Riojas v. Gurman

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUAN PABLO RIOJAS, : Civil No. 3:20-CV-00202

:

Petitioner, :

:

v. :

:

MARK GURMAN, et al., :

:

Respondents. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is a petition for habeas corpus pursuant to 28 U.S.C. § 2254

filed by Juan Pablo Riojas. (Doc. 1.) For the reasons set forth below, the court

will dismiss the petition.

PROCEDURAL HISTORY

Juan Pablo Riojas (“Petitioner”) is a self-represented litigant who filed a

petition for writ of habeas corpus seeking relief from his state court judgment with

this court in February of 2020. (Doc. 1.) Petitioner was released from the State

Correctional Institute in Mercer in May of 2022. (Doc. 13.)

The procedural history of Petitioner’s state criminal convictions and

subsequent appeals are properly summarized in the memorandum entered by the

Court of Common Pleas of Franklin County on August 22, 2019. (Doc. 11-2, pp.

16–22.)1 The court will provide the following brief summary: Petitioner was found

1 For ease of reference the court utilizes the page numbers from the CM/ECF header.

guilty of two counts of rape, one count of false imprisonment, one count of

terroristic threats, one count of simple assault, and one count of intimidation of a

witness on March 4, 2014, following a jury trial. (Id., p. 21.) Petitioner filed a

post-sentence motion, which was denied by the state court. (Id.) Petitioner then

filed a direct appeal challenging the admission of the Commonwealth’s expert

witness, the admission of prior bad acts testimony, the trial court’s denial of his

motion for judgment of acquittal, the trial court’s granting of the Commonwealth’s

motion to quash, the trial court’s denial of a defense DNA expert, and the court’s

denial of Appellant’s motion for continuance of trial due to the absence of a

necessary witness. (Doc. 11-2, p. 21.) On September 7, 2016, the Superior Court

affirmed the judgment of sentence. (Doc. 11-2, pp. 21–22); Commonwealth v.

Riojas, 158 A.3d 169, 2016 WL 5940424 (Pa. Super. Sep. 7, 2016).

On August 9, 2018, Plaintiff filed a PCRA petition raising sixteen issues.

Commonwealth v. Riojas, 1530 MDA 2018, 2019 WL 3969507 (Pa. Super. Aug.

22, 2019.) On July 19, 2018, the PCRA court issued an opinion detailing why

none of Petitioner’s sixteen issues entitled him to relief. Id. Petitioner timely filed

a notice of appeal and filed a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal raising three new issues. Id. These three issues were

dismissed by the PCRA court, finding two to be factually inaccurate and the third

to be waived for failure to raise the claim in response to its 907 notice. Id.

Plaintiff then filed an appeal addressing three issues: (1) the dismissal of his

PCRA petition as untimely; (2) the requirement to file under the sex offender

registration and notification act (SORNA); and (3) ineffective assistance of

counsel. (Doc. 12-2, pp. 23–40.) The Superior Court detailed that Plaintiff’s

PCRA petition was not dismissed as untimely, but fully adjudicated. (Id., p. 24.)

The SORNA challenge was deemed to be waived because it was not raised before

the PCRA court. (Id., pp. 24–25.) The Superior Court found Petitioner’s claims of

ineffective assistance of counsel to lack merit. (Id., pp. 25–40.)

Petitioner filed the instant habeas corpus action raising four issues under the

Fourteenth Amendment: (1) that the Court of Common Pleas erred when it

admitted Dr. Valliere as an expert; (2) that the Court of Common Pleas erred when

it permitted the victim to testify about Petitioner’s prior bad acts; (3) that the Court

of Common Pleas erred when it denied his sufficiency of the evidence claims with

regard to the rape by forcible compulsion and false imprisonment counts; and (4)

that the Court of Common Pleas erred when it denied his motion for continuance in

order to procure the testimony of a “necessary defense witness.” (Doc. 1.)

Petitioner also alleges that he did not receive effective assistance of counsel. (Id.)

Finally, Petitioner claims that his sentence requiring him to register as a sexual

offender under Pennsylvania SORNA is illegal and violates the ex post facto clause

of the United States Constitution. (Id.)

VENUE

Under 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus under

Section 2254 can be filed in either the district where the petitioner is in custody, or

in the district where the petitioner was convicted and sentenced. 28 U.S.C. §

2241(d). Plaintiff was convicted and sentenced in Franklin County, Pennsylvania,

which is located in this district.

STANDARD OF REVIEW

Habeas corpus is an “‘extraordinary remedy’ reserved for defendants who

were ‘grievously wronged’ by the criminal proceedings.” See Dunn v. Colleran,

247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 414,

146 (1998)). The exercise of restraint by a federal court in reviewing and granting

habeas relief is appropriate due to considerations of comity and federalism. See

Engle v. Isaac, 456 U.S. 107 (1982). “The States possess primary authority for

defining and enforcing the criminal law. In criminal trials they also hold the initial

responsibility for vindicating constitutional rights. Federal intrusions into state

criminal trials frustrate both the States’ sovereign power and their good-faith

attempts to honor constitutional law.” Id. States also have a recognized interest in

the finality of convictions that have survived direct review within the state court

system. See Brecht v. Abrahamson, 507 U.S. 619, 620 (1993).

A district court may entertain an application for a writ of habeas corpus filed

by a person in state custody “only on the ground that he is in custody in violation

of the Constitution or laws of the United States.” 28 U.S.C. § 2254(a). If a claim

presented in a § 2254 petition has been adjudicated on the merits in state court

proceedings, habeas relief cannot be granted unless:

the adjudication of the claim – (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly

established [f]ederal 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.

Id. § 2254(d).

DISCUSSION

A. Petitioner’s SORNA Claim is Procedurally Defaulted, but the

Remaining Grounds for Relief Have Been Exhausted in the State

Courts.

The court must first determine whether Petitioner’s grounds for relief

presented in his § 2254 petition have been exhausted in the state courts and, if not,

whether circumstances exist to excuse Petitioner’s procedural default of his claims.

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

for writ of habeas corpus unless the petitioner has satisfied the exhaustion

requirement articulated in 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will

not be deemed to have exhausted his available state remedies if he had the right

under the law of the state to raise, by any available procedure, the question

presented. See O’Sullivan v. Boerckel, 526 U.S. 838, (1999). A petitioner may

exhaust a federal claim either by raising it on direct appeal or presenting it in post-

conviction PCRA proceedings. See id. at 845. In addition, a claim is exhausted

when it has been “fairly presented” to the state court. See Picard v. Connor, 404

U.S. 270, 275 (1971). To that end, the federal habeas claim “must be the

substantial equivalent of that presented to the state courts.” See Lambert v.

Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The petition must do so “in a manner

that puts [the respondents] on notice that a federal claim is being asserted.” See

Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005). “The Supreme Court has

instructed that a claim is not ‘fairly presented’ if the state court ‘must read beyond

a petition or brief. . . in order to find material’ that indicates the presence of a

federal claim.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 542 (3d Cir.

2014) (quoting Baldwin v. Reese, 541 U.S. 27, 32 (2004)). Moreover, a habeas

corpus petitioner has the burden of proving the exhaustion of all available state

remedies. See 28 U.S.C. § 2254. Overall, the exhaustion requirement advances

the goals of comity and federalism, while reducing “piecemeal litigation.” See

Duncan v. Walker, 533 U.S. 167, 180 (2001).

“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.” McCandless v. Vaughn, 172 F.3d

255, 261 (3d Cir. 1999). Claims deemed exhausted because of a state procedural

bar are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208

F.3d 153, 159 (3d Cir. 2000). The district court then analyzes the claims under the

procedural default doctrine. See id. The purpose of this rule is to prevent habeas

petitioners from avoiding the exhaustion doctrine by defaulting their claims in state

court. See Coleman v. Thompson, 501 U.S. 722, 732 (1991).

Respondents have stated that “Petitioner was in compliance with the

jurisdictional requirements for his claims in the Commonwealth of Pennsylvania,”

and proceeded to address his claims on the merits. (Doc. 11, p. 10.) However, a

review of the state court determinations has shown that Plaintiff’s SORNA claim

has been procedurally defaulted.

Petitioner claims in this habeas matter that his sentence requiring him to

register as a sexual offender under Pennsylvania SORNA is illegal and violates the

ex post facto clause of the United States Constitution. (Doc. 1, p. 8.) The Superior

Court found that Petitioner had waived this argument, and then added a footnote

addressing the merits of Petitioner’s claim by finding it moot:

In any event, Appellant’s substantive claim lacks merit. He remains

incarcerated, serving the sentence imposed at this case. Therefore,

Appellant has never registered as a sexual offender. Additionally,

SORNA has been replaced by Act 29, so he will not be required to

register under SORNA in the future. See 42 Pa.C.S. § 9799.52. As

such, Appellant’s argument is moot.

Commonwealth v. Riojas, 2019 WL 3969507, at *4 n. 6. Regardless of the text of

the footnote, the Superior Court held that Petitioner had “failed to raise the issue in

his pro se PCRA petition and neglected to file a response to the PCRA court’s

Pa.R.Crim.P. 907 notice of dismissal.” Therefore, this claim is procedurally

defaulted.

A petitioner whose constitutional claims have not been addressed on the

merits due to procedural default can overcome the default, thereby allowing federal

court review, if the petitioner can demonstrate either: (1) “cause” for the default

and “actual prejudice” as a result of the alleged violation of federal law; or (2) that

the failure to consider the claims will result in a “fundamental miscarriage of

justice.” See Coleman, 501 U.S. at 750. Therefore, the Superior Court’s finding

that the issue is moot would negate any of these exceptions to procedural.

This court agrees with the Superior Court’s finding that the SORNA I issue

is moot. By way of brief statutory background, in 2004, the General Assembly

enacted what is commonly known as Megan’s Law III, formerly 42 Pa.C.S. §§

9791-9799.9, which remained in effect until the enactment of the Sexual Offender

Registration and Notification Act (SORNA I), 42 Pa.C.S. §§ 9799.10-9799.41, in

2012. SORNA I took effect on December 20, 2012.2 On July 19, 2017, the

2 Petitioner’s crimes took place in October of 2012. Therefore, Petitioner argues that SORNA I

was not in effect at the time he committed the crimes. (Doc. 6, p. 39.)

Pennsylvania Supreme Court decided Commonwealth v. Muniz, 640 Pa. 699, 164

A.3d 1189 (2017), in which it held that a portion of SORNA I violated the ex post

facto clauses of the United States and Pennsylvania Constitutions by increasing

registration obligations on certain sex offender registrants. Thereafter, in 2018, to

clarify that sex offender registration provisions were not ex post facto punishment,

the General Assembly enacted SORNA II, also known as Act 29. SORNA II

divided offender registration and reporting requirements into two distinct

subchapters. Subchapter H applies to “individuals who committed a sexually

violent offense on or after December 20, 2012, for which the individual was

convicted[,]” 42 Pa. C.S. § 9799.11(c), and Subchapter I applies to individuals who

committed a sexually violent offense “on or after April 22, 1996, but before

December 20, 2012,” and whose period of registration has not yet expired or

whose registration requirements under a former sexual offender registration law

have not expired. 42 Pa. C.S. § 9799.52.

Petitioner continues to rely on the holding in Muniz as it pertains to SORNA

I in his briefing, and ignores SORNA II despite the fact that Subchapter I of

SORNA II applies to him. (Doc. 6, pp. 38–45.) Therefore, his argument regarding

SORNA I is moot and any exceptions to procedural default doctrine are

inapplicable. Therefore, this claim is dismissed.

B. Petitioner’s Remaining Claims Can Not Succeed on the Merits.

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). “[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 v. Pinholster, 563 U.S.

170, 181 (2011) (internal quotation marks and citation omitted). The burden is on

Petitioner 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). The Third

Circuit summarized Supreme Court findings as follows:

[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).

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).

1. Fourteenth Amendment Claims

Petitioner filed the instant habeas corpus action raising four issues under the

Fourteenth Amendment: (1) that the Court of Common Pleas erred when it

admitted Dr. Valliere as an expert; (2) that the Court of Common Pleas erred when

it permitted the victim to testify about his prior bad acts; (3) that the Court of

Common Pleas erred when it denied his sufficiency of the evidence claims with

regard to the rape by forcible compulsion and false imprisonment counts; (4) and

that the Court of Common Pleas erred when it denied his motion for continuance in

order to procure the testimony of a “necessary defense witness.” (Doc. 6, p. 24–

37.)

The Superior Court addressed these four issues in depth:

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the trial court, we

conclude that there is no merit to the issues Appellant has raised on

appeal. The trial court opinions properly dispose of the questions

presented. (See Trial Ct. Op., 10/24/14, at 11-22 (finding motion for

judgment of acquittal properly denied where evidence was sufficient to

support convictions of rape by forcible compulsion and false

imprisonment); Trial Court Opinion, 1/02/15, at 12-21, 25 (finding (1)

Dr. Valliere was qualified as expert in field of victim behavior for

victims in sexual violence and abuse settings pursuant to 42 Pa.C.S.[A.]

§ 5920(b)(1) and Pa.R.E. 702(a); (2) Dr. Valliere’s testimony was

relevant and helpful to jury; (3) field of victim behavior in sexual

violence and abuse settings is not novel, and therefore not subject to

analysis under Frye; (4) prior bad acts evidence more probative than

prejudicial where it formed part of history and natural development of

events and offenses for which Appellant was charged; (5) Appellant

waived continuance issue where concise statement was too vague to

allow court to address its merits.[footnote 3])). Therefore, we affirm on the

basis of the trial court’s opinions.

[Footnote 3:] We observe that Appellant’s brief fails to identify the

proposed witness who allegedly would have testified if the continuance

had been granted. (See Appellant's Brief, at 26-29). Appellant alleges

that previous counsel failed to identify this individual in the

continuance motion because “he/she feared testifying against [the]

victim ....” (Id. at 26 n.3). He vaguely states that, “on Sunday, February

23, 2014, [he] became aware of a witness that was told by the alleged

victim in the case at bar, that she [the victim] was lying about

everything so she could get status in the United States of America and

gain full custody of her children.” (Id. at 26) (footnote omitted).

However, this vague statement about an alleged unnamed source does

not support a conclusion that the trial court abused its wide discretion

in denying Appellant’s continuance request where he fails to

demonstrate “prejudice or a palpable and manifest abuse of discretion.”

Hansley, supra at 418 (citations omitted). Therefore, even if not

waived, Appellant’s fourth issue would not merit relief.

Commonwealth v. Riojas, No. 2038 MDA 2015, 2016 WL 5940424 at *2.

i. Testimony of Commonwealth Expert, Dr. Valliere

Petitioner alleges that allowing a medical expert, Dr. Valliere, to testify

regarding counterintuitive victim behavior was contrary to and an unreasonable

determination of clearly established federal law. (Doc. 6, p. 33.) Specifically,

Petitioner alleges that counterintuitive victim behavior is “new science,” and

should not have been admissible. (Id.) Petitioner asserts that the Commonwealth’s

use of the Frye standard is contrary to and an unreasonable determination of

clearly established federal law.

This court acknowledges that Pennsylvania does not adhere to the test for

admissibility of expert testimony established in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).3 In Commonwealth v. Topa, 369 A.2d

1277 (Pa. 1977), the Supreme Court adopted the test of Frye v. United States, 293

F. 1013 (D.C. Cir. 1923), and in Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1044

(Pa. 2003), a majority of the Pennsylvania Supreme Court flatly rejected Daubert

and affirmed the validity of Frye. “After Daubert was decided, a number of state

courts adopted the Daubert standard. We, however, have continued to follow

Frye.” Grady, 839 A.2d at 1044. Whereas the Daubert standard charges trial

courts with the responsibility of acting as “gatekeepers” to exclude all unreliable

expert testimony, Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999)

(interpreting Daubert), through the application of a non-exclusive checklist of

reliability factors, Daubert, 509 U.S. at 594–95, the Frye standard merely requires

that the expert testimony “have gained general acceptance in the particular field in

which it belongs.” Frye, 293 F. at 1014. This is reflected in the comment section

of the Pennsylvania Rules of Evidence Rule 702:

Pa.R.E. 702(c) differs from F.R.E. 702 in that it reflects Pennsylvania's

adoption of the standard in Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923). The rule applies the “general acceptance” test for the

admissibility of scientific, technical, or other specialized knowledge

3In Daubert, the United States Supreme Court held that Frye was superseded in the federal courts

by the adoption of the Federal Rules of Evidence. Daubert, supra, at 587.

testimony. This is consistent with prior Pennsylvania law. See Grady

v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003). The rule rejects

the federal test derived from Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993).

Pa.R.E. 702.

This court has no authority to review the Superior Court’s decision because

it was adjudicating a state law claim that is not cognizable under § 2254(a). Estelle

v. McGuire, 502 U.S. 62, 67–68 (1991) (“In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.”). Although Petitioner now asserts that the trial

court’s decision violated his due process rights, he cannot repackage a state law

claim into a federal due process claim simply by stating that he was denied a fair

trial based upon a ruling of state law. See, e.g., Johnson v. Rosemeyer, 117 F.3d

104, 109–10 (3d Cir. 1997).

ii. Testimony of Prior Bad Acts

Petitioner argues that the trial court’s allowance of testimony of his prior bad

acts more then four years prior to the alleged criminal conduct was contrary to and

an unreasonable determination of clearly established federal law. (Doc. 6, p. 34.)

In doing so, Plaintiff acknowledges this court’s lack of authority to review a state

court’s decision that was adjudicated on a state law claim and cites to Estelle. (Id.)

He then presents a litany of federal cases from the Sixth and Eighth Circuits that he

alleges grant this court authority to review a state court’s decision regarding

testimony of prior bad acts. (Id., pp. 34–35.)

At the crux of Petitioner’s argument is that the admission of prior bad acts

evidence led to “the overriding concern that such evidence blackened the character

of Riojas, and resulted in a great prejudice painting him as a so to say wife beater.”

(Id.) Plaintiff, however, failed to identify clearly established Supreme Court

precedent that such evidence of prior bad acts constitutes a violation of due

process. See Estelle, 502 U.S. at 75 n.5 (“We express no opinion on whether a

state law would violate the Due Process Clause if it permitted the use of ‘prior

crimes’ evidence to show propensity to commit a charged crime.”). The state court

addressed Plaintiff’s argument and relied on state law.

Next, the court turns to a panel decision from the Third Circuit that

highlights the fact that some forms of evidence of prior bad acts is allowed under

the Federal Rules of Evidence and no circuit court has found that the allowance of

such evidence violates due process:

Moreover, the Federal Rules of Evidence expressly allows such

testimony in sex crime cases. In fact, Federal Rules of Evidence 413

and 414 provide that when a criminal defendant is accused of child

molestation or sexual assault, “the court may admit evidence that the

defendant committed any other child molestation” or sexual assault,

and “[t]he evidence may be considered on any matter to which it is

relevant.” Fed. R. Evid. 413, 414. No Court of Appeals which has

considered the constitutionality of Fed. R. Evid. 413 or 414 has

concluded that they violated due process, see United States v. Schaffer,

851 F.3d 166, 177 n.56 (2d Cir. 2017) (collecting cases across Courts

of Appeal, all of which have held that Rule 413 or 414 do not violate

the Due Process Clause), and the Supreme Court has not deemed either

rule unconstitutional. Thus, Allison cannot successfully claim that

admitting the prior bad acts evidence as propensity evidence is in itself

“contrary to” or an improper application of clearly established federal

law.

Allison v. Superintendent Waymart SCI, 703 Fed. Appx. 91, 97 (3d Cir. 2017.)

Under Pennsylvania law, “[t]he admission of evidence of prior bad acts is

solely within the discretion of the trial court, and the court’s decision will not be

disturbed absent an abuse of discretion.” Commonwealth v. Patterson, 91 A.3d 55,

68 (Pa. 2014), cert. denied, 135 S.Ct. 1400 (2015) (citation omitted) abrogated on

other grounds by Commonwealth v. Yale, 249 A.3d 1001 (Pa. 2021). Again, this

court has no authority to review the Superior Court’s decision because it was

adjudicating a state law claim that is not cognizable under § 2254(a). As stated

above, Petitioner now asserts that the trial court’s decision violated his due process

rights, but he cannot repackage a state law claim into a federal due process claim

simply by stating that he was denied a fair trial based upon a ruling of state law.

See, e.g., Johnson, 117 F.3d at 109–10.

iii. Sufficiency of Evidence Claims

Next, the court will address Petitioner’s argument that the trial court erred in

denying his motion for judgment of acquittal as it related to the charges of rape and

false imprisonment where insufficient evidence was presented at trial to sustain the

convictions for such crimes. (Doc. 1, pp. 21–22; Doc. 6, pp. 24–30.)

In Jackson v. Virginia, 443 U.S. 307 (1979), the United States Supreme

Court set the standard for a due process claim based on sufficiency of the evidence.

Pursuant to Jackson, a habeas petitioner alleging that evidence is insufficient to

support a conviction must persuade the Court that the evidence, viewed in a light

most favorable to the prosecution, could not move a rational trier of fact to find

guilt beyond a reasonable doubt. Id. at 319, 324. Review of the evidence must be

based upon state law; that is, the ultimate question is whether the prosecution

provided evidence to support the substantive elements of the offense as defined by

state law. Id. at 324 n.16.

Under the AEDPA, review for sufficiency of the evidence means a

determination whether the state court disposition was an objectively unreasonable

application of the Jackson standard or its state court equivalent. See 28 U.S.C. §

2254(d); Williams, 529 U.S. at 379–390 (2000); Evans v. Court of Common Pleas,

Delaware County, 959 F.2d 1227, 1233 (3d Cir. 1992) (sufficiency standard is

same under Pennsylvania and federal law); Jackson, 443 U.S. at 319 (court

reviewing sufficiency of evidence must determine whether evidence admitted at

trial and all reasonable inferences drawn therefrom, when viewed in light most

favorable to Commonwealth as verdict winner, is sufficient to support all elements

of crime beyond a reasonable doubt); Commonwealth v. Wilson, 2003 Pa. Super.

205, 825 A.2d 710, 713 (Pa. Super. 2003) (same); Commonwealth v. Hopkins,

2000 Pa. Super. 47, 747 A.2d 910, 914 (Pa. Super. 2000) (matters of credibility,

reliability, or weight of the evidence are within the sole province of the fact-finder,

who is free to believe all, part, or none of the evidence presented).

In addressing this issue, the courts’ analysis is frustrated by a lack of the

record and transcript before the court. Petitioner is required to produce the part of

the record pertinent to a determination of the sufficiency of the evidence. But

federal law recognizes an inmate may have difficulty doing so, and the burden can

be placed on the respondent:

If the applicant challenges the sufficiency of the evidence adduced in

such State court proceeding to support the State court’s determination

of a factual issue made therein, the applicant, if able, shall produce that

part of the record pertinent to a determination of the sufficiency of the

evidence to support such determination. If the applicant, because of

indigency or other reason is unable to produce such part of the record,

then the State shall produce such part of the record and the Federal court

shall direct the State to do so by order directed to an appropriate State

official. If the State cannot provide such pertinent part of the record,

then the court shall determine under the existing facts and

circumstances what weight shall be given to the State court’s factual

determination.

28 U.S.C. § 2254(f). Petitioner did not produce the record or the transcripts with

this petition. The court twice directed Respondents to produce the transcripts in

this case in accord with Rule 5 of the Rules which apply to habeas corpus

proceedings. (Docs. 14, 15.) Respondents failed to produce the transcripts.

Despite this failure, relevant portions of the transcripts were set forth in the state

court rulings, which were relied upon in making the following determinations.

a. Rape Conviction

The court will first address Petitioner’s sufficiency of the evidence argument

in regards to the rape conviction. Rape, a felony of the first degree, occurs when a

person engages in sexual intercourse with a complainant by forcible compulsion.

18 Pa.C.S.A. § 3121 (a)(1). Sexual intercourse is physical sexual contact between

individuals involving the genitalia of at least one person. See Commonwealth v.

Kelley, 599 Pa. 179, 801 A.2d 551 (2002). “[S]ome penetration however slight” is

required to establish “sexual intercourse,” however, emission is not required. 18

Pa.C.S.A. § 3101. “Forcible compulsion” includes physical force as well as moral,

psychological, or intellectual force, used to compel a person to engage in sexual

intercourse against that person’s will. Id. See Commonwealth v. Riley, 643 A.2d

1090 (Pa. Super. 1994); see also Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d

1217 (1986).

Whether forcible compulsion will be found is a determination based on the

totality of the circumstances. See Commonwealth v. Smolko, 666 A.2d 672 (Pa.

Super. 1995). Factors to be considered include the respective mental and physical

conditions of the victim and the accused, the atmosphere and physical setting

where the incident took place, along with the defendant’s relative position of

authority, domination, or custodial control over the victim and the degree of duress

felt by the victim. See Smolko, 666 A.2d at 676; see also Commonwealth v. Price,

616 A.2d 681 (Pa. Super. 1992) (forcible compulsion found where the victim was

asleep when attacked but woke up and struggled with her attacker). Where a

defendant uses physical force, the threat of physical force, or psychological

coercion, the “forcible compulsion” component has been established. See 18 P.A.

C.S.A. § 3121(a)(1). The degree of force required depends on the totality of the

facts and circumstances of the particular case. See Commonwealth v. Riley, 643

A.2d 1090 (Pa. Super. 1994) (forcible compulsion found where victim refused to

have intercourse, but attacker compelled her to do so by laying on top of her and

pinning her with his body weight thwarting her attempts to resist and penetrating

her). The victim need not resist a person trying to force sexual intercourse against

her will. See id. at 1091.

“A person who has indecent contact with the complainant or causes the

complainant to have indecent contact with the person is guilty of indecent assault

if: (1) the person does so without the person’s consent; [or] (2) the person does so

by forcible compulsion.” 18 Pa.C.S.A § 3126. Indecent contact is defined as “any

touching of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in either person.” 18 Pa.C.S.A. § 3101.

Petitioner asserts that testimony from the nurse who conducted the rape kit

stating that the small fissures in the labia minora indicated normal consensual

intercourse is inconsistent with forcible compulsion and inconsistent with the

victim’s testimony. (Doc. 1, p. 22; Doc. 6, p. 29–30.) The transcripts of the court

proceedings are not available to the court, but the Superior Court’s 2016 decision

includes an excerpt of the nurse’s testimony from the trial transcripts:

Nancy Bates conducted a sexual assault forensic examination on

Medellin on October 10, 2012. During the exam Ms. Bates took note of

braising “to the left side of her face and her right eye and on her breasts

that there was the right side bruising and then right hand bruise over

two joints at fifth and fourth digit where finger connects to hand.” Ms.

Bates explained the stages of colors regarding bruising:

Q. With bruises, can you explain—bruises change colors, don't they?

A. Yes, they do.

Q. So what color does a bruise start at when you very first get a bruise

and it shows up on your skin?

A. It's usually red.

Q. And then what does it go to?

A. Like a blue purple color.

Q. At what point does it reach green?

A. By about day seven.

Ms. Bates also noted that there were fissures in the labia minora which

indicated to her that there was some kind of penetration to Medellin's

vaginal area. She explained that the more fissures the more forceful the

penetration, but that the fissures could be from consensual sex or any

kind of sex:

Q. Thank you. If the fissures—the fissures, those little cuts to her labia,

you said they indicate penetration?

A. That’s correct.

Q. And that could be from consensual sex?

A. It could be from any kind of sex.

In referring to the damage to Medellin’s chest purportedly caused by

Appellant with the knife, Ms. Bates called it a “scratch” which she

described as “more superficial whereas a cut may indicate that it's

deeper.”

Commonwealth v. Riojas, 2016 WL 5940424, at *21–22.

Petitioner’s argument rests on the assumption that forcible compulsion

requires great force. He proceeds from that assumption to argue that the evidence

fails to support a finding that great force was used, and therefore the evidence was

not sufficient to sustain this conviction. However, the definition of forcible

compulsion does not require great force. See 18 P.A. C.S.A. § 3121(a)(1). Here,

the testimony of nurse does not preclude a finding by the jury that the elements of

rape were established. The Superior court likewise rejected Petitioner’s

sufficiency of the evidence claim, stating:

Defendant argues that Medellin’s testimony as to both rapes is

inconsistent with the testimony of Ms. Bates and therefore the evidence

is not sufficient to sustain convictions for rape. We disagree. Ms.

Bates’ testimony does not preclude a finding that the elements of rape

were established by the Commonwealth. She testified that she

conducted a sexual assault forensic examination of Medellin on

October 10, 2012. During the examination she noted fissures in the

labia minora which indicated that there was some kind of penetration

to the vaginal area. Defendant argues that Ms. Bates stated that the type

of fissures that Medellin had are caused by consensual sex. We disagree

with Defendant's interpretation of the testimony. Ms. Bates testified

that while the fissures could be caused by consensual sex, they could

also be caused “from any kind of sex.” A reasonable inference from

such testimony would indicate that the fissures could be caused from

consensual sex or rape. In this case the jury obviously believed the

fissures were caused from the latter. Defendant also argues that there

would have been more fissures because “[t]he rapes Medellin described

were with great force . . .” and Ms. Bates testified that more fissures are

consistent with more forceful penetration. Again, we disagree with

Defendant’s view of the facts. Medellin’s testimony does not describe

Defendant as using “great force,” nor is great force required to sustain

a conviction of forcible compulsion rape. As we already discussed, the

threat of force and psychological coercion were the means used by

Defendant to commit the forcible compulsion rapes. The jury’s finding

of guilt on both counts of rape is not inconsistent with Ms. Bates'

testimony.

Commonwealth v. Riojas, 2016 WL 5940424, at *11. This court agrees.

b. False Imprisonment Conviction

Next, the court will address Petitioner’s sufficiency of the evidence claim as

to the false imprisonment conviction. Petitioner alleges that there was “insufficient

evidence presented at trial that the victim was restrained to the point that her

liberty was interfered with in an ample and considerable manner.” (Doc. 1, p. 21.)

Specifically, Petitioner alleges that evidence that the victim attended work and was

home alone during the period of her alleged false imprisonment demonstrates that

there was not sufficient evidence to support the conviction. (Doc. 6, pp. 26–28.)

The Superior Court of Pennsylvania has summarized the elements of false

imprisonment:

18 Pa.C.S.A. § 2903, entitled false imprisonment, provides that “[a]

person commits an offense if he knowingly restrains another unlawfully

so as to interfere substantially with h[er] liberty.” 18 Pa.C.S.A. §

2903(a). In determining the magnitude of restraint necessary for false

imprisonment, this Court has recognized that false imprisonment

covers restraints which are less serious than those necessary for the

offenses of kidnapping and unlawful restraint. See Commonwealth v.

Prince, 719 A.2d 1086 (Pa. Super.1998); Commonwealth v. Wells, 313

Pa.Super. 557, 460 A.2d 328 (1983). In determining whether the

restraint at issue interfered with D.M.’s liberty “substantially,” we give

the word “substantially” its plain meaning. 1 Pa.C.S.A. § 1903 (words

in a statute are to be construed according to rules of grammar and

according to their common and approved usage). Thus, we determine

the Legislature intended false imprisonment to cover restraints where

an individual’s liberty is interfered with in an ample or considerable

manner. See Merriam Webster’s Collegiate Dictionary 1174 (10th

ed.1997).

In re M.G., 916 A.2d 1179, 1181–82 (Pa. Super. Ct. 2007.)

Again, this court does not have the record or the trial transcripts to review.

However, evidence that the victim attended work and was home alone during the

period of false imprisonment does not preclude a finding by the jury that the

elements of false imprisonment were established. This was found by the Superior

Court in 2016:

The evidence sufficiently establishes that Defendant knowingly

restrained Medellin so as to interfere with her liberty. According to

Medellin’s testimony Defendant broke into her apartment without

invitation on October 4, 2012 and essentially lived there until October

9, 2012. Medellin testified that during that time Defendant beat her until

she passed out, choked her, raped her twice, made her call or text him

throughout the day when she was at work, and threatened to kill her if

she did not do what he asked. When the facts are considered in totality

Defendant interfered with Medellin's liberties “in an ample or

considerable manner.” When viewing the evidence in the light most

favorable to the Commonwealth, the evidence suggests that Medellin

was a prisoner in her own home. It is not unreasonable to conclude that

Medellin had a very real fear of Defendant and that her liberty was

substantially restrained by Defendant from October 4 to October 9,

2012. Defendant argues that throughout that week Medellin was not

falsely imprisoned because: she went to work; called and texted

members of WIN and others; went to Lowes; was home alone while

Defendant was working; and repeatedly called Defendant. However,

when those facts are viewed through the lens of Dr. Valliere’s

counterintuitive behavior testimony they do not demonstrate freedom

of movement. While it may not be readily apparent to a layperson as to

why Medellin did not go to authorities or leave her apartment, with the

benefit of Dr. Valliere’s testimony it is clear that such behavior is

consistent with the behavior a victim of sexual abuse may display.

Therefore, the evidence in its totality is sufficient to sustain conviction

on the false imprisonment charge. Furthermore, for the same reasons

the verdict of guilty is not contrary to the weight of the evidence.

Commonwealth v. Riojas, 2016 WL 5940424, at *13. Again, this court agrees.

iv. Denial of Continuance

Petitioner alleges that the denial of a continuance to allow him to call a

witness violated his Fourteenth Amendment rights. (Doc. 1, pp. 22–23.) Petitioner

requested a continuance on February 27, 2014, after he claims that he became

aware of a witness that was told by the victim that she was lying about everything

so as to gain legal status in the United States and gain full custody of her children.

(Id.) The Superior Court addressed Petitioner’s claims as follows:

Finally, as to Appellant’s fourth question, we observe:

The grant or denial of a motion for a continuance is within

the sound discretion of the trial court and will be reversed

only upon a showing of an abuse of that discretion. An

abuse of discretion is not merely an error of judgment.

Rather, discretion is abused when the law is over-ridden

or misapplied, or the result of partiality, prejudice, bias, or

ill-will as shown by the evidence or the record. The grant

of a continuance is discretionary and a refusal to grant is

reversible error only if prejudice or a palpable and

manifest abuse of discretion is demonstrated.

In reviewing a denial of a continuance, the appellate court

must have regard for the orderly administration of justice,

as well as the right of the defendant to have adequate time

to prepare a defense.

Commonwealth v. Riojas, 2016 WL 5940424, at *2 quoting Commonwealth v.

Hansel, 24 A.3d 410, 418 (Pa. Super. 2011). In this instant habeas petition,

Petitioner fails to allege any abuse of discretion on the part of trial court.

Therefore, the court will not disturb the State Court’s determination.

2. Ineffective Assistance of Counsel Claims

Petitioner also alleges that he did not receive effective assistance of counsel.

(Doc. 1, pp. 23–31.) The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel

for his defence.” U.S. Const. amend VI. The purpose of the right to the assistance

of counsel is to ensure a fair trial, and “the Court has recognized that ‘the right to

counsel is the right to the effective assistance of counsel.’” Strickland v.

Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.

759, 771 n.14 (1970)). “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just

result.” Id. “The Sixth Amendment guarantees reasonable competence, not

perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540

U.S. 1, 8 (2003). The clearly established federal law as to an ineffective-

assistance-of-counsel claim is Strickland, which sets forth the following two-prong

analysis.

Under the first prong of Strickland, the petitioner must establish that

counsel’s performance was deficient. 466 U.S. at 687. “Strickland’s first prong

sets a high bar.” Buck v. Davis, 137 S. Ct. 759, 775 (2017). To establish that

counsel’s performance was deficient, the petitioner must establish that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 688. “Judicial scrutiny of counsel’s performance must be highly

deferential.” Id. at 689. As such, the court “must apply a ‘strong presumption’

that counsel’s representation was within the ‘wide range’ of reasonable

professional assistance,” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting

Strickland, 466 U.S. at 689), and “[t]o overcome that presumption, a defendant

must show that counsel failed to act ‘reasonabl[y] considering all the

circumstances[,]’” Pinholster, 563 U.S. at 189 (quoting Strickland, 466 U.S. at

688). “The challenger’s burden is to show ‘that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).

Under the second prong of Strickland, the petitioner must establish

prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a

reasonable probability that, if not for counsel’s errors, the result of the proceeding

would have been different. Id. at 694. The petitioner “need not prove that the

evidence would have been insufficient if not for counsel’s errors . . . [or] ‘that

counsel’s deficient conduct more likely than not altered the outcome.’” Saranchak

v. Sec'y, Pa. Dep't of Corr., 802 F.3d 579, 588 (3d Cir. 2015) (quoting Strickland,

466 U.S. at 693). Rather, the issue is whether there is a reasonable probability of a

different result. Id. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. “That

requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”

Pinholster, 563 U.S. at 189 (quoting Harrington, 562 U.S. at 112).

To prevail on an ineffective-assistance claim, a petitioner must satisfy both

prongs of Strickland. A court can choose which prong of the standard to apply

first, and it may reject an ineffectiveness claim on the ground that the petitioner

was not prejudiced without addressing whether counsel’s performance was

deficient. Strickland, 466 U.S. at 697.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010). “Even under de novo review, the standard for

judging counsel’s representation is a most deferential one.” Premo v. Moore, 562

U.S. 115, 122 (2011). And “[e]stablishing that a state court’s application of

Strickland was unreasonable under § 2254(d) is all the more difficult.”

Harrington, 562 U.S. at 105. 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.

Here, Petitioner alleges eight deficiencies in support of his ineffective

assistance of counsel claim: (1) trial counsel stipulated to facts without his consent;

(2) trial counsel failed to produce certified transcripts and appellate counsel failed

to move for suppression of all transcripts; (3) appellate counsel failed to challenge

the sufficiency of the evidence; (4) trial counsel proceeded with the preliminary

hearing without a certified transcript of the proceeding being made; (5) trial

counsel failed to argue against the Commonwealth’s motion to introduce evidence

of prior bad acts; (6) trial counsel failed to object to prosecutorial misconduct

following the introduction of a baseball bat into evidence at trial and appellate

counsel failed to appeal the production of this evidence; (7) trial counsel failed to

move for suppression of the victim’s second statement made at the hospital and the

physical evidence regarding the knife; and (8) trial counsel failed to object to the

statements and affidavits that were translated and not properly signed by the

translator. (Doc. 1, pp. 23–31.) In each argument, Petitioner set forth the facts of

the alleged transgression, but failed to demonstrate that but for these transgressions

there was a reasonable probability of a different result. (Doc. 1, pp. 23–31; Doc. 6,

pp. 46–87.) Instead, Petitioner argues that he was prejudiced. (Doc. 6, pp. 46–87.)

However, prejudiced or not prejudiced is not the standard. Rather, the issue is

whether there is a reasonable probability of a different result. Saranchak, 802 F.3d

at 588. Petitioner fails to establish such a reasonable probability.

Plaintiff once makes only vague assertions that a different result would have

occurred. For example, he asserts that “ad counsel simply moved for a

continuance until such time as a court reporter could be present the proceeding

would have had a different outcome by a complete accurate, and certified transcript

of the proceeding being made accurately presenting all testimony for use in

subsequent proceedings including trial.” (Doc. 6, p. 69.) But, in this instance,

Plaintiff failed to state what testimony he intended to impeach had the transcript

been made. (Id.) Such a vague assertion is insufficient. Each of the instances of

ineffectiveness cited by Petitioner is similarly devoid of explanation of why it

would lead to a reasonable probability of a different result. Therefore, the

ineffective assistance of counsel claims cannot succeed.

C. A Certificate of Appealability Will Not Be Issued.

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, 537 U.S. at 237. “When the district

court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason

would not find the procedural disposition of this case debatable. Accordingly, no

COA will be issued.

CONCLUSION

For the reasons set forth above, the court will dismiss the petition for writ of

habeas corpus will be dismissed.

A separate order will be issued.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: February 14, 2023