Appeals / Post-Conviction

"***** Bob knows the law unlike anyone I have ever met." Fellow Attorney - Google - 2015

LOOKING FOR RELIEF FROM A CRIMINAL CONVICTION?

HAS A LOVED ONE OR FRIEND RECENTLY BEEN CONVICTED OF A CRIME? IS A LOVED ONE OR FRIEND CURRENTLY SERVING A PRISON SENTENCE AND YOU ARE WONDERING IF ANYTHING CAN BE DONE? CAN THEIR SENTENCE BE REDUCED?

CALL THE ATTORNEY WHO ACTUALLY ENJOYS THIS WORK, WHO HAS ACTUALLY DONE THIS WORK AND IS READY TO PUT THAT EXPERIENCE TO WORK FOR YOU, YOUR LOVED ONE OR YOUR FRIEND. CALL THE ATTORNEY WHO IS "LEAD COUNSEL RATED" FOR HIS OUTSTANDING APPELLATE WORK OVER 25 YEARS!

CALL THE PITTSBURGH CRIMINAL DEFENSE ATTORNEY WHO KNOWS EVERY POSSIBLE AVENUE TO OBTAIN RELIEF FOR A PERSON CONVICTED OF A CRIME. CALL THE PITTSBURGH CRIMINAL DEFENSE ATTORNEY WHO KNOWS, UNDERSTANDS AND HAS OBTAINED NEARLY EVERY POSSIBLE FORM OF RELIEF FOR A CLIENT FOLLOWING A CONVICTION.

JUDGES APPOINT PITTSBURGH CRIMINAL APPEAL ATTORNEY MIELNICKI WHEN THEY WANT THE JOB DONE RIGHT

THE BATTLE MAY JUST BE STARTING! A MISTAKE MAY HAVE BEEN MADE WITH RESPECT TO SELECTION OF TRIAL COUNSEL. DON’T MAKE THAT MISTAKE WITH SELECTING AN ATTORNEY FOR THE APPEAL. IF THE APPEAL PERIOD IS OVER, YOU MAY NOT HAVE ANY OTHER CHOICE THAN TO CALL ATTORNEY MIELNICKI. FEW ATTORNEYS HAVE ATTORNEY MIELNICKI’S POST-CONVICTION EXPERINCE. ATTORNEY MIELNICKI DOES NOT SOLICIT COURT APPOINTMENTS BUT HE IS OFTEN APPOINTED BY JUDGES TO REPRESENT DEFENDANTS WHO HAVE FILED THEIR OWN POST-CONVICTION PETITIONS FOLLOWING CONVICTIONS FOR MURDER AND OTHER SERIOUS CRIMES. WHY? BECAUSE THOSE JUDGES KNOW PITTSBURGH CRIMINAL APPEAL ATTORNEY ROBERT E. MIELNICKI KNOWS WHAT TO DO AND, WIN OR LOSE, WILL GET THE JOB DONE RIGHT!

MANY ATTORNEYS ARE GOING TO TAKE YOUR MONEY AND HAVE SOMEONE ELSE WRITE YOUR BRIEF, MAYBE THEIR LAW CLERK

Many criminal defense attorneys do not handle appeals. Many criminal defense attorneys shouldn’t handle appeals because, they either do not have the desire to understand the law pertaining to all avenues of potential relief, or simply hate research and writing briefs. That is not the case with Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki. He enjoys research. He enjoys writing briefs. Pittsburgh Criminal Attorney Robert E. Mielnicki first felt the joy of winning a criminal jury trial in 1992. Attorney Robert E. Mielnicki felt the joy of winning a murder trial for an 18 year old he felt was innocent, in 1994. In 2014, however, after 4 years of exhaustive work, Pittsburgh Criminal Attorney Mielnicki felt the joy of getting a man a new trial, who was convicted in 2002 of second degree murder and serving a sentence of life, by obtaining a writ of habeas corpus for him in Federal Court. That 4 year battle, and the result Attorney Mielnicki obtained, is the reason this portion of this website was created. He still remembers calling that man’s aunt with the good news. This man was likely not guilty and received nothing close to a fair trial or proper representation at trial.

PITTSBURGH CRIMINAL APPEAL ATTORNEY ROBERT E. MIELNICKI CHANGES THE LAW TO BENEFIT HIS CLIENTS

Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki was one of the first attorneys, if not the first attorney, to successfully challenge the retroactive application of SORNA/Adam Walsh Act to those who entered plea agreements to crimes that did not require registration at the time of their plea. Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki successfully argued that Pennsylvania’s mandatory minimum sentence for an assault on a minor was unconstitutional and saved his client at least 5 years in jail.

PITTSBURGH CRIMINAL APPEAL ATTORNEY ROBERT E. MIELNICKI IS LICENSED TO ARGUE BEFORE THE UNITED STATES SUPREME COURT.

CONVICTED OF A CRIME AND UNHAPPY WITH YOUR ATTORNEY? Call Pittsburgh Criminal Attorney Robert E. Mielnicki at 412-288-0300.

ALREADY APPEALED YOUR CONVICTION AND BEEN UNSUCESSFUL? Call Pittsburgh Criminal Attorney Robert E. Mielnicki at 412-288-0300.

SERVING A PRISON SENTENCE OR HAVE A FRIEND OR FAMILY MEMBER SERVING A PRISON SENTENCE AND BELIEVE THAT YOU HAVE NO OPTIONS? Call Pittsburgh Criminal Attorney Robert E. Mielnicki at 412-288-0300.

IT DOESN’T MATTER IF YOU ARE IN PITTSBURGH, PHILADELPHIA OR ANY COUNTY IN BETWEEN!

Are you unhappy with your conviction or with what happened in Court? Are you the relative or a friend of a person serving a sentence after being convicted of a crime? You or they have potential legal rights and remedies at your disposal, including appeals, habeas corpus petitions, and post-conviction relief act petitions (or PCRAs).

These rights and remedies are largely affected by that which has already occurred in your case.

IMPORTANT: In most situations, the ability to utilize these rights is TIME SENSITIVE. As a result, you need to contact an attorney to discuss these rights AS SOON AS POSSIBLE.

OVERVIEW OF THE POST-CONVICTION PROCESS

Following a finding of guilt, a defendant will be sentenced. Once sentenced, he or she shall have a right, within ten days of that sentencing, to file an optional post-sentence motion. When Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki first started practicing criminal law, it was necessary to file a post-sentence motion before an appeal was filed. This resulted in defendants sitting in jail for long periods of time before they could even appeal to a higher court. Meanwhile, the delay was often caused by asking the trial judge to correct an error that he or she made during the trial or prior to trial, something they were unlikely to do. The filing of a post-sentence is now optional but there is one instance where such must be filed – if you intend to argue that your verdict was against the weight of the evidence, you must set forth such first in a post-sentence motion. A challenge to the sufficiency of the evidence need not be initially set forth in a post-sentence motion. What is the difference? A challenge to the sufficiency of the evidence is an argument that no jury should have returned a verdict of guilty. An argument that a verdict was against the weight of the evidence is an argument that while the evidence was sufficient to support the guilty verdict, that verdict was against the weight of the evidence, maybe because the defense presented a strong but unaccepted defense.


POST-SENTENCE MOTIONS

The law pertaining to post-sentence motions in Pennsylvania is as follows:

Pa.R.Crim.P. Rule 720. Post-Sentence Procedures; Appeal

  • (A) Timing.
    • (1) Except as provided in paragraphs (C) and (D), a written post-sentence motion shall be filed no later than 10 days after imposition of sentence.
    • (2) If the defendant files a timely post-sentence motion, the notice of appeal shall be filed:
      • (a) within 30 days of the entry of the order deciding the motion;
      • (b) within 30 days of the entry of the order denying the motion by operation of law in cases in which the judge fails to decide the motion; or
      • (c) within 30 days of the entry of the order memorializing the withdrawal in cases in which the defendant withdraws the motion.
    • (3) If the defendant does not file a timely post-sentence motion, the defendant's notice of appeal shall be filed within 30 days of imposition of sentence, except as provided in paragraph (A)(4).
    • (4) If the Commonwealth files a timely motion to modify sentence pursuant to Rule 721, the defendant's notice of appeal shall be filed within 30 days of the entry of the order disposing of the Commonwealth's motion.
  • (B) Optional Post-Sentence Motion.
    • (1) Generally.
      • (a) The defendant in a court case shall have the right to make a post-sentence motion. All requests for relief from the trial court shall be stated with specificity and particularity, and shall be consolidated in the post-sentence motion, which may include:
        • (i) a motion challenging the validity of a plea of guilty or nolo contendere, or the denial of a motion to withdraw a plea of guilty or nolo contendere;
        • (ii) a motion for judgment of acquittal;
        • (iii) a motion in arrest of judgment;
        • (iv) a motion for a new trial; and/or
        • (v) a motion to modify sentence.
      • (b) The defendant may file a supplemental post-sentence motion in the judge's discretion as long as the decision on the supplemental motion can be made in compliance with the time limits of paragraph (B)(3).
      • (c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.
    • (2) Trial Court Action.
      • (a) Briefing Schedule. Within 10 days after a post-sentence motion is filed, if the judge determines that briefs or memoranda of law are required for a resolution of the motion, the judge shall schedule a date certain for the submission of briefs or memoranda of law by the defendant and the Commonwealth.
      • (b) Hearing; Argument. The judge shall also determine whether a hearing or argument on the motion is required, and if so, shall schedule a date or dates certain for one or both.
      • (c) Transcript. If the grounds asserted in the post-sentence motion do not require a transcript, neither the briefs nor hearing nor argument on the post-sentence motion shall be delayed for transcript preparation.
    • (3) Time Limits for Decision on Motion. The judge shall not vacate sentence pending decision on the post-sentence motion, but shall decide the motion as provided in this paragraph.
      • (a) Except as provided in paragraph (B)(3)(b), the judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion. If the judge fails to decide the motion within 120 days, or to grant an extension as provided in paragraph (B)(3)(b), the motion shall be deemed denied by operation of law.
      • (b) Upon motion of the defendant within the 120-day disposition period, for good cause shown, the judge may grant one 30-day extension for decision on the motion. If the judge fails to decide the motion within the 30-day extension period, the motion shall be deemed denied by operation of law.
      • (c) When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the court, and, as provided in Rule 114, forthwith shall serve a copy of the order on the attorney for the Commonwealth, the defendant's attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied. This order is not subject to reconsideration.
      • (d) If the judge denies the post-sentence motion, the judge promptly shall issue an order and the order shall be filed and served as provided in Rule 114.
      • (e) If the defendant withdraws a post-sentence motion, the judge promptly shall issue an order memorializing the withdrawal, and the order shall be filed and served as provided in Rule 114.
    • (4) Contents of Order. An order denying a post-sentence motion, whether issued by the judge pursuant to paragraph (B)(3)(d) or entered by the clerk of courts pursuant to paragraph (B)(3)(c), or an order issued following a defendant's withdrawal of the post-sentence motion, shall include notice to the defendant of the following:
      • (a) the right to appeal and the time limits within which the appeal must be filed;
      • (b) the right to assistance of counsel in the preparation of the appeal;
      • (c) the rights, if the defendant is indigent, to appeal in forma pauperis and to proceed with assigned counsel as provided in Rule 122; and
      • (d) the qualified right to bail under Rule 521(B).
    • (C) After-Discovered Evidence. A post-sentence motion for a new trial on the ground of after-discovered evidence must be filed in writing promptly after such discovery.
    • (D) Summary Case Appeals. There shall be no post-sentence motion in summary case appeals following a trial de novo in the court of common pleas. The imposition of sentence immediately following a determination of guilt at the conclusion of the trial de novo shall constitute a final order for purposes of appeal.

The trial judge has 120 days to rule on the motion or it is deemed denied by operation of law. In the case where the death penalty is imposed, the trial court must rule on such and it cannot be deemed denied by operation of law. The period to appeal, which is 30 days from sentencing, is extended by the filing of a post-sentence motion as set forth above, but no more than 120 days, unless the death penalty was imposed.


STATE COURT APPEALS

What you can appeal:

There exists a litany of issues that may be contested or argued upon appeal. It is impossible to include all in this space. Ultimately whether these issues apply to you depends upon the facts of your case. A sampling of such issues includes:

  • Evidence that the Court refused to consider
  • Evidence that the Court refused to allow the jury to consider
  • Evidence that the Court erroneously considered
  • Evidence that the Court erroneously allowed the jury to consider
  • Jury instructions that were improperly provided to the jury
  • Jury instructions that were improperly withheld from the jury
  • Objections that were wrongfully sustained for the prosecution
  • Objections that were wrongfully denied against the defense
  • Arguments that the Court wrongfully allowed the prosecution to make
  • Arguments that the Court wrongfully prevented the defense from making
  • That your conviction was improper due to insufficient evidence
  • That your conviction was improper because it was against the weight of the evidence
  • That you were improperly denied constitutionally guaranteed rights
  • That your lawyer did a bad job (was ineffective) and in doing so deprived you of your rights (but this must usually be raised in a Petition for Post-Conviction Relief).

The law pertaining to appeals in Pennsylvania is as follows:

Pa.R.A.P., Rule 903 Time for Appeal

  • (a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.
  • (b) Cross appeals. Except as otherwise prescribed in subdivision (c) of this rule, if a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was served, or within the time otherwise prescribed by this rule, whichever period last expires.
  • (c) Special provisions. Notwithstanding any other provision of this rule:
    • (1) An appeal from any of the following orders shall be taken within ten days after the entry of the order from which the appeal is taken:
    • (i) An order changing venue or venire in a criminal proceeding. See Rule 311(a)(3) (change of criminal venue or venire).
    • (ii) An order in any matter arising under the Pennsylvania Election Code.
    • (iii) An order in any matter arising under the Local Government Unit Debt Act or any similar statute relating to the authorization of public debt.
  • (2) Where an election has been filed under Rule 311(b) (order sustaining venue or personal or in rem jurisdiction), the notice of appeal shall be filed within 30 days after the filing of the election.
  • (3) In a criminal case in which no post-sentence motion has been filed, the notice of appeal shall be filed within 30 days of the imposition of the judgment of sentence in open court.

In Pennsylvania, the appeal goes to the Pennsylvania Superior Court. A person convicted of a crime has the right to appeal to the Pennsylvania Superior Court. If the appeal is from a sentence of death, the appeal goes directly to the Pennsylvania Supreme Court. Once the appeal is filed, the trial court will request the attorney to file a statement of matters complained of and then author an opinion. Once that opinion is prepared, a briefing schedule is issued and briefs are prepared. Oral argument is a matter of right unless the appeal is from the grant or denial of a petition for post-conviction relief. There are attorneys who actually believe that not requesting oral argument can be advantageous to the client. Attorney Mielnicki respects that opinion but disagrees with it.

Either side can request re-argument from a decision of the Pennsylvania Superior Court or, where the matter is of importance or where the decision seemingly is at odds with that of another decision of the Superior Court, re-argument en banc.

Within 30 days of the final decision of the Pennsylvania Superior Court, a defendant or the Commonwealth can seek allowance of appeal from the Pennsylvania Supreme Court.

One can then file a Petition for Writ of Certiorari before the United States Supreme Court within 90 days of the decision of the Pennsylvania Supreme Court, which may not to have heard the appeal at all, but simply denied the allowance of appeal. The United States Supreme Court hears very few appeals. Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki is licensed to practice before the United States Supreme Court.

If the appeal is unsuccessful, one can file a Petition for Post-Conviction Relief. If they wish to assert a claim that their counsel was ineffective and such harmed them, in most situations this is and must be, set forth in a Petition for Post-Conviction Relief. The Petition for Post-Conviction Relief, except in certain and limited situations, can only be raised in a Petition for Post-Conviction Relief.


PCRA

The time limit for filing a Petition for Post-Conviction Relief is one year from when the judgment of sentence became final. A judgment of sentence becomes final when the person’s appeal is over or when the person’s time to have appealed is over. Pennsylvania requires that the person seeking relief via a PCRA be serving a sentence at any point in time they could receive relief. This means that a person could timely file the PCRA but cease to be serving the sentence before the court can grant relief. Pittsburgh Criminal Appeal Attorney Robert E. Mielnicki, in at least 2 cases at the time this is being written, is seeking to change that law.

The law pertaining to PCRAs in Pennsylvania is as follows:

42 Pa.C.S.A. § 9543. Eligibility for relief

  • (a) General rule.-- To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
    • (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:
      • (i) currently serving a sentence of imprisonment, probation or parole for the crime;
      • (ii) awaiting execution of a sentence of death for the crime; or
      • (iii) serving a sentence which must expire before the person may commence serving the disputed sentence.
    • (2) That the conviction or sentence resulted from one or more of the following:
      • (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      • (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      • (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
      • (iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
      • (v) Deleted.
      • (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
      • (vii) The imposition of a sentence greater than the lawful maximum.
      • (viii) A proceeding in a tribunal without jurisdiction.
    • (3) That the allegation of error has not been previously litigated or waived.
    • (4) That the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.
  • (b) Exception.-- Even if the petitioner has met the requirements of subsection (a), the petition shall be dismissed if it appears at any time that, because of delay in filing the petition, the Commonwealth has been prejudiced either in its ability to respond to the petition or in its ability to re-try the petitioner. A petition may be dismissed due to delay in the filing by the petitioner only after a hearing upon a motion to dismiss. This subsection does not apply if the petitioner shows that the petition is based on grounds of which the petitioner could not have discovered by the exercise of reasonable diligence before the delay became prejudicial to the Commonwealth.
  • (c) Extradition.-- If the petitioner's conviction and sentence resulted from a trial conducted in his absence and if the petitioner has fled to a foreign country that refuses to extradite him because a trial in absentia was employed, the petitioner shall be entitled to the grant of a new trial if the refusing country agrees by virtue of this provision to return him and if the petitioner upon such return to this jurisdiction so requests. This subsection shall apply, notwithstanding any other law or judgment to the contrary.
  • 42 Pa.C.S.A. § 9545. Jurisdiction and proceedings

    • (a) Original jurisdiction.-- Original jurisdiction over a proceeding under this subchapter shall be in the court of common pleas. No court shall have authority to entertain a request for any form of relief in anticipation of the filing of a petition under this subchapter.
    • (b) Time for filing petition.--
      • (1) Any petition under this subchapter, including a second or subsequent petition, shall be filed 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 period provided in this section and has been held by that court to apply retroactively.
      • (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
      • (3) For purposes of this subchapter, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.
      • (4) For purposes of this subchapter, "government officials" shall not include defense counsel, whether appointed or retained.
    • (c) Stay of execution.--
      • (1) No court shall have the authority to issue a stay of execution in any case except as allowed under this subchapter.
      • (2) Except for first petitions filed under this subchapter by defendants whose sentences have been affirmed on direct appeal by the Supreme Court of Pennsylvania between January 1, 1994, and January 1, 1996, no stay may be issued unless a petition for postconviction relief which meets all the requirements of this subchapter has been filed and is pending and the petitioner makes a strong showing of likelihood of success on the merits.
      • (3) Suspended by Pennsylvania Supreme Court Order of Aug. 11, 1997, imd. effective (27 Pa.B. 4298).
    • (d) Evidentiary hearing.--
      • (1) Where a petitioner requests an evidentiary hearing, the petition shall include a signed certification as to each intended witness stating the witness's name, address, date of birth and substance of testimony and shall include any documents material to that witness's testimony. Failure to substantially comply with the requirements of this paragraph shall render the proposed witness's testimony inadmissible.
      • (2) Suspended by Pennsylvania Supreme Court Order of Aug. 11, 1997, imd. effective (27 Pa.B. 4298).
      • (3) When a claim for relief is based on an allegation of ineffective assistance of counsel as a ground for relief, any privilege concerning counsel's representation as to that issue shall be automatically terminated.

An issue that has developed over the past few years is DNA testing that exonerates a convicted defendant. As already mentioned, there are time limits to file a PCRA but there are exceptions for after-discovered evidence and specifically for DNA testing. The law pertaining to post-conviction DNA testing is set forth in 42 Pa.C.S.A. § 9543.1.


FEDERAL HABEAS CORPUS

IF A PERSON CONVICTED OF A CRIME INTENDS TO TAKE HIS MATTER TO FEDERAL COURT IN A HABEAS CORPUS PETITION, THAT PERON MUST EXHAUST HIS OR HER STATE COURT REMEDIES. THIS MEANS THE PERSON MUST PRESENT THOSE ISSUES THEY INTEND TO RAISE IN STATE COURT AND HAVE APPEALED TO THE PENNSYLVANIA SUPERIOR COURT. IN MANY STATES, EXHAUSTION REQUIRES AN EFFORT TO TAKE A MATTER TO THE HIGHEST APPELATE COURT IN THAT STATE BUT IN PENNSYLVANIA, THE MATTER ONLY HAS TO BE TAKEN TO THE PENNSYLVANIA SUPERIOR COURT.

A habeas corpus petition filed in federal court is really known as a Section 2254 Petition to those attorneys who handle such matters. So often, Attorney Mielnicki has taken over matters in Federal Court where the state court appeal process was handled by an attorney who simply did not care to properly preserve the issues for Federal Court or did not know how to do so. It is important that a person who has been convicted of a serious crime who wants to or may need to utilize all post-conviction procedures that they hire an experienced and competent attorney from the start.

Even though the writ of habeas corpus is mentioned in the United States Constitution, it is governed by a statute created by Congress. The law pertaining to such is as follows:

28 U.S. Code § 2254 - State custody; remedies in Federal courts

  • (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.
  • (b)
    • (1) 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 unless it appears that—
      • (A) the applicant has exhausted the remedies available in the courts of the State; or
      • (B)(i) there is an absence of available State corrective process; or
        • (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
    • (2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
    • (3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
  • (c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
  • (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.
  • (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
    • (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
      • (A) the claim relies on —
        • (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
        • (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
      • (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
  • (f) 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. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court’s factual determination.
  • (g) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding.
  • (h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel for an applicant who is or becomes financially unable to afford counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
  • (i) The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.

Unlike nearly every other issue that a trial court decides against a person, civil or criminal, a first appeal of a Section 2254 Petition is not a matter of right. The District Court that denies such a petition must grant the party desiring to appeal a “Certificate of Appealability.” If the District Court denies the petitioner the Certificate of Appealability, then that person can appeal to the Court of Appeals and immediately request such from that court. The Court of Appeals does often grant such.

Rule 22. Habeas Corpus and Section 2255 Proceedings

  • (a) Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court. If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C. §2253, appeal to the court of appeals from the district court's order denying the application.
  • (b) Certificate of Appealability.
    • (1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. §2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. §2253(c). If an applicant files a notice of appeal, the district clerk must send to the court of appeals the certificate (if any) and the statement described in Rule 11(a) of the Rules Governing Proceedings Under 28 U.S.C. §2254 or §2255 (if any), along with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue it.
    • (2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutesa request addressed to the judges of the court of appeals.
    • (3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals.

Note the reference to 28 U.S.C. §2255 in the above discussion. Such is the Federal equivalent of the Section 2254 Petition that applies to those convicted of crimes in Federal Court. Such is typically known as Motion to Vacate.


FEDERAL APPEALS

The time periods for civil appeals are included here as habeas corpus is considered a civil, as opposed to a criminal matter. If one is convicted in Federal Court and wishes to appeal the judgement of sentence, then such is considered a criminal appeal and the time limit is 14 days. If one is denied a habeas corpus or a motion to vacate, such is considered a civil matter and the time period is 30 days.

Rule 4. Appeal as of Right

  • (a) Appeal in a Civil Case.
    • (1) Time for Filing a Notice of Appeal.
      • (A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.
      • (B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:
        • (i) the United States;
        • (ii) a United States agency;
        • (iii) a United States officer or employee sued in an official capacity; or
        • (iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States' behalf — including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.
      • (C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).
    • (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
    • (3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
    • (4) Effect of a Motion on a Notice of Appeal.
      • (A) If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:
        • (i) for judgment under Rule 50(b);
        • (ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
        • (iii) for attorney's fees under Rule 54 if the district court extends the time to appeal under Rule 58;
        • (iv) to alter or amend the judgment under Rule 59;
        • (v) for a new trial under Rule 59; or
        • (vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.
      • (B)
        • (i) If a party files a notice of appeal after the court announces or enters a judgment—but before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
        • (ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment's alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal—in compliance with Rule 3(c)—within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.
    • (5) Motion for Extension of Time.
      • (A) The district court may extend the time to file a notice of appeal if:
        • (i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and
        • (ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.
      • (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.
      • (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.
    • (6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
      • (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77 (d) of the entry of the judgment or order sought to be appealed within 21 days after entry;
      • (B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77 (d) of the entry, whichever is earlier; and
      • (C) the court finds that no party would be prejudiced.
    • (7) Entry Defined.
      • (A) A judgment or order is entered for purposes of this Rule 4(a):
        • (i) if Federal Rule of Civil Procedure 58 (a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79 (a); or
        • (ii) if Federal Rule of Civil Procedure 58 (a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:
          • the judgment or order is set forth on a separate document, or
          • 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79 (a).
      • (B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58
        • (a) does not affect the validity of an appeal from that judgment or order.
        • (b) Appeal in a Criminal Case.
          • (1) Time for Filing a Notice of Appeal.
            • (A) In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after the later of:
              • (i) the entry of either the judgment or the order being appealed; or
              • (ii) the filing of the government's notice of appeal.
            • (B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of:
              • (i) the entry of the judgment or order being appealed; or
              • (ii) the filing of a notice of appeal by any defendant.
          • (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.
          • (3) Effect of a Motion on a Notice of Appeal.
            • (A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion:
              • (i) for judgment of acquittal under Rule 29;
              • (ii) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or
              • (iii) for arrest of judgment under Rule 34.
            • (B) A notice of appeal filed after the court announces a decision, sentence, or order — but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)—becomes effective upon the later of the following:
              • (i) the entry of the order disposing of the last such remaining motion; or
              • (ii) the entry of the judgment of conviction.
            • (C) A valid notice of appeal is effective — without amendment — to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A).
          • (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may — before or after the time has expired, with or without motion and notice — extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
          • (5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
          • (6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
        • (c) Appeal by an Inmate Confined in an Institution.
          • (1) If an inmate confined in an institution files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. §1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
          • (2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice.
          • (3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court's docketing of the defendant's notice of appeal, whichever is later.
        • (d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.

In Pennsylvania, the appeal is taken to the Third Circuit Court of Appeals. If the party is unsuccessful in the Third Circuit, they can seek re-argument and then file a Petition for Writ of Certiorari to the United States Supreme Court.


FEDERAL MOTIONS TO VACATE

This is the habeas procedure for those convicted in Federal Court. There is one very important point to make here. Many United States Attorneys request defendants they offer some sort of plea agreement to, to waive their right to appeal most things and their right to file a Motion to Vacate under 28 U.S.C. §2255. Criminal Attorney Robert E. Mielnicki often rejected the plea agreement offered that included these waivers where nothing that his client was going to receive anyways ("acceptance of responsibility" points) were included. This practice of requesting waivers has been subject to attack by many, including Criminal Attorney Robert E. Mielnicki, and is slowly disappearing from many plea agreements. Be aware of this though.

The law pertaining to Motions to Vacate is a follows:

28 U.S. Code § 2255 - Federal custody; remedies on motion attacking sentence

  • (a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
  • (b) Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
  • (c) A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
  • (d) An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
  • (e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
  • (f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
    • (1) the date on which the judgment of conviction becomes final;
    • (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
    • (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
    • (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
  • (g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.
  • (h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
    • (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
    • (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

THIS IS AN OVERVIEW OF THE POST-CONVICTION PROCESS AND AS YOU CAN SEE IT IS NOT SIMPLISTIC. IF YOU ARE CONSIDERING HIRING AN ATTORNEY FOR A POST-CONVICTION MATTER, HIRE ONE THAT IS RATED “LEAD COUNSEL RATED” FOR HIS OUTSTANDING APPELLATE WORK OVER 25 YEARS, A PERFECT 10 BY AVVO AND AN A+ BY THE BETTER BUSINESS BUREAU. CALL PITTSBURGH CRIMINAL APPEAL ATTORNEY ROBERT E. MIELNICKI.

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Criminal Defense Results
  • 9/16/94
    First Degree Murder - Lancaster County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 8/19/16
    Arson - United States District Court
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 1/18/17
    Receiving Stolen Property- Allegheny County
    Non-Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 11/4/96
    Burglary, Rape - Allegheny County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 6/1/07
    Aggravated Assault, Resisting Arrest - Allegheny County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 9/11/03
    First Degree Murder - Allegheny County
    Plea Agreement - 3rd Degree
    Murder - 4 to 8 Years
    Attorney: Mielnicki
  • 2/2/09
    Aggravated Assault - Allegheny County
    Dismissed
    Attorney: Mielnicki
  • 2/23/10
    Possession With Intent - Allegheny County
    Suppression Motion Granted - Case Withdrawn
    Attorney: Mielnicki
  • 5/19/11
    Firearms Offenses, False Identification - Allegheny County
    Suppression Motion Granted - Case Withdrawn
    Attorney: Mielnicki
  • 10/31/12
    Simple Assault - Armstrong County
    Dismissed
    Attorney: Mielnicki
  • 10/22/12
    Burglary, Aggravated Assault - Allegheny County
    Withdrawn
    Attorney: Mielnicki
  • 8/23/12
    Kidnapping, Endangering Welfare - Allegheny County
    Withdrawn
    Attorney: Mielnicki
  • 7/20/12
    Possession With Intent - Allegheny County
    Dismissed
    Attorney: Mielnicki
  • 5/24/12
    Hindering Apprehension - Butler County
    Withdrawn
    Attorney: Mielnicki
  • 4/13/12
    Criminal Conspiracy (Delivery Controlled Substance) - Mercer County
    Withdrawn
    Attorney: Mielnicki
  • 9/16/94
    First Degree Murder - Lancaster County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 8/19/16
    Arson - United States District Court
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 12/19/11
    Criminal Trespass - Allegheny County
    Withdrawn
    Attorney: Mielnicki
  • 11/18/11
    Possession With Intent - Allegheny County
    Suppression Motion Granted - Case Withdrawn
    Attorney: Mielnicki
  • 1/25/07
    Rape, Stat. Sex Assault
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 10/22/13
    Fleeing and Eluding - Allegheny County
    Reduced to Careless Driving
    Attorney: Mielnicki
  • 9/26/13
    Poss. with Intent - Allegheny County
    Dismissed
    Attorney: Mielnicki
  • 4/17/13
    Delivery of Controlled Substance - Allegheny County
    Dismissed
    Attorney: Mielnicki
  • 3/21/14
    Failure to Register, Failure to Verify Address (Megan's Law) - Allegheny County
    Not Guilty
    Attorney: Mielnicki
  • 6/25/15
    Simple Assault - Allegheny County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 9/9/15
    Poss. with Intent (2 cases) - Allegheny County
    Withdrawn
    Attorney: Mielnicki
DUI Results
  • 11/25/15
    DUI - Armstrong County
    Preliminary Hearing - Dismissed
    Attorney: Mielnicki
  • 12/29/16
    DUI - Westmoreland County
    Suppression Granted - Dismissed
    Attorney: Mielnicki
  • 5/1//15
    DUI, Reckless Driving - Washington County
    Preliminary Hearing - Dismissed
    Attorney: Mielnicki
  • 2/8/16
    Aggravated Assault While DUI, DUI - Allegheny County
    Aggravated Assault While DUI Withdrawn - House Arrest
    Attorney: Mielnicki
  • 2/23/10
    DUI - Allegheny County
    Bench Trial - Not Guilty
    Attorney: Mielnicki
  • 10/20/00
    DUI - Allegheny County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 6/24/97
    DUI - Allegheny County
    Bench Trial - Not Guilty
    Attorney: Mielnicki
  • 9/6/00
    DUI - Butler County
    Jury Trial - Not Guilty
    Attorney: Mielnicki
  • 3/25/02
    DUI - Allegheny County
    Supp. Motion Granted - Case Withdrawn
    Attorney: Mielnicki
  • 3/9/12
    Driving Under Suspension (8 priors) - Allegheny County
    Reduced - No Jail
    Attorney: Mielnicki
  • 11/25/15
    DUI - Armstrong County
    Preliminary Hearing - Dismissed
    Attorney: Mielnicki
  • 8/13/11
    DUI - Allegheny County
    Withdrawn
    Attorney: Mielnicki
  • 8/17/12
    DUI - Allegheny County
    Withdrawn
    Attorney: Mielnicki
  • 12/7/10
    DUI - Lawrence County
    Withdrawn
    Attorney: Mielnicki
  • 12/2/08
    DUI (3rd Offense, Refusal) - Lawrence County
    6 Months House Arrest
    Attorney: Mielnicki
  • 6/28/12
    Driving Under Suspension (DUI Related) - Allegheny County
    Not Guilty
    Attorney: Mielnicki
  • 6/4/12
    Driving Under Suspension (DUI Related) - Allegheny County
    Dismissed
    Attorney: Mielnicki
  • 4/1/11
    DUI ( 3 Cases) - Allegheny County
    4 days treatment, 6 months Probation
    Attorney: Mielnicki
  • 6/6/03
    Chemical Test Refusal - Allegheny County
    Appeal Sustained - Civil Rights Lawsuit Settled
    Attorney: Mielnicki
  • 6/28/12
    Driving Under Suspension (DUI Related) - Allegheny County
    Not Guilty
    Attorney: Mielnicki
  • 6/24/97
    DUI - Allegheny County
    Bench Trial - Not Guilty
    Attorney: Mielnicki
  • 10/25/13
    DUI (5th Offense) -Allegheny County
    60 days House Arest
    Attorney: Mielnicki
  • 9/5/13
    DUI - Armstrong County
    ARD - No Suspension
    Attorney: Mielnicki
  • 7/3/13
    DUI - Armstrong County
    ARD - No Suspension
    Attorney: Mielnicki
  • 3/6/14
    DUI - Allegheny County
    Dismissed
    Attorney: Mielnicki

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Robert E. Mielnicki, Esquire
428 Forbes Avenue #400
Pittsburgh, PA 15219
412-288-0300