PEREZ v. SUPERINTENDENT COAL TOWNSHIP et al

Filing 27

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR ALL PURPOSES.. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 10/17/17. 10/19/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARK A. PEREZ,
Petitioner
vs.
SUPERINTENDENT COAL
TOWNSHIP, et al.,
Respondents

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CIVIL ACTION

NO 13-6085

ORDER
AND NOW, this 17th day of October, 2017, upon careful and independent consideration
of the petition for writ of habeas corpus, the response thereto, and the state court records, and
after review of the thorough and well-reasoned Report & Recommendation of United States
Magistrate Judge David R. Strawbridge, IT IS HEREBY ORDERED that:
1. The petitioner’s Objections are OVERRULED. 1

1

On December 19, 2016, having received no Objections from the petitioner, I approved
and adopted Judge Strawbridge’s Report & Recommendation. The petitioner responded that he
had not received the Report & Recommendation within the allotted time to object because it was
sent to the wrong facility. I vacated my Order and permitted the petitioner to file Objections,
which he did.
Upon de novo review, I find that the petitioner’s Objections are meritless. First, the
petitioner challenges Judge Strawbridge’s treatment of the claim of whether guilty plea counsel
was ineffective. Judge Strawbridge cited portions of the record including the opinions of the
PCRA Court and the Superior Court which held that guilty plea counsel was not ineffective. The
petitioner has not shown that the state court adjudication of this ineffectiveness claim reflects an
unreasonable application of Strickland. Second, notwithstanding the petitioner’s objections,
Judge Strawbridge properly determined that the petitioner’s claim of ineffectiveness of postsentence and direct appeal counsel was procedurally defaulted. The petitioner does not allege
any facts sufficient to excuse the procedural default. Third, the petitioner objects to Judge
Strawbridge’s determination that the Due Process and Equal Protection claims are not cognizable
under habeas corpus review. The petitioner argues that the state courts, i.e., the PCRA Court
and the Superior Court, denied him the opportunity to be heard on all claims of error raised
timely once he obtained the state court record.” He insists that this claim should be considered
because it implicates “the Constitution and the fact that he is an innocent man incarcerated for a
crime which he did not commit.” I disagree. The PCRA Court has discretion to determine
whether an evidentiary hearing is required. A claim concerning state collateral proceedings does

2. The Report and Recommendation is APPROVED and ADOPTED;
3. The petition for writ of habeas corpus is DENIED;
4. A certificate of appealability SHALL NOT issue, in that the petitioner has not made a
substantial showing of the denial of a constitutional right, or demonstrated that reasonable jurists
would debate the correctness of this ruling. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529
U.S. 473, 484 (2000).
The Clerk of Court shall mark this case CLOSED for all purposes.
BY THE COURT:
/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, C. J.

not involve the Constitution, laws, or treaties of the United States. Collateral proceedings are not
required of states, and when states choose to provide such procedures, the same constitutional
rights do not attach. This claim is guided by state law and PCRA procedures, and is thus not
cognizable in federal habeas petitions. His claim that the Superior Court erred in finding his
claims waived on appeal must also fail. The petitioner points to appellate counsel as the cause of
this procedural default. However, he cannot show that any alleged ineffectiveness resulted in
actual prejudice to him. The Superior Court considered his guilty plea agreement and properly
determined that the petitioner entered his plea knowingly, voluntarily, and intelligently.
Along with his Objections, the petitioner added a fourth claim to his habeas petition. He
claims that his sentence was illegally enhanced in violation of Alleyne v. United States. 133
S.Ct. 2151 (2013). In Alleyne, the defendant was convicted of using or carrying a firearm in
relation to a crime of violence. The conviction carried a mandatory minimum sentence of five
years which was increased to a seven year minimum if the firearm was “brandished.” Id. at
2155-56. His sentence was based on a finding that he brandished the firearm even though the
jury did not find brandishing beyond a reasonable doubt. Id. The Supreme Court held that
because the finding of brandishing increased the penalty to which defendant was subjected, it
was an element of the offense, which had to be found by the jury beyond a reasonable doubt. As
the judge, rather than the jury, found brandishing, the Court held that the sentence violated the
defendant’s Sixth Amendment rights. Id. at 2163-64. Here, when presented with the petitioner’s
Alleyne claim, the Superior Court properly found that Alleyne could provide the petitioner no
relief because he was not sentenced to a mandatory minimum sentence. Commonwealth v.
Perez, No. 1062 EDA 2016, *4-5, 159 A.3d 590 (Pa.Super. November 17, 2016). Thus, because
the petitioner has failed to show that a jury was not presented with a fact which increased his
sentence, there could be no Sixth Amendment violation under Alleyne. Because the petitioner
has not shown that the state court adjudication of this claim reflects an unreasonable application
of Alleyne, I will deny this fourth claim. See 28 U.S.C. § 2254(d).