Preik v. Dist. Attorney of Allegheny Cnty., Civil Action No. 10 - 1612

• Decision Date: 12 August 2011
• Docket Number: Civil Action No. 10 - 1612
• Parties: DONALD PREIK, Petitioner, v. DISTRICT ATTORNEY OF ALLEGHENY COUNTY; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

DONALD PREIK, Petitioner,

v.DISTRICT ATTORNEY OF ALLEGHENY COUNTY; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 10 - 1612

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: August 12, 2011

Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION AND ORDER

II. REPORT

Petitioner, Donald Preik, a state prisoner incarcerated at the State Correctional Institution at Forest, located in Marienville, Pennsylvania has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be denied.

A. Relevant Factual and Procedural History

The facts of the crimes as set forth by the Superior Court are as follows:

The facts and procedural history underlying this appeal were sufficiently set forth by the trial court in its opinion, which we here recite:

The defendant was charged with a total of sixty one (61) counts of the following offenses: involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, invasion of privacy, [and] violation of the Controlled Substance Drug, Device and Cosmetic Act: Possession of a controlled substance. The charges arose out of the defendant's repeated drugging of his girlfriend and several of her female relatives, including her mother and sisters, writing obscene phrases into their bodies, inserting various items into their bodies, and thenphotographing them.¹ On August 15, 2005, the defendant appeared before the court and, in exchange for dismissal of the remaining counts, entered a plea of guilty to the top counts of each information. Specifically, he entered pleas of guilty to three counts of involuntary deviate sexual intercourse, one count of aggravated indecent assault, two counts of indecent assault, one count of invasion of privacy, and three counts of possession of a controlled substance. An assessment by the Sexual Offenders Assessment Board was ordered and conducted and preliminary testimony heard on November 17, 2005. The conclusion of the SVP hearing was held on June 7, and 8, 2006, at which time the court found that the defendant was a "sexually violent predator" within the meaning of the Registration of Sexual Offenders Statute, 42 Pa. Cons. Stat. 9791, et seq. The defendant was subsequently sentenced to three (3) consecutive terms of imprisonment of six (6) to twenty (20) years at each of the IDSI counts, and consecutive terms of imprisonment of one (1) to two (2) years at each indecent assault count, for a total term of imprisonment of twenty (20) to sixty-four (64) years.

Following the imposition of sentence, the defendant filed a motion to withdraw his guilty plea and a motion to modify his sentence. Following a hearing on June 28, 2006, those motions were denied. This appeal followed.

ECF No. 22-7, pp. 23-24.

A timely notice of appeal to the Superior Court of Pennsylvania was filed on July 25, 2006, raising the following two claims.

1. The Trial Court failed to adhere to sentencing requirements and imposed an unreasonable, manifestly excessive and grossly disproportionate sentence; and2. The Commonwealth failed to meet its burden to prove by clear and convincing evidence that Petitioner is a sexually violent predator.

The trial court filed its opinion on December 4, 2006 (ECF No. 22-4, pp. 39-44). The Superior Court subsequently issued a Memorandum Opinion affirming Petitioner's judgment of sentence on November 18, 2007 (ECF No. 22-7, pp. 23-37). Thereafter, Petitioner filed a Petition for Allowance of Appeal (PAA) (ECF No. 23-1), which was denied by the Supreme Court of Pennsylvania on May 9, 2008 (ECF No. 23-3, p. 21).

On June 30, 2008, Petitioner filed a pro se petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §9541, et seq. Appointed counsel filed an Amended PCRA Petition on November 5, 2008, raising the following claim.

Defendant's plea was involuntary since he only pled guilty due to trial counsel's assurances that there was a plea agreement reached between himself and A.D.A. Scheid for a sentence of 5-78 years imprisonment. Defendant was instead sentenced to 20-64 years imprisonment, and if he had known that there was no plea agreement regarding his sentence he would have proceeded to a jury trial. Hence, trial counsel was ineffective for promising defendant that he would be sentenced to 5-78 years imprisonment pursuant to a plea agreement.

The PCRA court dismissed the petition on December 12, 2008. Petitioner filed a timely appeal and the PCRA court filed its Opinion denying relief on June 2, 2009 (ECF No. 23-5, pp. 5-9). On October 23, 2009, the Superior Court affirmed the PCRA Court's dismissal (ECF No. 23-6, pp. 17-19). The Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal on September 7, 2010.

On October 6, 2010, Petitioner filed a second pro se PCRA petition, raising the following claims.

1. Review should be granted to determine if trial counsel was ineffective as counsel for failing to file a motion to suppress challenging the admissibility of his confession to police, which was obtained in violation of his constitutional rights.

2. Review should be granted to determine if trial counsel was ineffective for failing to properly investigate and interview the prosecution's witnesses and conduct meaningful pre-trial investigation.

3. Review should be granted to determine if trial counsel was ineffective for failing to file a motion challenging a 2002 change to the statute of limitations for various sex offenses as a violation of the Ex Post Facto clause.

4. Review should be granted to determine if the Defendant's constitutional rights were violated when the Defendant was deemed to be a sexually violent predator under Pennsylvania's Megan's Law.

5. Review should be granted to determine if trial counsel was ineffective for failing to object, or raise a timely appeal, to the Defendant being sentenced with a mandatory minimum.

6. Review should be granted to determine if the petitioner's sentence is inappropriate under the Sentencing Code and thus violates the Constitution or laws of the Pennsylvania or the Constitution of the United States.

7. Review should be granted to determine if trial counsel was ineffective for failing to investigate the petitioner's history of mental illness.

8. Review should be granted to determine if the Defendant was prejudiced by trial court error by being charged and found guilty of multiple offenses of sexual assault for the same criminal act.

9. Review should be granted to determine if the Defendant was convicted of a crime where there was no evidence to support such a conviction.

10. Review should be granted to determine if PCRA counsel was ineffective for failing to raise claims that Defendant wished to have raised in his first PCRA petition.

The PCRA court denied the petition on November 29, 2010, noting that all of the claims raised therein were untimely and lacked merit (ECF No. 29-1, pp. 1-2). Petitioner voluntarily withdrew his second PCRA Petition on December 7, 2010 (ECF No. 29-1, pp. 3-4).

December 3, 2010, the petitioner filed a pro se Petition for Writ of Habeas in this Court. The Commonwealth filed a Motion for Clarification on January 4, 2011, and Petitioner filed an amended petition on January 24, 2011 raising the following claims.

1. The petitioner's Fifth, Eighth and Fourteenth Amendment rights to Due Process and not to undergo cruel and unusual punishment were violated when the court abused its discretion by imposing a clearly unreasonable and manifestly excessive sentence.

2. The petitioner's Fifth and Fourteenth Amendment rights to due process were violated when the trial court imposed the requirements of Megan's Law on the petitioner as a sexually violent predator.

3. The petitioner's constitutional rights—under Article I, Section 9, Clause 3 and Article I, Section 10, Clause 1 and the Fifth, Sixth and Fourteenth Amendments—were violated due to a change in the statute of limitations after the crimes had been committed.

4. The petitioner's Fifth, Sixth and Fourteenth Amendment rights were violated by counsel's failure to file a motion to suppress statement when the petitioner was not given his Miranda rights or waived them.

5. The Defendant's Fifth and Fourteenth Amendment rights were violated when the Sexually Violent Predator Assessment Board submitted its written report more than 90 days after the petitioner entered his guilty plea.

6. The petitioner's Fifth, Sixth and Fourteenth Amendment rights were violated when trial counsel did not file a timely motion to withdraw the petitioner's plea.

7. The petitioner's Eighth Amendment rights were violated by the harshness of the sentence.

8. PCRA counsel was ineffective for failing to raise grounds that had merit that the petitioner wished to have addressed in his PCRA petition.

B. Standards Governing Federal Habeas Corpus Review

1. Exhaustion Requirement

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court and highest court before exhaustion will be considered satisfied. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Petitioner has the burden of establishing that exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987)...