JIMENEZ v. COLEMAN et al
Filing
20
ORDER THAT THE REPORT AND RECOMMENDATIONS IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE AND DISMISSED WITHOUT AN EVIDENTIARY HEARING; AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY.. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 8/2/13. 8/6/13 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED TO COUNSEL.(lvj, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLV Al\'IA
JOSEPH BRIAN JIMENEZ,
Plaintiff,
CIVIL ACTION
v.
BRIAN COLEMAN, etal.,
Defendants.
NO. 12-2196
ORDER
APPROVING AND ADOPTING THE REPORT AND RECOMMENDATION
AND DENYING THE PETITION FOR HABEAS CORPUS WITH PREJUDICE
AND NOW, this 2nd
day of August 2013, upon independent consideration of
Petitioner's Petition for Writ of Habeas Corpus, the Response thereto, and after review of the
Report and Recommendation ("R&R") of United States Magistrate Judge HenryS. Perkin and
Petitioner's Objections 1 thereto it is hereby ORDERED that:
1
Petitioner raised two objections:
1. That Magistrate Judge Perkin erred regarding petitioner's claim that
petitioner's guilty plea was not knowing, intelligent, and voluntary, because
Magistrate Judge Perkin erroneously concluded that review by this Court was
foreclosed because the state court decision from which Petitioner sought relief
rested on the adequate and independent state ground of waiver under the
Pennsylvania Post-Conviction Relief Act (''PCRA "). 42 Pa. C.S. §§ 9541, et seq.
Petitioner contends that the Pennsylvania Superior Court improperly raised the
issue sua sponte.
Petitioner is incorrect: it is well established that the issue of waiver may be raised
sua sponte by the Superior Court, regardless ofwhetherthe issue was ''raised by the
Commonwealth or the PCRA court." Commw. of Pa. v. Davis, 573 A.2d 1101,
1105 (Pa. Super. Ct. 1990) (citing Commw. of Pa. v. Flynn, 442 A.2d 256, 259-60
(Pa. Super Ct. 1982)), appeal denied. 589 A.2d 688 (Pa. 1991 ).
I. The R&R is APPROVED and ADOPTED;
2. That Magistrate Judge Perkin erred is his recommendation that pursuant to
28 U.S. C. § 2254(d)(l ), the Court must defer to the prior Pennsylvania state court
determination that Petitioner's ineffective assistance of counsel claim is meritless.
Petitioner contends that, under Third Circuit case law, his plea colloquy for the
charge ofthird degree murder was factually deficient because:
a. During the colloquy the judge stated that Plaintiff had loaded the gun
with which he shot the victim, but there was no testimony to support that fact; and
b. Testimony at Petitioner's sentencing indicated that the shooting was
accidental.
According to Petitioner, his attorney should have objected to and sought
withdrawal of his guilty plea based on the alleged factual deficiency of his plea
colloquy, and the failure to do so constitutes ineffective assistance of counsel.
However, Petitioner does not even attempt to demonstrate how the record is
insufficient to establish the elements of third degree murder in Pennsylvania. In
Pennsylvania, third degree murder does not require that the killing be intentional,
recklessness is sufficient. Commw. of Pa. v. Truong, 36 A.3d 592 (Pa. Super Ct.
20 12); Commw. of Pa. v. Devine, 26 A.3d 1139 (Pa. Super Ct. 2011 ). And the
Court cannot divine the relevance of testimony, or lack thereof, that Petitioner
loaded the gun in question: Petitioner does not argue that he was unaware that the
gun was loaded at the time of the fatal shooting.
Furthermore, Petitioner misunderstands and fails to address the basis for Magistrate
Judge Perkin's recommendation. As clearly stated in the R&R, "[w]here the state
court has already rejected an ineffective assistance of counsel claim, a federal court
must defer to the previous decision, pursuant to 28 U.S.C. § 2254(d)(l),'' and may
grant habeas relief only "if the decision was 'contrary to, or involved an
unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States.··· (R&R at 15 (quoting 28 U.S.C.
§ 2254(d)(l ). other citations omitted).)
Even assuming that Petitioner is correct that under Third Circuit law, his attorney
could have objected to and sought withdrawal of his guilty plea, Petitioner offers no
basis for concluding that the Third Circuit law on which he relies meets the
standard for habeas relief set forth in 28 L.S.C. § 2254(d)(l).
Accordingly, the Court finds no basis for concluding that Magistrate Judge Perkin
erred in recommending deference to the state court's previous rejection of
Petitioner's ineffective assistance of counsel claim.
2. The Petition .for Writ of Habeas Corpus is DENIED with prejudice
and DISMISSED without an evidentiary hearing; and
3. There is no probable cause to issue a certificate of appealability.
O:\Mattl2\12cv2196- Jimenez v. Coleman\12cv2196.0rder Adopting RR.docx
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