Mitchell v. Marsh

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD LEE MITCHELL, JR., > Civil No. 3:19-cv-0209

Petitioner . (Judge Mariani)

v. .

WARDEN RICHARD MARSH, .

Respondent .

MEMORANDUM

I. Background

Petitioner Edward Lee Mitchell, Jr., (“Mitchell”) files the instant petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, challenging the return of money seized from

him during his 2016 arrest for six counts of robbery, three counts of theft by unlawful taking

and one count of forgery. (Doc. 1).

For the reasons set forth below, the petition for writ of habeas corpus, which is

governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132,

110 Stat. 1214, April 24, 1996 (“AEDPA’), will be denied.

Il. State Court Factual and Procedura! Background

The following relevant facts and procedural history set forth below are extracted from

the Superior Court of Pennsylvania’s October 11, 2018 decision affirming the trial court's

denial of Petitioner's Motion for Return of Property:

Mitchell entered a negotiated guilty plea to multiple counts of robbery, theft by

unlawful taking, and forgery,’ after robbing a series of Kmart stores and Metro

Banks and stealing and forging checks belonging to his parents. The court

sentenced Mitchell on July 19, 2016, in accordance with the plea agreement,

to an aggregate of 15 to 35 years’ incarceration. The court also ordered Mitchell

to pay court costs, fines totaling $600, and restitution of approximately $9,000.

At the conclusion of the sentencing hearing, the prosecutor stated that “the only

other matter Mr. Mitchell's raised” was regarding “about $2,000” that police had

seized from Mitchell when they arrested him. See N.T., 7/19/16, at 19. The

prosecutor stated that the Commonwealth “ha[d] no objection to all the seized

money ... to be put forth towards the restitution, fines, and costs in this case.”

Id. Neither Mitchell nor his lawyer objected, or requested that the court order

the Commonwealth to return the money to Mitchell. The court accepted the

proposal, and Mitchell’s attorney responded, “Thank you, Your Honor.” /d.

Mitchell did not appeal.

The court entered an Amended Sentencing Order on August 31, 2016, that

corrected Mitchell's sentence, but did not address restitution, fines, or costs, or

the seized money. Mitchell's aggregate sentence remained 15 to 35 years. On

November 14, 2016, Mitchell filed a pro se Petition for the Disbursement of

Confiscated Money. Mitchell acknowledged that at sentencing, the court had

ordered that all seized money be put toward restitution, costs, and fines, but

alleged that none of the funds had been so applied. Mitchell asked the court to

order the confiscated money be applied toward his restitution, costs, and fines,

and to inform the Department of Corrections of the order. The court gave the

Commonwealth leave to respond to the Petition within 14 days; the

Commonwealth filed no response. The court never ruled on this Petition.

Subsequently, on January 9, 2017, Mitchell filed a pro se Petition for Entry of

Final Order, again asking the court to apply the confiscated money to the

restitution, costs, and fines he owed. The court did not rule on this Petition,

either.

Mitchell then filed, through trial counsel, an Unopposed Motion to Amend

Sentence, on January 30, 2017. On February 3, 2017, the court granted the

motion, and again corrected Mitchell's sentence on certain counts to conform

Mitchell pleaded guilty to a total of six counts of robbery, 18 Pa.C.S.A. § 3701(a)(1)(11),

three counts of theft by unlawful taking, 18 Pa.C.S.A. § 3921(a), and one count of forgery, 18

Pa.C.S.A. § 4101(a)(2).

2 The Order was dated August 30, 2016, but time stamped on August 31, 2016.

it to the plea agreement. The aggregate remained 15 to 35 years, and Mitchell

did not appeal the amended sentence. Mitchell's trial counsel thereafter

petitioned to withdraw as counsel, and the court granted the petition.

Mitchell filed a pro se Post Conviction Relief Act? (“PCRA”) petition, on March

8, 2017, and the court appointed counsel. PCRA counsel filed an Amended

Petition in June 2017 and a Second Amended Petition in July 2017. Relevant

to this appeal, the Second Amended Petition alleged that the money that police

had confiscated from Mitchell had not been applied to his fines, costs, and

restitution, as the court had ordered. The PCRA court scheduled a hearing for

January 4, 2018. Prior to the start of the hearing, the parties reached an

agreement that Mitchell would withdraw his PCRA Petition and the court would

enter an amended sentencing order addressing issues unrelated to this appeal.

Pursuant to the agreement, on January 25, 2018, the court entered an

Amended Sentencing Order, which again corrected Mitchell's sentence, but did

not change his aggregate sentence of 15 to 35 years’ incarceration, or address

fines, costs, or restitution, or the seized money.

(Doc. 9-4 at 1-2, Commonwealth v. Mitchell, 441 MDA 2018 at 1-2, (Pa. Super. Oct. 11, 2018)

(unpublished memorandum).

By Order dated January 29, 2018, the Court, finding that “prior to the start of the PCRA

Hearing scheduled on January 4, 2018,” the “parties were able to reach an agreement,”

ordered that “Defendant’s pro se PCRA Petition(s) filed June 12, 2017 and Amendment PCRA

Petition(S) filed July 6, 2017” were withdrawn and that “upon agreement of both parties, the

Defendant is hereby resentenced as outlined in the Amendment Sentencing Order filed

January 26, 2018.” (Doc. 9-1 at 790, Order).

On January 29, 2018, Mitchell filed a pro se Motion for Return of Property (“Motion”).

3 See 42 Pa.C.S.A. §§ 9541-9546.

(Doc. 9-1 at 791). In the Motion, Mitchell argued that he was entitled to the return of the funds

police had seized, pursuant to Pennsylvania Rule of Criminal Procedure 588.4 /d. The

Commonwealth filed an Answer to the Motion on February 16, 2018. (Doc. 9-1 at 797). By

Order dated February 20, 2018, the court denied the Motion to return the property and

directed that “the $1,505.18 U.S. Currency seized in this matter shall be applied towards the

restitution owed.” (Doc. 9-1 at 813, Order). The Order did not mention fines or costs. Id.

On February 28, 2018, Mitchell filed a timely notice of appeal, raising the following

issues for review:

1. Did the lower court error (sic) when it ordered that Petitioner's confiscated

money (1,505.18) be applied to the Petitioner['] fines, costs and restitution,

when the Petitioner is already paying fines, costs and restitution pursuant to

Act 84?

2. Did the lower court error (sic) when it denied the petitioner his constitution

right to his money without due process of law?

3. Did the lower court error (sic) as a matter of law when it failed to return the

Petitioner's $1,505.18 pursuant to the Pa. Rules of Criminal Procedure 588?

Id. In their March 26, 2018 Memorandum Opinion, written pursuant to Pa.R.A.P. 1925(a),

4 Rule 588(“Motion for Return of Property”) states:

(A) A person aggrieved by a search and seizure, whether or not executed pursuant

to a warrant, may move for the return of the property on the ground that he or she

is entitled to lawful possession thereof. Such motion shall be filed in the court of

common pleas for the judicial district in which the property was seized.(B) The

judge hearing such motion shall receive evidence on any issue of fact necessary to

the decision thereon. If the motion is granted, the property shall be restored unless

the court determines that such property is contraband, in which case the court may

order the property to be forfeited.

Pa.R.Crim.P. 588(A)-(B).

the trial court found the following:

The Pennsylvania Supreme Court addressed this issue in Commonwealth v.

Allen, 630 Pa. 577, 107 A.3d 709 (2014)(Allen I/). Our Supreme Court held

that “[Allen’s] failure to file a return motion during the pendency of the criminal

charges against him or within thirty days following the dismissal of the charges

result[ed] in waiver.” /d. at 718. As such, a criminal defendant who claims

ownership of property must file that motion “in the trial court while that court

retains jurisdiction, which is up to thirty days after disposition.” Allen II at 717.

See also Commonwealth v. LeBrake, 134 A.3d 166 (Pa. Super. 2016). Failure

to do so results in waiver of “any entitlement to the return of property under

Rule 588.” Id. See also Commonwealth v. Setzer, 258 Pa. Super. 236, 392

A.2d 772, 773 (1978) (“[W]here an issue is cognizable in a given proceeding

and is not raised it is waived and will not be considered on a review of that

proceeding.”).

Here, Edward Mitchell was the defendant in the underlying criminal proceeding

and could have filed his motion at any point prior to and up to thirty (30) days

after the entry of his guilty plea. Appellant entered a guilty plea on May 23,

2016 and was sentenced on July 19, 2016. An amended Sentencing Order

was entered on August 31, 2016. It was not until November 14, 2016 that

Appellant initially filed a motion seeking the return of his property. This was

after the thirty (30) day time period. Accordingly, Appellant has waived his

claims.®

(Doc. 9-1 at 925-926, Memorandum Opinion).

By Memorandum Opinion dated October 11, 2018, the Pennsylvania Superior Court

affirmed the denial of Mitchell's Motion for Return of Property. (Doc. 9-4 at 1-2,

Commonwealth v. Mitchell, 441 MDA 2018 at 1-2, (Pa. Super. Oct. 11, 2018) (unpublished

memorandum).

On February 6, 2019, Mitchell filed the instant petition for writ of habeas corpus

> Again, we note that Appellant’s confiscated money is being applied to this restitution.

pursuant to 28 U.S.C. § 2254. In his petition, Mitchell raises the following three claims for

relief:

1. Trial counsel provided ineffective assistance during sentencing proceedings

by failing to object when the Commonwealth proposed that Petitioner's seized

money should be applied to applicable costs and PCRA counsel was ineffective

for failing to raise this claim in the initial collateral review petition.

2. The trial court violated Petitioner's Due Process rights by failing to conduct

an on the record colloquy when the Petitioner waived his right to collateral

review.

3. The trial court violated Petitioner's Due Process rights by failing to state the

terms of the 1/25/18 plea agreement on the record, an agreement which the

Commonwealth did not honor which essentially violates the original plea

agreement rendering such involuntary and not intelligently knowing.

(Doc. 1, petition at 15-17).

On August 8, 2019, Respondent filed a response arguing that Petitioner has failed to

exhaust his available state court remedies because he failed to seek any state court review

with respect to the three issues raised in the instant petition for writ of habeas corpus. (Doc.

9). Itis alternatively argued that the Petitioner's claims are meritless. /d. Although

provided an opportunity to file a traverse, Petitioner has not filed a traverse.

ill. Legal Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for

a prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411

U.S. 475, 498-99 (1973). □□ U.S.C. § 2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court

shall entertain an application for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws or treaties of the United

States

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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. Section 2254 sets limits on the power of a federal court to grant an

application for a writ of habeas corpus on behalf of a state prisoner. Cullen v. Pinholster,

563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal

court may consider a habeas petition filed by a state prisoner only “on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). This limitation places a high threshold on the courts. Typically, habeas

relief will only be granted to state prisoners in those instances where the conduct of state

proceedings resulted in “a fundamental defect which inherently results in a complete

miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair

procedure.” Reed v. Farley, 512 U.S. 339, 348 (1994) (citations omitted).

Mitchell’s case is governed by the Antiterrorism and Effective Death Penalty Act of

1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 (“AEDPA”).

IV. Discussion

Respondent asserts that all of Petitioner's grounds for relief are unexhausted and

procedurally defaulted. (Doc. 9 at 5-6).

Absent unusual circumstances, a federal court should not entertain a petition for writ

of habeas corpus, unless the petitioner has first satisfied the exhaustion requirement

articulated in 28 U.S.C. § 2254(b). Specifically, habeas relief “shall not be granted unless it

appears that . . . the applicant has exhausted the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). The exhaustion requirement is grounded on principles of comity to ensure that

state courts have the initial opportunity to review federal constitutional challenges to state

convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000); Picard v. Connor,

404 U.S. 270, 275-76 (1971). The habeas statute codifies this principle by requiring that a

petitioner exhaust the remedies available in the courts of the State, 28 U.S.C. §

2254(b)(1)(A), meaning a state prisoner must “fairly present” his claims in “one complete

round of the state’s established appellate review process,” before bringing them in federal

court. O’Sullivan, 526 U.S. at 845 (stating “[b]ecause the exhaustion doctrine 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, . . . state prisoners must give the

state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established review process.”); see also Duncan v. Henry, 513

U.S. 364, 365 (1995): Picard, 404 U.S. at 275 (1971); Lambert v. Blackwell, 134 F.3d 506,

513 (3d Cir. 1997). This requires that the claim brought in federal court be the substantial

equivalent of that presented to the state courts. Picard, 404 U.S. at 278; see also

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must

present both “factual and legal substance” of claim to state courts). Mere reliance of state

and federal claims on the same constitutional provision does not render the two claims

substantially equivalent. See Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v.

Gray, 543 F.2d 466 (3d Cir. 1976). Both the legal theory and the facts on which a federal

claim rests must have been presented to the state courts. See Picard, 404 U.S. at 277;

Brown, 669 F.2d at 158-61. “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 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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).”

McCandless, 172 F.3d at 260. To demonstrate “cause” for a procedural default, a

petitioner must point to some objective external factor which impeded his efforts to comply

with the state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986).

“Prejudice” will be satisfied only if he can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair’ as a result of a violation of federal law.

See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has probably

resulted in the conviction of one who is actually innocent,” Murray, 477 U.S. at 496, then □

federal court can excuse the procedural default and review the claim in order to prevent a

fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000);

Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception

applies only in extraordinary cases, and actual innocence means factual innocence, not

legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S.

at 496. A petitioner establishes actual innocence by asserting “new reliable evidence--

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” showing that no reasonable juror would

have voted to find the petitioner guilty beyond a reasonable doubt. Hubbard v. Pinchak,

378 F.3d 333, 339-40 (3d Cir. 2004).

It is Respondent's position that Petitioner's claims have never been presented to a

state court, and, consequently, are procedurally defaulted. (Doc. 9 at 5-6). Petitioner

argues that he can overcome the procedural default of his first claim under the authority of

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Martinez v. Ryan, 566 U.S. 1 (2010), claiming that his PCRA counsel was ineffective

because he failed to raise trial counsel's ineffectiveness for “failing to object to the terms of

the agreement which did not include Petitioner's personal property to be counted toward

court costs.” (Doc. 6 at 7).

Martinez v. Ryan, 566 U.S. 1 (2010), recognized a “narrow exception” to the general

rule that attorney errors in collateral proceedings do not establish cause to excuse a

procedural default. Specifically, Martinez holds that “[i|nadequate assistance of counsel at

initial-review collateral proceedings may establish cause for a prisoner's procedural default

of a claim of ineffective assistance at trial.” Id. at 9. To successfully invoke the Martinez

exception, a petitioner must satisfy two factors: that the underlying, otherwise defaulted,

claim of ineffective assistance of trial counsel is “substantial,” meaning that it has “some

merit,” id. at 14; and that petitioner had “no counsel’ or “ineffective” counsel during the initial

phase of the state collateral review proceeding. /d. at 17; see also Glenn v. Wynder, 743

F.3d 402, 410 (3d Cir. 2014).

A petitioner demonstrates that the underlying ineffective assistance of trial counsel

claim has “some” merit by “show[ing] that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Workman v. Superintendent Albion SCI, 915 F.3d 928, 937-38 (3d Cir. 2019); see also

Martinez, 566 U.S. at 13-14. A petitioner demonstrates that post-conviction counsel’s

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ineffectiveness caused the procedural default by showing that post-conviction counsel's

performance was deficient under the first prong of the Strickland v. Washington, 466 U.S.

668 (1984) standard. See Preston v. Sup’t Graterford, SCI, 902 F.3d 365, 376 (3d Cir.

2018); see also Workman, 915 F.3d at 937-38. Satisfaction of the first Strickland prong

requires a petitioner to demonstrate that “counsel's representation fell below an objective

standard of reasonableness,” with reasonableness being judged under professional norms

prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688.

Initially, Petitioner argues that trial counsel was ineffective during sentencing

proceedings by failing to object when the Commonwealth proposed that Petitioner's seized

money should be applied to applicable costs. (Doc. 1 at 15).

The Court finds, however, that Petitioner's first claim is not cognizable on habeas

review. “A district court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant to the judgment of a State court only on the ground that he

is in custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C.A. § 2254(a). Petitioner's first claim is a challenge to the State's failure to return

seized property rather than a challenge to Petitioner's underlying guilty plea which led to

Petitioner's custody. Washington v. Bonds, No. CV 17-3439(RMB), 2019 WL 3431595, at

*6 (D.N.J. July 29, 2019), certificate of appealability denied sub nom. Washington v. Adm'r

S. Woods State Prison, No. CV 19-2867, 2019 WL 7906160 (3d Cir. Dec. 17, 2019); Large

v. Coleman, Civ. Action No. 08-1561, 2009 WL 222964 (W.D. Pa. Jan. 29, 2009) (holding

12

that a denial of motion for return of seized property is not a matter a federal habeas court is

authorized to review). Because this claim does not implicate the validity of Petitioner's

incarceration, the Court finds that the underlying, otherwise defaulted, claim of ineffective

assistance of trial counsel lacks merit, and Martinez does not excuse the procedural default

of Petitioner's first claim. Thus, Petitioner's first claim is unexhausted and without merit.

Petitioner's remaining two claims are that “the trial court violated Petitioner's Due

Process rights by failing to conduct an on the record colloquy when the Petitioner waived his

right to collateral review” and “the trial court violated Petitioner's Due Process rights by failing

to state the terms of the 1/25/18 plea agreement on the record, an agreement which the

Commonwealth did not honor which essentially violates the original plea agreement rendering

such involuntary and not intelligently knowing’. (Doc. 1 at 15-16). Neither of these claims

have been presented to a state tribunal for review. Petitioner concedes this. (Doc. 6 at 11-

14).

“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 unless the applicant establishes ‘cause and prejudice’ or a

‘fundamental miscarriage of justice’ to excuse his or her default. See Coleman v.

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Thompson, 501 U.S. 722, 750 (1991).” McCandless, 172 F.3d at 260. To demonstrate

“cause” for a procedural default, a petitioner must point to some objective external factor

which impeded his efforts to comply with the state’s procedural rule. See Murray v. Carrier,

477 U.S. 478, 488 (1986). “Prejudice” will be satisfied only if he can demonstrate that the

outcome of the state proceeding was “unreliable or fundamentally unfair” as a result of a

violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, a federal court may excuse a procedural default when the petitioner

establishes that failure to review the claim will result in a fundamental miscarriage of justice.

See Werts v. Vaughn, 228 F.3d 178, 192-193 (3d Cir.2000). A credible allegation of

“actual innocence” constitutes a “miscarriage of justice” that enables federal courts to hear

the merits of otherwise procedurally defaulted habeas claims. Hubbard v. Pinchak, 378

F.3d 333, 338 (3d Cir.2004). The fundamental miscarriage of justice exception, as defined

by the United States Supreme Court, is confined to cases of actual innocence as compared

to legal innocence, where the petitioner can show that it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt in light of new

evidence. Schlup v. Delo, 513 U.S. 298, 327 (1995). “To be credible,” a claim of actual

innocence must be based on reliable evidence not presented at trial. /d. at 324.

In the instant case, there is no question that Petitioner's two remaining trial court

error Claims were never raised in the state courts and, are therefore, unexhausted, and

procedurally defaulted. Petitioner concedes that both claims are procedurally defaulted but

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contends that he can demonstrate “cause for the default’ which results in ‘actual prejudice

as a result of the alleged violation of federal law’.” (Doc. 6 at 12). “Namely, the state court

entirely distorted the United States Constitution by failing to conduct an on the record

colloquy ensuring Petitioner knowingly and voluntarily relinquished his collateral rights.” /d.

In support of position, Petitioner states that:

On January 4, 2018 prior to the start of the PCRA hearing the Petitioner,

PCRA counsel, and District Attorney were able to reach an agreement in

exchange for the defendant to withdraw the PCRA. This agreement was, the

Petitioner would withdraw his PCRA petition in exchange for the money that

was seized at the time of his arrest. In accordance with the agreement, the

Petitioner was advised to file a motion for the return of his property in which

the Commonwealth would not object to.

Following this agreement, on January 25, 2018, the state court issued an

order indicating that the parties have come to an agreement and that the

Petitioner was in fact withdrawing his PCRA petition. However, the state

court did not put forth the agreement on the record.

(Doc. 1 at 16). Petitioner argues that the trial court’s actions violated the holding of the

United States Court of Appeal for the Third Circuit in United States v. Mabry, 536 F.3d 231,

236 (3d Cir. 2008), where the Third Circuit found that while “criminal defendants may waive

both constitutional and statutory rights, provided they do so voluntarily and with knowledge

of the nature and consequences of the waiver, the Court would only “enforce such waivers,

provided that they are entered into knowingly and voluntarily and their enforcement does not

work a miscarriage of justice.” Id.

While the Court agrees that the Third Circuit’s holding in Mabry would apply if

Petitioner were challenging his initial, underlying plea agreement, which resulted in his

15

incarceration, here, the agreement in the instant action revolves around the appropriate use

of monies seized from Petitioner. Because Petitioner’s second and third claims relate only

to how the monies seized from Petitioner were utilized, and do not challenge the fact or

duration of his confinement, they are not cognizable in a federal habeas action and do not

allow Petitioner to overcome his procedural default of these claims.

Although the Third Circuit has not squarely addressed whether challenges to

restitution are cognizable in habeas petitions, see Gardner v. Bledsoe, 415 F. App’x. 384,

386 n.2 (3d Cir. 2011), other circuit courts have held that they are not. See, e.g., United

States v. Bania, 787 F.3d 1168, 1173 (7th Cir. 2015) (finding that a § 2255 motion “cannot

be used as a vehicle for challenging the restitution component of a sentence”); Shepard v.

United States, 735 F.3d 797, 798 (8th Cir. 2013) (finding that petitioner “cannot challenge

the restitution portion of his sentence under section 2255, because the statute affords relief

only to prisoners claiming a right to be released from custody,” even when his claim is one

of ineffective assistance of counsel); United States v. George, 411 F. App’x. 31, 33 n. 1 (9th

Cir. 2010) (stating that “a § 2255 motion may not be used to challenge [the restitution]

aspect] ] of a sentence.”); Kirby v. Janecka, 379 F. App’x. 781, 783 (10th Cir. 2010) (finding

habeas challenge to restitution order not cognizable under § 2254 because it does not

challenge the validity of petitioner's custody); Kaminski v. United States, 339 F.3d 84, 89

(2d Cir. 2003) (finding habeas challenge to the propriety of restitution order was not

cognizable upon motion to vacate, even though defendant was in custody at time he filed

16

motion, where motion did not attack the imprisonment sentence, but only the restitution

order); see also Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003) (order of restitution

is insufficient to satisfy the “in custody” requirement of a habeas petition). Thus, the Court

finds Petitioner's second and third® claims unexhausted and without merit.

V. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate

of appealability (“COA”), an appeal may not be taken from a final order in a proceeding

under 28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies

this standard by demonstrating that jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322 (2003). Mitchell fails to demonstrate that a COA should issue.

6 To the extent that Petitioner’s third claim alleges that the “trial court violated Petitioner’s

Due Process rights by failing to state the terms of the 1/25/18 plea agreement on the record, an

agreement which the Commonwealth did not honor which essentially violates the original plea

agreement rendering such involuntary and not intelligently knowing,” the only Order of record

entered on January 25, 2018, was Petitioner’s “Amended Sentencing Order”. (Doc. 9-1 at 787).

This Order corrected Mitchell’s sentence, but did not change his aggregate sentence of 15 to 35

years’ incarceration, nor did it impact his original plea agreement. /d. Thus, to the extent that

Petitioner is referencing this Order as a new plea agreement, required to be entered on the record,

his claim is without merit.

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The denial of a certificate of appealability does not prevent Mitchell from appealing

the order denying his petition so long as he seeks, and obtains, a certificate of appealability

from the Third Circuit Court of Appeals. See Fed. R. App. P. 22(b)(1).

Vi. = Conclusion

For the reasons set forth above, the petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 will be denied. se

A separate Order shall issue.

a ’

Dated: June 2S 2021 I

(CM ILUULL,

Robert D. Mariani

United States District Judge

18