United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
C. Mitchell United States Magistrate Judge.
Pekular, Jr., and inmate at the State Correctional
Institution-Greene- has presented a petition for a writ of
habeas corpus. 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.
is presently serving a ten to twenty year sentence imposed
upon his plea of guilty to charges of third degree murder at
No. CP-02-CR-537-2010 in the Court of Common Pleas of
Allegheny County, Pennsylvania.
some procedural maneuvers not material here, on September 3,
2013, petitioner filed a "pro se motion for an answer to
the 'motion to withdraw guilty plea' filed on October
4, 2011. (Ex. 5 to the answer). The motion was construed as a
post-conviction petition. Com. v. Taylor, 65 A.3d,
462, 465 (Pa.Super.2013)("it is well-settled that the
PCRA is intended to be the sole means of achieving
post-conviction relief."). The petition was subsequently
amended and denied on May 12, 2014 (Ex. 13 to the answer). An
appeal was filed in the Superior Court in which the issues
I. Did the lower court err by finding that trial counsel was
not ineffective by failing to meet with the appellant and
discuss his decision to withdraw his guilty plea, failing to
argue the motion to withdraw the guilty plea, failing to
argue the motion to withdraw the guilty plea, giving
appellant erroneous advise as to the sentence that would be
imposed and failing to describe the elements of third degree
II. Was the plea of guilty unlawfully induced by trial
counsel? (Ex.16 to the answer)
January 5, 2016 the denial of relief was affirmed (Ex. 18 to
the answer), and leave to appeal was denied on May 2016 (Ex.
22 to the answer).
present petition, Pekular contends he is entitled to relief
on the following grounds:
1. Sixth Amendment violation due to ineffective assistance of
counsel. Trial counsel was ineffective for failing to: meet
with the defendant and discuss decision to withdraw guilty
plea, argue motion to withdraw guilty plea filed by defendant
within time limit specified in guilty plea agreement, provide
information necessary for a plea to be knowingly and
intelligent, file a direct appeal despite being instructed to
do so, provide true and correct advice in the context of plea
bargaining with respect to the duration of the sentence.
2. Fourteenth Amendment violation because defendant was not
afforded due process of law. Due process of law was not
afforded when the plea of guilty was unlawfully induced since
the defendant did not fully understand the
elements/requirements of murder of the third degree (Petition
concede that these issues have been exhausted in the state
courts and that the instant petition is timely (Answer at pp.
background to this prosecution is set forth in the January 5,
2016 Memorandum of the Superior Court:
On November 28, 2009, at approximately 8:00 p.m., Appellant
entered the BP filing station and convenience store at 910
Sawmill Run Boulevard in Allegheny County. He approached the
counter and purchased a pack of crackers with loose change.
Appellant then left the convenience store and walked outside.
He paced around the store, returned, and selected another
package of crackers.
When Appellant came up to the purchase window, Lucinda Wetzel
was the cashier. As Ms. Wetzel opened the drawer to the cash
register, Appellant dove underneath a security barrier and
unsuccessfully attempted to grab cash from the open register.
Appellant then fled outside and attempted to rob Ms. Wetzel.
Next, Walter Wetzel chased Appellant and brandished a
firearm. If the case had proceeded to trial, the
Commonwealth's witnesses were prepared to testify that
Mr. Wetzel was acting within the scope of ...