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Stultz v. Barkley

United States District Court, M.D. Pennsylvania

August 7, 2019

JOSE STULTZ, Petitioner
v.
KIMERLAY A. BARKLEY, PA STATE ATTORNEY GENERAL, Respondents

          MEMORANDUM

          JAMES M. MUNLEY UNITED STATES DISTRICT COURT JUDGE.

         Petitioner 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.

         I. State Court Background

         The 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. §§ 9541-9546:

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 drug charges.
[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 and 12-13).
B) Counsel did not ask for a continuance or [f]ile another [s]uppression [h]earing when collecting discovery [m]aterial [u]ntimely.
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 the DUI.
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 [b]rief?

(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).

         Stultz filed the instant petition on August 29, 2016.

         II. Issues Presented for Federal Review

         He 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 ...

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