BRUNSON v. DELBASO et al
MEMORANDUM ORDER. Douglas Brunson's 2254-habeas petitions, as amended, are DISMISSED; Petitioner's Motion (Doc. 22 ) to appoint counsel is DENIED AS MOOT; a certificate of appealability is denied; and the Report and Recommendation (Doc. 30 ) is adopted as the Opinion of the District Court, as supplemented herein. Signed by Judge Cathy Bissoon on 2/13/18. (dcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THERESA DELBASO, et al.,
Civil Action No. 17-264
Judge Cathy Bissoon
Magistrate Judge Robert C. Mitchell
This case has been referred to United States Magistrate Judge Robert C. Mitchell for
pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B),
and Local Rule of Civil Procedure 72.
On November 1, 2017, the Magistrate Judge issued a Report (Doc. 30) recommending
that Douglas Brunson’s 2254-habeas petition, as amended, be dismissed; and that a certificate of
appealability be denied. Service of the Report and Recommendation was made, and Petitioner
has filed Objections. See Docs. 35 & 38.
Petitioner’s Objections are OVERRULED. As Judge Mitchell correctly observed,
the prosecutor’s purported breach of Petitioner’s plea agreement had no impact on his
resentencing. See Report at 6-7. Consequently, Petitioner cannot establish prejudice under
Strickland, and this is fatal to his claims. Campbell v. Smith, 770 F.3d 540, 549–50 (7th Cir.
2014) (holding same); compare also id. at 550 (in determining whether a petitioner has shown
prejudice, the court may consider evidence regarding the actual decision-making process,
provided it is part of the sentencing record) with Report at 6-7 (quoting state court’s colloquy at
resentencing, indicating that Petitioner would have received the same sentence, regardless of the
prosecutor’s recommendation). The Campbell decision is well-reasoned and persuasive, and the
Court adopts it in support of the Magistrate Judge’s Report and Recommendation.
The Court likewise rejects Petitioner’s contention that trial-counsel was ineffective
for advising Petitioner to plead guilty because “there [was] insufficient evidence to support a
robbery conviction.” See Doc. 28 at pg. 2 of 15. Even assuming this issue has not been
procedurally-defaulted, see Report at 8, Petitioner’s claim fails on the merits because he
“specifically waived the need for the Commonwealth to set forth the factual bases for its
[charges].” See Report at 7-8. In support of the Report and Recommendation, the Court
incorporates by reference, and adopts, the analyses and record-citations in Respondents’ Answer
(Doc. 12), at pages 34 through 36.
Thus, after a de novo review of the pleadings and documents in the case, together with
the Report and Recommendation and the Objections thereto, it hereby is ORDERED that
Douglas Brunson’s 2254-habeas petitions, as amended, are DISMISSED;1 a certificate of
appealability is denied; and the Report and Recommendation is adopted as the Opinion of the
District Court, as supplemented herein.
IT IS SO ORDERED.
February 13, 2018
United States District Judge
In light of this ruling, Petitioner’s Motion (Doc. 22) to appoint counsel is DENIED AS
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