Lebar v. Thompson, CIVIL NO. 3:CV-08-0072

CourtU.S. District Court — Middle District of Pennsylvania
Writing for the CourtKosik
PartiesDAYTON LEBAR, Petitioner v. BRIAN THOMPSON, Respondent
Decision Date13 May 2013
Docket NumberCIVIL NO. 3:CV-08-0072

DAYTON LEBAR, Petitioner
v.
BRIAN THOMPSON, Respondent

CIVIL NO. 3:CV-08-0072

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Filed: May 13, 2013


(Judge Kosik)

MEMORANDUM

Dayton Lebar, a Pennsylvania state inmate, initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Lebar challenges his criminal conviction by the Monroe County Court of Common Pleas on March 6, 2001, following a guilty plea on charges of Sexual Assault, Endangering the Welfare of Children and Statutory Sexual Assault. For the reasons that follow, the petition will be denied.

I. Background

On March 6, 2001, LeBar pled guilty to three counts charging sexual assault, endangering the welfare of children, and statutory sexual assault, all of which involved sexual relations with his minor daughter, N.L., and another minor female, C.V. On June 13, 2001, LeBar was sentenced to an aggregate term of ten to twenty

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years of incarceration at a state correctional institution. He appealed the sentence on July 13, 2001, claiming that the court deprived him of an individualized sentence and imposed an excessive sentence upon him, however, the Superior Court affirmed Defendant's sentence on March 20, 2002. On December 30, 2002, the Supreme Court of Pennsylvania denied a Petition for Allowance of Appeal.

On August 20, 2003, LeBar filed a pro se Petition for Post-Conviction Relief under the Post Conviction Relief Act (hereinafter referred to as "PCRA"), 42 Pa.C.S.A. § 9531, et seq., raising several claims of ineffective assistance of counsel. After a series of court-appointed counsel withdrew due to conflicts, LeBar's newly appointed counsel (Paul Kramer, Esq.) amended the original PCRA petition on January 21, 2005, to allege that Attorney Brian Germano of the Monroe County Public Defender's Office was ineffective on the grounds that he: (1) exhibited animosity towards LeBar; (2) insufficiently prepared for Defendant's preliminary hearing; (3) failed to investigate and introduce certain statements at sentencing; (4) failed to adequately address his own ineffectiveness and the sentencing court's abuse of discretion to the Pennsylvania Superior Court; and (5) unlawfully induced LeBar to plead guilty. (Amendments to PCRA, 01/21/05, ¶2.) Following an evidentiary hearing where LeBar testified that he agreed to proceed in accordance with the amendments prepared by court-appointed counsel instead of his original PCRA, the PCRA petition was denied. (Doc. 46-7, 6/1/05 Monroe County Ct. Common Pleas

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Op.)

On June 28, 2005, LeBar, through counsel, filed an appeal to the Superior Court of Pennsylvania. However, LeBar then filed a pro se Motion for Withdrawal of Counsel. A hearing was held on July 5, 2005, following which LeBar was granted leave to proceed pro se on his appeal and court-appointed counsel, Paul Kramer, Esq., was relieved of any further representation of LeBar. On December 1, 2006, the Superior Court of Pennsylvania affirmed the Order of the PCRA court denying LeBar's first PCRA petition. (Doc. 46-5, Pa. Super Op.) The Supreme Court of Pennsylvania denied his allowance of appeal by order dated July 2, 2007.

On July 18, 2007, LeBar filed a second PCRA petition asserting claims of ineffective assistance of trial counsel and PCRA counsel, the voluntariness of his plea and various decisions of the PCRA court. The PCRA court found the petition to be patently frivolous, and that a previous petition involving the same issue or issues was filed and finally determined adversely to LeBar. A Notice of Disposition Without Hearing was filed on August 17, 2007. Thereafter, on August 31, 2007 and September 7, 2007, Defendant filed the following three motions: Motion for Court to Specify the Defects in Defendant's Second PCRA Petition; Motion for Extension of Time to Respond to the August 17, 2007 Notice of Disposition Without Hearing; and Motion for Production of Official Court Record.

On October 2, 2007, the PCRA court denied LeBar's motions and advised him

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that he had thirty (30) days to appeal the dismissal of his second PCRA to the Pennsylvania Superior Court. (Doc. 46-6.) Thereafter, LeBar filed four pro se appeals from four orders entered between October 2 and November 1, 2007 in the Court of Common Pleas of Monroe County. LeBar alleged that the court erred by denying : (1) his pro se second PCRA; (2) his motion to compel the trial court clerk of records to provide documents; 3) his motion to reconsider or modify his sentence imposed on June 13, 2001, and (4) his motion to withdraw his guilty pleas. The Superior Court consolidated these appeals for purposes of preparing an opinion. On March 10, 2009, the Superior Court found no basis to exist for disturbing the PCRA court's dismissal of LeBar's second PCRA petition or its denial of LeBar's motions. (Doc. 46-8.)

On appeal to the Superior Court from the second PCRA, LeBar raised thirteen (13) grounds. The Superior Court found that with the possible exception of layered claims of ineffectiveness, LeBar's second PCRA petition rehashed the claims raised and rejected on direct appeal and in his first PCRA petition.1 The Superior Court held that the act of filing a second PCRA petition within 60 days of resolution of the appeal did not "breathe new life" into claims rejected on direct appeal or in the first

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PCRA proceedings, nor did it resurrect claims that could have been presented previously. (Id. at 8.) Any claims asserted in the second PCRA that were known to LeBar before January 21, 2005, but were not raised in the amended petition filed on that date, were deemed to be waived.2 Further, with the possible exception of layered claims of ineffectiveness of counsel, to the extent the claims were not already litigated, they were either found to be untimely or to have been waived and could not be raised successfully in a second PCRA petition.

On January 11, 2008, LeBar filed the instant petition for writ of habeas corpus challenging his conviction and sentence. On January 15, 2008, the petition was stayed to allow LeBar the opportunity to conclude his state court exhaustion efforts, and the case was administratively closed. (Doc. 4.) He thereafter provided the court with monthly reports advising of the status of a second PCRA petition pending before the state courts. On June 10, 2009, the stay was lifted, the case reopened, and an Order with Notice of Limitations of Filing of Future Petitions Under 28 U.S.C. § 2254 issued. (Doc. 21.) Following LeBar's notification that he intended to proceed on his petition as originally filed, he submitted a supporting memorandum. Although

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a response was subsequently filed by Respondent to the petition (Doc. 43), there was delay involved with respect to obtaining from Respondent exhibits referenced in the response but not attached thereto, and the failure of Respondent to submit a memorandum in support of the response as previously directed by the court.3 After these matters were addressed, LeBar filed his traverse. (Doc. 55.) The petition is now before the court for consideration. In the petition, LeBar raises the following grounds:

1. Guilty Plea was not knowingly, intelligently and voluntarily entered
2. Pennsylvania statute 18 Pa.C.S. § 3124.1 Sexual Assault is unconstitutionally vague as it does not define "without consent"
3. Unconstitutional confession
4. Unconstitutional search and seizure
5. Prosecutorial misconduct in providing knowingly false facts at the guilty plea colloquy

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6. Unconstitutional and illegal sentence
7. Ineffective Assistance of Trial/Guilty plea, Sentencing and Direct Appeal counsel (Brian Germano)
8. Ineffectiveness of direct appeal counsel (Michael Muth)

(Doc. 1, Pet. at 6-12.)

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, 498-99 (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; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemever, 117 F.3d 104 (3d Cir. 1997).

A. Legal Standards

Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petition has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. §

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2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

To satisfy the exhaustion requirement, a federal...

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