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Warren v. Kyler

September 7, 2005

DANIEL K. WARREN, JR., APPELLANT
v.
KENNETH D. KYLER, THE DISTRICT ATTORNEY OF THE COUNTY OF LEHIGH, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, APPELLEES



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 02-CV-997) District Judge: Honorable Marvin Katz.

The opinion of the court was delivered by: Shadur, District Judge

PRECEDENTIAL

Argued July 11, 2005

Before: ALITO and BECKER, Circuit Judges and SHADUR, District Judge*fn1

OPINION OF THE COURT

Daniel Warren ("Warren") is currently in the State Correctional Institution at Huntingdon, Pennsylvania, serving a prison sentence of 10 to 20 years imposed after he entered a negotiated guilty plea to one count of burglary on October 9, 1998. Warren now claims that the Commonwealth's imposition of that sentence has violated his federal due process rights, and he seeks federal habeas corpus relief under 28 U.S.C. §2254 ("Section 2254") on that basis. Because we conclude that the requirements of Section 2254 have not been met, we affirm the District Court's denial of habeas relief.

Factual and Procedural Background

Under the terms of Warren's plea agreement, other pending charges were dropped and the burglary was treated as a "strike two" offense by the Commonwealth. That latter aspect of the agreement meant that the Pennsylvania mandatory sentencing statute, 42 Pa. Cons. Stat. §9714 ("Section 9714"), was applied during Warren's sentencing. At that time Section 9714(a)(1) provided:

Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence and has not rebutted the presumption of high risk dangerous offender...be sentenced to a minimum sentence of ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.

That "presumption of high risk dangerous offender" applied in Warren's case because the terms of Section 9714(b) were met: He had a prior conviction for a crime of violence that had taken place fewer than seven years before the charged "strike two" offense. To rebut the presumption, Section 9714(c) required Warren to present evidence to the court at a hearing and required the sentencing judge to consider 12 case-specific factors before deciding whether the evidence presented was sufficient. After finding that no evidence presented had overcome the operable presumption against Warren, the sentencing judge imposed the sentence mandated by Section 9714 on December 28, 1998.

Shortly thereafter Warren sought to have the court reconsider the sentence imposed. But that effort was rebuffed on February 5, 1999 because Warren's attorney had initiated a direct appeal to the Superior Court of Pennsylvania. Eleven days later the direct appeal was discontinued by Warren's attorney. Then Warren's later motions seeking to revive his direct appeal by treating his submissions nunc pro tunc were denied, effectively ending any direct review of Warren's sentence.

That chain of events formed the basis for Warren's first petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. §9541. Warren claimed ineffectiveness of trial counsel because his direct appeal had been discontinued without his consent. After post-conviction counsel was appointed, an evidentiary hearing was conducted by the post-conviction court to assess his claim on June 20, 2000. Shortly after that hearing Warren filed motions claiming ineffectiveness of his post-conviction counsel. On August 21, 2000 the post-conviction court issued a ruling that dismissed both of Warren's ineffectiveness-of-representation claims, and Warren appealed that decision to the Superior Court of Pennsylvania.

After the appeal had been filed, Warren submitted an application to the Superior Court seeking a determination as to whether his waiver of counsel as to that appeal was knowing, intelligent and voluntary. In response the Superior Court remanded the appeal to the post-conviction court for the purpose of conducting a colloquy. On February 20, 2001 the post-conviction court determined that the waiver had been knowing, intelligent and voluntary, so that Warren continued to represent himself on his post-conviction appeal.

In the midst of the just-described waiver proceedings, Warren filed a second post-conviction petition on January 11, 2001. This time he challenged the constitutionality of his sentence in light of the Pennsylvania Supreme Court's invalidation of Section 9714 in Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000). But because that second petition was filed while his original post-conviction appeal was still pending, it was dismissed on January 22, 2001.

On December 14, 2001 the Superior Court disposed of all issues related to Warren's post-conviction challenges. First the court affirmed the finding that Warren's waiver of counsel on the appeal had been knowing, intelligent and voluntary. It also affirmed the rejection of the ineffectiveness claims made in Warren's first post-conviction petition. Finally, the court directly addressed the constitutional claim raised by ...


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