Opinion

TYMA v. DISTRICT ATTORNEY OF ALLEGHENY COUNTY

Court: District Court, W.D. Pennsylvania
Filed: Dec 27, 2019
Cited by: 0 cases
Authority: More cited than 29.2%

full and fair hearing is not a precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)’s standards of review

How later courts described this case

full and fair hearing is not a precondition to according § 2254(e)(1)’s presumption of correctness to state habeas court findings of fact nor to applying § 2254(d)’s standards of review
“To this, the Supreme Court has recently added ‘that review under § 2254(d)(1
defendant must defeat presumption by clear and convincing evidence, also noting that § 2254(e
Federal courts must rely “on only the record that was before the state court in overcoming AEDPA's deference requirements.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THOMAS TYMA, )

)

Petitioner, ) Civil Action No. 17-15

) Magistrate Judge Maureen P. Kelly

v. )

)

DISTRICT ATTORNEY OF ALLEGHENY )

COUNTY and ATTORNEY GENERAL )

COMMONWEALTH OF PENNSYLVANIA, )

)

Respondents. )

OPINION AND ORDER

Thomas Tyma (“Petitioner”), has filed this counseled Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 (the “Petition”), ECF No. 1, seeking to attack his state court

convictions for multiple counts of Indecent Assault and Harassment in connection with his

conducting of physical examinations of patients in his rheumatology medical practice, during

which examinations, he was found to have improperly touched the patients.

For the reasons that follow, the Petition will be denied because none of the grounds

for relief merits the grant of federal habeas relief. Furthermore, because jurists of reason would

not find this disposition of the Petition debatable, a certificate of appealability will also be

denied.

I. FACTUAL BACKGROUND

The Pennsylvania Superior Court in its December 18, 2013 Memorandum, recounted the

factual history of the case as follows:

Dr. Tyma is a rheumatologist who has practiced in Allegheny County

since 1993. Between January 11, 2011, and May 24, 2011, the Commonwealth

filed nine separate criminal complaints against Dr. Tyma relating to his

inappropriate touching of 21 former patients during medical exams. Seventeen of

those former patients testified against Dr. Tyma at trial. In almost every case, the

complainant testified that during a routine heart exam, Dr. Tyma touched her

breast in a manner unrelated to the exam. In every instance, save one, the

inappropriate touching occurred when the patient was alone with Dr. Tyma. A

review of the testimony is necessary for our disposition of the issues raised on

appeal.

Thirteen of Dr. Tyma's former patients testified during the first day of

trial. L.S. testified that she had only one appointment with Dr. Tyma. After he

listened to her heart with his stethoscope, he asked her if she had a breast exam

recently, to which she replied, “yes; I just had one.” N.T., 3/12–19/2012, at 11.

She explained that “at that time his hand was already groping me around each

breast, over top of my sweater.” Id. Although she made another appointment with

Dr. Tyma before she left the office, she cancelled the appointment the next day,

and never returned.

C.W. saw Dr. Tyma “five or six times.” Id. at 24. She testified that during

most of the exams, she was not alone with Dr. Tyma because a physician's

assistant was in the room. However, during the one visit she was alone with Dr.

Tyma, he asked her to lie down on the exam table and then “took his right hand

inside [her] blouse and covered [her] left breast” over her bra. Id. at 27. C.W.

testified that she returned for one follow-up appointment, but was not alone with

Dr. Tyma during that visit. She never returned again.

R.C. testified that she only met with Dr. Tyma on one occasion. Although

she complained of pain in her neck and jaw, she testified that Dr. Tyma

“proceeded to touch [her] body, grope both of [her] breasts, put his hand down

[her] back side and touch [her] butt.” Id. at 38. She explained that he “literally

cupped [her breasts] and rubbed and massaged around them and kept asking if

there was any pain and [she] said no.” Id. at 39. She testified that, although a

female employee was present in the room during the exam, the employee was

taking notes and “never picked her head up.” Id. at 41. R.C. decided to follow-up

with a different rheumatologist.

E.G. was the first former patient to lodge a criminal complaint against Dr.

Tyma. She testified that she had two appointments with Dr. Tyma. During the

first appointment, she saw Dr. Tyma only briefly, and he did not perform a

physical exam. However, during the second appointment, while Dr. Tyma was

listening to her heart, “[h]e had his stethoscope on [her] chest and then he slid his

hand inside [her] bra and grabbed [her] left breast and squeezed it.” Id. at 54. He

then asked her to stand up and bend over, ostensibly so he could check her spine.

E.G. testified that he asked her to bend over two or three times, “[a]nd then after

[she] stood up, he took his hands and rubbed them down [her] back and on [her]

behind.” Id. at 55. Although she made a followup appointment on her way out,

she testified that she never intended to keep it. E.G. reported the incident to the

police two days later. Id. at 56.

B.S. testified that Dr. Tyma inappropriately touched her on two occasions.

During the first visit, he put his left hand under her shirt and grabbed her breast

over her bra, while he held his stethoscope in his right hand. Id. at 69–70. B.S.

further testified that during her second visit with Dr. Tyma, he, once again,

grabbed her left breast with his left hand as he held his stethoscope in his right

hand. Id. at 73. She did not return to his office again.

R.T. was referred to Dr. Tyma by her brother, who was also his patient.

She testified that during her first appointment, a physician's assistant remained in

the room the entire time. However, during the follow-up exam, she was alone in

the room with Dr. Tyma. R.T. testified that after he listened to her heart and

lungs, he asked her to lie down on the table “and he lifted up [her] sweater and he

felt both of [her] breasts” over her bra. Id. at 85–86. Although she made a follow-

up appointment before she left, she never returned to Dr. Tyma's practice.

M.J.S. testified that she was a patient of Dr. Tyma's for “a good ten years.”

Id. at 97. She had appointments with either him or a physician's assistant every

three to six months, and never experienced anything inappropriate. However,

M.J.S. testified that during her “last three or four visits” with Dr. Tyma, “[w]hen

he would listen to [her] heart beat, he would kind of roughly grab the left breast

and listen to [her] heart [.]” Id. at 100. The incidents occurred over her clothing.

She explained why she kept returning to Dr. Tyma after the first incident:

Because I wasn't sure and he was my doctor and I trusted

him. And I knew him for all these years. And I wasn't sure. I was

very embarrassed.

Id. at 101.

F.F. was referred to Dr. Tyma by her primary care physician. She testified

that during her first appointment, Dr. Tyma asked her to lie down on the exam

table, and pull up her sweater so that he could check her heart. When she did, her

breast was exposed from her bra. Dr. Tyma then put his left hand on her right

shoulder, and his right hand on her left breast. F.F. explained that he then brought

his left hand down and “swiped down by [her] pelvic area.” Id. at 111. She also

testified that while this was occurring, Dr. Tyma “was pressing his groin up

against [her] right arm.” Id. at 115. Although F.F. returned to Dr. Tyma for two

follow-up appointments, she testified that nothing inappropriate occurred during

those exams.

J.S. testified that during her initial consultation with Dr. Tyma, he did not

perform a physical exam. However, during a follow-up visit, when she was alone

with Dr. Tyma in the exam room, “he put his hand inside of [her] bra[, a]nd then

he told [her] he didn't need to see [her] again.” Id. at 129. J.S. explained that Dr.

Tyma was not performing a physical exam at that time, but that he simply touched

her breasts. Id. at 133.

The next complainant, L.H., testified that while she was in the hospital,

treating for pancreatitis, Dr. Tyma examined her a few times because her doctor

requested a rheumatologist consult. During one of his visits, he was leaning over

her to examine a skin inflammation near her collarbone. Although there was

another patient in the room, L.H. testified that the curtain surrounding her bed was

closed. Id. at 143. She explained that when Dr. Tyma “went to go stand up, he

grabbed [her] left breast” over her hospital gown. Id. at 144–145. L.H. testified

that she believed his actions were intentional because “it was a grab” and “there

was really no reason for him to grab [her].” Id. at 150.

U.G. tesitified [sic] that she was a patient of Dr. Tyma's for many years.

The first time he touched her inappropriately, his whole hand touched her breast

while he was listening to her heart with a stethoscope. She dismissed it as an

accident. Id. at 154. However, the second time it happened, and he put his entire

hand over her breast, she realized it was not an accident. Id. at 155–157. U.G.

testified that after the second incident, she decided not to continue treating with

him.

G.J.S. was another longtime patient of Dr. Tyma's. During one of her last

visits, however, Dr. Tyma had difficulty putting his stethoscope under her bra

because it was very snug. She testified that once it was in place, several fingers of

his hand, that was holding the stethoscope, “were going up and down in a

caressing manner on the inner portion of [her] breast.” Id. at 169. Then, Dr. Tyma

“cupped” her breast with his other hand and “was squeezing [the] breast in an

abnormal manner.” Id. G.J.S. testified that she had to return to Dr. Tyma for one

more appointment so that she could obtain a refill for a prescription. She

explained that “[t]here was not inappropriate touching during that visit[,]” but it

was “awkward.” Id. at 173. G.J.S. also explained that she was hesitant to report

the encounter because she was in pharmaceutical sales, and knew Dr. Tyma on a

professional level, as well as being his patient. Id. at 179. D.M. was the final

complainant to testify on the first day of trial.

D.M. was originally a patient of another doctor in the practice, but was

transferred to Dr. Tyma after her former doctor left. She testified that during her

initial visit with Dr. Tyma, Dr. Tyma was listening to the right side of her chest

with a stethoscope, when he touched her left breast under her bra with his other

hand. Id. at 187. During the same appointment, she required an injection in her

left hip. Dr. Tyma proceeded to rub the area for five to ten minutes, ostensibly to

rub the medication into the muscle. Id. at 189– 190. While he was doing so, Dr.

Tyma said to her, “you do trust me,” to which she replied, “yes; you are my

doctor.” Id. at 190. D.M. testified that his comment “didn't feel right to [her]” and

that she “made up her mind in that room that day [she] was not going to follow up

with him again.” Id.

The remaining four complainants testified on the second day of trial. T.J.

testified that she had only one consultation appointment with Dr. Tyma. After she

had some lab work done, she met with Dr. Tyma in an exam room. T.J. testified

that while Dr. Tyma was questioning her as she laid on the table, he “just grabbed

[her] breast and just kind of massaged it and then stopped and turned his back to

[her] and just left [her] there.” Id. at 207. She never returned to his practice.

J.M. testified that she first met Dr. Tyma when he consulted with her

while she was in the hospital for an unrelated issue. She then visited his office for

a follow-up exam. J.M. testified that Dr. Tyma acted inappropriately during three

visits. The first time, after he listened to her heart with a stethoscope, he placed

the instrument around his neck “and proceeded to lift [her] shirt and ... bra and

started to rub [her] breast.” Id. at 221. Later during the same exam, while Dr.

Tyma was checking her spine, J.M. testified that he “had [her] bend over and he

took his hand and ran it down [her] spine and proceeded to lower her pants a few

inches and rubbed [her] tail bone and proceeded to rub [her] buttocks.” Id. at 222.

Although she had no intention of returning to Dr. Tyma's office, she made another

appointment with him about a year later because she was still in pain, and it

would have taken three to four months to get an appointment with another

rheumatologist. Id. at 223–224. Nothing inappropriate occurred during the exam.

However, as J.M. was leaving, Dr. Tyma asked her if she was sexually active and

if she was on birth control. He also suggested she tell her partner “to take it easy

with [her] ... or he could injure [her] joints.” Id. at 227. Six months later, J.M. had

a third appointment with Dr. Tyma. After he used his stethoscope to check her

heartbeat, he, once again, placed the instrument around his neck, and proceeded

“to put his hand up [her] shirt and put a couple of fingers down [her] bra and

caressed [her] nipple.” Id. at 228. J.M. never went to see Dr. Tyma again.

A.M. testified that she had about a dozen appointments with Dr. Tyma

beginning in the summer of 2009. During the exams when she was alone with Dr.

Tyma, A.M[.] testified that he would lift her shirt to listen to her heartbeat with a

stethoscope, and then “would go on both breasts touching [her bare] nipples.” Id.

at 241. She indicated that “[t]he only time it didn't happen is when the physician

assistant was in the room.” Id. A.M. also testified that on one or two occasions

after the “heart, breast exam, whatever you want to call it,” he examined her

stomach and “put his fingers ... down ... where [her] pubic hair is.” Id. at 243. She

explained that although she “definitely questioned” what he was doing, she

“trusted him as [her] doctor.” Id. at 248. She also testified that she continued to

treat with Dr. Tyma because “everyone claimed he was a good doctor ... [a]nd he

was.” Id. at 249.

Lastly, L.R. testified that she began treating with Dr. Tyma in the early

2000's after her former rheumatologist left the practice. She saw him about three

times each year. She explained that during every exam, Dr. Tyma performed a

breast exam, including “skin-to-skin contact ... just like a gynecologist would do

... rotating around the breast, each breast.” Id. at 262. Although Dr. Tyma never

explained why he felt it necessary to perform a breast exam, L.R. thought it was

“a little wellness perk to his treatment.” Id. at 263. However, after she learned

about Dr. Tyma's arrest, and her subsequent appointments with rheumatologists

did not include breast exams, she “realized [she] might be one of the women who

had been touched inappropriately.” Id. at 267– 268.

All of the complainants, except R.C., testified that the inappropriate

touching occurred only when they were alone with Dr. Tyma. In fact, several

witnesses testified that Dr. Tyma never touched their breasts when a physician's

assistant was in the room. In almost every case, the complainant testified the

inappropriate touching occurred for about five to ten seconds. Moreover, the

complainants, all of whom suffered from multiple maladies, indicated that none of

their other doctors had ever touched their breasts during a heart exam. Further, all

of the complainants, with the exception of E.G[.], first reported the incident to the

police after they learned of Dr. Tyma's arrest.

Cmmw. v. Tyma, 1047 WDA 2012, 2013 WL 11246163 at *1-5 (Pa. Super. Dec. 18, 2013)

(footnotes omitted).

II. PROCEDURAL HISTORY

A. State Court

The Pennsylvania Superior Court, in its December 1, 2016 Memorandum addressing

Petitioner’s appeal in the Post Conviction Relief Act (“PCRA”) proceedings, adopted the PCRA

trial court’s opinion as its own. Cmmw. v. Tyma, No. 1908 WDA 2015, 2016 WL 7017386, at

*4 (Pa. Super. Dec. 1, 2016) (“Accordingly, we find that the PCRA court's May 12, 2016

opinion comprehensively discusses and properly disposes of the issues presented. We, therefore,

adopt the PCRA court's opinion addressing the merits of appellant's claims as our own

for purposes of further appellate review.”). The Superior Court recounted the state court

procedural history as follows:

On March 12, 2012, appellant waived his right to a jury and proceeded to

a bench trial. Appellant was represented at trial by Stanton D. Levenson, Esq.

(hereinafter, “trial counsel”). Following a six-day trial, appellant was found guilty

of 18 counts of indecent assault and 17 counts of harassment on March 19, 2012.

On May 24, 2012, appellant was sentenced to an aggregate term of 60 days'

imprisonment, followed by one year of county intermediate punishment and six

years of concurrent probation. On June 4, 2012, appellant filed timely post-

sentence motions, which were denied by the trial court on June 28, 2012.

Appellant filed a timely notice of appeal on July 5, 2012. On December 18, 2013,

a panel of this court affirmed appellant's judgment of sentence. See Tyma, 93

A.3d 513. Appellant did not file a petition for allocatur with our supreme court.

Thereafter, on October 27, 2014, appellant filed a timely PCRA petition.

The Commonwealth filed its answer to appellant's PCRA petition on March 31,

2015. On May 1, 2015, appellant filed a response to the Commonwealth's answer.

On June 25, 2015, the PCRA court provided appellant with notice, pursuant to

Pa.R.Crim.P. 907(1), of its intention to dismiss his petition without a hearing.

Thereafter, on November 10, 2015, the PCRA court dismissed appellant's petition

without a hearing. This timely appeal followed on December 4, 2015. On

December 16, 2015, the PCRA court ordered appellant to file a Rule 1925(b)

statement by February 5, 2016. On February 4, 2016, appellant complied with the

PCRA court's directive and filed a Rule 1925(b) statement spanning 23–pages and

raising 29 distinct claims of ineffectiveness of trial counsel. The PCRA court filed

a comprehensive, 30–page Rule 1925(a) opinion, accompanied by a three-page

appendix, on May 12, 2016.

On appeal, appellant raises the following issues for our review:

I. Whether the PCRA Court Erred by Dismissing

Appellant's PCRA Petition Without a Hearing on

Trial Counsel's Ineffectiveness: (A) for Failing to

Call Available Exculpatory Witnesses; (B) for

Failing to Impeach Complainants with Available

Exculpatory Evidence; (C) for Failing to Introduce

Exculpatory Evidence, and (D) for Failing to Obtain

Evidence[?]

II. Whether the Cumulative Effect of [Trial] Counsel's

Errors Deprived Appellant of His Sixth Amendment

Right to Effective Assistance of Counsel?

Appellant’s Brief at 1.

Id., 2016 WL 7017386, at *1 - 2 (footnote omitted).

The Superior Court affirmed the denial of PCRA relief, addressing the claims raised on

the merits.

After the Superior Court affirmed the denial of PCRA relief, Petitioner did not file a

Petition for Allowance of Appeal with the Supreme Court of Pennsylvania.

B. Federal Court

Petitioner paid the filing fee and the counseled Petition was filed. ECF No. 1. In the

instant Petition, Petitioner raised three Grounds for Relief, referred to by Petitioner as “Claims

for Relief”:

[GROUND ONE] The evidence was insufficient under the Due Process Clause of the

U.S. Constitution to support the verdicts because the evidence failed to prove Petitioner

had indecent contact with his patients without their consent. No patient made any verbal

response to Dr. Tyma's examination to hom [sic] or to staff membrs [sic] who were

interviewed by the police. In addition, no patient testified that Dr. Tyma exhibited signs

of sexual gratification or harassment of them.

ECF No. 1 ¶ 16.

[GROUND TWO] The state courts erred by denying Petitioner relief on his Sixth

Amendment claims of ineffective assistance of trial counsel: (a) for failing to call

available exculpatory witnesses; (b) for failing to impeach complainants with available

exculpatory evidence; (c) for failing to introduce exculpatory evidence, and (d) for failing

to obtain evidence.

Id. ¶ 17.

[GROUND THREE] The cumulative effect of trial counsel's errors deprived the

Petitioner of his Sixth amendment right to effective assistance of counsel.

Id. ¶ 19. Petitioner also contends that he is “innocent and his conviction was a miscarriage of

justice [and] [a]ccordingly, at a minimum, he is entitled to an evidentiary hearing on his claims

of factual innocence. Id. ¶ 22.

Respondents filed a Motion to Dismiss, asserting that the Petition was essentially bald

allegations. ECF No. 6. This Court denied the Motion to Dismiss. ECF No. 7. Thereafter,

counsel for Petitioner filed a Motion for Leave to File a Brief in Support of the Petition, ECF No.

8, which the Court granted. ECF No. 9. After being granted an extension of time, Petitioner

filed his Brief in Support of the Petition. ECF No. 12. Although Petitioner raised three grounds

for relief in his Petition, in the Brief in Support of the Petition, he only raised two grounds,

namely, Grounds Two and Three as identified above, and apparently abandoned Ground One, the

claim of insufficient evidence. Id. at 7 and 27.

After being granted an extension of time, Respondents filed their Answer, denying that

Petitioner was entitled to any federal habeas relief. ECF No. 17. Respondents attached to their

Answer, as exhibits, copies of much of the state court record. Respondents also caused the

original state court record to be delivered to the Clerk of this Court.

All parties have consented to the exercise of plenary jurisdiction by a United States

Magistrate Judge. ECF Nos. 4 and 5.

III. APPLICABLE LEGAL PRINCIPLES

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I,

§101 (1996) (the “AEDPA”) which amended the standards for reviewing state court judgments

in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because

Petitioner’s habeas Petition was filed after its effective date, the AEDPA is applicable to this

case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).

Where the state court has reviewed a federal issue presented to them and disposed of the

issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides

the applicable deferential standards by which the federal habeas court is to review the state

court’s disposition of that issue. See 28 U.S.C. § 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court

expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Supreme Court

explained that Congress intended that habeas relief for errors of law may only be granted in two

situations: 1) where the state court decision was “contrary to . . . clearly established Federal law

as determined by the Supreme Court of the United States” or 2) where that state court decision

“involved an unreasonable application of[] clearly established Federal law as determined by the

Supreme Court of the United States.” Id. at 404-05 (emphasis deleted). A state court decision

can be contrary to clearly established federal law in one of two ways. First, the state courts could

apply a wrong rule of law that is different from the rule of law required by the United States

Supreme Court. Second, the state courts can apply the correct rule of law but reach an outcome

that is different from a case decided by the United States Supreme Court where the facts are

indistinguishable between the state court case and the United States Supreme Court case.

In addition, we look to the United States Supreme Court holdings under the AEDPA

analysis as “[n]o principle of constitutional law grounded solely in the holdings of the various

courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas

relief.” Rodriguez v. Miller, 537 F.3d 102, 106–07 (2d Cir. 2008) (citing Carey v. Musladin, 549

U.S. 70 (2006)). The United States Court of Appeals for the Third Circuit has explained that

“Circuit precedent cannot create or refine clearly established Supreme Court law, and lower

federal courts ‘may not canvass circuit decisions to determine whether a particular rule of law is

so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court,

be accepted as correct.’” Dennis v. Sec., Pennsylvania Dept. of Corrections, 834 F.3d 263, 368

(3d Cir. 2016)(en banc)(quoting, Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As

the United States Supreme Court has further explained: “[s]ection 2254(d)(1) provides a remedy

for instances in which a state court unreasonably applies this Court's precedent; it does not

require state courts to extend that precedent or license federal courts to treat the failure to do so

as error.” White v. Woodall, 572 U.S. 415, 428 (2014).

The AEDPA also permits federal habeas relief where the state court’s adjudication of the

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

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

Finally, it is a habeas petitioner’s burden to show that the state court’s decision was

contrary to or an unreasonable application of United States Supreme Court precedent and/or an

unreasonable determination of the facts. Moreno v. Ferguson, CV 17-1412, 2019 WL 4192459,

at *3 (W.D. Pa. Sept. 4, 2019), appeal filed, 19-3777 (3d Cir. 12/6/2019). This burden means

that Petitioner must point to specific caselaw decided by the United States Supreme Court and

show how the state court decision was contrary to or an unreasonable application of such United

States Supreme Court decisions. Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) (“To

obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent

that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he

has not met this burden in this appeal. Mr. Owsley's claims must be rejected because he cannot

provide us with any Supreme Court opinion justifying his position.”); West v. Foster, 2:07-CV-

00021-KJD, 2010 WL 3636164, at *10 (D. Nev. Sept. 9, 2010) (“petitioner's burden under the

AEDPA is to demonstrate that the decision of the Supreme Court of Nevada rejecting her claim

‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’ 28 U.S.C. § 2254(d)(1) (emphasis

added). Petitioner has not even begun to shoulder this burden with citation to apposite United

States Supreme Court authority.”), aff'd, 454 F. App’x 630 (9th Cir. 2011).

The United States Court of Appeals for the Third Circuit has recognized the significance

of the deference under AEDPA that federal habeas courts owe to state courts’ decisions on the

merits of federal legal claims raised by state prisoners in federal habeas proceedings and the

Third Circuit emphasized how heavy is the burden that petitioners bear in federal habeas

proceedings. The Third Circuit explained that: “[w]e also defer to state courts on issues of law:

We must uphold their decisions of law unless they are ‘contrary to, or involve[ ] an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.’ So on federal habeas, ‘even ‘clear error’ will not suffice.’ Instead, the state court

must be wrong ‘beyond any possibility for fairminded disagreement.’” Orie v. Sec.

Pennsylvania Dept. of Corrections, 940 F. 3d 845, 850 (3d Cir. 2019) (citations and some

internal quotations omitted).

IV. DISCUSSION

A. Ground One Does Not Merit Relief.

1. Ground One was abandoned by Petitioner in his Brief in Support.

In Ground One of the Petition, Petitioner claims there was insufficient evidence to

support the verdicts of guilty as to apparently both the indecent assault convictions and the

harassment convictions. In addition, Petitioner asserts that no patient testified that Dr. Tyma

exhibited signs of sexual gratification or harassment of them. ECF No. 1 ¶ 16. As noted above,

Petitioner raised Ground One in the Petition but did not raise or address it in the Brief in Support.

Respondents, noting this in their Answer, assert that “Petitioner appears to have abandoned his

sufficiency challenge as he did not include the claim or any argument thereto in his Brief.” ECF

No. 16 n.7.

We agree. We find that Petitioner abandoned the claim of insufficient evidence and, as

such, has waived Ground One.

2. Ground One does not afford habeas relief.

In the event that Petitioner did not intend to abandon Ground One, we find that Ground

One does not afford Petitioner federal habeas relief under the AEDPA standards. The Superior

Court addressed this claim on the merits and in doing so recounted the evidence offered at

Petitioner’s bench trial, which we reproduced above in the Factual Background section. In

addressing this claim on the merits, the Superior Court rejected the claim and relied on the

extensive testimony of the victims recounted above, to find that each element of the crimes of

indecent assault and harassment were supported by the evidence. Cmmw. v. Tyma, 2013 WL

11246163 at *7 – 8.

In the Petition, Petitioner asserts in a conclusory fashion, quoting the language of

AEDPA, that the “state courts’ decision on the above claims was ‘contrary to clearly established

federal law,’ 28 U.S.C. § 2254(d)(1) and ‘was based on an unreasonable determination of the

facts in light of the evidence presented” in the state court.” ECF No. 1 ¶ 20. However,

Petitioner fails to point to any specific United States Supreme Court precedent that the Superior

Court’s disposition of Ground One was contrary to or which the Superior Court unreasonably

applied. Owsley v. Bowersox, 234 F.3d at 1057; Ross v. Atty. Gen. of State of Pennsylvania,

Civ. A. No. 07-97, 2008 WL 203361, at *5 (W.D. Pa. Jan. 23, 2008); West v. Foster, 2010 WL

3636164, at *10. Petitioner also fails to point out which facts found by the state courts

constituted an unreasonable determination of the facts. Moreno v. Ferguson, CV 17-1412, 2019

WL 4192459, at *7 (W.D. Pa. Sept. 4, 2019) (“Accordingly, we find that Petitioner fails to carry

his burden to show entitlement to relief under 28 U.S.C. § 2254(d)(2) for two independent

reasons. First, he fails to point to a specific factual finding made by the state courts which was an

unreasonable determination. Second, Petitioner has pointed to no specific evidence, yet alone

clear and convincing evidence, which the state courts found credible, to rebut any specific state

court factual finding.”). Accordingly, Petitioner fails to show entitlement to federal habeas relief

as to Ground One.

B. Ground Two Fails to Afford Federal Habeas Relief.

In Ground Two, Petitioner argues that his trial counsel was ineffective for: 1) failing to

call exculpatory witnesses; 2) failing to impeach the victims with available impeaching evidence;

3) failing to introduce exculpatory evidence and 4) failing to obtain evidence. ECF No. 1 ¶ 17.

See also Brief in Support, ECF No. 12 at 7.

The State Courts addressed these claims of alleged ineffective assistance of counsel on

the merits. Accordingly, the AEDPA standard of review applies herein.

1. The decision of the state courts is not contrary to Strickland.

In addressing the claim of trial counsel’s alleged ineffectiveness raised in Ground Two,

both the PCRA trial court and the Superior Court, applied the state court test for ineffective

assistance of counsel ultimately derived from Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987)

(the “Pierce standard”). Cmmw. v. Tyma, 2016 WL 7017386, at *2 (citing Cmmw. v.

Charleston, 94 A.3d 1012 1020 (Pa. Super. 2014), appeal den., 104 A.3d 523 (Pa. 2014)).

The Pierce standard has been found to be materially identical to the test enunciated in

Strickland v. Washington, 466 U.S. 668 (1984). Werts, 228 F.3d at 203. The United States

Court of Appeals for the Third Circuit has ruled that this standard is not "contrary to" Strickland

in the sense of being a wrong rule of law. Hence, Petitioner cannot show that the Superior

Court’s disposition of Ground Two is contrary to United States Supreme Court precedent in the

first sense of applying a wrong rule of law. Nor has Petitioner shown that the Superior Court’s

disposition is contrary to United States Supreme Court precedent in the second sense, i.e., he

fails to point to a case decided by the United States Supreme Court where the facts are

indistinguishable from his case but where the state court reached an outcome different from the

outcome reached by the United States Supreme Court.

2. The state courts did not unreasonably apply Strickland.

Moreover, Petitioner has failed to show that the PCRA trial court’s and the Superior

Court’s decision, by adoption, was an unreasonable application of United States Supreme Court

precedent on ineffective assistance of counsel.

In Strickland, the United States Supreme Court explained that there are two components

to demonstrating a violation of the right to effective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires

showing that "counsel's representation fell below an objective standard of reasonableness."

Strickland, 466 U.S. at 688; see also Williams v. Taylor, 529 U.S. at 390-91. In reviewing

counsel’s actions, the court presumes that counsel was effective. Strickland, 466 U.S. at 689.

There is no one correct way to represent a client and counsel must have latitude to make tactical

decisions. Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990) (“[W]hether or not some

other strategy would have ultimately proved more successful, counsel’s advice was reasonable

and must therefore be sustained.”). In light of the foregoing, the United States Court of Appeals

for the Third Circuit has explained, "[i]t is [] only the rare claim of ineffective assistance of

counsel that should succeed under the properly deferential standard to be applied in scrutinizing

counsel's performance." United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997) (quoting

United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).

Second, under Strickland, the defendant must show that he was prejudiced by the

deficient performance. "This requires showing that counsel's errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. To

establish prejudice, the 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; see also Williams, 529 U.S. at 391.

Moreover, because the state courts addressed Petitioner’s claims of ineffectiveness on the

merits, this Court must apply the deferential standards of the AEDPA as to those claims, which

results in a doubly deferential standard as explained by the United States Supreme Court:

Establishing that a state court's application of Strickland was unreasonable

under § 2254(d) is all the more difficult. The standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v.

Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and

when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at ––––,

129 S.Ct., at 1420. The Strickland standard is a general one, so the range of

reasonable applications is substantial. 556 U.S., at –––– [129 S.Ct., at 1420].

Federal habeas courts must guard against the danger of equating unreasonableness

under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,

the question is not whether counsel's actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland's

deferential standard.

Premo v. Moore, 562 U.S. 115, 122 - 123 (2011) (quoting Harrington v. Richter, 562 U.S. 86,

105 (2011)). Accord Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) (“’A state court must be

granted a deference and latitude that are not in operation when the case involves [direct] review

under the Strickland standard itself.’ Id. Federal habeas review of ineffective assistance of

counsel claims is thus ‘doubly deferential.’ Pinholster, 131 S.Ct. at 1403. Federal habeas courts

must ‘take a highly deferential look at counsel's performance’ under Strickland, ‘through the

deferential lens of § 2254(d).’”), rejected on other grounds by, Dennis, 834 F.3d at 293.

3. Ineffectiveness for failing to call exculpatory witnesses.

In addressing Ground Two, the PCRA trial court and the Superior Court found that

Petitioner failed to show deficient performance of trial counsel in failing to call the allegedly

available exculpatory witnesses. Petitioner pointed to, inter alia, physician assistants whom he

alleges that his trial counsel should have called in order to establish that Petitioner was not alone

with the victims at the times of the alleged indecent contacts. However, the state courts found

that for all but one of the incidents of indecent contact, Petitioner was alone with the victims.

Accordingly, the state courts found that the allegedly exculpatory witnesses were not in fact

exculpatory because they simply were not present at the time of the indecent contacts.

The Superior Court specifically rejected this claim as follows:

As the PCRA court properly recognized in its opinion, “[t]he entire point

of an exculpatory witness is to exculpate—that is, to prove that [appellant] did not

do what he is accused of. However, a person who was not present at the time of

the incident(s) can only establish that they did not witness the incident, not that it

did not occur.” (PCRA court opinion, 5/12/16 at 20.) Instantly, the record reflects

that each of the victims in this case, with the exception of Roxanne Churilla,

testified that they were alone with appellant when the inappropriate contact

occurred, and appellant freely admitted that he did see each of these women by

himself at various times. (See notes of testimony, 3/12–19/12 at 27, 38–41, 66,

110–111, 143–144, 156–157, 206–207, 220– 221, 356–358, 370, 380–392.)

Therefore, the fact that the testimony of appellant's purported exculpatory

witnesses, some of whom did, in fact, testify to appellant's character at trial,

would have indicated that he did not engage in any inappropriate touching in their

presence is irrelevant to whether he committed the crimes against the victims on

the days in question. Accordingly, we agree with the PCRA court that trial

counsel was not ineffective for failing to introduce this allegedly exculpatory

testimony at trial.

Cmmw. v. Tyma, 2016 WL 7017386, at *3.

Petitioner does not argue that the foregoing is an unreasonable application of United

States Supreme Court precedent and, therefore fails to carry his burden to show an error of law

under the deferential standards of the AEDPA.

a. State Courts did not unreasonably determine facts.

It appears that Petitioner may be arguing that the state courts’ disposition of his claim

resulted in a decision involving an unreasonable determination of the facts in light of the

evidence presented under 28 U.S.C. § 2254(d)(2). See, e.g., ECF No. 12 at 8 (asserting that

contrary to the Superior Court’s finding that the victims were alone with Petitioner at the time of

the indecent contact, there is evidence that the victims were not alone with Petitioner on the dates

and times of the indecent contacts).

To the extent that Petitioner is attempting to mount an attack under 28 U.S.C. § 2254(d)

(2), on the state courts’ finding of fact that Petitioner was alone with the victims when most of

the indecent assaults occurred, Petitioner fails to carry his burden thereunder. The confluence of

several legal principles both under the AEDPA and common law require that Petitioner fail in

this challenge.

We begin with first principles under AEDPA. In doing so, we recognize, as we must,

that all of Petitioner’s claims raised in the Petition were previously adjudicated on the merits by

the state courts. Petitioner does not, and, indeed, on the record before this Court cannot contend

otherwise. Hence, in conducting our evaluation of the state courts’ disposition of Ground Two,

we are limited to the record created before the state court. 28 U.S.C. § 2254(d)(2) (“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-- … (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.”). Cullen v. Pinholster, 563 U.S. 170, 206 (2011) (Breyer, J., concurring

in part and dissenting in part) (“There is no role in (d) analysis for a habeas petitioner to

introduce evidence that was not first presented to the state courts.”); Grant v. Lockett, 709 F.3d

224, 231 (3d Cir. 2013) (“In addition, review of a claim under § 2254(d)(2) is specifically

limited to ‘evidence presented in the State court proceeding.’ 28 U.S.C. § 2254(d)(2). We have

recently held that, as a general rule, ‘district courts cannot conduct evidentiary hearings to

supplement the existing state court record under 28 U.S.C. § 2254(d).’”), rejected on other

grounds by, Dennis, 834 F.3d 263; Fears v. Bagley, 462 F. App'x 565, 568 (6th Cir. 2012)

(Federal courts must rely “on only the record that was before the state court in overcoming

AEDPA's deference requirements.”) (citing Pinholster, 131 S.Ct. at 1400). See also Keaton v.

Folino, 11-CV-07225-PD, 2018 WL 8584252, at *42 (E.D. Pa. Nov. 15, 2018) (“In

Pinholster, seven justices agreed that no federal evidentiary hearing was appropriate when a

district court reviewed whether the state court made a reasonable determination of the facts under

section 2254(d)(2).”), report and recommendation adopted, 2019 WL 2525609 (E.D. Pa. June

19, 2019), request for certificate of appealability filed, 19-2633 (3d Cir. 8/29/2019); Blue v.

Thaler, 665 F.3d 647, 655–56 (5th Cir. 2011) (“To this, the Supreme Court has recently added

‘that review under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.’ The same rule necessarily applies to a federal court's review

of purely factual determinations under § 2254(d)(2), as all nine Justices acknowledged.”)

(footnotes omitted).

b. Petitioner is not entitled to an evidentiary hearing.

Because the state courts adjudicated this claim of ineffective assistance of trial counsel on

the merits, this Court is limited to the record before the state court and Petitioner is not only not

entitled to an evidentiary hearing, as he requested in his Petition, ECF No. 1 ¶ 22, and in his

Brief in Support, ECF No. 12 at 18 (“Under these circumstances, Petitioner is entitled to an

evidentiary hearing on his habeas corpus petition.”), but this Court is affirmatively prohibited by

AEDPA from holding an evidentiary hearing. Fears v. Bagley, 462 F. App’x at 568 (“We may

rely on only the record that was before the state court in overcoming AEDPA's deference

requirements.”); Keaton v. Folino, 2018 WL 8584252, at *43 (“Mr. Keaton has limited his claim

to a contention that the state court’s fact finding was unreasonable, under section 2254(d)(2) ….

In light of Pinholster, my review is limited to the state court record. The Petitioner’s request for

an evidentiary hearing must be denied.”).

In addition, precisely because Petitioner challenges a state court factual determination,

i.e., that the victims were alone with Petitioner at the times of most of the indecent contacts,

Petitioner must contend with 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an

application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State

court, a determination of a factual issue made by a State court shall be presumed to be correct.

The applicant shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”). See also Lambert v. Blackwell, 387 F.3d 210, 234 - 36 (3d Cir. 2004)

(explaining the relationship between Section 2254(d)(2) and (e)(1)).

It is strikingly clear that where the state courts have adjudicated a claim on the merits, the

interplay between Sections (d)(2) (limiting review to the state court record) and (e)(1) requires

that the federal habeas petitioner carry his burden to rebut by clear and convincing evidence the

presumed correctness of state court factual findings by pointing to evidence solely contained in

the state court record. Pinholster, 563 U.S. at 206 (Breyer, J., concurring in part and dissenting

in part) (“There is no role in (d) analysis for a habeas petitioner to introduce evidence that was

not first presented to the state courts.”). See, e.g., Grant, 709 F.3d at 232 – 33 (finding that the

State courts’ factual finding was an unreasonable determination of the facts by pointing to

evidence solely contained in the state court record). Moreover, this is so despite any diligence on

Petitioner’s part in trying to develop a factual record in state court as he argued before this Court.

ECF No. 12 at 16 (“Federal courts have consistently held that it is error when a state court fails

to allow a defendant, who has diligently sought a hearing, the opportunity to develop a factual

base for issues he is attempting to raise on appeal.”). It is crystal clear that there is no diligence

exception to either Pinholster or its equivalent in Section 2254(d)(2), limiting federal habeas

review to the state court record and prohibiting the federal habeas court from conducting an

evidentiary hearing on any claims that were adjudicated on the merits by the state courts. Djerf

v. Ryan, 931 F.3d 870, 884 (9th Cir. 2019) (“Pinholster clarified that this statutory exception

[found in Section 2254(e)(2) which permits a federal court hearing in limited circumstances]

applies only to claims reviewed de novo; evidentiary expansion is prohibited for a claim subject

to AEDPA review, regardless of diligence.”); Foster v. Cassady, 4:15-CV-225-CAS-SPM, 2016

WL 3511726, at *2 (E.D. Mo. Apr. 1, 2016) (“Petitioner also argues that Williams v. Taylor, 529

U.S. 420 (2000), contains an ‘exception’ to Pinholster and permits discovery where a petitioner

has been diligent during the relevant stages in the state proceedings but the facts are still not

developed. That argument is also without merit.”), objections overruled, 4:15-CV-225

CAS/SPM, 2016 WL 3564240 (E.D. Mo. June 22, 2016); Ogle v. Mohr, 2:15-CV-776, 2016

WL 1457882, at *3 (S.D. Ohio Apr. 14, 2016) (“The Supreme Court has never recognized a

diligence exception to Pinholster…”); Lynch v. Hudson, 182 F. Supp. 3d 787, 791 (S.D. Ohio

2016) (“But Pinholster does not contain a due diligence exception. That is, Petitioner has not

cited and the Court is not aware of any language in either Pinholster itself or any decision

interpreting Pinholster suggesting that a petitioner who diligently attempts to convince the state

courts to consider new evidence, but ultimately does not succeed, can escape the reach of

Pinholster to have a federal habeas court consider his new evidence.”). Federal courts must rely

“on only the record that was before the state court in overcoming AEDPA's deference

requirements.” Fears v. Bagley, 462 F. App'x at 568 (citing Pinholster, 131 S.Ct. at 1400).

Accord McCamey v. Epps, 658 F.3d 491, 498 (5th Cir. 2011) (“Because the present case, like

Pinholster, concerns only claims under § 2254(d)(1), we must reject the district court's

application of Williams and decline to consider the evidence developed in the federal court

hearing. This court's review of McCamey's waiver therefore considers only the state-court

record.”). Hence, Petitioner’s requests for an evidentiary hearing, notwithstanding that Petitioner

asserts he acted with diligence in state court to attempt to adduce evidence in support of his

claims in the PCRA proceedings, are properly denied.

In light of AEDPA and the fact that the state courts adjudicated Petitioner’s claim of

ineffective assistance of counsel on the merits, Petitioner is limited to rebutting the state courts’

factual findings (that the victims were mostly alone with Petitioner at the time of the indecent

contacts) by pointing to clear and convincing evidence in the state court record that rebuts the

presumptively correct factual findings. Petitioner has simply failed to carry his burden.

c. Implicit credibility determinations must be deferred to.

We note that Petitioner points to the affidavits of three of the physician assistants, which

affidavits Petitioner’s PCRA counsel had attached to the PCRA Petition. These three affidavits

are all substantially the same and in relevant part state that “In a general sense and as it relates to

these specific examinations, this documentation [by the physician assistant of the examinations

conducted by Petitioner] requires constant communication among the doctor, patient and myself,

including recording my visual observations. At no time during these examinations would I have

been outside of the room, especially during the cardio examination.”1 Affidavits of Kelly

Heffner; Allison Karan; and Natalie Crescenze.

For present purposes, we assume that the attachment of the affidavits to the PCRA

Petition renders them part of the state court record within the contemplation of Cullen v.

Pinholster and 28 U.S.C. § 2254(d)(2) and (e)(1).

The state courts made a factual determination that Petitioner was mostly alone with the

victims at the time that the indecent contacts occurred.2 To the extent that Petitioner attempts to

rebut the state court factual determination that Petitioner was alone with the victims at the time

of the indecent contacts, Petitioner fails to carry his burden. The reason is clear. The state courts

1 The three affidavits along with the entire appendix attached to the PCRA petition were placed

under seal by the Court of Common Pleas of Allegheny County. Accordingly, for ease of any

appellate review but respecting the order of the Court of Common Pleas, this Court will include

the affidavits as an appendix to this Memorandum but will likewise place them under seal.

2 The State Courts found as follows: