UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY MICHAEL BANEY, :

:

Petitioner : No. 4:CV-08-1722

:

vs. : Petition Filed 9/17/08) 

:

JOHN PALAKOVICH, Warden, : (Judge Muir)

:

Respondent :

MEMORANDUM AND ORDER

June 9, 2010

Petitioner, Jeremy Michael Baney, filed the instant

petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. He attacks a conviction imposed by the Court of Common

Pleas for Clinton County, Pennsylvania, for his role in a drug

distribution ring that operated across Lycoming, Clinton and

Centre counties in Pennsylvania, between 1997 and September,

2001. (Doc. 1). For the reasons that follow, the Court will

deny the petition. 

I. Background

On March 3, 2002, Baney was arrested at the conclusion of

a statewide grand jury investigation and charged as a result

of his role in a drug distribution ring that operated across

Lycoming, Clinton and Centre counties between 1997 and

Case 4:08-cv-01722-MM-DB Document 23 Filed 06/09/10 Page 1 of 33
September, 2001. (Doc. 19, Ex. II, Memorandum Opinion of the

Superior Court of Pennsylvania dated December 24, 2008). 

Clinton County was selected as the jurisdiction in which

Baney’s case would be tried. Id. 

On May 19, 2003, Baney entered into a negotiated plea

agreement with the Commonwealth wherein he agreed to plead

guilty to charges of possession with intent to deliver a

controlled substance (twenty-two counts), 35 P.S. § 780-

113(a)(30); criminal use of a communication facility (one

count), 18 Pa.C.S.A. § 7512(a); corrupt organizations (one

count), 18 Pa.C.S.A. §911(b)(3); dealing in proceeds of

unlawful activity (five counts), 18 Pa.C.S.A. § 5111(a)(1);

and criminal conspiracy (one count), 18 Pa.C.S.A. § 903. Id.

On August 11, 2003, in accordance with the plea

agreement, Baney was sentenced to an aggregate sentence of not

less than two hundred forty (240) months nor more than four

hundred sixty-eight (468) months of incarceration. Id. The

Commonwealth further agreed to request a nolle prosequi of the

remaining sixty-one counts listed on the criminal information.

Id. 

On September 17, 2003, Baney filed a direct appeal to the

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Superior Court of Pennsylvania. (Doc. 19, Ex. D, Direct

Appeal). He raised the following grounds for relief:

1. Whether the trial court had jurisdiction over

the charges pertaining to offenses occurring in

Centre and Lycoming Counties;

2. Whether the trial court imposed an illegal

sentence because the minimum sentence exceeds

one-half the maximum in violation of 42 Pa.C.S.

§ 9756(b) (the “minimum-maximum rule”);

3. Whether the trial court imposed an illegal

sentence by not merging Baney’s conspiracy and

corrupt organizations convictions for sentencing

purposes;

4. Whether the trial court abused its discretion in

imposing its sentence; and

5. Whether Baney entered his negotiated guilty plea

knowingly and voluntarily.

(Doc. 19, Ex. G, Memorandum Opinion of the Superior Court of

Pennsylvania dated Sept. 3, 2004, at p. 6). Subsequent to the

filing of petitioner’s direct appeal, Baney’s counsel filed a

motion and supporting brief pursuant to Anders v. California,

386 U.S. 738, (1967). (Doc. 19, Ex. D, Baney’s counseled

Superior Court brief). 

On or about February 3, 2004,after counsel submitted his

Anders brief, Baney filed a pro se brief in support of his

appeal. (Doc. 19, Ex. E, Pro Se Superior Court brief). 

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In a published opinion filed on September 3, 2004, the

Pennsylvania Superior Court affirmed Baney’s judgement of

sentence and permitted counsel to withdraw from the case.

(Doc. 19, Ex. G, Commonwealth v. Baney, 860 A.2d 127 (2004),

Memorandum Opinion of the Superior Court of Pennsylvania dated

Sept. 3, 2004, at p. 6). 

On December 6, 2004, Baney filed a pro se petition for

allowance of appeal to the Pennsylvania Supreme Court. (Doc.

19, Ex. H, Petition for Allowance of Appeal). 

On June 7, 2005, the Pennsylvania Supreme Court denied

Baney’s petition for allowance of appeal. (Doc. 19, Ex. I,

Order)

On July 12, 2005, Baney filed a pro se petition for

relief under the Pennsylvania Post Conviction Relief Act

(“PCRA”), 42 PA. CONS. STAT. §§ 9541-9546. (Doc. 19, Ex. L, Pro

Se PCRA Petition). He raised the following issues for relief:

1. The oral and written guilty plea was invalid due

to defective oral and written plea colloquies;

2. The plea agreement as accepted by the court did

not provide for imposition of fines as a

consequence of the plea. 

3. The lower court erred by imposing fines without

conducting an inquiry into Baney’s ability to

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pay;

4. The lower court erred by directing Baney to pay

restitution;

5. The lower court erred by improperly considering

Baney’s forty-seven (47) prior arrests when

imposing sentence;

6. The lower court demonstrated bias when imposing

sentence;

7. The lower court erred by imposing consecutive

sentences when the crimes should have merged for

sentencing purposes; and

8. Prior counsel was ineffective for failing to

raise the foregoing issues.

Id. The PCRA Court then appointed counsel to represent Baney,

and on October 21, 2005, counsel filed an amended PCRA

petition, raising the following issues for review: 

1. Baney’s sentence was imposed based upon a

“message to the community” which was improper;

2. All convictions should have merged with the

corrupt organizations charge at the time of

sentencing;

3. There was no determination of Baney’s ability to

pay when the court imposed a fine in the amount

of $50,000.00 at the time of sentencing; and

4. The lower court failed to inquire as to whether

Baney understood the nature of his plea, the

elements of the crimes with which he was

charged, and whether there was a factual basis

for the plea.

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(Doc. 19, Ex. N, Counseled Amended PCRA Petition). 

The amended petition also raised the following claims of

ineffective assistance of counsel: 

5. Failure of counsel to properly advise Baney of

the elements of the offenses, the possible range

of sentences and the possible effects of a

guilty plea;

6. Failure of counsel to properly prepare for the

sentencing hearing in that he failed to present

testimony and evidence to support a lesser

sentence;

7. Failure to obtain discovery and explore possible

defenses with Baney;

8. Failure to properly investigate the allegations

against Baney;

9. Failure to file motions to suppress, namely the

wiretap evidence; and

10. Failure to obtain a psychological evaluation of

Baney which may have assisted in the trial

preparation and sentencing stages.

Id. 

On March 28, 2006, the lower court filed a notice of its

intention to dismiss Baney’s PCRA petition without an

evidentiary hearing pursuant to Pa.R.Crim.P. 907, observing

that there were no genuine issues involving any material fact.

(Doc. 19, Ex. P, Notice of Intent to Dismiss). 

On April 12, 2006, Baney filed pro se objections to the

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Court’s Notice of Intent. (Doc. 19, Ex. Q, Objections).

On April 13, 2006, the PCRA court denied Baney’s request

for relief. (Doc. 19, Ex. R, Order dismissing PCRA Petition). 

On May 12, 2006, petitioner filed a Notice of Appeal with

the Pennsylvania Superior Court and a brief in support on

August 17, 2006. (Doc. 19, Ex. S, Pro Se Superior Court

Brief). He raised the following ground for relief:

A. Whether the PCRA Court violated Appellant’s

state and federal constitutional rights of

self-representation by ordering PCRA counsel to

file a 1925 (b) statement after Appellant filed

a pro se Notice of Appeal without request for

counsel?

B. Whether the PCRA court erred by failing to cite

reasons in it’s [sic] Rule 907 notice of intent

to dismiss, [sic] to support it’s [sic] finding

that no genuine issues of any material facts

existed?

C. Whether the PCRA court erred by failing to

support it’s [sic] final PCRA order with

relevant findings of fact and conclusions;

D. Whether the PCRA counsel rendered ineffective

assistance by failing to preserve the need for

an evidentiary hearing?

E. Whether the PCRA Court erred by not convening an

evidentiary hearing and was Appellant prejudiced

by absence of a full and fair opportunity to

meet his burden to plead and prove his right to

relief on his underlying PCRA allegations of

error.

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Id. 

On September 18, 2007, the Pennsylvania Superior Court

affirmed the order of the PCRA Court denying the petition.

(Doc. 19, Ex. U, Memorandum Opinion of the Superior Court of

Pennsylvania dated Sept. 18, 2007). Specifically, the Court

noted, inter alia, that Baney had previously challenged his

guilty plea on direct appeal, and, therefore, his present

challenge to his guilty plea was waived as previously

litigated. Id. at pp. 9-11. Baney did not seek discretionary

review in the Pennsylvania Supreme Court. 

On December 21, 2007, Baney filed a petition for writ of

habeas corpus in the Court of Common Pleas of Clinton County,

alleging, inter alia, that the Clinton County Court of Common

Pleas lacked subject matter jurisdiction over his case because

the criminal complaint and criminal information filed at

docket number 2002-109 did not contain citations to any valid

laws, thereby violating his rights as protected by the 5th,

6th, 13th and 14th Amendments to the United States

Constitution. (Doc. 19, Ex. EE, petition). In a supporting

memorandum of law, Baney argued that the charging documents

were invalid because they listed the statutory citations

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provided in Purdon’s Pennsylvania Consolidated Statutes and

Pennsylvania Consolidated Statutes Annotated rather than

citing the constitution or legislation. Id. 

On December 27, 2007, Baney’s petition was dismissed as

“patently frivolous.” (Doc. 19, Ex. FF, Order). 

On January 11, 2008, Baney filed a notice of appeal to

the Pennsylvania Superior Court, which, on December 24, 2008,

affirmed the denial of his petition for writ of habeas corpus. 

(Doc. 19, Ex. II, Memorandum Opinion of the Superior Court of

Pennsylvania dated Dec. 24, 2008). 

On February 4, 2008, Baney filed a second PCRA petition

in the lower court, raising the following issues:

1. The oral and written guilty plea colloquies are

devoid of an explanation nor defendant’s

understanding of the elements, nature and

factual basis as to the miltiple [sic] counts he

was pleading guilty to;

2. The sentencing court showed bais [sic] of send

a message to the community when imposing

sentence;

3. Counts should have merged with corrupt

organization and criminal conspiracy;

4. Ineffective counsel at trial and sentewncing

[sic];

5. Ineffective counsel at PCRA;

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6. Missleadingsingg [sic] statement [sic] by plea

cuunsel [sic] at the plea hearing and before;

7. Guilty plea not entered voluntarily under state

and fedewral [sic] law under the constitutions;

8. Imposistion [sic] of sentence based on lack of

record support, judicia [sic] bias, and improper

considerations;

9. Failure to merge sentences;

10. Ineffective assistance of trial, sentencing

and appeal and PCRA counsel; and

11. Missleading [sic] statement by trial counsel,

pleas counserl [sic] in regards to the guilty

plea.

(Doc. 19, Ex. X, Second Pro Se PCRA Petition). 

On February 5, 2008, the PCRA court denied Baney’s second

PCRA petition, stating that it was untimely and that the

issues contained in the petition were previously litigated.

(Doc. 19, Ex. Y, PCRA Court Order). 

Baney appealed the PCRA court’s denial of relief to the

Pennsylvania Superior Court. On February 29, 2008, Baney filed

a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b), which contained the following

allegations of error:

1. Trial counsel’s misrepresentations to petitioner

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about law governing consequences between an open

vs. negotiated plea agreement;

2. Trial counsel’s misrepresentations to petitioner

about law governing appealable issues for direct

appeal amount to ineffective assistance of

counsel and defendant entered unknowing plea

agreement;

3. The oral and written guilty plea colloquies are

devoid of an explanation and defendant’s

understanding of the elements nature and factual

basis as to the multiple counts he was pleading

to;

4. Counts of CC/PWID, crim. use comm. facility and

dealing in proceeds of unlawful activity, should

have merged with corrupt organizations for

sentencing purposes;

5. Counsel was ineffective for advising defendant

to plead guilty when judge wanted to send a

message to the community with defendant’s

sentence;

6. Counsel was ineffective when he failed to object

when Commonwealth failed to establish a victim

within the meaning of restitution statue [sic];

7. Any sentence out side [sic] the standard range

must be supported by extraordinary circumstance

[sic], and counsel was ineffective for not

objecting to defendant’s sentences outside the

standard range;

8. Trial counsel representation [sic] had a

cumulative effect on trial counsel’s

representation that compounded his

ineffectiveness. 

(Doc. 19, Ex. Z, Pro Se Concise Statement of Errors). Id. 

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On October 16, 2008, the Pennsylvania Superior Court

affirmed the denial of Baney’s second PCRA petition on the

basis that the petition was untimely and that Baney failed to

invoke any exceptions to the timeliness requirement. (Doc. 19,

Ex. DD, Memorandum Opinion of the Superior Court of

Pennsylvania dated Oct. 16, 2008).

On September 17, 2008, Baney filed the instant counseled

petition for writ of habeas corpus in which he raises the

following challenges to his conviction and sentence:

1. The Pennsylvania judiciary erred in ruling that

the Petitioner’s plea was entered knowingly and

intelligently given the failure of the

government to fulfill its contractual

obligations within the plea;

2. The Pennsylvania judiciary erred in ruling that

the Petitioner’s sentence was not unduly harsh,

excessive, and disproportionate in violation of

the Eighth Amendment of the United States

Constitution; and

3. The Pennsylvania judiciary erred in ruling that

Petitioner received constitutionally effective

assistance of counsel, when counsel failed to

properly prepare for trial and sentencing.

4. The petitioner is entitled to an evidentiary

hearing on these matters

(Doc. 1, petition at p. 9).

In accordance with United States v. Miller, 197 F.3d 644

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(3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir.

2000), the Court issued formal notice to Baney that he could

either have the petition ruled on as filed, that is, as a §

2254 petition for writ of habeas corpus and heard as such, but

lose his ability to file a second or successive petition,

absent certification by the court of appeal, or withdraw his

petition and file one all-inclusive § 2254 petition within the

one-year statutory period prescribed by the Antiterrorism

Effective Death Penalty Act (“AEDPA”). (Doc. 8). Baney

failed to return the notice of election form. Thus, a Show

Cause Order was issued on the petition as filed. (Doc. 13). 

A response (Doc. 19) and traverse (Doc. 20) having been filed,

the petition is ripe for disposition. 

 II. Discussion

A Standard of Review

Section 2254(d) of Title 28 of the United States Code

provides, in pertinent part, that an application for a writ of

habeas corpus premised on a claim previously adjudicated on

the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

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the United States; or

(2) [the decision] was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). To establish that the decision was

contrary to federal law “it is not sufficient for the

petitioner to show merely that his interpretation of Supreme

Court precedent is more plausible than the state court’s;

rather, the petitioner must demonstrate that Supreme Court

precedent requires the contrary outcome.” Matteo v.

Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly,

a federal court will only find a state court decision to be an

unreasonable application of federal law if the decision,

“evaluated objectively and on the merits, resulted in an

outcome that cannot reasonably be justified under existing

Supreme Court precedent.” Id.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is

required to presume that a state court’s findings of fact are

correct. A petitioner may only rebut this presumption with

clear and convincing evidence of the state court’s error. 

Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that

the clear and convincing standard in § 2254(e)(1) applies to

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factual issues, whereas the unreasonable application standard

of § 2254(d)(2) applies to factual decisions) Matteo, 171 F.3d

at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). 

This presumption of correctness applies to both explicit and

implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280,

286 (3d Cir. 2000). Consequently, a habeas petitioner “must

clear a high hurdle before a federal court will set aside any

of the state court’s factual findings.” Mastracchio v. Vose,

274 F.3d 590, 597-98 (1st Cir. 2001).

Like the “unreasonable application” prong of paragraph

(1), a factual determination should be adjudged “unreasonable”

under paragraph (2) only if the court finds that a rational

jurist could not reach the same finding on the basis of the

evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v.

Horn, 276 F. Supp 2d 278, 296 (E.D. Pa. 2003); see also Torres

v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson

vs. Virginia, 443 U.S. 307, 316 (1979). “This provision

essentially requires the district court to step into the shoes

of an appellate tribunal, examining the record below to

ascertain whether sufficient evidence existed to support the

findings of fact material to the conviction.” Breighner v.

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Chesney, 301 F. Supp 2d 354, 364 (M.D. Pa. 2004) (citing 28

U.S.C. § 2254(d)(2) and (f)1). Mere disagreement with an

inferential leap or credibility judgment of the state court is

insufficient to permit relief. Porter, 276 F. Supp 2d at 296;

see also Williams v. Taylor, 529 U.S. 362, 408-09 (2000);

Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when

the finding lacks evidentiary support in the state court

record or is plainly controverted by evidence therein should

the federal habeas court overturn a state court’s factual

determination. Porter, 276 F. Supp 2d at 296; see also

Williams, 529 U.S. at 408-09.

1. Challenge to plea colloquy / validity of plea

Baney claims that he did not knowingly and voluntarily

enter his negotiated guilty plea. (Doc. 1, petition). 

In deciding petitioner's challenge to his guilty plea,

the Superior Court, on direct appeal, held that under Rule 590

of the Pennsylvania Rules of Criminal Procedure at least six

1

“If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support the

State court’s determination of a factual issue made therein,

the applicant, if able, shall produce that part of the record

pertinent to a determination of the sufficiency of the

evidence to support such determination.” 28 U.S.C. § 2254(f).

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issues must be addressed by the trial court in order to

determine whether a guilty plea is proper:

1) whether the defendant understands the

nature of the charges to which he is

pleading guilty;

2) whether there is a factual basis for the

plea;

3) whether the defendant understands that he has a

right to a jury trial;

4) whether the defendant understands that he is

presumed innocent until found guilty;

5) whether the defendant is aware of the

permissible range of sentences for the offenses

charged; and

6) whether the defendant is aware that the judge is

not bound by the terms of the plea agreement

unless he or she accepts the agreement.

Commonwealth v. Baney, 860 A.2d 127 (2004). 

A guilty plea operates as a waiver of important rights,

and is valid, under federal law, only if done voluntarily,

knowingly and intelligently, with a sufficient awareness of

the relevant circumstances and likely consequences. Bradshaw

v. Stumpf, 545 U.S. 175 (2005) (quoting Brady v. United

States, 397 U.S. 742, 748 (1970)).

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The determination of whether a guilty plea is voluntary

for federal constitutional purposes is a question of federal

law. However, the reviewing court must grant a presumption of

correctness to the state court's findings of historical facts

surrounding the actual plea. See e.g. Rice v. Wynder, 2006 WL

2038411 at *5 (E.D.Pa. July 19, 2006).

Due process guarantees require that a defendant’s plea be

voluntary and intelligent. Bousley v. United States, 523 U.S.

614, 618 (1998); Brady v. United States, 397 U.S. 742, 748

(1970); Boykin v. Alabama, 395 U.S. 238-242 (1969). As such,

no criminal defendant should plead to a crime unless, and

until, he has had explained to him and understands all of his

constitutional rights and protections, including the privilege

against compulsory self-incrimination guaranteed by the Fifth

Amendment, the right to trial by jury, and the right to

confront one’s accusers. In the Boykin case, the United

States Supreme Court emphasized the importance of a judge’s

duty in ensuring that a criminal defendant have a full

understanding of what the plea connotes and its consequences

by “canvassing the matter” on the record. Boykin, 395 U.S. at

243-44. The failure to specifically articulate these rights,

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however, is not dispositive if the circumstances otherwise

establish that the plea was constitutionally acceptable.

United States v. Stewart, 977 F.2d 81, 85 (3d Cir. 1992),

cert. denied, 507 U.S. 979 (1993)(plea colloquy adequate

despite trial court’s failure to enumerate Boykin rights given

that those rights were reviewed in prior plea colloquy that

occurred only six weeks earlier.) 

A habeas petitioner faces a heavy burden in challenging

the voluntary nature of his guilty plea, for the plea hearing

is specifically designed to uncover hidden promises or

representations as to the consequences of a guilty plea. Lesko

v. Lehman, 925 F.2d 1527, 1537 (3d Cir.), cert. denied, 502

U.S. 898(1991). As the Supreme Court stated in Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977), “the representations of

the defendant, his lawyer, and the prosecutor at [a plea]

hearing, as well as any findings made by the judge accepting

the plea, constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court

carry a strong presumption of verity.” Id. at 73-74.

Upon review of petitioner's challenge to his guilty plea,

the Superior Court determined that the guilty plea was indeed

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knowing and voluntary. Commonwealth v. Baney, 860 A.2d 127,

132 (2004). Specifically, the Superior Court made the

following findings of fact:

Here, the record demonstrates that Baney’s plea

colloquy covered each of the above six areas (see

N.T. 5/19/03, 7-14). The comprehensive plea

colloquy notwithstanding, Baney asserts that he was

unable to understand his guilty plea proceedings

because he supposedly suffers from bipolar disease. 

However, the trial court very plainly asked

defendant on the record whether he suffered from any

mental or physical disability that would interfere

with his ability to understand the guilty plea

proceedings, to which Baney responded in the

negative (id. at 7-8). Further, Baney unequivocally

stated that he understood all the questions being

asked, and was entering his guilty plea voluntarily

(id. at 13). Only after the court was satisfied

that Baney knew all of his rights and was making an

intelligent and voluntary decision did it accept

Baney’s negotiated guilty plea (id. at 18). As

such, Baney’s claim is frivolous and provides no

basis for relief. See [Commonwealth v.] Muhammad,

794 A.2d [374,] 384 (appellant is bound by

statements made during plea colloquy and may not

successfully assert claims that contradict such

statements). 

Id. 

The state law applied by the Superior Court is not

contrary to, nor did it involve an unreasonable application

of, clearly established federal law. Thus, petitioner does

not meet 28 U.S.C. § 2254(d)(1).

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The Superior Court's findings of fact are entitled to a

presumption of correctness, and petitioner has not presented

any evidence that the findings are incorrect. On consideration

of the totality of the evidence presented in the state court

system, this Court finds that the Superior Court's rejection

of petitioner's challenge to the voluntariness of his guilty

plea is objectively reasonable, and, therefore, that the

standard of 28 U.S.C. § 2254(d)(2) has not been met.

2. Excessive Sentence

Petitioner claims that his sentence violated the Eighth

Amendment in that it was disproportionate to the sentences of

his co-defendants. (Doc. 2, Memorandum of Law at p. 9). 

Specifically, he states that “such disproportionate sentencing

is not constitutional and should not have been permitted in

this case....[and] that the rulings of the Pennsylvania courts

denying him relief on this issue must be vacated.” Id. at 10.

The specific ruling by the Pennsylvania Courts involved

Baney’s claim that his “minimum sentence exceeded one-half the

maximum in purported violation of 42 Pa.C.S. § 9756(b).” See

Commonwealth v. Baney, 860 A.2d 127, 131 (2004). 

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 Habeas relief is only available for violations of the

Constitution, laws or treaties of the United States. 28 U.S.C.

§ 2254 (a). The United States Supreme Court has held that

habeas matters involving a state court's discretionary acts in

sentencing proceedings are not subject to federal review,

unless a specific constitutional claim is allegedly violated.

See Estelle v. McGuire, 502 U.S. 62, 67 (1991); Lewis v.

Jeffers, 497 U.S. 764, 780 (1990); see also Jones v.

Superintendent of Rahway State Prison, 725 F.2d 40, 42-43 (3d

Cir.1984) (a federal court has no power to review a

state-imposed sentence in a habeas matter unless it involves

a violation of a specific constitutional right). Petitioner,

herein has failed to argue that a specific constitutional

violation occurred during his sentencing proceedings. (See

Doc. 2). Indeed, “[a]bsent some constitutional violation, it

is clear that, particularly in the area of state sentencing

guidelines, federal courts cannot review a state's alleged

failure to adhere to its own sentencing procedure.” Knight v.

Beyer, Civ. A. No. 88-3180, 1989 WL 68618, *6 (E.D. Pa. June

22, 1989) (citing Branan v. Booth, 861 F.2d 1507, 1508 (11th

Cir.1988)). Accordingly, a federal court will not reevaluate

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a sentence in a habeas corpus proceeding unless it exceeds the

statutory limits. Jones v. Superintendent of Rahway State

Prison, supra; see also Williams v. Duckworth, 738 F.2d 828,

831 (7th Cir.1984), cert. denied, 469 U.S. 1229, 105 S.Ct.

1229, 84 L.Ed.2d 367 (1985) (“As a general rule, federal

courts will not review state sentencing determinations that

fall within statutory limits.”); Bonner v. Henderson, 517 F.2d

135, 136 (5th Cir.1975) (“This Court will not upset the terms

of a sentence within statutory limits unless so

disproportionate to the offense as to be completely arbitrary

and shocking.”); Smith v. Wainwright, 664 F.2d 1194, 1196

(11th Cir.1981) (although court will review alleged

impropriety in sentencing process itself, it will not consider

the severity of a sentence imposed within statutory bounds). 

In the case at bar, petitioner's sentence is in

accordance with the mandatory minimum sentence requirements

for drug trafficking as set forth in section 7508. 

Specifically, the Pennsylvania Superior Court found the

following: 

In Commonwealth v. Hockenberry, 689 A.2d 283 (Pa.

Super. 1997), this Court upheld a minimum seven-year

and maximum ten-year sentence imposed pursuant to 18

23

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Pa.C.S. § 7508, the identical statute at issue in

the case at bar. The Hockenberry Court noted that

section 7508, a comprehensive statute regarding

punishment for drug trafficking, provides that the

minimum sentences contained therein shall apply

“[n]otwithstanding any other provisions of this or

any other act to the contrary.” Hockenberry at 289,

quoting 18 Pa.C.S. § 7508(a). Given that section

7508 was enacted well after the minimum-maximum

rule, the Court determined that the legislature

clearly intended section 7508 to supersede the

limits set forth in Pa.C.S. § 9756(b). Hockenberry

at 289. See Commonwealth v. Bell, 645 A.2d 211 (Pa.

1994)(section 7508's mandatory minimum sentence

provisions requiring 3 to 5 year sentence, despite

conflict with minimum-maximum rule of 42 Pa.C.S. §

9756, was not unconstitutional; section 7508 was

subsequently enacted by the legislature and with

intention of invoking harsher penalties to deter

drug trafficking). 

Here, Baney was sentenced in accordance with the

mandatory minimum sentence requirements for drug

trafficking set forth in section 7508. As such, his

contention that the trial court imposed an illegal

sentence in violation of the minimum-maximum rule is

without merit. 

Baney also claims that the court erred by not

merging his conspiracy and corrupt organizations

convictions for sentencing purposes. This argument

has been raised and rejected in Commonwealth v.

Stocker, 622 A.2d 333, 347 (Pa. Super. 1993). 

Accordingly, this claim of Baney is also frivolous.

Baney additionally attempts to contest various

discretionary aspects of his sentence. However,

having entered a valid negotiated guilty plea, as

will be discussed, Baney cannot challenge the

discretionary aspects of his sentence. See

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Commonwealth v. Reichle, 589 A.2d 1140 (Pa. Super.

1991); Commonwealth v. Coles, 530 A.2d 453 (Pa.

Super. 1987). Thus, this claim is frivolous. 

Commonwealth v. Baney, 860 A.2d 127, 131 (2004). Thus,

because the imposition of Baney’s sentence in Pennsylvania is

within the sound discretion of the court, petitioner's claim

does not raise any constitutional question and is not

reviewable in a federal habeas proceeding. See, See Pringle v.

Court of Common Pleas, 744 F.2d 297, 300 (3d Cir.1984). See

also 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67

(1991) ("We have stated many times that 'federal habeas corpus

relief does not lie for errors of state law." ') (quoting

Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Accordingly, we

have no jurisdiction to review petitioner's claim. See Booker

v. Shannon, 2003 WL 22872039, *2 (E.D.Pa.,2003).

3. Ineffective Assistance of Counsel

Baney argues that the Pennsylvania judiciary erred in

ruling that petitioner received constitutionally effective

assistance of counsel, when counsel failed to properly prepare

for trial and sentencing. (Doc. 1, petition). 

Before reaching the merits of a petitioner's claims, this

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Court must decide whether the claim was exhausted in the state

proceedings. If a habeas petitioner wishes to exhaust a claim

of ineffective assistance of counsel, such claim must be

raised at the very first stage when that allegedly ineffective

counsel is no longer representing the party or the issue of

that counsel's ineffectiveness is waived. Commonwealth v.

Green, 709 A.2d 382, 384 (Pa.1998) (“It is well-established

that a claim of ineffectiveness must be raised at the earliest

possible stage in the proceedings at which counsel whose

effectiveness is questioned no longer represents the

defendant.”); Commonwealth v. Laird, 726 A.2d 346, 354

(Pa.1999) (“As claims of ineffectiveness of prior counsel must

be raised at the first opportunity when that counsel no longer

represents the petitioner [and here that did not happen], the

issue has been waived.”) Commonwealth v. Kenney, 732 A.2d

1161, 1164 (Pa.1999); Commonwealth v. Hubbard, 372 A.2d 687,

695 n. 6. (Pa.1977). 

Baney’s brief on direct appeal to the Superior Court of

Pennsylvania did not include an issue regarding counsel’s

effectiveness. (See Doc. 19, Exs. D, E, Briefs in support of

Appeal). 

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Because Baney had the opportunity to raise his

ineffective assistance of counsel claim on direct appeal, yet

did not bring it until his PCRA appeal, the claim was waived

under Pennsylvania law and is now procedurally defaulted.

Baney first raised his claim of ineffective assistance of

counsel in his PCRA petition to the Court of Common Pleas. The

court decided the claims raised in Baney’s PCRA petition were 

meritless. (See Doc. 19, Ex. P, Notice of Intent to Dismiss

PCRA petition). 

However, on collateral appeal to the Superior Court,

petitioner failed to raise an ineffective assistance of trial

counsel claim.2 Thus, it is apparent from the Pennsylvania

2

Petitioner’s grounds for review on appeal included the

following: 

A. Whether the PCRA Court violated Appellant’s

state and federal constitutional rights of

self-representation by ordering PCRA counsel to

file a 1925 (b) statement after Appellant filed

a pro se Notice of Appeal without request for

counsel?

B. Whether the PCRA court erred by failing to cite

reasons in it’s [sic] Rule 907 notice of intent

to dismiss, [sic] to support it’s [sic] finding

that no genuine issues of any material facts

existed?

C. Whether the PCRA court erred by failing to

support it’s [sic] final PCRA order with

relevant findings of fact and conclusions;

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Superior Court’s opinion that petitioner waived the issue of

ineffective assistance of direct appeal counsel, as petitioner

expressly abandoned it in his brief in support of matters

complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. As such,

petitioner’s claim has not been properly exhausted. 

“When a claim is not exhausted because it has not been

‘fairly presented’ to the state courts, but state procedural

rules bar the applicant from seeking further relief in state

courts, the exhaustion requirement is satisfied because there

is ‘an absence of available State corrective process.’ 28

U.S.C. §2254(b). In such cases, however, applicants are

considered to have procedurally defaulted their claims and

federal courts may not consider the merits of such claims

D. Whether the PCRA counsel rendered ineffective

assistance by failing to preserve the need for

an evidentiary hearing?

E. Whether the PCRA Court erred by not convening an

evidentiary hearing and was Appellant prejudiced

by absence of a full and fair opportunity to

meet his burden to plead and prove his right to

relief on his underlying PCRA allegations of

error.

(Doc. 19, Ex. S, Pro Se Superior Court Brief). 

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unless the applicant establishes ‘cause and prejudice’ or a

‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).” 

McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); see

also, Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001);

Keller v. Larkins, 251 F.3d 408, 415 (3d Cir.) cert. denied,

122 S.Ct. 396 (2001); Lines, 208 F.3d at 164-66. 

To show cause, a petitioner must demonstrate some

objective factor external to the defense that prevented

compliance with the state’s procedural requirements. Murray v.

Carrier, 477 U.S. 478, 488 (1986); Caswell v. Ryan, 953 F.2d

853, 862 (3d Cir.) cert. denied, 504 U.S. 944 (1992). 

“Prejudice” will be satisfied if the habeas petitioner shows

that the outcome was “unreliable or fundamentally unfair” as

a result of a violation of federal law. See Lockhart v.

Fretwell, 506 U.S. 364, 366 (1993); Coleman, 501 U.S. at 750. 

In order to demonstrate a fundamental miscarriage of justice,

a petitioner must show that he is actually innocent of the

crime by presenting new evidence of innocence. Schlup v.

Delo, 513 U.S. 298 (1995); Keller, 251 F.3d 408. 

In view of the passage of time since his conviction

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became final, it does not appear that there remain any state

court remedies that Baney can now pursue. See Lines, 208 F.3d

at 163. That is, any relief that may have been available to

Baney under the PCRA act is now foreclosed by its 1-year

statute of limitations and petitioner’s claims do not satisfy

any of the three §9545 exceptions. See 42 Pa.C.S.A. § 9545.3

3

Pennsylvania prisoners must file their initial and

subsequent PCRA petitions:

within one year of the date the judgment becomes

final, unless the petition alleges and the petitioner

proves that:

(i) the failure to raise the claim

previously was the result of

interference by government

officials with the

presentation of the claim in

violation of the Constitution

or laws of this Commonwealth

or the Constitution or laws of

the United States;

 (ii) the facts upon which the claim is

predicated were unknown to the

petitioner and could not have been

ascertained by the exercise of due

diligence; or 

 (iii) The right asserted is a

constitutional right that was

recognized by the Supreme Court of

the United States or the Supreme

Court of Pennsylvania after the

time provided in this section has

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The petitioner, however, has not alleged cause or prejudice. 

Nor has he demonstrated his actual innocence such that a lack

of review by the court will constitute a fundamental

miscarriage of justice. Accordingly, his challenge to the

effectiveness of counsel must be rejected on the ground that

Baney failed to pursue this issue in the state courts and has

not established appropriate grounds for this Court to consider

the claim in the first instance. Consequently, the petition

for writ of habeas corpus will be denied. 

 4. Evidentiary Hearing

Based on the foregoing, petitioner’s final issue, that he

is entitled to an evidentiary hearing, is denied. 

An appropriate Order accompanies this Memorandum Opinion.

been held by that court to apply

retroactively. 

 (2) Any petition invoking an exception provided in

paragraph (1) shall e filed within 60 days from the

date the claim could have been presented. 

 42 Pa.C.S. § 9545(b). 

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Case 4:08-cv-01722-MM-DB Document 23 Filed 06/09/10 Page 31 of 33
Dated: June 9, 2010 s/Malcolm Muir 

MUIR

United States District Judge

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Case 4:08-cv-01722-MM-DB Document 23 Filed 06/09/10 Page 32 of 33
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JEREMY MICHAEL BANEY, :

:

Petitioner : No. 4:CV-08-1722

:

vs. : Petition Filed 9/17/08) 

:

JOHN PALAKOVICH, Warden, : (Judge Muir)

:

Respondent :

ORDER

June 9, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS ORDERED THAT:

1. The petition for writ of habeas corpus,

(Doc. 1) is DENIED.

2. The Clerk of Court is directed to CLOSE

this case.

3. There is no basis for the issuance of a

certificate of appealability. 

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:08-cv-01722-MM-DB Document 23 Filed 06/09/10 Page 33 of 33