Opinion
Civil Action No. 06-28 Erie.
August 15, 2006
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is recommended that the Petition for Writ of Habeas Corpus be dismissed and that a certificate of appealability be denied.
II. REPORT
Petitioner Jermaine T. McCalebb is a state prisoner currently incarcerated at the State Correctional Institution at Greensburg, Pennsylvania, serving a state sentence of 7½ to 15 years of imprisonment that was imposed on October 6, 2003. He has filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging the legality of his sentence.
A. Relevant Factual and Procedural History
On May 22, 2003, Petitioner was charged by criminal information at Erie County docket number 914 of 2003 with Discharge of Firearm Into an Occupied Structure, Firearms not to be Carried Without a License, Recklessly Endangering Another Person, and two counts of Aggravated Assault. By separate criminal information at Erie County docket number 915 of 2003, Petitioner was also charged on the same date with Recklessly Endangering Another Person, Resisting Arrest, Fleeing or Attempting to Elude Police Officer, Simple Assault, and several summary offenses. (Response to Petition at p. 3). On June 5, 2003, Petitioner entered a plea of guilty on all counts at both dockets and, on October 6, 2003, Petitioner was sentenced in the Erie County Court of Common Pleas to an aggregate term of 7½ to 15 years of imprisonment. Petitioner filed a post sentence motion for reconsideration on October 10, 2003, which was denied by the sentencing judge. On December 17, 2003, Petitioner filed a direct appeal with the Superior Court of Pennsylvania, but Petitioner was notified on January 6, 2004 that his appeal was untimely. (Response to Petition at p. 3).
At docket number 914 of 2003, Petitioner received an aggregate sentence of 7 to 14 years of imprisonment, while at docket number 915 of 2003, Petitioner received a consecutive aggregate sentence of 6 to 12 months incarceration. (Response to Petition at p. 3 n. 1).
Petitioner subsequently filed a motion pursuant to the Post Conviction Relief Act ("PCRA Motion") on February 9, 2004, which was denied by the sentencing judge on May 20, 2004. Petitioner filed a second PCRA Motion on November 8, 2004, which was denied by the sentencing judge on November 9, 2004. On November 18, 2004, Petitioner appealed the denial of his second PCRA Motion to the Pennsylvania Superior Court, which affirmed the trial court's decision on January 15, 2005. The Petitioner then filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court on July 19, 2005, which was denied by Order dated December 21, 2005. (Response to Petition at pp. 3-4).
Petitioner has now filed the instant Petition with this Court challenging the legality of his sentence, claiming that it exceeds the maximum penalty outlined in his plea agreement, and also exceeds the maximum penalty allowed by state sentencing guidelines.
B. Claims Cognizable in Federal Habeas Corpus Proceedings
A state prisoner may seek habeas relief from the federal courts only if he is in custody in violation of federal law or the United States Constitution. See 28 U.S.C. § 2254(a); Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1997), cert. denied, 502 U.S. 902. Violations of state laws or procedural rules do not allow for relief; there must be a deprivation of a federal right. Engle v. Isaac, 456 U.S. 107 (1982).
A federal court's scope of review in a habeas case is limited, as it does not sit to retry cases de novo, but examines the state proceedings to determine if there has been a violation of federal constitutional standards.Milton v. Wainwright, 407 U.S. 471 (1972). A habeas petitioner must show that the state error reaches constitutional dimension; ordinary error is outside the scope of review. 28 U.S.C. § 2254.
Here, Petitioner's sole claim is that his sentence is illegal and constitutes cruel and unusual punishment. In particular, Petitioner claims that the sentence exceeds the maximum penalty allowed by law; however, the record in this case indicates that Petitioner's sentence was not only within the legal maximum allowed by law, it was within the standard range of the sentencing guidelines. (See State Court Record, Document # 35, Memorandum Opinion of the Pennsylvania Superior Court, dated June 15, 2005, at p. 3). It is well-settled that challenges to "the severity of a [Petitioner's] sentence alone constitutes no ground for [habeas] relief." United States ex rel. Jackson v. Myers, 374 F.2d 707, 711 n. 11 (3d Cir. 1967); United States ex rel. Burgess v. Rundle, 308 F.Supp. 1338 (E.D.Pa. 1970). So long as the underlying sentence is within the legal maximums, a federal habeas court cannot review its discretionary aspects.Commonwealth of Pennsylvania ex rel. Spader v. Burke, 74 F.Supp. 850 (E.D.Pa. 1947). As a result, the Petition in this case should be dismissed.
C. Certificate of Appealability
Section 102 of the Antiterrorism and Effective Death Penalty Act ( 28 U.S.C. § 2253 (as amended)) codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. Amended Section 2253 provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Where the federal district court has rejected a constitutional claim on its merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong . . ." Szuchon v. Lehman, 273 F.3d 299, 312 (3d Cir. 2001) quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner meets this standard if he can show that the issue "is debatable among jurists, or that a court could resolve the issue differently, or that the question deserves further proceedings." McCracken v. Gibson, 268 F.3d 970, 984 (10th Cir. 2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific issues satisfy the standard. Because Petitioner has not made such a showing, a certificate of appealability should be denied.
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the instant petition for writ of habeas corpus be dismissed and that a certificate of appealability be denied.
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of service to file written objections to this Report and Recommendation. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights.