United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
RICHARD A. LLORET, U.S. Magistrate Judge
Magistrate Judge May 8, 2018 Jamal Wright filed a petition to
vacate or modify his sentence, pursuant to 28 U.S.C.
§2254 on November 1, 2013. ECF Doc. 1. Wright claimed
that his trial counsel was ineffective for failing to secure
testimony from a witness who would have exculpated
Though he did not raise this particular claim during his PCRA
proceeding in state court, he claimed that his PCRA counsel
was ineffective for failing to raise this claim, and that
this ineffectiveness of counsel would excuse his procedural
default, under state law, and his failure to exhaust
available state court remedies.
an evidentiary hearing on December 7, 2017, during which
trial counsel David Rudenstein and the Petitioner testified.
ECF Doc. 81. Subsequent to the hearing, the Commonwealth
filed an unopposed motion to stay the proceedings in order to
provide time for the new District Attorney to review the
file. ECF Doc. 80. After the parties filed status reports on
March 2, 2018 and April 5, 2018, requesting additional time,
see ECF Docs. 85 and 86, the parties advised on May
7, 2018 that they have reached a stipulation. After review of
the Stipulation and Order, I respectfully recommend that the
Stipulation be accepted, that the Petitioner's Petition
for Writ of Habeas Corpus be conditionally granted, ordering
the state court to act within 90 days from the date of the
conditional grant of the Writ to vacate Petitioner's
conviction and sentences in Commonwealth v. Wright,
CP-51-CR-0710141-2000, for the offenses of first-degree
murder and criminal conspiracy.
has agreed that, at the time the conditional Writ is granted,
that he will plead guilty to charges of third-degree murder
and criminal conspiracy and be sentenced to a cumulative
sentence of no greater than 17 to 34 years' imprisonment
in Commonwealth v. Wright, CP-51-CR-0710141-2000.
The Commonwealth has agreed that Petitioner will receive
credit for time served from June 8, 2000.
AND PROCEDURAL BACKGROUND
was convicted of first-degree murder following a bench trial
in 2001. The relevant facts at trial were summarized by the
Pennsylvania Superior Court:
On July 31, 1999, at approximately 10:00 p.m., [Wright] and
his co-defendant, Yakee Bentley, approached the victim,
Thomas “Tee” Weldon, who was walking up the 4500
block of Sansom Street in Philadelphia. While [Wright] shook
Tee's hand, Bentley walked behind Tee and pulled him to
the ground. [Wright] then searched Tee's pockets as
Bentley kept him pinned to the ground. Some five seconds
later, Tee was killed by two gun shots to the head; the shots
were fired at close range. Less than one minute after the
shots were fired, [Wright] and Bentley ran down the street
shouting to each other, “We killed that nigger. We shot
Commonwealth v. Wright, No. 1291 EDA 2002, at 1-2,
(Pa. Super. Nov. 6, 2003) (internal citations omitted).
November 8, 2001, Wright was sentenced to life imprisonment
without parole on the first degree murder conviction, and a
concurrent term of ten to twenty years of imprisonment on the
conspiracy conviction. The Pennsylvania Superior Court
affirmed the judgments of sentence on November 6, 2003.
See Id. The Pennsylvania Supreme Court denied
allocatur on April 2, 2004. Wright's conviction became
final on July 1, 2004, when his time within which to petition
the United States Supreme Court expired.
October 20, 2004, Wright filed a pro se petition in
state court pursuant to the Pennsylvania Post Conviction
Relief Act (“PCRA”). Counsel was appointed and
filed an amended petition on August 30, 2005. Notices of
Intent to Dismiss pursuant to Pa. R. Crim. P. 907 were filed
by the PCRA court on both December 7, 2009 and March 11,
2011. The PCRA petition was formally dismissed on April 29,
2011. Wright appealed, and the Superior Court affirmed the
dismissal of the PCRA petition on October 31, 2012.
Wright's PCRA counsel did not file a petition for
allowance of appeal with the Pennsylvania Supreme Court.
Wright filed a pro se habeas petition with this
court on October 29, 2013.
previously recommended that Mr. Wright's petition be
dismissed, because it was untimely filed. ECF Doc. 26. Mr.
Wright objected, claiming his PCRA attorney had not timely
notified him of the October 31, 2012 decision denying his
PCRA appeal. The district judge then assigned counsel to
represent Mr. Wright. Counsel filed a brief and appendix. ECF
Doc. 44. Mr. Wright explained in an affidavit that he did not
receive notice of the October 31, 2012 opinion from his
attorney until February of 2014, well after the filing
deadline for his habeas petition. ECF Doc. 44-10, pp. 1-3.
Respondent filed a memorandum contending that Mr.
Wright's PCRA counsel had notified Mr. Wright of the
October 31, 2012 opinion by three letters, in March, July,
and August of 2013. See Res. Br. at p. 13.
Yakee Bentley, charged in the same incident along with Jamal
Wright, also filed a petition for Writ of Habeas Corpus on
October 16, 2013. No. 17-6045 (E.D. Pa.) The matter was
assigned to Judge Timothy R. Rice for issuance of a Report
and Recommendation. After oral argument on December 4, 2015,
and full briefing of the parties, Judge Rice granted the
Writ, finding that the en banc Superior Court of
Pennsylvania unreasonably failed to take into account certain
credibility determinations made by the trial judge in the
PCRA proceedings. Yakee D. Bentley v. Marirosa
Lamas, No. 13-6045, Doc. No. 56 (E.D. Pa. January 21,
2016). After negotiation, the District Attorney of
Philadelphia entered into a stipulation with Mr. Bentley, in
which the parties agreed that Bentley's Writ of Habeas
Corpus would be conditionally granted, and within 90 days,
the state court would vacate Bentley's convictions and
sentences in Commonwealth v. Bentley,
CP-51-CR-1201411-1999, for first-degree murder and criminal
conspiracy. Bentley would plead guilty to charges of
third-degree murder and criminal conspiracy, and be sentenced
to a cumulative sentence of no greater than 17 to 34
years' imprisonment. In other words, identical to the
stipulation proposed here.
reviewed this file, and I believe that a plea to third-degree
murder and criminal conspiracy is a fair and just result in
this case. I therefore respectfully recommend that the
stipulation be adopted, that the Petition for Writ of Habeas
Corpus be conditionally granted, and that this matter be