Buttolph v. Adams, 1:18-cv-2370

• Decision Date: 10 September 2020
• Docket Number: 1:18-cv-2370
• Parties: STEVEN CARL BUTTOLPH, Petitioner, v. MELINDA ADAMS, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

STEVEN CARL BUTTOLPH, Petitioner, v. MELINDA ADAMS, et al., Respondents.

1:18-cv-2370

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 10, 2020

Hon. John E. Jones III

MEMORANDUM

Petitioner Steven Carl Buttolph ("Petitioner" or "Buttolph") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 4), accompanied by exhibits (Doc. 4-1 through 4-10) and a memorandum of law (Doc. 4-11). Buttolph is seeking relief from his plea of guilty to one count of murder in the third degree and sentence of ten to twenty years imprisonment entered in the Court of Common Pleas of Perry County, Pennsylvania on May 5, 2014.

The petition is ripe for disposition. For the reasons set forth below, the Court will deny the petition.

I. STATE COURT FACTUAL AND PROCEDURAL BACKGROUND

In its April 25, 2017 Memorandum addressing Buttolph's appeal, in which he challenges an order entered by the trial court on September 17, 2015, as well as the denial of his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, the Superior Court of Pennsylvania set forth the following background:

In the early morning hours of May 3, 1992, Edward Williams, an owner of an adult bookstore, found his store clerk, Steven V. Gosline, dead inside the store. In addition, he discovered a large sum of money was missing from the cash register. An autopsy revealed Gosline's cause of death as multiple traumatic injuries to the head and the manner of death as homicide. Police began an investigation.

Donald Shreffler, a friend of Gosline's, told police that two other individuals were in the store when he left the night before at 11:30 p.m. He identified Jeff Mayhew and "Steve," who was known as a customer at another adult bookstore. Steve was eventually identified as Appellant. Appellant was interviewed by police and admitted to being in the store on that night, but did not admit to being involved in Gosline's death.

Three years later, on January 23, 1995, Marcie Buttolph, Appellant's wife, contacted police and reported that Appellant told her that he killed Gosline. Appellant was charged in connection with Gosline's murder, but Marcie then refused to testify at the preliminary hearing. Accordingly, the charges were withdrawn.

In 2008, police again interviewed Marcie. She and Appellant were no longer married, as they had divorced in 1997. [n.2 In addition to telling police once again that Appellant killed Gosline, she informed police that Appellant regularly smoked Marlboro cigarettes sold in a red box. Marlboro cigarette butts had been found at the crime scene, and police ordered DNA testing of them. The results returned a "partial DNA profile consistent with" Appellant. Affidavit of Probable Cause, 2/20/2009, at 3.

Marcie also reported to police that Appellant told her 1) that he stabbed Gosline, but Gosline did not die so Appellant picked up a pipe and beat him to death; 2) that Appellant stole $1,500 from the store; 3) that if Marcie told anybody about it she would never see their son again; and 4) that he disposed of the murder weapon and his clothes in the Susquehanna River. See Motion to Suppress,11/29/2011, at § 4.]

Marcie agreed to allow police to wiretap her phone conversations with Appellant in an attempt to learn more about his involvement in this murder. A number of those recorded conversations contained incriminating statements.

In February 2009, Appellant was arrested and charged with criminal homicide, robbery, and theft by unlawful taking. Appellant hired Attorney Jerry Russo to represent him. At Appellant's preliminary hearing, Marcie testified on cross-examination by Attorney Russo about Appellant's having admitted to her that he killed Gosline during the course of robbing the store. The charges were held for trial.

On November 29, 2011, Appellant filed a pre-trial motion to suppress testimony from Marcie, arguing that her testimony should be prohibited on the basis of the confidential communication marital privilege codified at 42 Pa.C.S. § 5914. On July 31, 2012, the trial court denied Appellant's motion. Appellant filed an appeal to this Court, and on November 26, 2013, this Court concluded that we lacked jurisdiction to entertain an appeal from this interlocutory order. See Commonwealth v. Buttolph, 91 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum).

A jury was selected on April 29 and 30, 2014. On May 1, 2014, Appellant and the Commonwealth entered into a negotiated guilty plea agreement. Appellant pled guilty to third-degree murder in exchange for the Commonwealth's withdrawing the other charges. In addition, the Commonwealth agreed to recommend Appellant be sentenced to ten to 20 years of incarceration, the maximum sentence available for third-degree murder in 1992. Furthermore, the agreement provided that "unless [Appellant] is involved in criminal activity, extensive disciplinary action, or takes unwarranted action against th[e district attorney's office], [the district attorney] will not oppose his parole consideration at his minimum." N.T., 5/1/2014, at 5 (unnecessary capitalization omitted).

Appellant signed a written plea colloquy and the trial court conducteda thorough on-the-record colloquy. The trial court pointed out specifically that Appellant was "giving up [his] right to challenge many aspects on appeal; like results of suppression motions, basically anything factually regarding this case[.]" Id. at 9 (unnecessary capitalization omitted). The trial court told Appellant that the only things he could challenge on direct appeal were "the voluntariness of [his] guilty plea, the jurisdiction of [the trial court] and the legality of [the] sentence." Id. at 10 (unnecessary capitalization omitted). The trial court accepted the plea and sentenced Appellant in accordance with his plea agreement.

On May 12, 2014, Appellant filed pro se a post-sentence motion challenging the discretionary aspects of his sentence. On May 13, 2014, the trial court denied Appellant's motion. [n.3 It is well-settled that where "[t]he trial court imposed the sentence Appellant negotiated with the Commonwealth[,] Appellant may not ... seek discretionary review of that negotiated sentence." Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015). See also Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008) ("One who pleads guilty and receives a negotiated sentence may not then seek discretionary review of that sentence.").] On May 21, 2014, [n.4 According to Appellant, he applied for a public defender on May 11, 2014.] court-appointed counsel from the office of the public defender, Attorney Barbara Wevodau, filed timely a notice of appeal on Appellant's behalf, which was docketed at 1464 MDA 2014. Attorney Wevodau then informed Appellant that after review of the file, along with Appellant's communications to her, she recommended he file a PCRA petition asserting claims of ineffective assistance of counsel. In addition, Attorney Wevodau notified the trial court that due to the caseload at the public defender's office, this case needed to be re-assigned to Attorney William Shreve. On November 24, 2014, the court issued an order appointing Attorney Shreve. On December 31, 2014, Attorney Shreve discontinued Appellant's direct appeal, and on February 23, 2015, Attorney Shreve filed a timely, counseled PCRA petition on Appellant's behalf.

On March 23, 2015, Attorney Shreve filed a petition to withdraw as counsel and no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc ). On April 8, 2015, the PCRA court issued a notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the petition in 20 days without a hearing. The PCRA court also permitted Attorney Shreve to withdraw.

On June 4, 2015, Appellant pro se filed a motion requesting more time to respond to the PCRA court's Rule 907 notice. He also requested that his direct appeal rights be reinstated. On September 17, 2015, the PCRA court entered an order granting Appellant additional time to file a response to the Rule 907 notice. The PCRA court denied Appellant's request to reinstate his direct appeal.

On October 4, 2015, Appellant pro se filed an amended PCRA petition. On October 19, 2015, Appellant pro se filed a notice of appeal from the September 17, 2015 order. [n.5 This appeal, filed on October 19, 2015, was docketed in this Court over seven months later, on June 6, 2016, at 891 MDA 2016. It is not clear why the clerk of courts did not follow the mandates of Pa.R.A.P. 905, which provide that upon receipt of a notice of appeal, the clerk of courts shall transmit it to this Court.] The PCRA court took no further action in this matter until March 22, 2016, when it dismissed Appellant's PCRA petition. Appellant timely filed a notice of appeal from that order, which was docketed at 892 MDA 2016. The PCRA court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant filed a statement raising 34 issues. On July 26, 2016, the PCRA court filed a memorandum.

Commonwealth v. Buttolph, No. 891 MDA 2016, 2017 WL 1476315, at *1-3 (Pa. Super. Ct. Apr. 25, 2017); Doc. 4-3. With regard to the number of issues presented for review, the Superior Court stated as follows:

Before we reach the issues presented by Appellant, we consider the PCRA court's conclusion that Appellant has violated Pa.R.A.P. 1925(b) by presenting 34 issues in his statement of errors complained of on appeal.7 See PCRA Court Opinion, 7/26/2016, at 1 (unnumbered). Based on the sheer number of issues set forth in this statement, thePCRA court analogizes this case to our decision in Kanter v. Epstein, 866 A.2d 394 (Pa. Super. 2004). In Kanter, this Court held the defendants had waived all issues on appeal by raising 104 issues for review in violation of Pa.R.A.P. 1925(b)(4)(ii) ("The Statement shall concisely identify

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