DAVID STEWART CERCONE, District Judge.
Robert Rega ("Rega", "Mr. Rega", "Petitioner", "Appellant", or "defendant"), a state prisoner currently on death-row for crimes unrelated to the underlying convictions at issue in the instant proceedings,
The facts of the crime, as set forth in the Pennsylvania Superior Court's Memorandum Opinion and Order on direct appeal, dated August 22, 2005, are as follows:
(Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3.)
Rega was represented at trial by Attorney George Zanic ("Attorney Zanic" or "trial counsel") and the District Attorney prosecuting the case for Jefferson County was Attorney Jeffrey Burkett ("DA Burkett" or "the prosecutor")
After sentencing, Attorney George Daghir ("Attorney Daghir" or "post-sentence counsel" or "direct appeal counsel") was appointed to represent Rega in post-sentence proceedings and on direct appeal. Post-sentence motions were filed on February 5, 2004; February 9, 2004; February 11, 2004; March 8, 2004; and April 28, 2004. (Resp't Exs. F-J, Post-Sentence Mots., ECF Nos. 29-2, 29-3, 30-1, 30-2, 30-3, 30-4.) Rega raised twenty-six (26) separate issues in his post-sentence motions. The claims raised in those motions that are relevant to this habeas proceeding are summarized as follows:
A post-sentence hearing was conducted on April 28, 2004, after which all of the motions were denied by Opinion and Order dated June 29, 2004. (Res't Ex. M, Tr. of Post Sentence Mot. Hr'g, Apr. 28, 2004, ECF No. 31-2); (Res't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1.)
Rega filed a direct appeal from his judgment of sentence to the Pennsylvania Superior Court. Commonwealth v. Rega, 1280-1312 WDA 2004 (Pa. Super. Ct.). Briefs were filed by both parties. (Resp't Ex. N, Br. for Appellant, Oct. 13, 2004, ECF No. 32-1); (Resp't Ex. O, Br. for Appellee, ECF No. 32-2.)
Rega raised ten (10) issues on direct appeal. The following are relevant to this habeas proceeding:
(Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3.)
The Pennsylvania Superior Court affirmed Rega's judgment of sentence by Opinion and Order dated August 22, 2005. (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3); Commonwealth v. Rega, 885 A.2d 583 (Table) (Pa. Super. Ct. Aug. 22, 2005). Judge Klein, however, filed a dissenting Opinion concluding that "the sentencing court abused its discretion in imposing an aggregate sentence of 147 to 354 years' imprisonment, which [he believed] [was] unreasonable under the circumstances of this case." (Resp't Ex. W, Pro Se Appellant Br. Ex. Q, Jun. 18, 2007, ECF No. 55 at pp.188-92.)
Rega then filed a Petition for Allowance of Appeal asking the Pennsylvania Supreme Court for discretionary review. (Resp't Ex. Q, Pet. for Allowance of Appeal, Aug. 22, 2005, ECF No. 33-1.) The petition was denied on December 29, 2005. Commonwealth v. Rega, 892 A.3d 822 (Pa. 2005).
On September 6, 2006, in the Court of Common Pleas of Jefferson County, Rega filed a pro se "Petition for Habeas Corpus Relief Pursuant to Article I, Section 14 of the Pennsylvania Constitution and Statutory Post-Conviction Relief under 42 Pa.C.S. § 9542 et seq. and Consolidated Memorandum of Law". (Resp't Ex. R, Pro Se PCRA Pet., Sept. 6, 2006, ECF No. 33-2.) This petition was construed as a petition filed pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. ("pro se PCRA petition" or "first PCRA petition").
Rega raised thirteen (13) claims in his pro se PCRA petition. The following claims are relevant to this habeas proceeding:
(Resp't Ex. R, Pro Se PCRA Pet., Sept. 6, 2006, ECF No. 33-2.)
By Order dated September 21, 2006, and consistent with Pennsylvania Rule of Criminal Procedure 904, the PCRA court entered an order appointing Attorney Benjamin Vrobel ("Attorney Vrobel" or first PCRA counsel") to represent Rega in his PCRA proceedings. (Resp't Ex. S, C.P. Jefferson Co. Or. of Ct. Appointing Counsel, Sept. 25, 2006, ECF No. 33-3.) In a letter to the PCRA court dated October 2, 2006, Rega stated that he did not ask for counsel to be appointed nor did he want counsel to represent him in his PCRA proceeding. (Resp't Ex. T, Appellee's Answer to Pet. to Remand PCRA Proceedings, Ex. A thereto, Oct. 2, 2006, ECF No. 34-1 at p.10.) In that letter, he stated:
Judge Foradora,
Id.
In response to this letter, Judge Foradora sent Rega a letter on October 13, 2006, explaining why he had appointed him PCRA counsel; namely that the charges were of a serious nature, that it was Rega's first PCRA petition and that the "interests of justice" required that counsel be appointed. (Resp't Ex. T, Appellee's Answer to Pet. to Remand PCRA Proceedings, Ex. B thereto, Oct. 13, 2006, ECF No. 34-1 at p.11.) Attorney Vrobel was copied on this letter. Id. Rega responded in a letter dated October 18, 2006, which stated:
Judge Foradora,
(Respt's Ex. T, Appellee's Answer to Pet. to Remand PCRA Proceedings, Ex. C thereto, Oct. 18, 2006, ECF No. 34-1 at p.12.) Per court order, the Commonwealth filed its Answer to Rega's pro se PCRA petition on December 29, 2006. Attorney Vrobel had not filed a counseled, amended PCRA petition, so the Commonwealth's Answer addressed only the claims raised in Rega's pro se PCRA petition.
Rega filed a Motion for Self Representation on January 5, 2007. (Resp't Ex. U, Mot. for Self Rep., Jan. 5, 2007, ECF No. 34-2.) In that Motion, Rega adamantly argued that the court "misinterpreted" the Rule of Criminal Procedure providing for the appointment of counsel in PCRA proceedings and stated that the court had erred in appointing him an attorney because he had not requested one and had specifically requested to proceed pro se. Id. He requested that counsel be removed from his case immediately, but he also complained that appointed counsel, who he had specifically "not authorized" to file anything on his behalf, had not yet contacted him. Id.
On January 9, 2007, the PCRA court issued a notice of intent to dismiss the pro se PCRA petition and gave Rega twenty days to file a response. (Resp't Ex. W, Pro Se Br. of Appellant Ex. L thereto, Jan. 9, 2007, ECF No. 55 at p.124.) No response was ever filed.
Also on January 9, 2007, Rega sent another letter to Judge Foradora in which he complained that he had not received the Commonwealth's Answer to his Petition. In addition, he stated:
(Resp't Ex. T, Appellee's Answer to Pet. to Remand PCRA Proceedings, Ex. F thereto, Jan. 9, 2007, ECF No. 34-1 at p.15.) Three days later, Rega wrote again, stating:
Dear Judge Foradora,
(Resp't Ex. T, Appellee's Answer to Pet. to Remand PCRA Proceedings, Ex. E thereto, Jan. 12, 2007, ECF No. 34-1 at p.14.)
Due to Rega's Motion for Self Representation, and correspondence with the PCRA court, a waiver of counsel hearing was set for February 12, 2007, so that Rega could be given a colloquy to waive his right to counsel. Present at the hearing were, inter alia, DA Burkett and Attorney Vrobel. Rega appeared via telephone. The PCRA court notified him of his right to have court appointed counsel, but Rega refused. (Resp't Ex. V, Tr. of Hr'g, Feb. 12, 2007, ECF No. 34-3.) In addition, the PCRA court warned Rega that he could not later claim mistake on his part because he would be held to the same standard as an attorney. Id. Knowing that risk, Rega stated, "Absolutely," when asked if he wanted to waive his right to counsel. Id.
After waiving his right to counsel, the PCRA court dismissed Rega's pro se PCRA petition on February 27, 2007, without an evidentiary hearing. (Resp't Ex. W, C.P. Jefferson Co. Or. of Ct., Feb. 27, 2007, ECF No. 55 at p.16.)
Rega filed an appeal and brief in the Pennsylvania Superior Court at 470 WDA 2007. (Resp't Ex. W, Pro Se PCRA Pet., June 18, 2007, ECF No. 55.) He presented eleven (11) claims for appeal. Of those claims, the following are relevant to this habeas proceeding:
(Resp't Ex. W, Pro Se PCRA Pet., June 18, 2007, ECF No. 55); (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3.)
After he filed his appellate brief, and before the Commonwealth filed its response brief, Rega's present counsel, Attorney Hunter Lebovitz ("Attorney Lebovitz") with the Capital Habeas Corpus Unit of the Federal Community Defender Office in Philadelphia, Pennsylvania, entered his appearance in the Superior Court.
The Commonwealth filed its Answer to the petition to remand on September 5, 2007. (Resp't Ex. T, Appellee's Answer to Pet., Sept. 5, 2007, ECF No. 34-1.) On September 17, 2007, the Commonwealth also filed its appellate brief in response to Rega's PCRA appeal. (Resp't Ex. TT, Br. for Appellee, Sept. 17, 2007, ECF No. 42-1.)
Rega's counsel then filed a supplemental petition to remand in which he requested to expand the record to include evidence of alleged Brady violations.
On May 22, 2008, the Superior Court issued an Opinion and Order denying Rega's petitions to remand, striking his Reply Brief, and affirming the PCRA court in toto. (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3); Commonwealth v. Rega, 954 A.2d 41 (Table) (Pa. Super. Ct. May 22, 2008). Rega then sought discretionary review in the Pennsylvania Supreme Court at docket 307 WAL 2008. (Resp't Ex. DD, Pet. for Allowance of Appeal, Jun. 19, 2008, ECF No. 36-1.) That petition was denied on January 27, 2009. Commonwealth v. Rega, 307 WAL 2008 (Pa. Jan. 27, 2009).
On July 21, 2008, while Rega's petition for allowance of appeal was still pending in the Pennsylvania Supreme Court, Rega's counsel, Attorney Lebovitz, filed a second PCRA petition in the Jefferson County Court of Common Pleas. (Resp't Ex. EE, Second PCRA Pet., July 18, 2008, ECF No. 36-2); (Resp't Ex. FF, Appendix to Second PCRA Pet., ECF No. 37-1.) The PCRA court entered an order expressing its intent to dismiss the second PCRA petition, without prejudice, as premature because Rega's first PCRA proceedings had not yet concluded. (Resp't Ex. GG, C.P. Jefferson Co. Notice of Intent to Dismiss PCRA Filing and Order on Mot. to Stay Proceedings, July 30, 2008, ECF No. 37-2.) Specifically, this was because Rega's petition for allowance of appeal was still pending in the Pennsylvania Supreme Court. Id. In its notice of intent to dismiss the second PCRA Petition, the PCRA court further dismissed Rega's request to stay the proceedings pending the outcome of his first PCRA request for review to the Pennsylvania Supreme Court. Id. Rega also requested habeas corpus relief, but at that time the court declined to address the petition insofar as it sought habeas corpus relief. Id. However, on August 25, 2008, the PCRA court denied Rega's second PCRA petition insofar as it requested habeas relief, noting that Rega's claims were not proper issues for habeas corpus relief because they were all cognizable under the PCRA, and the court dismissed the petition insofar as it represented a second PCRA petition. (Resp't Ex. HH, C.P. Jefferson Co. Order of Ct., Aug. 25, 2008, ECF No. 37-3.)
Rega, through Attorney Lebovitz, filed his third PCRA petition on March 30, 2009. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1); (Resp't Ex. JJ, Appendix to Third PCRA Pet., ECF No. 38-2.) That petition contained the following ten (10) claims, which are all relevant to these proceedings, and are summarized as follows:
II. Mr. Rega was denied due process of law, the right to a fair trial, and the right to confront his accusers when the Commonwealth not only failed to correct false and misleading testimony offered by and in support of the Commonwealth's key witnesses, but also made false and misleading representations to the Court and the jury.
(Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1.)
The Commonwealth filed its Answer to the petition on September 3, 2010. (Resp't Ex. KK, Answer to Third PCRA Pet., Sept. 3, 2010, ECF No. 39-1.) The PCRA court reviewed the third PCRA petition and entered a Notice of Intent to dismiss it on September 10, 2010. (Resp't Ex. LL, C.P. Jefferson Co. Notice of Intention to Dismiss Third PCRA Pet., Sept. 10, 2010, ECF No. 39-2.) In that Notice of Intent, the PCRA court specifically addressed the timeliness of Rega's claims and concluded that the petition "in its entirety [was] irredeemably late for purposes of the Post Conviction Relief Act, § 9541 et seq." Id.
For reasons that will be explained throughout this Opinion, the PCRA court's resolution of Rega's third PCRA petition is
Resp't Ex. LL, C.P. Jefferson Co. Notice of Intention to Dismiss Third PCRA Pet., Sept. 10, 2010, ECF No. 39-2.)
Rega's counsel filed a response to the Notice contending that his Brady claim should survive given certain testimony adduced at the PCRA hearing in Rega's capital case and to clarify and reallege PCRA counsel Attorney Vrobel's ineffectiveness. (Resp't Ex. MM, Resp. to Notice of Intention to Dismiss Third PCRA Pet., Sept. 29, 2010, ECF No. 39-3); (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1.) With respect to this argument, the PCRA court stated that
(Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1.) The PCRA court dismissed Rega's third PCRA petition, without a hearing, on October 12, 2010. Id.
Rega appealed to the Superior Court by brief filed on May 19, 2011. (Resp't Ex. UU, Br. of Appellant, May 19, 2011, ECF No. 42-2); (Resp't Ex. VV, Appendix to Br., ECF No. 43-45.) Rega presented the following eight (8) issues for consideration, summarized as follows:
(Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.)
The Commonwealth did not file a responsive brief, and, on November 18, 2011, the Superior Court affirmed the PCRA court's finding that the petition was time-barred and that Rega had failed to satisfy any of the exceptions to the PCRA's timeliness requirement. (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.) The Superior Court stated "that the record support[ed] the PCRA court's findings and its conclusions are without error; therefore, there were no material issues of fact." Id.
Under 28 U.S.C. § 2254, "[t]he 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." 28 U.S.C. § 2254(a). Errors of state law are not cognizable in a federal habeas action. See, e.g., Priester v. Vaughn, 382 F.3d 394, 402 (3d Cir. 2004) ("Federal courts reviewing habeas claims cannot `reexamine state court determinations on state-law questions.'") (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
In describing the role of federal habeas proceedings, the United States Supreme Court noted:
Barefoot v. Estelle, 436 U.S. 880, 887 (1983). In 1996, Congress enacted AEDPA, which "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). AEDPA "requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts' legal and factual determinations." Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); see also Lewis v. Horn, 581 F.3d 92, 109-18 (3d Cir. 2009). AEDPA reflects the view that habeas corpus is a "`guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).
State court findings of fact have always been accorded considerable deference in federal habeas corpus cases filed by state inmates. As the Court of Appeals for the Third Circuit has explained:
It is a well-established principle of federal law that state trial judges deserve substantial deference.
Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (quoting United States v. Oregon Medical Society, 343 U.S. 326, 339 (1952), which was quoting Boyd v. Boyd, 169 N.E. 632 (N.Y. 1930)).
AEDPA continued that substantial deference. Section 2254(e)(1), as amended by AEDPA, expressly provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added).
AEDPA also requires that federal habeas corpus courts give substantial deference to the legal determinations of the state court when it has adjudicated a claim on the merits; however, very few of the claims in this case were adjudicated on the merits. Nevertheless, this standard of review is codified at 28 U.S.C. § 2254(d) and it provides:
28 U.S.C. § 2254(d).
Thus, AEDPA circumscribes a federal habeas court's review of a state prisoner's constitutional claim when the state court adjudicated that claim on the merits and denied it. For the purposes of § 2254(d), a claim has been "adjudicated on the merits in State court proceedings" when a state court has made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground.
Finally, when a federal court is analyzing a claim under the standard set forth in § 2254(d), its review is limited to the record that was before the state court when it adjudicated the claim. As the Supreme Court recently reiterated:
Pinholster, 131 S. Ct. at 1401-03.
A provision of the federal habeas corpus statute, 28 U.S.C. § 2254(b), requires a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. Specifically, a federal habeas court may not grant a state prisoner's petition for writ of habeas corpus unless he has first presented his federal constitutional claims to the state courts. 28 U.S.C. § 2254(b)(1)(A). This is called the "exhaustion" requirement and it is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman, 501 U.S. at 731. See also O'Sullivan, 526 U.S. at 842-49. In order to exhaust a claim, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 844-45 (emphasis added). In Pennsylvania, this requirement means that a petitioner in a non-capital case must have presented every federal constitutional claim raised in his habeas petition to the Superior Court either on direct or PCRA appeal. See, e.g., Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004).
Significant to these proceedings, like the exhaustion requirement, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678; Sistrunk v. Vaughn, 96 F.3d 666, 678 (3d Cir. 1996). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system. A state's procedural rules are entitled to deference by federal courts, and a habeas petitioner may not have his claim reviewed if his violation of a state procedural rule constitutes an independent and adequate state law ground for denial of a federal habeas claim.
Moreover, violations of a state's procedural rules may constitute an independent and adequate state ground sufficient to invoke the procedural default doctrine even where no state court explicitly has concluded that a petitioner is procedurally barred from raising his claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996); Carter, 62 F.3d at 595. However, in that case, the procedural default doctrine only applies when a state procedural rule is consistently or regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988)).
A petitioner whose constitutional claims have not been addressed on the merits due to a procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: 1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or 2) failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Carter, 62 F.3d at 595.
To satisfy the cause standard, a petitioner must demonstrate that some objective factor external to the defense impeded his or her efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions, not merely that the error created a "possibility of prejudice." Carrier, 477 U.S. at 494. Where a petitioner cannot make a showing of "cause and prejudice," a federal court may nevertheless consider the merits of his or her unexhausted claims under circumstances in which the failure to adjudicate such claims would result in a "fundamental miscarriage of justice."
As will be revealed throughout this Opinion, most of Rega's habeas claims are procedurally defaulted and thus barred from habeas review. However, to the extent he acknowledges such default, he argues that, pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012), he has established the necessary "cause" to excuse it.
In Martinez, the United States Supreme Court carved out a "narrow exception" to the well-established rule that alleged errors by post-conviction counsel cannot be the basis for showing "cause" for a procedural default because there is no federal constitutional right to counsel on post-conviction review. See Coleman v. Thompson, 501 U.S. 722, 750-52 (1991); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). However, the Supreme Court held that ineffectiveness of post-conviction counsel in failing to properly raise the ineffectiveness of trial counsel during "initial-review collateral proceedings" can be used to show cause for procedural default when said collateral proceedings were the first place the petitioner could raise such a claim.
For two reasons, Martinez does not provide Rega with "cause" to excuse the default of his claims. First, as will be discussed in relation to some of Rega's claims, the first time Rega was allowed to raise ineffective assistance of counsel claims was not in his initial post-conviction proceedings, but rather in his post-sentence motions. Rega was afforded a hearing on his claims, including his ineffective assistance of counsel claims, and they were reviewed by the trial court and the Pennsylvania Superior Court on direct appeal. Therefore, Rega does not fall into the Martinez exception because his initial post-conviction proceeding was not the first time he could raise his ineffective assistance of trial counsel claims.
Second, and most important, during his first PCRA proceedings, Rega clearly and unequivocally waived his right to counsel and elected to proceed pro se. Therefore, any procedurally defaulted ineffective assistance of counsel claim was the result of Rega's own hand.
Rega, however, contends that any procedural default of his claims at the initial-review collateral proceedings should be excused because he was either "unrepresented" or had "ineffective representation" during his first PCRA proceedings. In sum, he claims that he only waived his right to PCRA counsel because his appointed counsel, Attorney Vrobel, failed to represent him adequately during the five month period between the time he was appointed and the time he was discharged.
In determining whether Martinez is applicable to Rega in this scenario, the threshold question is whether Rega has rebutted by clear and convincing evidence the state court's finding that he knowingly, intelligently, and voluntarily waived his right to the appointment of PCRA counsel. See Fahy v. Horn, 516 F.3d 169, 181 (3d Cir. 2008) ("Here, the state court's explicit factual finding that Fahy was competent is presumed correct, unless Fahy rebuts `the presumption of correctness by clear and convincing evidence.'") (citing § 2254(e)(1)); see also Figueroa v. Vaughn, (E.D. Pa. Sept. 9, 2005) ("AEDPA, however, obligates this court to presume that a factual determination made by the state court [as to waiver of counsel] is correct unless the petitioner can rebut that presumption by clear and convincing evidence.") (citing 28 U.S.C. § 2254(e)(1)).
This question was examined in detail and thoroughly answered by the Pennsylvania Superior Court in its Opinion on Rega's first PCRA appeal. We need not expand on their well-reasoned analysis any further but will instead set forth the relevant portion of that Opinion herein.
(Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 35-3 at pp.7-10) (footnotes omitted) (emphasis added).
Rega has clearly not provided clear and convincing evidence to rebut the state court's finding of fact, which is entitled to deference under § 2254(e), that he "clearly, unequivocally, and consistently made known his rejection of the appointment of counsel." Id. As the foregoing makes abundantly clear, Rega was going to waive his right to PCRA counsel no matter who the court was going to appoint. Furthernmore, he
Because we find that Martinez does not provide Rega with "cause" to excuse the procedural default of his ineffective assistance of trial counsel claims, we will not continue to reiterate our reasoning every time Rega makes this argument in relation to each claim.
In almost every one of his claims, Rega raises allegations of ineffective assistance of counsel; whether it is trial, appellate or postconviction. The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial." Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)). The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: (1) counsel's performance was unreasonable; and (2) counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonable competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690.
The first prong of the Strickland test requires a defendant to establish that his or her 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 the defendant by the Sixth Amendment." Id. at 687-88. A court must indulge in a "strong presumption" that counsel's conduct falls within the "wide range" of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the relevant time and place. Id.
The second prong requires a defendant to demonstrate that counsel's errors deprived him or her of a fair trial and the result was unreliable. Id. at 687. To prove prejudice, a defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Id. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693.
Representation is constitutionally ineffective only if it "so undermined the proper functioning of the adversarial process" that the defendant was denied a fair trial. Id. at 686. "Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities." Harrington, 131 S. Ct. at 791. While in some instances "an isolated error" can support an ineffective-assistance claim if it is "sufficiently egregious and prejudicial," it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy. Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)).
Harrington, 131 S. Ct. at 788.
Courts may not indulge "post hoc rationalization" for counsel's decisionmaking that contradicts the available evidence of counsel's actions. Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). There is a "strong presumption" that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than "sheer neglect." Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). "After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Harrington, 131 S. Ct. at 790 (citing Strickland, 466 U.S. at 688).
On April 5, 2012, Rega filed his amended petition for writ of habeas corpus raising twelve (12) claims, and on July 20, 2012, Rega filed a supplement to his amended habeas petition raising one (1) additional claim. He asserts the following thirteen (13) grounds for relief:
Claim 1 Mr. Rega was denied due process and the right to confront his accusers when the Commonwealth suppressed favorable evidence that was material to his ability to present a defense at trial and to undermine the credibility of the key Commonwealth witness.
Claim 2 Mr. Rega was denied due process, the right to confront accusers and effective assistance of counsel when the Commonwealth not only failed to correct false and misleading testimony offered by and in support of the Commonwealth's key witnesses, but also made false and misleading representations to the court and the jury, and trial counsel failed to object to known misrepresentations.
Claim 3 Mr. Rega was denied due process and the right to confront his accusers as a result of the cumulative effect of all suppressed and false and misleading evidence under Brady and Napue.
Claim 4 Mr. Rega was denied due process, the right against self-incrimination, counsel, and effective assistance of counsel when the Commonwealth improperly impeached the key defense witness without challenge by trial or appellate counsel.
Claim 5 Mr. Rega was denied effective assistance of counsel when trial counsel failed to timely locate and adequately interview, prepare and present a key defense witness.
Claim 6 Mr. Rega was denied due process, proof of guilt beyond a reasonable doubt, a unanimous jury verdict on all counts and effective assistance of counsel when he was convicted of multiple sex offenses based on generic and nonspecific testimony. All prior counsel failed to litigate this issue.
Claim 7 Mr. Rega was denied due process, protection against double jeopardy and the effective assistance of counsel because he was deprived of notice of the specific charges against him and his right to present a defense. All prior counsel failed to litigate this issue.
Claim 8 Mr. Rega was denied effective assistance of counsel when trial counsel unsuccessfully attempted to prove Mr. Rega's exculpatory genital abnormality through the testimony of a witness who did not have knowledge of the relevant issue.
Claim 9 Mr. Rega was denied his right against cruel and unusual punishment when he was sentenced to a maximum of 354 years imprisonment, a penalty that is grossly disproportionate to the offenses for which he was convicted.
Claim 10 Mr. Rega was denied due process and effective assistance of counsel when the trial court refused to grant a mistrial after Susan Jones told th[e] jury that Mr. Rega had been involved in a homicide and trial and appellate counsel failed to further object to this due process violation.
Claim 11 All prior counsel were ineffective for failing to investigate and litigate the issues presented in this amended petition.
Claim 12 Mr. Rega was denied due process because of the cumulative prejudicial effect of the error in this case.
Claim 13 Mr. Rega was denied effective assistance of counsel because trial counsel failed to effectively impeach the complaining witnesses.
(Pet'r Am. Pet. for Writ of Habeas Corpus, ECF No. 21); (Pet'r Supp. to Am. Pet. for Writ of Habeas Corpus, ECF No. 25.) We will now proceed to address Rega's claims in the order in which they are presented.
In this claim Rega contends that the Commonwealth violated Brady v. Maryland, 373 U.S. (1963), by suppressing evidence of plea negotiations with Commonwealth witness Susan Jones ("Jones").
This claim is procedurally defaulted. The first time Rega raised this claim was after he had filed his pro se appellate brief in his appeal from the denial of his first PCRA petition. Specifically, it was raised by Attorney Lebovitz in Rega's supplemental petition to remand, wherein he alleged that the Commonwealth had committed a Brady violation by withholding evidence of plea negotiations with Jones. In the petition to remand, Attorney Lebovitz also argued that Attorney Daghir (appellate counsel) and Attorney Vrobel (first PCRA counsel) rendered ineffective assistance by failing to litigate the Brady violation claim. Attorney Lebovitz argued that Rega was entitled to a remand or expansion of the record because the PCRA court conducted an inadequate colloquy before granting Attorney Vrobel leave to withdraw and because Attorney Vrobel's ineffectiveness vitiated Rega's decision to proceed without counsel. The Superior Court flatly rejected Attorney Lebovitz's attempt to reopen Rega's first PCRA proceedings, stating that Rega "clearly, unequivocally, and consistently made known his rejection of the appointment of counsel." (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at pp.9-10.)
This claim was raised again in Rega's third PCRA petition, which the PCRA court found untimely pursuant to Pennsylvania's one-year PCRA statute of limitations, 42 Pa.C.S.A. § 9545(b). See Section II.E., supra: (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1.) The Superior Court agreed on appeal that the petition was untimely. See Section II.E., supra: (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.) Accordingly, we may not consider the merits of this claim unless Rega establishes an exception to the procedural default rule.
Although this claim is procedurally defaulted, we find that it is without merit as well. We note that this exact claim was raised in Rega's capital case (Gateway Lodge homicide) PCRA petition; and after conducting a lengthy evidentiary hearing, the PCRA court found as fact that the District Attorney (DA Burkett) did not "promise[] nor foster[] the expectation of leniency" with respect to any witness,
Both Rega and the Commonwealth extensively discuss in their briefs the Gateway Lodge homicide and what occurred in the litigation of Rega's PCRA claims in that case. Rega contends that the testimony of Jones and her attorney at that hearing, as well as the documents introduced at the hearing, confirmed that Jones had an understanding with the Commonwealth that she would receive probation in exchange for her testimony against Rega in this case as well as his capital case. This is representation of the testimony at that hearing is disingenuous.
As background, Jones was represented in her criminal matters by Attorney Timothy Morris ("Attorney Morris"). The crux of the instant claim is that prior to Rega's capital trial, Attorney Morris attended a Criminal Conference with DA Burkett
Rega relies on an exchange of letters between Jones and Attorney Morris to support his claim. In a letter from Jones to Attorney Morris dated February 27, 2002, three months before Rega's capital trial, Jones asks why Attorney Morris continued her cases until June of 2002 if she was only supposed to get probation. Specifically, she wrote, "Than why the postponement, is there a change in the verbal conformation [sic] or the words more than likely, which isn't binding such as a verbal agreement? . . . ." (Pet'r Ex. 8, Letter dated Feb. 27, 2002, ECF No. 21-9.) Attorney Morris replied to Jones in a letter dated March 6, 2002, stating, "As far as I know there is no change in the `verbal confirmation', which I presume you mean to be the proposed plea agreement. If you wish to withdraw the possibility of a plea agreement, please let me know and I will have your case put on the trial list as soon as possible." (Pet'r Ex. 10, Letter dated Mar. 6, 2002, ECF No. 21-11.)
Importantly, Jones testified at Rega's capital PCRA hearing on December 17, 2009. On direct examination by Rega's attorneys, she testified that there "was possibly a verbal agreement" reached at the Criminal Conference between Attorney Morris and DA Burkett on September 5, 2001,
On cross, however, she testified that she told the truth at both of Rega's trials when she testified to the fact that no deals had been made or promised to her in exchange for her testimony. She also agreed that when she testified at Rega's rape trial she had testified truthfully to the fact that she had pending criminal charges against her that had not yet been disposed of, that no charges had been dropped against her, that she did not know why she was out of jail at that time, that it was a good possibility she could get 20 years for her robbery charge, and that she was fully expecting to get "jail time" for her offenses. Id. at pp.186-90. When she was asked about the inconsistency between what she stated on direct, she said that ". . . Anything I said [at the trials] was true." After having reviewed her prior testimony from Rega's trials, she testified that she fully believed she was going to go to jail for her crimes and was not expecting probation. Id. at pp.190-91.
Attorney Morris also testified at Rega's capital PCRA proceedings in reference to alleged plea negotiations with the Commonwealth. When questioned about this subject, Attorney Morris had little memory as to representing Jones but stated that had there been a formal plea offer, he would have written the terms down in his file. (Tr. of Hr'g, Dec. 14, 2009, CP-33-CR-26-01&524-01 at pp.192-95). He testified that his file for Jones indicated that "the first of any discussion about an offer" would have been at a Criminal Conference that was held on July 16, 2003, two months after Rega's rape trial. Id. This was documented in Attorney Morris' file as follows:
Id at pp.193-94. Attorney Morris testified that these were the "pitches" that he made on behalf of Jones during his negotiations with the Commonwealth. Id. at p.194. Significantly, the notation in Morris' file indicates that plea negotiations for Jones' cases did not occur until after Rega's trials were over and begs the question of why he would make a pitch for his client to receive house arrest if DA Burkett had already made an informal promise of probation. Ultimately, Jones received a formal plea offer from DA Burkett on January 28, 2004. Id. at pp.196-97
On October 27, 2011, the Court of Common Pleas of Jefferson County, acting as the PCRA court in Rega's capital case, issued a very lengthy Opinion on Rega's PCRA petition. With respect to Jones, the PCRA court stated as follows:
(Resp't Ex. QQ, C.P. Jefferson Co. Op. and Order, Oct. 27, 2011, ECF No. 41-1); Commonwealth v. Rega, No. CP-33-CR-26-2001, at pp. 21, 24 (C.P. Jefferson Co. Oct. 27, 2011)).
As previously noted, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Rega has failed to do so in his petition by showing there was a plea deal between Jones and the Commonwealth.
Nonetheless, despite Rega's contentions to the contrary, we fail to see the magnitude of Jones' testimony. We agree with Respondent's position that this case rose and fell with the credibility of the victims, not Jones. Jones' only involvement in the underlying incident was calling the state police to relay the victims' allegations. All four victims independently testified against Rega, and the jury credited their testimony over the defense's theory that Jones convinced the victims to lie in order to gain leverage with the Commonwealth. While it is possible that these crimes may never have been brought to light had it not been for Jones' involvement, the manner in which they were exposed does not in any way alter the reality that they occurred. Indeed, this was demonstrated at trial by testimony from the victims implying that most, if not all of the sexual encounters between them and Rega were effectively consensual.
In addition, the jury was made well aware of Jones' pending criminal charges, the severity of them, the fact that they had yet to be disposed of and the fact that she had not yet served any time in jail.
For the aforementioned reasons, we first find that this claim must be denied because it is procedurally defaulted; and, in the alternative, it is without merit.
Rega raises five subparts within this one claim. He alleges that the Commonwealth failed to correct (or purposefully elicited) material misrepresentations that Susan Jones: (1) was not an uncharged accomplice to the homicide at Gateway Lodge; (2) was not involved in disposing of the gun used in the homicide; (3) was not involved in plea negotiations with Commonwealth representatives at the time of Rega's trial; (4) was expecting to face prosecution in multiple criminal charges after Rega's trial; and (5) was expecting to be found guilty and incarcerated for at least twenty (20) years on those pending charges. It is alleged that the Commonwealth mislead the jury about Jones' role in Rega's murder case through her testimony and also through the testimony of Trooper Davis.
Subparts 1 and 2 of this claim are procedurally defaulted because they were raised in the first instance by Rega's appellate counsel (Attorney Daghir) in the post-sentence motion dated February 5, 2004 in terms of trial counsel ineffectiveness "for failing to object and request a mistrial" when Trooper Davis testified "that he did not have any evidence to charge Susan Jones as an accomplice in a homicide," or have sufficient evidence "to charge Susan Jones with the destroying of evidence (the gun), when he had or should have been aware of such evidence, and that this was done so as to extenuate Mrs. Jones' culpability, and rehabilitate her credibility with the jury." (Resp't Ex. F, Post Sentence Mot., Feb. 5, 2004, ECF No. 29-2 at pp.7-8.) On direct appeal, the claims were again raised as ineffective assistance of counsel claims.
In his amended habeas petition, Rega does not present subparts 1 and 2 as he presented them to the state courts — i.e., as ineffective assistance of counsel claims. Instead, he spends most of the portion of his brief dedicated to this claim outlining the testimony that he believes DA Burkett knew was blatantly false and misleading.
The first time Rega raised subparts 1 and 2 in the state courts in their current form was in Rega's third PCRA petition (as Claim II). (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1 at pp.73-104.) However, as noted in Section II.E. of this Opinion, the state courts determined that Claim II in the third PCRA petition was untimely under the PCRA. See Section II.E., supra: (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1); (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.) Therefore, as they are presented and argued in Rega's amended habeas petition, subparts 1 and 2 to this claim (as well as 3-5) are procedurally defaulted.
Nevertheless, for the reasons previously discussed in claim one and outlined below, we find that this claim, in its entirety, has no merit.
According to Rega, the evidence Trooper Davis allegedly had, or should have been aware of, consisted of:
Id.
Additionally, at the hearing on the post-sentence motions, Rega amended his motion to include a claim that Trooper Davis gave, and DA Burkett knowingly solicited perjured testimony. (Resp't Ex. M, Post Sentence Hr'g Tr., Apr. 28, 2004, ECF No. 31-2 at pp.48-52.) Trooper Davis' testimony that Rega claims was perjured is when he was asked the following questions:
(Resp't Ex. E, Jury Trial Tr., May 6, 2003, ECF No. 29-1 at p.156.)
In its Opinion dated June 29, 2004, the trial court disposed of these issues as follows:
(Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1.)
On direct appeal, the Superior Court, relying on the trial court's analysis, agreed that the issues were without arguable merit. (Resp't Ex. N, Br. for Appellee, Oct. 13, 2004, ECF No. 32-1); (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2205, ECF No. 32-3.) There is little more that we can add to the trial court's opinion and therefore we adopt their reasoning as our own.
For the aforementioned reasons, all of the subparts to claim two are denied as procedurally defaulted; and, alternatively, they are without merit.
In this claim, Rega contends that the Commonwealth violated its obligation to disclose exculpatory evidence and to refrain from presenting false and misleading testimony and argument. Rega alleges that this included the Commonwealth's
(Pet'r Am. Pet. for Writ of Habeas Corpus, Apr. 5, 2012, ECF No. 21 at p.84.)
Rega argues that even if any one of these violations was not material for purposes of Brady and/or Napue, the collective impact of all these violations was to deny him due process and his right to confront his accusers.
This claim is procedurally defaulted. It was raised for the first time in Rega's third PCRA petition; and, as previously stated, the claim was deemed untimely by the PCRA court. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1 at pp.104-07); (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1.) On appeal, the Superior Court agreed that the claim was untimely. (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46.) Thus, this claim is procedurally defaulted and Rega's reliance on Martinez to excuse his default affords him no relief for the reasons outlined in Section III.D. of this Opinion, supra. Accordingly, this claim is denied and not subject to habeas review.
This claim is based on claims one and two and thus is without merit for the reasons already explained.
In this claim, Rega contends that the Commonwealth improperly impeached his girlfriend, defense witness Helaine Flockerzi ("Flockerzi"), through the rebuttal testimony of Jones and Trooper Davis who were permitted to testify that Flockerzi had been involved in unrelated criminal activity and that Rega was aware of that activity. Rega avers that this testimony lacked foundation and was hearsay, improper bolstering of a witness, irrelevant, prior bad act evidence, and included an incriminating statement by Rega that was obtained in violation of his right against self-incrimination and right to counsel. Because trial and appellate counsel failed to challenge this improper impeachment of Flockerzi, Rega alleges that he was denied the right to effective assistance of counsel. At trial, the Commonwealth argued that the testimony of Flockerzi's criminal involvement was introduced to expose bias on her part toward Rega, suggesting to the jury that Flockerzi was testifying favorably towards Rega because he knew that she was involved in criminal activity and could use that knowledge against her.
By way of background information, Rega's trial counsel and investigator were not able to locate Flockerzi prior to trial. However, after trial commenced, the investigator received a phone call from Flockerzi, and arrangements were made for her to testify by telephone. Flockerzi thereafter testified on behalf of Rega that she had never observed, nor was aware of Rega having sex with the accusers, testimony which contradicted three of the victims' accounts that Flockerzi had knowledge of their sexual encounters with Rega. During the cross examination of Flockerzi, DA Burkett, over objection of defense counsel, received permission from the trial court to question her regarding her knowledge of stolen stereo equipment being stored in Rega's residence. Moreover, the Commonwealth, in its case in rebuttal, recalled Trooper Davis who testified that Rega had told him that Flockerzi should go to jail. Trooper Davis further testified that Jones had told him that Flockerzi had been involved in moving stolen broadcasting equipment. The Commonwealth then called Jones as a rebuttal witness, and elicited her testimony (1) that she reported Flockerzi's involvement in the moving of stolen broadcasting equipment, and (2) that Rega had knowledge of Flockerzi's involvement in that malfeasance. The purpose of these offers by the Commonwealth was to establish that Flockerzi had an improper motive to testify in favor of Rega because he could implicate her in wrongdoing. (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at pp.15-15, n.10.)
The testimony at issue is as follows:
By Mr. Burkett: (Direct Examination of Trooper Davis on Rebuttal)
(Whereupon, the following discussion was held at sidebar:)
(Whereupon, the sidebar discussion concluded.)
By Mr. Burkett:
(Resp't Ex. E, Jury Trial Tr., May 6, 2003, ECF No. 29-1 at pp.196-99.) Next, the Commonwealth called Jones who testified as follows:
Id. at p.201.
In his post-sentence motions, Rega alleged that the trial court committed reversible error regarding the impeachment of Flockerzi. (Resp't Ex. F, Post Sentence Mot., Feb. 5, 2004, ECF No. 29-2 at p.3, ¶ 6.) In this regard, the trial court held as follows:
(Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at pp.9-11.)
On direct appeal, the Pennsylvania Superior Court found no error in the trial court's ruling because "[t]he Commonwealth was entitled to shed light on Ms. Flockerzi's potential bias based on [Rega]'s knowledge of her involvement in criminal conduct." (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3 at pp.8-11.) The Pennsylvania Superior Court relied on United States v. Abel, 469 U.S. 45 (1984), wherein the United States Supreme Court stated that "[p]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' [sic] testimony." Id. at 469.
In his first PCRA petition, Rega also made a challenge to the Commonwealth's impeachment of Flockerzi. However, the Pennsylvania Superior Court noted that the claim had been "previously and thoroughly litigated" before it and there was "no basis upon which to disturb the ruling of the trial court that denied relief upon those claims". (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at pp.14-15.)
This claim is procedurally defaulted because it was not raised in its current form until Rega's third PCRA petition. (Resp't Ex. II, Third Pet. for Writ of Habeas Corpus, ECF No. 38-1.) The PCRA court found the petition untimely and that finding was affirmed on appeal. (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order Oct. 12, 2010, ECF No. 40-1); (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46.) Accordingly, the claim is procedurally defaulted for that reason, and because Rega has failed to show that he has met an exception to the procedural default rule it is denied. See Section III.D., supra. Nevertheless, as discussed infra, the claim is meritless.
Rega first asserts that Jones and Trooper Davis' testimony about Flockerzi's alleged criminal activity was inadmissible hearsay, improper bolstering, lacked foundation, irrelevant and an improper introduction of prior bad act evidence against both him and Flockerzi. However, these issues involve matters of state evidentiary law and do not rise to constitutional magnitude. See Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997) (federal court limited to deciding issues of constitutional dimension); Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992); Hawkins v. Carroll, No. 03-1165-KAJ, 2005 WL 3336538, at *3 (D.Del. Dec. 8, 2005) (finding a violation of state evidentiary law is not cognizable in a federal habeas proceeding); McLaughlin v. Carroll, 270 F.Supp.2d 490, 514 (D.Del. 2003) (same). Thus, these issues involving state evidentiary matters are not cognizable on habeas review.
Next, Rega asserts that he was denied his right against self-incrimination and right to counsel when Trooper Davis obtained what Rega considers an "incriminating statement" that Trooper Davis testified to at trial; specifically that Rega told him that Flockerzi "absolutely" should be in jail. Rega asserts that Trooper Davis was "questioning" him during the preliminary hearing, when he was in custody and not in the presence of his attorney; and, according to Rega, this amounted to a "custodial interrogation" and a violation of Miranda v. Arizona, 384 U.S. 436 (1966), because Trooper Davis intended the questioning to elicit an "incriminating response".
In support of this claim, Rega relies on Rhode Island v. Innis, 446 U.S. 291, 301 (1980), where the Supreme Court explained:
Id. at 301 n.5 (citing Miranda, 384 U.S. at 476-77).
When raised in state court in Rega's post-sentence motion, the state court found that Rega's statement to Trooper Davis was "an admission by the defendant of his own free volition" and that it "complete[d] the Commonwealth's theory that Helaine Flockerzi ha[d] reason to be biased for the defendant and testify on the defendant's behalf." (Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at p.11.) The court further stated that it was "clear from the sum total of the testimony that Mr. Rega engaged Trooper Davis in conversation who at some point asked, `Should Helaine be in jail?' to which Rega answered, `Absolutely, absolutely.'" Id. at p.13. The court determined that there was no Miranda violation because "[t]his evidence itself is not incriminating and the interrogation was not custodial. It was garnered voluntarily from Rega and only became relevant when Rega himself called Helaine Flockerzi to the witness stand." Id.
It is clear that Rega was not "interrogated" within the meaning of Miranda, nor was his right against self-incrimination violated when Trooper Davis testified at trial to Rega's response to the question of whether he thought Flockerzi "should be in jail". According to Attorney English, who represented Rega at the preliminary hearing, he recalled the conversations between Trooper Davis and Rega as "pretty innocuous" and characterized it as "more like little jabs" and not "extended talks". (Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at p.13) (citing to Tr. of Hr'g., April 28, 2004, pp.62-63). He was asked whether he recalled Trooper Davis ever trying to get incriminating statements out of Rega, and he said that he "never observed that" and if he had he "would have tried to put a stop to it". Id.
It is also clear that Rega's response to Trooper Davis' question was not incriminating. It was neither inculpatory nor exculpatory as to Rega, it was not a confession by Rega, and it did not amount to guilt by association. Furthermore, it was not a statement that confirmed or denied Rega's involvement in the crimes of which he was charged and for which he was on trial. See Innis, supra. We agree with the state court's finding that it was simply an admission made of Rega's own free volition that was ultimately used to show that Flockerzi had a reason to be biased.
Viewing the circumstances surrounding Rega's statement, it is our opinion that the record does not support Rega's contention that Trooper Davis deliberately elicited incriminating words that were used against Rega at his trial.
Finally, Rega argues that he was (1) "denied due process and a fair trial when the trial court allowed the Commonwealth to introduce evidence through Trooper Davis and Susan Jones that was inadmissible", and (2) a derivative ineffective assistance of counsel claim for failing to challenge the "improper impeachment" of Flockerzi. In this regard, Rega is not entitled to habeas relief if it was harmless error for the court to allow the Commonwealth to improperly impeach Flockerzi. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (announcing the standard used in habeas cases when determining whether constitutional trial error warrants a habeas petitioner relief). An error is harmless unless it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. In determining whether there is harmless error, we examine the impact of the error on the trial as a whole. Yohn v. Love, 76 F.3d 508, 523 (3d Cir. 1996). Thus, we ask whether the error had a substantial influence on the verdict despite sufficient evidence to support the result apart from the error. Id.
In addition to the due process claim, Rega argues that he was deprived of the right to effective assistance of trial and appellate counsel for failing to raise any issues related to the "improper impeachment" of Flockerzi. To prove this, he must show that (1) his counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686 (1984). To show prejudice, Rega must demonstrate that the ineffective assistance of counsel actually had an adverse effect on the defense such that the result of the proceeding would have been different but for counsel's errors. Id. at 693-94.
Rather than applying Brecht and Strickland tests separately, the Third Circuit Court of Appeals has held that an error that is harmless under Brecht is also considered non-prejudicial under Strickland. See Whitney v. Horn, 280 F.3d 240, 258 (3d Cir. 2002) (explaining that the purpose of both tests is to determine whether the error affected the jury's verdict).
Rega argues that trial counsel performed deficiently when the prosecution improperly impeached Flockerzi by: (1) attempting to prove Flockerzi's alleged involvement in criminal activity using testimony that was hearsay, bolstering, lacking foundation, irrelevant, and prior bad act evidence; and (2) offering an incriminating statement by Rega that was obtained in violation of his right against self-incrimination and right to counsel. According to Rega, trial counsel did not adequately object to this improper impeachment, request a mistrial, request a limiting instruction with regard to Trooper Davis' hearsay testimony, or move to suppress the statement obtained in violation of Rega's right to counsel. Rega asserts that had Flockerzi not been improperly impeached, there is a reasonable likelihood that the result of his trial would have been different because she was the key defense witness who refuted much of the victims' testimony.
The trial court, in its Opinion denying post-sentence motions, addressed Rega's contention that it had committed several errors dealing with the impeachment of Flockerzi. It stated:
(Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at pp.10-11.) The trial court concluded that "the impeachment was appropriate" because the defense opened the door by calling Flockerzi as a witness "knowing these statements had been made, and being aware of Flockerzi's involvement in the investigation." Id. at p.11.
On direct appeal the Pennsylvania Superior Court found no error in the trial court's ruling because the Commonwealth "was entitled to shed light on Ms. Flockerzi's potential bias based on [Rega]'s knowledge of her involvement in criminal conduct." (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3 at p.11.) When the claim was raised again in Rega's first PCRA petition, the Pennsylvania Superior Court, on appeal, once again rejected it stating that each of Rega's claims regarding the improper impeachment of Flockerzi "were previously and thoroughly litigated before this Court, [and] we detect no basis upon which to disturb the ruling of the trial court that denied relief upon those claims." (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at p.15.)
Not only do we agree with the state courts' finding that the impeachment of Flockerzi was proper, but we also find that any error in allowing it in was harmless. We note that this case, like many sex crime cases, was essentially a "he said, she said" scenario, with no physical evidence linking Rega to the crimes. The victims' credibility was essential to both the prosecution and to the defense, and while Flockerzi's testimony suggested that the victims were lying, it is too large an inferential leap for us to conclude that Flockerzi's impeachment had a "substantial" or "injurious" effect on the jury's verdict. Furthermore, one of the most significant and influential aspects of determining witness credibility is watching their behavior and demeanor in the courtroom, something a reviewing court is not able to observe. See Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007) (quoting United States v. Oregon Medical Society, 343 U.S. 326, 339 (1952), which was quoting Boyd v. Boyd, 169 N.E. 632 (N.Y. 1930)). Therefore, we cannot go so far as to say that had Flockerzi not been impeached in the manner in which Rega complains was improper, the outcome of the trial would have been different.
Accordingly, we find no error; and, even so, Rega has not shown that the error he alleges was not harmless under Brecht. Therefore, counsel's conduct was not prejudicial under Strickland. See Whitney, 280 F.3d at 258. Accordingly, Rega is not entitled to relief on either his due process or ineffective assistance of counsel claims.
Additionally, since Rega has not shown prejudice, we find that appellate counsel was not ineffective for failing to raise any of the alleged claims related to the impeachment of Flockerzi on appeal. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) ("There can be no Sixth Amendment deprivation of effective assistance of counsel based on an attorney's failure to raise a meritless argument.").
In this claim, Rega argues that trial counsel failed to timely locate and prepare defense witness Flockerzi, and, because of this, Flockerzi's testimony was incomplete and had to be presented by telephone, which, according to Rega, made it more likely that the jury would give less weight to her testimony.
Rega states that this claim was raised in his first PCRA petition, but he is incorrect. The only mention of Flockerzi's testimony by phone in Rega's first PCRA petition was on appeal when he claimed that prior counsel were ineffective for failing to object to improper remarks made by the Commonwealth during closing arguments. Specifically, Rega claimed that the prosecutor's arguments directed toward the credibility of Flockerzi were improper. However, the Pennsylvania Superior Court found no merit in the claim, stating that it "had previously held that the Commonwealth properly introduced impeachment evidence suggesting that [Flockerzi] was biased in favor of [Rega]" and "because [Rega] could implicate her in wrongdoing," the "argument of the prosecutor that Flockerzi was less credible because she testified by telephone was based upon reasonable inferences drawn from the evidence presented." (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at p.25.)
This claim is procedurally defaulted because it was not raised in its current form until Rega's third PCRA petition, which was dismissed as untimely and affirmed on appeal. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1 at pp.7, 128-136); (Resp't Ex. NN, C.P. Jefferson Co. Op. and Order, Oct. 12, 2010, ECF No. 40-1); (Resp't Ex. WW, Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46.)
Rega seemingly agrees that this claim is procedurally defaulted but again relies on Martinez to demonstrate "cause" for the default. For the reasons discussed in Section III.D. of this Opinion regarding Martinez, we find that Martinez is inapplicable to Rega's situation for purposes of this claim because the only person who can be charged with "cause" for any default is Rega himself. In this regard, Martinez does not apply to him and the claim is denied as procedurally defaulted.
Even if this Court could reach the merits of this claim, it would not entitle Rega to habeas relief despite his belief that there is a reasonable likelihood that the verdict would have been different had Flockerzi given in-person testimony.
During the lunch break on the second day of Rega's trial, trial counsel's investigator, Mr. Ellis, announced that he received a voice message on his cell phone from Flockerzi, who, up until that point could not be located. Because she was in New Jersey, and unable to travel to Huntington, Pennsylvania in time to testify in person, the trial court permitted Flockerzi to testify via telephone. Prior to her testimony, the court asked Mr. Ellis to detail his search for Flockerzi. Mr. Ellis advised the court that he and his partner had gone to some of Flockerzi's previous addresses looking for her, one of which was in Venus, Pennsylvania. They were informed by the resident of that house that Flockerzi had left in May of 2002 and that she had possibly moved to New Jersey. The resident knew no further information. Mr. Ellis and his partner then conducted phone record searches and came up with an address close to Oil City, Pennsylvania. The resident of that address turned out to be Flockerzi's brother. When they asked him if he could put them in contact with Flockerzi, he said that he would not. Mr. Ellis left a business card and asked that he have Flockerzi call him if she would be willing to do so, and he agreed. After hearing from Mr. Ellis, the court stated on the record that the defense conducted a "diligent search" for Flockerzi. (Resp't Ex. E, Jury Trial Tr., May 6, 2003, ECF No. 29-1 at pp.103-06.)
First, we do not disagree with the trial court's "diligent search" determination; and, therefore, we find that trial counsel's performance was not deficient in failing to locate Flockerzi prior to trial in time for her to testify in person. Rega claims that he was prejudiced because had she been located earlier, she would have been adequately interviewed, prepped for trial and testified that (1) she saw Jones give the complaining witnesses alcohol and marijuana, (2) she told police that she never saw Rega have sex with the complaining witnesses or serve them alcohol, (3) she never saw any Peach Schnapps or Golden Schlager in Rega's house, and (4) E.H. was present during the summer of 2000 when Rega told Flockerzi he was going to stay overnight at the Clarion Comfort Inn.
As Rega's current counsel repeatedly emphasizes throughout the amended habeas petition, Flockerzi refuted much of the victims' testimony at trial, including the fact that she denied ever seeing them have sex with Rega or Rega provide them with alcohol.
Furthermore, the record indicates that it is unlikely Flockerzi would have cooperated had she been located any earlier. She made it clear at trial that she did not want to testify or have anything to do with the case. On redirect examination by Rega's trial counsel, Flockerzi testified as follows:
(Resp't Ex. E, Tr. of Jury Trial, May 6, 2003, ECF No. 29-1 at pp.182-84.) Also, earlier in her testimony Flockerzi indicated that she refused to talk to Trooper Davis because she felt that he was rude and arrogant. Id. at pp.173-74.
To the extent Rega contends that he was prejudiced because counsel was not able to prepare Flockerzi, or have her testify that she saw Jones give the victims alcohol and marijuana, or that E.H. was present during the summer of 2000 when Rega told Flockerzi that he was going to stay overnight at the Clarion Comfort Inn, we find that this testimony, assuming its admissibility, would not have established by a reasonable probability that the result of the trial would have been different because most of it is irrelevant.
Finally, Rega's contention that he was prejudiced because the jury was not able to see Flockerzi testify in person and visually assess her credibility is also not enough to establish a reasonable probability that the result of the trial would have been different because Rega has not proffered any reason why the jury would have been likely to credit her testimony over the victims' had she testified in person other than his conclusive speculation.
Accordingly, for the aforementioned reasons, this claim is denied as procedurally defaulted; and in the alternative, it is denied on the merits.
In this claim, Rega claims that the jury could not have understood that it had to reach agreement on the specific act Rega purportedly committed for each and every count because the trial court failed to give an adequate unanimity instruction. Rega claims that the evidence to support most of the counts against him was generic and non-specific and that the testimony on these counts lacked any detail about when, where or how the offenses purportedly took place or what specifically occurred.
This claim is procedurally defaulted. It was first raised in Rega's brief on direct appeal, and the Pennsylvania Superior Court deemed the issue waived because Rega did not raise a specific and timely objection to the jury charge. (Resp't Ex. P, C.P. Jefferson Co. Op. and Order, Aug. 22, 2005, ECF No. 32-3 at p.19) (citing Commonwealth v. Forbes, 867 A.2d 1268, 1274 (Pa. Super. 2005)). Rega raised the claim again in his first PCRA petition, but he raised it as one of ineffective assistance of trial and appellate counsel for failing to challenge the sufficiency of the evidence; specifically, "(1) that the Commonwealth failed to prove that he and the complainants, S.S. and R.H., were not married, and (2) that the evidence was insufficient to sustain the multiple counts of sexual assault due to the complainants E.H. and D.W.'s inability to recall the exact number of sexual encounters that they had had with [him], their inability to identify the specific dates of their encounters, and their use of terms such as `maybe,' `I don't know,' and `a lot.'" (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at p.11.) The Pennsylvania Superior Court found the claim patently meritless, however, and Rega did not make the specific challenge he now makes.
Because this claim was not raised in its current form until Rega's third PCRA petition, which was untimely and affirmed on appeal, the claim is procedurally defaulted. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1 at pp.8, 145-153); (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.)
To the extent Rega relies on Martinez to demonstrate "cause" for the procedural default of this claim, his argument fails for the reasons outlined in Section III.D. of this Opinion and the claim is therefore denied as procedurally barred. Nevertheless, the claim is without merit.
The irony in this claim is that prior to trial the Commonwealth moved to amend the Information to consolidate counts so that convictions for each count would be based on multiple incidents happening on various dates throughout the time period alleged in the Information. In sum, this would have addressed the very thing of which Rega now complains. However, Rega's trial counsel objected to the amendment based on an "all or nothing" trial strategy. Trial counsel explained this strategy as follows:
(Resp't Ex. C, Tr. of Pre-trial Mot. Hr'g., May 5, 2003, ECF No. 28-1 at pp.16-18.)
Rega argues that trial counsel's advice regarding pursuing an "all or nothing" strategy was ineffective. However, this particular claim of ineffective assistance of trial counsel was never raised in the state courts in a procedurally correct manner and is now procedurally defaulted. Moreover, Martinez is inapplicable because the failure to raise this ineffectiveness claim in the state courts was attributed to Rega. See Section III.D., supra. Rega has not met his burden to excuse the default of the instant claim. Therefore, he is not entitled to habeas review.
In this claim, Rega also argues that he could not adequately prepare all of his defenses for trial because the Information charged him with conduct that spanned a period of many months without identifying the dates on which that conduct occurred. He contends that without details of the alleged offenses he could not cross-examine the witnesses on contradictory aspects of their stories or the physical impossibility of their claims. He also contends that he could not present any alibi defenses without evidence of when the sex offenses occurred because no time frame was established beyond the Information's allegation that the offenses took place between May 1, 2000 and January 3, 2001. Finally, he contends that trial counsel was ineffective for failing to take steps to remedy this violation and that appellate counsel was ineffective for failing to raise this claim on direct appeal.
This claim is essentially the same as claim six apart from new factual allegations pertaining to the lack of specificity as to the sexual encounters with the victims. Like claim six, it too is procedurally defaulted.
The underlying substantive claim at issue, which is in effect a challenge to the sufficiency of the evidence, was raised in Rega's first PCRA petition in terms of ineffective assistance of trial and appellate counsel and it was rejected for the reasons stated in the discussion on the previous claim. Once again, he did not make the challenge he now makes until he raised it in its current form in his third PCRA petition. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1 at pp.8, 153-57); (Resp't Ex. WW, Pa. Super. Ct. Op. and Order, Nov. 18, 2011, ECF No. 46-1.) Because that petition was untimely, the claim is defaulted, and to the extent Rega relies on Martinez to demonstrate "cause" to excuse the procedural default, his argument fails for the reasons explained in Section III.D. of this Opinion.
Additionally, this claim is without merit because of trial counsel's "all or nothing" strategy that was discussed in claim six. Rega argues that his trial counsel was ineffective for employing this approach, but this ineffectiveness claim is defaulted because Rega did not make such challenge in the state courts. Once again, Rega cannot rely on Martinez to excuse the default of this ineffectiveness claim because any ineffectiveness in failing to raise it is attributed to him.
Because Rega has not met his burden to excuse the default of the instant claim the claim is denied and he is not entitled to habeas review.
In support of this claim, Rega states that he told trial counsel that the credibility of the victims could be impeached by asking them to describe Rega's genital abnormality and by then independently establishing the existence of that abnormality as a long term medical condition. According to Rega, even though trial counsel had medical records in his possession that supported this defense, and also obtained the trial court's permission for Rega to be examined by an independent medical doctor, counsel for Rega elicited evidence of Rega's genital abnormality at trial through the testimony of Deputy Sheriff Kurt Brudknock, who testified that he had knowledge of Rega's condition from having conducted strip searches on Rega.
Rega argues that trial counsel's decision to call a deputy sheriff to testify to the genital defect, rather than an independent medical expert, was deficient performance that stripped him of the presumption of innocence by revealing to the jury that he was in custody and subject to strip searches. Additionally, Rega argues that Deputy Brudknock did not have personal knowledge of the genital abnormality at the time of the charged sexual offenses, and, therefore, did not impeach the witnesses' credibility.
In his post-sentence motions, Rega argued that his trial counsel was ineffective by calling Deputy Brudknock to testify that he had unusually large testicles instead of calling Renee Rega/Edwards/Polippo, Rega's wife, and was further ineffective by failing to call one of his medical doctors. In ruling on this claim, the trial court explained trial counsel's strategy.
(Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at pp.20-22.) On direct appeal, Rega did not raise any issue related to his genital abnormality.
In his first PCRA petition, Rega argued that appellate counsel was ineffective for failing to argue that trial counsel's decision to call Deputy Brudknock as a witness for the defense violated his rights to a presumption of innocence and a fair trial. On appeal of the denial of that petition, the Pennsylvania Superior Court observed that
(Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at pp.18-19.)
A portion of this claim is procedurally defaulted; specifically, the issue of it being ineffective to call a witness who could not establish the size of Rega's testicles at the time of the offenses. This specific claim was not raised until Rega's third PCRA petition, which was untimely. Therefore, that aspect of this claim is procedurally defaulted, and Rega has not met his burden of excusing the default.
The two aspects of this claim that are not defaulted are Rega's contention that trial counsel was ineffective for calling Deputy Brudknock to testify as to his condition, and thus alerting the jury of his incarceration, and appellate counsel's ineffectiveness for failing to allege the same on appeal. These issues were raised for review and denied in Rega's first PCRA petition. They were appealed and also denied on the merits by the Pennsylvania Superior Court. Thus, these issues will be reviewed under the § 2254(d) standard.
Rega first argues that the state court's finding that trial counsel was not ineffective for having Deputy Brudknock testify as to the condition of Rega's genitals was "contrary to, or involved an unreasonable application of, clearly established Federal law". We disagree.
The "clearly established Federal law" in which to analyze Rega's ineffective assistance of counsel claim is governed by Strickland. Since the state court applied the Strickland analysis when it evaluated Rega's claim, there can be no question that its adjudication withstands review under the "contrary to" clause of § 2254(d)(1). See Williams, 529 U.S. 406 ("a run-of-the mill state-court decision applying the correct legal rule from [Supreme Court] cases [does] not fit comfortably within § 2254(d)(1)'s `contrary to' clause.")
In analyzing Rega's claim under the two-part test announced in Strickland, this Court must apply the standards set forth in section 2254(e) concerning the presumption of correctness applicable to state court factual findings. The question of effectiveness of counsel under Strickland is a mixed question of law and fact; it requires the application of a legal standard to the historical, fact determinations. Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996). In this regard, a state court's finding that counsel had a strategy is a finding of fact to which the presumption applies. Id. Likewise, a state court's determination that a decision was a tactical one is a question of fact. Id. A state court's determination of whether such a strategy or decision was reasonable, however, is a question of law. Id. See also McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir.) ("[A] state court's conclusion that counsel rendered effective assistance is not a finding of fact subject to deference by a federal court."), cert. denied, 510 U.S. 1028, 114 S.Ct. 645 (1993).
Here, the state courts identified the correct governing legal rule for ineffective assistance of counsel claims, Strickland, and reasonably applied it to the facts of Rega's case. The state courts found that trial counsel made a strategic decision to have Deputy Brudknock testify as to Rega's genital condition, as opposed to Rega's wife or through medical records belonging to the Department of Corrections. Rega has not shown that this strategy was unreasonable or prejudicial.
While Rega's current counsel references the fact that Rega's trial counsel was in possession of medical records that supported his defense, the record transcripts reveal that these medical records were property of the State Department of Corrections that did not exist until after Rega was incarcerated. This fact, which is conveniently appears to have been overlooked by Rega's current counsel, rebuts Rega's entire claim that Deputy Brudknock's testimony stripped away his presumption of innocence by revealing to the jury that Rega was in custody and subject to strip searches. If it is Rega's position that he was prejudiced by the Deputy's testimony because it implied that he was in custody then we fail to see how he would have been less prejudiced by trial counsel using Rega's medical records belonging to the Department of Corrections, which would have informed the jury that Rega was not just in custody but imprisoned. Taken as a whole and granting deference to the findings of the state courts, Rega has not met his burden of showing that trial counsel's performance was unreasonable. Because Rega fails to satisfy the first prong of Strickland, and Strickland requires that both prongs be met, there is no need to conduct a prejudice analysis under Strickland's second prong.
Therefore, Rega does not overcome the burden imposed by § 2254(d). Additionally, we find that appellate counsel was not ineffective for failing to raise this claim on appeal. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) ("There can be no Sixth Amendment deprivation of effective assistance of counsel based on an attorney's failure to raise a meritless argument.").
Finally, even though Rega's claim that trial counsel's performance was deficient for failing to call a witness who could not establish the size of his testicles at the time of the offenses is procedurally defaulted and barred from habeas review, we also find that counsel was not ineffective in this regard. There is no evidence in the record to suggest that a medical doctor could have established the essential point that Rega complains, that he was suffering from the genital abnormality at the time he was having sex with the victims. Therefore, even testimony from an independent medical examiner not affiliated with the Department of Corrections could not have impeached the victims' credibility as to this fact.
In sum, we do not see the prejudicial effect in trial counsel having Deputy Brudknock testify as opposed to an independent medical examiner or establishing the existence of such medical issue through Department of Corrections' medical records. Even though the Deputy was not capable of establishing that Rega was suffering from this genital abnormality during the time he was having sex with the victims, we find that trial counsel was not ineffective for calling him to testify. Thus, Rega would not be entitled to habeas relief on this claim even if it were not procedurally defaulted.
Rega argues that he was sentenced to a term of imprisonment that is grossly disproportionate to the offenses for which he was convicted — a minimum of 147 years to a maximum of 354 years — and that he is entitled to a new sentencing because this is a violation of the Eighth Amendment.
This claim is procedurally defaulted as Rega only made reference to "cruel and unusual punishment" with regard to the sentence he received in his post-sentence motion. (Resp't Ex. F, Post Sentence Mot., Feb. 5, 2004, ECF No. 29-2 at p.8, ¶13.) On direct appeal, Rega's challenge to his sentence only involved references to the Pennsylvania Sentencing Code and Guidelines. (Resp't Ex. N, Br. for Appellant, Oct. 13, 2004, ECF No. 32-1 at pp.46-53.) His sentencing claims were not presented or argued to the Pennsylvania Superior Court as Eighth Amendment or federal claims. When he finally raised this claim in its present form it was in his third PCRA petition and the PCRA court concluded that the claim was time-barred. (Resp't Ex. II, Third PCRA Pet., Mar. 26, 2009, ECF No. 38-1); (Resp't Ex. LL, C.P. Jefferson Co. Notice of Intention to Dismiss Third PCRA Pet., Sept. 10, 2010, ECF No. 39-2.)
The claim is denied as procedurally defaulted because Rega has not overcome the default by demonstrating the requisite showing.
The Eighth Amendment states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Punishment is deemed cruel and unusual not only when it is "inherently barbaric," but also when it is disproportionate to the crime for which it is imposed. Graham v. Florida, 560 U.S. 48, 59, (2010); see Weems v. United States, 217 U.S. 349, 367, (1910) (referring to the "precept of justice that punishment for crime should be graduated and proportioned to [the] offense").
A defendant may challenge the proportionality of a sentence under the Eighth Amendment under an "as-applied" challenge, like when a defendant contests the length of a certain term-of-years sentence as being disproportionate "given all the circumstances in a particular case." Graham, 560 U.S. at 59.
In the context of an as-applied challenge, the United States Supreme Court has explained that the "narrow proportionality principle" of the Eighth Amendment "does not require strict proportionality between crime and sentence," but "forbids only extreme sentences that are grossly disproportionate to the crime." Id. at 59-60 (quoting Harmelin v. Michigan, 501 U.S. 957, 997 (1991) (Kennedy, J., concurring)) (internal quotation marks omitted). Before an appellate court concludes that a sentence is grossly disproportionate based on an as-applied challenge, the court first must determine that a "threshold comparison" of the gravity of the offense and the severity of the sentence "leads to an inference of gross disproportionality." Id. (quoting Harmelin, 501 U.S. at 1005 (Kennedy, J., concurring)) (brackets omitted). In the "rare case" that a reviewing court concludes that such an inference may be drawn, the court is required to compare the defendant's sentence: (1) to sentences for other offenses in the same jurisdiction; and (2) to sentences for similar offenses in other jurisdictions. Id. If this extended analysis validates the threshold determination that the sentence is grossly disproportionate, the sentence is deemed "cruel and unusual" punishment under the Eighth Amendment. Id.
The Supreme Court has identified a term-of-years sentence as being grossly disproportionate on only one occasion. In Solem v. Helm, 463 U.S. 277 (1983), a recidivist defendant had been sentenced to life imprisonment without parole for passing a bad check in the amount of $100. In reviewing the defendant's Eighth Amendment challenge to his sentence, the Court identified the following "objective criteria" to be used in conducting a full proportionality analysis: (1) "the gravity of the offense and the harshness of the penalty;" (2) "the sentences imposed on other criminals in the same jurisdiction;" and (3) "the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. Because the bad check crime was "one of the most passive felonies a person could commit" and the punishment was "the most severe" non-capital sentence available, the Court inferred that the defendant's sentence was grossly disproportionate. Id. at 296-97. Accordingly, the Court conducted an extended proportionality review, engaging in a comparative analysis of other penalties and other jurisdictions, and concluded that the defendant's sentence was unconstitutional. Id. at 296-300.
Since the decision in Solem, no defendant before the Supreme Court has been successful in establishing even a threshold inference of gross disproportionality. See, e.g., Ewing v. California, 538 U.S. 11 (2003); Harmelin, 501 U.S. 957 (1991); Hutto v. Davis, 454 U.S. 370 (1982) (per curiam); Rummel v. Estelle, 445 U.S. 263 (1980). Notably, in Harmelin, the Court upheld a life sentence without parole for a first-time felon convicted of possession of 672 grams of cocaine. See Harmelin, 501 U.S. at 961, 996. Justice Kennedy, whose concurrence in Harmelin later was regarded as the "controlling opinion" in that case, Graham, 560 U.S. at 59-60, contrasted the "passive" check fraud in Solem with the "pernicious" drug offenses that "threaten[ ] to cause grave harm to society" by contributing to "violence, crime, and social displacement." Harmelin, 501 U.S. at 1002-03 (Kennedy, J., concurring).
In another as-applied proportionality challenge, the Supreme Court in Ewing reviewed a prison sentence of 25 years to life under California's "three strikes" statute, imposed for theft of $1200 in merchandise. 538 U.S. at 19-20. Employing its analysis from Solem, the Court observed that the theft crime was "certainly not `one of the most passive felonies a person could commit'" and could justify a prison sentence of between 25 years and life imprisonment. Ewing, 538 U.S. at 28 (plurality opinion) (quoting Solem, 463 U.S. at 296); see also Lockyer v. Andrade, 538 U.S. 63 (2003) (affirming, upon habeas review, a sentence under California's "three strikes" law of two consecutive terms of 25 years to life in prison for petty theft of videotapes worth about $150).
The United States Supreme Court has "emphasized the primacy of the legislature in setting sentences, the variety of legitimate penological schemes, the state-by-state diversity protected by our federal system, and the requirement that review be guided by objective, rather than subjective factors." Graham v. Florida, 560 U.S. 48, 87 (2010) (J., Roberts, concurring in judgment).
In this case, Rega was sentenced to the upper end of the standard range on each individual sentence, ordered to run consecutively. The trial court explained its reasons for imposing Rega's sentence as follows: (1) Rega was on state parole when he committed the offenses; (2) there were multiple offenses against four different victims; (3) he had a substantial criminal history and prior parole violations; (4) he showed a lack of concern and remorse; (5) he exploited girls of lower socio-economic status; (6) and consecutive sentences would deter other like-minded individuals. (Resp't Ex. P, Pa. Super Ct. Op. and Order Aug. 22, 2005, ECF No. 32-3 at pp.7-8) (citing Resp't Ex. E, Sentencing Tr., Jan. 28, 2004, ECF No. 29-1 at pp.165-66.) In addressing whether Rega's sentence was inappropriate under the sentencing guidelines, the Pennsylvania Superior Court, on direct appeal from his conviction and sentence, concluded that the trial court did not abuse its discretion in fashioning the sentences as it did "taking into account [Rega's] background and characteristics, the particular circumstances of his sexual offenses, the protection of the community, and the deterrence of other sexual offenders." (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-2 at p.8.)
Given the trial court's explanation for Rega's sentence, we can say for certain that this is not one of the "rare" cases where, based on Supreme Court precedent, a defendant's sentence would be considered grossly disproportionate to the crime of which he was convicted. Thus, Rega's sentence is not unconstitutional under the Eighth Amendment.
In this claim, Rega alleges that Susan Jones told the jury that Rega was involved in the Gateway Lodge homicide, a crime unrelated to the offenses for which he was being tried. He claims that trial counsel was ineffective when he moved for a mistrial but otherwise failed to object to this testimony, and also that the trial court erred by denying trial counsel's motion. In addition he claims that appellate counsel was ineffective for failing to raise this claim on direct appeal.
During Jones' cross-examination, the following exchange took place:
(Resp't Ex. D, Jury Trial Tr., May 5, 2003, ECF No. 28-2 at p.70.) At this point, trial counsel asked to approach the bench and requested a mistrial based on Jones' testimony. Id. at p.71. The motion was immediately denied; the judge stating, "She said she asked Rob about it. I'm going to deny it. That's denied. She didn't specifically say he was involved. Now be careful." Id.
Rega, in his post-sentence motion, claimed that the trial court committed reversible error in failing to grant the requested mistrial because Jones had implicated Rega in an unrelated homicide. (Resp't Ex. F, Post Sentene Mot., Feb. 5, 2004, ECF No. 29-2 at p.4.) In addressing this claim, the trial court stated:
(Resp't Ex. L, C.P. Jefferson Co. Op. and Order, June 29, 2004, ECF No. 31-1 at p.12.)
Appellate counsel attempted to raise this issue on direct appeal, but the Pennsylvania Superior Court deemed the issue waived by reason of appellate counsel's failure to set forth an adequate analysis. (Resp't Ex. P, Pa. Super. Ct. Op. and Order, Aug. 22, 2005, ECF No. 32-3 at p.15.) The court did, however, note that the trial court effectively disposed of the issue. Id.
The claim, again raised but this time in Rega's first PCRA petition, was reviewed by the Pennsylvania Superior Court who "reviewed the entire record" and "detect[ed] no basis upon which to disturb the initial ruling of the trial court that Jones' testimony did not reveal [Rega's] prior participation in or conviction for the homicide. Indeed, there was not even a hint of his culpability in the homicide." (Resp't Ex. CC, Pa. Super. Ct. Op. and Order, May 22, 2008, ECF No. 35-3 at p.17.) Thus, the court concluded that Rega had "failed to demonstrate any merit to the underlying issue upon which he based his . . . claim of ineffectiveness, and . . . discern[ed] no basis to disturb the conclusion of the trial court that no post conviction relief was due." Id.
Rega argues that "[b]y signaling to the jury that he had been involved in a homicide, Susan Jones succeeded in painting him as a dangerous felon[,]" and he was "undeniably . . . prejudiced by the disclosure of this information to the jury." (Pet'r Am. Pet. for Writ of Habeas Corpus, ECF No. 21 at p.138.) He claims that trial counsel's failure to object to Jones' testimony other than to unsuccessfully request a mistrial was deficient performance and appellate counsel was ineffective for failing to raise this issue on direct appeal. Id.
In this case, the last state court to have been presented with Rega's alleged trial court error claim was the Pennsylvania Superior Court when it ruled on the claim in Rega's first PCRA petition. In reviewing the claim, the court addressed the merits and did not rely on its previous finding that the claim had been waived due to inadequate briefing. Thus, we will review the claim on its merits under the § 2254(d) habeas standard.
It is clear that Rega has not met his burden of showing that the state court's denial of his trial court error claim for failing to grant a mistrial when, according to Rega, Jones implied that Rega was involved in an unrelated homicide, was an objectively unreasonable application of Supreme Court precedent, and therefore he is not entitled to habeas relief. Furthermore, he has not shown that if any error occurred that it was not harmless under the Brecht standard.
Similarly, we find that Rega has failed to demonstrate that the state court's ruling regarding trial and appellate counsel's effectiveness in relation to this claim was contrary to or an unreasonable application of Strickland. The Pennsylvania Superior Court determined there was no merit to his claims that counsel were ineffective for failing to litigate properly the trial court error claim because of the lack of merit in his underlying claim of trial court error. Thus, Rega could not have suffered any prejudice by their actions.
Finally, we agree with Respondent that it is unclear exactly what trial counsel is alleged to have done wrong. He requested a mistrial. While Rega claims that he "failed to otherwise object," he does not specify what sort of objection he should have raised in addition to objecting and asking for a mistrial. See Parrish v. Fulcomb, 150 F.3d 326, 327 (3d Cir. 1998) (counsel will not be deemed ineffective for failing to present an argument without merit). Habeas relief is therefore denied as to this claim.
Here, Rega asserts that all prior counsel were ineffective under the Strickland standard for failing to investigate and/or properly litigate the issues raised in the amended habeas petition. This claim is essentially Rega's attempt to overcome the procedural default of his claims by alleging that his counsels' ineffectiveness was the "cause" of his defaults; however, this claim too is procedurally defaulted.
"[F]or ineffective assistance of prior counsel to serve as `cause' to excuse a procedural default, habeas petitioners must first exhaust the ineffective assistance claim itself in state court, or show cause and prejudice for that failure to exhaust." Tome v. Stickman, 167 F.App'x 320, 325 (3d Cir. 2006) (citing Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)); Murray v. Carrier, 477 U.S. 478, 489 (1986) ("[A] claim of ineffective assistance," we said, generally must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.")
Here, Rega has not presented to the state courts each claim of ineffective assistance of counsel for failing to investigate and litigate each specific claim in his amended petition. Because he has not done so, these individual claims of ineffective assistance of counsel cannot serve as "cause" to excuse any procedural default. This claim is thus denied as procedurally barred from habeas review.
Rega argues that the cumulative effect of "all the instances of deficient performance by trial, appellate and PCRA counsel set forth in th[e] Amended Habeas Petition, considered in combination with the other legal errors and constitutional violations in this case, created a reasonable probability that the outcome of [his] trial could have been different and amounted to prejudice under the Sixth Amendment."
"The cumulative error doctrine allows a petitioner to present a standalone claim asserting the cumulative effect of errors at trial that so undermined the verdict as to constitute a denial of his constitutional right to due process." Collins v. Secretary of Pennsylvania Dept. of Corrections, 742 F.3d 528, 543 (3d Cir. —) (citing Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir. 2007)). In addressing cumulative error, the Third Circuit Court of Appeals has said that
Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) (internal quotation marks omitted) (citations omitted).
Brecht v. Abrahamson, 507 U.S. 619 (1993), is the standard for evaluating this claim because "`a cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.'" Albrecht, 471 F.3d at 468 (quoting Darks v. Mullin, 327 F.3d 1001, 1018 (10th Cir. 2003)).
We have not identified any single error, much less multiple errors that cumulatively would have resulted in actual prejudice sufficient enough to undermine the reliability of the jury's verdict. Simply put, Rega has not shown a sufficient probability that the jury would have considered him innocent but for the improper acts alleged in his amended habeas petition.
It is clear that most of the alleged improper acts Rega relies upon in support of his cumulative error claim all stem from his belief that Jones had a prior deal with the Commonwealth before she testified at his trial and that had this deal been disclosed to the jury then that would have discredited her credibility and he would most likely not have been convicted. Once again, there is no evidence that such deal existed, but nonetheless we fail to see the significance of Jones' testimony at Rega's trial. As both parties point out, the whole case was a credibility battle, and because of the lack of physical and forensic evidence in the case, the victims' testimony took center stage and ultimately convinced the jury of Rega's guilt. Thus, we do not see how the jury's decision would have been altered had Jones not testified.
Furthermore, even if, as Rega suggests, the whole case was based on a fabricated story concocted by Jones in an effort to curry favor with law enforcement, it is too big of a leap to infer that she had such power and influence over the victims so as to persuade them to go along with her plan specifically targeted at sending Rega to prison. This is particularly so given that all of the victims considered Rega to be a friend.
Absent whether a deal existed between Jones and the Commonwealth, (and Rega has not presented clear and convincing evidence that such deal did exist), just based on the fact that Jones had long-standing pending criminal charges for which she remained out of jail, the jury could have, and likely did, easily discern that Jones' cooperation with the Commonwealth was likely to be taken into consideration in the future.
We do not believe that the verdict was unreliable even considering all of the alleged violations identified by Rega, in the cumulative. Thus, Rega is not entitled to habeas relief on this claim.
In Rega's supplement to his amended habeas petition, he raises one additional claim, alleging that "trial counsel failed to investigate, develop and present extrinsic impeachment evidence related to the complaining witness's lack of credibility." (Supplement to Am. Pet. for Writ of Habeas Corpus, ECF No. 25 at p.2.) Specifically, counsel for Rega alleges that "[i]ndividuals in the community familiar with the complaining witnesses'[] reputations were available to defense counsel prior to trial, willing to speak with trial counsel and willing to testify at Mr. Rega's trial." Id. at p.3. Counsel states that he spoke to these individuals, namely Kendra Bigley, Elizabeth Dulavitch and Thomas Fenstermaker, and discovered "numerous sources of extrinsic impeachment evidence related to the complaining witnesses'[] lack of credibility." Id. at pp.3-4.
This claim is unexhausted because it was never raised in any proceeding prior to this one. Rega's counsel even admits as much in the supplemental petition. For that reason, and without hesitation, the claim is denied as procedurally defaulted.
Alternatively, Rega has not shown that the claim has merit. Rega's counsel submitted three affidavits to support his claim that counsel was ineffective for failing to investigate the credibility of the four victims.
Furthermore, even if such evidence was found to be admissible under Rule 404(a), which the Court does not think it would, it would almost certainly be barred by 18 Pa. C.S. § 3104, Pennsylvania's Rape Shield Law, which prohibits the defendant from introducing evidence of the alleged victim's past sexual conduct, including reputation evidence.
Rega has not shown that trial counsel was ineffective because the evidence he claims trial counsel failed to investigate and present at trial was (1) actually presented (Fenstermaker), (2) not relevant (Kendra Bigley), or (3) inadmissible under the Pennsylvania Rules of Evidence and Rape Shield Law (Elizabeth Dulavitch). For the aforementioned reasons, this claim is denied as procedurally barred and alternatively it is without merit.
The Court has given Rega the benefit of the doubt by addressing almost every one of his claims on the merits, even though most if not all of them were in some way procedurally defaulted and barred from habeas review. Rega has not demonstrated good cause and prejudice to excuse any of his defaulted claims, nor has he argued that manifest injustice would result by failing to consider his claims on the merits. Moreover, and quite importantly, by choosing to clearly and unequivocally waive his right to post-conviction counsel and represent himself in his first post-conviction proceedings, most of Rega's claims are defaulted by his own hand.
The Court has painstakingly reviewed the record in depth and in detail to the point of exhaustiveness. We have found nothing of concern, must less anything that would entitle Rega to habeas relief or further review by the Third Circuit Court of Appeals through the issuance of a Certificate of Appealability. See 28 U.S.C. § 2253(c) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."). Accordingly, a Certificate of Appealability will be denied. An appropriate Order will follow.
Id. at 1318. In addition to proving that one of those two situations applies, the petitioner "must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. With respect to what constitutes a "substantial" claim, the Court suggested, by citing Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificate of appealability to issue), that courts should apply the standard for issuance of a certificate of appealability.
36 A.3d at 161.
The second affidavit is submitted by Elizabeth Dulavitch, the daughter of Susan Jones. (Pet'r Supplement to Am. Pet. for Writ of Habeas Corpus, Aff. of Elizabeth Dulavitch, ECF No. 25-2 at pp.2-5.) However, the only pertinent personal information she relays about the victims' trustworthiness relates to a time where B.H. and D.W. called her parents and lied to them about why they were late. Id. at p.3. Elizabeth Dulavitch states that B.H. and D.W. told her parents that they had a flat tire but really they "were hanging out at a guy[`]s house that [B.H.] was sleeping with." Id. She also states that one time when she was with her boyfriend at her mother's house, she went to the bathroom and came back to find [B.H.] giving her boyfriend oral sex. When confronted about the situation, B.H. lied and said that nothing had happened. Id. at p.4.
The final affidavit is offered from Thomas Fenstermaker, who did actually testify at Rega's trial. (Pet'r Supplement to Am. Pet. for Writ of Habeas Corpus, Aff. of Thomas Fenstermaker, ECF No. 25-3 at pp.2-3.) The only relevant information in Fenstermaker's affidavit is that both [B.H.] and [D.W.] admitted to him that they lied about Rega doing anything to them and that [B.H.] said she did not know why she called the cops. Id. at p.3. However, Fenstermaker actually testified to this very fact at trial. (Resp't Ex. E, Jury Trial Tr., May 6, 2003, ECF No. 29-1 at pp.184-91.)
