Davis v. The Dist. Attorney of Allegheny Cnty.

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GERALD DAVIS, JR., Petitioner, v. THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, THE ATTORNEY GENERAL OF PENNSYLVANIA; and MARK CAPOZZA, SUPERINTENDENT, Respondents.

Civil Action No. 2:22-cv-00417

United States District Court, W.D. Pennsylvania, Pittsburgh

June 2, 2023

GERALD DAVIS, JR. KY5234 SCI FAYETTE RUSHEEN R. PETTIT OFFICE OF THE DISTRICT ATTORNEY (VIA ECF ELECTRONIC NOTIFICATION)

Joy Flowers Conti, Senior United States District Judge

REPORT AND RECOMMENDATION ^[1]

Cynthia Reed Eddy, United States Magistrate Judge

I. RECOMMENDATION

For the reasons set forth herein, it is respectfully submitted that the Petition for Writ of Habeas Corpus (ECF No. 1) be denied and that a certificate of appealability also be denied.

II. REPORT

Pending before the Court is a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 filed by Gerald Davis, Jr. (“Petitioner or “Davis”). Davis challenges the Order of Sentence - New Sentence entered on February 19, 2016, by the Court of Common Pleas of Allegheny County, Pennsylvania, at Criminal Case No. CP-02-CR-0004831-2012. For the following reasons, the Petition should be denied and a certificate of appealability also should be denied.

A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Davis's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a); see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Davis cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.

B. Relevant Factual and Procedural History

The PCRA Court recounted the factual summary of the case in its 1925(a) Opinion:

In 2012 Petitioner was arrested and charged with various offenses arising out of robberies committed at nine separate restaurants and convenience stores in Allegheny County. On August 29, 2012 Petitioner and his accomplice, Keith Fields, plead guilty to all the charges against them. Specifically, Davis plead guilty to six counts each of robbery, aggravated assault, REAP and terroristic threats as well as one count each of discharging a firearm into an occupied house, carrying a firearm without a license, theft by unlawful taking, receiving stolen property and criminal conspiracy. On January 18, 2013 Petitioner was sentenced to an aggregate sentence of 22 to 44 years' incarceration, which included a finding of guilt with no further penalty at Count 5 (REAP) and Count 23 (carrying a firearm without a license).

. . . The Superior Court affirmed the judgment of sentence [and] Petitioner's Petition for Allowance of Appeal was denied on November 25, 2014....

On April 28, 2015 Petitioner filed a timely PCRA Petition which included allegations that he had received a mandatory sentence for several of the robbery convictions that were rendered illegal by Alleyne v. United States, 133 S.Ct. 2151, 2163 (2013).

After the Commonwealth acknowledged that Petitioner was entitled to relief on that issue, a resentencing hearing was held on February 19, 2016 at which Petitioner was sentenced to an aggregate term of 17 to 40 years' incarceration. The new sentencing scheme included a sentence of 1 to 2-year incarceration at Count 5 (REAP) and 1 to 2 years at Count 23 (carrying a firearm without a license).

Petitioner filed an appeal from the sentencing alleging that the Court did not have jurisdiction to resentence him at Count 5 and Count 23 . . . Petitioner's appeal was based on 42 Pa.C.S.A. § 9543(a)(1)(i) which provided that in order to be eligible for relief under the PCRA a petitioner must establish that he was “currently serving a sentence of imprisonment, probation or parole for the crime.” Petitioner asserted that he was ineligible for relief as to Counts 5 and 23, as he was not currently serving a sentence on those counts and, therefore, the Court lacked jurisdiction to impose the new sentences of 1 to 2 years at each of those counts.

In opinions filed on August 17, 2018, four Judges of the Superior Court En Panc Panel held that the issue of the lack of jurisdiction to resentence on counts for which he was not serving a sentence at the time PCRA relief was granted was waived because Petitioner appealed the judgment of sentence but not the order granting PCRA relief. The Court, however, reviewed the claim as a double jeopardy claim and found it meritless. Two Judges held that the issue was not waived, and that Petitioner properly appealed from the order resentencing him but nonetheless found the claim was meritless. In an opinion in support of reversal, three Judges held that the issue was not waived and, although the Court had jurisdiction to resentence, it did not have authority to do so. Commonwealth v. Davis, 197 A.3d 1217 (Pa. Super. 2018 en banc), 445 WDA 2016.

Petitioner then filed [a] PCRA petition in which he alleged that trial counsel was ineffective in failing to file a post-sentence motion to preserve the claim that the Court did not have jurisdiction under 42 Pa.C.S.A. § 9543(a)(1)(i); that appellate counsel was ineffective in failing to preserve any issue for appeal; that trial and appellate counsel were ineffective in failing to preserve a double jeopardy claim; that the Court lacked authority to impose the new sentence on February 19, 2016 when the prior sentence was not vacated by a separate order; and, that trial counsel and appellate counsel failed to preserve the claim that the Court lack authority to resentence him. After review of appointed counsel's Turner/Finley no merit letter and the response to notice of intent to dismiss filed by Petitioner's privately retained counsel and considering the entire record, the PCRA petition was dismissed.

PCRA 1925(a) Opinion, 01/07/2021 at pp. 3-6 (ECF No. 1-1 at pp. 36-39). Petitioner, pro se, appealed the decision denying PCRA relief, raising the following two claims:

Whether the PCRA court erred by resentencing Appellant on 2/19/16, when the original sentencing order of 1/18/13 had not been vacated and was intact, and that PCRA and appellate counsel were ineffective in failing to raise or preserve this issue for appeal?

Whether the PCRA court erred in granting relief on count 5 (REAP) and count 23 ([carrying a firearm without a license]) where Appellant was not eligible to such relief under 42 Pa.C.S.A. § 9543(a)(1)(i), and where sentencing and appellate counsel were ineffective for not objecting to and raising this claim on appeal?

On September 13, 2011, a three-judge panel of the Superior Court affirmed the order denying PCRA relief. Commonwealth v. Davis, No. 882 WDA 2020, No. 883 WDA 2020 (Pa. Super. Sept. 13, 2021) (ECF No. 1-1 at p. 12). In denying the first issue, the Superior Court found that “the record makes clear that the court verbally granted PCRA relief at the February 19, 2016 hearing in the form of vacating the original sentence, and then resentenced Appellant at the same proceeding.... The record simply belies Appellant's claim that the original sentence was still intact at the time the court resentenced him.” Id.

As to the second issue, Davis argued that the court lacked authority to resentence him on Count 5 and Count 23 because the court had originally sentenced him to serve no further penalty at both those counts. Davis argued that although he raised this claim on direct appeal from resentencing in the context of whether the court had jurisdiction, he was now asserting “an eligibility issue” - contending that he was ineligible under Section 9543 of the PCRA to receive any relief at the two counts for which he was not serving a sentence (Count 5 and Count 23) when the court granted PCRA relief. The Superior Court denied the claim on its merits, holding that “the sentencing court had the authority to vacate the entire original sentence, including those sentences for which the court had originally imposed no further penalty, prior to resentencing [Davis]. Id.

Having been denied relief in state court, on March 3, 2022, Davis filed the instant timely pro se federal habeas petition raising one claim. He again challenges the February 19, 2016, resentence as to Counts 5 and 23, but now has framed the issue as a constitutional violation:

1. Equal Protection Violation; Due Process Violation. Both under the Fourteenth Amendment.

I was originally sentenced to no further penalty at Counts 5 (REAP) & 23 (carry firearm w/o a license). I was granted relief on my mandatory minimums in the form of a complete vacancy of original sentence. At resentence hearing I was sentenced to 1-2 years at Counts 5 23. Under PCRA statute I am ineligible to seek relief on completed counts & the PCRA court are limited as to what they can & cannot grant relief to. Deeming the relief given was not proper contrary to PCRA statute.

Pet., Ground One (ECF No. 1). Respondents filed an Answer on June 14, 2022. (ECF No. 11). The undersigned has reviewed the filings of the parties, as well as the state court record.^[2]

C. The Standard for Habeas Relief under 28 U.S.C. § 2254

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas co...