United States District Court, W.D. Pennsylvania
OPINION AND ORDER
MAUREEN P. KELLY MAGISTRATE JUDGE
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.
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v. Moreno, No. 1252 WDA 2012, unpublished memorandum at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
State Court Procedural History
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).
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.
Federal Court Procedural History
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.
instant Amended Petition, Petitioner raises four Grounds for
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
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 ...