United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
C. MITCHELL United States Magistrate Judge.
Kevin Taylor, brings this habeas corpus action pursuant to 28
U.S.C. § 2254, challenging his convictions, following a
guilty plea entered on March 4, 2013, on two counts of theft
by unlawful taking and one count of loitering and prowling at
nighttime, and the sentence of six and one-half to thirteen
years of imprisonment, imposed by the Court of Common Pleas
of Allegheny County, Pennsylvania on August 7, 2013 at
Criminal Action Nos. 201200530, 2012008018 and 201212644. The
charges stemmed from Petitioner's stealing of three
vehicles over a twelve-month period. For the reasons that
follow, the petition will be denied.
was charged, at No. 201200530, with loitering and prowling at
nighttime, theft from a motor vehicle and criminal attempt.
At No. 2012008018, he was charged with theft by unlawful
taking and receiving stolen property. At No. 201212644, he
was charged with theft by unlawful taking and receiving
stolen property. On March 4, 2013, Petitioner appeared before
the Honorable Joseph K. Williams. Petitioner was represented
by Patrick Thomassey, Esquire and the Commonwealth by
Assistant District Attorney Michael Ball. Petitioner
completed a Guilty Plea Explanation of Defendant's Rights
form and entered a negotiated plea of guilty. (Answer Ex. 7)
(APP 45-54.) Pursuant to the agreement, the
Commonwealth withdrew two (2) counts of receiving stolen
property and the counts of theft from a motor vehicle and
criminal attempt. Sentencing was deferred pending a
presentence report. Sentencing was set for May 29, 2013.
failed to appear at sentencing and a warrant was issued.
Petitioner was eventually apprehended on the bench warrant.
On August 7, 2013, Petitioner appeared before Judge Williams
for sentencing. At ¶ 201212644, Count 1, theft by
unlawful taking, Petitioner was sentenced to a term of
incarceration of not less than three (3) years nor more than
six (6) years and a consecutive period of seven (7) years of
probation. At ¶ 201208018, Count 1, theft by unlawful
taking, Petitioner was sentenced to a term of incarceration
of not less than three (3) years nor more than six (6) years
and a consecutive period of seven (7) years of probation,
which was consecutive to CC 201212644. At ¶ 201200530,
Count 1, loitering and prowling at nighttime, Petitioner was
sentenced to a term of incarceration of not less than six (6)
nor more than twelve (12) months and a consecutive term of
one (1) year of probation, which was consecutive to CC
201208018. Thus, Petitioner was sentenced to an aggregate
term of incarceration of not less than six and one half
(6½) years nor more thirteen (13) years of
imprisonment and a consecutive term of fifteen (15) years of
August 15, 2013, Petitioner, through Jeffrey Weinberg,
Esquire, filed a Motion to Withdraw Plea. (Answer Ex. 8) (APP
55-59). On August 30, 2013, the Commonwealth, through
Assistant District Attorney Ball, filed a Commonwealth's
Response to Post-Sentence Motion. (Answer Ex. 9) (APP 60-67).
On September 4, 2013, Petitioner, through Attorney Weinberg,
filed an Amended Motion to Withdraw Plea. (Answer Ex. 10)
(APP 68-71). On December 17, 2013, the post sentence motion
was denied by operation of law.
January 16, 2014, Petitioner, through Attorney Weinberg,
filed a Notice of Appeal. (Answer Ex. 11) (APP 72-76). On
February 13, 2014, Petitioner, through Attorney Weinberg,
filed a Concise Statement of Error Complained of Pursuant to
Rule 1925(b). (Answer Ex.12) (APP 77-79). On March 7, 2014,
Judge Williams filed his Opinion. (Answer Ex. 13) (APP
80-83). Petitioner's appeal was docketed in the Superior
Court of Pennsylvania at No. 118 WDA 2014. On April 8, 2014,
Petitioner, through Attorney Weinberg, filed a Praecipe to
Discontinue. On April 8, 2014, Petitioner's appeal was
discontinued. (Answer Ex. 15) (APP 86).
7, 2014, Petitioner, through Attorney Weinberg, filed a Post
Conviction Relief Act Petition (PCRA). (Answer Ex. 16) (APP
87-97). In the petition, Petitioner has raised the following
A. Defendant's plea was unknowing involuntary
unintelligent and entered as a result of ineffective
assistance of counsel in violation of Article I, Section 9 of
the Pennsylvania Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution as Attorney
Thomassey prepared defendant's 68 question guilty plea
colloquy[, ] answered the questions himself and failed to
adequately explain to defendant what he was signing; B.
Defendant attempted to withdraw his plea of guilty
prior to sentencing by this court and counsel made
no attempt to preserve this issue for the court[']s
(Answer Ex. 16 at 3) (APP 90.)
11, 2014, the Commonwealth, through Assistant District
Attorney Ronald Wabby, filed a Commonwealth's Answer to
Post Conviction Relief Act Petition. (Answer Ex. 17) (APP
98-116). On July 25, 2014, Judge Williams issued an Order
directing Petitioner to file an Amended PCRA petition to
correct the pleading defects that were noted by the
Commonwealth. On August 27, 2014, Petitioner, through
Attorney Weinberg, filed an Amended PCRA petition. (Answer
Ex. 18) (APP 117-128). On November 19, 2014, Petitioner
appeared before Judge Williams for an evidentiary hearing.
Attorney Weinberg represented Petitioner. ADA Wabby
represented the Commonwealth. Testimony was heard from the
Petitioner and from Attorney Thomassey.
April 6, 2015, Judge Williams filed an Order, which granted
relief on the sentencing claim (correcting his sentence to 3
to 6 years of imprisonment, followed by one year of
probation) and denied relief on the guilty plea-based claim.
(Answer Ex. 19) (APP 129-130). Also, on April 6, 2015, Judge
Williams filed an Opinion. (Answer Ex. 20) (APP 131-132).
April 30, 2015, Petitioner, through Attorney Weinberg, filed
a Notice of Appeal. (Answer Ex. 21) (APP 133-142). On May 12,
2015, Judge Williams filed an Opinion, which incorporated the
April 6, 2015 Opinion and elaborated upon it. (Answer Ex. 22)
7, 2015, Petitioner, through Attorney Weinberg, filed a Brief
for Appellant in the Superior Court of Pennsylvania, which
was docketed at No. 674 WDA 2015. (Answer Ex. 24) (APP
149-227). On appeal, Petitioner raised the following claims:
I. That the trial court erred in dismissing Appellant's
PCRA Petition by concluding that his earlier guilty plea was
knowingly and voluntarily made and as such that his trial
counsel was effective.
II. That the trial court erred in dismissing Appellant's
PCRA Petition by concluding that trial counsel was effective
despite failing to request that the Trial Court create a
record of his request to withdraw his plea of guilty.
(Answer Ex. 24 at iv) (APP 153.)
December 23, 2015, the Superior Court affirmed the judgment
of the Court of Common Pleas of Allegheny County denying the
PCRA petition. (Answer Ex. 26) (APP 246-253).
January 20, 2016, Petitioner, through Attorney Weinberg,
filed a Petition for Allowance of Appeal in the Supreme Court
of Pennsylvania, which was docketed at No. 26 WAL 2016.
(Answer Ex. 28) (APP 257-296). In his petition, Petitioner
raised the following claim:
I. Did the Superior Court err as a matter of law in holding
[that] Mr. Taylor failed to establish by a preponderance of
the evidence that trial counsel was ineffective, contrary to
this Honorable Court's decision in Commonwealth v.
(Answer Ex. 28 at 4) (APP 263.) On April 13, 2016, the
Supreme Court denied the petition. (Answer Ex. 30) (APP 298).
24, 2016, Petitioner filed this action pro se, and it was
docketed at Civil Action No. 16-945. In his pro se petition,
Petitioner raised the following claim:
Attorney told me to waive my case to court that he worked a
plea for 1 (one) year of probation. I was never told there
wasn't a plea agreement until after I plead guilty. If I
had known there wasn't a plea agreement, I never would
have plead guilty.
(ECF No. 1 ¶ 12.) On September 1, 2016, Petitioner,
through Chris Rand Eyster, Esquire, filed an Amended Petition
for Writ of Habeas Corpus (ECF No. 14) and Petitioner's
Brief in Support of Habeas Corpus Petition (ECF No. 15). In
his Amended Petition for Writ of Habeas Corpus, Petitioner
raises the following claim:
Petitioner was denied effective assistance of counsel where
he requested counsel to file a motion to withdraw his guilty
plea before sentencing and counsel failed to file a motion to
withdraw Petitioner's guilty plea prior to sentencing.
The Petitioner was instructed by counsel to waive his
preliminary hearing because counsel told him that he had a
plea deal worked out to one year of probation. Petitioner was
under the impression when he pled guilty that he was getting
that 1-year probation deal. However, prior to sentencing,
counsel told Petitioner that that judge wasn't happy with
him. So, Petitioner asked counsel to withdraw his guilty plea
prior to sentencing and counsel refused to do so saying
“[n]ot with me as your attorney.” (N.T. 11/19/14,
at 11). At sentencing, before pronouncement of sentence,
Petitioner asked the court to withdraw his plea. Petitioner
stated the reason for this request was “I am not
totally the guilty party[.]” (N.T. 8/7/13, at 4). At
that point counsel refused to advocate on behalf of his
client and created a conflict of interest. Nonetheless, the
court summarily denied the request without any inquiry of
Petitioner on the record. Petitioner filed a motion to
withdraw his guilty plea after sentencing, which was denied.
(ECF No. 14 ¶ 12.)
September 6, 2016, Respondent filed an Answer to the amended
petition (ECF No. 16). Respondent concedes that the petition
is timely and that the claim presented is exhausted and not
procedurally defaulted. (Answer at 10, 13, 14.) However, it
argues that the claim is without merit because the Superior
Court's decision is not an unreasonable application of
Supreme Court law.
November 21, 2016, Petitioner filed a reply brief (ECF No.
22), which was corrected on November 29, 2016 (ECF No. 23.)
The reply brief argues that there were several “fair
and just reasons” why Petitioner should have been
allowed to withdraw his guilty plea: 1) Petitioner believed
(perhaps erroneously) that he was going to receive a sentence
of probation, not 3 to 6 years of imprisonment; 2) counsel
told him that Judge Williams would be “upset”
with him because of his bond forfeiture status, and thus he
would be predisposed to impose a heavy sentence on
Petitioner, which is exactly what occurred; and 3) Petitioner
testified that he was “not totally the guilty
party” and the Commonwealth never established that he
knew or should have known that he was driving a stolen car,
as required to secure convictions for the crimes of theft and
receiving stolen property.
March 1, 2017, an order was entered (ECF No. 24), directing
the parties to file supplemental briefs on the issue of
prejudice. Petitioner filed his supplemental brief on March
31, 2017 (ECF No. 26). Respondents filed their supplemental
brief on April 11, 2017 (ECF No. 27). Petitioner filed a
reply brief on May 3, 2017 (ECF No. 30).
first issue that must be addressed by a federal district
court when considering a habeas corpus petition filed by a
state prisoner is whether the prisoner has exhausted
available state court remedies as required by 28 U.S.C.
§§ 2254(b) and (c). The Antiterrorism and Effective
Death Penalty Act of 1996 (the AEDPA), provides that:
(1) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the ...