Bernard v. Sorber

• Decision Date: 03 February 2023
• Docket Number: Civil Action 22-1668
• Parties: LEONARD BERNARD, Petitioner v. JAMIE SORBER et al, Respondents
• Court: U.S. District Court — Eastern District of Pennsylvania

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LEONARD BERNARD, Petitioner v. JAMIE SORBER et al, Respondents

Civil Action No. 22-1668

United States District Court, E.D. Pennsylvania

February 3, 2023

MEMORANDUM

GENE E.K. PRATTER UNITED STATES DISTRICT JUDGE

A federal court's power to overturn a state conviction and sentence is limited. Mr. Bernard seeks an order remanding his case to state court with a federal order that the state court resentence him. But Mr. Bernard has not demonstrated that he is in custody in violation of the Constitution, any federal law, or any treaty, the only bases on which a federal court may issue a writ of habeas corpus in these circumstances. Therefore, the Court denies his petition.

Background

I. Factual Background

The Pennsylvania Superior Court set out the facts of the case in addressing Mr. Bernard's direct appeal:

[The victim, 76-year-old Alice] Stackhouse[,] testified that due to several chronic illnesses, she relied on in-home care services. Brianna Mitchell, Bernard's girlfriend (now wife), had provided in-home care for Stackhouse in 2014. Stackhouse fired Mitchell in November 2014, due to her belief that Mitchell had stolen Stackhouse's supply of pain medication.

On December 20, 2014, Stackhouse answered a knock on her door. [Bernard] was at the door, and he forced his way in to Stackhouse's apartment. [Bernard] ripped a necklace off of Stackhouse while pushing her onto a couch.

When Stackhouse began screaming, he slapped her in the face. He threatened to "cut" her if she didn't stop screaming. He proceeded to steal her wedding and engagement rings, as well as her watch.

[Bernard escorted] Stackhouse into another room using her walker. He ransacked the room, stealing more jewelry. He placed a beach bag over Stackhouse's head, and then bound her hands together with a belt. [Bernard] continued to ransack her apartment. Ultimately, he left the apartment with Stackhouse tied up on the floor.

* * *

Detective Michael Buchmann testified [that] police immediately suspected Mitchell and her significant other were involved with this crime. Police obtained a search warrant for Bernard and Mitchell's home. Detective Jeffrey McCloskey testified that during the search, police found several items clearly belonging to Stackhouse.

Commonwealth v. Bernard, 241 A.3d 467 (Table), 2020 WL 6281756, at *1 (Pa. Super. Ct. Oct. 27,2020) (alterations in original) (quoting Commonwealth v. Bernard, 2286 EDA 2017,2018 WL 4690993, at *2-3 (Pa. Super. Ct. Oct. 1 2018) (memorandum decision)).

Following a bench trial on February 25, 2016, Mr, Bernard was convicted of robbery, burglary, conspiracy, and other related offenses.^[1] Id; Dkt, No CP-15-CR-0000120-2015, at 6-9. The court sentenced Mr Bernard to a term of 33 to 60 years' imprisonment. See Dkt. No. CP-15-CR-0000120-2015, at 6-9.

II. Procedural Background

Following the bench trial, Mr. Bernard began the appellate process, at times proceeding pro se and at other times with the aid of counsel.

A. Mr. Bernard's Direct Appeal

In Pennsylvania, a defendant has 30 days in which to file a notice of appeal, either from the time the sentence was imposed or the date any post-sentence motion is denied or withdrawn, 234 Pa. Code § 720(A)(2), (3). Mr. Bernard did not file a notice of appeal within the prescribed time frame following his conviction. In July 2017, Mr. Bernard's right to file a direct appeal of his conviction was restored nunc pro time after a Pennsylvania Post-Conviction Relief Act ("PCRA") proceeding and upon agreement with the Commonwealth of Pennsylvania. Bernard, 2020 WL 6281756, at *1; Dkt No. CP-15-CR-0000120-2015, at 27 (entry dated July 5, 2017). On July 17, 2017, Mr, Bernard filed his notice of appeal to the Pennsylvania Superior Court, raising six issues on direct appeal, specifically that the trial court:

(1) improperly allowed [Ms.] Stackhouse to identify him in court; (2) improperly admitted opinion testimony from a witness not qualified as an expert; (3) improperly admitted hearsay testimony from the same witness; (4) improperly admitted evidence subject to the spousal communications privilege; (5) erroneously found the evidence at trial sufficient and credible enough to support a guilty verdict; and (6) imposed an unreasonably excessive sentence,

Bernard, 2020 WL 6281756, at *1, The Pennsylvania Superior Court denied Mr. Bernard's appeal, finding the first, fourth, fifth, and six claims meritless and the second and third claims waived. Id. The Pennsylvania Supreme Court denied Mr. Bernard's petition for allowance of appeal on April 8, 2019. Commonwealth v. Bernard, 206 A.3d 488 (Pa. 2019) (Table).

B. Mr. Bernard's Collateral Appeal

On July 22, 2019, Mr. Bernard timely filed his first PCRA petition alleging the same six bases for relief that he raised on direct appeal. Bernard, 2020 WL 6281756, at *2, *2 n.3. Shortly thereafter, counsel was appointed to represent him for his PCRA proceeding, Id., at *2. Mr. Bernard's appointed counsel filed a "no merit" letter and a petition to withdraw as Mr. Bernard's counsel. Id. In January 2020, the trial court filed its notice of intent to dismiss Mr. Bernard's petition under Pennsylvania Rule of Criminal Procedure 907, giving him 20 days to respond. Id. Mr. Bernard conceded that his PCRA petition as then constructed did not entitle him to relief but requested leave to amend his petition to add a claim under Alleyne v. United States, 570 U.S. 99 (2013). Id. In February 2020, the trial court denied his request as untimely, dismissed Mr. Bernard's PCRA petition, and permitted his appointed counsel to withdraw. Bernard, 2020 WL 6281756, at *2.

Mr. Bernard then appealed the trial court's dismissal of his PCRA petition to the Pennsylvania Superior Court. There, the Superior Court affirmed the trial court's dismissal of his PCRA petition, explaining that the Superior Court had already addressed and rejected Mr. Bernard's six claimed bases for relief as part of his direct appeal to the Superior Court. Id. at *3. The Superior Court did not address them further. The Superior Court did, however, overturn the trial court's decision to deny Mr. Bernard's motion for leave to amend his PCRA petition as untimely and remanded for the trial court to consider whether Mr. Bernard should have been permitted to add his claim under Alleyne. Id. at *3-4.

Mr. Bernard filed an amended PCRA petition on January 26,2021, asserting a claim under Alleyne. Dkt. No. CP-15-CR-0000120-2015, at 38. The trial court filed its notice of intent to dismiss Mr. Bernard's amended petition under Pennsylvania Rule of Criminal Procedure 907 on April 29, 2021 and dismissed the amended PCRA petition on June 25, 2021. Id. at 38, 39. Mr. Bernard appealed this dismissal to the Superior Court but withdrew that appeal on November 5, 2021. Mat 39, 42.

C. Mr. Bernard's Federal Habeas Petition

After withdrawing his appeal from the Pennsylvania Superior Court, Mr. Bernard filed a petition for a writ of habeas corpus in this Court on April 24, 2022.^[2] In it, he asserts the same six grounds for relief that he raised on direct appeal and in his first PCRA petition. In addition, he adds to his sixth basis for relief, the claim of an unreasonably excessive sentence, a claim that the trial court was biased against him when it imposed his sentence. Pet. for Writ of Habeas Corpus, at ECF 16. Finally, he appears to assert an Ineffective assistance of counsel claim relating to his counsel on direct appeal and for his PCRA proceeding. See id., at ECF 19.

This Court referred Mr. Bernard's petition to the Honorable Lynne A. Sitarski, United States Magistrate Judge, for a Report and Recommendation. Magistrate Judge Sitarski submitted a Report and Recommendation, in which she recommended that Mr. Bernard's petition be summarily dismissed.

Mr. Bernard objected to the Report and Recommendation, arguing that the magistrate judge misinterpreted one of his bases for relief. According to Mr. Bernard, his sixth basis for relief contains an argument that his sentence is unconstitutional under Alleyne^[3]In the same filing in which Mr. Bernard raises his objections to the Report and Recommendation, Mr. Bernard also seeks to amend his habeas petition and supplement it with another brief.^[4] In that proposed supplemental document (assuming the Court has the power to consider it), Mr, Bernard appears to raise an ineffective assistance of counsel claim related to his pre-trial representation by a public defender and a claim under Alleyne.

Legal Standard

A federal district court "shall not" grant a petition for habeas corpus "unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

The Supreme Court has held that "[f]ederal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face," pursuant to 28 U.S.C. § 2254 Habeas Rule 4. McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985). Under Habeas Rule 4, a federal court may take judicial notice of state court records, dockets, and/or state court opinions, as well as its own court records. See Richardson v. Thompson, No. 13-1466, 2014 WL 65995, at *3 (W.D. Pa. Jan. 8, 2014).

If a party timely objects to a magistrate judge's report and recommendation, the court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made," 28 U.S.C. § 636(b)(1)...