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Poindexter v. Wetzel

United States District Court, M.D. Pennsylvania

November 14, 2019

DEWELL POINDEXTER, Petitioner
v.
JOHN WETZEL, et al., Respondents

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.

         Dewell Poindexter, an inmate presently confined in the Smithfield State Correctional Institution, Huntingdon, Pennsylvania (SCI-Smithfield), filed this pro se habeas corpus petition pursuant to 28 U.S.C. §2254. (Doc. 1, petition). He attacks a conviction imposed by the Court of Common Pleas for Dauphin County, Pennsylvania. Id. For the reasons that follow, the Court will dismiss the petition as untimely.

         I. Background

         The following background has been extracted from the Pennsylvania Superior Court's December 14, 2018 Memorandum Opinion affirming the sentencing court's dismissal of Petitioner's petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541 - 9546. (Doc. 16-4 at 1 - 7).

The relevant factual background follows. Appellant delivered cocaine to a confidential informant near Third and Calder Streets in Harrisburg, Pennsylvania, on two separate occasions, June 4 and June 29, 2015. Each delivery involved approximately five grams of cocaine. Following the second delivery, police arrested Appellant near 222 Harris Street, Harrisburg, where Appellant had been observed entering and exiting the building. Police recovered fifty baggies of heroin from Appellant's person.
Based on the deliveries of cocaine and the drugs recovered from Appellant, police obtained a search warrant for an apartment at 222 Harris Street. Inside the apartment, police found mail addressed to Appellant. Police also recovered over ten grams of heroin, over 100 grams of cocaine, and two handguns from the apartment, including one .380 caliber pistol and one .45 caliber pistol. Police additionally seized over $3, 000 in cash.
Appellant was arrested and charged with two counts of delivery of cocaine, criminal use of a communication facility and possession of drug paraphernalia at docket CP-22-CR-0004424-2015. At docket CP-22-CR-0004426-2015, Appellant was charged with three counts of PWID, three counts of possession of a controlled substance, possession of a small amount of marijuana, possession of drug paraphernalia, and two VUFA charges.
On December 10, 2015, Appellant's counsel (plea counsel) initially filed a suppression motion alleging that the Commonwealth failed to furnish a copy of video surveillance in its possession, which allegedly captured the drug transaction on June 29, 2015. Omnibus Pretrial Motion, 12/10/15, at 2 (unpaginated). Trial counsel also challenged whether the search warrant for the apartment was supported by probable cause. Id. at 4. The trial court scheduled a hearing for February 22, 2016.
At the hearing on February 22, 2016, instead of litigating the suppression motion, Appellant entered a negotiated guilty plea and was immediately sentenced. Under the terms of the plea agreement, Appellant pled guilty to two delivery offenses at CP-22-CR-0004424-2015 and received a sentence of three to six years of incarceration for each offense, to run concurrently. At CP-22-CR-0004426-2015, Appellant pled guilty to PWID for heroin and cocaine and to two VUFA charges for the drugs and two handguns recovered from his apartment. For each offense at CP-22-CR-0004426-2015, Appellant received a sentence of 5½ to 11 years of incarceration, each to run concurrently. The sentences at both dockets were to run concurrently, for an aggregate sentence of 5½ to 11 years of incarceration.
At the time Appellant entered his guilty plea, he filled out a guilty plea colloquy form for each docket number indicating that he understood the nature of the plea. The record reveals no discussions by plea counsel or the court regarding former mandatory minimum sentences based upon either the weight of the drugs recovered or the commission of drug offenses with firearms.
Appellant did not file a post-sentence motion or direct appeal from his judgments of sentence.
The timely pro se PCRA petition giving rise to the instant appeal was docketed on March 3, 2017. The PCRA court appointed counsel (PCRA counsel), who filed a Turner/Finley motion to withdraw on August 21, 2017. Appellant filed a response titled “Objections to Counsel's Finley Letter” that was docketed on October 2, 2017. In his objections to PCRA counsel's motion to withdraw, Appellant argued that plea counsel was ineffective for advising him to plead guilty when the sentences violated Alleyne. Objections to Counsel's Finley Letter, 10/2/17, at 3. Appellant also argued that plea counsel failed to investigate the Commonwealth's evidence and whether the contraband from the residence searched actually belonged to Appellant. Id. at 4.
The PCRA court issued a Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's PCRA petition on October 31, 2017, and granted PCRA counsel's motion to withdraw. The PCRA court noted that
[Appellant] claims he is eligible for post-conviction relief because he was sentenced in violation of Alleyne v. United States,133 S.Ct. 2151 (2013). However, Alleyne does not apply to [Appellant's] case. Alleyne holds that any fact that triggers the application of a mandatory minimum sentence for a crime must be submitted to the fact finder and the fact finder must find that fact beyond a reasonable doubt. However, [Appellant] was not sentenced to a mandatory minimum. ...

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