Opinion
Civil No. 3:19-cv-690
04-27-2021
JOHNNY COLLINS Petitioner, v. THERESA DELBALSO, et al., Respondents.
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Introduction
Pending before the court is a petition for writ of habeas corpus filed by the petitioner, Johnny Collins. Collins was convicted in 2012 in the Court of Common Pleas of Dauphin County, Pennsylvania of drug trafficking and related crimes and is currently serving a sentence of nine to eighteen years in prison. Collins now seeks relief in the form of this habeas corpus petition, in which he raises several claims alleging ineffective assistance of trial and appellate counsel as well as trial court errors.
After review of the record, we find that Collins' claims are without merit. Accordingly, for the reasons set forth below, we will recommend that his petition be denied. II. Statement of Facts and of the Case
The factual background to this Report and Recommendation has been taken from the state appellate briefs (Docs. 8-4 and 8-5) and the Superior Court Opinion, Commonwealth v. Collins, 2019 WL 1285093 (Pa. Super. Ct. Mar. 19, 2019).
The charges brought against Collins in the Dauphin County Court of Common Pleas arose from the following factual scenario.
On September 16, 2010 Detective Cory Dickerson with the Dauphin County Drug Task Force conducted a controlled buy at the Paxton Street Pub with a confidential informant (CI), in which the CI purchased cocaine from Collins in exchange for $170. Detective Dickerson was present when the hand-to-hand transaction took place, wrote up a report, and provided all the information regarding the completed sale. In addition, Detective Dickerson provided a signed photograph of Collins indicating this was in fact the person who sold the cocaine to the CI. Detective Dickerson relayed this information to Detective Jason Paul of the Harrisburg City Police Department. Specifically, Detective Dickerson informed Detective Paul that Collins had sold cocaine to Detective Dickerson's CI.
One month later, Detective Paul received additional information from a CI regarding the whereabouts of Collins. The CI indicated they saw Collins with cocaine and a weapon inside of a gold Oldsmobile car. Detective Paul attempted to locate the gold Oldsmobile described by the CI, and he observed the car two times before meeting with Officer Tyron Meik of the Harrisburg City Police Department. Detective Paul informed Officer Meik of the September 16, 2010 controlled buy between Collins and the CI and provided information regarding the gold Oldsmobile in which Collins was spotted.
Subsequently, Officer Meik and Detective Paul were looking for Collins to arrest him for the drug sale on September 16, 2010. The vehicle was spotted on October 19, 2010, and authorities initiated a traffic stop and subsequently arrested Collins for his alleged unlawful delivery of a controlled substance based on the September 16, 2010 controlled buy. A search of his person incident to the arrest revealed contraband supporting additional charges, including one count of possession with the intent to deliver a controlled substance.
The lengthy procedural history of Collins' case was aptly summarized by the Pennsylvania Superior Court in its decision on Collins' appeal of the denial of his post-conviction relief petition:
Appellant, through the assistance of Brian Perry, Esq., filed an Omnibus Pre-[T]rial Motion on August 2, 2011. On September 20, 2011, a Pre-[T]rial Suppression Hearing was held before [the trial court]. Thereafter, the parties were ordered to submit briefs. On October 3, 2011, Appellant informed the trial court through pro se correspondence that he wanted to fire his private counsel of record. On October 14, 2011, Brian Perry, Esq. filed a Brief in Support of the Omnibus Pre-Trial Motion. The Commonwealth submitted [its] Brief in Opposition on October 25, 2011. Shortly thereafter, on November 15, 2011, Appellant filed a pro se Application to Proceed in Forma Pauperis, a Motion to go pro se and a pro se Motion for Change of Custody. These motions were distributed to counsel of record, Brian Perry, Esq., pursuant to Rule 576(A)(4). However, on November 21, 2011, Brian Perry, Esq. filed a Motion to Withdraw as Counsel. In
consideration of Appellant's October 3, 2011, correspondence, said withdrawal was granted that same day.
* * *
Finally, [after the court's disposition of serial pro se filings], on January 11, 2012, a hearing was held before [the trial court] wherein Appellant's Omnibus Pre-Trial Suppression Motion and his various other pro se Motions were denied. Moreover, pursuant to Appellant's pro se Motion for Speedy Trial, a trial date was set.
[After the court's continued disposition of serial pro se filings], on February 27, 2012, trial was continued and Karl Romminger, Esq., entered his appearance on behalf of Appellant.
A jury trial commenced on May 7, 2012. On May 8, 2012, the jury returned a guilty verdict on all counts. Sentencing was deferred pending a pre-sentence investigation.
Appellant was sentenced on July 25, 2012, [to a three to six year sentence of incarceration for Unlawful Delivery of a Controlled substances; a five to ten year sentence of incarceration for PWID; a one to two year sentence of incarceration for Tampering/Fabricating Physical Evidence; a twelve month sentence of state supervision; and no further sentence for Unlawful Possession of a Small Amount of Marijuana.] Sentences were ordered to run consecutively, plus a fine of $50 and costs imposed on each count.
On August 24, 2010, Appellant filed a direct appeal with the Superior Court of Pennsylvania...The Superior Court affirmed judgment of sentence on or around October 18, 2013.
On February 2, 2014, Appellant filed a pro se [Post-Conviction Relief Act] PCRA [petition]. A counseled amended petitioned followed, which resulted in the PCRA court reinstating Appellant's direct appeal rights nunc pro tunc with the Pennsylvania Superior Court, which, by its order and memorandum of February 19, 2016, rejected Appellant's claim based on the "hot pursuit" exception provided in the Municipal Police Jurisdictional Act (MPJA)
* * *Collins, 2019 WL 1285093, at *1-2 (quoting PCRA Court Opinion, 10/30/18, at 1-4) (alterations in original).
On May 4, 2016, Appellant filed a pro se PCRA [petition] and Memorandum of Law. On May 2, 2016, [the PCRA] court ordered the Commonwealth to respond. Subsequently, [the PCRA court] appointed [PCRA] counsel...as it would be considered [Appellant's] first PCRA [petition].
On February 1, 2017, after numerous extensions of time, counsel filed a Motion to Withdraw which was granted on February 2, 2017. New Counsel, Christopher Wilson, Esq., was simultaneously appointed. After numerous extensions of time, Attorney Wilson's Motion to Withdraw was filed on January 1, 2018. [The PCRA court] granted [counsel's motion on January 22, 2018. Subsequently, the court issued its Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907. Roughly two weeks later, on June 13, 2018, Appellant filed a pro se Answer opposing the court's notice of dismissal. On June 27, 2018, after considering Appellant's pro se Answer, the PCRA court dismissed Appellant's petition....
Thereafter, Collins appealed pro se from the order entered by the Court of Common Pleas of Dauphin County dismissing his first PCRA petition. Based on the holding in Alleyne v. United States, 570 U.S. 99 (2013), the Superior Court reversed the order of the PCRA court only with respect to Collins' legality of sentence claim, vacated the judgment of sentence, and remanded for resentencing. All of Collins' other claims were denied on their merits. Collins, 2019 WL 1285093. Thus, Collins filed the instant habeas corpus petition on April 23, 2019. (Doc. 1).
In his petition, Collins raises several grounds for habeas relief. He asserts two claims of trial counsel's ineffectiveness, alleging that trial counsel was ineffective for failing to move to suppress unidentified physical evidence and failing to seek disclosure of the confidential informant's identity. Furthermore, Collins asserts four claims of direct appeal counsel's ineffectiveness, alleging that direct appeal counsel was ineffective for failing to challenge: (1) the sufficiency of the evidence; (2) the weight of the evidence; (3) the shifted burden of proof; and (4) the discretionary aspects of his sentence. Collins then asserts two claims of the trial court's abuse of discretion, alleging that the trial court abused its discretion when it illegally modified his sentence without jurisdiction and when it granted PCRA's counsel motion to withdraw without appointing new counsel.
After review of the petition and the underlying state court records, we find that Collins' claims are without merit, as they have been thoroughly considered by the state courts and denied on their merits. Thus, given the deferential standard of review that applies to habeas petitions like Collins', we will recommend that the court deny Collins' petition.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1)Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) and (b).
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;
..........
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2) Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) "contrary to" or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(l); or (2) was "based upon an unreasonable determination of the facts," see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever "[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact." Rolan, 445 F.3d at 681.
(3) Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to "establish first that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors "so serious" that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment "[t]here is a 'strong presumption' that counsel's performance was reasonable." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also "must demonstrate that he was prejudiced by counsel's errors." Id. This prejudice requirement compels the petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. "Furthermore, in considering whether a petitioner suffered prejudice, '[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir.2000) ("[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not 'contrary to' established Supreme Court precedent"). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an "unreasonable application" of Strickland. Billinger v. Cameron, 2010 U.S. Dist. LEXIS 63759, at *11, 2010 WL 2632286 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision "cannot reasonably be justified under existing Supreme Court precedent." Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, "the state court's decision must be shown to be not only erroneous, but objectively unreasonable.") (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is "doubly deferential when it is conducted through the lens of federal habeas"). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688, 104 S. Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689, 104 S. Ct. 2052. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id., at 690, 104 S. Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. The presumption can be rebutted by showing "that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
(4) Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Remedies
State prisoners seeking relief under section 2254 must also satisfy specific procedural standards. Among these procedural prerequisites is a requirement that the petitioner "has exhausted the remedies available in the courts of the State" before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained that "a rigorously enforced total exhaustion rule" is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid a federal court in its review of § 2254 petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, and the claims brought in federal court must be the "substantial equivalent" of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in obtaining state relief, since it is well-settled that a claim of "likely futility on the merits does not excuse failure to exhaust a claim in state court." Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
Although this exhaustion requirement compels petitioners to have previously given the state courts a fair "opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim," Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion. Thus, the exhaustion requirement is met when a petitioner submits the gist of his federal complaint to the state courts for consideration, without the necessity that the petitioner engage in some "talismanic" recitation of specific constitutional clams. Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly presenting a claim to state courts, even if the state courts decline to address that claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
b. Procedural Default
A necessary corollary of this exhaustion requirement is the procedural default doctrine, which applies in habeas corpus cases. Certain habeas claims, while not exhausted in state court, may also be incapable of exhaustion in the state legal system by the time a petitioner files a federal habeas petition because state procedural rules bar further review of the claim. In such instances:
In order for a claim to be exhausted, it must be "fairly presented" to the state courts "by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly presented to the state courts and it is still possible for the claim to be raised in the state courts, the claim is unexhausted . . . .Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play. A procedural default occurs when a prisoner's federal claim is barred from consideration in the state courts by an "independent and adequate" state procedural rule. Federal courts may not consider the merits of a procedurally defaulted claim unless the default and actual "prejudice" as a result of the alleged violation of the federal law or unless the applicant demonstrates that failure to consider the claim will result in a fundamental "miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991).
"[A] federal court will ordinarily not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus '[o]ut of respect for finality, comity, and the orderly administration of justice.' This is a reflection of the rule that 'federal courts will not disturb state court judgments based on adequate and independent state law procedural ground.'" Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions to the procedural default rule, while well-recognized, are narrowly defined. Thus, for purposes of excusing a procedural default of a state prisoner seeking federal habeas relief, "[t]he Supreme Court has delineated what constitutes 'cause' for the procedural default: the petitioner must 'show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly, when examining the second component of this "cause and prejudice" exception to the procedural default rule, it is clear that:
With regard to the prejudice requirement, the habeas petitioner must prove "'not merely that the errors at ... trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" This standard essentially requires the petitioner to show he was denied "fundamental fairness" at trial. In the context of an ineffective assistance claim, we have stated that prejudice occurs where "there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different."Id. at 193 (citations omitted).
Likewise, the "miscarriage of justice" exception to this procedural bar rule is also narrowly tailored and requires a credible assertion of actual innocence to justify a petitioner's failure to comply with state procedural rules. Hubbard, 378 F.3d at 338.
Procedural bar claims typically arise in one of two factual contexts. First, in many instances, the procedural bar doctrine is asserted because an express state court ruling in prior litigation denying consideration of a habeas petitioner's state claims on some state procedural ground. In such a situation, courts have held that:
A habeas claim has been procedurally defaulted when "a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991). For a federal habeas claim to be barred by procedural default, however, the state rule must have been announced prior to its application in the petitioner's case and must have been "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112 L.Ed.2d 935 (1991). Whether the rule was firmly established and regularly followed is determined as of the date the default occurred, not the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a petitioner is entitled to notice of how to present a claim in state court, Ford, 498 U.S. at 423-424, 111 S. Ct. 850, 112 L.Ed.2d 935.Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007).
In other instances, the procedural default arises, not because of an express state court ruling, but as a consequence of a tactical choice by a habeas petitioner, who elects to waive or forego a claim in the course of his state proceedings, and thus fails to fully exhaust the claim within the time limits prescribed by state statute or procedural rules. In such instances the petitioner's tactical choices in state court litigation also yield procedural defaults and waivers of claims federally. See, e.g,, Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993) (same). Accordingly, a petitioner's strategic choices in state court waiving or abandoning state claims may act as a procedural bar to federal consideration of his claims, unless the petitioner can show either "cause and prejudice" or demonstrate a "fundamental miscarriage of justice."
It is against these legal benchmarks that we assess Collins' petition.
B. This Petition Should Be Denied.
As we have noted, Collins raises several grounds for relief in his habeas petition. Collins asserts two claims of trial counsel's ineffectiveness, alleging that trial counsel was ineffective for failing to move to suppress unidentified physical evidence and failing to seek disclosure of confidential informant's identity. Furthermore, Collins asserts four claims of direct appeal counsel's ineffectiveness, alleging that direct appeal counsel was ineffective for failing to challenge: (1) the sufficiency of the evidence; (2) the weight of the evidence; (3) the shifted burden of proof; and (4) the discretionary aspects of his sentence. Collins then asserts two claims of the trial court's abuse of discretion, alleging that the trial court abused its discretion when it illegally modified his sentence without jurisdiction and when it granted PCRA's counsel motion to withdraw without appointing new counsel.
However, as discussed below, none of these claims meet the exacting standards demanded under federal law for habeas corpus relief. On this score, we conclude that Collins' claims are without merit, as they have been fully considered and denied by the state courts. Accordingly, Collins' claims do not entitle him to habeas relief, and we recommend that this petition be denied.
1. Ineffective Assistance of Counsel
Collins' claims of trial and appellate counsel's ineffectiveness were all addressed on their merits by the state courts. On this score, a review of the record reveals that the Superior Court adequately addressed these claims and determined that they were without merit. Therefore, given the deference that must be afforded to the state courts' determinations, we conclude that none of these claims entitle Collins to habeas relief.
At the outset, Collins contends that his trial counsel was ineffective for failing to move to suppress unidentified physical evidence. (Doc. 1). On appeal, the Superior Court found the record to belie this claim since trial counsel did, in fact, move to suppress unidentified physical evidence, and the motion was subsequently denied. The record indicates that on August 2, 2011, "Appellant filed a counseled Omnibus Pre-Trial Motion that included a motion to suppress all incriminating evidence as the product of what he terms as an unlawful warrantless arrest." Collins, 2019 WL 1285093, at *3.
On this score, a suppression hearing was conducted on September 20, 2011, during which testimony was provided by the Harrisburg Police Department that there was probable cause to arrest Collins based on a controlled buy that occurred on September 16, 2010. Id. Furthermore, at the suppression hearing, a detective of the Dauphin County Drug Task Force testified that the controlled buy occurred under his supervision, and that he was present with a confidential informant ("CI") and witnessed the hand-to-hand exchange of narcotics for money between the CI and Collins. Id. Accordingly, the trial court denied the motion to suppress. Id. On July 25, 2012, Collins appealed the trial court's decision and the Superior Court found that the trial court did not err in denying the suppression motion because there was probable cause to arrest Collins. (Doc. 8-3, at 5).
Based on the foregoing, we cannot conclude that Collins' trial counsel was ineffective for failing to move to suppress unidentified physical evidence. To the contrary, the record shows that trial counsel did, in fact, move to suppress the evidence. A suppression hearing was held, and ultimately the motion was denied, as the trial court found there was probable cause to arrest Collins, based on Detective Dickerson's personal observations, and a search incident to that valid arrest was lawful. As it is clear from the record that a suppression hearing was held, and the motion was subsequently denied, we cannot conclude that trial counsel was ineffective.
Similarly, Collins claims that his trial counsel was ineffective for failing to seek disclosure of the confidential informant's identity. (Doc. 1). This claim is also disproved by the record and for the same reasons set forth above, we agree that this claim is meritless. The record shows that toward the end of the September 20, 2011 suppression hearing, Collins' counsel specifically asked the court "to consider directing [the Commonwealth] to disclose that information [the identity of the confidential informant...as it] goes to potential credibility." Collins, 2019 WL 1285093, at *3. (citation omitted). The trial court declined to order the disclosure of the CI's identity, noting that focusing on the CI's credibility ignored pivotal evidence of Detective Dickerson's first-hand observations, which alone, was sufficient probable cause to arrest Collins. Id.
Thus, it is clear from the record that after the suppression hearing, Collins' trial counsel did seek disclosure of the confidential informant's identity. Thus, we cannot conclude that trial counsel was ineffective for failing to seek such disclosure, when it was in fact done. Further, we agree with the Superior Court that even if trial counsel had not sought disclosure of the confidential informant's identity, no prejudice would have resulted, as the evidence established that Detective Dickerson personally observed the controlled buy of narcotics on September 16, 2010, which supplied him with probable cause to arrest Collins. Given the deference that must be afforded to the state court determination, we conclude that these claims against trial counsel do not meet the Strickland standard for ineffective assistance of counsel and thus, do not entitle Collins to habeas relief.
Next, Collins alleges that his direct appeal counsel was ineffective for failing to challenge the sufficiency of the evidence. (Doc. 1). Collins claims, with respect to his conviction for the September 16, 2010 delivery of crack cocaine, that no witness could positively identify him as the seller, nor could any witness claim to have seen the seller possess the narcotic drugs that were turned over by the CI to the detective observing the controlled buy.
The Superior Court addressed this claim in its most recent decision and found it to be without merit. The court first set forth the legal standard for such a claim:
Our standard of review for a challenge to the sufficiency of the evidence is to determine whether, when viewed in a light most favorable to the verdict winner, the evidence at trial and all reasonable inferences therefrom are sufficient for the trier of fact to find that each element of the crimes charged is beyond a reasonable doubt.Collins, 2019 WL 1285093, at *4 (citing Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003)). Moreover, the Commonwealth "may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Id. (quoting Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007)). "The facts and circumstances need not preclude every possibility of innocence." Id. Accordingly, it is the fact finder who resolves any doubt raised as to the accused's guilt and thus, the Superior Court will not disturb the verdict "unless the evidence is so weak and inconclusive that as a matter of law, no probability of fact may be drawn from the combined circumstances." Id.
At trial, Detective Dickerson, who prepared the controlled buy, provided testimony that described the exchange he had witnessed first-hand. Detective Dickerson testified that he prepared for the controlled buy by searching the CI prior to the exchange and found no money or contraband on him. Collins, 2019 WL 1285093, at *4. Furthermore, he testified that he positively identified Collins as the seller with whom the CI met and that he was familiar with Collins from previous undercover work. Id. Detective Dickerson also testified that he gave the CI $170 for the controlled buy and described the moment the exchange occurred as he watched Collins "hand a baggie to the CI in exchange for the $170." Id. Accordingly, the Superior Court concluded:
When reviewing this testimony by taking all reasonable inferences in favor of the verdict winner, as we must, we conclude it was sufficient to support the jury's conclusion that [the detective] identified Appellant as the seller who delivered the baggie of [narcotics] to the CI at the time in question...Thus we may not deem appellate counsel ineffective for failing to raise a meritless sufficiency claim of direct appeal.Id. at *5 (citing Commonwealth v. Baker, 615 A.2d 23, 25-26 (Pa. 1992)).
Based on the evidence and testimony presented at trial, we agree with the Superior Court that the fact finder, the jury, was sufficiently able to find that each element of the crimes charged was beyond a reasonable doubt. Detective Dickerson testified that he personally observed Collins and the CI exchange $170 for a bag of narcotics. This testimony was sufficient to support the jury's conclusion that Detective Dickerson identified Collins as the seller who delivered the bag of narcotics to the CI at the controlled buy. Therefore, this claim is entirely meritless. Accordingly, we cannot conclude that appellate counsel was ineffective for failing to raise a meritless claim. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000); McCleaf v. Carroll, 416 F.Supp.2d 283, 293 (D. Del. 2006). As such, this claim does not entitle Collins to habeas relief.
Collins next asserts that his direct appeal counsel was ineffective for failing to challenge trial counsel's failure to raise a weight of the evidence claim. (Doc. 1). Collins brought this claim on appeal to the Superior Court, where he argued that trial counsel should have raised this claim, as "his denial of involvement in the September 16, 2010 sale undermined Detective Dickerson's testimony to the degree that the conviction in this matter shocks the conscience." Collins, 2019 WL 1285093, at *5. The Superior Court noted that Collins did not reference any testimony or evidence that trial counsel specifically should have brought to the court's attention. Id. However, Collins maintains that there was conflicting testimony concerning who sold drugs to the CI—at trial, Collins claimed that he was not the person who sold the drugs, and Detective Dickerson testified that the person who sold the narcotics to the CI was Collins. Thus, Collins argues that this conflict holds "great weight in favor of Petitioner as to his guilt or innocence on the charge of delivery of a controlled substance," and he should have been awarded a new trial on this basis. (Doc. 11).
However, as the Superior Court explained, a new trial should not be granted by a trial court "because of a mere conflict in the testimony." Collins, 2019 WL 1285093, at *5 (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). Rather, "to grant a new trial, the trial court must 'determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. (quoting Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000)).
Here, Collins' sole argument is that his testimony and Detective Dickerson's testimony were in conflict with one another and that his denial of involvement in the controlled buy undermined Detective's testimony to the degree that the conviction shocks the conscience. He claimed that he rarely visited the Paxton Street Pub and therefore "could state with certainty that he was not there on September 16, 2010." Collins, 2019 WL 1285093, at *5. However, as the Superior Court noted, a mere conflict of testimony shall not serve as the basis for a new trial. Rather, the trial court had the opportunity to hear and see all of the evidence that was presented, and the jury, after hearing the conflicting testimony, ultimately determined Detective Dickerson's testimony identifying Collins as the seller to be more credible. Moreover, it is clear that the Superior Court gave the careful consideration to those findings and reasons when it reviewed the trial court's determination that the verdict was not against the weight of the evidence. Thus, based on the foregoing, we cannot conclude that counsel was ineffective for failing to challenge trial counsel's failure to raise a weight of the evidence claim. Indeed, as we have noted, appellate counsel cannot be deemed ineffective for failing to raise a meritless issue. Given the deference that must be afforded to the state courts, we conclude that this claim also does not meet the Strickland standard for ineffective assistance of counsel and thus, does not afford Collins habeas relief.
Collins next alleges that his direct appeal counsel was ineffective for failing to challenge the alleged shifted burden of proof at trial. (Doc. 1). Collins asserts that the trial court impermissibly shifted the burden upon him to prove his innocence when it refused to suppress evidence, allowed hearsay testimony, and required him to produce evidence to rebut those presumptions. (Doc. 11). However, the Superior Court found this claim to be without merit as it already concluded that the trial court properly denied Collins' motion to suppress evidence obtained from a lawful search incident to his arrest. Moreover, the court also concluded that Detective Dickerson's testimony was limited to a description of his personal observations of the controlled buy. Collins, 2019 WL 1285093, at *6. Indeed, the state court records indicate that the motion to suppress evidence was properly denied because there was probable cause to arrest Collins based upon Detective Dickerson's personal observation of the controlled buy, and that a search incident to that valid arrest was lawful. Furthermore, as the record indicates, the testimony provided by Detective Dickerson was based on his own personal observations of the controlled buy that occurred on September 16, 2010.
Based on the foregoing, we cannot conclude that Collins' appellate counsel was ineffective for failing to challenge the alleged shifted burden of proof. Rather, the Superior Court found this claim to be entirely meritless as there was found to be no shift in the burden of proof. Instead, as the Superior Court concluded, the motion to suppress was properly denied and the testimony challenged by Collins did not amount to hearsay testimony. Accordingly, appellate counsel cannot be deemed ineffective for failing to raise a meritless issue. Given the deference that must be afforded to the state courts, we conclude that this claim also does not meet the Strickland standard for ineffective assistance of counsel and thus, does not entitle Collins to habeas relief.
Next, Collins claims that his direct appeal counsel was ineffective for failing to challenge the discretionary aspects of his sentence. This claim was also determined to be meritless by the Superior Court. On appeal, the Superior Court first noted that "discretionary aspects of sentencing raised in the context of an ineffective assistance of counsel claim are cognizable under the PCRA." Collins, 2019 WL 1285093, at *6 (quoting Commonwealth v. Sarvey, 199 A.3d 436 (Pa Super. Ct. 2018) (citations omitted)). The Court explained:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgement exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.Id. (quoting Commonwealth v. Paul, 925 A.2d 825, 829 (Pa. Super. Ct. 2007)).
Collins' first contention regarding his sentence is that the court unreasonably decided to run his standard range sentences consecutively to form what he describes as a manifestly excessive aggregate sentence of nine to 18 years of incarceration. Collins, 2019 WL 1285093, at *7. However, it is "[l]ong standing precedent that 42 [Pa. Cons. Stat.] § 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed." Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. Ct. 2005) (citations omitted)). Moreover, "[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000)).
Prior to reaching the merits of a discretionary sentencing issue, the Superior Court must conduct a four-part test:
(1) whether appellant has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R. Crim. P. [720]; (3) whether appellant's brief has a fatal defect, Pa. R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42 Pa. C.S.A § 9781(b).Moury, 992 A.2d at 170 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. Ct. 2006)).
As the first three elements are met in this case, the only issue with respect to this claim is whether there is a substantial question that the sentence imposed is not appropriate. A substantial question exists only when the appellant advances "a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. Ct. 2009). Ordinarily, a challenge to the exercise of this discretion does not raise a substantial question, but there is a limited exception which was recognized in Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008). In Dodge, the trial court imposed 37 consecutive, standard range sentences for receiving stolen costume jewelry, and the Superior Court concluded that an aggregate sentence of 58 1/2 to 128 years sentence was clearly excessive and unreasonable. Dodge, 957 A.2d at 1199-1201.
In this case, however, as the Superior Court noted, the facts are vastly different from the facts set forth in Dodge. Here, Collins was sentenced nine to eighteen years in prison after a conviction for drug crimes that represented a significant threat to the community. As the court noted, his aggregate sentence of nine to eighteen years is hardly equivalent to the excessive and nearly life sentence imposed in Dodge. Collins, 2019 WL 1285093, at *7.
Furthermore, to the extent that Collins contends that this exercise of discretion raises a substantial question, the record does not support this contention. Under 42 Pa. Cons. Stat. § 9781(d), when reviewing the record, the appellate court shall consider "the offense, the characteristics of the defendant, the trial court's opportunity to observe the defendant, the pre-sentence report, the sentencing guidelines and the basis for the sentence imposed." Collins, 2019 WL 1285093, at *8. Collins argues that the court unreasonably decided to run his standard range sentences consecutively to form a manifestly excessive aggregate sentence of nine to eighteen years of incarceration. However, Collins' long history of recidivism spanning over 23 years, his refusal to accept responsibility, his prior record score, and the conclusion that he presented an above-average risk of re-offending from the pre-sentence report, were all factors considered in determining his sentencing. Id. Ultimately, the Superior Court concluded that the sentences fell within the standard range of the guidelines, and the aggregate sentence was neither excessive nor unreasonable, as the trial court aptly considered "the seriousness of [Collins'] crimes, his lack of remorse, and the high likelihood that he would repeat such an offense." Id.
Collins then raises a second claim implicating the discretionary aspects of his sentence when he claims that counsel was ineffective for failing to raise an entrapment or manipulation claim. Sentencing entrapment or manipulation occurs when "a defendant, 'although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.'" Commonwealth v. Paul, 925 A.2d 824, 830 (Pa. Super. Ct. 2007) (citations omitted). The standard applied in these cases is "the existence of 'outrageous government conduct' or 'extraordinary government misconduct' which is designed to and results in an increased sentence for the convicted defendant." Commonwealth v. Petzold, 701 A.2d 1363, 1366-67 (Pa. Super. Ct. 1997) (citations omitted). This is a heavy burden placed on the defendant, and a sentencing entrapment or manipulation claim is not easy to prove. It cannot be established by simply showing that the "idea originated with the government or that the conduct was encouraged by it, ... or that the crime was prolonged beyond the first criminal act ... or exceed in degree or kind what the defendant had done before." Id.
Here, Collins contends that police observed him commit two drug deliveries after September 16, 2010 without arresting him, before they decided to arrest him on October 19, 2010 after receiving the call from a CI. However, the Superior Court found that Collins failed to "establish that police manipulated him into committing a greater offense than which he was predisposed to commit." Collins, 2019 WL 1285093, at *9. Rather, the Court concluded that Collins' crime on October 19 "merely exceeded in degree or kind that which he was observed to have committed on three other occasions in the month prior," and concluded that "such an occurrence does not amount to sentencing entrapment or manipulation." Id.
Based on the foregoing, we cannot conclude that Collins' appellate counsel was ineffective for failing to challenge the discretionary aspects of his sentence. As the Superior Court found, the decision to run the sentences consecutively was not unreasonable or excessive, nor was there any manipulation or entrapment by the police officers for counsel to even raise that claim. Thus, given the deference that must be afforded to the state courts, we conclude that this claim does not entitle Collins to habeas relief.
We are mindful that the Supreme Court has observed that a "doubly deferential judicial review . . . applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is "doubly deferential when it is conducted through the lens of federal habeas"). Given this deferential standard, we cannot conclude that the state courts' decisions relating to these ineffective assistance of counsel claims were an unreasonable application of Strickland or based on an unreasonable determination of the facts. To the contrary, the PCRA court's and Superior Court's analyses of these ineffective assistance of counsel claims are thorough and well-supported by both the law and the facts of the petitioner's case. Accordingly, these claims do not warrant habeas relief.
2. Abuse of Discretion
Collins also asserts two claims alleging that the trial court abused its discretion, and thus, he is entitled to habeas relief. We disagree.
Collins first alleges that the PCRA court abused its discretion when it granted PCRA counsel's motion to withdraw without appointing new counsel. (Doc. 1). This claim was brought before the Superior Court, which discerned no error or abuse of discretion with the PCRA court accepting counsel's motion to withdraw. The record indicates that on December 29, 2017, PCRA counsel Wilson filed a no-merit letter in accordance with Turney/Finley, setting forth a legal analysis and explanation of why each of Collins' pro se issues lacked merit. Collins, 2019 WL 1285093, at *11. The court granted the motion to withdraw after determining Attorney Wilson fulfilled his obligations under Turner/Finley. Id. The court issued its Notice of Intent to Dismiss and Collins filed a pro se answer opposing the court's notice, claiming PCRA counsel failed to amend the pro se petition which constituted ineffective assistance of counsel. The court dismissed Collins' petition after considering his pro se answer. Id.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988).
Accordingly, Collins argued on appeal that PCRA counsel's failure to amend his pro se complaint left him to be uncounseled. Id. However, the Superior Court found that counsel properly filed a Turner/Finley letter, in which he undertook an extensive review of Collins' case and provided a thorough legal analysis in support of his conclusion that there was no meritorious claim to make on appeal. Indeed, "[w]here counsel seeks to withdraw on appeal from the denial of PCRA relief, a Turner/Finley 'no merit letter' is the appropriate filing." Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014). Despite counsel's failure to address and acknowledge the effect of Alleyne on Collins' sentence, the court determined there was no abandonment of professional responsibility from counsel's no-merit letter on the remaining claims.
Based on the foregoing, we cannot conclude that PCRA court abused its discretion when it granted counsel's motion to withdraw. The record shows that counsel properly withdrew as Collins' representation by filing a thorough and well-reasoned Turner/Finley letter, which set forth his legal analysis as to why Collins' claims were without merit. The Superior Court found no abuse of discretion after the PCRA court concluded that counsel fulfilled his Turner/Finley obligations. Accordingly, this claim does not afford Collins habeas relief.
Finally, Collins claims that the court abused its discretion when it imposed mandatory consecutive sentences and when it entered an order five years later in March of 2018 clarifying that these sentences were to run consecutively. (Doc. 1). On appeal, the Superior Court thoroughly addressed this claim and properly analyzed it under Alleyne. Collins, 2019 WL 1285093, at *10. The court ultimately concluded that Collins' sentence was illegal under Alleyne, as the trial court applied weight-based, mandatory minimum sentences provided in 18 Pa. Cons. Stat. § 7508 in determining the sentence. Id. As the court explained, in applying Section 7508 to Alleyne, mandatory minimum sentences are unconstitutional in this fashion. Id. (citing Commonwealth v. Cardwell, 105 A.3d 748 (Pa. Super. Ct. 2014). Based on these findings, the Superior Court vacated Collins' sentenced and remanded to the trial court for resentencing consistent with this aspect of its decision.
The Superior Court also noted that Collins challenged the legality of the imposition of consecutive sentences. Id. While the Respondents contend that Collins' claim regarding the court's jurisdiction to enter an order clarifying that the sentences were imposed consecutively is unexhausted, it is clear from the footnote in the Superior Court opinion that Collins did, in fact, challenge the legality of his consecutive sentences, specifically noting the trial court's jurisdiction to enter the March 27, 2018 order. Collins, 2019 WL 1285093, at *10 n. 7. However, while the court did not reach the merits of this claim based on its decision to vacate Collins' sentence and remand for resentencing, it did note that "absent any written indication to the contrary, it is presumed that the sentences are to run consecutively." Id. at *10, n.7 (quoting Commonwealth v. Pfeiffer, 579 A.2d 897 (Pa. Super. Ct. 1990)). The court further reasoned that given the decision to remand for resentencing, the trial court would "have the opportunity to specify whether the new sentence shall run concurrent to or consecutively with other sentences." Id.
Thus, based on the foregoing, we cannot conclude that Collins' claim of the trial court's abuse of discretion entitle him to habeas relief. Rather, these claims were addressed by the Superior Court, one of which was decided in Collins' favor when his sentence was vacated and remanded to the trial court for resentencing. Accordingly, Collins' claims of abuse of discretion do not entitle him to habeas relief, and this petition should be denied.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue. The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and
all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 27th day of April 2021.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge