Collins v. DelBalso

• Decision Date: 27 April 2021
• Docket Number: Civil No. 3:19-cv-690
• Parties: JOHNNY COLLINS Petitioner, v. THERESA DELBALSO, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

JOHNNY COLLINS Petitioner, v. THERESA DELBALSO, et al., Respondents.

Civil No. 3:19-cv-690

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 27, 2021

(Judge Brann)

(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION

I. Introduction

Pending before the court is a petition for writ of habeas corpus filed by the petitioner, Johnny Collins. Collins was convicted in 2012 in the Court of Common Pleas of Dauphin County, Pennsylvania of drug trafficking and related crimes and is currently serving a sentence of nine to eighteen years in prison. Collins now seeks relief in the form of this habeas corpus petition, in which he raises several claims alleging ineffective assistance of trial and appellate counsel as well as trial court errors.

After review of the record, we find that Collins' claims are without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied.

II. Statement of Facts and of the Case¹

The charges brought against Collins in the Dauphin County Court of Common Pleas arose from the following factual scenario.

On September 16, 2010 Detective Cory Dickerson with the Dauphin County Drug Task Force conducted a controlled buy at the Paxton Street Pub with a confidential informant (CI), in which the CI purchased cocaine from Collins in exchange for $170. Detective Dickerson was present when the hand-to-hand transaction took place, wrote up a report, and provided all the information regarding the completed sale. In addition, Detective Dickerson provided a signed photograph of Collins indicating this was in fact the person who sold the cocaine to the CI. Detective Dickerson relayed this information to Detective Jason Paul of the Harrisburg City Police Department. Specifically, Detective Dickerson informed Detective Paul that Collins had sold cocaine to Detective Dickerson's CI.

One month later, Detective Paul received additional information from a CI regarding the whereabouts of Collins. The CI indicated they saw Collins with cocaine and a weapon inside of a gold Oldsmobile car. Detective Paul attempted to locate the gold Oldsmobile described by the CI, and he observed the car two times before meeting with Officer Tyron Meik of the Harrisburg City Police Department.Detective Paul informed Officer Meik of the September 16, 2010 controlled buy between Collins and the CI and provided information regarding the gold Oldsmobile in which Collins was spotted.

Subsequently, Officer Meik and Detective Paul were looking for Collins to arrest him for the drug sale on September 16, 2010. The vehicle was spotted on October 19, 2010, and authorities initiated a traffic stop and subsequently arrested Collins for his alleged unlawful delivery of a controlled substance based on the September 16, 2010 controlled buy. A search of his person incident to the arrest revealed contraband supporting additional charges, including one count of possession with the intent to deliver a controlled substance.

The lengthy procedural history of Collins' case was aptly summarized by the Pennsylvania Superior Court in its decision on Collins' appeal of the denial of his post-conviction relief petition:

Appellant, through the assistance of Brian Perry, Esq., filed an Omnibus Pre-[T]rial Motion on August 2, 2011. On September 20, 2011, a Pre-[T]rial Suppression Hearing was held before [the trial court]. Thereafter, the parties were ordered to submit briefs. On October 3, 2011, Appellant informed the trial court through pro se correspondence that he wanted to fire his private counsel of record. On October 14, 2011, Brian Perry, Esq. filed a Brief in Support of the Omnibus Pre-Trial Motion. The Commonwealth submitted [its] Brief in Opposition on October 25, 2011. Shortly thereafter, on November 15, 2011, Appellant filed a pro se Application to Proceed in Forma Pauperis, a Motion to go pro se and a pro se Motion for Change of Custody. These motions were distributed to counsel of record, Brian Perry, Esq., pursuant to Rule 576(A)(4). However, on November 21, 2011, Brian Perry, Esq. filed a Motion to Withdraw as Counsel. Inconsideration of Appellant's October 3, 2011, correspondence, said withdrawal was granted that same day.

* * *

Finally, [after the court's disposition of serial pro se filings], on January 11, 2012, a hearing was held before [the trial court] wherein Appellant's Omnibus Pre-Trial Suppression Motion and his various other pro se Motions were denied. Moreover, pursuant to Appellant's pro se Motion for Speedy Trial, a trial date was set.

[After the court's continued disposition of serial pro se filings], on February 27, 2012, trial was continued and Karl Romminger, Esq., entered his appearance on behalf of Appellant.

A jury trial commenced on May 7, 2012. On May 8, 2012, the jury returned a guilty verdict on all counts. Sentencing was deferred pending a pre-sentence investigation.

Appellant was sentenced on July 25, 2012, [to a three to six year sentence of incarceration for Unlawful Delivery of a Controlled substances; a five to ten year sentence of incarceration for PWID; a one to two year sentence of incarceration for Tampering/Fabricating Physical Evidence; a twelve month sentence of state supervision; and no further sentence for Unlawful Possession of a Small Amount of Marijuana.] Sentences were ordered to run consecutively, plus a fine of $50 and costs imposed on each count.

On August 24, 2010, Appellant filed a direct appeal with the Superior Court of Pennsylvania...The Superior Court affirmed judgment of sentence on or around October 18, 2013.

On February 2, 2014, Appellant filed a pro se [Post-Conviction Relief Act] PCRA [petition]. A counseled amended petitioned followed, which resulted in the PCRA court reinstating Appellant's direct appeal rights nunc pro tunc with the Pennsylvania Superior Court, which, by its order and memorandum of February 19, 2016, rejected Appellant's claim based on the "hot pursuit" exception provided in the Municipal Police Jurisdictional Act (MPJA)* * *

On May 4, 2016, Appellant filed a pro se PCRA [petition] and Memorandum of Law. On May 2, 2016, [the PCRA] court ordered the Commonwealth to respond. Subsequently, [the PCRA court] appointed [PCRA] counsel...as it would be considered [Appellant's] first PCRA [petition].

On February 1, 2017, after numerous extensions of time, counsel filed a Motion to Withdraw which was granted on February 2, 2017. New Counsel, Christopher Wilson, Esq., was simultaneously appointed. After numerous extensions of time, Attorney Wilson's Motion to Withdraw was filed on January 1, 2018. [The PCRA court] granted [counsel's motion on January 22, 2018. Subsequently, the court issued its Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. Roughly two weeks later, on June 13, 2018, Appellant filed a pro se Answer opposing the court's notice of dismissal. On June 27, 2018, after considering Appellant's pro se Answer, the PCRA court dismissed Appellant's petition....

Collins, 2019 WL 1285093, at *1-2 (quoting PCRA Court Opinion, 10/30/18, at 1-4) (alterations in original).

Thereafter, Collins appealed pro se from the order entered by the Court of Common Pleas of Dauphin County dismissing his first PCRA petition. Based on the holding in Alleyne v. United States, 570 U.S. 99 (2013), the Superior Court reversed the order of the PCRA court only with respect to Collins' legality of sentence claim, vacated the judgment of sentence, and remanded for resentencing. All of Collins' other claims were denied on their merits. Collins, 2019 WL 1285093. Thus, Collins filed the instant habeas corpus petition on April 23, 2019. (Doc. 1).

In his petition, Collins raises several grounds for habeas relief. He asserts two claims of trial counsel's ineffectiveness, alleging that trial counsel was ineffective for failing to move to suppress unidentified physical evidence and failing to seek disclosure of the confidential informant's identity. Furthermore, Collins asserts four claims of direct appeal counsel's ineffectiveness, alleging that direct appeal counsel was ineffective for failing to challenge: (1) the sufficiency of the evidence; (2) the weight of the evidence; (3) the shifted burden of proof; and (4) the discretionary aspects of his sentence. Collins then asserts two claims of the trial court's abuse of discretion, alleging that the trial court abused its discretion when it illegally modified his sentence without jurisdiction and when it granted PCRA's counsel motion to withdraw without appointing new counsel.

After review of the petition and the underlying state court records, we find that Collins' claims are without merit, as they have been thoroughly considered by the state courts and denied on their merits. Thus, given the deferential standard of review that applies to habeas petitions like Collins', we will recommend that the court deny Collins' petition.

III. Discussion

A. State Prisoner Habeas Relief-The Legal Standard. (1)Substantive Standards

In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State;

..........

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the

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