Booker v. Capozza
Decision Date | 06 July 2020 |
Docket Number | Civil Action No. 2: 18-cv-0091 |
Parties | FRANK DONTE BOOKER, Petitioner, v. SUPERINTENDENT MARK CAPOZZA, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents. |
Court | U.S. District Court — Western District of Pennsylvania |
Chief United States Magistrate Judge Cynthia Reed Eddy
Petitioner, Frank Donte Booker ("Booker") initiated this action with the filing of a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (ECF No. 1). In it, he alleges trial court error and ineffective assistance of counsel. For relief, Booker seeks a new trial. (Id. at 19). For the reasons that follow, the Petition will be denied, as will a certificate of appealability.
This case arises from the fatal shooting of Clavonne Rollins by Petitioner, Frank Donte Booker, on May 11, 2012, which occurred inside a car in which Rollins was the driver, Tamira Scheuermann was the front seat passenger, Darrell Brown was seated behind Scheuermann, and Booker was seated behind Rollins, with Rollins and Scheuermann's child in a baby seat betweenthe two men in the back seat. The background of this case was aptly summarized by the Pennsylvania Superior Court in its opinion affirming Booker's judgment of sentence as follows:
Commonwealth v. Booker, No. 862 WLD 2014, slip op., at 1-3 (Pa. Super. Ct. Oct. 26, 2015) (quoting Trial Court 1925(b) Opinion, March 2, 2015, pp. 3-5)) (ECF No. 9-1 at 181-83).
Booker was charged by criminal information filed in the Court of Common Pleas of Allegheny County at CP-02-CR-0008338-2012 with one count of criminal homicide, one count of robbery - inflicting serious bodily injury, one count of possession of a firearm by a person prohibited, one count of carrying a firearm without a license, and three counts of recklessly endangering another person.
Booker's case proceeded to jury trial from August 20 - 22, 2013, before The Honorable David R. Cashman. At the start of the trial, the court severed the charge of possession of a firearm by person prohibited, which was then tried by the bench along with Booker's remaining charges.2 At the conclusion of the trial, the jury convicted Booker of third degree murder; carrying a firearm without a license, and three counts of recklessly endangering another. The jury acquitted Booker of robbery. Judge Cashman convicted Booker of possession of a firearm by a person prohibited.
On November 26, 2013, Judge Cashman sentenced Booker to an aggregate sentence of 285 months (23.75 years) to 570 months (47.5 years) of incarceration for third degree murder and possession of a firearm, to be followed by seven years of probation.
Booker, through counsel, filed a series of post-sentence motions. The trial court did not rule on the motions and on May 7, 2014, the motions were denied by operation of law under Pennsylvania Rule of Criminal Procedure 720(B)(3)(b). On direct appeal, Booker, through counsel, raised these two claims:
Defendant-Appellant's Opening Brief (ECF No 9-1 at 118). On October 26, 2015, the Superior Court found the claims were waived for failure to object as required by Pa.R.Crim.P. 647(C) and affirmed the judgment of sentence on that basis. The Pennsylvania Supreme Court denied discretionary review on February 8, 2016. (ECF No. 9-1 at 221).
On March 11, 2016, Booker filed a pro se petition under the Post-Conviction Relief Act ("PCRA") claiming that his trial counsel, Elizabeth Delosa, Esquire, was ineffective for failing to do the following:
PCRA Petition, at 7 (ECF No. 9-1 at 228). On May 18, 2016, attorney Charles R. Pass III, Esquire was appointed counsel for Booker.
On June 16, 2017, Attorney Pass filed a motion for leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc), along with an accompanying fifty-five page no-merit brief. (ECF No. 9-2 at 9-68). On July 14, 2016, the trial court issued a notice of intent to dismiss the PCRA petition without a hearing, to which Booker filed a pro se response. (ECF Nos. 9-2 at 70-78). On September 20, 2016, the trial court dismissed the PCRA petition.
On May 3, 2017, acting pro se, Booker appealed the denial of his PCRA petition to the Superior Court and raised these four issues:
Booker's Appellate Brief at 2. (ECF No. 9-2 at 118). On October 12, 2017, the Superior Court of Pennsylvania affirmed the order denying the PCRA Petition, ECF No. 9-2 at 228-233. No further appeals were taken.
Having been denied relief in state court, Booker filed in this Court a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 raising these six claims:
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