Opinion
CIVIL ACTION No. 13-6420
05-08-2018
JAMAL WRIGHT, Petitioner, v. MARIROSA LAMAS, et al., Respondents
REPORT AND RECOMMENDATION U.S. Magistrate Judge
Jamal Wright filed a petition to vacate or modify his sentence, pursuant to 28 U.S.C. §2254 on November 1, 2013. ECF Doc. 1. Wright claimed that his trial counsel was ineffective for failing to secure testimony from a witness who would have exculpated him. Though he did not raise this particular claim during his PCRA proceeding in state court, he claimed that his PCRA counsel was ineffective for failing to raise this claim, and that this ineffectiveness of counsel would excuse his procedural default, under state law, and his failure to exhaust available state court remedies.
Wright's pro se petition made additional allegations, but he abandoned all other claims on the advice of counsel. See Doc. [petitioner's brief and his affidavit attached to the brief].
I held an evidentiary hearing on December 7, 2017, during which trial counsel David Rudenstein and the Petitioner testified. ECF Doc. 81. Subsequent to the hearing, the Commonwealth filed an unopposed motion to stay the proceedings in order to provide time for the new District Attorney to review the file. ECF Doc. 80. After the parties filed status reports on March 2, 2018 and April 5, 2018, requesting additional time, see ECF Docs. 85 and 86, the parties advised on May 7, 2018 that they have reached a stipulation. After review of the Stipulation and Order, I respectfully recommend that the Stipulation be accepted, that the Petitioner's Petition for Writ of Habeas Corpus be conditionally granted, ordering the state court to act within 90 days from the date of the conditional grant of the Writ to vacate Petitioner's conviction and sentences in Commonwealth v. Wright, CP-51-CR-0710141-2000, for the offenses of first-degree murder and criminal conspiracy.
Petitioner has agreed that, at the time the conditional Writ is granted, that he will plead guilty to charges of third-degree murder and criminal conspiracy and be sentenced to a cumulative sentence of no greater than 17 to 34 years' imprisonment in Commonwealth v. Wright, CP-51-CR-0710141-2000. The Commonwealth has agreed that Petitioner will receive credit for time served from June 8, 2000.
FACTUAL AND PROCEDURAL BACKGROUND
Wright was convicted of first-degree murder following a bench trial in 2001. The relevant facts at trial were summarized by the Pennsylvania Superior Court:
On July 31, 1999, at approximately 10:00 p.m., [Wright] and his co-defendant, Yakee Bentley, approached the victim, Thomas "Tee" Weldon, who was walking up the 4500 block of Sansom Street in Philadelphia. While [Wright] shook Tee's hand, Bentley walked behind Tee and pulled him to the ground. [Wright] then searched Tee's pockets as Bentley kept him pinned to the ground. Some five seconds later, Tee was killed by two gun shots to the head; the shots were fired at close range. Less than one minute after the shots were fired, [Wright] and Bentley ran down the street shouting to each other, "We killed that nigger. We shot Tee."Commonwealth v. Wright, No. 1291 EDA 2002, at 1-2, (Pa. Super. Nov. 6, 2003) (internal citations omitted).
On November 8, 2001, Wright was sentenced to life imprisonment without parole on the first degree murder conviction, and a concurrent term of ten to twenty years of imprisonment on the conspiracy conviction. The Pennsylvania Superior Court affirmed the judgments of sentence on November 6, 2003. See id. The Pennsylvania Supreme Court denied allocatur on April 2, 2004. Wright's conviction became final on July 1, 2004, when his time within which to petition the United States Supreme Court expired.
On October 20, 2004, Wright filed a pro se petition in state court pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"). Counsel was appointed and filed an amended petition on August 30, 2005. Notices of Intent to Dismiss pursuant to Pa. R. Crim. P. 907 were filed by the PCRA court on both December 7, 2009 and March 11, 2011. The PCRA petition was formally dismissed on April 29, 2011. Wright appealed, and the Superior Court affirmed the dismissal of the PCRA petition on October 31, 2012. Wright's PCRA counsel did not file a petition for allowance of appeal with the Pennsylvania Supreme Court. Wright filed a pro se habeas petition with this court on October 29, 2013.
"[A] pro se prisoner's habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the district court." Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998). Wright's petition is signed and dated October 29, 2013. It is assumed that he delivered it to prison officials that same day. --------
I previously recommended that Mr. Wright's petition be dismissed, because it was untimely filed. ECF Doc. 26. Mr. Wright objected, claiming his PCRA attorney had not timely notified him of the October 31, 2012 decision denying his PCRA appeal. The district judge then assigned counsel to represent Mr. Wright. Counsel filed a brief and appendix. ECF Doc. 44. Mr. Wright explained in an affidavit that he did not receive notice of the October 31, 2012 opinion from his attorney until February of 2014, well after the filing deadline for his habeas petition. ECF Doc. 44-10, pp. 1-3. Respondent filed a memorandum contending that Mr. Wright's PCRA counsel had notified Mr. Wright of the October 31, 2012 opinion by three letters, in March, July, and August of 2013. See Res. Br. at p. 13.
Meanwhile, Yakee Bentley, charged in the same incident along with Jamal Wright, also filed a petition for Writ of Habeas Corpus on October 16, 2013. No. 17-6045 (E.D. Pa.) The matter was assigned to Judge Timothy R. Rice for issuance of a Report and Recommendation. After oral argument on December 4, 2015, and full briefing of the parties, Judge Rice granted the Writ, finding that the en banc Superior Court of Pennsylvania unreasonably failed to take into account certain credibility determinations made by the trial judge in the PCRA proceedings. Yakee D. Bentley v. Marirosa Lamas, No. 13-6045, Doc. No. 56 (E.D. Pa. January 21, 2016). After negotiation, the District Attorney of Philadelphia entered into a stipulation with Mr. Bentley, in which the parties agreed that Bentley's Writ of Habeas Corpus would be conditionally granted, and within 90 days, the state court would vacate Bentley's convictions and sentences in Commonwealth v. Bentley, CP-51-CR-1201411-1999, for first-degree murder and criminal conspiracy. Bentley would plead guilty to charges of third-degree murder and criminal conspiracy, and be sentenced to a cumulative sentence of no greater than 17 to 34 years' imprisonment. In other words, identical to the stipulation proposed here.
I have reviewed this file, and I believe that a plea to third-degree murder and criminal conspiracy is a fair and just result in this case. I therefore respectfully recommend that the stipulation be adopted, that the Petition for Writ of Habeas Corpus be conditionally granted, and that this matter be closed.
RECOMMENDATION
Based upon the foregoing discussion, I recommend that Wright's habeas petition be CONDITIONALLY GRANTED. Once the Commonwealth has vacated the previous conviction, and Petitioner has pled guilty to third-degree murder and criminal conspiracy in the matter of Commonwealth v. Wright, CP-51-CR-0710141-2000, the parties will report to this Court. I recommend that upon the successful completion of these matters, this file be closed.
BY THE COURT:
/s Richard A . Lloret
RICHARD A. LLORET
U.S. Magistrate Judge