Taylor v. Piazza, CIVIL ACTION NO. 07-5211
| Decision Date | 25 May 2012 |
| Docket Number | CIVIL ACTION NO. 07-5211 |
| Parties | ISHMAEL B. TAYLOR, v. SUPERINTENDENT JOSEPH J. PIAZZA, ET AL. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
MEMORANDUM
Presently before the Court are the pro se1 application of Petitioner Ishmael B. Taylor for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Pet., ECF No. 1) and Petitioner's Objections to the Report and Recommendation of Magistrate Judge Elizabeth Hey (ECF No. 26). Also before the Court is Petitioner's Motion to Appoint Counsel and Request an Evidentiary Hearing. (ECF No. 28.) After a de novo review of the record and for the reasons set forth below, the Objections to the Report and Recommendation will be overruled and Petitioner's Petition for a Writ of Habeas Corpus will be denied.
On March 26, 2001, Petitioner entered a plea of guilty to aggravated assault while driving under the influence, in violation of 75 Pa. Cons. Stat. Ann. § 3735.1, and other lesser charges stemming from a February 2000 automobile accident. (Comm. Resp. 1, ECF No. 8.) On May 15, 2001, Petitioner entered pleas of guilty to several counts of forgery, conspiracy to commitforgery, and other lesser charges related to a separate check fraud scheme. (Id. at 2.)2 The automobile offense is a second-degree felony and carries a maximum sentence of ten years. 75 Pa. Cons. Stat. Ann. § 3735.1(a). Forgery is a third-degree felony and carries a maximum sentence of seven years. 18 Pa. Cons. Stat. Ann. § 4101©. Conspiracy is graded at the level of the most serious offense constituting an object of the conspiracy, which in this case was a third-degree felony. 18 Pa. Cons. Stat. Ann. § 905(a). On May 15, 2001, Petitioner was sentenced tofive to ten years in prison on the charge of aggravated assault while driving under the influence, and a total of four to fourteen years' imprisonment on the check fraud and conspiracy charges. (Hr'g Tr. 52, May 5, 2001.) These sentences were to run consecutively to each other for a total term of incarceration of nine to twenty-four years.3 (Id.)
On May 23, 2001, Petitioner filed a motion to withdraw his guilty plea. (Pet. App. 47A-48A.) Petitioner argued that his admission of guilt was not voluntary or intelligent as he was not, prior to pleading, apprised of all of the elements of the offense of aggravated assault while driving under the influence. (Id.) Specifically Petitioner contended that a "plain reading of [75 Pa. Cons. Stat. Ann. § 3735.1] requires a DUI (driving under the influence) conviction as an element of the offense" of aggravated assault while driving under the influence and "since he was not convicted of DUI, any sentence on Aggravated Assault by Vehicle while DUI is illegal." (Pet. App. 51A.) Petitioner also argued that the sentence ultimately imposed was contrary to a plea agreement reached between the parties prior to his entering a plea. He pointed to a letter sent from prosecutor Patrick Barry to Petitioner's trial attorney, William Bispels, as evidence of this agreement. (Id. at 50A.) Petitioner claimed that in deciding whether or not to plead guilty, he relied upon his understanding of this letter, which he interpreted as promising "dockets 2002, 2004, 2005, and 2006/00 would run concurrent with 2003/00"4 so that he would "receiveconcurrent sentences in all cases." (Pet. App. 50A.) Petitioner argued that because he did not receive the benefit of the bargain he believed he was entitled to, he should be allowed to withdraw his guilty plea. (Id.) Finally, Petitioner argued that Judge Jeffrey L. Schmehl failed to provide a contemporaneous written statement describing his reasons for deviating from the sentencing guidelines or using Petitioner's prior convictions as an "aggravating factor" when calculating the sentence. (Id. at 51A-53A.) Petitioner contended that Judge Schmehl's actions violated the precepts laid down by the Superior Court in Commonwealth v. Gause, 659 A.2d 1014 (1995), mandating such an explanation in instances of departure from the Pennsylvania Sentencing Guidelines ("Guidelines"). (Pet. App. 51A-52A.) Petitioner also contended that his sentence was improper, as Judge Schmehl "[gave] weight to the nature of the crimes only," and did not consider other factors such as Petitioner's need for rehabilitation. (Id. at 52A-53A.)
At the hearing on his motion, however, Petitioner conceded that no promises were made prior to his plea as to how the sentences for the automobile accident and the forgery would combine, or whether Petitioner actually would be sentenced within the Guidelines range. (Hr'g Tr. 20-21, July 25, 2001.)5 He also acknowledged that he was aware that he was entering an"open" guilty plea, and that he was "basically throwing [himself] on the mercy of the court." (Id. at 10, 22.) Despite these acknowledgments, Petitioner still contended it was his subjective belief at the time that he would only receive a sentence of three to six years should he enter a guilty plea. (Id. at 12.) Following this hearing, Judge Schmehl denied Petitioner's motion to withdraw his plea and refused to modify the sentence. (Pet. App. 59A.)
Petitioner appealed this decision to the Superior Court. (Id. at 62A-63A.) The Superior Court determined that during the plea colloquy, Petitioner demonstrated sufficient understanding of the charges and the penalties to which he was exposed by pleading guilty. Taylor, No. 1677 MDA, at *4-5.6 The Superior Court also determined that Petitioner had failed to provide a "concise statement of the reasons relied upon for allowance of appeal" in accordance with Pennsylvania Rule of Appellate Procedure § 2119(f). Taylor, No. 1677 MDA 1001, at *6-7. Under Commonwealth v. Tuladziecki, 702 A.2d 1084, 1085 (Pa. Super. Ct. 1997), such a failure bars appeal of the trial court's discretionary sentencing determination. The Superior Courtnevertheless went on to evaluate Petitioner's sentencing claim on the merits and determined that the record indicated that Judge Schmehl clearly followed the applicable rules when deviating from the guidelines. Taylor, No. 1677 MDA 1001, at *7. Accordingly, the Superior Court concluded that the sentence was valid. Id.7
Petitioner next filed a motion in the Pennsylvania Supreme Court requesting the right to appeal the Superior Court's decision. This request was denied on August 13, 2003. (Pet. App. 133A.) Petitioner then filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-55, on September 16, 2003. (Pet. App. 130.) Petitioner's PCRA claim was dismissed on March 3, 2005. (Id. at 158A, 182A.) In dismissing Petitioner's PCRA petition, the Court of Common Pleas stated that all of Petitioner's claims had previously been litigated and were therefore "not cognizable under Post Conviction Relief Act."8 (Id. at 160A.) Petitioner then filed an appeal from the PCRA court's decision. The dismissal was affirmed by the Superior Court on May 30, 2006. (Id. at 208A.) The Pennsylvania Supreme Court denied Petitioner's requests for allowance of appeal on December 28, 2006. (Id. at 216A.)
On November 18, 2007, Petitioner filed a petition in this Court requesting relief under the federal habeas corpus statute, 28 U.S.C. § 2254. (Pet. App. 228A.) Petitioner argued that his due process rights were violated in the following ways: (1) the trial judge failed to fully inform him of all the elements of the offenses to which he was pleading guilty; (2) the trial judge improperly departed from the Guidelines; and (3) his plea was improperly coerced due to prosecutor's failure to abide by the terms of the plea agreement. (Pet. 1-6, 7, 11.) Petitioner also claimed that his attorneys' failure to correct these problems, either at trial or on appeal, amounted to ineffective assistance of counsel. (Id. at 15, 18.)
The case was assigned to Magistrate Judge Elizabeth Hey for a Report and Recommendation. (ECF No. 2.) On September 26, 2008, Magistrate Judge Hey issued a Report and Recommendation ("R&R") recommending that we dismiss the habeas petition. (ECF No. 22.) In the R&R, she found the following: (1) the record indicates that Petitioner was apprised of the nature of the offense, as well as the consequences of a guilty plea, and he did not contest the facts as presented during the colloquy or present additional evidence challenging the plea's legitimacy; (2) Petitioner's plea was considered voluntary and intelligent (R&R 16); (3) the sentence imposed was in keeping with the terms of the plea agreement, and the plea colloquy dispelled any confusion about the terms of that agreement (id. at 18-19); (4) the sentence imposed was not above the statutory maximum for the offense, and therefore the federal courts will not review the trial judge's discretionary sentencing determination (id. at 21-22); (5) Petitioner's counsel during his guilty plea was not ineffective for failing to individually articulate all elements of the offenses or for failing to challenge the plea agreement as stated by the judge (id. at 25); and (6) Petitioner's counsel on direct appeal was not ineffective for not calling Petitioner's trial counsel to testify about his failure to include the elements of theoffenses in the record or object to the judge's articulation of the plea agreement during the colloquy (id. at 25-26). Given these findings, Judge Hey recommended that the habeas petition be denied. (Id.)
Petitioner filed objections to the Report and Recommendation. (Objections, ECF No. 26.) Petitioner articulates five objections: (1) the Magistrate Judge failed to consider the legality of convicting an individual under § 3735.1 when that individual has not been previously convicted under 18 Pa. Cons. Stat. Ann. § 3802 (2007), (Objections 2-6); (2) the Magistrate Judge improperly applied Supreme Court precedent, Henderson v. Morgan, 426 U.S. 637 (1976), in evaluating whether Petitioner's plea was knowing, voluntary, and intelligent ...
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