PROPER v. CLARK et al, No. 1:2017cv00208 - Document 37 (W.D. Pa. 2020)

Court Description: MEMORANDUM OPINION re 7 Petition for Writ of Habeas Corpus filed by STUART J. PROPER. Proper's Petition is denied, and no certificate ofappealability should issue. It is so Ordered. Signed by Magistrate Judge Richard A. Lanzillo on 4/9/2020. (dm)

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PROPER v. CLARK et al Doc. 37 Dockets.Justia.com d) Trial Counsel or the Deendant was inefective in ailing to explore putting on character witness at trial and or ailing to discuss the possible use of such character witnesses with the Deendant. Additionally, trial counsel was inefective in ailing to have a reasonable basis or deciding not to use character evidence on the Deendnt's behalf and said character witnesses were known to the attoney and available to testiy at the trial[.] e) Trial Counsel or the Deendant was inefective or failing to communicate with Kevin Fenstermaker regarding a possible alibi deense. Mr. Fenstermker would testiy to the Deendant being at his residence at the date and times in which the alleged incidents occurred[.] ) Trial Counsel was inefective in failing to impeach [the victim] based on her prior statements that were inconsistent with her trial testimony and failing to raise to the jury the statements made by [the victim] to Oicer Daily which were inconsistent with her trial testimony. g) Trial Counsel was inefective or ailing to call or introduce any evidence on behalf of the Deendant or present a deense to the crimes as chrged[.] h) Trial Counsel was inefective by inaptly advising Deendant about his right to testiy and did not properly explain the consequences of not testiying and the rights the Deendant was giving up[.] i) The sentence imposed by the Trial Court was illegal and in violation of the constitution. The statute imposing the mandatory minimum sentence is unconstitutional nd the mandatory minimums as imposed by the Court are illegal and unconstitutional pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013). ECF No. 7 at 35-36. The PCRA court held n evidentiy hearing on June 30, 2015. Trial counsel testiied that his strategy at trial had been to demonstrate that the victim had made the whole thing up and that he had initially intended to place Proper on the stand to support this deense. ECF No. 19-7 at 7. However, ater engaging Proper in smple cross-examination, counsel noted that "he didn't do very well." Id. at 9. Proper's "story seemed to keep changing" and he struggled to explain several incriminating responses that he had made during a prior videotaped police interrogation conducted by Oicer Daley. Id. at 8-9. During that interrogation, Proper had admitted that: he 4 that reasonable jurists would ind the district court's assessment ofthe constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, "a [certiicate ofappealability] should issue when the prisoner shows, at least, that jurists ofreason would ind it debatable whether the petition states a valid claim ofthe denial ofa constitutional right and that jurists ofreason would ind it debatable whether the district cout was correct in its procedural ruling." Id. Here, the Court concludes that jurists of reason would not ind it debatable whether each ofPetitioner's claims should be denied or the reasons given herein. Accordingly, a certiicate ofappealability will be denied. VI. Conclusion For the reasons set orth herein, Proper's Petition is denied, and no certiicate of appealability should issue. It is so Ordered. 5 2ail RICHARD A. LANILLO United States Magistrate Judge Dated: April 9, 2020 5 Given this disposition, Petitioner's Motion to Modiy Sentence ECF No. 33], Motion to Dismiss Charges ECF No. 35], and Moion or Wit of Mandamus ECF No. 36] are each denied as moot. 25

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