United States District Court, M.D. Pennsylvania
M. MUNLEY UNITED STATES DISTRICT COURT JUDGE.
Jose Stultz (“Petitioner” or
“Stultz”) files the instant petition (Doc. 1) for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
seeking relief from the judgment of sentence following
convictions for fleeing or eluding police, driving under the
influence, and four summary traffic offenses entered in
Lebanon County Court of Common Pleas, Pennsylvania, criminal
case CP-38-CR-0000700-2010. The petition is presently ripe
for disposition. For the reasons set forth below, the
petition will be denied.
State Court Background
factual and procedural history of the state court proceedings
set forth below is extracted from the Superior Court of
Pennsylvania's Opinion affirming the denial of
Stutlz's petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§
At approximately 3:15 a.m., on February 14, 2010, Officer
Benjamin Lauver witnessed [Stultz] driving the wrong way on
Ninth Street, a one-way street in Lebanon City, Lebanon
County. Officer Lauver turned his vehicle around and
activated his lights and siren and began to pursue
[Stultz's] car. [Stultz] did not immediately pull over,
driving approximately forty miles per hour
(“mph”) in a twenty-five mph zone, but eventually
came to a stop at a red light. Officer Lauver reported that
[Stultz's] vehicle never left his sight. Upon
encountering [Stultz], Officer Lauver placed him under arrest
for fleeing and detected an odor of alcohol emanating from
[Stultz]. [Stultz] was transported to a hospital for blood
testing, which revealed a blood alcohol content
(“BAC”) of .134 percent. In addition, while at
the hospital, the officer had [Stultz] perform field sobriety
tests, which [Stultz] failed. A search of [Stultz's] car
at the scene led to the discovery of heroin and suboxone.
The Commonwealth charged [Stultz] with a felony of the third
degree fleeing or attempting to allude a police officer, two
counts of driving under the influence (“DUI”) of
alcohol, and four summary traffic offenses as well as
violations of the Controlled Substance, Drug, Device, and
Cosmetic Act. [footnotes omitted]. [Stultz] filed a motion to
suppress, challenging the validity of the traffic stop and
the search of his vehicle. The court granted in part and
denied in part that motion. It suppressed several statements
made by [Stultz] to police as well as the drugs located in
the vehicle. However, it upheld the traffic stop and the
blood test results. Thereafter, the Commonwealth withdrew the
[Stultz] proceeded to a jury trial on June 7, 2011. The jury
found [Stultz] guilty of the fleeing while DUI count. The
court adjudicated [Stultz] guilty of the DUI and summary
offenses. Thereafter, the court sentenced [Stultz] on July
27, 2011, to a sentence of one to five years imprisonment for
the fleeing charge. The court sentenced [him] on one of the
DUI charges to a concurrent sentence of forty-eight hours to
six months incarceration. The other DUI charge merged.
[Stultz] filed a timely post-sentence motion, which the court
denied. A timely direct appeal ensued. [Stultz] challenged
the trial court's denial of his suppression motion, the
sufficiency of the evidence with respect to the fleeing
court, a jury instruction, and the weight of the evidence. We
affirmed on December 11, 2012. Commonwealth v.
Stultz, 64 A.3d 16 (Pa. Super. 2012). [Stultz] did not
seek allowance of appeal with our Supreme Court but filed the
underlying PCRA petition on January 28, 2013.
The court appointed counsel filed an amended petition
reiterating [Stultz's] claims. However, at [Stultz's]
request and after conducting the requisite colloquy, the PCRA
court permitted him to continue pro se. The PCRA
court conducted an evidentiary hearing. Following the
hearing, the court denied [Stultz's] petition on May 2,
2014, and issued an opinion in support thereof. This timely
appeal followed. The PCRA court directed [Stultz] to file and
serve a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. [Stultz] complied, and the PCRA
court indicated that the reasons for its decision could be
found in its earlier opinion. The matter is now ready for
this Court's consideration. [Stultz] raised the following
issues for our review.
I. Whether the PCRA court erred or abused its discretion in
denying Post-Conviction relief on the Claim whether[r]
Petitioner was prosecuted/sentence[d] in a tribunal that
lack's [sic] subject matter jurisdiction.
II. Whether the PCRA court erred or abused its discretion in
denying Post-Conviction relief on the claim of whether
counsel was [i]neffective?
A) Counsel did not object to leading questions to O[f][f]icer
Lauver during the preliminary hearing. (Page 16, lines 6-7
B) Counsel did not ask for a continuance or [f]ile another
[s]uppression [h]earing when collecting discovery [m]aterial
C) Counsel did not argue the suppression hearing properly
when [he] should have questioned the arrest not the stop.
D) Counsel did not ask [f]or an [e]xpert in order to fight
E) Counsel [f]ailure [sic] to challenge the lack of
Miranda warning of the videotape.
III. Whether the PCRA court erred or abused its discretion in
denying Petitioner[']s claim that [his] sentence is
illegal or unlawful [f]or lack of statutory authorization?
IV. Whether the PCRA court violated Appellant['s] [d]ue
[p]rocess and [e]qual [p]rotection [c]onsitutionally
guaranteed and [p]rotected [r]ight by not allowing adequate
time for Appellant to rebuttal [sic] the Commonwealth[']s
(Doc. 10-43, pp. 1-4). The Superior Court affirmed the PCRA
court's denial of collateral relief on April 28, 2015,
with respect to the ineffective assistance of counsel claims
and determined that the due process sentence claim was waived
pursuant to 42 Pa.C.S. § 9544(b). Stultz filed a timely
petition for allowance of appeal. (Doc. 10-44). He raised
four issues for review, all of which challenged the propriety
of his sentence and the lower court's
“authority/jurisdiction to impose a sentence of that
length or type which do not conforms [sic] with laws and
provisions of the sentencing code which would render
sentenced impose[d] illegal or unlawful.” (Id.
at pp. 5, 6). On September 30, 2015, the Supreme Court denied
the petition for allowance of appeal. (Doc. 10-45).
filed the instant petition on August 29, 2016.
Issues Presented for Federal Review
presents the following issues for our review:
I. Whether Petitioner['s] Sixth Amendment Right of the
United States Constitution was violated when Counsel
ineffective assistance for failure to object to leading
questions to ...