SYLVIA H. RAMBO, District Judge.
Petitioner Steven Otto, an inmate currently incarcerated at the State Correctional Institution in Albion, Pennsylvania ("SCI-Albion"), initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 25, 2010, as amended January 13, 2011. (Doc. 10.) Petitioner is challenging his 2004 judgment of sentence imposed by the Court of Common Pleas of Dauphin County, Pennsylvania ("trial court" or "Dauphin County court"). For the reasons that follow, the petition will be denied.
On July 9, 2004, Petitioner was found guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, sexual assault, aggravated indecent assault without consent, indecent assault without consent, second degree robbery, and simple assault following a jury trial in the Dauphin County court. (Doc. 17-1 at 86-87 (Respondents' Reproduced Record).) The Pennsylvania Superior Court summarized the relevant facts as follows:
(Doc. 17-2 at 71-72; Commonwealth v. Otto, 754 MDA 2005 (Pa. Super. Ct. Mar 15, 2006)). On December 3, 2004, the trial court sentenced Petitioner to an aggregate term of imprisonment of twenty (20) to forty (40) years. Petitioner was also found to be a sexually violent predator. Petitioner filed post-sentence motions, and by memorandum opinion dated March 11, 2005, the trial court denied those motions. On December 4, 2006, Petitioner filed a pro se petition for post-conviction relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. Thereafter, the PCRA court appointed counsel to represent Petitioner and held a PCRA hearing on April 5, 2007. On that same date, the PCRA court denied Petitioner's requested relief. Petitioner timely filed a counseled appeal with the Pennsylvania Superior Court. While a decision was pending, Petitioner raised additional matters pro se. As a result, on July 15, 2008, the Superior Court directed Petitioner's counsel to file a petition for remand in order to evaluate Petitioner's claims. On August 4, 2008, the Superior Court remanded the matter back to the PCRA court for appointment of new counsel in order to file an amended PCRA petition on Petitioner's behalf. The PCRA court appointed counsel who then filed two supplements to the PCRA petition on October 28, 2008 and November 17, 2008, respectively. On December 2, 2008, the PCRA court held a second PCRA hearing at which time it denied Petitioner's requested relief. On December 9, 2008, the PCRA court directed Petitioner to file a statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Petitioner filed the statement on December 31, 2008. Thereafter, on April 16, 2009, the PCRA court affirmed the denial of PCRA relief. On June 22, 2009, Petitioner filed a notice of appeal in the Superior Court. The Superior Court, in turn, affirmed Petitioner's conviction and denial of PCRA relief on February 18, 2010. Petitioner then filed a petition for allocatur in Pennsylvania's Supreme Court on March 22, 2010. The Pennsylvania Supreme Court denied allocatur on August 12, 2010.
Petitioner timely filed the instant petition for writ of habeas corpus on October 25, 2010 (Doc. 1), as amended on January 13, 2011, (Doc. 10). He also filed a supporting memorandum of law. (Doc. 11.) After receiving an extension of time in which to respond to the petition, (see Doc. 16), Respondents filed a response to the petition on April 6, 2011, (Doc. 17). Petitioner filed his reply brief on April 25, 2011, (Doc. 18), with a supplement filed on October 28, 2011, (Doc. 23). Thus, this matter is now ripe for disposition.
Section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2000).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F.Supp.2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 317 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F.Supp.2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)
Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the court concludes that constitutional error occurred in the state court, the court may not grant relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008).
In his petition, Petitioner makes the following claims: (1) trial counsel was ineffective for pursuing a strategy that presumed Petitioner had sexual intercourse with the victim; (2) trial counsel was ineffective on direct appeal for failing to present evidence that the victim had sexual contact with another person prior to the assault in order to explain bodily trauma; (3) counsel, at both the trial and appellate levels, was ineffective for failing to object to inconsistencies between the charges as filed and the evidence presented against Petitioner;
The Sixth Amendment guarantees an accused in a criminal prosecution the right to assistance of counsel for his defense. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See also Wiggins v. Smith, 539 U.S. at 510, 521 (2003) (setting out the Strickland test); Williams, 529 U.S. at 390-91 (same). The first prong of the Strickland test requires a defendant to establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. It follows that when a petitioner claims that his counsel failed to raise a claim that the court determines to be meritless, habeas relief under Strickland is not available. See Strickland, 466 U.S. at 691 (failure to pursue "fruitless" claims "may not be challenged as unreasonable."); see also United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999) (stating counsel cannot be deemed ineffective for failing to raise a meritless claim). A court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;" that is, the petitioner must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Strickland, at 688-89, 690-92. The question is not whether counsel did not err, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place of counsel's conduct. Id. To that end, a court must conduct an objective review of counsel's performance measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time. Strickland, at 686; Wiggins, 539 U.S. at 522-27; see also Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 16-20 (2009).
The second prong of Strickland requires a petitioner to show that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To prove prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. This standard "is not a stringent one;" it is less demanding than the preponderance standard. Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). Further, a reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. Strickland, 466 U.S. at 697. If it is easier to dispose of an ineffectiveness claim for lack of requisite prejudice, that course should be followed. Id.
In addition, the reviewing court must evaluate counsel's performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs v. Horn, 395 F.3d 92, 106-07 (3d Cir. 2005). It is the petitioner's burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
At the time the state courts reviewed the claims that Petitioner's counsel was arguably ineffective, Strickland's familiar two-pronged test was the "clearly established federal law" applicable to ineffective assistance of counsel claims. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Thus, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court's decision involved an unreasonable application of Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Further, under § 2254(d)(2), the relevant inquiry is whether the state court made unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel. Bond, 539 F.3d at 279.
Finally, Petitioner's claims of ineffective assistance of appellate counsel must be examined under the same Strickland standards cited above: 1) whether counsel's performance was unreasonable; and 2) whether counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. If a court finds no merit in a claim of ineffective assistance by trial counsel, appellate counsel cannot be found ineffective for failing to raise those same meritless issues on appeal. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) ("When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel's failure to raise it does not constitute constitutionally ineffective assistance of counsel.") (citations and quotations omitted).
Petitioner first claims that trial counsel was ineffective for pursuing a defense strategy of consent that presumed that he had sexual intercourse with the victim. Upon review, the court finds Petitioner is not entitled to relief on this claim.
The court notes the following background on this issue with respect to the state court record. Initially, from an overall review of the trial transcript, it is noted that trial counsel did not argue at any point during the trial that Petitioner had sexual intercourse with the victim. (See Doc. 17-1 at 120-259, N.T. Trial 7/6-9/2004.) Rather, trial counsel's questioning of each relevant witness suggested that Petitioner's version of the events in question was different from that of the victim, not simply that sexual intercourse had occurred and that it was consensual. (See id.) In fact, Petitioner testified as to his version of the events. Specifically, Petitioner testified that he and the victim were talking in the house, then went upstairs to her bedroom and kissed. (Doc. 17-1 at 222-23.) He stated that the victim patted him on his stomach and put her hands down his pants where they may have brushed by his penis. (Id. at 223.) He stated that they then fell asleep until he was awoken by a phone call and then he left. (Id.)
During her closing argument, Petitioner's trial counsel made this argument using Petitioner's version of the events:
(Id. at 237-38.)
Petitioner raised this claim in the PCRA proceedings. In its decision dated December 2, 2008, the PCRA court rejected Petitioner's claim, concluding, in part, the following: "We have reviewed again thoroughly the trial transcript, and Attorney Mahoney never presented the case as consensual sex to the acts that the victim testified to, but rather by explaining the presence of her client's ejaculate on the victim's body by this method." (Doc. 17-3 at 97.) Further, in its February 18, 2010 decision affirming the PCRA court's decision, the Pennsylvania Superior court concluded as follows:
(Doc. 17-3 at 212-13, Commonwealth v. Otto, No. 2117 MDA 2008 (Pa. Super. Ct. Feb. 18, 2010.)
After reviewing the record, the court finds this decision to be neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Nor has Petitioner demonstrated that the state court's adjudication of this claim "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." See 28 U.S.C. § 2254(d)(2). Importantly, it is noted that the state court made a factual finding as to this issue when it reviewed the record and determined that Petitioner had failed to show that trial counsel pursued a defense strategy of consent with respect to the victim's account of the sexual contact. Pursuant to 28 U.S.C. § 2254(e)(1), this court must defer to the factual findings of the state courts unless Petitioner rebuts the presumption of correctness by clear and convincing evidence. In the instant petition, Petitioner claims he had no sexual contact with the victim, and that his trial counsel was incorrect in saying that Petitioner had sexual intercourse with the victim. However, reviewing the trial transcript as a whole, the court finds no such concession by counsel. Further, the state court record belies Petitioner's own defense with the evidence of Petitioner's sperm on the victim and Petitioner's testimony at trial, both which left Petitioner's counsel with no other option but to concede that Petitioner had some sexual contact with the victim. This concession does not suggest sexual intercourse by penis, nor does it reach as far as a defense strategy of consent to sexual intercourse. Therefore, relying on the presumption of correctness and absent any proffer of contrary evidence by Petitioner, the court must accept the state court's decision that trial counsel never presented a defense strategy of consent, and therefore, was not deficient. Habeas relief on this ground will be denied.
Petitioner also claims that trial counsel was ineffective for failing to present evidence that the victim had sexual contact with another person prior to the assault in order to explain the victim's vaginal trauma. Upon review, the court finds that Petitioner is not entitled to relief on this claim.
The court notes the following background on this issue with respect to the state court record. Initially, the court notes that at the beginning of the trial and prior to the jury hearing the case, counsel addressed several preliminary matters with the trial court. One of the issues Petitioner's counsel raised was her motion for leave to pierce Pennsylvania's Rape Shield at trial. Specifically, Petitioner's counsel stated as follows:
(Doc. 17-1 at 126-27.) After hearing argument from both counsel, the trial court denied the motion to pierce the Rape Shield law, and therefore defense counsel was not permitted to raise the above-referenced defense. (See id. at 127.) Further, at the May 14, 2007 PCRA hearing, the victim testified that hours prior to the assault, she willingly performed oral sex upon another male, but had no sexual contact involving her genitalia or area surrounding her genitalia. (Doc. 17-2 at 101-03.)
Petitioner raised this claim in the PCRA proceedings. In its decision dated December 2, 2008, the PCRA court made a factual finding that Petitioner's argument of ineffectiveness relating to the victim's prior sexual history on the night in question was meritless. The relevant language is as follows:
(Doc. 17-3 at 174-75.) In its February 18, 2010, decision affirming the denial of collateral relief, the Pennsylvania Superior Court reviewed this claim and found as follows:
(Doc. 17-3 at 215-16.)
After reviewing the record, the court finds this decision to be neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Nor has Petitioner demonstrated that the state court's adjudication of this claim "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." See 28 U.S.C. § 2254(d)(2). Importantly, it is noted that the state court made a factual finding as to this issue when it reviewed the record and determined that Petitioner had failed to show that trial counsel was deficient for failing to present evidence of the victim's prior sexual contact with another person to explain the victim's vaginal trauma. Pursuant to 28 U.S.C. § 2254(e)(1), this court must defer to the factual findings of the state courts unless Petitioner rebuts the presumption of correctness by clear and convincing evidence. In the instant petition, Petitioner claims that the physical evidence presented at trial and the evidence that the victim was "involved in sexual intercourse with a third party just one to two hours before her accusation against the defendant," support his contentions. (Doc. 10-1 at 15.) Further, in his traverse, Petitioner claims that he was not charged "for any conduct of sexual intercourse to the complaintives [sic] vagina." (Doc. 18 at 11.) As a result, Petitioner argues, he could not have been the cause of any vaginal trauma to the victim. However, after reviewing the state court record as a whole, the courts finds that this record belies Petitioner's assertions. First, trial counsel did attempt to pursue the matter of prior sexual conduct of the victim at the outset of the trial, but the trial court denied counsel's motion with respect to the issue, and thus counsel was simply not permitted to present such evidence. Further, counsel raised the issue again during the PCRA proceedings, but the victim clearly testified that she had prior sexual contact with another person, and that contact was limited to her performing oral sex upon that individual. There is no testimony or evidence that the other person had contact with the victim's genitalia that would have caused the vaginal trauma. That said, Petitioner's argument that the victim was "involved in sexual intercourse" with another individual prior to the assault that would have caused the vaginal trauma is not credible. Further, while it is true that Petitioner was not charged with engaging in sexual intercourse with his penis, he was charged with, and found guilty of rape and involuntary deviate sexual intercourse based upon the specific allegation that he had forced the victim to perform oral intercourse on him, or intercourse per os. As a result, Petitioner's argument here is not credible. In sum, Petitioner has not rebutted the presumption of correctness by clear and convincing evidence. Therefore, relying on that presumption of correctness and absent any proffer of contrary evidence by Petitioner, the court must accept the state court's decision that counsel was not deficient. Habeas relief on this ground will be denied.
Petitioner also claims that counsel, on both the trial and direct appeal levels, was ineffective for failing to object to a variance between the charges as filed and the evidence presented against Petitioner.
The court notes the following background on this issue with respect to the state court record. As a result of the assault, Petitioner was charged with, inter alia, rape, involuntary deviate sexual intercourse, and several charges of sexual assault, aggravated indecent assault, and indecent assault. (See Doc. 17-1 at 35-49.) Further, the preliminary hearing transcript establishes that the rape and involuntary deviate sexual intercourse charges were related to the allegation that Petitioner had penetrated the victim's mouth with his penis (sexual intercourse per os), and that the sexual assault and indecent assault charges were general charges related to the allegations that Petitioner had penetrated the victim's vagina with his fingers and had contact with her anus. (Id. at 79-81.) At trial, the victim testified that Petitioner entered her room brandishing a knife and briefly placed it on her neck to keep her quiet. (Id. at 152.) She then testified as follows:
(Doc. 17-1 at 153.)
After closing arguments, the trial court charged the jury with various instructions related to the charges. As related to this issue, the trial court defined "sexual intercourse" as follows:
(Doc. 17-1 at 247.) Further, the trial court defined "deviate sexual intercourse" as follows:
(Id. at 248.) Trial counsel did not object to these instructions.
Petitioner raised this claim in the PCRA proceedings. In its decision dated December 2, 2008, the PCRA court addresses the sub-issues as follows:
(Doc. 17-3 at 92-3.) Further, the Pennsylvania Superior Court affirmed the PCRA court's decision in its February 18, 2010 decision, discussed specifically below.
As stated above, Petitioner argues that he was prejudiced by evidence presented at trial that was not the basis of the charges against him, such evidence being testimony that he penetrated the victim's anus with his fingers and that he penetrated the victim's vagina with his penis. The Pennsylvania Superior Court addressed this claim as follows:
(Doc. 17-3 at 216-18.)
Turning first to penetration of the victim's anus, after reviewing the record, the court finds the state court decision on this issue to be neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Nor has Petitioner demonstrated that the state court's adjudication of this claim "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." See 28 U.S.C. § 2254(d)(2). Importantly, it is noted here with respect to this sub-issue that the state court made a factual finding when it reviewed the record and determined that Petitioner had failed to show that the testimony from the victim that Petitioner had penetrated her anus prejudiced him. Pursuant to 28 U.S.C. § 2254(e)(1), this court must defer to the factual findings of the state courts unless Petitioner rebuts the presumption of correctness by clear and convincing evidence. Petitioner argues that because the victim did not identify what penetrated her anus — a penis, a finger, or a foreign object, the jury could have been confused and chosen the penis as the method of anal penetration. (Doc. 10-1 at 21.) However, reviewing the state record as a whole, the court finds that there was no evidence or argument presented that Petitioner penetrated the victim's anus with his penis, and therefore no basis for confusion on the part of the jury. The indecent contact with respect to the victim's anus did not relate to the jury charge on sexual intercourse per os, the basis for the rape and involuntary deviate sexual intercourse charges. In other words, testimony relating to Petitioner's contact with the victim's anus was not relevant to the charges of rape and involuntary deviate sexual intercourse, but was relevant to the general averments of indecent contact. The Superior Court found the same. (See Doc. 17-3 at 217.) In the instant petition, Petitioner has not presented any evidence in support of his contention that testimony regarding indecent contact with the victim's anus formed the basis for his rape and involuntary deviate sexual intercourse convictions. Therefore, relying on the presumption of correctness in the state court determination and absent any proffer of contrary evidence by Petitioner, the court must accept the state court's decision as to this sub-issue, and habeas relief on this ground will be denied.
Turning to vaginal rape by penis, it does not appear that the state courts reached the merits of Petitioner's claim that he was prejudiced by the testimony that he had vaginally raped the victim with his penis. As such, the deferential standards of AEDPA review do not apply, and the court must perform a de novo review. See Simmons v. Beard, No. 05-9001, 2009 WL 2902251, at *6 (3d Cir. Sept. 11, 2009) (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)(precedential)). However, any state court factual determination as to the issue is still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. Id. Reviewing the record as a whole, the court concludes that this claim has no merit. First, Petitioner was never charged with vaginal rape by penis nor was it ever raised during any of the proceedings in this case. Second, there is nothing in the record to indicate that Petitioner ever penetrated the victim vaginally with his penis. Finally, the state court made a factual determination as to the events surrounding the assault:
(Doc. 17-3 at 93.) This determination does not contemplate vaginal rape by penis. As Petitioner does not rebut this determination with clear and convincing evidence to the contrary, habeas relief on this sub-issue will be denied.
Petitioner also argues that the trial court's instructions on rape and involuntary deviate sexual intercourse caused confusion and prejudice at trial because Petitioner was only charged with sexual offenses of intercourse per os and digital penetration of the victim's vagina. As stated above, the trial court included in its definitions of sexual intercourse and deviate sexual intercourse contact with the anus. However, in this case, those charges related only to the specific allegation of sexual intercourse per os. As a result, Petitioner argues, the jury may have convicted him of rape and involuntary deviate sexual intercourse based on the testimony regarding his contact with the victim's anus. To that end, he additionally argues that trial counsel was ineffective for failing to object to the instructions, and appellate counsel was ineffective for failing to raise this on appeal.
Initially, the court notes that the Pennsylvania Superior Court determined that the jury instructions given on rape and involuntary deviate sexual intercourse were in error. (Doc. 17-3 at 218.) Specifically, the court found that,
(Id.)
In reviewing this claim, the court notes that questions regarding the applicability of state law jury instructions during a state court trial fall within the province of the state courts. See, e.g., Jones v. Kyler, Civ. No. 02-09510, 2005 WL 5121659, at *5 (E.D. Pa. Aug. 3, 2005) (citing Gilmore v. Taylor, 508 U.S. 333, 344 (1993)). Further, because "federal habeas corpus relief does not lie for errors of state law" and, more specifically, that it is not within the court's province "to reexamine state-court determinations on state-law questions," Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), the court is precluded from revisiting the Superior Court's determination on this question of state law. Further, the Superior Court also concluded that Petitioner's claims of trial counsel's deficient performance based on failure to object to the instructions were meritorious. (Doc. 17-3 at 218-19.) This court will not disturb this determination.
Turning to the second prong of an ineffectiveness claim, see Strickland, 466 U.S. at 687, the Superior Court addressed whether trial counsel's failure to object to the jury instructions resulted in actual prejudice to Petitioner. (See id. at 219-20.) Specifically, the court found:
(Doc. 17-3 at 219-20.)
As with the Superior Court, the question for this court upon review is whether Petitioner was prejudiced by the erroneous instruction, i.e., but for the instruction would the outcome have been different. See Strickland, 466 U.S. at 694. The court concludes that this error, in combination with the overall charge to the jury as well as the credited testimony of the victim and counsel's statements with respect to the charges, did not prejudice Petitioner. First, despite the erroneous instruction which referenced anal intercourse, the trial court's overall instruction emphasized that the rape and involuntary deviate sexual intercourse charges related to the victim's account that Petitioner had forced her to perform oral intercourse. (Doc. 17-1 at 248) ("it is deviate sexual intercourse if a man uses his penis to have sexual intercourse with the mouth of another woman"). Further, given the verdict in this case, the jury clearly chose to credit the victim's testimony of the events over the conflicting account of Petitioner. Because the victim did not testify that Petitioner penetrated her anus with his penis, the jury had no basis to conclude that Petitioner had done so. Finally, both counsel made no reference to the rape and involuntary deviate sexual intercourse charges relating to any contact with the victim's anus.
In light of these circumstances, the court concludes that the Pennsylvania Superior Court reasonably found that Petitioner failed to show that he was prejudiced by trial counsel's failure to object. See Williams, 529 U.S. at 391; Strickland, 466 U.S. at 694. Based on the above-stated evidence, the error in the jury instruction did not have "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008). As a result, the state court decision is neither contrary to nor an unreasonable application of federal law. See 28 U.S.C. § 2254(d)(1). Nor has Petitioner demonstrated that the state court's adjudication of this claim "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." See 28 U.S.C. § 2254(d)(2). Further, because the court finds no prejudice with respect to the ineffectiveness of trial counsel, appellate counsel cannot therefore be deemed ineffective. See Cook, 45 F.3d at 392-93. Accordingly, Petitioner's claim does not warrant habeas relief.
Petitioner argues that his counsel was ineffective for failing to challenge on appeal the sufficiency of the evidence used to convict him of the sexual offenses. In Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme Court addressed the standards governing insufficiency of evidence claims, holding that "the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The standard "must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Id. at 324 n.16. The Court also explained in Jackson that circumstantial evidence by itself may suffice for a finding of guilt beyond a reasonable doubt. Id. at 324-25. The credibility of witnesses, the resolution of conflicts of evidence, and the drawing of reasonable inferences from proven facts all fall within the exclusive province of the factfinder and, therefore, are beyond the scope of federal habeas sufficiency review. Id. at 319. The Court emphasized that "[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution." Id. (emphasis in original) (footnote omitted).
The Pennsylvania Superior Court addressed this issue. Specifically, the court first addressed Petitioner's argument that the jury's acquittal on one count of robbery negated the element of forcible compulsion with regard to the sexual offenses. (Doc. 17-3 at 226-27.) Citing state law, the court concluded that the acquittal bore no legal or factual relationship to the jury's finding on the element of forcible compulsion necessary for the sexual offenses. (See id.) (citing Commonwealth v. Gillen, 798 A.2d 225, 230 (Pa.Super. 2002) ("it is the jury's sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment [and an] acquittal cannot be interpreted as a specific finding in relation to some of the evidence.")). Thus, acknowledging the jury's finding of forcible compulsion, the Superior Court then stated that it reviewed the record and determined that the evidence presented demonstrated that Petitioner had used forcible compulsion. The court stated specifically:
(Doc. 17-3 at 227-28.)
Upon review, the court finds no error, of constitutional dimension or otherwise, in the decision of the Pennsylvania Superior Court with respect to this claim. In considering the governing legal standard, see Jackson, 443 U.S. 307, the court agrees with the state courts that Petitioner's appellate counsel was not constitutionally ineffective for failing to present or preserve a sufficiency of the evidence claim with respect to the sexual offenses charged in this case. Having concluded that the underlying proceedings comported with the constitutional standards enunciated in Jackson, the court cannot find that the Superior Court's decision was contrary to, or involved an unreasonable application of federal law. See 28 U.S.C. § 2254(d). Thus, habeas relief is not warranted on this claim.
Based on the foregoing determination that Petitioner's claims are without merit, the court will deny the petition for writ of habeas corpus. (Doc. 10.)
The court must now determine whether a certificate of appealability should issue. A court may issue a certificate of appealability only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This requires that the petitioner "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the court denies a certificate of appealability because jurists of reason would not find it debatable that denial of the petition because Petitioner's claims are without merit is correct.
An appropriate order will issue.
(Doc. 17-3 at 217.) Further, the court defined "indecent contact" as follows:
(Id.)
(Doc. 17-3 at 219.)
(Doc. 17-3 at 227-28, note 19.)
