Melo v. Giroux

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ALEXANDER MELO, : CIVIL NO. 3:15-CV-1272

Petitioner : (Judge Mannion)

v. :

NANCY A. GIROUX, :

Respondent :

MEMORANDUM

Petitioner, Alexander Melo (“Melo”) filed the instant petition for writ of

habeas corpus pursuant to 28 U.S.C. §2254 challenging a judgment and

conviction imposed in the Court of Common Pleas of York County,

Pennsylvania. (Doc. 1). For the reasons discussed below, the court will deny

the petition.

I. Factual and Procedural Background

The Pennsylvania Superior Court summarized the factual background

of this case as follows:

Melo met C.F., the mother of the M.F., the victim in this matter,

in a bar in October of 2004. Two weeks later, C.F. moved in with

Melo. At the time, M.F. and her siblings were in the physical

custody of their father (“Father”). However, starting in January of

2005, M.F. and her siblings began visiting with C.F. and Melo on

a more routine schedule every other week. In July of 2006 or

2007, C.F. broke up with Melo and moved out.

Several years later, Father confronted M.F. about a story he had

learned about from M.F.’s friend, S.B. Father was concerned that

the story indicated that Melo had raped M.F. Father also

confronted C.F. about the story. M.F.’s caseworker contacted

M.F. and indicated that the incident would be reported, and

Detective Pelaia of the Penn Township Police Department was

assigned to investigate the story.

During the investigation, M.F. revealed that during one of her

visits to Melo’s residence, Melo visited her at night while she was

sleeping. At the time, Melo was wearing boxer shorts and a T-

shirt. Melo proceeded to lay down beside M.F. in her bed, and

eventually maneuvered himself on top of her. M.F. asked Melo

to get off, to which Melo responded with a threat that if M.F.

struggled, C.F. would “get it worse,” while placing his hand over

M.F.’s mouth.

Melo held M.F.’s hands above her head with one hand and used

his other hand to pull down her shorts. Melo then laid back on

top of M.F. and inserted his penis into her vagina. Melo continued

to assault M.F. for no more than 10 minutes, and then departed

from M.F.’s room. Before leaving, Melo warned M.F. that if she

ever told anyone about the incident, she might not ever see her

mother again.

On August 5, 2009, Melo was charged with crimes arising from

this assault. On March 31, 2010, the Commonwealth filed a

motion in limine, seeking the introduction of Melo’s prior abuse

of C.F. Melo’s counsel filed a timely response, and a hearing on

the Commonwealth’s motion was held immediately prior to trial

on April 12, 2010. At the conclusion of the hearing, the trial court

granted the Commonwealth’s motion.

A four day jury trial ensued, which concluded with a verdict

finding Melo guilty of rape, statutory sexual assault, sexual

assault, indecent assault without consent, indecent assault

forcible compulsion, indecent assault person less than 16 years

of age, and corruption of minors. On June 4, 2010, the Sexual

Offender Assessment Board found that Melo did not meet the

criteria to be classified as a sexually violent predator. The trial

court subsequently imposed an aggregate sentence of not less

than 5 years to not more than 10 years imprisonment, with a

consecutive term of five years’ probation.

(Doc. 10-1 at 311-313, Commonwealth v. Melo, No. 1272 MDA 2010,

unpublished memorandum (Pa. Super. filed June 11, 2011)).

Following trial, Melo retained new counsel, Matthew R. Gover,

Esquire (“Attorney Gover”), and the trial court permitted Attorney

Kalasnik to withdraw as counsel. The trial court subsequently

sentenced Melo to serve an aggregate term of five to ten years

in prison. Attorney Gover timely filed a Notice of Appeal from

Melo’s judgment of sentence. On appeal, this Court affirmed the

judgment of sentence, after which the Supreme Court of

Pennsylvania denied allowance of appeal. See Commonwealth

v. Melo, 31 A.3d 747 (Pa. Super. 2011) (unpublished

memorandum), appeal denied, 30 A.3d 1192 (Pa. 2011).

In June 2012, Melo timely filed a pro se PCRA Petition.

Following the filing of the PCRA Petition, the PCRA court

appointed Melo counsel, Seamus Dubbs, Esquire (“PCRA

counsel”), who filed an Amended PCRA Petition. Following a

hearing held on June 27, 2013 (hereinafter referred to as “the

PCRA hearing”), the PCR court entered an Order on October 31,

2013, dismissing Melo’s PCRA Petition. In response, PCRA

counsel timely filed a Notice of Appeal and court-ordered

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of

on Appeal.

In April 2014, Melo filed with this Court an Application requesting

permission to proceed pro se on appeal, and for a remand for the

PCRA court to conduct a hearing pursuant to Commonwealth

v. Grazier, 713 A.2d 81 (Pa. 1998). This Court granted Melo’s

Application. After conducting a hearing (hereinafter referred to as

“the Grazier hearing”), the PCRA court granted Melo permission

to proceed pro se, finding that his decision was made knowingly,

intelligently and voluntarily.

On appeal, Melo presents the following issues for our review:

I. Was [Melo] denied due process of law during collateral

review of the judgment of sentence?

II. Did the [PCRA] court [] err[] when it found [that] trial

counsel [was] not ineffective for failing to request a missing

document instruction?

III. Did the [PCRA] court [] err[] when it found [that] trial

counsel [was] not ineffective [for] failing to object to

prejudicial testimony?

IV. Did the [PCRA] court [] err[] when it found [that] trial

counsel [was] not ineffective [for] failing to request [a jury]

instruction on prior inconsistent statements?

V. Was [Melo] denied due process when the [trial] court [] held

[that Melo’s] claim [concerning the lack of a] prior bad acts

instruction [was] waived?

(Doc. 10-1 at 527-528, Commonwealth v. Melo, No. 2161 MDA 2013, (Pa.

Super. 2015) (unpublished memorandum).

In a Memorandum Opinion dated January 22, 2015, the Pennsylvania

Superior Court affirmed the PCRA court’s dismissal of Melo’s PCRA petition.

(Doc. 10-1 at 533, Commonwealth v. Melo, No. 2161 MDA 2013 (Pa. Super.

2015) (unpublished memorandum). No petition for allowance of appeal to

the Supreme Court of Pennsylvania was filed.

Thereafter, Melo timely filed the instant petition pursuant to 28 U.S.C.

§2254.

II. 28 U.S.C. § 2254 Standards of Review

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

mechanism for a prisoner in custody pursuant to the judgment of a state court

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

411 U.S. 475, 498-99 (1973). 28 U.S.C. §2254, provides, in pertinent part:

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

district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment

of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United

States.

(b)(1) an application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that –

(A) the applicant has exhausted the remedies available in

the courts of the State;

...

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

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

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

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. §2254.

Section 2254 clearly sets limits on the power of a federal court to grant

an application for a writ of habeas corpus on behalf of a state prisoner.

Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d

402, 406 (3d Cir. 2014). A federal court may consider such a petition 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). By limiting habeas relief

to state conduct which violates “the Constitution or laws or treaties of the

United States,” §2254 places a high threshold on the courts.

Further, a federal habeas court may not consider a petitioner’s claims

of state law violations; review is limited to issues of federal law. See Estelle

v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law

questions.”); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may

not issue the writ on the basis of a perceived error of state law.”); Engle v.

Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state prisoner alleges no

deprivation of a federal right, §2254 is simply inapplicable.”).

III. Grounds For Relief

Melo seeks habeas relief on the following twelve claims:

1. Violation of the Fourteenth Amendment right to a fair trial where

the trial court erred in admitting evidence of prior abuse and said

evidence was not relevant and inadmissible under Pennsylvania

Rules of Evidence.

2. Collateral review counsel was ineffective for failure to address

the ineffectiveness of trial counsel.

3. Trial counsel was ineffective for failure to properly prepare for

trial and cross-examine witnesses.

4. Trial counsel was ineffective for failing to request a missing

witness instruction.

5. Trial counsel was ineffective for failing to object to and/or request

a mistrial for prosecutorial misconduct regarding Brady violation.

6. Trial counsel was ineffective for failing to request a missing

document instruction.

7. Trial counsel was ineffective for failing to object to the prejudicial

testimony by the victim’s mother.

8. Trial counsel was ineffective for failing to request instruction on

prior inconsistent statements.

9. Ineffective assistance of all prior counsel for failure to challenge

the sufficiency of evidence on the basis of unreliable testimony

and lack of a specified time.

10. All prior counsel was ineffective for failure to object to

prosecutorial misconduct and request a mistrial.

11. Trial counsel was ineffective for failure to object to the testimony

of Officer Pelaia.

12. Trial counsel was ineffective for failing to request a mistrial where

jury did not hear testimony which may have been significant.

(Doc. 1, petition).

Subsequent to the filing of his petition, Melo filed a supplement, raising

the following five issues:

I. Was Petitioner denied due process of law during collateral review

of the judgment of sentence?

II. Did the State Court err when it found trial counsel not ineffective

for failing to request a missing document instruction?

III. Did the State Court err when it found trial counsel not ineffective

in failing to object to prejudicial testimony?

IV. Did the State Court err when it found trial counsel not ineffective

in failing to request instruction on prior inconsistent statements?

V. Was Petitioner denied due process when the court below held

claim of prior bad acts instruction waived?

(Doc. 4, Supplement). These five issues were raised in Petitioner’s appeal

to the Pennsylvania Superior Court from the PCRA court’s dismissal of

Petitioner’s PCRA petition. (Doc. 10-1 at 526). The Superior Court found that

“[a]ll of Melo’s issues raise claims of ineffectiveness of counsel (although he

does not identify all of them as such in his Statement of Questions

Presented) and addressed them as such. Id. Accordingly, this Court will

address Petitioner’s supplemental claims as ineffective assistance of

counsel claims.

IV. Discussion

A. Exhaustion and Procedural Default

Absent unusual circumstances, a federal court should not entertain a

petition for writ of habeas corpus, unless the petitioner has first satisfied the

exhaustion requirement articulated in 28 U.S.C. §2254(b). Specifically,

habeas relief “shall not be granted unless it appears that . . . the applicant

has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§2254(b)(1)(A); see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

The exhaustion requirement is grounded on principles of comity to ensure

that state courts have the initial opportunity to review federal constitutional

challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d

Cir. 2000); Picard v. Connor, 404 U.S. 270, 275–76 (1971).

The habeas statute codifies this principle by requiring that a petitioner

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

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

“one complete round of the state’s established appellate review process,”

before bringing them in federal court. O’Sullivan, 526 U.S. at 845 (stating

“[b]ecause the exhaustion doctrine is designed to give the state courts a full

and fair opportunity to resolve federal constitutional claims before those

claims are presented to the federal courts, . . . state prisoners must give the

state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established review process.”);

see also Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard, 404 U.S. at

275 (1971); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). This

requires that the claim brought in federal court be the substantial equivalent

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

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

petitioner must present both “factual and legal substance” of claim to state

courts). Mere reliance of state and federal claims on the same constitutional

provision does not render the two claims substantially equivalent. See Brown

v. Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d

Cir. 1976). Both the legal theory and the facts on which a federal claim rests

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

Brown, 669 F.2d at 158–61.

“When a claim is not exhausted because it has not been ‘fairly

presented’ to the state courts, but state procedural rules bar the applicant

from seeking further relief in state courts, the exhaustion requirement is

satisfied because there is ‘an absence of available State corrective process.’

28 U.S.C. §2254(b). In such cases, however, applicants are considered to

have procedurally defaulted their claims and federal courts may not consider

the merits of such claims unless the applicant establishes ‘cause and

prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her

default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).”

McCandless, 172 F.3d at 260.

To demonstrate “cause” for a procedural default, a petitioner must

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

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

(1986). “Prejudice” will be satisfied only if he can demonstrate that the

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

a result of a violation of federal law. See Lockhart v. Fretwell, 506 U.S. 364,

366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation

has probably resulted in the conviction of one who is actually innocent,”

Murray, 477 U.S. at 496, then a federal court can excuse the procedural

default and review the claim in order to prevent a fundamental miscarriage

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

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

applies only in extraordinary cases, and actual innocence means factual

innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614,

623 (1998); Murray, 477 U.S. at 496. A petitioner establishes actual

innocence by asserting “new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

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

would have voted to find the petitioner guilty beyond a reasonable doubt.

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

1. Petitioner’s Claim 1 – Fourteenth Amendment Right to Fair Trial

Petitioner’s first claim for relief states a “violation of Fourteenth

Amendment right to a fair trial where trial court erred in admitting evidence

of prior abuse and said evidence was not relevant and inadmissible under

Pennsylvania Rules of Evidence.” (Doc. 1 at 3).

In his direct appeal brief, Petitioner devoted four pages to the issue

that the trial court abused its discretion in admitting “unduly prejudicial” prior

bad act testimony. (Doc. 10-1 at 250-254). In setting forth the rationale for

barring evidence of prior criminal activity, reciting the circumstances under

which such testimony can be admitted, and noting the prohibition on using

such evidence for impeachment purposes, he wholly relied on state case

law. Id. The words “due process” do not appear in the argument, there is no

reference to the Fourteenth Amendment, and neither the United States

Constitution, nor any judicial decision based on the federal Constitution, are

mentioned in either appellate brief. Id. And he acknowledges that “the Rules

prohibit any evidence regarding prior bad acts to be admitted for the purpose

of show[ing] action in conformity therewith.’ Pa. R.E. 404(b)(1).” (Doc. 10-1

at 250-254). Moreover, the state court understood the arguments concerning

this evidence to be based on the evidentiary principles set forth in Rules

404(b)(1) and (3) of the Pennsylvania Rules of Evidence and Pennsylvania

law. (Doc. 10-1 at 314-318).

If a petitioner wishes to claim that an evidentiary ruling at a state court

trial denied him due process, he must say so, not only in federal court, but in

state court. Duncan, 513 U.S. at 366. Because Petitioner failed to invoke the

federal due process guarantee in the state court proceedings, his current

federal due process claim was not fairly presented to the Pennsylvania

courts. There is no question that the Pennsylvania courts would not entertain

the claim at this juncture. Thus, the claim is procedurally defaulted. See

McCandless, 172 F.3d at 260. Petitioner does not allege cause or prejudice.

Nor does he allege that lack of review by this court will constitute a

fundamental miscarriage of justice. Consequently, habeas review of this

claim is foreclosed.

Additionally, ‘federal courts sitting in habeas do not review state courts’

application of state evidence law.’ Jones v. Cain, 600 F.3d 527 (5th Cir.

2010); Sawyer v. Smith, 497 U.S. 227, 239 (1990) quoting Dugger v. Adams,

489 U.S. 401, 409 (1989) (finding that federal courts have decided that “the

availability of a claim under state law does not of itself establish that a claim

was available under the United States Constitution”).

2. Petitioner’s Claims 2-5, 9-12 – Ineffective Assistance of Counsel

Respondent contends that several of Petitioner’s claims are waived as

Petitioner has failed to exhaust these claims and they are now procedurally

defaulted as Petitioner would not be able to raise them in state court. (Doc.

10 at 11). The Court agrees.

A review of the record reveals that the following claims have not been

properly exhausted through state court review:

-Ineffective assistance of PCRA counsel.

-Ineffective assistance of trial counsel for failing to properly

prepare for trial and cross-examine witnesses.

-Ineffective assistance of trial counsel for failing to object and/or

request a mistrial based for prosecutorial misconduct regarding

Brady violation.

-Ineffective assistance for failing to request a missing witness

instruction.

-Ineffective assistance of all prior counsel for not objecting to

statements made by the prosecutor concerning the date

Petitioner raped the victim and not requesting a mistrial.

-Ineffective assistance of all prior counsel for failure to challenge

the sufficiency of evidence on the basis of unreliable testimony

and lack of a specified time.

-All prior counsel was ineffective for failure to object to

prosecutorial misconduct and request a mistrial.

-Ineffective assistance of trial counsel for not objecting to the

testimony of Officer Pelaia.

-Ineffective assistance of trial counsel not requesting a mistrial

based on evidence that the jury did not hear.

Petitioner raised the issue of his PCRA counsel’s ineffectiveness for

the first time on his appeal from the denial of his PCRA. The remaining issues

were raised for the first time in Petitioner’s instant federal habeas petition.

Accordingly, the state courts have not had an opportunity to review these

claims. Therefore, these claims have not been properly exhausted. There is

no question that the Pennsylvania courts would not entertain the claims at

this juncture. Consequently, the claims are procedurally defaulted. See

McCandless, 172 F.3d at 260.

Petitioner acknowledges that the instant claims have never been

presented to any court for review. (Doc. 13). However, he seeks to raise

them under the narrow exception to procedural default, announced by the

Supreme Court in Martinez v. Ryan, 566 U.S. 1 (2012). Id.

Martinez recognized a “narrow exception” to the general rule that

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

procedural default, holding, “[i]nadequate assistance of counsel at initial-

review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9.

To successfully invoke the Martinez exception, a petitioner must satisfy two

factors: that the underlying, otherwise defaulted, claim of ineffective

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

id. at 14; and that petitioner had “no counsel” or “ineffective” counsel during

the initial phase of the state collateral review proceeding. Id. at 17; see also

Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014). Both prongs of Martinez

implicate the controlling standard for ineffectiveness claims first stated in

Strickland v. Washington: (1) that counsel's performance was deficient; and

(2) the deficient performance prejudiced the defense. 466 U.S. 668, 687

(1984).

Petitioner’s claim of PCRA counsel ineffectiveness cannot establish

cause under Martinez because it is, itself, procedurally defaulted. Petitioner

alleged that PCRA counsel was ineffective in PCRA proceedings, and the

Superior Court found this claim waived pursuant to independent and

adequate state rules. The Superior Court found Petitioner’s claim that PCRA

counsel was ineffective for failing to raise trial counsel’s ineffectiveness

waived because Petitioner “never raised his claim of PCRA counsel’s

ineffectiveness prior to the dismissal of his PCRA petition and PCRA

counsel’s filing of a Notice of Appeal and Rule 1925(b) Concise Statement

on Melo’s behalf.” (Doc. 10-1 at 530). Thus, Petitioner improperly raised it

for the first time on appeal. See, e.g., Smith v. DiGuglielmo, No. 06-2918,

2018 WL 1740528, at *7 (E.D. Pa. Apr. 10, 2018) (rule that PCRA counsel

ineffectiveness claim cannot be raised for the first time on appeal is

independent and adequate). Because Petitioner’s PCRA counsel

ineffectiveness claim is procedurally defaulted, it cannot serve as cause. See

Edwards, 529 U.S. at 450-54; Evans v. Garman, No. 20-0811, 2022 WL

452409 at *2 (M.D. Pa. Feb. 14, 2022) (finding that petitioner failed to

establish cause under Martinez when his PCRA counsel ineffectiveness

claim was procedurally defaulted); Turner v. Coleman, No. 13-1787, 2016

WL 3999837, at *10 (W.D. Pa. July 26, 2016) (petitioner failed to establish

cause under Martinez when PCRA counsel ineffectiveness claim was

procedurally defaulted); Galloway v. Wenerowicz, No. 13-956, 2016 WL

2894476, at *10 (W.D. Pa. Apr. 20, 2016), report and recommendation

adopted, No. 13-956, 2016 WL 2866765 (W.D. Pa. May 17, 2016) (same).

Accordingly, the Court will deny Petitioner’s unexhausted claims of trial

counsel ineffectiveness as procedurally defaulted because Petitioner failed

to establish cause for the procedural default.

B. Merits of Federal Claims

As set forth supra, under the AEDPA, federal courts reviewing a state

prisoner’s application for a writ of habeas corpus may not grant relief “with

respect to any claim that was adjudicated on the merits in State court

proceedings” unless the claim (1) “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States” or (2)

“resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. §2254(d). “In considering a §2254 petition, we review the ‘last

reasoned decision’ of the state courts on the petitioner’s claims.” Simmons

v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (citing Bond v. Beard, 539

F.3d 256, 289–90 (3d Cir. 2008) ). Thus, “[w]e review the appellate court

decision, not the trial court decision, as long as the appellate court ‘issued a

judgment, with explanation, binding on the parties before it’.” Burnside v.

Wenerowicz, 525 F. App’x 135, 138 (3d Cir. 2013). However, when the

highest state court that considered the claim does not issue a reasoned

opinion, we “look through” that decision to the last reasoned opinion of the

state courts, and we apply a rebuttable presumption that the higher court

adopted the same reasoning as that set forth by the lower court. Wilson v.

Sellers, 138 S. Ct. 1188, 1192 (2018).

“[B]ecause the purpose of AEDPA is to ensure that federal habeas

relief functions as a guard against extreme malfunctions in the state criminal

justice systems, and not as a means of error correction,” Greene v. Fisher,

565 U.S. 34, 38 (2011) (internal quotations and citations omitted), “[t]his is a

difficult to meet and highly deferential standard . . . which demands that state-

court decisions be given the benefit of the doubt.” Cullen, 563 U.S. at

181(internal quotation marks and citation omitted). The burden is on Petition

to prove entitlement to the writ. Id.

A decision is “contrary to” federal law if “the state court applies a rule

that contradicts the governing law set forth in [Supreme Court] cases” or “if

the state court confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless arrives at a result

different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362,

405-06 (2000).

“[A] state court decision reflects an ‘unreasonable application of such

law’ only ‘where there is no possibility fairminded jurists could disagree that

the state court’s decision conflicts with [the Supreme] Court’s precedents,’ a

standard the Supreme Court has advised is ‘difficult to meet’ because it was

‘meant to be.’ [Harrison v.] Richter, 562 U.S. 86, [ ] 102, 131 S.Ct. 770. As

the Supreme Court has cautioned, an ‘unreasonable application of federal

law is different from an incorrect application of federal law,’ Richter, 562 U.S.

at 101, 131 S.Ct. 770 (quoting Williams, 529 U.S. at 410, 120 S.Ct. 1495),

and whether we ‘conclude[ ] in [our] independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly’ is irrelevant, as AEDPA sets a higher bar. Williams, 529 U.S. at

411, 120 S.Ct. 1495.” Mathias v. Superintendent Frackville SCI, 876 F.3d

462, 476 (3d Cir. 2017). A decision is based on an “unreasonable

determination of the facts” if the state court’s factual findings are objectively

unreasonable in light of the evidence presented to the state court. Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003).

Finally, Section 2254(e) provides that “[i]n a proceeding instituted by

an application for a writ of habeas corpus by a person in custody pursuant to

the judgment of a State court, a determination of a factual issue shall be

presumed to be correct. The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28 U.S.C.

§2254(e)(1).

C. Ineffective Assistance of Counsel

Petitioner raises a multitude of ineffective assistance of counsel claims.

The clearly established ineffective assistance of counsel standard as

determined by the Supreme Court of the United States is as follows:

Ineffective assistance of counsel claims are “governed by the

familiar two-prong test set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Shelton v.

Carroll, 464 F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith,

539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For

AEDPA purposes, the Strickland test qualifies as “clearly

established Federal law, as determined by the Supreme Court.”

Williams, 529 U.S. at 391, 120 S.Ct. 1495. Under Strickland, a

habeas petitioner must demonstrate that: (1) counsel’s

representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that,

but for counsel’s error, the result would have been different. 466

U.S. at 687, 104 S.Ct. 2052. For the deficient performance prong,

“[t]he proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” Id. at 688,

104 S.Ct. 2052. This review is deferential:

A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s

challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable

professional assistance....

Id. at 689, 104 S.Ct. 2052

Not every “error by counsel, even if professionally

unreasonable, ... warrant[s] setting aside the judgment

of a criminal proceeding.” Id. at 691, 104 S.Ct. 2052.

“Even if a defendant shows that particular errors of

counsel were unreasonable, ... the defendant must show

that they actually had an adverse effect on the defense”;

in other words, the habeas petitioner must show that he

was prejudiced by counsel’s deficient performance. Id.

at 693, 104 S.Ct. 2052. To establish prejudice, “[t]he

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.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694, 104

S.Ct. 2052.

In assessing an ineffective assistance of counsel claim, “the

ultimate focus of inquiry must be on the fundamental fairness of

the proceeding.... In every case the court should be concerned

with whether ... the result of the particular proceeding is

unreliable because of a breakdown in the adversarial process

that our system counts on to produce just results.” Id. at 696, 104

S.Ct. 2052.

Rainey v. Varner, 603 F.3d 189, 197–98 (3d Cir. 2010).

When the state court has decided the claim on the merits, “[t]he

question ‘is not whether a federal court believes the state court’s

determination’ under the Strickland standard ‘was incorrect but whether that

determination was unreasonable—a substantially higher threshold’.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.

Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard

is a general standard, a state court has even more latitude to reasonably

determine that a defendant has not satisfied that standard.” Id.

The Superior Court stated that the proper standard governing

ineffective assistance of counsel claims requires “petitioner pleads and

proves all of the following (1) the underlying legal claim is of arguable merit;

(2) counsel’s action or inaction lacked any objectively reasonable basis

designed to effectuate his client’s interest; and (3) prejudice, to the effect that

there was a reasonable probability of a difference outcome if not for

counsel’s error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super.

2010).” (Doc. 10-1, p. 4). The Third Circuit has specifically held that the very

ineffectiveness assistance of counsel test relied upon by the Superior Court

in this matter is not contrary to the Supreme Court’s Strickland standard. See

Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Thus, we find that the

Superior Court’s decision is not contrary to Strickland.

Below, we consider whether the state courts’ disposition of Petitioner’s

exhausted ineffective assistance of counsel claims involved an

unreasonable application of Strickland or resulted in a decision based on an

unreasonable determination of the facts in light of the evidence presented in

the state courts.

a. Trial counsel was ineffective for failing to request a

missing document instruction.

Petitioner claims that “[t]he alleged notebook was central to the

Prosecutions’ case in this matter, since the only individuals who seen the

entry alleging the incident was the victim and non-testifying witness Michael

J. Figlioli,” and “[w]ith this being a circumstantial case resting on the

credibility of the evidence presented, not to request a missing document

instruction under these circumstances was unreasonable and could not have

been a tactical decision to effectuate Petitioner’s best interest.” (Doc. 1 at

17).

The Superior Court, agreed with PCRA court’s sound rationale and

determination and adopted the PCRA court’s decision as its own. (Doc. 10-

1 at 531). The PCRA court found the following:

At the June 27, 2013 hearing, the Defendant opined that there

was no missing document instruction; however, the Defendant

went on to testify that he remembered Attorney Kalasnik crossing

witnesses about the notebook and calling the notebook’s

existence into doubt during closing. In describing the notebook,

Attorney Kalasnik said that it supposedly claimed relevant

information and that, while the notebook was never produced,

the victim’s father and friends were supposed to have knowledge

of the notebook and they testified. Attorney Kalasnik generally

recalled inconsistency between witnesses as to what information

the notebook contained and he was also satisfied with how he

addressed the notebook on cross. Attorney Kalasnik also

testified on direct that he does not believe a missing document

instruction would have helped because the defense was unable

to produce sufficient reasons for the jury to disbelieve the

accuser. However, on cross, Attorney Kalasnik stated that it

could have helped if a missing document instruction were to have

been given.

It seems axiomatic that the claim underlying the ineffectiveness

claim has arguable merit as to a missing document instruction

because the document and its absence seem to have instigated

a lot of questioning and closing remarks. The second prong of

the ineffectiveness standard, whether counsels’ actions lacked

any reasonable basis, is less sure.

We are instructed to determine whether “’an alternative not

chosen offered a potential for success substantially greater than

the course actually pursued.’” Cox at 678. Here, would having

had the missing document instruction have proven substantially

more successful than not having the jury hear such an

instruction? Attorney Kalasnik testified that neither he nor the

Defendant could produce sufficient evidence to discredit the

accuser and that fact, not a lack of the missing witness

instruction, was the real problem the Defendant faced. It seems

to this Court as though any gain from the missing document

instruction would have been minimal at best. As such, it does not

appear as though Attorney Kalasnik’s action lacked any

reasonable basis. The chosen course of not requesting the

instruction does not show Attorney Kalasnik to have been

ineffective. If however, Attorney Kalasnik’s actions were

unreasonable, we proceed to the third prong of the

ineffectiveness standard.

The third prong asks whether counsel’s actions resulted in

prejudice to the petitioner. Again, “[p]rejudice in the context of

ineffective assistance of counsel means demonstrating that there

is a reasonable probability that, but for counsel’s error, the

outcome of the proceeding would have been different.” Pierce at

213. The jury heard defense counsel call the contents and very

existence of the notebook into question repeatedly during cross

and in his closing. The jury was on notice that the fidelity and

existence of the notebook was questioned by the Defendant. It

does not follow that there is a reasonable probability that the

outcome of the proceedings would have been different had the

missing document instruction been given. This Court finds that

the Defendant did not demonstrate that counsel’s actions

resulted in prejudice. Attorney Kalasnik was not ineffective for

not requesting the missing document instruction.

(Doc. 10-1 at 385-387) (emphasis in original).

It is evident that the PCRA court reviewed counsel’s actions and

concluded that Petitioner’s claim lacked arguable merit. The decision is a

reasonable application of the arguable merit prong of Strickland and

constitutes an objectively reasonable determination of the facts in light of the

evidence presented to the state court. Petitioner is not entitled to relief on

this claim.

b. Trial counsel was ineffective for failing to object to

prejudicial testimony by the victim’s mother.

Petitioner claims that trial counsel was ineffective for failing to “object

to the prejudicial prior bad act testimony of Christian Figlioli regarding alleged

abuse committed by [Petitioner], in violation of the trial court’s prohibition

against such testimony.” (Doc. 1 at 18).

The Superior Court again adopted the PCRA court’s “rationale and

determination” (Doc. 10-1 at 532), which found the following:

The second issue that must be dealt with is whether Attorney

Kalasnik was ineffective for not having objected to Christian

Figlioli’s testimony regarding abuse she suffered at the hands of

the Defendant, which went beyond the Court’s prohibition on

such testimony.

During the June 27, 2013 hearing, the Defendant stated that he

could not recall whether counsel discussed with him the propriety

of admitting Christian Figlioli’s testimony that the Defendant had

once pinned her to a wall by her neck. The Defendant did not

remember Attorney Kalasnik asking Christian Figlioli, the

Defendant’s ex-girlfriend and the accuser’s mother, questions

about the Defendant that were designed to impeach Christian.

Specifically, Attorney Kalasnik testified that he queried Christian

as to why she never followed up to the police regarding the

Defendant’s alleged abuse of her. Moreover, Attorney Kalasnik

accused Christian of improper motives by suggesting she tried to

extort money from the Defendant and that Christian was angry at

having been kicked out of the Defendant’s home. Attorney

Kalasnik could not recall why he did not object to the choking

incident allegations coming in, which violated a judicial order that

only prior bad acts the victim had witnessed were to come in.

That said, Attorney Kalasnik stated that it is sometimes best to

not object so as not to draw attention to adverse information and

that at a later point he attempted to diminish the alleged assault.

There is no doubt that the claim underlying the ineffectiveness

claim has arguable merit as to the alleged choking incident

because that occurrence was to have been kept out by order of

the Court. The second prong of the ineffectiveness standard,

whether counsel’s actions lacked any reasonable basis, is

absent here. Again, we are instruction to determine whether “’an

alternative not chosen offered a potential for success

substantially greater than the course actually pursued.’” Cox, 983

A.2d 666, 678 (Pa. 2009). Here, the objectionable testimony was

stated in open court and in violation of the preexisting moratorium

established by the Court. In commonly used court vernacular,

testimony once uttered before a jury is akin to a bell, which

cannot be unrung. The Court is compelled to ask what an

objection would have accomplished. Short of a mistrial, the jury

could only have been ordered that the testimony was stricken

and not to be considered. Attorney Kalasnik’s testimony that it is

sometimes best to let harmful statements to and to minimize

them later is a course of action that this Court finds is equally

likely, or better, of succeeding than asking for a curative

instruction. As to this charge, it does not appear as though

Attorney Kalasnik’s actions lacked any reasonable basis. The

chosen course of not objecting does not demonstrate that

Attorney Kalasnik was ineffective. If, however, Attorney

Kalasnik’s actions were unreasonable, we proceed to the third

prong of the ineffectiveness standard.

The third prong requires the petitioner to demonstrate that

counsel’s actions resulted in prejudice to petitioner. Again,

“[p]rejudice in the context of ineffective assistance of counsel

means demonstrating that there is a reasonable probability that,

but for counsel’s error, the outcome of the proceeding would

have been different.” Pierce, 786 A.2d 203, 213 (Pa. 2001). The

jury heard defense counsel question the veracity of Christian’s

account of the alleged assault and accuse her of improper

motives on cross. The jury heard a stronger rebuke of the

testimony from Attorney Kalasnik than what the Court could have

offered following an objection. It, therefore, does not follow that

there is a reasonable probability that the outcome of the

proceedings would have been different had the [prejudicial

testimony] instruction been given. This Court finds that Attorney

Kalasnik was not ineffective for failing to object to Christian

Figlioli’s testimony regarding incidents of abuse.

(Doc. 10-1 at 387-389).

The state court reasonably applied the Strickland standard in finding

that counsel’s strategy was reasonably calculated to advance Petitioner’s

interests, and the underlying claim lacked arguable merit. Petitioner is not

entitled to relief on this claim.

c. Trial counsel was ineffective for failing to request prior

inconsistent statements instruction.

Petitioner claims that “[t]he statements given by the victim in this matter

were continuously inconsistent,” in that the victim’s statement initially alleged

the incident “occurred two years prior” and “[i]n a subsequent statement, it

was to have occurred three years prior” and then “at the preliminary hearing

it was to have occurred four years prior.” (Doc. 1 at 19).

Finding that the PCRA court’s rationale and determination was

“supported by the record,” the Pennsylvania Superior Court agreed and

affirmed on the PCRA court’s findings, which are as follows:

In the hearing on June 27, 2013, the Defendant stated that he

had no memory of prior inconsistent statements of the victim

being raised at trial or on appeal. Attorney Kalasnik testified that

he had told the Defendant that this was a he-said-she-said case

in which the defense had to give the jury a reason to believe the

victim and her parents’ credibility. To that end, Attorney Kalasnik

urged the Defendant to wrack his brain for reasons why the victim

or her parents would accuse him. Attorney Kalasnik also testified

that he could not remember is the Court gave witness credibility

or inconsistent statements instructions. A review of the trial

transcript reveals that the Court did give a witness credibility

instruction. (N.T., 4/14/10 at 359).

Attorney Kalasnik’s June 27, 2013 testimony included that the

jury, at one point came back deadlocked. Perhaps the instruction

the Defendant believes should have been requested would have

aided the defense in such a close call situation. As such, it seems

that the claim underlying the ineffectiveness claim has arguable

merit as to not requesting an instruction on prior inconsistent

statements by the victim. The second prong of the

ineffectiveness standard, whether counsel’s actions lacked any

reasonable basis, is less sure. We are instructed to determine

whether “’an alternative not chosen offered a potential for

success substantially greater than the course actually pursued.’”

Cox, 983 A.2d 666, 678 (Pa. 2009). Here, would having had the

prior inconsistent statements instructions have proven

substantially more successful than not having the jury hear such

an instruction? The Court gave the standard witness credibility

instruction. When combined with Attorney Kalasnik’s cross of the

victim and closing statement, the jury was well aware that the

victim’s testimony was in question. And, ultimately, the point of a

prior inconsistent statements instruction is to highlight witness

credibility. Any gain from a prior inconsistent statements

instruction would have been small and certainly would not have

risen to the level of a substantially greater potential for success.

As such, it does not appear as though Attorney Kalasnik’s

actions lacked any reasonable basis. The chosen course of not

requesting the instruction does not show Attorney Kalasnik to

have been ineffective. If, however, Attorney Kalasnik’s actions

were unreasonable, we proceed to the third prong of the

ineffectiveness standard.

The third prong asks whether counsel’s actions resulted in

prejudice to the petitioner. Again, “[p]rejudice in the context of

ineffective assistance of counsel means demonstrating that there

is a reasonable probability that, but for counsel’s error, the

outcome of the proceeding would have been different.” Pierce at

213. The jury heard defense counsel cross the victim and make

a closing argument premised upon perceived inconsistencies.

The jury was aware that the victim’s statements were in question.

It does not follow that there is a reasonable probability that the

outcome of the proceedings would have been different had the

prior inconsistent statements instruction been given. This Court

finds that the Defendant did not demonstrate that counsel’s

actions resulted in prejudice. Attorney Kalasnik was not

ineffective for not requesting the [prior inconsistent statements]

instruction.

(Doc. 10-1 at 392-394).

This Court finds that the state court reasonably applied the Strickland

standard in finding that trial counsel had a reasonable basis for not asking

for a specific instruction on inconsistent statements and thus, finding the

underlying claim lacked arguable merit. Petitioner is not entitled to relief on

this claim.

V. Conclusion

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

pursuant to 28 U.S.C. §2254 will be denied.

VI. Certificate of Appealability

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

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

order in a proceeding under 28 U.S.C. §2254. A COA may issue only if the

applicant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. §2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

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

presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322 (2003). Petitioner fails to demonstrate that

a COA should issue.

The denial of a certificate of appealability does not prevent Petitioner

from appealing the Order denying his petition so long as he seeks, and

obtains, a certificate of appealability from the Third Circuit Court of Appeals.

See Fed. R. App. P. 22(b)(1).

A separate Order will enter.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 27, 2022

15-1272-01