Richardson v. Piazza, CIVIL ACTION NO. 07-2065

MELVIN KEITH RICHARDSON, Petitioner, v. JOSEPH PIAZZA, et al., Respondents.

CIVIL ACTION NO. 07-2065

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

December 18, 2015

MEMORANDUM

Tucker, C.J.

Presently before the Court is the issue of whether post-conviction counsel's ineffectiveness constitutes cause for the procedural default of Melvin Keith Richardson's ("Petitioner's") claims. Upon review of the parties' submissions and the record of this case, the Court finds that Petitioner's post-conviction counsel's ineffectiveness does not constitute cause for the procedural default of Petitioner's claims and his Amended Petition for Writ of Habeas Corpus is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Trial

On February 20, 2003, Petitioner, a Maryland citizen, was arrested in connection with two home burglaries in the Commonwealth of Pennsylvania and Petitioner's subsequent car chase and collision with state troopers. The Chester County Public Defender's Office assigned Petitioner's case to Attorney Elizabeth Plasser-Kelly ("Pretrial Counsel").¹ During PretrialCounsel's representation, Petitioner was presented with a plea offer from the Chester County District Attorney's Office.² Petitioner did not accept the plea of offer and instead retained Attorney Joseph Green, Jr. ("Trial Counsel") to represent him at trial.³

On August 20, 2003, a Chester County jury convicted Petitioner of two counts of burglary, two counts of criminal conspiracy to commit burglary, two counts of theft by unlawful taking or disposition, three counts of aggravated assault, and one count of fleeing or attempting to elude a police officer. Prior to the trial court's imposition of its judgment of sentence, Petitioner terminated Trial Counsel. Petitioner proceeded pro se for the second sentencing hearing, with Trial Counsel acting as standby counsel, and on December 18, 2003, the Honorable Juan R. Sanchez sentenced Petitioner to a term of 17 and a half years to 39 years.

B. Direct Appeal

Attorney Christian Hoey ("Appellate Counsel") represented Petitioner following Petitioner's conviction. Appellate Counsel first filed a motion for reconsideration with the trial court which was subsequently denied. Pet'r Mem., Exh. N, Doc 71.⁴

On appeal, Appellate Counsel challenged the validity of Petitioner's sentence by alleging that (1) the trial court erred by abusing its discretion at sentencing; (2) the trial court erred by sentencing Petitioner consecutively on each burglary count; (3) the sentence imposed was illegal because it deviated from the sentencing guidelines without proper justification; (4) the verdict was against the great weight of the evidence regarding the aggravated assault charge; (5) the trial court erred at sentencing when it concluded that Petitioner's son purposely lied on behalf ofPetitioner at Petitioner's request; and (6) the trial court erred at sentencing by considering Petitioner's prior bad acts and unrelated criminal behavior in imposing its sentence. Exh. O ¶¶ 1-6. Appellate Counsel essentially argued that "the sentence was manifestly excessive." Exh. Q at 2. The Superior Court was unpersuaded by Appellate Counsel's arguments and affirmed Petitioner's judgment of sentence on April 8, 2005.

C. PCRA Proceedings

After filing a pro se Post Confliction Relief Act ("PCRA") petition, the PCRA court appointed Petitioner counsel. On November 2, 2005, before counsel could file an amended petition, Petitioner filed a pro se amended PCRA petition. On November 14, 2005, Attorney Robert Brendza ("PCRA Counsel") filed an amended PCRA petition on Petitioner's behalf. PCRA Counsel argued that Trial Counsel and Appellate Counsel "were ineffective for failing to raise the issue that counsel failed to request that the audio tape recording of the automobile chase and the motor vehicle accident that eventually occurred as a result thereof be preserved for examination and presentation to the jury at trial." Exh. U at 2.

At the initial PCRA evidentiary hearing, the PCRA court permitted Petitioner to raise the arguments that he felt had merit in addition to the single argument advanced by PCRA Counsel. Exh. W at 6-7. Petitioner argued that (1) Appellate Counsel was constitutionally ineffective, (2) Trial Counsel was constitutionally ineffective, and (3) the trial court erred in imposing its judgment of sentence. Id. at 6-7. In particular, Petitioner alleged that both Trial and Pretrial Counsel failed to "file to disclose . . . evidence that should have been filed for [Petitioner's] trial" and that Trial Counsel failed to obtain medical records which could have indicated the degree to which one of the troopers was allegedly injured. Id. at 10, 23-24. Petitioner also orally informed the PCRA court that in his opinion, Trial Counsel was also ineffective for failingto call a witness that Petitioner wanted to testify, Ms. Mary Testerman ("Ms. Testerman"). Id. at 14-15. Petitioner was adamant in raising these issues before the PCRA court so that they may be preserved for appeal and become a part of the record. Id. at 7. After hearing from Petitioner and PCRA Counsel, the PCRA court instructed PCRA Counsel to submit a letter to the court that described why each issue raised by Petitioner was without merit. Id. at 26.

On January 11, 2006, PCRA Counsel submitted a letter to the PCRA court pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. 1988), that outlined the reasons why Petitioner's additional habeas claims were meritless. Exh. Y at 1. PCRA Counsel argued: (1) Trial Counsel was not ineffective for failing to call Ms. Testerman at trial to testify on Petitioner's behalf, (2) Trial Counsel and Appellate Counsel were not ineffective for failing to preserve issues of merit that could be heard on direct appeal to the Superior Court, (3) the sentencing judge, the Honorable Juan R. Sanchez, did not err concerning Petitioner's right to be represented at sentencing, and (4) Trial Counsel was not ineffective during pretrial and trial for not requesting or preserving medical records to support Petitioner's claims. Exh. Y at 2-4.

On March 16, 2006, the PCRA court denied Petitioner's amended PCRA petition. In regards to the single claim raised by PCRA Counsel, the Honorable John L. Hall concluded that "[t]he credible evidence . . . fails to support [Petitioner's] Amended PCRA Petition claim because [Petitioner] failed to prove that there were ever any barracks audiotape recordings that pertained to the critical fact question of whether [Petitioner] rammed the state police vehicle." Exh. Z at 3. In the court's order, Judge Hall also addressed the four issues Petitioner raised, but PCRA Counsel found meritless. Id. at 3-4. Judge Hall likewise concluded that none of these claims had merit. Id.

PCRA Counsel filed an appeal from the PCRA court's decision on April 11, 2006. The PCRA court affirmed its decision on April 17, 2006. PCRA Counsel then filed an appeal to the Superior Court of Pennsylvania on June 2, 2006. On September 5, 2006, the Superior Court affirmed the lower court's denial of the amended PCRA petition. The Supreme Court of Pennsylvania denied the petition for allowance of appeal from the order of the Superior Court on January 3, 2007.

D. 28 U.S.C. § 2254 Petition

In February 2007, Petitioner filed a pro se petition pursuant to 28 U.S.C. § 2254 in the Middle District of Pennsylvania. Petitioner filed a pro se amended petition in April 2007. On May 21, 2007, Petitioner's petition for writ of habeas corpus was transferred to the Eastern District of Pennsylvania. On April 9, 2008, Petitioner filed a pro se amended petition (the "Amended Petition"). Petitioner's Amended Petition set forth the following claims:

Claim A: Attorney "Jane Doe" was ineffective for not requesting that the police chase "web based report" and audio tape of the chase were not preserved for trial;

Claim B: [Pretrial Counsel] was ineffective for failing to explain petitioner's true sentence exposure, discuss advantages and disadvantages of accepting a pretrial plea offer by the district attorney;

Claim C: [Pretrial Counsel] was ineffective for failing to competently investigate, prepare for trial, and preserve exculpatory/impeachment audio tape and/or it's transcription for trial;

Claim D: [Pretrial Counsel] was ineffective for not requesting or consulting an accident reconstruction expert in preparation for trial;

Claim E: The Prosecution was guilty of willful misconduct and/or gross negligence by not disclosing a web based report and an audio tape of the police chase upon discovery request by the defense;

Claim F: [Trial Counsel] was ineffective for not performing competent, independent pretrial discovery, investigation and for not calling key witnesses to testify at trial;Claim G: [Trial Counsel] was ineffective for failing to obtain, or consult, an accident reconstruction expert or other qualified experts for trial;

Claim H: [Trial Counsel] was ineffective for not objecting to or requesting a mistrial in open court in response to the court's refusal to give the jury a missing evidence instruction;

Claim I: [Trial Counsel] was ineffective for abandoning his client during the sentencing phase;

Claim J: The trial court erred by not performing an in depth on the record colloquy when petitioner released his retained counsel during sentencing;

Claim K: The trial court erred by refusing to give the jury a missing evidence instruction and/or cautionary instruction relating to the audio tape's destruction;

Claim L: The trial court acted with personal bias and ill-will towards the petitioner;

Claim M: [Appellate Counsel] was ineffective for not performing an independent investigation into the trial record to identify meritable issues for appeal and not briefing them to the court; and

Claim N: [PCRA Counsel] was ineffective for not independently searching the record for meritable issues for Post Conviction Relief (P.C.R.A.) and briefing them to the court.

Amended Petition, Doc....