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Moreno v. Ferguson

United States District Court, W.D. Pennsylvania

September 4, 2019

WILLIAM JOHN MORENO, Petitioner,
v.
TAMMY FERGUSON, Superintendent of State Correctional Institute of Benner, JOSHUA SHAPIRO, Attorney General of the Commonwealth of Pennsylvania, and HON. STEPHEN A. ZAPPALA, District Attorney of Allegheny County, Pennsylvania, Respondents.

          OPINION AND ORDER

          MAUREEN P. KELLY MAGISTRATE JUDGE

         William John Moreno ("Petitioner"), represented by retained counsel, has filed this Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 with Supporting Brief (the "Amended Petition"), ECF No. 3, seeking to attack his state court conviction, of aggravated assault stemming from a bar fight. Petitioner was sentenced to incarceration of 8.5 to 20 years. For the reasons that follow, the Amended Petition will be denied and because reasonable jurists would not find this disposition debatable, a certificate of appealability will be denied.

         I. FACTUAL BACKGROUND

         The Pennsylvania Superior Court, in its September 28, 2016 Memorandum, provided a summary of facts as follows:

During the early morning hours of December 6, 2010, Appellant and his codefendant, Michael Szoszorek (Szoszorek), were at the Polish Veteran's Association bar in Pittsburgh, Pennsylvania/Shortly after 3:00 a.m. that morning, bartender Nicole Knouff (Knouff) began asking customers to leave, as the bar was closing. Bar patron Michael Murray (the victim) endeavored to assist Knouff by approaching a group of men, which included Appellant and Szoszorek, and asking them to depart. Instead, Appellant struck the victim in the face. A brawl ensued, during which the victim was punched and kicked by Appellant and Szoszorek. The victim was knocked unconscious and suffered several injuries, including a broken leg and a concussion.
As a result of these events, Appellant was charged with aggravated assault and conspiracy. A bench trial was held on January 25, 2012. At the conclusion of the trial, Appellant was found guilty of the aggravated assault charge, but acquitted of conspiracy. On April 16, 2012, Appellant was sentenced to 8.5 to 20 years' incarceration.

Com, v. Moreno, No. 718 WDA 2015, 2016 WL 5485165, at *l (Pa. Super. Sept. 28, 2016) (quoting Commonwealth v. Moreno, No. 1252 WDA 2012, unpublished memorandum at 1 - 2 (Pa. Super, filed January 9, 2014)); ECF No. 9-10 at 1 - 2.

         II. PROCEDURAL HISTORY

         A. State Court Procedural History

         The Superior Court, in its September 28, 2016 Memorandum, summarized the state court procedural history as follows:

Appellant filed a direct appeal, and on January 9, 2014, this Court affirmed. See Id. On June 25, 2014, our Supreme Court denied Appellant's subsequent petition for allowance of appeal. Commonwealth v. Moreno, 94 A.3d 1009 (Pa. 2014).
On July 7, 2014, Appellant filed a pro se PCRA petition and counsel was appointed. However, that attorney filed a Turner/Finley 'no merit' letter and petition to withdraw. Before counsel's petition to withdraw was ruled on, however, Appellant obtained private counsel. That attorney filed an amended petition on Appellant's behalf, raising claims of ineffective assistance of counsel (IAC). The Commonwealth filed a response, and on March 30, 2015, the PCRA court conducted a hearing. At the conclusion thereof, the court denied Appellant's petition. Appellant filed a motion for reconsideration on April 9, 2015, which the court denied on April 14, 2015. Appellant filed a notice of appeal on May 5, 2015, and also timely complied with the court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The PCRA court filed a responsive opinion on November 5, 2015.

Id. at *l; ECF No. 9-10 at 2-3 (footnote omitted).

         After the Superior Court affirmed the denial of the Post Conviction Relief Act ("PCRA") petition, Petitioner filed a counseled Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which was denied on March 31, 2017. ECF No. 9-10 at 64.

         B. Federal Court Procedural History

         Petitioner filed a counseled Petition for Habeas Corpus in the instant matter on October 31, 2017. ECF No. 1. Petitioner then requested to amend the original Petition and to prepare a brief in support of the issues within ninety (90) days of receiving an order to do so, or, alternatively, to file an amended petition for writ of habeas corpus with the brief attached to the request. ECF No. 2. The Court ordered that Petitioner file an Amended Petition and a Brief in Support no later than j December 29, 2017. Id. Petitioner then filed his counseled Amended Petition for Writ of Habeas Corpus on December 29, 2017, which is the operative Petition. ECF No. 3.

         In the instant Amended Petition, Petitioner raises four Grounds for Relief:

GROUND ONE: Petiti[o]ner was denied effective assistance of trial counsel when counsel unilaterally changed the trial of the within mat[t]er from a jury trial to a bench trial without the consenbt [sic] of the Petitioner.

ECF No. 3 at 12 (capitalization changed throughout).

GROUND TWO: Petitioner was denied effective assistance of trial counsel where trial counsel failed to call the Petitioner to testify; failed to call an identified witness on behalf of the Petiti[o]ner; and, failed to offer any testimony against the case offered by the Commonwealth[] yet he assurred [sic] that he would present a case after the Commonwealth then failed to do so.
GROUND THREE: Trial counsel James Sheets abandoned the Petitioner in the presentation of his case on behalf of the petitioner as, represented by his ...

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