Opinion
1:22-cv-128
03-13-2023
LAROY HOUGH, Petitioner v. LONNIE OLIVER, Superintendent; DISTRICT ATTORNEY OF WARREN COUNTY; and ATTORNEY GENERAL OF COMMONWEALTH OF PENNSYLVANIA, Respondents
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION TO DISMISS HABEAS PETITION (ECF NO. 20) REPORT AND RECOMMENDATION
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Through the Pennsylvania Office of Attorney General, Respondents have filed a motion to dismiss the petition for a writ of habeas corpus filed by Petitioner Laroy Hough pursuant to 28
U.S.C. § 2254. ECF No. 20. It is respectfully recommended that Respondents' motion to be granted. It is further recommended that no certificate of appealability issue.
II. Report
A. Procedural History
Petitioner is incarcerated at the State Correctional Institution at Albion, serving a sentence of imprisonment imposed by the Court of Common Pleas of Warren County, Pennsylvania at docket numbers CP-62-CR-0000140-2017 and CP-62-CR-0000304-2017.
The Superior Court of Pennsylvania summarized the case as follows:
On August 13, 2016, [Petitioner] and two others were burglarizing a residence when the homeowner returned. [Petitioner] fled to a neighboring property, where he stole a truck. The truck's owner observed the theft of his truck and gave chase in a second truck, which he also owned, down a dead-end roadway. The truck owner
stopped the second truck behind the first, blocking the roadway. [Petitioner] crashed the truck he was driving into a ditch. Both [Petitioner] and [the] truck owner exited the respective vehicles. They scuffled, and the truck owner was knocked to the ground. [Petitioner] entered the second truck and started to drive it in reverse. The truck owner stood up and attempted to stop [Petitioner] by grabbing the steering wheel and reaching inside the second truck to try to turn off the ignition. [Petitioner] did not stop the vehicle, striking and running over the truck owner with the truck. The truck owner was severely injured as a result. [Petitioner] fled the area and entered a different, nearby residence, where he stole several items.
On August 24, 2017, [Petitioner] entered a negotiated guilty plea at docket CP-62-CR-0000140-2017, to one count each of burglary, aggravated assault, theft by unlawful taking, and criminal mischief, and at docket 62-CR-0000304-2017, to one count of theft by unlawful taking. All remaining charges at both dockets were nolle prossed. On October 27, 2017, the trial court sentenced [Petitioner] to an aggregate term of 10 years and 3 months to 31 years and 6 months of incarceration.[fn 1]
[footnote 1] Specifically, at criminal docket CP-62-CR-0000140-2017, [Petitioner] was sentenced to 30 months to 10 years on the burglary conviction, 42 months to 10 years on the aggravated assault conviction, 27 months to 60 months on the theft by unlawful taking conviction, and 9 to 18 months on the criminal mischief conviction, with all sentences to be served consecutively. At criminal docket 62-CR-0000304-2017, [Petitioner] was sentenced to 16 months to 60 months on the theft by unlawful taking conviction, to be served consecutively to the aforesaid sentences. Amended Sentencing Order, 10/27/2017, at 1-4. All of these sentences are within the standard range of the sentencing guidelines, except the aggravated assault sentence, which is within the aggravated range. The trial court also ordered restitution in the amount of $141,381.46. Id.Commonwealth v. Hough, 198 A.3d 455 (Pa. Super. 2018) (unpublished memorandum); ECF No. 21-1 at 172-174.
Petitioner filed a timely appeal from the judgment of sentence; the Superior Court affirmed on September 14, 2018. Id. The Supreme Court of Pennsylvania denied Petitioner's petition for allowance of appeal on April 2, 2019. Commonwealth v. Hough, 205 A.3d 1229 (Pa. 2019).
On September 12, 2019, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Counsel was appointed for him but was permitted to withdraw after filing a no-merit letter. The petition was dismissed on April 27, 2021. The Superior Court affirmed the dismissal on August 4, 2021. Commonwealth v. Hough, 262 A.3d 463 (Pa. Super. 2021) (unpublished memorandum); ECF No. 21-1 at 383-395. The Supreme Court denied allowance of appeal on January 19, 2022. Commonwealth v. Hough, 271 A.3d 875 (Pa. 2022).
Petitioner commenced this habeas litigation on April 14, 2022. ECF No. 1. The petition and a memorandum of law in support were filed on April 26, 2022. ECF Nos. 5-6. Respondents filed the instant motion to dismiss and a brief in support on September 28, 2022. ECF Nos. 2021. Petitioner filed a response to the motion on November 22, 2022. ECF No. 25. The motion is ripe for consideration.
B. Analysis
Petitioner presents five grounds for relief.
1. Ground One: Ineffective assistance of plea counsel for failing to raise compulsory joinder
Petitioner first asserts that his plea counsel was ineffective for failing to challenge the charges against him on the basis that they violated the compulsory joinder rule. ECF No. 5 at 45. Petitioner raised this claim in the litigation of his PCRA petition.
In his PCRA appeal, the Superior Court explained that, because Petitioner entered a guilty plea, he waived “all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality' of the sentence imposed.” ECF No. 21-1 at 390 (citing Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa. Super. 2019)). The Court further explained that “[i]n a post-conviction proceeding, the only cognizable issues a petitioner may raise are the validity of the plea of guilty and the legality of the sentence.” Id. (citing Commonwealth v. Rounsley, 717 A.2d 537, 538 (Pa. Super. 1998)). Because the claim concerning compulsory joinder did not involve the validity of his plea or the legality of his sentence, the Superior Court found that it was not cognizable. Id. at 394.
Where, as here, a state court has refused to consider a petitioner's claim due to a violation of state procedural rules, a federal habeas court is barred by the procedural default doctrine from considering the claims, Harris v. Reed, 489 U.S. 255 (1989); Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992), unless the petitioner shows “cause” for the default and “prejudice” attributable thereto. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Although Respondents argue that this claim is procedurally defaulted, ECF No. 21 at 8-10, Petitioner did not attempt to show cause and prejudice for the default; he merely denies that the claim is defaulted, ECF No. 25 at 2. Petitioner is incorrect. The claim is procedurally defaulted; therefore, he cannot obtain habeas relief on this ground.
2. Ground Two: Ineffective assistance of plea counsel for failing to request an itemization of restitution
Petitioner next asserts that his plea counsel was ineffective for failing to request that the restitution amount be itemized. ECF No. 5 at 6-7. Petitioner raised this issue in the litigation of his PCRA petition.
In the PCRA appeal, the Superior Court of Pennsylvania found, as it did with the compulsory joinder claim, that the claim did not involve the validity of Petitioner's plea or the legality of his sentence, thus, Petitioner was precluded from raising it. ECF No. 21-1 at 391-93. This claim, like the previous claim, is thus procedurally defaulted. And as with the previous claim, although Respondents argue that this claim is procedurally defaulted, ECF No. 21 at 8-10, Petitioner does not attempt to show cause and prejudice; he merely denies that the claim is defaulted, ECF No. 25 at 2. Petitioner is incorrect. Because it is procedurally defaulted, he cannot obtain habeas relief on this ground.
3. Grounds Three and Four: Ineffective assistance of counsel for failing to challenge the sufficiency of the evidence
In the next two claims, Petitioner argues that his counsel was ineffective for failing to challenge the sufficiency of the evidence supporting the charge for and conviction of aggravated assault. ECF No. 5 at 7-11. Specifically, Petitioner asserts that his plea counsel should have challenged the sufficiency of the evidence concerning the requisite mean rea in a pretrial motion and during the direct appeal process. Id. at 7, 9. He also asserts that PCRA counsel failed to raise this issue. Id. at 9.
As Respondents point out, ECF No. 21 at 13-14, Petitioner's plea counsel did, in fact, challenge the sufficiency of the evidence in pretrial motion. On June 15, 2017, Petitioner's counsel filed an “Omnibus Pretrial Motion in the Form of a Motion for Writ of Habeas Corpus/Motion for the Return of Property,” and a supporting memorandum of law, in both of which he asserted, inter alia, that the factual allegations against Petitioner did not meet the statutory elements (including intent) of aggravated assault. ECF No. 21-2 at 116-17; 137-39. This motion was denied. ECF No. 21-2. Accordingly, the claim that counsel was ineffective for failing to file a motion that he did, in fact, file, is meritless.
To the extent that Petitioner argues that counsel should have pursued a challenge to the sufficiency of the evidence on direct appeal, he could not have done so. When Petitioner entered his guilty plea, he conceded that the Commonwealth's evidence was sufficient to support his conviction. Rounsley, 717 A.2d at 539 (explaining that “any issue relating to sufficiency of the evidence is waived by entry of a guilty plea and is not subject to attack in a post conviction proceeding”). Accordingly, the claim that counsel was ineffective for failing to raise an issue on appeal that was not cognizable on appeal is meritless.
Petitioner is not entitled to relief on these grounds.
4. Ground Five: Excessive sentence
Finally, Petitioner claims that his sentence was excessive because the sentencing court erroneously applied the sentencing guidelines. ECF No. 5 at 12-13. Although Petitioner makes passing references to due process and the Eighth Amendment, his claim is solely a state law challenge to the discretionary aspects of his sentence,which is not cognizable on habeas review. See, e.g., Robles v. Superintendent Laurel Highlands SCI, 2020 WL 2078297 (3d Cir. 2020) (finding claim that the court abused its discretion in sentencing is non-cognizable on habeas review where petitioner did not demonstrate that the sentence violated a federal constitutional right).
Petitioner concedes that this claim is the same one he raised on direct appeal and in his PCRA petition. ECF No. 5 at 12. On direct appeal, Petitioner raised an excessive-sentence claim which the Superior Court rejected because Petitioner failed to properly present his argument on appeal. ECF No. 21-1 at 176. The Superior Court found, however, that even if it were to consider the discretionary aspects of Petitioner's sentence, it would find no merit to such a claim. Id. at 178 n.4. Petitioner also raised a claim implicating the discretionary aspects of his sentence in the litigation of his PCRA petition. In his PCRA appeal, the Superior Court of Pennsylvania found that this claim that the sentence was excessive and that the sentencing court incorrectly applied the sentencing guidelines was not cognizable under the PCRA . Id. at 394.
Accordingly, Petitioner is not entitled to habeas relief on this ground.
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether Petitioner's claims should be denied for the reasons given herein. Thus, no certificate of appealability should issue.
D. Conclusion
For the reasons set forth herein, the Motion to Dismiss Habeas Petition, ECF No. 20, should be granted and no certificate of merit should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).