Dubrock v. Superintendent of Sci Somerset

• Docket Number: Civil Action 2: 21-cv-0432
• Decision Date: 18 November 2022
• Parties: JAMES MICHAEL DUBROCK, Petitioner, v. SUPERINTENDENT of SCI SOMERSET, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, AND DISTRICT ATTORNEY OF JEFFERSON COUNTY, COUNTY, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

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JAMES MICHAEL DUBROCK, Petitioner, v. SUPERINTENDENT of SCI SOMERSET, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, AND DISTRICT ATTORNEY OF JEFFERSON COUNTY, COUNTY, Respondents.

Civil Action No. 2: 21-cv-0432

United States District Court, W.D. Pennsylvania

November 18, 2022

Robert J. Colville United States District Judge

REPORT AND RECOMMENDATION ^[1]

Cynthia Reed Eddy United States Magistrate Judge

I. RECOMMENDATION

Petitioner James Michael Dubrock (Dubrock) is a state prisoner in the custody of the Pennsylvania Department of Corrections and currently confined at the State Correctional Institution at Somerset, in Somerset, Pennsylvania. Through counsel, he has filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging the judgment of sentence imposed on him on October 19, 2016, in the Court of Common Pleas of Jefferson County, Pennsylvania, at Criminal Docket No. CP-02-CR-0015978-2012. For the reasons below, it is recommended that the Petition be denied and a certificate of appealability as to each claim be denied.

II. REPORT

A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Dubrock's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a); see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (which is discussed below). But, ultimately, Dubrock cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.

B. Relevant and Procedural Background^[2]

“The Commonwealth initially charged [Dubrock] with eighty offenses .... On October 11, 2016, [Dubrock] entered a plea of nolo contendere to six counts of arson” in violation of 18 Pa.C.S.A § 3301(a)(1)(i). The plea was entered pursuant to a plea agreement. The Superior Court of Pennsylvania recounted the background of this case in its decision affirming the judgment of sentence:

On February 20, 2016, a fire was set at the residence of Jason and Kayla Little which they shared with four minor children.^[3]Responding officers located a vehicle registered to [Dubrock] in the general area of the Little residence. [Dubrock] was flown for emergency treatment. A gasoline container was located nearby after emergency personnel followed a set of footsteps from the wrecked vehicle up an embankment. Law enforcement recovered [Dubrock's] clothing and noted an odor of gasoline. Video surveillance from the Little residence showed a male came to the residence at approximately 1:00 AM. A few minutes later a bright light is seen as a fire began burning on the porch. The male is seen running from the residence to a nearby vehicle with a gasoline can in his hand. The clothing worn by the individual was consistent with the clothing recovered from [Dubrock] at the hospital. In addition to the residents of the home[,] fifteen firefighters responded to extinguish the fire. No one was injured, but the residence sustained fire damage.

Commonwealth v. Dubrock, No. 1906 WDA 2016, slip op. (Super. Ct. Oct. 31, 2018) (quoting Appellant's Brief at 7-8 (ECF No. 10-2 at pp. 1-2). On October 11, 2016, Dubrock appeared before the Honorable John H. Foradora, President Judge, and entered a plea of nolo contendere. He was represented by Attorney Michael J. Antkowiak. On October 19, 2016, Judge Foradora, pursuant to the terms of the plea agreement, imposed a sentence of 3-20 years on each count of conviction for an aggregate sentence of 18 to 120 years, with credit for time served.

Dubrock, through new counsel, Attorney Patrick K. Nightingale, filed a direct appeal in which he raised a challenge to the discretionary aspect of his sentence. The Superior Court of Pennsylvania denied the claim on its merits and affirmed the judgment of sentence, specifically finding that the trial court did not abuse its discretion by imposing consecutive sentences for each of his six counts of arson and finding that the sentence entered was pursuant to the plea agreement. Dubrock did not seek further review.

After his direct appeal concluded, Dubrock filed a timely pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (PCRA). (ECF No. 10-3). The trial court, now the PCRA court, appointed Attorney George N. Dagnir to represent Dubrock during the PCRA proceedings. Attorney Dagnir filed a no-merit letter and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). (ECF No. 1-10). In the no-merit letter, Attorney Dagnir addressed each of the six issues raised by Dubrock in his pro se PCRA petition and found each to be without merit:

1. That his no contest plea was involuntary as it was coerced;

2. That imposition of multiple consecutive sentences for one act of arson was illegal as these six sentences should have been merged;

3. That appellate counsel was ineffective for failing to raise the issue of the court entering six consecutive sentences for one act of arson when the court should have merged the sentences;

4. That his actions did not meet the elements of the crime of arson as said crime requires injury to the victims;

5. Trial counsel failed to consult with and advise defendant of his appellate rights subsequent to sentencing; and

6. Trial counsel did not sufficiently investigate the facts of the case.

No Merit Letter at p. 5 (ECF No. 10-10 at p. 9). The PCRA court granted Attorney Dagnir's request to withdraw and issued a notice of intent to dismiss the PCRA petition, to which Dubrock filed a pro se response in opposition. Thereafter, the PCRA court denied Dubrock's PCRA petition. (ECF No. 10-17, at p. 403). Dubrock, pro se, filed an appeal to the Superior Court. The Superior Court noted that Dubrock's brief “provides a rambling and, at times repetitive set of issues” but “essentially Dubrock claims in his Rule 1925(b) statement that plea counsel's failure to investigate the case and file appropriate pre-trial motions caused him to enter a nolo contendere plea that was ‘un-intelligent, coerced, and under threat'.” Commonwealth v. Dubrock, No. 822 WDA 2019 (Pa. Super. Ct. 2020) (unpublished). (ECF No. 10-4, at p. 4). The Superior Court denied the claim on its merits and affirmed the PCRA court's denial of the PCRA Petition. The Supreme Court of Pennsylvania denied Dubrock's petition for allowance of appeal. Commonwealth v. Dubrock, No. 120 WAL 2020 (Pa. 2020) (ECF No. 10-9). Dubrock sought no further review.

Having been denied relief in state court, Dubrock filed the instant counseled federal habeas petition in which he raises four claims: two ineffective assistance of counsel claims and two due process claims. Respondents filed an Answer (ECF No. 10), to which Dubrock filed a counseled reply brief. (ECF No. 11). The undersigned has reviewed the filings of the parties, as well as the electronically filed state court record, including the transcripts from Dubrock's plea hearing (ECF No. 10-14) and sentencing proceeding (ECF No. 10-15), the appellate briefs filed by the parties with the Superior Court of Pennsylvania,^[4] and the Memorandums of the Superior Court of Pennsylvania filed October 31, 2018 (ECF No. 10-2), and March 30, 2020. (ECF No. 10-4). The matter is fully briefed and ripe for disposition.

C. The Standard for Habeas Relief Under 28 U.S.C. § 2254

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by AEDPA, “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).

A finding of fact made by a state court, including credibility determinations, always has been afforded considerable deference in a federal habeas proceeding. Vickers, 858 F.3d at 850 (even in pre-AEDPA cases, “ ‘federal habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been observed by the state trial court, but not by them' ”) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.

AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the state courts^[5]and it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:

was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of

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