In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have an

1

United States Magistrate Judge conduct proceedings in this case, including entry of a final judgment. 

 The Common Pleas Court's docket sheet is available for review online at < 2http://ujsportal.pacourts.us> and

this Court takes judicial notice of it. 

 RIPs are an available sentencing alternative under Pennsylvania sentencing law that allows for County 3

Intermediate Punishment programs. See 42 PA.CONS.STAT. §§ 9721, 9763. See also 42 PA.CONS.STAT. § 9801 et seq. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AMY M. NIELSEN, )

)

Petitioner, ) C.A. No. 07-175 Erie

)

v. )

) Magistrate Judge Susan Paradise Baxter

COURT OF COMMON PLEAS, et al., )

)

Respondents. )

OPINION AND ORDER1

I. Introduction

Petitioner, Amy M. Nielsen, has filed a Petition For Writ Of Habeas Corpus pursuant to 28

U.S.C. § 2254, which she subsequently amended. [Document Nos. 1 & 13]. For the reasons set

forth below, her request for habeas relief is denied and a certificate of appealability is denied. 

 

A. Relevant Background

In 2000, the Commonwealth charged Petitioner with nine separate counts of writing bad

checks in violation of 18 PA.CONS.STAT. § 4105. Her criminal case is docketed in the Court of

Common Pleas of Erie County, Pennsylvania, at No. 1617 of 2000. The court appointed Christine 2

Fuhrman Konzel, Esq., who at the time was the Chief Public Defender of Erie County, to represent

her. 

On June 22, 2000, Petitioner pleaded guilty to each count. That same day, the trial court

sentenced her to 5 years of Restrictive Intermediate Punishments ("RIP") on each count, to be 3

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 1 of 10
 Respondents have filed the original state court record ("SCR") and relevant transcripts. The SCR contains 53 4

documents and will be cited to as "SCR No. __ ." 

2

served consecutively. (See Drug Court Plea and Sentencing Hr'g Tr.).4

Petitioner had several drug relapses and her RIP was revoked after a hearing on August 23,

2001. The court resentenced her to 1-2 years' imprisonment at Count 1; a consecutive 1-2 years'

imprisonment at Count 2; and, a consecutive 6-12 months' imprisonment at Count 3. The court

also imposed a 5-year term of probation for Counts 3 through 9, to be served consecutively. (See

Intermediate Punishment Revocation Hr'g Tr. at 10-11). 

On August 31, 2001, Petitioner filed a post-sentence motion claiming that her sentence was

excessive and requesting a modification to a lesser term of incarceration and probation. (SCR No.

15). In response to the motion, the court modified the sentence so that the terms at Count 2 and

Count 3 ran concurrent to Count 1, leaving an aggregate sentence of 1-2 years of imprisonment, to

be followed by 25 years of probation. (SCR No. 19). 

Petitioner subsequently committed several technical violations of her probation, including

failing to abstain from illegal drug use. A probation revocation hearing was held on February 2,

2004, at which Petitioner was represented by Stephen J. Lagner, III, Esq., with the Public

Defender's Office. At the end of the hearing, the court revoked Petitioner's probation and

resentenced her to consecutive terms of imprisonment of 2 1/2 to 5 years on Count 4 and Count 5,

effective from the date she was detained in October 2003. It also reimposed the other periods of

probation for Counts 6 through 9. (See State Probation Revocation Hr'g Tr. at 5-17; see also SCR

No. 27, ¶¶ 4-6). 

On February 9, 2004, Petitioner, through Lagner, filed a motion to modify her sentence,

claiming that the court improperly classified her convictions as first degree misdemeanors. (SCR

No. 27). The court agreed and during a hearing on March 17, 2004, it vacated its February 2nd

sentencing order. It then resentenced her to: 1-2 years' imprisonment at Count 4 (effective March

13, 2002); a consecutive sentence of 6-12 months' imprisonment at Counts 5, 6, and 7; to be

followed by consecutive terms of 12 months' probation at Counts 1, 2, 3, 8, and 9, to commence at

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 2 of 10
 On August 19, 2004, the court increased the jail credit to 755 days. (SCR No. 42). 5

 The Brief For Appellant was filed by Ines M. Massella, Esq., also with the Public Defender's Office. Lagner 6

is listed as counsel of record on the Superior Court's docket.

3

the expiration of her sentence at Count 7. Thus, Petitioner's aggregate sentence was a term of

imprisonment not less than 30 months nor more than 60 months. (Post-Sentencing

Motion/Resentencing Hr'g Tr. at 13-15; SCR No. 30). 

5

Subsequent to that action, Petitioner, through Lagner, filed another post-sentence motion, in

which she alleged that her sentence was illegal and that she was entitled to additional credit for

time served. (SCR No. 31). On or around March 30, 2004, the court issued an order denying that

motion. (SCR No. 33). 

Petitioner, through Lagner, filed an appeal to the Superior Court of Pennsylvania on April

29, 2004. (See SCR Nos. 35, 37). She raised the following three claims:

(1) Where the trial court vacated an illegal sentence and resentenced the

appellant, did the trial court commit an error as a matter of law when it failed

to apply the sentencing guidelines at the time of the March 17, 2004,

resentencing?

(2) If the Superior Court determines that the sentencing guidelines were not

applicable at the time of the March 17, 2004, resentencing, was the

revocation sentence imposed nonetheless manifestly excessive?

(3) If the Superior Court determines that the sentencing guidelines were not

applicable to the March 17, 2004, resentencing and the sentence imposed

was not otherwise manifestly excessive, did the court err as a matter of law

in determining the amount of credit to be applied to the March 17, 2004,

sentence and in imposing sentences of probation at Counts 1, 2, and 3?

(See Brief For Appellant, Commonwealth v. Nielsen, No. 738 WDA 2004 (Pa. Super. Oct. 13,

2004)).6

On April 15, 2005, the Superior Court issued a Memorandum in which it quashed the

appeal as untimely. (SCR No. 44, Commonwealth v. Nielsen, No. 738 WDA 2004, slip op.

(Pa. Super. Apr. 15, 2005)). It explained that, pursuant to Pennsylvania Rule of Criminal

Procedure 708(D), a defendant has "thirty days to appeal from a sentence imposed following

revocation of probation regardless of whether she files a post-sentence motion." (Id. at 3 (citing

Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (emphasis added)). "Therefore,"

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 3 of 10
4

the Superior Court noted, "if an appellant chooses to file a motion to modify her revocation

sentence, she does not receive an additional 30 days to file an appeal from the date her motion is

denied." (Id. at 3-4). The Superior Court then determined that:

[T]he trial court's March 17 order clearly entered a judgment of sentence following th

revocation of Appellant's probation. Appellant had thirty days from March 17 to th

file a notice of appeal, regardless of her filing a subsequent motion to modify

sentence, which the court denied on March 30, 2004. See Pa.R.Cim.P. 708(D). 

Thus, Appellant's April 29, 2004 notice of appeal was facially untimely. See

Parlante, supra; Pa.R.Crim.P. 708(D). Furthermore, the trial court in this case did

not misstate the proper time for filing an appeal, a situation in which this Court has

previously declined to dismiss a facially untimely appeal from a revocation of

probation sentence. See Parlante, supra; [Commonwealth v. Coolbaugh, 770 A.2d

788 (Pa. Super. 2001)]. In fact, during the March 17 hearing Appellant's attorney th

correctly instructed her:

You also have the right to file an appeal to the Superior Court ...

within thirty days of your revocation and resentencing date. So if you

want to appeal your sentence ... you have thirty days from today's

date to do that.

You do not need to file a post-sentencing motion to preserve your

right for appeal. Any issue raised before the trial court may be raised

on appeal.

(N.T. Post-Sentence Motion/Resentencing Hearing, 3/17/04, at 10) (emphasis

added). Thus, we do not have authority to overlook the untimeliness of Appellant's

appeal. See Parlante, supra; Coolbaugh, supra.

(Id. at 5-6). 

The Superior Court further held that if it were to address Petitioner's claims, it would

conclude they were without merit:

"When considering the sentence imposed after probation revocation, our review is

limited to determining the validity of the probation revocation proceedings and the

authority of the sentencing court to consider the same sentencing alternatives that it

had at the time of the initial sentencing." Commonwealth v. McAfee, 849 A.2d 270,

275 (Pa. Super. 2004). The sentencing guidelines do not apply to sentences imposed

following revocation of probation or intermediate punishment. 204 Pa.Code.

§ 303.1(b); McAfee, supra. Thus, the trial court was not bound by the sentencing

guidelines when resentencing Appellant following its revocation of her intermediate

punishment on August 23, 2001, or following its revocation of probation on

February 2, 2004, amended via the March 17, 2004 resentencing. See id. A review

of the record reveals Appellant's sentence was supported by the facts of the case and

based on a fair consideration of the relevant sentencing factors. See Parlante, supra. 

Thus, Appellant's sentence was not manifestly excessive. See id.

(Id. at 6-7 (footnotes omitted)). 

Next, on January 30, 2006, Petitioner filed a pro se petition for relief under the

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 4 of 10
5

Pennsylvania Post-Conviction Relief Act ("PCRA"). (SCR No. 47). She contended that:

(1) her initial sentence was graded incorrectly and should have been vacated;

(2) her attorney was ineffective for failing to identify the incorrect grading of her

charges and for failing to inform her that she could receive the maximum

sentence allowed by law with all counts running consecutively;

(3) her sentence was manifestly excessive; and, 

(4) the court abused its discretion in sentencing her because of purported

personal prejudice against her.

The PCRA Court appointed William Hathaway, Esq., to represent Petitioner. He subsequently

filed a "no-merit" letter and a motion to withdraw. 

On August 22, 2006, the PCRA Court issued a 12-page Notice Of Intent To Dismiss PCRA

Petition. (SCR No. 49). It held that Petitioner's claims failed because they were either untimely,

previously litigated, waived, or moot. (Id.) It officially denied the PCRA petition on September

11, 2006. (SCR No. 50). Petitioner did not file an appeal with the Superior Court of Pennsylvania.

On May 29, 2007, Petitioner was again found to be in violation of her probation and parole. 

The court revoked her sentences of probation at Counts 1, 2, 3, 8, and 9. It sentenced her to 6-17

months' incarceration at Count 1, to be followed by 4 years of probation on the other counts. (SCR

No. 53). 

Thereafter, Petitioner filed a petition for writ of habeas corpus with this Court pursuant to

28 U.S.C. § 2254, which she later amended. [Document Nos. 1 & 13]. She raises the following

claims:

(1) her trial attorney was ineffective for failing to correct an error in the grading

of her offenses and for failing to inform her of alternative sentencing

options;

(2) her appellate counsel were ineffective for failing to file a timely appeal from

the court's March 17, 2004, sentencing order;

(3) her attorney at the May 29, 2007, hearing failed to explain to her why her

probation and parole was being revoked;

(4) the prosecutor at the May 29, 2007, revocation hearing (Christine Furhman

Konzel) had previously represented her and therefore had an impermissible

conflict of interest;

(5) her sentence should be vacated because it is manifestly excessive, the court

abused its discretion in sentencing her, she is entitled to additional

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 5 of 10
 The Common Pleas Court's docket indicates that Petitioner was paroled effective December 1, 2009. She has 7

not provided the Court with her most recent address; therefore, this Memorandum and Order will be sent to her last

address of record, which is the Erie County Prison. 

6

sentencing credit, it was calculated incorrectly.

The District Attorney of Erie County filed an Answer responding to Petitioner's claims

connected to the sentence imposed and ineffective assistance of counsel. [Document No. 16]. The

District Attorney argues, inter alia, that Petitioner's claims are procedurally defaulted because she

failed to exhaust them properly in state court. The Attorney General's Office filed an Answer

responding to Petitioner's allegations that her sentence was improperly calculated. [Document No.

8]. It asserts that Petitioner's sentence has been properly calculated by the Department of

Corrections and the Board of Probation and Parole. 

7

B. Discussion 

The doctrine of "exhaustion" requires a state prisoner to first present his federal

constitutional claims to the state courts before raising those claims in federal habeas court. 28

U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999). This requirement 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.'" Cristin v. Brennan, 281

F.3d 404, 410 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). In order

to exhaust a claim properly, a petitioner must "fairly present" it to each level of the state courts. 

Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing 28 U.S.C. § 2254(b); O'Sullivan, 526

U.S. at 848; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996), abrogated on other grounds by

Beard v. Kindler, ___ U.S. ___ ,130 S.Ct. 612 (2009)). In Pennsylvania, this requirement typically

means that a petitioner in a non-capital case must have presented every federal constitutional claim

raised in her habeas petition to both the Common Pleas Court and then the Superior Court either

on direct or PCRA appeal. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). 

As the forgoing review of the procedural history of Petitioner's case demonstrates, she did

not raise any of her habeas claims in state court properly. She has never litigated the claims

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 6 of 10
 The state rule that the Superior Court applied to deny Petitioner relief on her allegations (Pa.R.Crim.P. 8

708(D)) was both "independent" of federal law (meaning the application of the rule did not depend on answering any

federal constitutional question) and "adequate" to support the judgment. See, e.g., Gray v. Netherland, 518 U.S. 152,

162 (1996); Coleman, 501 U.S. at 732. A state rule is "adequate" if the state appellate court reviewing the petitioner's

claim refused to review it on the merits because the petitioner failed to comply with the rule and the state court's refusal

was consistent with other decisions. Nara v. Frank, 488 F.3d 187, 199 (3d Cir. 2007); Kindler, 130 S.Ct. at 617-18

(discretionary state rules can be "adequate"); see also Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (a state procedural

rule is "adequate" if it is "firmly established and regularly followed" at the time that the alleged procedural default

occurred).

7

designated herein as Claims 1, 2, 3, and 4 with the Superior Court, which she had to do in order to

fully and properly exhaust those claims. It appears that she did raise the allegations contained at

Claims 5 in her direct appeal to the Superior Court, but that court denied those allegations because

they were untimely.8

The procedural default doctrine applies to bar federal habeas relief when a state court has

declined or would decline to address a petitioner's federal constitutional claims because she failed

to meet a state procedural requirement (i.e., failed to exhaust the claim properly). See, e.g.,

Whitney v. Horn, 280 F.3d 240, 381 (3d Cir. 2002). A petitioner whose constitutional claim has

not been addressed on the merits due to the failure to comply with a state procedural rule can

overcome the default, thereby allowing federal court review, if she can demonstrate "cause" for the

default, i.e., that some objective factor "external to the defense" impeded efforts to comply with the

state's procedural rule, and "actual prejudice." Coleman, 501 U.S. at 750; see also Murray v.

Carrier, 477 U.S. 478, 488, 494 (1986). 

Petitioner has the burden of demonstrating "cause and prejudice." Coleman, 501 U.S. at

750; see e.g. Lines, 208 F.3d at 160. She does not satisfy this burden. The District Attorney

acknowledges that her direct appeal counsel (Lagner and Massella) were arguably ineffective in

failing to file a timely appeal of the March 17, 2004, resentencing order. However, although the

Supreme Court has recognized that attorney error that rises to the level of a Sixth Amendment

violation can constitute "cause," Coleman, 501 U.S. at 753-54, Petitioner may not rely on direct

appeal counsels' alleged ineffectiveness to avoid a procedural default in this case. That is because

she could have, but did not, raise a claim of ineffective assistance of direct appeal counsel to the

Superior Court during the PCRA proceeding. "[A] claim of ineffective assistance of [appellate]

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 7 of 10
 A petitioner also can overcome a procedural default under the "fundamental miscarriage of justice" exception. 

9

This exception provides that a procedural default may be excused if the petitioner presents evidence of "actual

innocence" that is "so strong that a court cannot have confidence in the outcome of the trial unless the court is also

satisfied that the trial was free of nonharmless constitutional error[.]" Schlup v. Delo, 513 U.S. 298, 316 (1995); House

v. Bell, 547 U.S. 518 (2006); Hubbard v. Pinchak, 378 F.3d 333, 339-41 (3d Cir. 2004). Coleman, 501 U.S. at 750-51. It

only applies only in extraordinary cases where the petitioner demonstrates that a constitutional violation has probably

resulted in the conviction of one who is actually innocent. Id.; Hubbard, 378 F.3d at 339-40. It is not applicable to this

case. 

8

counsel [must] be presented to the state courts" in a PCRA proceeding "as an independent claim

before it may be used to establish procedural default." Murray, 477 U.S. at 489. Accordingly, 9

Petitioner's contention that her direct appeal counsel were ineffective in failing to file a timely

appeal is insufficient to demonstrate "cause" to overcome the default her claims. Therefore,

because her federal habeas claims are procedurally defaulted and the "cause and prejudice"

exception is inapplicable to excuse her default, she is not entitled to habeas relief. 

The Court also notes in closing that the central issue in the instant habeas petition is

Petitioner's contention that she is serving an excessive sentence. Sentencing is generally considered

a matter of state criminal procedure, which does not fall within the purview of federal habeas

review. See 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)). A claim of an excessive sentence is not cognizable in federal

habeas. Unless a habeas petitioner asserts that a state sentence constitutes cruel and unusual

punishment prohibited by the Eighth Amendment, or that it is arbitrary or otherwise in violation of

due process, the legality of a sentence is purely a question of state law. See, e.g., Chapman v.

United States, 500 U.S. 453, 465 (1991); Jones v. Superintendent of Rahway State Prison, 725 F.2d

40, 42- 43 (3d Cir.1984). 

C. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253 (as

amended)) codified standards governing the issuance of a certificate of appealability for appellate

review of a district court's disposition of a habeas petition. Amended Section 2253 provides that

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 8 of 10
9

"[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of

the denial of a constitutional right." In Slack v. McDaniel, 529 U.S. 473, 474 (2000), the Supreme

Court stated that "[w]hen 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." Applying this standard

here, jurists of reason would not find it debatable whether Petitioner's habeas claims are

procedurally defaulted. Accordingly, a certificate of appealability is denied.

III. CONCLUSION

For the foregoing reasons, the Petition For Writ Of Habeas Corpus, as amended, is denied

and a certificate of appealability be denied. An appropriate order follows. 

 

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Dated: April 16, 2010

cc: Notice by ECF to counsel of record and by U.S. Mail to:

Amy M. Nielsen 

14190 

Erie County Prison 

1618 Ash Street

Erie, PA 16503 

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 9 of 10
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

AMY M. NIELSEN, )

)

Petitioner, ) C.A. No. 07-175 Erie

)

v. )

) Magistrate Judge Susan Paradise Baxter

COURT OF COMMON PLEAS, et al., )

)

Respondents. )

ORDER

AND NOW, this 16th day of April, 2010;

IT IS HEREBY ORDERED that the Petition For Writ Of Habeas Corpus, as amended, is

denied and that a certificate of appealability be denied. The Clerk of Courts is hereby directed to

close this case.

s/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

cc: Notice by ECF to counsel of record and by U.S. Mail to:

Amy M. Nielsen 

14190 

Erie County Prison 

1618 Ash Street

Erie, PA 16503 

Case 1:07-cv-00175-SPB Document 21 Filed 04/16/10 Page 10 of 10