United States District Court, E.D. Pennsylvania
MARK A. PEREZ, Petitioner
SUPERINTENDENT COAL TOWNSHIP, et al., Respondents
LAWRENCE F. STENGEL, C. J.
NOW, this 17th day of October, 2017, upon
careful and independent consideration of the petition for
writ of habeas corpus, the response thereto, and the
state court records, and after review of the thorough and
well-reasoned Report & Recommendation of United States
Magistrate Judge David R. Strawbridge, IT IS HEREBY ORDERED
petitioner's Objections are OVERRULED.
Report and Recommendation is APPROVED and ADOPTED;
petition for writ of habeas corpus is DENIED;
certificate of appealability SHALL NOT issue, in that the
petitioner has not made a substantial showing of the denial
of a constitutional right, or demonstrated that reasonable
jurists would debate the correctness of this ruling.
See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Clerk of Court shall mark this case CLOSED for all purposes.
 On December 19, 2016, having received
no Objections from the petitioner, I approved and adopted
Judge Strawbridge's Report & Recommendation. The
petitioner responded that he had not received the Report
& Recommendation within the allotted time to object
because it was sent to the wrong facility. I vacated my Order
and permitted the petitioner to file Objections, which he
Upon de novo review, I find that the
petitioner's Objections are meritless. First, the
petitioner challenges Judge Strawbridge's treatment of
the claim of whether guilty plea counsel was ineffective.
Judge Strawbridge cited portions of the record including the
opinions of the PCRA Court and the Superior Court which held
that guilty plea counsel was not ineffective. The petitioner
has not shown that the state court adjudication of this
ineffectiveness claim reflects an unreasonable application of
Strickland. Second, notwithstanding the
petitioner's objections, Judge Strawbridge properly
determined that the petitioner's claim of ineffectiveness
of post-sentence and direct appeal counsel was procedurally
defaulted. The petitioner does not allege any facts
sufficient to excuse the procedural default. Third, the
petitioner objects to Judge Strawbridge's determination
that the Due Process and Equal Protection claims are not
cognizable under habeas corpus review. The
petitioner argues that the state courts, i.e., the PCRA Court
and the Superior Court, denied him the opportunity to be
heard on all claims of error raised timely once he obtained
the state court record.” He insists that this claim
should be considered because it implicates “the
Constitution and the fact that he is an innocent man
incarcerated for a crime which he did not commit.” I
disagree. The PCRA Court has discretion to determine whether
an evidentiary hearing is required. A claim concerning state
collateral proceedings does not involve the Constitution,
laws, or treaties of the United States. Collateral
proceedings are not required of states, and when states
choose to provide such procedures, the same constitutional
rights do not attach. This claim is guided by state law and
PCRA procedures, and is thus not cognizable in federal
habeas petitions. His claim that the Superior Court
erred in finding his claims waived on appeal must also fail.
The petitioner points to appellate counsel as the cause of
this procedural default. However, he cannot show that any
alleged ineffectiveness resulted in actual prejudice to him.
The Superior Court considered his guilty plea agreement and
properly determined that the petitioner entered his plea
knowingly, voluntarily, and intelligently.
Along with his Objections, the petitioner added a
fourth claim to his habeas petition. He claims that
his sentence was illegally enhanced in violation of
Alleyne v. United States. 133 S.Ct. 2151 (2013). In
Alleyne, the defendant was convicted of using or
carrying a firearm in relation to a crime of violence. The
conviction carried a mandatory minimum sentence of five years
which was increased to a seven year minimum if the firearm
was “brandished.” Id. at 2155-56. His
sentence was based on a finding that he brandished the
firearm even though the jury did not find brandishing beyond
a reasonable doubt. Id. The Supreme Court held that
because the finding of brandishing increased the penalty to
which defendant was subjected, it was an element of the
offense, which had to be found by the jury beyond a
reasonable doubt. As the judge, rather than the jury, found
brandishing, the Court held that the sentence violated the
defendant's Sixth Amendment rights. Id. at
2163-64. Here, when presented with the petitioner's
Alleyne claim, the Superior Court properly found
that Alleyne could provide the petitioner no relief
because he was not sentenced to a mandatory minimum sentence.
Commonwealth v. Perez, No. 1062 EDA 2016, *4-5, 159
A.3d 590 (Pa.Super. November 17, 2016). Thus, because the
petitioner has failed to show ...