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Drew v. Wetzel

United States District Court, E.D. Pennsylvania

April 10, 2017

THOMAS DREW, Petitioner,
v.
JOHN E. WETZEL, et al., Respondents.

          MEMORANDUM

          EDUARDO C. ROBRENO, J.

         Petitioner Thomas Drew (“Petitioner”), who is currently on parole, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, seeking habeas relief on multiple grounds. Magistrate Judge Marilyn Heffley recommended that the Court dismiss the petition, and Petitioner objected. For the reasons set forth below, the Court will adopt Judge Heffley's Report and Recommendation, overrule Petitioner's objections, and deny the petition.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On November 8, 2005, Petitioner was arrested by Philadelphia police during an investigation into suspected drug sales. Report & Recommendation (“R&R”) at 1, ECF No. 21. Petitioner was later charged with, inter alia, possession of a controlled substance with intent to deliver and criminal use of a communication facility. Id. Petitioner filed a pre-trial motion to dismiss under the state's “prompt trial” rule, Pennsylvania Rule of Criminal Procedure 600 (“Rule 600”), [1] but, following a hearing, the state trial court denied this motion. Id. at 1-2. Petitioner additionally filed a motion to suppress certain physical evidence, but that motion was also denied. Id. at 2.

         On October 11, 2007, a jury convicted Petitioner of possession with intent to deliver a controlled substance and criminal use of a communication facility. Id. On November 21, 2007, Petitioner was sentenced to an aggregate seven and a half to fifteen years in prison. Id. Petitioner timely filed a direct appeal with the Pennsylvania Superior Court, which affirmed his conviction. Id. The Superior Court summarized the facts underlying Petitioner's conviction as follows:

On November 8, 2005, using a confidential informant (CI), police conducted a controlled buy of heroin at [Petitioner's] property at 743 N. 63rd St. in Philadelphia. Immediately after the controlled buy, [Petitioner] was arrested outside his residence while in possession of the pre-recorded [buy] money. Using [Petitioner's] keys to the property, the police then executed an anticipatory search warrant on the premises. The warrant indicated that the place to be searched was the second floor of the premises. Police did not find contraband on the second floor. They did, however, unlock a door on the second floor using [Petitioner's] keys. That door opened onto a stairway leading to a third-floor kitchen. Police recovered a large quantity of heroin from a bucket in this kitchen.

Id. (quoting Commonwealth v. Drew, No. 1300 EDA 2013, slip op. at 1 (Pa. Super. Ct. Oct. 6, 2014)). On February 12, 2010, Petitioner's petition to the Pennsylvania Supreme Court for allowance of appeal was denied. Id.

         On May 17, 2010, Petitioner sought collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541-9551, by filing a pro se motion alleging ineffective assistance of counsel. Id. Petitioner was appointed two successive lawyers, each of whom withdrew. Id. Before later withdrawing from the case for medical reasons, Petitioner's third court-appointed attorney filed a “Supplemental Consolidated Amended Petition and Memorandum of Law” on July 27, 2012. Id. at 2-3. Finally, Petitioner moved to proceed pro se, and, following a Grazier[2] hearing on January 10, 2013, his request to proceed pro se was granted. Id. at 3. Petitioner then adopted the petition drafted by his prior counsel, but that petition was dismissed by the PCRA court on April 12, 2013. Id.

         Petitioner timely appealed the dismissal of his PCRA petition and was appointed counsel. Id. On October 21, 2013, the Superior Court granted a petition filed by Petitioner seeking remand to the trial court to develop the record on the basis that a transcript was missing from a hearing on Petitioner's pre-trial Rule 600 motion. Id. Four evidentiary hearings were held to reconstruct the record of this hearing. Id. After consulting with counsel, the trial court determined that Petitioner's presence was not required during these hearings. Id. Instead, Petitioner's trial counsel offered testimony, and his PCRA counsel presented the court with a statement of evidence pursuant to Pennsylvania Rule of Appellate Procedure 1923.[3] Id. The Pennsylvania Superior Court ultimately affirmed denial of post-conviction relief on October 6, 2014. Id. The Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on April 13, 2015. Id. (citing Commonwealth v. Drew, No. 517 EAL 2014 (Pa. Apr. 13, 2015)).

         On May 15, 2015, Petitioner filed the instant pro se petition for a writ of habeas corpus. Pet., ECF No. 1. He stakes his claim for habeas relief primarily on the following four grounds: (1) the PCRA court improperly denied him an evidentiary hearing and the trial court erroneously denied his Rule 600 motion, Pet. at 5; (2) the trial court erroneously denied him the right to appeal nunc pro tunc, Id. at 7; (3) he was erroneously excluded from the hearings to reconstruct the missing transcript of his pre-trial Rule 600 motion hearing, Id. at 9; and (4) the trial court erroneously denied his motion to suppress and denied him his right to examine the confidential informant, Id. at 10-11, 17.

         II. LEGAL STANDARD

         A court may refer an application for a writ of habeas corpus to a United States magistrate judge for a report and recommendation. See Rules Governing § 2254 Cases, R. 10 (“A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.”). A prisoner may object to the magistrate judge's report and recommendation within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The court then “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1).

         On habeas review, a federal court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). In conducting this review, the federal court should bear in mind that “[a] habeas corpus petition prepared by a prisoner without legal assistance may not be skillfully drawn and should thus be read generously.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010); see also U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (“It is the policy of the courts to give a liberal construction to pro se habeas petitions.”).

         Ultimately, the court “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). A court is not required to review general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (“We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is ‘not timely or not specific.'” (emphasis added) (quoting Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984)).

         III. DISCUSSION

         A. Claims Sounding in State Law

         Judge Heffley recommends that this Court find that the following of Petitioner's claims are not cognizable on habeas review: (1) Petitioner's claim that the PCRA court improperly refused to hold an evidentiary hearing, see R&R at 7-8; (2) Petitioner's claim that the trial court erroneously denied his Rule 600 motion, see Id. at 8-11; (3) Petitioner's claim that the trial court erroneously denied him the ...


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