PCRA court issued an order directing the Commonwealth to provide Petitioner with four (4) audiotapes (“Pike County Audiotapes”) containing conversations between Petitioner and Thomas Smithers, who was acting as a Commonwealth informant, and granting Petitioner's counsel thirty (30) days to amend the PCRA petition. The Commonwealth provided the Pike County Audiotapes to Petitioner in May 2005. After those tapes were transcribed, the PCRA court scheduled an evidentiary hearing for July 6, 2005. At the conclusion of the hearing, the PCRA court directed Petitioner and his counsel to meet and organize a list of claims as they relate to any exculpatory evidence on the tapes and transcripts. (See Doc. 63-1 at 75-76, Ex. 9.) The PCRA court added, “In the event that there is any claim by Mr. Romansky that certain issues raised in the [1987 trial] are covered by any of these claims, Defendant is directed to identify those issues and to provide a legal basis upon which the Court has any jurisdiction over these claims.” (Id. at 76.)

         Prior to the filing of an amended PCRA petition, Petitioner's counsel, Attorney Haugh, was relocated to Georgia through the U.S. Army Reserves. As a result, on December 6, 2005, the PCRA court appointed Brandon Reish, Esquire, to replace Attorney Haugh and file the amended PCRA petition.

         Instead of filing an amended PCRA petition, on January 30, 2007, Attorney Reish filed a motion requesting leave to amend the November 2, 2004 amended PCRA petition to reflect that the April 19, 2002 petition was Petitioner's first PCRA petition filed relating to the 2000 retrial and his third PCRA petition filed relating to the 1987 trial. On March 8, 2007, the PCRA court issued an order denying Petitioner's motion.[4] Petitioner filed a notice of appeal, and on January 4, 2008, the Superior Court quashed the appeal for lack of jurisdiction as it was not an appeal from a final order. Commonwealth v. Romansky, 947 A.2d 832 (Pa. Super. Ct. 2008).

         On July 14, 2008, Petitioner filed a second motion for leave to amend the PCRA petition to include issues from the 2000 retrial, which the PCRA court granted on July 22, 2008. On August 21, 2008, Petitioner filed a timely second amended PCRA petition. After the Commonwealth responded to the petition seeking its dismissal, the PCRA court held an evidentiary hearing on February 18, 2009. Following that hearing, the PCRA court denied the PCRA petition as untimely on June 9, 2009, as amended July 15, 2009. Petitioner filed a timely notice of appeal. On July 2, 2010, the Superior Court affirmed in part, vacated in part, and remanded to the PCRA court. See Romansky, 4 A.3d 706. Specifically, the court affirmed as to the dismissal of the 1987 conviction as untimely and, in particular, held that any issues dealing with the content of the Pike County Audiotapes relating to the 1987 trial are time barred. Further, the court vacated the dismissal as to the 2000 retrial involving the 1979 Bronco only, including issues involving the Pike County Audiotapes, and remanded to the PCRA court for further proceedings. On April 5, 2011, the Pennsylvania Supreme Court denied the petition for allowance of appeal and permitted Attorney Reish to withdraw. Commonwealth v. Romansky, 549 MAL 2010 (Pa. 2011).

         On October 18, 2011, the PCRA court appointed Petitioner's present counsel, Ronnie J. Fischer, Esquire, to represent Petitioner for the remanded PCRA proceedings. Initially, counsel filed a motion in the Dauphin County Court of Common Pleas seeking certain documents from the grand jury proceedings in Petitioner's case. On April 11, 2012, the court granted the motion in part, directing Petitioner be provided with the grand jury presentment as well as the grand jury testimony of Petitioner, Francis Golden, and Michael Novatnik. Thereafter, on July 5, 2012, Petitioner filed a motion to vacate illegal sentence with respect to Petitioner's conspiracy sentence. After oral argument on the motion, the PCRA court denied the motion on October 1, 2012. Commonwealth v. Romansky, No. 190-1985 MD (Pike Cnty. Comm. Pl, Oct. 1, 2012) (Doc. 71-8, Ex. H.)

         On October 4, 2012, Petitioner filed a motion to vacate charges and discharge the Defendant, based on the provided grand jury documents. After a hearing held on December 13, 2012, the PCRA court denied Petitioner's motion on January 24, 2013. Commonwealth v. Romansky, No. 190-1985 MD (Pike Cnty. Comm. Pl. Jan. 24, 2013) (Doc. 63-4, Ex. 22.)

         After briefing on the amended PCRA petition, the PCRA court held evidentiary hearings on March 4, 2013 and July 9, 2013. On October 8, 2013, the PCRA court denied relief. In its order, the PCRA court, inter alia, denied Petitioner's claims related to the 1987 conviction as time-barred. Commonwealth v. Romansky, No. 190-1985 MD (Pike Cnty. Comm. Pl. Oct. 8, 2013) (unpublished order) (Doc. 71-9, Ex. I.) Petitioner filed a timely notice of appeal to the Pennsylvania Supreme Court on November 6, 2013. On January 2, 2014, the PCRA court filed a 1925(a) opinion. On March 20, 2014, Petitioner filed a brief in support of the appeal, raising the following issues:

I. The PCRA court denied [Petitioner] his state and federal constitutional rights under the Sixth and Fourteenth Amendment, pursuant to Stirone v. U.S. and its progeny, because the PCRA court found that the Commonwealth prosecuted [Petitioner] for additional charges beyond those identified in the grand jury presentment but refused to grant [Petitioner] any relief;
II. The PCRA court denied [Petitioner] his state and federal constitutional rights under the Fifth, Sixth and Fourteenth Amendments, pursuant to Miranda v. Arizona, Massiah v. U.S. and their progenies, because the Commonwealth introduced at trial incriminating statements deliberately elicited from [Petitioner] by a part-time police officer, outside of the presence of [Petitioner]'s counsel, after [Petitioner] invoked his right to counsel;
III. The PCRA court denied [Petitioner] his state and federal constitutional rights to a fair trial under the Fourteenth Amendment, pursuant to Brady v. Maryland, Napue v. Illinois, Giglio v. U.S. and their progenies, because the Commonwealth failed to correct false testimony and withheld exculpatory and impeachment evidence in violation of Pa.R.Crim.P. 573(B);
IV. The PCRA court denied [Petitioner] his state and federal due process rights pursuant to Cole v. Arkansas and its progeny because the PCRA court refused to correct [Petitioner]'s illegal sentence even though the Commonwealth conceded that [Petitioner] was convicted of and sentenced on a conspiracy offense for which he was never charged;
V. The PCRA court denied [Petitioner] his state and federal constitutional rights to effective assistance of counsel pursuant to Strickland v. Washington, U.S. v. Cronic and their progenies, because [Petitioner]'s counsel: (1) failed to investigate, (2) conceded [Petitioner]'s guilt, (3) overrode [Petitioner]'s expressed desire to testify, and (4) failed to object to an illegal sentence;
VI. The PCRA court denied [Petitioner] his state and federal constitutional rights under the Fourth Amendment and Pennsylvania's Wiretap Act because the Commonwealth failed to strictly comply with the requirements of the Wiretap Act by failing to ensure that the Attorney General or a Deputy Attorney General determined that Smithers voluntarily consented to each interception and by failing to keep a contemporaneous written log summarizing the content of each interception.

(Doc. 71-11 at 1-2, Pet.'s Br.)

         On July 22, 2014, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Romansky, 105 A.3d 798 (Pa. Super. Ct. 2014) (Doc. 71-12, Ex. L.) As to the 1987 convictions and sentence, the Superior Court affirmed the PCRA court's determination that any related claims were time-barred. As to the remaining claims, the court found them to be either waived or without merit. On February 25, 2015, the Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth v. Romansky, 112 A.3d 651 (Pa. 2015). Petitioner did not seek a writ of certiorari in the Supreme Court of the United States.

         Prior to these latest PCRA proceedings in state court, on June 16, 2009, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) On August 10, 2009, Petitioner filed a motion to stay the habeas proceedings pending exhaustion of state court proceedings, (Doc. 21), which the court granted by order dated December 3, 2009, (Doc. 40). The stay was lifted on March 8, 2016 following the denial of the petition for allowance of appeal. (See Doc. 62.) On April 15, 2016, Petitioner filed the instant counseled amended habeas petition. (Doc. 63.) Respondents filed a response to the petition on July 15, 2016. (Doc. 71.) Petitioner filed a reply brief on August 31, 2016. (Doc. 76.) Thus, the habeas petition is ripe for disposition.

         II. Discussion

         In his petition, Petitioner raises the following claims as grounds for relief:

I. Petitioner was denied his Constitutional right to due process under the Sixth and Fourteenth Amendments pursuant to Stirone v. United States, 361 U.S. 212 (1960) and its progeny;
II. Petitioner was denied his Constitutional right to due process under the Fifth, Sixth, and Fourteenth Amendments pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and Massiah v. United States, 377 U.S. 201 (1964) and their progeny;
III. Petitioner was denied his Constitutional right to due process under the Fourteenth Amendment pursuant to Brady v. Maryland, 323 U.S. 83 (1963), Napue v. Illinois, 360 U.S. 264 (1959), and Giglio v. United States, 405 U.S. 150 (1972) and their progeny; IV. Petitioner was denied his Constitutional right to due process under the Fifth, Sixth, and Fourteenth Amendments pursuant to Cole v. Arkansas, 333 U.S. 196 (1948) and its progeny;
V. Petitioner was denied his Constitutional right to due process under the Fifth, Sixth, and Fourteenth Amendments pursuant to Strickland v. Washington, 466 U.S. 668 (1984), United States v. Cronic, 466 U.S. 648 (1984) and their progenies when counsel, (1) failed to object to Petitioner's illegal sentence, (2) failed to investigate, (3) overrode Petitioner's expressed desire to testify, and (4) conceded Petitioner's guilt;
VI. Petitioner was denied his Constitutional right to due process under the Fourth Amendment and Pennsylvania's Wiretap Act; and
VII. Petitioner was denied his compulsory and due process rights under the Fifth, Sixth, and Fourteenth Amendments pursuant to United States v. Cronic, 466 U.S. 648 (1984), Ungar v. Sarafite, 376 U.S. 575 (1964) and their progenies.

(Doc. 63.) In their response to the petition, Respondents contend that Petitioner's claims are either, (1) untimely, (2) procedurally defaulted, and/or (3) meritless.

         For purposes of discussion, the court will first address the timeliness of Petitioner's habeas petition, followed by a discussion of the claims presented in the petition.

         A. Timeliness of the Habeas Petition

         Respondents first argue that the portions of the instant § 2254 petition are barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Upon review, the court finds as follows.

         The court may “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A petition filed under § 2254 must be timely filed under the stringent standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. § 2244(d)(1). A state prisoner requesting habeas corpus relief pursuant to § 2254 must adhere to a statute of limitations that provides, in relevant part, as follows:

(d)(1) A 1-year period of limitation shall apply to an 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 for seeking such review;
* * *
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999). Thus, under the plain terms of § 2244(d)(1)(A), a state court criminal judgment does not become final until appeals have been exhausted or the time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001).

         In the instant case, the court must address the timeliness of the instant petition with respect to both Petitioner's 1987 and 2000 convictions, as the petition raises claims relating to both trials. First, as to the 1987 conviction, the Superior Court of Pennsylvania affirmed Petitioner's conviction on July 22, 1998 after the filing of a timely direct appeal. Commonwealth v. Romansky, 548 A.2d 693 (Pa. Super. Ct. 1988). Petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court or a writ of certiorari in the United States Supreme Court. Thus, Petitioner's judgment of sentence became final on August 22, 1988. See 42 Pa. Cons. Stat. Ann. § 9545(b)(3) (“judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review”). Because of the implied one-year grace period for petitioners whose convictions became final before the effective date of AEDPA, and AEDPA was effective on April 24, 1996, Petitioner had up until, and including April 23, 1997 to timely file a petition for writ of habeas corpus. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998) (“we hold that habeas petitions filed on or before April 23, 1997, may not be dismissed for failure to comply with § 2244(d)(1)'s time limit”). However, Petitioner did not file his federal habeas petition until June 16, 2009.

         Our analysis of the timeliness of the 1987 convictions and sentence does not end there, however. Prior to April 23, 1997, Petitioner made a number of post- conviction collateral filings in state court. The latest of those filings was adjudicated by the Superior Court on October 31, 1997, at which time the court reversed Petitioner's conviction related to the 1979 Bronco and remanded for a new trial as to the charges relating to that vehicle alone. Commonwealth v. Romansky, 702 A.2d 1064 (Pa. Super. Ct. 1997). In that same decision, the Superior Court affirmed the denial of PCRA relief as it pertained to the 1977 Pontiac. Id. For purposes of analysis, the court will accept that the federal statute of limitations was tolled during that period. See 28 U.S.C. § 2244(d)(2) (tolls the statute of limitations with respect to the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending”). Respondents contend that Petitioner did not appeal the denial of relief related to the 1977 Pontiac and, accordingly, the judgment of sentence for those convictions became final on November 30, 1997, or an additional thirty (30) days in which Petitioner had to seek allowance of appeal from the Pennsylvania Supreme Court. Using that date, Respondents argue, Petitioner had one (1) year, or until November 30, 1998, to timely file a federal habeas petition. Because he did not file the instant petition until June 16, 2009, Respondents argue that all claims relating to the 1987 trial for the charges pertaining to the 1977 Pontiac are time-barred.

         In his reply, Petitioner counters that he did indeed appeal the denial of relief related to the 1977 Pontiac in a petition for allowance of appeal, apparently filed in 1997. Petitioner claims this petition for allowance of appeal was denied by the Pennsylvania Supreme Court on April 1, 1998. Commonwealth v. Romansky, 723 A.2d 670 (Pa. 1998). However, because the court has not been provided with a copy of Petitioner's petition for allowance of appeal, it has no way of knowing what was the substance of that petition, namely whether it contained an appeal from the denial of relief related to the 1977 Pontiac. Nevertheless, even if the court were to accept Petitioner's assertion here, the fact that his appeal was denied on April 1, 1998, and that he did not in fact file the instant federal habeas petition until June 16, 2009, does not provide him with relief from AEDPA's time limitations.[5] The court holds that all claims related to the 1987 trial for the convictions and sentence related to the 1977 Pontiac are barred by the statute of limitations under 28 U.S.C. § 2244(d).[6]

         Next, as to the 2000 retrial, the Superior Court affirmed Petitioner's convictions and sentence from the second trial on June 22, 2001, after the filing of a timely direct appeal. Commonwealth v. Romansky, 779 A.2d 1222 (Pa. Super. Ct. 2001). Petitioner had thirty (30) days thereafter to file a petition for allowance of appeal in the Pennsylvania Supreme Court, but he did not do so. Therefore, his judgment of sentence became final on July 23, 2001. Based on the one-year federal statute of limitations period, Petitioner had until July 23, 2002 to timely file a federal habeas petition.

         However, prior to the expiration of that limitations period, Petitioner filed PCRA petitions in state court on April 26, 2001 and April 19, 2002. Although the PCRA court dismissed the April 26, 2001 petition as premature, as it was filed during the pendency of Petitioner's direct appeal, on September 19, 2003, the Superior Court vacated the PCRA court's order and remanded with the directive that the April 19, 2002 PCRA petition be treated as Petitioner's first PCRA petition relating to the 2000 retrial.[7] As a result, the federal limitations period was tolled until the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal from the denial of PCRA relief on February 25, 2015. Because Petitioner filed his federal habeas petition on June 16, 2009, and that petition was stayed by order of this court on December 3, 2009 in order for Petitioner to exhaust his state court remedies, the claims presented in the habeas petition related to the 2000 retrial are not barred by the statute of limitations under 28 U.S.C. § 2244(d).

         B. Claims Presented in the Habeas Petition

         1. Legal Standards

         a. Exhaustion and Procedural Default

         Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

         To satisfy the statutory requirements, a federal habeas petitioner must have presented the facts and legal theory associated with each claim through “one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984).

         A petitioner bears the burden of demonstrating that he has “fairly presented” his claims to the state's highest court, either on direct appeal or in a state post conviction proceeding.[8] Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); see also McMahon v. Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987). A petitioner fairly presents his claim when he presents the same factual and legal basis for the claim to the state courts. Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007); see also Duncan v. Henry, 513 U.S. 364, 366 (1995). In addition, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).

         If a petitioner presents unexhausted habeas claims to a federal court, but state procedural rules bar further state court review, the federal court will excuse the failure to exhaust and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at 160.

         A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750; Caswell v. Ryan, 953 F.2d 853, 857, 861-62 (3d Cir. 1992). To demonstrate cause for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, the petitioner must show “not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting [the entire proceeding] with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

         Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger, 266 F.3d at 224. The miscarriage of justice exception applies only in extraordinary cases where a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496.

         Further, if a respondent in a federal habeas proceeding fails to raise the issue of procedural default, the court may do so sua sponte. Yeatts v. Angelone, 166 F.3d 255, 261-62 (4th Cir. 1999) (citing Hull v. Freeman, 932 F.2d 159, 164 n.4 (3d Cir. 1991), overruled on other grounds by Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992)). Moreover, a federal habeas court may decide that a habeas petitioner has procedurally defaulted a claim even though no state court has previously decided that the claim was procedurally barred under state law. See, e.g., Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995) (requiring the federal district court to determine whether the petitioner's failure to appeal in the state court constituted a waiver under state procedural law that barred state courts from considering the merits and, therefore, constituted a procedural default for habeas purposes even though no state court had made a determination that petitioner's failure to appeal constituted waiver under state law); Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir. 1998).

         In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court examined whether ineffective assistance at the initial review of a collateral proceeding on a claim of ineffective assistance at trial can provide cause for a procedural defect in federal habeas proceedings. Id. at 1315. This case recognized a narrow exception to the Coleman rule (that ineffective assistance of counsel at the state collateral review level could not establish cause to excuse procedural default), holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315.

         Thus, a PCRA claim for ineffective trial counsel during an initial state collateral review may qualify as “cause” to excuse the default if: (1) as a threshold matter, the state requires a prisoner to bring an ineffective counsel claim in a collateral proceeding; (2) the state courts did not appoint counsel at the initial review collateral proceeding for an ineffective-assistance-at-trial claim; (3) where appointed counsel at the initial-review collateral proceeding was ineffective under Strickland v. Washington, 466 U.S. 668 (1984); and (4) the underlying ineffective-assistance-at-trial claim is substantial. Martinez, 132 S.Ct. at 1315-18.

         The court will discuss exhaustion and procedural default in its discussion of the enumerated claims below.

         b. Independent and Adequate State Grounds

         Default can also occur independently of exhaustion. “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

         “A state rule provides an independent and adequate basis for precluding federal review of a claim if the rule speaks in unmistakable terms, all state appellate courts refused to review the petitioner's claims on the merits, and the state courts' refusal was consistent with other decisions, that is, the procedural rule was consistently and regularly applied.” Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir. 2007) (internal alterations and quotation marks omitted) (quoting Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996)). Such a rule is independent “when resolution of the state procedural law question [does not] depend[ ] on a federal constitutional ruling.” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

         However, a state procedural rule will not bar federal review of a habeas claim unless that rule was firmly established and regularly followed at the time the default occurred. See Ford v. Georgia, 498 U.S. 411, 424 (1991) (holding that “an adequate and independent state procedural bar to the entertainment of constitutional claims must have been firmly established and regularly followed by the time as of which it is to be applied” in order to preclude federal habeas review (internal quotation marks omitted)); Doctor, 96 F.3d at 684 (“A state rule is adequate only if it is ‘consistently and regularly applied.'” (quoting Johnson v. Mississippi, 486 U.S. 578, 587)). “As such, in determining whether a particular state rule is independent and adequate, the Court must identify the state procedural rule, ascertain the time at which the alleged default occurred and then decide whether the rule was firmly established and regularly and consistently applied at the time the alleged default occurred.” Laird v. Horn, 159 F.Supp.2d 58, 74 (E.D. Pa. 2001).

         The court will discuss the application of default pursuant to an adequate and independent state procedural rule under each claim, where applicable.

         c. Merits

         Once a federal habeas court determines that a petitioner has exhausted state remedies and that a claim is not procedurally defaulted, the court must determine whether the claim was adjudicated on the merits in state court. “[T]he distinction between claims that have been so adjudicated and claims that have not been means the difference between highly deferential review and de novo review.” Collins v. Sec'y of Pennsylvania Dep't of Corr., 742 F.3d 528, 544 (3d Cir.), cert. denied sub nom. Collins v. Wetzel, 135 S.Ct. 454 (2014).

         “For the purposes of Section 2254(d), a claim has been ‘adjudicated on the merits in State court proceedings' when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance, rather than on a procedural, or other, ground.” Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009), as corrected (July 15, 2009) (clarifying that the adjudication “can occur at any level of state court”). Moreover, “the Supreme Court [has] held that qualification for AEDPA deference ‘does not require citation of our [federal] cases - indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state court decision contradicts them.'” Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004) (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

         In the event that a claim was not adjudicated on the merits by the state courts, the District Court exercises “pre-AEDPA independent judgment.” Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000); see also 28 U.S.C. § 2254(d) (limiting the grant of the writ “with respect to any claim that was adjudicated on the merits in State court proceedings”). This requires the federal court to “conduct a de novo review over pure legal questions and mixed questions of law and fact . . . . However, § 2254(e)(1) still mandates that the state court's factual determinations are presumed correct unless rebutted by clear and convincing evidence.” Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010) (citation omitted) (internal quotation marks omitted).

         If the state resolved the issue on the merits, the federal court reviews that decision with deference. “[B]ecause the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of correction, ” Greene v. Fisher, 565 U.S. 34, ___, 132 S.Ct. 38, 43 (2011) (internal quotations and citations omitted), “[t]his is a difficult to meet and highly deferential standard . . . which demands that state court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citation omitted). The burden is on the petitioner to prove entitlement to the writ. Id.

         Section 2254(d) forecloses relief unless the state court's “adjudication of the claim [on the merits] - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

         A decision is “contrary to” federal law if “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A decision is an “unreasonable application” of federal law if the state court identified the correct governing legal rule but applied the rule to the facts of the case in an objectively unreasonable manner. Renico v. Lett, 559 U.S. 766, 773 (2010). A decision is based on an “unreasonable determination of the facts” if the state court's factual findings are objectively unreasonable in light of the evidence presented to the state court. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         Finally, in determining whether the state court applied Supreme Court precedent reasonably, habeas courts may consider the decisions of the lower federal courts. Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999) (“[T]he primary significance of the phrase ‘as determined by the Supreme Court of the United States' is that federal courts may not grant habeas corpus relief based on the state court's failure to adhere to the precedent of a lower federal court on an issue that the Supreme Court has not addressed.”). “In essence, § 2254(d)(1) ‘demands that state-court decisions be given the benefit of the doubt, ” and the Supreme Court has cautioned lower courts against any ‘readiness to attribute error' by failing to ‘presume the state court know and follow the law.'” Sawyer v. Superintendent Muncy SCI, 619 F. App'x 163, 169 (3d Cir. 2015) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2000)).

         2. Petitioner's Claims for Relief

         a. Claim I: Petitioner was prosecuted for additional charges beyond those recommended in the Grand Jury Presentment in violation of the Sixth and Fourteenth Amendments

         Petitioner argues that he was denied his due process rights under the Sixth and Fourteenth Amendments when he was prosecuted for additional charges beyond those which were recommended in the Grand Jury Presentment in his case. In his supporting memorandum, Petitioner also now claims he was subjected to a constructive amendment of the indictment without reconvening a grand jury in violation of the Fifth Amendment. In their response, Respondents make several arguments in support of denial of the claim, as the court will discuss herein.

         i. Background

         As set forth above, following the grand jury proceedings, the grand jury recommended to the Commonwealth that Petitioner be charged with receiving stolen property, conspiracy, removal or falsification of identification numbers, dealing in vehicles with removed or falsified numbers, dealing in titles and plates for stolen vehicles, and false application for certificate of title or registration. (Doc. 71-14 at 23, Ex. N, Grand Jury Presentment No. 33.) After a preliminary hearing, all of the charges were bound over for court except for two (2) counts of criminal conspiracy, which were withdrawn. (Doc. 71-8 at 2, Ex. H.) After the charges were held over for court, the Commonwealth filed a criminal information charging Petitioner with specific criminal charges relating to the three (3) separate vehicles previously referenced. As to the 1977 Pontiac, Petitioner was charged with receiving stolen property, removal or falsification of identification number, dealing in vehicles with removed or falsified numbers, dealing in titles and plates for stolen vehicles and conspiracy in vehicles with removed or falsified numbers and/or theft. (Doc. 71-8 at 2, Ex. H.) As to the 1979 Bronco, Petitioner was charged with receiving stolen property, removal or falsification of identification numbers, dealing in vehicles with removed or falsified numbers, dealing in titles and plates for stolen vehicles and false application for a certificate of title or registration. (Id.) And as to the 1977 GMC, Petitioner was charged with receiving stolen property, removal or falsification of identification numbers, dealing in vehicles with removed or falsified numbers, dealing in titles and plates for stolen vehicles and false application for a certificate of title or registration. (Id.)

         Petitioner claims here that, after the grand jury issued its presentment, certain amendments or changes were made in the charges by the Commonwealth in its criminal information. It is Petitioner's contention that these changes made by the Commonwealth violated his constitutional rights.

         ii. Exhaustion and Procedural Default

         Respondents first take issue with Petitioner including, for the first time, his contention that his rights under the Fifth Amendment have been violated with respect to this claim. Thus, Respondents claim this argument has not been exhausted. The court notes that Petitioner did, in fact, raise this argument in his October 4, 2012 motion to vacate charges and discharge the Defendant, which was denied by the PCRA court in 2013 prior to the PCRA proceedings on the amended PCRA petition. (See Doc. 63-1 at 125-27, Pet.'s Motion.) Although the PCRA court denied the motion, it also addressed the merits of the claim in its October 8, 2013 decision following PCRA proceedings. In addition, the Pennsylvania Superior Court considered the issue, although not on the merits, in Petitioner's appeal. In light of this procedural history in the state courts, the court will not preclude a discussion of the issue here on the basis of exhaustion.

         Next, Respondents argue that the entire claim is procedurally defaulted because the Superior Court deemed it waived for failure to, at a minimum, raise it in a direct appeal. (Doc. 71-12, Ex. L.) Specifically, the Superior Court relied on Section 9544 of the PCRA, which states that an issue is waived under the PCRA “if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa. Cons. Stat. Ann. § 9544(b). (Doc. 71-12 at 10-12, Ex. L.) As a result of this waiver, the Superior Court declined to review the merits of this claim.[9] Because the state court refused to decide this claim's merits based on an established state rule of law independent of the federal claim and adequate to support the refusal, the court agrees that this claim is procedurally defaulted and federal review is foreclosed unless Petitioner can make a case to excuse the default.

         As set forth in the standards above, in order for this court to consider the merits of this claim, Petitioner must show “cause and prejudice” or a “fundamental miscarriage of justice” to excuse the default. Petitioner seeks to excuse the default on the basis that he was not provided with a copy of Grand Jury Presentment No. 33 until his motion to compel its discovery was granted by order dated April 11, 2012. Thereafter, Petitioner raised the claim in his motion to vacate charges and discharge the Defendant, which was denied by the PCRA court. In addition, Petitioner appealed the denial to the Superior Court, and filed a petition for allowance of appeal in the Pennsylvania Supreme Court. For purposes of disposition of the claim here, although the claim was deemed waived by the Superior Court and thus is procedurally defaulted before this court, the court will excuse the procedural default on the basis of Petitioner's inability to secure a copy of the Grand Jury Presentment until 2012.

         Having excused Petitioner's procedural default of this claim, the court will conduct a de novo review over the pure legal questions and mixed questions of law and facts in this issue. However, because the PCRA court did consider this claim on the merits, the court will presume that the PCRA court's factual determinations are correct unless rebutted by clear and convincing evidence. Se ...


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