Brown v. Rozum, CIVIL ACTION NO. 3:CV-12-2021

• Decision Date: 23 July 2014
• Docket Number: CIVIL ACTION NO. 3:CV-12-2021
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: LAMAR BROWN, Petitioner v. GERALD ROZUM, et al., Respondents

LAMAR BROWN, Petitioner v. GERALD ROZUM, et al., Respondents

CIVIL ACTION NO. 3:CV-12-2021

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: July 23, 2014

(Judge Nealon)

MEMORANDUM

Petitioner, Lamar Brown, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Adams County, Pennsylvania. (Doc. 1). For the reasons that follow, the petition will be denied.

I. Background

The following background has been extracted from the Pennsylvania Superior Court's August 24, 2012 Memorandum Opinion affirming the denial of Brown's petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. C.S.A. §§ 9541, et seq., ("PCRA"), see (Doc. 20-4 at 78-92, Memorandum Opinion), in which the Superior Court adopts the PCRA court's summary of facts as follows:

On December 17, 2002, [Appellant] and his co-defendant were arrested and charged for the robbery of three individuals of cash and jewelry in the Borough of Gettysburg. At that time, [Appellant] was brandishing a sawed-off shotgun. On April 7,2003, Clarence E. Allen, Esquire, entered his appearance on behalf of [Appellant]. On May 19, 2003, an Order was entered granting Attorney Allen access to [Appellant's] medical records from the Adams County Prison.

On October 20, 2003, [Appellant] ... entered a plea of guilty to three counts of Robbery, 18 Pa. C.S.A. § 3701. Sentencing was deferred until January 13, 2004. At that time, the [trial court] was presented with a pre-sentence investigation report which contained a copy of a mental health evaluation performed on [Appellant] at the prison by Rose Maturo, M.S., L.P.C., dated January 6, 2004. Nothing therein gave any hint that [Appellant] was unable to understand due to the medication he was taking.¹ [Appellant] was sentenced to three consecutive terms of imprisonment of 5-10 years. His request for reconsideration of sentence was denied on April 20, 2004. [No direct appeal was filed.]

[Appellant] filed a pro se Motion for Post-Conviction Collateral Relief on May 27, 2005. After review, the [PCRA court] wrote to [Appellant] advising that the issues he was raising were untimely and would be dismissed unless properly amended. Gregory Hollinger, Esquire was appointed to represent [Appellant].

On January 6, 2005, [Appellant], through counsel, filed a Statement of Objection to Dismissal of PCRA Petition, wherein he claimed relief because [inter alia] (1) Plea counsel failed to file a motion to withdraw his plea as requested, (2) Plea counsel failed to file an appeal from sentencing, [and (3) Appellant's guilty plea was involuntarily entered because Appellant was then taking medications that interfered with his ability to comprehend his decision to plead guilty.]

***

[At a pre-hearing conference] scheduled for January 12, 2006[,] [t]he primary issue at that time was whether [Appellant's] right to file a direct appeal from sentencing should be granted. If granted, all other post-conviction collateral claims would be stayed pending the outcome of the appeal, but, if denied, the PCRA motion would be dismissed as untimely filed.

On January 12, 2006, without a hearing, the Commonwealth conceded to the issue regarding [Appellant's] right to appeal. Therefore, the right was reinstated and [Appellant] filed his appeal on January 24, 2006. Seven days later, the Court directed [Appellant] to file his Statement of Matters Complained of on Appeal as required by Pa.R.A.P. 1925(b). That statement was not filed until March 10, 2006. Because of that late filing, [a panel of the Superior Court] considered all issues waived and affirmed the judgment of sentence on January 3, 2007. [SeeCommonwealth v. Brown, 212 MDA 2006 (Pa. Super, filed Jan. 3, 2010)(unpublished memorandum).]

On October 30, 2007, [Appellant] filed [another PCRA petition] wherein he claimed relief based on the basis of ineffective assistance of counsel and an invalid plea due to the effects of medication. Barbara Entwistle, Esquire, was appointed to represent [Appellant]. She filed a Supplemental PCRA Petition on December 28, 2007, which she further amended on January 10, 2008. Essentially, the same claims for relief were averred as raised in 2005, with the addition of the Attorney Hollinger's ineffectiveness in filing a late Rule 1925 statement. ...

***

On November 12, 2009, the [PCRA court] entered an Opinion and Order finding [Appellant's] initial PCRA counsel ineffective and granting [Appellant] the right to pursue his original direct appeal....

[Appellant] appealed on December 10, 2009, and the Superior Court affirmed on November 15,2010. [SeeCommonwealth v. Brown. 2119 MDA 2009 (Pa. Super, filed Nov. 15, 2010)(unpublished memorandum).

For reasons that need not be discussed, Attorney Entwistie requested leave to be replaced as [Appellant's] counsel and, on January 14, 2011, Stephen Maitland, Esquire, was appointed to represent [Appellant]. The Court indicated, in writing, to [Appellant] and Attorney Maitland that the case would proceed when they identified the issues they wished to pursue. On August 4, 2011, Attorney Maitland [filed a "memorandum" stating] that the only issue being pursued concerned the validity of [Appellant's] plea. ... He [also] indicated that he was not successful in obtaining York County medical records, and, therefore, intended to claim "governmental interference."

[The lower court treated Attorney Maitland's memorandum as a PCRA petition.] A hearing was held before this Court on October 17, 2011. At that time, [Appellant] also claimed that he was not properly colloquied regarding his right to a jury trial [where he would be presumed innocent]. PCRA Court Opinion, 10/31/11, at 1-5. On October 31, 2011, the PCRA denied Appellant's PCRA petition.

(Doc. 20-4 at 78-92, Memorandum Opinion).

On November 21, 2011, Brown filed a notice of appeal to the Pennsylvania Superior Court, (Doc. 20-4 at 62, Notice of Appeal), and a Statement of Matters Complained of on Appeal on December 8, 2011. (Doc. 20-4 at 64). Petitioner, through counsel, requested to amend his Statement of Matters Complained of on Appeal, (Doc. 20-4 at 69), and filed an amended Statement of Matters Complained of on appeal on January 31, 2012. (Doc. 20-4 at 74).

On August 24, 2012, the Pennsylvania Superior Court affirmed the PCRA Court's October 31, 2011 Opinion and Order denying PCRA relief. (Doc. 20-4 at78).

On October 9, 2012, Petitioner filed the instant petition. (Doc. 1, petition). He raises the following grounds for relief:

1. The trial court lacked jurisdiction over the subject matter by reason of a defective Information which rendered the case and sentence "void ab nito."

2. The Pennsylvania Criminal Statutes are of an unknown and uncertain authority, unconstitutional and void.

3. The failure of York County Prison Medical Staff to provide Petition's medical records to PCRA counsel constitutes "governmental interference."

4. Petitioner's guilty plea was unknowing, unintelligent and involuntary.

5. The laws charged against Petitioner are not valid, or do not constitutionally exist, as they do not conform to certain constitutional prerequisites, and thus, are not laws at all, which prevent subject matter jurisdiction to the trial court.

6. Ineffective assistance of trial counsel for failing to raise the criminal Information was defective because it was signed by an attorney not authorized to act on behalf of the Commonwealth.

7. Ineffective assistance of first PCRA counsel.

(Doc. 1, petition).

In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Brown that he could either have the petition ruled on as filed, that is, as a § 2254petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeal, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 4). On October 31, 2012, Petitioner returned the Notice of Election, indicating that he wished to have his petition ruled on as filed. (Doc. 5, Notice of Election).

On November 5, 2012, a Show Cause Order was issued, directing that the petition be responded to as filed. (Doc. 6). A response to the petition, and traverse having been filed, the petition for writ of habeas corpus is ripe for disposition.

II. Discussion

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62. 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a); Estelle, 502 U.S. at 67-8 (1991): see also Pulley v. Harris, 465 U.S. 37, 41 (1984V Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

A. Exhaustion/Procedural Default

A district court may only grant a habeas petition of the petitioner has exhausted all available state remedies as to each federal claim raised in the petition. 28 U.S.C. § 2254(b)(1)(A): see also Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Exhaustion requires the petitioner "to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts ... by invoking one complete round of the state's established appellate review process," including petitioning for discretionary appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Slutzker, 393 F.3d at 380 (citing Doctor...