Ingram v. Sauers, 1:12-cv-1900

• Decision Date: 10 April 2015
• Docket Number: 1:12-cv-1900
• Court: U.S. District Court — Middle District of Pennsylvania
• Parties: KAI INGRAM, Petitioner, v. DEBRA SAUERS, et al., Respondents.

KAI INGRAM, Petitioner, v. DEBRA SAUERS, et al., Respondents.

1:12-cv-1900

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

April 10, 2015

Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner, Kai Ingram, an inmate currently confined at the State Correctional Institution in Dallas, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Ingram challenges his 2007 conviction imposed by the Luzerne County Court of Common Pleas for multiple charges of aggravated assault and firearms offenses. (Id.). For the reasons that follow, the habeas petition will be denied.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The following factual and procedural background has been extracted from the Pennsylvania Superior Court's November 10, 2010 Memorandum Opinionremanding the case to the PCRA¹ court for further proceedings.²

The charges giving rise to Ingram's convictions arose out of the May 14, 2006 shooting of two people in Luzerne County, Pennsylvania. At trial, Ingram was positively identified as the shooter by both victims and three eyewitnesses. The Commonwealth also presented physical evidence tying Ingram to the shooting. At the close of trial on May 2, 2007, the jury found Ingram guilty of four counts of aggravated assault and one count of firearms not to be carried without a license. At the close of trial, the court also granted defense counsel's request to sever the charge of persons not to possess firearms. 18 Pa.C.S.A. § 6105. On June 11, 2007, the court sentenced Ingram to 12½ to 25 years' imprisonment. The Commonwealth proceeded to trial on the charge of persons not to possess firearms on September 6, 2007, after which the jury found Ingram guilty. On that day, the court sentenced Ingram to 4 to 8 years' imprisonment to be served consecutively to his June 11, 2007 sentence.

On February 20, 2008, this Court affirmed Ingram's judgment of sentence. See Commonwealth v. Ingram, No. 1155 MDA 2007 (Pa. Super. filed February 20, 2008) (unpublished memorandum). On March 24, 2008, Ingram filed a pro se PCRA petition. By order dated April 1, 2008, Attorney Paul Galante was appointed as PCRA counsel. Attorney Galante filed a brief in support of Ingram's PCRA petition. The court held a hearing on August 27, 2008, at which Attorney Galante cross-examined each of Ingram's four previous attorneys regarding their respective representation in this case. The PCRA court subsequently denied Ingram's petition.

On September 24, 2008, Ingram filed a pro se notice of appeal from the court's denial of PCRA relief and a pro se motion for change of appointed counsel, wherein Ingram expressed his dissatisfaction with Attorney Galante and requested that the court appoint him new counsel. By order dated October 6, 2008, the court directed Ingram to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The order did not address Ingram's request for new counsel. The order was sent to the district attorney's office and Attorney Galante. Attorney Galante, however, never filed a Rule 1925(b) statement in response to the court's order and never petitioned the court for leave to withdraw as counsel. On October 24, 2008, Ingram filed a pro se Rule 1925(b) statement that consisted of 32 paragraphs. By order dated April 6, 2009, the court filed its Rule 1925(a) opinion, which thoroughly disposed of the issues presented. On collateral appeal, Ingram, still acting pro se, raises the following issues:

1. Did pretrial and trial counsel render ineffective assistance of counsel when they failed to challenge the illegal arrest of [Ingram] and seek suppression of all items seized as they were tainted fruits of [Ingram's] illegal arrest; and was PCRA counsel ineffective for failing to raise pretrial and trial counsel's ineffectiveness with regard to this matter during the course of the [Ingram's] PCRA proceedings?

2. Did pretrial and trial counsel render ineffective assistance of counsel when they failed to move for suppression of items seized after an illegal search and seizure of the van in [Ingram's]; and was PCRA counsel ineffective for failing to properly raise and brief this issue during the course of [Ingram's] PCRA proceedings?

3. Did pretrial and trial counsel render ineffective assistance of counsel when they failed to move for suppression of the in-court identification made by Commonwealth witnesses; and was PCRA counselineffective for failing to raise and brief this issue during the course of [Ingram's] PCRA proceedings?

4. Did trial counsel render ineffective assistance of counsel when he failed to object to or correct perjured testimony offered by a Commonwealth witness at trial and did the district attorney commit prosecutorial misconduct when he failed to correct perjured testimony and used said testimony to obtain a conviction against [Ingram]; and was PCRA counsel ineffective for failing to raise this issue during the course of [Ingram's] PCRA proceedings?

5. Did trial counsel render ineffective assistance of counsel when he failed to cross-examine a Commonwealth witness as to pending criminal charges; and was PCRA counsel ineffective for failing to properly raise, brief and develop an adequate record pertaining to this issue?

6. Did trial counsel render ineffective assistance of counsel when he failed to cross-examine two Commonwealth witnesses concerning their possible intoxication at the time these victims were shot; and was PCRA counsel ineffective for failing to properly raise, brief and develop this issue pertaining to trial counsel's ineffectiveness during the course of [Ingram's] PCRA proceedings?

7. Did pretrial and trial counsel render ineffective assistance of counsel when they failed to challenge a violation of the Pennsylvania Rules of Criminal Procedure Rule 209(A); and was PCRA counsel ineffective for failing to properly raise, brief and develop an adequate record pertaining to this issue during the course of [Ingram's] PCRAproceedings?

8. Did post-trial counsel render ineffective assistance of counsel when he failed to object to the use of [Ingram's] prior New Jersey Adjudication for third[-]degree murder; and was PCRA counsel ineffective when he failed to raise post-trial counsel's ineffectiveness during the course of the conviction against [Ingram]; and was PCRA counsel ineffective for failing to raise this issue during the course of [Ingram's] PCRA proceedings?

Appellant's Brief, at 4-5.

...

In this case, after the court denied Ingram's first pro se PCRA petition, Ingram filed a pro se notice of appeal and a pro se motion requesting that Attorney Galante be removed as counsel and that new counsel be appointed. The PCRA court never addressed this request; rather, the court directed Ingram to file a Rule 1925(b) statement. The order was sent to Attorney Galante, but Attorney Galante never filed a Rule 1925(b) statement or petitioned to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

Accordingly, we are constrained to remand this case to the Honorable Thomas F. Burke, President Judge of the Court of Common Pleas of Luzerne County....

Upon remand, a new order directing the filing of a Rule 1925(b) statement will be entered, so that Ingram will have the benefit of counsel in framing his issues. Indeed, this is the stage in the criminal proceedings where it is apparent from the record that Attorney Galante ended his representation of Ingram by failing to file [a] Rule 1925(b) statement, doing so, however, without having properly petitioned to withdraw as counsel.

Additionally, upon remand, the court should either direct Attorney Galante to resume his representation of Ingram or appoint new counsel. [Commonwealth v. Quail, 729 A.2d 571, 573 (Pa. Super. 1999)]. Should the former option be taken, Attorney Galante would have two options: (1) consult with Ingram and file a Rule 1925(b) statement and advocate's brief; or (2) petition the PCRA court, pursuant to Turner/Finley, for leave to withdraw as counsel prior to the filing of a Rule 1925(b) statement. The PCRA court would then have to determine whether to grant counsel's request and, if needed, appoint new counsel. [fn] If new issues are put forward by Attorney Galante or newly-appointed counsel, in the ensuing counseled Rule 1925(b) statement compared to the original pro se Rule 1925(b) statement, the PCRA court shall draft a supplemental opinion addressing such matter.

[fn] Newly-appointed counsel, if necessary, would also be permitted to petition the PCRA court, pursuant to Turner/Finley, for leave to withdraw as counsel prior to the filing of a Rule 1925(b) statement. Moreover, Ingram may express his desire to waive his right to counsel and to proceed pro se, at which point an on-the-record colloquy must be held to assure the waiver is knowing, intelligent, and voluntary. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998); Commonwealth v. Robinson, 970 A.2d 455 (Pa. Super. 2009) (en banc). If, after a proper Grazier hearing is conducted, the court determines that Ingram does not want counsel, the court may simply return this case, including the Grazier hearing transcript, to this Court within 15-days of the order granting Ingram pro se status.

(Doc. 47, pp. 2-8) (Pennsylvania Superior Court Memorandum Opinion dated November 10, 2010) (some footnotes omitted).

On remand, the PCRA court held a full Grazier hearing on December 30, 2010, wherein Ingram waived his right to counsel regarding his appellate rights.Commonwealth of Pennsylvania v. Ingram, No. CP-40-CR-0002633-2006 (Luzerne County Court of Common Pleas filed June 15, 2006); (Doc. 49, p. 155). The PCRA court therefore issued an order on December 30, 2010, granting Ingram pro se status and granting Attorney Galante's motion to withdraw as counsel. (Doc. 49, pp. 154-55). The record was...