Dove v. York Cnty., CIVIL ACTION NO. 3:12-1517

RONALD A. DOVE, Petitioner v. YORK COUNTY, PA PA STATE ATTORNEY GENERAL, Respondents

CIVIL ACTION NO. 3:12-1517

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

Dated: November 15, 2013

(Judge Mannion)

MEMORANDUM¹

Ronald A. Dove, an inmate presently confined at the State Correctional Institution, Coal Township, Pennsylvania (SCI-Coal Township), filed this pro se habeas corpus petition pursuant to 28 U.S.C. §2254. (Doc. No. 1, petition). He attacks a conviction imposed by the Court of Common Pleas for York County, Pennsylvania. Jd. For the reasons that follow, the Court will deny the petition.

I. Background

The following background has been extracted from the PennsylvaniaSuperior Court's August 27, 2010 Memorandum Opinion affirming the trial court's judgment. (Doc. No. 16, Commonwealth v. Dove, No. 41 MDA 2010, Superior Court Opinion at pp. 1-4).

On July 7, 2008, Timothy Kemp, a 12-year-minor, observed [Dove] in the parking lot of the Market Square strip mall. [Dove] staggered to the door of a Rite-Aid store and could not open the door. Timothy Kemp opened the door for [Dove] and [Dove] entered and wandered around the store. [Dove] returned to his car and had difficulty unlocking it. At one point, [Defendant] stumbled back and leaned on the adjacent van. [Dove] eventually gained entrance to his car and started the engine. Once in gear, [Dove] placed the car in reverse and almost backed over a median strip. [Dove] placed the car in drive and almost hit another median strip. Subsequently, [Dove drove in circles around the parking lot for several minutes. [Dove] eventually parked his car.

Timothy Kemp recorded a description of [Dove's] car and license plate. He provided this information to his father, Edward Kemp, who called 911. At some point, [Dove] started driving around the parking lot again. When the police officer arrived, [Dove] almost hit the officer's car. After the police arrested [Dove], Timothy Kemp observed [Dove] holding the squad car door open with his foot. At that point, Edward and Timothy Kemp left the shopping center.

In response to Edward Kemp's 911 call, a dispatcher sent Kathleen Ames-Brooker, a patrol officer with the Southern Regional Police Department, to the shopping center. Upon arriving, Officer Ames-Brooker observed a car matching Mr. Kemp's description. [Dove] initially was parked but started circling the shopping center. Officer Ames-Brooker observed [Dove] making wide turns, weaving, and driving excessively slow. Officer Ames-Brooker turned on her lights and stopped [Dove]. In response to questioning, [Dove] stated he did not have a driver's license. Officer Ames-Brooker observed [Dove's] eyes were bloodshot and glassy, his speech was slurred, and he was unsteady on his feet. At some point in the conversation,Officer Ames-Brooker noticed an odor of alcohol on [Dove's] breath. Officer Ames-Brooker asked [Dove] to submit to field sobriety and breath tests, which he refused.

At this time, Officer Ames-Brooker placed [Dove] under arrest and attempted to secure him in the back of her police car. Although initially compliant, [Dove] started to struggle upon entering the police car. He used his foot to prevent Officer Ames-Brooker from closing the car door. [Dove] also kicked at Officer Ames-Brooker and smashed her hand into the car door with his foot. Officer Ames-Brooker called for backup because [Dove] continued to kick at her with both feet. Officer Ames-Brooker eventually closed the door, and backup officers subsequently arrived. Officer Ames-Brooker took [Dove] to York Hospital to test his blood alcohol content. During transport, [Dove] called Officer Ames-Brooker derogatory names and threatened to kick and rape her. At the hospital, [Dove] refused to submit to testing or listen to the implied consent warnings.

Officer Ames-Brooker filed a criminal complaint, charging [Dove] with DUI, driving with a suspended license, and resisting arrest. On June 15, 2009, [Dove's] jury trial commenced. The jury convicted [Dove] on June 17, 2009, of DUI and resisting arrest; and the court found [Dove] guilty of driving with a suspended license. The court ordered a pre-sentence investigation. On August 5, 2009, the court sentenced [Dove] to an aggregate of twenty-seven (27) to seventy-eight (78) months of incarceration, plus fines and costs.

[Dove] timely filed a post-sentence motion on August 14, 2009, requesting a reduced sentence. The court denied this request on October 16, 2009. Appellant timely filed a notice of appeal on November 4, 2009. Trial counsel filed a motion to withdraw, and the court appointed new counsel on January 25, 2010. Appellant timely filed a Rule 1925(b) concise statement of matters complained of on appeal pursuant to court order.

[Dove] raises the following issues on appeal:

WAS THERE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT, THAT [DOVE] WAS GUILTY OF RESISTING ARREST?

WAS THERE SUFFICIENT EVIDENCE TO PROVE, BEYOND A REASONABLE DOUBT, THAT [DOVE] WAS GUILTY OF DUI/GENERAL IMPAIRMENT?

Id. On August 27, 2010, the Pennsylvania Superior Court affirmed the Petitioner's conviction, Id.

On December 1, 2010, Dove filed a petition under Pennsylvania's Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541, et seq. ("PCRA"). (Doc. No. 16, PCRA petition). Petitioner raised various issues of ineffective assistance of trial and appellate counsel, as well as trial court error, Id.

On June 27, 2011, the PCRA Court filed a notice of intent to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 907, (Doc. No. 16, Notice Pursuant to Pennsylvania Rule of Criminal Procedure 907).

On July 5, 2011, Dove filed a notice of appeal to the Pennsylvania Superior Court. (Doc. No. 16, Commonwealth of Pennsylvania v. Dove, No. CP-67-CR-0005810-2008, Criminal Docket Sheet).

By Order dated July 26, 2011, the PCRA court denied Dove's PCRA petition. (Doc. No. 16, Order).

On April 5, 2012, the Pennsylvania Superior Court affirmed the PCRAcourt's denial of Dove's PCRA petition, finding the following:

On appeal, Appellant presents a verbose attack on nearly every aspect of the proceedings. After a thorough reading of Appellant's rambling brief on appeal, we conclude that he has failed to properly preserve and present any issue on appeal.² Appellant's Brief is in violation of Pennsylvania Rules of Appellate Procedure 2111, 2116 and 2119. Appellant's brief is a collection of varied papers and disjointed accusations. The statement of questions involved basically consists of attacks on trial proceedings which are not cognizable under the PCRA. Appellant's argument bears nearly no relation to the statement of questions involved, and it is not supported by any relevant case law, citations to the record, or understandable argument. Rather, Appellant merely states his belief that the outcome should have been different. Finally, while Appellant's first issue on appeal does aver that appellate counsel was ineffective for failing to "bring his argument to the direct appeals court" (Appellant's Brief at 4 (unnumbered pages)), the argument portion provides no support for his accusation.

While this Court could quash Appellant's appeal on these grounds, we decline to do so. Adams, 882 A.2d at 497. Rather, to the extent that Appellant preserved any issues on appeal, we affirm on the basis of the PCRA court's September 9, 2011 opinion, which incorporates by reference the June 27, 2011 Pa.R.Crim.P. 907 notice, thoroughly addressing the issues raised in Appellant's Pa.R.A.P. 1925(b) statement.³

(Doc. No. 16, Memorandum Opinion).

On August 6, 2012, Dove filed the instant petition for writ of habeas corpus in which he raises the following challenges to his conviction and sentence:

1. Petitioner's Fourth and Fourteenth Amendment rights were violated where Petitioner's omnibus pre-trial motion to suppress the traffic stop was denied by the trial court.

2. Petitioner received ineffective assistance of appellate counsel when appellate counsel abandoned Petitioner's constitutional claims on direct appeal and failed to raise challenges to various evidentiary rulings by the trial court.

3. Claims of ineffective assistance of trial and appellate counsel.

4. Abuse of discretion by the trial and sentencing court in its evidentiary and pre-trial rulings and its subsequent sentence of Petitioner.

5. Prosecutorial Misconduct.

6. Petitioner suffered prejudice when affiant changed her story for the reason for the traffic stop.

(Doc. No. 1, petition).

II. Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. §2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). "[l]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, 67-8 (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 67-8 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

A. Exhaustion

It is well-established that a federal court may not entertain the merits of a petition for writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. §2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).⁴ Because the exhaustion doctrine is designed to give the statecourts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, state prisoners must invoke one complete round of the state's established appellate review process, Id. at 845.

The habeas corpus petitioner shoulders the burden of establishing exhaustion of state court remedies. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000), citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997), The...