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Metzger v. Mahally

United States District Court, W.D. Pennsylvania

March 2, 2017

DALE METZGER, Petitioner,
v.
LAWRENCE MAHALLY, Superintendent SCI DALLAS, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner, Dale Metzger, brings this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his convictions on charges of burglary, rape by forcible compulsion, sexual assault, unlawful restraint, terroristic threats, simple assault and theft by unlawful taking and the sentence of fourteen to twenty-eight years of imprisonment, imposed by the Court of Common Pleas of Allegheny County, Pennsylvania on May 23, 2011 at Criminal Action No. CP-02-CR-2367-2008. The charges stemmed from the January 18, 2008 attack on victim Ashley Feather. For the reasons that follow, the petition will be denied.

         Procedural History

         On January 19, 2011, Petitioner proceeded to a non-jury trial before the Honorable John A. Zottola. Petitioner was represented by Patrick Thomassey, Esquire and the Commonwealth by Assistant District Attorney Matthew Robinowitz. The trial continued on February 14, 2011. At the conclusion of the non-jury trial on February 22, 2011, Petitioner was found guilty on all counts. Sentencing was deferred pending the preparation of a presentence report.

         Petitioner was sentenced on May 23, 2011. At count 2-Rape, Petitioner received a sentence of ten (10) to twenty (20) years of incarceration. At count 1-Burglary, Petitioner received a sentence of 48 to 96 months of incarceration to run consecutive to the sentence imposed at count two. In total, Petitioner received a sentence of fourteen (14) to twenty-eight (28) years of incarceration.

         On June 6, 2011 Judge Zottola appointed Alan Patterson, Esquire to represent petitioner on Appeal. On June 24, 2011, Petitioner, through Attorney Patterson, filed a Post-Sentence Motion and on November 9, 2011, he filed a Supplemental Post-Sentence Motion. (Answer Exs. 2, 3.) Judge Zottola deemed Petitioner's Post-Sentence Motions timely and denied them, on their merits, on November 9, 2011. (Answer Ex. 4.)

         On December 6, 2011, Petitioner, through Attorney Patterson, filed a Notice of Appeal, which was docketed at No. 1911 WDA 2011. (Answer Ex. 5.) On January 3, 2012, Petitioner, through Attorney Patterson, filed a Concise Statement of Errors Complained of on Appeal, in which he raised the following claims:

a. The Trial Court erred or abused its discretion when it denied Defendant's Motion for Judgment of Acquittal where the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt that the Defendant was the individual who committed the acts for which he was convicted.
b. The Trial Court erred or abused its discretion when it denied the Defendant's Motion for Judgment of Acquittal where the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt the crime of Burglary and that, if in fact the Defendant entered the residence, the Defendant intended, at the time of entering, to commit any crime therein.
c. The Trial Court erred when it denied Defendant's Motion Challenging the Weight of the Evidence pursuant to Pa.R.Crim.P. 607 where the verdict was so contrary to the evidence presented by the Commonwealth, that the Defendant was the individual who committed the acts for which he was convicted, as to shock one's sense of justice.
d. The Trial Court erred when it admitted the 911 tape where the tape would otherwise not be admissible as an excited utterance and/or where the prejudicial nature of the tape outweighed the probative value, if any.
e. The Trial Court erred or abused its discretion when denying Defendant's motion to modify or reduce sentence and failed to adequately consider the sentencing code set forth at 42 Pa.C.S.A. §9721, et seq., in fashioning a harsh sentence of consecutive periods of incarceration at Counts 2 and 1 totaling fourteen (14) to twenty-eight (28) years.

(Answer Ex. 7 ¶ 6, APP 52-53.)

         On April 12, 2012, Judge Zottola filed his Opinion. (Answer Ex. 8.) In his Appellant brief filed on July 13, 2012, Petitioner raised the following issues:

I. Did the Trial Court err or abuse its discretion when it denied Appellant's Motion for Judgment of Acquittal where the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt that the Appellant was the individual who committed the acts for which he was convicted?
II. Did the Trial Court err or abuse its discretion when it denied the Appellant's Motion for Judgment of Acquittal where the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt the crime of Burglary and that, if in fact the Appellant entered the residence, the Appellant intended, at the time of the entering, to commit any crime therein?
III. Did the Trial Court err when it denied Appellant's Motion Challenging the Weight of the Evidence pursuant to Pa.R.Crim.P. 607 where the verdict was so contrary to the evidence presented by the Commonwealth, that the Appellant was the individual who committed the acts for which he was convicted, as to shock one's sense of justice?
IV. Did the Trial Court err when it admitted the 911 tape where the tape would otherwise not be admissible as an excited utterance and/or where the prejudicial nature of the tape outweighed the probative value, if any?
V. Did the Trial Court err or abuse its discretion when denying Appellant's Motion to modify or reduce sentence and failed to adequately consider the sentencing code set forth at 42 Pa.C.S.A. § 9721, et seq., in fashioning a harsh sentence of consecutive periods of incarceration at Counts 2 and 1 totaling fourteen (14) to twenty-eight (28) years?

(Answer Ex. 9 at 7.)

         On November 15, 2012, the Superior Court issued a memorandum affirming the trial court. (Answer Ex. 12.) On May 8, 2013, Petitioner, through Attorney Patterson, filed a Petition for Allowance of Appeal Nunc Pro Tunc. (Answer Ex. 13.) On July 9, 2013, Petitioner's Petition for Leave to File Petition for Allowance of Appeal Nunc Pro Tunc was granted. (Answer Ex. 15.) On August 7, 2013 Petitioner, through Attorney Patterson, filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, docketed at No. 371 WAL 2013. He raised the following issues:

I. The Superior Court erred or abused its discretion when it ruled that petitioner waived his sufficiency of the evidence claim stating that it had been improperly raised in the 1925(b) statement filed with the lower court. Wherein the evidence presented by the Commonwealth at trial was insufficient to prove that petitioner was the actor who committed any and all of the charged offenses.
II. Did the Superior Court err or abuse its discretion when it denied the Petitioner's Motion for Judgment of Acquittal where the evidence presented by the Commonwealth was insufficient to prove beyond a reasonable doubt the crime of Burglary and that, if in fact the Petitioner entered the residence, the Petitioner intended, at the time of the entering, to commit any crime therein?
III. Did the Superior Court err when it admitted the 911 tape where the tape would otherwise not be admissible as an excited utterance and/or where the prejudicial nature of the tape outweighed the probative value, if any?
IV. Did the Superior Court err or abuse its discretion when denying Petitioner's motion to modify or reduce sentence and failed to adequately consider the sentencing code set forth at 42 Pa. C.S.A. § 9721, et seq., in fashioning a harsh sentence of consecutive periods of incarceration at Counts 2 and 1 totaling fourteen (14) to twenty-eight (28) years?

(Answer Ex. 16 at 5.)

         On November 27, 2013, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. (Answer Ex. 17.)

         On July 15, 2014, Petitioner filed a pro se petition for Post-Conviction Collateral Relief (PCRA). (Answer Ex. 18.) On July 17, 2014, Judge Zottola appointed Charles Pass, Esquire, to represent him. On July 25, 2014, Attorney Pass filed a No-Merit letter and a Motion for Leave to Withdraw. (Answer Ex. 19.) On August 25, 2014 Judge Zottola Granted Attorney Pass's Motion to Withdraw and issued a Notice of Intent to Dismiss Petitioner's PCRA. (Answer Ex. 20.) On September 9, 2014 Petitioner filed an Objection to the Court's Intent to Dismiss. (Answer Ex. 21.) On September 22, 2014, Judge Zottola dismissed Petitioner's PCRA. (Answer Ex. 22.)

         On October 22, 2014, Petitioner filed a Notice of Appeal to the Superior Court, which was docketed at No. 1822 WDA 2014. (Answer Ex. 23.) On December 8, 2014, Petitioner filed a Concise Statement, in which he raised the following issues:

I. PCRA Counsel failed to investigate, at all, Trial Counsels' strategic/tactical decisions and the reasonableness thereof, resulting in ineffective assistance and a failure to create any substantive PCRA Record to support any viable Appeal.
II. The PCRA Court's allowance of PCRA Counsel's withdrawal and summary denial of PCRA Relief was an abuse of discretion in not applying a more stringent review of Counsel's Turner/Finley Motion, and without any Judicial Opinion separate from said Motion allowed all aspects of PCRA Due Process Guarantees to be denied access by Defendant.

(Answer Ex. 25 at 1, 2.)

         On January 6, 2015, Petitioner filed an “Allonge to Petition for Post-Conviction Relief” (Answer Ex. 26) and his second pro se PCRA (Answer Ex. 27). In this second PCRA, Petitioner raised the following issues:

1. The said conviction resulted from ineffective assistance of attorney/fiduciary which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
2. Attorneys/Fiduciaries Borrero, Thomassey, and Pass were ineffective/incompetent in allowing Dale Edward Metzger, the living, breathing, flesh-and-blood man, sui juris, sui generis, to be substituted as the “cash equivalent” “COLLATERAL”, due to a summarily issued default judgment for failure to pay “cash”, in lieu of the fiction actually proceeded against.
Said Attorneys/Fiduciaries were also ineffective/incompetent in allowing the above-stated Fraud to occur; for failing to protect against same; and, provide advice on how to discharge the “failure to pay” proceedings.
This Court retains jurisdiction of the said Principal/Corpus as Settlor of the Trust, and if necessary, may appoint a fiduciary (without attaching any obligation whatsoever upon Dale Edward Metzger) to arrange compromise/settlement, which, dissolves all attachments, liens, indentures, encumbrances, and the like, and release Dale Edward Metzger from confinement as collateral. (Such a compromise and settlement may employ any fiction [ens legis, corporate entity, or person], attaching no obligation whatsoever upon the flesh-and-blood man. Same could also involve a “re-sentencing” to 3.5-7 years, which, validates the “proceedings” thus far executed). The Court may make a beneficial decision as herein offered without a hearing.

(Answer Ex. 27, AP 388, 391-92.)

         On January 13, 2015, Judge Zottola denied Petitioner's second PCRA. (Answer Ex. 28.) On January 22, 2015, Judge Zottola issued his Opinion regarding the dismissal of Petitioner's first PCRA. (Answer Ex. 29.)

         On February 10, 2015, Petitioner filed a Notice of Appeal as to Judge Zottola's denial of his second PCRA, which was docketed at No. 294 WDA 2015. (Answer Ex. 30.) On March 13, 2015, Petitioner filed his Brief for Appellant in the first appeal, at No. 1822 WDA 2014, in which he raised the following claims:

1. Did PCRA counsel's failure to investigate trial counsels' strategic/tactical decisions and the reasonableness thereof result in effective assistance of PCRA counsel and a failure to create any ...

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