Sowell v. Kauffman

• Decision Date: 17 January 2019
• Docket Number: Civil No. 3:16-cv-2316
• Parties: MARKALE SOWELL, Petitioner v. KEVIN KAUFFMAN, et al., Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

MARKALE SOWELL, Petitioner
v.
KEVIN KAUFFMAN, et al., Respondents

Civil No. 3:16-cv-2316

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

January 17, 2019

(Judge Mariani)

MEMORANDUM

Petitioner Markale Sowell ("Sowell") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of Lycoming County, Pennsylvania. (Doc. 1). For the reasons discussed below, the Court will deny the petition.

I. Factual Background

The factual background of this case has been aptly summarized by the state court as follows:

On September 26, 2010, at approximately 1:00 p.m. Tamika Moore and some of her female relatives were fighting with some other females, including one or more of [Sowell's] female relatives. The fight broke up and the group of females dispersed. [Sowell], who resided in Harrisburg, came to Williamsport in his aunt's vehicle, arriving in the (late) afternoon . . .

Ms. Moore was in a residence cooking dinner when her son ran into the house and said, "Ma, Aunt Fe is getting jumped." As Ms. Moore went to go outside to see what was going on, she was met at her front screen door by [Sowell], who had a gun in the front of his waistband. [Sowell] pulled a revolver with brown grips from his waistband, pointed it as Ms. Moore's hip

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and said[,] "[b]itch, you are coming to the other side." Ms. Moore took this to mean that [Sowell] wanted her to fight on the side of his wife and relatives, instead of with her relatives, who were now engaged in a second fight. Ms. Moore grabbed her eleven year old son who was standing near her, and slammed the front door shut. She called the police, and then she went outside. She saw [Sowell] leaving in a silver sedan just as a police officer was arriving in the area in an unmarked maroon police vehicle. She recognized the vehicle and began yelling and gesturing to the officer that [Sowell] was leaving in the silver sedan. The officer activated his lights and sirens, but [Sowell] sped off.

[Sowell] took the police on a high speed chase through busy intersections in the City of Williamsport. He ran numerous red lights and stop signs. When he attempted to turn left from Fourth Street onto Campbell Street, [Sowell] lost control of the silver sedan, striking a tree and the Weightman apartment building. Two pedestrians, Emily Moon and Alicia Binado, had to jump out of the way to avoid being hit by the vehicle. Although the vehicle was disabled, [Sowell] continued to flee from the police. He jumped out of the vehicle and ran away on foot. The police yelled for him to stop, but [Sowell] did not. The police chased him on foot, and ultimately apprehended him by utilizing their tasers.

The police received consent from the owner of the vehicle and searched the vehicle. They found a .22 caliber H&R revolver with brown grips wrapped in a gold scarf. The police ran the serial number on the gun and discovered that it had been reported stolen. The police also ran a criminal history check on [Sowell] and discovered that he had a robbery conviction in New Jersey, which made it unlawful for him to possess a firearm and rendered him ineligible to obtain a license to do so.

(Doc. 15-1, pp. 70-71, Commonwealth v. Sowell, No. 832 MDA 2012, No. 845 MDA 2012 (Pa. Super. 2013) (citing Lycoming County Court of Common Pleas 1925(a) Memorandum Opinion, dated Nov. 30, 2012)).

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II. State Court Proceedings¹

On August 3, 2011, a jury convicted Sowell of one count each of fleeing or attempting to elude a police officer, reckless driving, driving without a license, persons not to possess firearms, firearms not to be carried without a license, simple assault, and two counts of recklessly endangering another person. (Doc. 1, p. 1; see also https://ujsportal.pacourts.us, electronic docket number CP-41-CR-0001643-2010). On November 30, 2011, the trial court imposed an aggregate sentence of 8½ to 17 years' imprisonment. (Id.; Doc. 15-1, pp. 10-12, Sentencing Order).²

Sowell pursued direct appeal proceedings. (Doc. 1, p. 2; see also https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx, electronic docket number 845 MDA 2012). On November 26, 2013, the Pennsylvania Superior Court affirmed the judgment of sentence. (Id.). Sowell filed a petition for allowance of appeal to the Pennsylvania Supreme Court. See https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx, electronic docket number 146 MAL 2014. On July 30, 2014, the Pennsylvania Supreme Court denied the petition for

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allowance of appeal. Commonwealth v. Sowell, 91 A.3d 1296 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 96 A.3d 1027 (Pa. 2014). Sowell did not seek a writ of certiorari from the United States Supreme Court, therefore his judgment of sentence became final ninety days later on October 28, 2014. See 42 PA. CONS. STAT. § 9545.

On September 29, 2014, Sowell filed a timely pro se petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (Doc. 15-1, pp. 86-115, PCRA Petition; see also https://ujsportal.pacourts.us, electronic docket number CP-41-CR-0001643-2010). The PCRA court appointed counsel, who subsequently filed a petition to withdraw as counsel and a "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). (Doc. 15-1, pp. 116-132). The PCRA court granted counsel's motion to withdraw and granted Sowell's request to proceed pro se. (Id. at p. 133). On August 4, 2015, the PCRA court entered an order notifying Sowell of its intention to dismiss his PCRA petition without a hearing under Pennsylvania Rule of Criminal Procedure 907. (Id. at pp. 134-143). Sowell filed a timely pro se response. (Id. at pp. 144-48). On September 9, 2015, the PCRA court denied the PCRA petition. (Id. at pp. 149-55). On September 18, 2015, Sowell filed a timely pro se notice of appeal. (Id. at pp. 156-57).

On appeal, Sowell raised the following three issues:

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I. Whether the trial court erred when it sentenced [Sowell] to a term of 18 to 36 months['] incarceration for a second offense [of] fleeing and eluding, specifically where [Sowell] has previously been convicted of fleeing and eluding[,] is it not against the statue [sic] to sentence [Sowell] to more than 6 months?

II. Whether it was error to sentence [Sowell] on the charge of [recklessly endangering another person], when specifically the alleged victims of this charge failed to appear and have never appeared to be cross[-]examined and have their testimony entered, thereby convicting [Sowell] on mere hearsay testimony?

III. Whether the [trial] court committed error when it held [sic] the verdict for the charges of [recklessly endangering another person] where one of the essential elements was not met, specifically the element of fear of death or bodily injury, as neither of the victims ever appeared at any of the proceedings and were otherwise available to do so?

Commonwealth v. Sowell, 2016 WL 4723850, at *1 (Pa. Super. 2016).

On June 29, 2016, the Pennsylvania Superior Court affirmed the PCRA court's September 9, 2015 order. Id. Sowell did not file a file a petition for allowance of appeal to the Pennsylvania Supreme Court.

III. Standards of Review

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A habeas corpus petition pursuant to § 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, 93 S.Ct. 1827, 36 L.Ed.2d 439

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(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, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (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 68.

A. Exhaustion

Habeas corpus 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. § 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).

A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).³ Respect for the state court system requires that the

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petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To "fairly present" a claim, a petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the...