Weitzel v. Rozum

BRADLEY C. WEITZEL, Petitioner, v. GERALD ROZUM, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIAand THE DISTRICT ATTORNEY OF BUTLER COUNTY, Respondents.

Civil Action No. 12 -1338

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: June 12, 2014

Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Bradley C. Weitzel ("Petitioner"), a state prisoner incarcerated at the State Correctional Institution at Somerset, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, his petition and a certificate of appealability will be denied.

I. BACKGROUND

The Pennsylvania Superior Court set forth the following recitation of facts underlying this case:

By criminal complaint filed July 19, 2006, [Petitioner], [Petitioner]'s wife, Mary Weitzel, and [Petitioner]'s son, Bradley E. Weitzel, were charged with [manufacturing a controlled substance (marijuana), possession with intent to deliver (marijuana), criminal conspiracy to commit possession and manufacturing of a controlled substance (marijuana), two counts of possession of a controlled substance (marijuana; mushrooms containing psilocybin or psilocin), and possession of drug paraphernalia]. Their cases were joined for prosecution in a single trial pursuant to Pennsylvania Rule of Criminal Procedure 582(A)(2). OnFebruary 28, 2007, [Petitioner] filed an omnibus pre-trial suppression motion. The trial court held a hearing on the suppression motion on September 10, and October 22, 2007. On November 1, 2007, [Petitioner] filed a brief in support of his suppression motion. The Commonwealth filed its brief in support of denying [Petitioner]'s motion on November 19, 2007. After hearing evidence and upon review of the parties' briefs, the trial court denied [Petitioner]'s suppression motion on December 6, 2007. In denying [Petitioner]'s motion, the trial court made the following findings of fact[:]

1. Anthony Lemon has been a courier for DHL for two years.

2. On June 22, 2006, Mr. Lemon noticed a package addressed to Bradley C. Weitzel, 441 Portman Rd., Butler, Pa, marked to be delivered to "addressee only".

3. No one was home at the address when Mr. Lemon arrived.

4. As Mr. Lemon walked back to the DHL truck with the package[, a] person arrived and Mr. Lemon informed the person that the package was to be delivered to the addressee only and that he would come back after delivering additional packages.

5. Mr. Lemon received a message within 30 minutes to an hour after going to the address, which stated that anyone could sign for the package.

6. Mr. Lemon continued on his normal route, which took him to the Butler County Courthouse[,] and [he] ran the suspicious package through the security x-ray machine along with other packages.

7. Mr. Lemon walked around behind the security machine while the package was going through and was able to observe syringes contained in the package.

8. Mr. Lemon took the package to the City of Butler Police Department to ask if someone could look at the strange package.

9. Butler City Police Chief Tim Fennell went to look at the package, which was in the back compartment of the DHL truck.

10. Chief Fennell has been a police officer for 28 years and has been involved with over 1200 drug investigations.

11. Chief Fennell detected a strong organic odor emanating from the package. He further noticed that the return label was from Texas, an indicator state, and that it was to be delivered to "addressee only," and that the address was outside of his jurisdiction.

12. Chief Fennell requested that the package be turned over to the County Drug Task Force and contacted Detective Cannon.

13. Detective Cannon asked that the package be delivered to the Butler County Courthouse.

14. Mr. Lemon brought the package to the Courthouse and was met by Detective Cannon.

15. Detective Cannon asked Mr. Lemon to bring in other packages and brought in Canine Officer Disco to sniff the packages.

16. Canine Officer Disco "hit" on the package.

17. Lieutenant Mike Dalcamo has been a police officer with the City of Butler for 18 years and is the supervisor of the Butler County Drug Task Force.

18. Detective Cannon delivered the package to Lieutenant Dalcamo at the City of Butler Police Station.

19. Lieutenant Dalcamo looked at the package, smelled it, and looked at the label.

20. Lieutenant Dalcamo applied for a search warrant for the package and immediately opened the package upon receipt [of] the search warrant.

21. After viewing the contents of the package, Lieutenant Dalcamo applied for a search warrant for the address on the package, 441 Portman Rd., Summit Twp., Butler County.

22. Lieutenant Dalcamo participated in the search of the house at 441 Portman Rd., Summit Twp, Butler County, where he met [Petitioner] on the porch and produced the search warrant.

23. Lieutenant Dalcamo explained what was contained in the search warrant and gave a copy to [Petitioner].

24. [Petitioner] was handcuffed in order for the officers to secure the residence.

25. [Petitioner] told Lieutenant Dalcamo that what they were looking for was in the bedroom.

According to the criminal complaint, during their search of the house, the officers recovered from the bedrooms and common areas several pounds of marijuana, a psilocybe mushroom grow kit, several bags of suspected psilocybemushrooms, eight marijuana plants, a computer with websites showing how to grow mushrooms, prescription pills, cash, many items of paraphernalia for growing and smoking marijuana, and two pistols, two rifles, and two shotguns.

On September 25, 2009, Mary Weitzel filed a motion to sever, claiming she would suffer prejudice if her motion were not granted because [Petitioner] planned to represent himself and to testify at trial, and she viewed [Petitioner]'s approach to be antagonistic to her case. On October 13, 2009, [Petitioner]'s counsel requested that he be granted leave to withdraw and that [Petitioner] be permitted to proceed pro se. On October 19, 2009, a hearing was held on [Petitioner]'s motion to represent himself at trial and waive his right to counsel. On October 20, 2009, argument was held on Mary Weitzel's motion to sever, at which time [Petitioner] joined the motion. On October 21, 2009, the trial court denied "Defendants' Joint Motion to Sever," granted [Petitioner]'s motion to represent himself, and appointed Gerald Lee Cassady, Esquire (Attorney Cassady) as stand-by counsel.

[Petitioner] proceeded to a jury trial on September 13, 2010. Following a three-day trial, the jury found [Petitioner] guilty of manufacturing a controlled substance (marijuana), possession with intent to deliver a controlled substance (marijuana), criminal conspiracy to commit manufacturing and possession of a controlled substance (marijuana), two counts of possession of a controlled substance (marijuana; mushrooms), and possession of drug paraphernalia.

At [Petitioner]'s request, the trial court appointed Attorney Cassady to represent [Petitioner] at sentencing. The trial court ordered a pre-sentence investigation. At the sentencing hearing on November 2, 2010, the trial court found by a preponderance of the evidence that, at the time [Petitioner] committed the offense of possession with intent to deliver, there were firearms in close proximity to the controlled substance, requiring a mandatory minimum sentence of five years' imprisonment. The trial court then sentenced [Petitioner] in the aggregate to 60 to 120 months' imprisonment and a $5,000.00 fine plus costs.

(Appeal from Judgment of Sentence, ECF No. 8-4 at pp.159-165) (internal footnotes and citations to the record omitted).

Petitioner's judgment of conviction was affirmed on November 17, 2011, but his sentence for possession with the intent to deliver marijuana (PWID) was vacated and the case was remanded for resentencing, due to the sentencing court's misinterpretation of a state mandatory minimum sentencing provision. Petitioner filed a petition for allowance of appeal tothe Pennsylvania Supreme Court, which was denied on March 21, 2012. On May 16, 2012, Petitioner was resentenced on the PWID count to a term of incarceration of 60 months and to pay a fine of $5,000.00. Petitioner did not file any collateral appeals in state court.

The instant habeas petition was signed on August 29, 2012, and filed on September 18, 2012. Respondents concede that the petition was filed within the applicable statute of limitations period pursuant to 28 U.S.C. § 2244(d)(1)(A), which provides a 1-year period of limitation to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court.

II. STANDARD OF REVIEW

This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). Under this statute, habeas relief is only available on the grounds that Petitioner's judgment of sentence was obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot 'reexamine state court determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)). See also Real v. Shannon, 600 F.3d 302, 309-10 (3d Cir. 2010).

AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 687, 693 (2002). It "requires federal courts collaterally reviewing state proceedings to afford considerable deference to statecourts' legal and factual determinations." Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). As codified at 28 U.S.C. § 2254(d), AEDPA provides:

An application for a

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