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Poindexter v. Wetzel
United States District Court, M.D. Pennsylvania
November 14, 2019
DEWELL POINDEXTER, Petitioner
JOHN WETZEL, et al., Respondents
MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE.
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.
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
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
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