Opinion
Civil Action 2: 21-cv-0432
11-18-2022
JAMES MICHAEL DUBROCK, Petitioner, v. SUPERINTENDENT of SCI SOMERSET, ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, AND DISTRICT ATTORNEY OF JEFFERSON COUNTY, COUNTY, Respondents.
Robert J. Colville United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Cynthia Reed Eddy United States Magistrate Judge
I. RECOMMENDATION
Petitioner, James Michael Dubrock (Dubrock) is a state prisoner in the custody of the Pennsylvania Department of Corrections and currently confined at the State Correctional Institution at Somerset, in Somerset, Pennsylvania. Through counsel, he has filed the instant Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging the judgment of sentence imposed on him on October 19, 2016, in the Court of Common Pleas of Jefferson County, Pennsylvania, at Criminal Docket No. CP-02-CR-0015978-2012. For the reasons below, it is recommended that the Petition be denied and a certificate of appealability as to each claim be denied.
II. REPORT
A. Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Dubrock's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a) ; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (which is discussed below). But, ultimately, Dubrock cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.
B. Relevant and Procedural Background
Respondents electronically filed as exhibits to their Answer (ECF No. 10) relevant parts of the state court record. For ease of reference, the Court uses the page numbers from the CM/ECF header.
“The Commonwealth initially charged [Dubrock] with eighty offenses .... On October 11, 2016, [Dubrock] entered a plea of nolo contendere to six counts of arson” in violation of 18 Pa.C.S.A § 3301(a)(1)(i). The plea was entered pursuant to a plea agreement. The Superior Court of Pennsylvania recounted the background of this case in its decision affirming the judgment of sentence:
On February 20, 2016, a fire was set at the residence of Jason and Kayla Little which they shared with four minor children.Responding officers located a vehicle registered to [Dubrock] in the general area of the Little residence. [Dubrock] was flown for emergency treatment. A gasoline container was located nearby after
emergency personnel followed a set of footsteps from the wrecked vehicle up an embankment. Law enforcement recovered [Dubrock's] clothing and noted an odor of gasoline. Video surveillance from the Little residence showed a male came to the residence at approximately 1:00 AM. A few minutes later a bright light is seen as a fire began burning on the porch. The male is seen running from the residence to a nearby vehicle with a gasoline can in his hand. The clothing worn by the individual was consistent with the clothing recovered from [Dubrock] at the hospital. In addition to the residents of the home[,] fifteen firefighters responded to extinguish the fire. No one was injured, but the residence sustained fire damage.Commonwealth v. Dubrock, No. 1906 WDA 2016, slip op. (Super. Ct. Oct. 31, 2018) (quoting Appellant's Brief at 7-8 (ECF No. 10-2 at pp. 1-2). On October 11, 2016, Dubrock appeared before the Honorable John H. Foradora, President Judge, and entered a plea of nolo contendere. He was represented by Attorney Michael J. Antkowiak. On October 19, 2016, Judge Foradora, pursuant to the terms of the plea agreement, imposed a sentence of 3-20 years on each count of conviction for an aggregate sentence of 18 to 120 years, with credit for time served.
Kayla Little testified during Dubrock's sentencing proceeding that she and her husband along with their five-year old son, eight-month old daughter, and her two nephews who were spending the night were in the house that night. N.T., 10/11/2016, p.3 (ECF No. 10-15 at 3).
Dubrock, through new counsel, Attorney Patrick K. Nightingale, filed a direct appeal in which he raised a challenge to the discretionary aspect of his sentence. The Superior Court of Pennsylvania denied the claim on its merits and affirmed the judgment of sentence, specifically finding that the trial court did not abuse its discretion by imposing consecutive sentences for each of his six counts of arson and finding that the sentence entered was pursuant to the plea agreement. Dubrock did not seek further review.
After his direct appeal concluded, Dubrock filed a timely pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (PCRA). (ECF No. 10-3). The trial court, now the PCRA court, appointed Attorney George N. Dagnir to represent Dubrock during the PCRA proceedings. Attorney Dagnir filed a no-merit letter and petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). (ECF No. 1-10). In the no-merit letter, Attorney Dagnir addressed each of the six issues raised by Dubrock in his pro se PCRA petition and found each to be without merit:
1. That his no contest plea was involuntary as it was coerced;
2. That imposition of multiple consecutive sentences for one act of arson was illegal as these six sentences should have been merged;
3. That appellate counsel was ineffective for failing to raise the issue of the court entering six consecutive sentences for one act of arson when the court should have merged the sentences;
4. That his actions did not meet the elements of the crime of arson as said crime requires injury to the victims;
5. Trial counsel failed to consult with and advise defendant of his appellate rights subsequent to sentencing; and
6. Trial counsel did not sufficiently investigate the facts of the case.
No Merit Letter at p. 5 (ECF No. 10-10 at p. 9). The PCRA court granted Attorney Dagnir's request to withdraw and issued a notice of intent to dismiss the PCRA petition, to which Dubrock filed a pro se response in opposition. Thereafter, the PCRA court denied Dubrock's PCRA petition. (ECF No. 10-17, at p. 403). Dubrock, pro se, filed an appeal to the Superior Court. The Superior Court noted that Dubrock's brief “provides a rambling and, at times repetitive set of issues” but “essentially Dubrock claims in his Rule 1925(b) statement that plea counsel's failure to investigate the case and file appropriate pre-trial motions caused him to enter a nolo contendere plea that was ‘un-intelligent, coerced, and under threat'.” Commonwealth v. Dubrock, No. 822 WDA 2019 (Pa. Super. Ct. 2020) (unpublished). (ECF No. 10-4, at p. 4). The Superior Court denied the claim on its merits and affirmed the PCRA court's denial of the PCRA Petition. The Supreme Court of Pennsylvania denied Dubrock's petition for allowance of appeal. Commonwealth v. Dubrock, No. 120 WAL 2020 (Pa. 2020) (ECF No. 10-9). Dubrock sought no further review.
Having been denied relief in state court, Dubrock filed the instant counseled federal habeas petition in which he raises four claims: two ineffective assistance of counsel claims and two due process claims. Respondents filed an Answer (ECF No. 10), to which Dubrock filed a counseled reply brief. (ECF No. 11). The undersigned has reviewed the filings of the parties, as well as the electronically filed state court record, including the transcripts from Dubrock's plea hearing (ECF No. 10-14) and sentencing proceeding (ECF No. 10-15), the appellate briefs filed by the parties with the Superior Court of Pennsylvania, and the Memorandums of the Superior Court of Pennsylvania filed October 31, 2018 (ECF No. 10-2), and March 30, 2020. (ECF No. 10-4). The matter is fully briefed and ripe for disposition.
The Commonwealth did not submit a brief in response to Dubrock's appeal from the denial of his PCRA Petition.
C. The Standard for Habeas Relief Under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by AEDPA, “which imposes significant procedural and substantive limitations on the scope” of the Court's review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).
A finding of fact made by a state court, including credibility determinations, always has been afforded considerable deference in a federal habeas proceeding. Vickers, 858 F.3d at 850 (even in pre-AEDPA cases, “ ‘federal habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been observed by the state trial court, but not by them' ”) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.
AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d). It applies to any federal habeas claim “that was adjudicated on the merits” by the state courtsand it prohibits a federal habeas court from granting relief unless the petitioner established that the Superior Court's “adjudication of the claim”:
When applying § 2254(d), the federal habeas court considers the “last reasoned decision” of the state courts. Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (quoting Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008)); Brown v. Sup't Greene SCI, 834 F.3d 506, 512 (3d Cir. 2016).
was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”Becker v. Sec'y Pennsylvania Dep't of Corr., 28 F.4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).
If the Superior Court did not adjudicate a federal habeas claim on the merits, this Court must determine whether the absence of an adjudication is because petitioner did not raise the claim to the Superior Court and, as a result, it is now procedurally defaulted. If the claim is procedurally defaulted, this Court should deny it for that reason. If the claim is not defaulted, or if Dubrock established grounds to excuse his default, the standard of review at § 2254(d) does not apply and this Court reviews the claim de novo. See, e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. In applying it, this Court's first task is to determine what law falls within the scope of the “clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). “The clearly established law” is “ ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.' ” Dennis v. Sec'y, Pennsylvania Dep't of Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (3d Cir. 2003)).
Once the “clearly established Federal law, as determined by the Supreme Court of the United States,” is identified, this Court must determine whether the state court's adjudication of the claim at issue was “contrary to” that law. Williams, 529 U.S. at 404-05 (explaining that the “contrary to” and “unreasonable application of” clauses of § 2254(d)(1) have independent meaning). A state-court adjudication is contrary to clearly established Federal law “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” id. at 405, or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent.” Id. at 406.
A “run-of-the-mill” state-court adjudication applying the correct legal rule from Supreme Court decisions to the facts of a particular case will not be “contrary to” Supreme Court precedent. Id. at 406. For that reason, the issue in most federal habeas cases is whether the adjudication by the state court survives review under the “unreasonable application” clause of § 2254(d)(1).
“A state court decision is an ‘unreasonable application of federal law' if the state court ‘identifies the correct governing legal principle,' but ‘unreasonably applies that principle to the facts of the prisoner's case.' ” Dennis, 834 F.3d at 281 (quoting Williams, 529 U.S. at 413). To satisfy the burden under this provision of AEDPA's standard of review, a petitioner must do more than convince this Court that the state court's decision was incorrect. Id. The petitioner must show that it “‘was objectively unreasonable.'” Id. (quoting Williams, 529 U.S. at 409) (emphasis added by Dennis). This means that Dubrock must prove that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. As the Supreme Court noted:
It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75, 123 S.Ct. 1166. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's “modified res judicata rule” under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further.Id. at 102.
The standard of review set forth at § 2254(d)(2) applies when a petitioner “challenges the factual basis for” the state court's “decision rejecting a claim[.]” Burt v. Titlow, 571 U.S. 12, 18 (2013). “[A] state court decision is based on an ‘unreasonable determination of the facts' if the state court's factual findings are ‘objectively unreasonable in light of the evidence presented in the state-court proceeding,' which requires review of whether there was sufficient evidence to support the state court's factual findings.” Dennis, 834 F.3d at 281 (quoting § 2254(d)(2) and citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.' ” Titlow, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)); see also Becker, 28 F.4th at 464 (stating that “close calls - decisions upon which reasonable minds might disagree - are essentially insulated from federal court reversal AEDPA, which requires federal judges to defer to the reasonable state trial court findings . . .).
Sections 2254(d)(2) and (e)(1) “express the same fundamental principle of deference to state court findings[,]” and federal habeas courts “have tended to lump the two provisions together as generally indicative of the deference AEDPA requires of state court factual determinations.” Lambert, 387 F.3d at 235. Our Court of Appeals has instructed that§ 2254(d)(2), when it applies, provides the “overarching standard” that a petitioner must overcome to receive habeas relief, while 2254(e)(1) applies to “specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision.” Id.
When a habeas petitioner claims ineffective assistance of counsel, “review is ‘doubly deferential,' because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment'.” Woods v. Etherton, 578 U.S. 113, 116 (2016) (quoting Titlow, 571 U.S. at 22).
Various standards must be met before the Court can review the merits of Dubrock's habeas petition.
1. Timeliness
First, the Court must determine whether the habeas petition was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Here, the parties agree that the federal habeas petition was timely filed. (ECF No. 10, at p. 6).
2. Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Court Remedies
Among AEDPA's procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). The “exhaustion doctrine” requires that a state prisoner raise his federal constitutional claims in state court through the proper procedures before he litigates them in a federal habeas petition. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). It “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The United States Court of Appeals for the Third Circuit has explained:
A claim is exhausted if it was “fairly presented” to the state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan v. Boerckel, 526 U.S. at 848; Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). A petitioner has fairly presented his claim if he presented the same factual and legal basis for the claim to the state courts. See Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). A petitioner can “fairly present” his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).Nara v. Frank, 48 F.3d 187, 197-98 (3d Cir. 2007).
Moreover, a petitioner must have “invoke[d] one complete round of the State's established appellate review process[,]” in order to satisfy the exhaustion requirement. O'Sullivan, 526 U.S. at 845 . In Pennsylvania, this requirement means that a petitioner in a non-capital case must have first presented every federal constitutional claim raised in his federal habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert, 387 F.3d at 233-34.
On May 9, 2000, the Supreme Court of Pennsylvania issued Order No. 218 declaring that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam). The Court of Appeals for the Third Circuit has recognized the validity of this Order. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
b. Procedural Default
If a claim has not been fairly presented “to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play.” Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citations omitted). As the Supreme Court of the United States recently explained:
State prisoners . . . often fail to raise their federal claims in compliance with state procedures, or even raise those claims in state court at all. If a state court would dismiss these claims for their procedural failures, such claims are technically exhausted because, in the habeas context, “state-court remedies are . . . ‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). But to allow a state prisoner simply to ignore state procedure on the way to federal court would defeat the evident goal of the exhaustion rule. See Coleman, 501 U.S. at 732. Thus, federal habeas courts must apply “an important ‘corollary' to the exhaustion requirement”: the doctrine of procedural default. Davila v. Davis, 582 __U.S.__, 137 S.Ct. 2058, 2064 [2017]. Under that doctrine, federal courts generally decline to hear any federal claim that was not presented to the state courts “consistent with [the State's] own procedural rules.” Edwards v. Carpenter, 529 U.S. 446, 453, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Together, exhaustion and procedural default promote federal-state comity. Exhaustion affords States “an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights,” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam), and procedural default protects against “the significant harm to the States that results from the failure of federal courts to respect” state procedural rules, Coleman, 501 U.S. at 750. Ultimately, “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without [giving] an opportunity to the state courts to correct a constitutional violation,” Darr v. Burford, 339 U.S. 200, 204 (1950), and to do so consistent with their own procedures, see Edwards, 529 U.S. at 452-453.Shinn v. Ramirez, __ U.S.__, 142 S.Ct. 1718, 1732 (2022).
Federal courts may not consider the merits of a procedurally defaulted claim unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 (3d Cir. 2018) (quoting Davila v. Davis, __ U.S. __, 137 S.Ct. 2058, 2065 (2017) (quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, __ U.S. __, 139 S.Ct. 1613 (2019)).The burden lies with a petitioner to demonstrate circumstances that would excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also Coleman, 501 U.S. at 750.
A petitioner, alternatively, can overcome a procedural default by demonstrating that the court's failure to review the defaulted claim will result in a “miscarriage of justice.” See Coleman v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999). “However, this exception is limited to a ‘severely confined category [] [of] cases in which new evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the petitioner]'.” Preston v. Superintendent Graterford SCI, 902 F.3d 365, 375 n.11 (3d Cir. 2018) (quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in original) (quoting Schlup v. Delo, 514 U.S. 298, 329 (1995)).
If the petitioner has established grounds to excuse the default, the standard of review of §2254(d) does not apply and the federal court reviews the claim “de novo because the state court did not consider the claim on the merits.” Bey v. Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017) (citation omitted). In any event, in all cases and whether or not the § 2254(d) standard of review applies, the state court's factual determinations are presumed to be correct under § 2254(e)(1) unless the petitioner rebuts that presumption by clear and convincing evidence. Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (“the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an ‘adjudication on the merits' for purposes of § 2254(d).”) (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)).
D. Discussion
Dubrock asserts he is entitled to relief under 28 U.S.C. § 2254 for four reasons:
CLAIM ONE: The conviction was obtained and sentence imposed in violation of the right to effective assistance of counsel guaranteed by the Sixth Amendment.
CLAIM TWO: Trial counsel was ineffective for failing to file a motion for a competency hearing.
CLAIM THREE: The conviction was obtained and sentence imposed in violation of the double jeopardy clause of the Fifth and Fourteenth Amendments which applies to the States through the Due Process Clause.
CLAIM FOUR: The conviction was obtained and sentence imposed in violation of the Fourteenth Amendment.
Petition (ECF No. 1). Respondents assert in their answer that the claims raised in Grounds One and Three were presented to the Superior Court and that both should be denied under AEDPA's standard of review. As for the claims raised in Ground Two and Four, Respondents argue that these claims are procedurally defaulted as they were not raised to the Superior Court and should be denied on that basis. Dubrock responds that “[a]ssuming” the claim in Claim Two “is procedurally defaulted, “the default is excused under Martinez v. Ryan,” see Traverse (ECF No. 11 at p. 2), and acknowledges that the due process claim raised in Claim Four is procedurally defaulted but asserts that the Court should excuse the default. Dubrock's claims will be addressed seriatim.
1. Ineffective Assistance of Trial Counsel Claims
Ineffective assistance of counsel claims are grounded in rights guaranteed under the Sixth Amendment. The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1994), announced the test that a habeas petitioner must satisfy before a federal court could find that counsel failed to provide effective assistance under the Sixth Amendment. This same standard has been incorporated by Pennsylvania courts as the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims). A Pennsylvania court's resolution of an ineffective assistance claim, therefore, is presumed to apply clearly established federal law and is due the substantial deference required by 28 U.S.C. § 2254(d).
But as both the Supreme Court of the United States and the Court of Appeals for the Third Circuit have recently stated, “‘there is no right to counsel in state collateral proceedings,' including state post conviction proceedings.” Williams v. Superintendent Mahanoy SCI, 45 F.4th 713 (3rd Cir. 2022) (citing Coleman v. Thompson, 501 U.S. 722, 755 (1991); see also Shinn v. Ramirez, __U.S. __, 142 S.Ct. 1718, 1737 (2022) (“[W]e have repeatedly reaffirmed that there is no constitutional right to counsel in state post conviction proceedings.”)).
“Under Strickland, a defendant who claims ineffective assistance of counsel must prove (1) ‘that counsel's representation fell below an objective standard of reasonableness; and (2) that any such deficiency was ‘prejudicial to the defense.'” Williams v. Superintendent Mahanoy, SCI, 45 F.4th 713, 724 (3d Cir. 2022) (quoting Garza v. Idaho, __ U.S. __, 139 S.Ct. 738 (2019) (quoting Strickland, 466 U.S. at 687-88)). To satisfy the first prong of the Strickland test, a petitioner must show that “counsel made errors so serious that counsel was not functioning as ‘counsel' guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. To meet the second prong of the Strickland test, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 694.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court adopted the two-part standard in Strickland to evaluate ineffective assistance of counsel claims-like Dubrock's-that arise out of the entry of a guilty plea. First, “the defendant must show that counsel's representation fell below an objective standard of reasonableness.” Id. at 56. This is “nothing more than a restatement of the standard of attorney competence.” Id. at 58. So then, plea counsel's representation must fall “within the range of competence demanded of attorney's in criminal cases” if it is to provide a basis for a knowing and voluntary plea. See McMann v. Richardson, 397 U.S. 759, 771 (1970).
If counsel's performance is deficient, the court must then determine whether the error affected the outcome of the plea process. Hill, 474 U.S. at 59. Thus, Hill restates Strickland's prejudice prong a bit differently. In the context of a guilty plea, the petitioner needs to show that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. Furthermore, where a petitioner pleaded guilty, he must show not only that he would not have done so and instead went on to trial, but also that “a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Claim One
In Dubrock's first claim for relief, he contends that his “conviction was obtained and sentence imposed in violation of the right to effective assistance of counsel guaranteed by the Sixth Amendment.” In support of this claim, he contends his trial counsel was ineffective because he (1) did not conduct an investigation of the facts; (2) did not “file a motion for a competency hearing;” (3) “did not file a motion for disclosure of all relevant documents;” and (4) “did not hire an independent investigator to review the crash scene and the residence involved in the arson.” Dubrock argues that in light of these failures, he “had no option but to plead nolo contendere.” Dubrock raised this claim in his PCRA proceeding and it was adjudicated by the Superior Court on the merits. As such, it is deemed exhausted for purposes of federal habeas review, and this Court's decision is governed by AEDPA's standard of review: whether the Superior Court's adjudication of this claim was contrary to, or involved an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
This sub-issue was raised as an independent ground for relief in the Petition as Ground Two. This claim, therefore, is analyzed separately.
The Court's review is limited to the last state court decision to pass on the merits of a particular claim. See Wright v. Vaughn, 473 F.3d 85, 90 (3d Cir. 2006). Thus, this Court's review centers on the Superior Court's decision of March 30, 2020.
The Superior Court began its analysis by applying the Pennsylvania test for ineffective assistance of counsel derived:
Dubrock's claims essentially involve his averment that plea counsel's alleged ineffectiveness caused him [to] enter his nolo contendere plea. To obtain relief under the PCRA premised on a claim that counsel is ineffective, a petitioner must establish by a preponderance of the evidence that counsel's ineffectiveness so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel's performance is presumed to be constitutionally adequate, and counsel will only deemed ineffective upon a sufficient showing by the petitioner. Id. This requires the petitioner to demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable strategic basis for his or her action or inaction; and (2) petitioner was prejudiced by counsel's act or omission. Id. at 533.
Ineffective assistance of counsel claims arising from the plea bargainingprocess are eligible for PCRA review. Commonwealth v. Kelley, 136 A.3d 1007, 1012 (Pa. Super. 2016). Allegations of ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief only if the ineffectiveness caused the defendant to enter into an involuntary or unknowing plea. Id. at 1013. When the defendant enters his plea on the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases. Id .
“It is well established that a plea of nolo contendere is treated as a guilty plea in terms of its effect upon a given case.” Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010).
Superior Court Memo., 3/30/2020 (ECF No. 10-4, at pp. 4-5). The undersigned finds that the Superior Court applied clearly established Federal law and its adjudication of the claim was not “contrary” to that law. 28 U.S.C. § 2254(d)(1).
Next, the Court must determine whether the adjudication survives review under the “unreasonable application” clause of § 2254(d)(1). The Court must determine whether the Pennsylvania Superior Court unreasonably applied the Strickland standard or otherwise based its decision upon an unreasonable factual determination. That is, this Court must also analyze Dubrock's ineffectiveness claim under the “unreasonable application” provision of 28 U.S.C. § 2254(d). Furthermore, as noted above, pursuant to § 2254(e)(1), a determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that the factual finding was erroneous. The trial court and the Pennsylvania Superior Court both held that Dubrock's plea was unconditional, knowing, and voluntary. These findings are presumed to be correct.
Applying this deferential standard of review, the undersigned finds that this claim is without merit. Dubrock's written plea and his sworn plea colloquy made it clear that Dubrock's decision to enter a nolo contendere plea was a voluntary and fully informed decision on his part. During the sworn oral plea colloquy, Attorney Antkowiak informed the Court that Dubrock “suffered a very bad head injury, and he has no memory of this incident, thus the basis for the no contest plea.” Sent. Transcript, 10/11/2016 (ECF No. 10-14 at p. 4). The trial judge then engaged in the following exchange with Dubrock:
THE COURT: Is that your signature at the bottom of the page?
THE DEFENDANT: Yes, sir.
THE COURT: Did you understand the answers to the questions above your signature.
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand the guideline ranges?
THE DEFENDANT: Yes, sir.
...
THE COURT: Do you understand that by pleading no contest, you're giving up your right to a jury trial?
THE DEFENDANT: Yes, sir.
...
THE COURT: I also want to ask you, when you plea - - - in Latin, it's nolo contendere which literally translates into no contest. When you enter that plea, what you're saying is, I'm not going to contest the Commonwealth's version of the facts, but for everything in your life, it counts the same as a guilty plea.... You're saying, I'm not contesting the Commonwealth's facts, but it has the same effect as a guilty plea to all other outside agencies and persons. Do you understand that?
THE DEFENDANT: Yes, Sir.
After hearing the elements of the charges and the facts supporting those charges,Dubrock acknowledged the accuracy of the Commonwealth's summary of the evidence and proceeded to enter a plea of “no contest” to six separate counts of arson. Dubrock said nothing during the plea colloquy indicating that he was dissatisfied with his counsel or that he had no option but to plead nolo contendere.
Dubrock was presented with the following factual narrative regarding his criminal conduct:
Your Honor, the Commonwealth alleges that on or about Saturday, the 20th day of February, 216, within Summerville Borough, Jefferson County, the defendant, James Michael Dubrock, did intentionally start a fire on the property of another and did, thereby, recklessly place other persons in danger of death or bodily injury, those persons being Jason Little, Kayla Little, [and four minors[].Sentencing Transcript (ECF No. 10-14 at p. 9).
Additionally, during the sentencing hearing, Dubrock never said anything to reflect that his pleas were induced or coerced. Rather, his statements at that proceeding took the form of apologies to the victims and his own family:
THE DEFENDANT: Jason, Kayla, I don't have no desire to harm ya'll.... I do apologize and just ask that - I hope ya'll, you know, find forgiveness for me for the actions I've committed for the things I've done to ya'll's family. Even the feelings and fears that I know that ya'll felt, I'm sorry for. To my wife, I'm sorry too that I put you in such a hard spot....Transcript of Sentencing Hearing, (ECF No. 10-15 at p. 7-8).
In its opinion rejecting Dubrock's claim of ineffectiveness, the Superior Court found that “Dubrock's responses during his written and plea colloquies refuted the claim that plea counsel coerced or induced him to enter his plea.” Superior Court Memo. at 5. In its Memorandum, the Superior Court quoted at length the trial court's findings:
PCRA counsel's analysis was clear and succinct with respect to the voluntariness of [Dubrock's] plea. It warrants expansion in one respect, however, and that is with regard to the nature of the pleas.
[Dubrock] pled “nolo contendere” instead of “guilty,” because, as [PCRA counsel] pointed out, [Dubrock] claimed that the injuries he sustained from a car accident on the night in question left him unable to remember his earlier actions. As the phrase “nolo contendere” connotes, however, he was willing to concede that the Commonwealth's evidence was sufficient to convict him of the charges to which he pled. He made that concession even after hearing the elements of Arson - Danger of Death or Bodily, the facts supporting each of the six counts, and the Court's explanation regarding the meaning and legal ramifications of a nolo plea. [Dubrock] tacitly admitted therefore, that he understood the evidence and expressed his intention not to contest it. The law does not allow him to now undo that admission via a collateral petition. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa. Super. 2002) (“We note that one is bound by one's statements made during a plea colloquy, and may not successfully assert claims that contradict such statements).
In light of the foregoing, i.e., because the pleas in this case were entered knowingly and voluntarily, [Dubrock] does not get to go back and test the evidence to see whether a jury would have agreed with his interpretation of the evidence. [Dubrock] expressly forfeited that right and, just as he cannot rescind his prior admissions, cannot withdraw that prior waiver.
The law recognizes, of course, that an attorney's actions may be so coercive as to overcome a defendant's free will in the plea bargaining process. Here, though, the record speaks of a fully autonomous individual who affirmatively decided to accept a plea deal.Superior Court Memo. at 6 (quoting PCRA Court Opinion, 5/29/19, at 1-2) (emphasis added).
The record reflects that six days before jury selection, in the presence of Dubrock, Attorney Antkowiak informed the trial court that a plea offer had been made by the Commonwealth, but Dubrock did not think the Commonwealth's offer was reasonable and wanted to pursue a trial. After Dubrock rejected this plea offer, the Commonwealth amended the information by withdrawing Attempted Second-Degree Homicide charges and replacing them with six counts of Attempted First-Degree Homicide. “Only then, after nearly two hours to consult with his attorney, did the defendant decide to plead....” PCRA Opinion, May 29, 2019 (ECF No. 10-7 at p. 65).
To prevail on a claim that the state court has adjudicated on the merits, Dubrock must demonstrate that the state court's decision “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold”). Dubrock has not met that high threshold.
Solemn declarations at a guilty plea proceeding that a defendant understands what he is doing “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). After a thorough review of the state court record, the undersigned finds that the Superior Court's decision was not unreasonable under Strickland. As set forth above, during the plea colloquy, Dubrock stated, among other things, that (i) he understood the nature of the charges against him; (ii) he read, understood, and completed the Guilty Plea Petition, and (iii) that he was entering a no contest plea as to six counts of arson. N.T., 10/11/2016. The transcript reflects that Dubrock was informed of the penalties for these offenses, the critical terms of the plea agreement, and all the consequences of his nolo plea.
Viewing the Superior Court's disposition of this claim through the deferential lens of AEDPA, the undersigned has no hesitancy in concluding that Dubrock has failed to carry his burden to persuade this Court that the Superior Court's disposition was unreasonable, yet alone incorrect. The state court record abundantly demonstrates that Dubrock pleaded guilty relying on competent legal advice and with full knowledge of the consequences of his plea, including that he was pleading no contest to six counts of arson. The state court record more than amply supports the Superior Court's conclusion that Dubrock entered into a knowing, intelligent, and voluntary guilty plea. For these reasons, it is recommended that Dubrock's first claim for relief be denied as the Superior Court's adjudication of the claim withstands review under § 2254(d)(1).
Claim Two
In his second claim for relief, Dubrock argues that trial counsel was ineffective for failing to file a motion for a competency hearing. Respondents argue that Dubrock never raised this ineffective-assistance claim in state court. Dubrock does not deny that the claim was not raised, but rather responds, “[a]ssuming this is true, then the issue is procedurally defaulted and the default is excused under Martinez v. Ryan, 566 U.S. 1 (2012).” Traverse (ECF No. 11 at p. 2). The undersigned has independently reviewed the PCRA petition, Dubrock's brief on appeal of his PCRA petition, and his petition for allowance of appeal following the Superior Court and agrees with Respondents that this claim is procedurally defaulted as it was never presented to the state courts.
“When a claim is procedurally defaulted, a federal court can forgive the default and adjudicate the claim if the prisoner provides an adequate excuse.” Williams, 45 F.4th at 720 (citing Shinn, 142 S.Ct. at 1732) (quotation marks omitted)).
One common excuse for procedural default is based on the equitable rule first announced in Martinez v. Ryan, 566 U.S. 1 (2012). Under that equitable rule, when a prisoner's state post-conviction lawyer was negligent for failing to raise an ineffective-assistance claim that ‘has some merit,' we may hear the claim, even though the prisoner never raised it in state court. Workman v. Superintendent Albion SCI, 915 F.3d 928, 937 (3d Cir. 2019) (quoting Martinez, 566 U.S. at 14).Williams, 45 F.4th at 720.
Dubrock never raised this ineffective-assistance claim in state court, so he “waived” his argument. Id. (citing 42 Pa. Cons. Stat. Ann. § 9544(b)). Dubrock argues that Martinez excuses his default. That may be so, but as the Court of Appeals explained in its recent Williams decision,
AEDPA does not allow us to excuse [Dubrock's] separate failure to develop the record just because his state post-conviction lawyer did a bad job. [Shinn], at 1737. We are therefore limited to the facts developed in state court. And on a closed state record, [Dubrock] cannot show his trial counsel was ineffective.Williams, 45 F.4th at 720.
Here, the factual basis of Dubrock's second claim was not developed in state court. Under AEDPA, as relevant here, the Court may not develop the factual record of the claim through an evidentiary hearing or any other means. See 28 U.S.C. § 2254(e)(2); Williams, 45 F.4th at 723 (citing Shinn, 142 S.Ct. at 1735)). And based on the closed state court record, it is not self-evident that Dubrock's trial counsel was ineffective in failing to move for a competency hearing. There is no testimony from trial counsel in the state court record or any other evidence from which the undersigned can conclude that trial counsel was ineffective in not moving for a competency hearing. “The absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.” Williams, 45 F.4th at 726 (quoting Dunn v. Reeves, 54 U.S. --, 141 S.Ct. 2505, 2407 (2021).
28 U.S.C. § 2254(e)(2) provides:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that
(A) the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). Dubrock has not made any arguments as to why the factual record can be developed pursuant to 28 U.S.C. § 2254(e)(2) and the undersigned's independent review of his claim reveals no basis for doing so.
Moreover, the closed state court record is clear that trial counsel was aware that Dubrock claimed he had no memory of the incident and that was why “he would have to say that he's not contesting the charges rather than pleading guilty.” Sent. Tr. (ECF No. 10-14 at 3). And while Dubrock argues that he could not “cooperate with his lawyer,” Traverse (ECF No. 11 at 7),” the closed state court record reflects that Dubrock refused to plead guilty six days prior to his ultimate plea because he did not think the Commonwealth's offer was reasonable and he wanted to pursue a trial. Given the absence of any evidence in the closed state court record indicating Dubrock's competency was in doubt at the time of his plea, counsel for Dubrock cannot be presumed to have represented Dubrock deficiently in failing to request a competency hearing. Failing such a showing of ‘unprofessional error,” Dubrock cannot begin to establish “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. For these reasons, it is recommended that Dubrock's second claim for relief be denied.
2. Due Process Claims
Dubrock's third and fourth claims for relief raise due process challenges to his sentence. Dubrock raised the third claim on PCRA appeal, but he did not raise his fourth claim in any state court proceeding. Both these due process claims can more efficiently be disposed of on a de novo review of the merits.
Dubrock unconditionally pleaded guilty to six counts of arson. Under Pennsylvania law, a guilty plea “constitutes a waiver of all non-jurisdictional defects and defenses.” Com. v. Jones, 929 A.2d 205, 212 (Pa. 2007) (quoting Com. v. Montgomery, 401 A.2d 318, 319 (Pa. 1979. The Court of Appeals has similarly noted:
It is well established that a criminal defendant's unconditional, knowing and voluntary plea of guilty waives all non-jurisdictional issues. Woodward v. United States, 426 F.2d 959, 964 (3d Cir. 1970); Abram v. United States, 398 F.2d 350 (3d Cir. 1968); see also Doggett v. United States, 505 U.S. 647, 658 n. 3, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (finding no waiver where defendant preserved right to appeal). “A guilty plea . . . renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.” Menna v. New York, 423 U.S. 61, 62 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). This includes “many of the most fundamental protections afforded by the Constitution,” United States v. Mezzanatto, 513 U.S. 196, 201, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), such as the right to a jury trial, the right to confront and cross-examine witnesses, and the right against self-incrimination, United States v. Khattak, 273 F.3d 557, 561
(3d Cir. 2001) (quoting Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)).Washington v. Sobina, 475 F.3d 162, 165 (3d Cir. 2007) (per curiam). Likewise, it is well settled “that a defendant who pleads nolo contendere waives all defects and defenses except those concerning the jurisdiction of the court, legality of sentence, and validity of plea.” Commonwealth v. Kraft, 739 A.2d 1063, 1064 (Pa. Super. 1999). In his third claim for relief, Dubrock raises a due process challenge to the legality of his sentence and in his fourth claim for relief, he raises a due process challenge to the validity of his plea. Therefore, the undersigned will address both claims as neither was waived by virtue of his plea.
Claim Three
Dubrock argues that his “conviction was obtained and sentence imposed in violation of the double jeopardy clause of the Fifth and Fourteenth Amendments ....” Pet. (ECF No. 1 at p. 9). In support of this claim, he contends that “was convicted of six counts involving the same arson. . . . There were no personal injuries to any of the six people inside the residence.” Id. Dubrock raised this issue in his PCRA Petition, and PCRA counsel addressed the issue in his Turner/Finley “no merit” letter and determined that the “the claim that the sentences are illegal is of no merit.” (ECF No. 10-10 at p. 12). On appeal, the Superior Court did not address this issue because, as the Superior Court noted, Dubrock did not provide a separate statement of questions involved and in order to preserve his claims, he had to raise them in his Rule 1925(b) statement. The Superior Court viewed Dubrock's claims as “essentially involv[ing] his averment that plea counsel's alleged ineffectiveness caused him [to] enter his nolo contendere plea.” Superior Court Memo., 03/30/2020 (ECF No. 10-4 at p. 4).
On direct appeal, Dubrock raised a similar issue but framed it as an abuse of discretion claim and argued that the trial court's imposition of consecutive sentences was manifestly unreasonable under the circumstances of the case. Commonwealth v. Dubrock, No. 1906 WDA 2016, Memorandum, Oct. 31, 2018 (ECF No. 10-2 at pp. 1-11).
Given the procedural posture, there is a serious question as to whether Dubrock has “fairly presented” this claim to the state court as to satisfy the exhaustion requirement of Section 2254(b). See also 42 Pa. Cons. Stat. § 9544(b) (deeming waived on PCRA review any issue not litigated in prior proceeding where claim could have been raised). However, in light of the fact that the state court did not make a finding that this claim was waived and that Respondents do not assert procedural default as an affirmative defense to this claim,the undersigned will proceed to consider the claim de novo.
Respondents state in their Answer that “after close examination of the PCRA petition, [Dubrock's] brief on appeal from the denial of same and his Petition for Allowance of Appeal, Respondents believe that Petitioner did raise this issue in the state courts.” Ans. (ECF No. 10 at p. 10-11). See Kennedy v. Superintendent Dallas SCI, 50 F.4th 377, 382 (3d Cir. 2022) (“As we believe the Commonwealth's concession to be a product of careful consideration, we accept it as a waiver made expressly through counsel.”).
In Commonwealth v. Frisbie, 485 A.2d 1098 (Pa. 1984), the Pennsylvania Supreme Court announced the “multiple sentence” rule, and held that, a single criminal act which injures multiple victims may serve as the basis for multiple sentences where the legislature intended that each injury constitute a separate offense. If the statute in question prohibits injury to “ ‘a person,' then the defendant may be punished separately for each victim.” Commonwealth v. Davis, 760 A.2d 406, 412 (Pa. Super. 2000) (citing Frisbie, 485 A.2d at 1100). In 2012, the Superior Court reaffirmed that it is permissible for a court to impose multiple sentences for a single act which injures multiple victims. Commonwealth v. Glass, 50 A.3d 720, 731 (Pa. Super. 2012), app. denied, 63 A.2d 774 (Pa. 2013)(citing Frisbie, 485 A.2d at 1099-1100 (Pa. 1984)).
Dubrock was charged and pled guilty to six counts of “arson endangering persons” in violation of 18 Pa.C.S.A. § 3301(a)(1)(i), which provides as follows:
(a) Arson endangering persons. -
(1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:
(2) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire; . . .
18 Pa.C.S.A. § 3301(a)(1)(i) (emphasis added). As the trial court explained at sentencing,
Well, here we have the single act of you lighting the fire ....even though there's one act, there is individual danger and individual feelings to each person....So I set that all up as the reason for even though there's one act, we have six different perspectives and six separate lives affected. So I think for each of those acts, there should be a consecutive sentence ....
Tr. Sentencing Hrg. (ECF No. 10-15 at p. 14). Dubrock's convictions did not merge since they involved six separate victims. Moreover, the court sentenced Dubrock pursuant to the terms of the plea agreement. For these reasons, it is recommended that Dubrock's third claim for relief be denied.
Claim Four
“A trial court's failure to inquire into incompentency, sua sponte, where there is a reason to doubt a defendant's competency, violates due process because it deprives the defendant of his right to a fair trial.” Taylor v. Horn, 504 F.3d 41, 430 (3d Cir. 2007). “But barring indicia of incompetence, due process does not require that a competency hearing be held.” Id. (citing Godinez v. Moran, 509 U.S. 389, 402 n. 13 (1993). Dubrock argues that,
On the facts of this case, the Court violated the due process cluse (sic) of the Fifth and Fourteenth Amendments when he failed to sua sponte hold a competency hearing when he knew that the Petitioner had been in a car crash, and had no memory of the events of the night of the arson. As a result of the amnesia, the judge knew or should have known that Petitioner could not cooperate with counsel.....
On the facts of this case, the trial judge should have known that the Petitioner was not competent to enter the nolo contendere plea.Memo of Law Supp. Pet. (ECF No. 1 at pp. 32, 35).
Like Dubrock's claim that trial counsel was ineffective for failing to move for a competency hearing, this due process claim is procedurally defaulted as it was not raised in state court; but unlike the ineffective assistance of counsel claim, Dubrock has offered no reason for this Court to excuse the default.
However, even assuming that the default could be excused, and the claim was examined on a de novo review, the undersigned has no hesitancy in recommending the claim be denied as it has no merit. Dubrock has not directed this Court to any evidence in the closed state court record that supports his contention that at the time of his plea, the trial court had any basis to doubt that Dubrock had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” or that he lacked “a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam). Instead, he relies upon the fact that Dubrock sustained a head injury on the night of the fire, and claims he had no memory of the events of that night. Both the trial court and trial counsel were aware of those facts. The fact that Dubrock had no memory of the incident, however, does not establish that he was incompetent to enter his plea. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding that “while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.”) (emphasis added); Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993) (quoting Alford).
Moreover, a review of the transcript of the colloquy between the court and Dubrock at his change of plea hearing reveals that Dubrock at the time was rational, attentive, and well-informed. Dubrock's statements made during the plea hearing demonstrate that Dubrock possessed a more than adequate understanding of his rights and the proceedings against him. Dubrock has failed to present or identify any evidence in the closed state court record that he lacked competency at the time of his plea or even to point to any evidence that would have intimated at that time the existence of genuine concerns as to his competency sufficient to warrant a hearing on the question. Accordingly, the trial judge acted within his sound discretion in not ordering, sua sponte, a hearing into Dubrock's mental competency. For these reasons, it is recommended that Dubrock's fourth claim be denied.
III. CERTIFICATE OF APPEALABILITY
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).
“When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, the undersigned concludes that jurists of reason would not find it debatable whether each of Dubrock's claims should be denied. For these reasons, it is recommended that a certificate of appealability not be issued on any of Dubrock's claims.
IV. CONCLUSION
For all of the above reasons, it is respectfully recommended that the instant habeas petition for writ of habeas corpus be denied. It is also recommended that a certificate of appealability not be issued as there is no basis upon which to grant one on any of the claims raised.
Any party is permitted to file written specific Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, the parties may file written objections to this Report and Recommendation by December 5, 2022. Responses to objections shall be filed by December 19, 2022. The parties are advised that failure to file timely and specific objections within this timeframe “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).