Pleasant v. DiGuglielmo

Full title: RICHARD PLEASANT Petitioner, v. DAVID DiGUGLIELMO, et al. Respondent

Court: United States District Court, E.D. Pennsylvania

Date published: Aug 17, 2004

Civil Action No. 04-1053 (E.D. Pa. Aug. 17, 2004)

Opinion

Civil Action No. 04-1053.

August 17, 2004

ORDER

CLARENCE NEWCOMER, Senior District Judge

AND NOW, this day of August, 2004, upon consideration of Petitioner's Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, the Report and Recommendation of the United States Magistrate Judge Peter B. Scuderi, and Petitioner's objections thereto, it is hereby ORDERED that:

1. The Petitioner's Objections are DENIED;

2. The Report and Recommendation is APPROVED and ADOPTED;

3. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED;

4. There is no basis for the issuance of a certificate of appealability.

After a de novo review of the portions of the record objected to by the Petitioner, the Court denies the Petitioners' request for habeas relief. The sum of the Petitioner's objections is that either the prosecution's plea offer of 18 to 36 months remained open to the Petitioner, or the Petitioner was never informed that the offer was "off the table" when he pleaded guilty. The record of the hearings held by the PCRA Court, however, clearly refutes these arguments. Both the Petitioner's trial counsel and the prosecutor testified that the negotiated plea offer was not available when the Petitioner decided to plead guilty. Petitioner claims that the Clerk of the Court having the case listed for non-trial disposition until six days before the guilty plea was entered shows that the negotiated plea was still available. The Clerk's listing, however, is completely irrelevant to whether the District Attorney's office had or had not rescinded its plea offer. Moreover, the testimony of Petitioner's trial counsel and the Petitioner's statements during the plea colloquy adequately support the state court's finding that the Petitioner was adequately informed that he was entering an "open" plea, and that there was no negotiated plea agreement. Accordingly, the Petitioner's objections to the Magistrates' Report and Recommendation must be overruled and the Report approved and adopted. The Court finds no basis for a certificate of appealability.

AND IT IS SO ORDERED.