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Sirmons v. Gilmore

United States District Court, M.D. Pennsylvania

August 21, 2019

ROBERT GILMORE, et al., Respondents

         Judge Kane)


         On April 10, 2019, pro se Petitioner Christopher Lee Sirmons, Jr. (“Petitioner”) initiated the above-captioned action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] (Doc. No. 1.) He also filed a motion for leave to proceed in forma pauperis. (Doc. No. 2.) On April 22, 2019, the Court granted Petitioner leave to proceed in forma pauperis and issued an administrative order in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), instructing Petitioner that he could: (1) have the petition ruled on as filed - that is, as a § 2254 petition for writ of habeas corpus - but lose his ability to file a second or successive petition, absent certification by the court of appeals; or (2) withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). (Doc. No. 4.) The Court informed Petitioner that his failure to return the Notice of Election Form would result in the Court ruling on his current § 2254 petition as filed. (Id.) On May 6, 2019, the Court received Petitioner's Notice of Election form indicating that he would like the Court to rule on his § 2254 petition as filed. (Doc. No. 5.)

         In an order to show cause dated May 8, 2019, the Court directed Respondent to respond to Petitioner's § 2254 petition within twenty (20) days and noted that Petitioner could file a reply within fourteen (14) days of the date Respondent filed his response. (Doc. No. 6.) After receiving an extension of time (Doc. Nos. 8, 9), Respondent filed a response to the § 2254 Petition on July 25, 2019 (Doc. No. 11). To date, Petitioner has neither filed a reply nor an extension of time to do so. Accordingly, because the time period for filing a reply has expired, the § 2254 petition is ripe for disposition.

         I. BACKGROUND

         On November 6, 2015, following a jury trial, Petitioner was found guilty of two (2) counts of aggravated assault, in violation of 18 Pa. Cons. Stat. § 2702, and two (2) counts of simple assault, in violation of 18 Pa. Cons. Stat. § 2701. See Commonwealth v. Sirmons, CP-14-CR-0001770-2014 (C.C.P. Centre Cty.).[2] On December 17, 2015, Petitioner was sentenced to a minimum of two (2) years and a maximum of four (4) years for each count to run consecutively. See id. The trial court ordered that Petitioner's aggregate sentence run consecutively to the sentence Petitioner was then serving. See id. After the trial court denied Petitioner's post-sentence motions, Petitioner filed a notice of appeal to the Superior Court of Pennsylvania. See id.; see also Commonwealth v. Sirmons, 261 MDA 2016 (Pa. Super. Ct.). On appeal, Petitioner raised one issue: whether the trial court “erroneously refuse[d] to give [Petitioner's] requested point for charge number 16, an expanded definition of ‘impairment of physical condition or substantial pain.'” See Commonwealth v. Sirmons, No. 261 MDA 2016, 2016 WL 5884805, at *2 (Pa. Super. Ct. Sept. 9, 2016). On September 9, 2016, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence. See id. Petitioner did not seek leave to appeal to the Supreme Court of Pennsylvania.

         On August 29, 2016, Petitioner filed a Post Conviction Relief Act (“PCRA”) petition with the Court of Common Pleas for Centre County. See Sirmons, CP-14-CR-0001770-2014. Counsel was appointed, and on January 6, 2017, the PCRA court directed counsel to file an amended PCRA petition. See id. Petitioner filed a pro se amended PCRA petition on August 14, 2017. See id. On July 30, 2018, counsel requested leave to withdraw from representation as well as a Turner/Finley[3] “no merit” brief. See id. On August 13, 2018, the PCRA court granted counsel's motion to withdraw and informed Petitioner of its intent to dismiss his PCRA petition. See id. On August 20, 2018, Petitioner filed a brief in response to the PCRA court's notice of intent to dismiss. See id. On September 21, 2018, the PCRA court dismissed Petitioner's PCRA petition. See id. Specifically, the PCRA court concluded that: (1) Petitioner's due process rights were not violated because Pennsylvania Rule of Criminal Procedure 109 was not violated; (2) counsel was not ineffective for failing to raise objections pursuant to various state rules of procedure; and (3) Petitioner was not denied a fair trial. (Doc. No. 11 at 67-72.) Petitioner did not appeal this decision to the Superior Court of Pennsylvania.

         On April 10, 2019, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court. (Doc. No. 1.) He raises the following grounds for relief:

1. Constitutional protection of the Sixth, Eighth, and Thirteenth Amendment[s]. PA. Rule 513(B), PA. Rule 544(B), PA Rule 551, PA Rule 120, PA Rule 132 (id. at 4);
2. Constitutional protection of the Fourteenth, and Seventh, and Nin[]th, and Eleventh Amendment[s]. PA Rule 542(D)(E), PA rule 508(A)(1), PA Rule 3733, PA Rule 132(A3)(B)(C), PA Rule 117 (id. at 5);
3. Constitutional protection of the Amendments (18 PA. C.S. Section 9183) (id. at 6); and
4. Sufficiency of the evidence (id. at 8).

         Petitioner acknowledges that he did not appeal the dismissal of his PCRA petition to the Superior Court of Pennsylvania. (Id. at 3, 5-7, 9.) Respondent asserts that Petitioner has never presented portions of Grounds One and Two and all of Ground Four to any state court.[4] (Doc. No. 11 at 4, 6.)


         Habeas corpus is an “‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the criminal proceedings.” See Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414, 146 (1998)). The exercise of restraint by a federal court in reviewing and granting habeas relief is appropriate due to considerations of comity and federalism. See Engle v. Isaac, 456 U.S. 107, 128 (1982). “The States possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the States' sovereign power and their good-faith attempts to honor ...

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