# DULIK v. DISTRICT ATTORNEY OF GREENE COUNTY

> District Court, W.D. Pennsylvania · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10417558

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417558

## How later opinions describe it (automated extraction)

- finding that review from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of exhausting state court remedies
- stating that Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel claims

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH

STEVEN T. DULIK, JR., ) Civil Action No. 2: 21-cv-1071
)
Petitioner, ) Chief United States Magistrate Judge
) Cynthia Reed Eddy
v. )
)
DISTRICT ATTORNEY OF GREENE )
COUNTY, )
)
Respondent. )

MEMORANDUM OPINION1

Petitioner, Steven T. Dulik, Jr. (“Petitioner” or “Dulik”), has filed a pro se Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”), challenging the Judgment of Sentence
imposed on him at Criminal Case No. CP-30-CR-0000367-2016, by the Court of Common Pleas
of Greene County. (ECF No. 1). For the reasons that follow, the Petition will be denied as 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.
Jurisdiction
This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable
to prisoners in custody pursuant to a state court judgment. That provision allows a federal court
to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in

1 All parties have consented to the exercise of plenary jurisdiction by a United States
Magistrate Judge. (ECF Nos. 14 and 15).
violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a).2 Errors of state law
are not cognizable in a federal habeas action. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). It is Dulik’s burden, as petitioner, to prove he is entitled to the writ. 28 U.S.C. § 2254(a);
see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).

Relevant and Procedural Background
A. State Court Proceedings
Dulik was represented by Jessica L. Phillips, Esquire, during his trial and direct appeal.
The Superior Court in affirming the dismissal of Dulik’s petition for relief filed pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”) recounted the factual background and
evidence that led to Dulik’s arrest and conviction:
In October 2016, Dulik drove to the place of employment of his estranged
wife, Danielle, and demanded to speak to her about their children. Dulik refused
to leave when Danielle requested him to do so. He then dragged Danielle toward
his vehicle, which he had left running with the doors open. She screamed for help,
and yelled to her co-worker, Joseph Milliken, to call 911. Dulik told Milligan that,
if he called 911, Dulik would kill both Danielle and Milliken. Dulik then placed
Danielle in a headlock, and pointed the barrel of a gun against her head. Milliken
then tripped Dulik, which permitted Danielle to break free and run to safety. When
Dulik got back up, he pointed his gun at Milliken, before redirecting his attention
to Danielle, who had run to a business across the street. A worker at a nearby
business who witnessed the event retrieved his firearm and ran to the scene in order
to confront Dulik. Dulik then got into his vehicle and drove away. The Duliks’
two-year-old daughter witnessed the entire incident.

Police arrested Dulik and charged him with aggravated assault, firearms not
to be carried without a license, terroristic threats, simple assault, recklessly
endangering another person, and disorderly conduct. The matter proceeded to trial,
after which a jury convicted Dulik of all charges. The trial court imposed an

2 “In making a custody determination, [federal courts look] to the date that the habeas
petition was filed.” Barry v. Bergen County Prob. Dept., 128 F.3d 152, 159 (3d Cir. 1997).
According to the Pennsylvania Parole Board, Dulik was released on parole on March 3, 2021, with
a maximum sentence date of October 25, 2030. (ECF No. 10). The Court of Appeals for the Third
Circuit has recognized that the custody requirement of 28 U.S.C. § 2254 has been expanded to
include not only incarceration, but also terms of probation and parole. Lee v. Stickman, 357 F.3d
338, 342 (3d Cir. 2004).
aggregate sentence of three years and four months to fourteen years. This Court
affirmed Dulik’s judgment of sentence. See Commonwealth v. Dulik, 194 A.3d
702 (Pa. Super. 2018) (unpublished memorandum).

Commonwealth v. Dulik, No. 678 WDA 2019, slip op., filed March 10, 2020 (unpublished) (ECF
No. 1-3).
Dulik, through counsel, filed a post-sentence motion arguing that the verdict was against
the weight of the evidence as Dulik was convicted upon inconsistent testimony of eyewitnesses.
The post-sentence motion was denied and, thereafter, Dulik, through counsel, filed a timely Notice
of Appeal, to the Pennsylvania Superior Court raising these two issues:
(1) Was the verdict, as it pertains to the conviction of aggravated assault –
attempted bodily injury with a deadly weapon, against the weight of the evidence?

(2) Was the verdict. as it pertains to the conviction of aggravated assault –
attempted bodily injury with a deadly weapon, against the sufficiency of the
evidence?

Appellant’s Brief. After briefing, the Superior Court adjudicated both claims on their merits, and
affirmed the judgment of sentence by Memorandum filed July 23, 2018. Commonwealth v. Dulik,
No. 149 WDA 2017, slip op., filed July 23, 2018 (unpublished) (ECF No. 1-6). Dulik did not file
a petition for allowance of appeal to the Pennsylvania Supreme Court.
Unsuccessful on direct appeal, Dulik next sought relief under the PCRA by filing a timely
pro se petition. The trial court, now presiding as the PCRA court, appointed Benjamin Goodwin,
Esquire, and Amanda M. Como, Esquire, to represent Dulik through his PCRA proceedings.
Counsel filed an amended petition raising the following six (6) ineffective assistance of trial
counsel claims:
1. Trial counsel was ineffective for failing to object to the admission of the firearm
license exhibit;

2. Trial counsel was ineffective for failing to properly investigate the status of
Defendant’s concealed carry permit;
3. Trial counsel was ineffective for failing to present a defense that Dulik has a
license to carry permit, and did not receive notice from the Sheriff of any
revocation;

4. Trial counsel was ineffective for failing to permit Dulik to testify at trial and
partake in his defense;

5. Trial counsel was ineffective for failing to object to the offense gravity score,
and sentencing range for the charge of firearm carried without a license; and

6. Trial counsel was ineffective for failing to file an omnibus pretrial motion for
dismissal of charge of carrying a firearm without a license.

Amended PCRA Petition. On February 11, 2019, the PCRA Court held an evidentiary hearing
during which Jessica L. Phillips, Esquire, Dulik’s trial counsel; Deborah Stockdale, of the Greene
County Sheriff’s Office; and Steven T. Dulik, Jr., participating by audiovisual device, each
testified. See Transcript of PCRA Hearing, 2/11/2019. By Order filed April 3, 2019, the PCRA
Court found that each of ineffectiveness claims lacked merit and issued a notice of its intent to
dismiss the petition. By Order filed May 3, 2019, the PCRA Court entered its Final Order
dismissing the Amended Petition.
Dulik, through counsel, appealed the denial of his Amended PCRA Petition to the Superior
Court raising these three issues:
1. Whether the trial court erred in ruling that [Dulik] received effective assistance
of trial counsel when trial counsel failed to object to the admission of the
Commonwealth’s firearm license exhibit.

2. Whether the trial court erred in ruling that [Dulik] received effective assistance
of trial counsel when trial counsel failed to present the defense that [Dulik] had a
license to carry and did not receive notice of revocation of his license from the
Sheriff’s Office in accordance with 18 Pa. C.S.A. § 6109(i).

3. Whether the trial court erred in ruling that [Dulik] received effective assistance
of trial counsel when trial counsel failed to object to the offense gravity score and
sentencing range for the charge of firearm carried without a license.
Superior Court Opinion, 3/10/2020; see also Brief of Appellant.3 The Superior Court denied
each of the claims on its merits and the Pennsylvania Supreme Court denied Dulik’s Petition for
Allowance of Appeal.
B. Federal Court Proceedings

Having been denied relief in state court, Dulik filed in this Court a pro se habeas petition
pursuant to 28 U.S.C. § 2254, raising the following seven (7) Grounds for Relief:
GROUND ONE: Aggravated Assault with a Deadly Weapon – weight of the
evidence.

GROUND TWO: Ineffective Assistance of Counsel: Failure to Object to the
Admission of the Firearm License Exhibit.

GROUND THREE : Ineffective Assistance of Counsel: Failure to Investigate
Defendant’s License to Carry.

GROUND FOUR: Ineffective Assistance of Counsel: Failure to Present Defense
That Defendant Had a License to Carry and Did not Receive Notice From the
Sheriff of Any Revocation of the Same.4

GROUND FIVE: Ineffective Assistance of Counsel: Failure to Permit the
Defendant to Testify at Trial and Participate in His Defense.

GROUND SIX: Ineffective Assistance of Counsel: Failure to File Omnibus
Pretrial Motion For Dismissal of Charge of Carrying a Firearm Without a License.

GROUND SEVEN: Ineffective Assistance of Counsel: Failure to Object to
Offense Gravity Score and Sentencing Range for the Charge of Firearm Carried
Without a License.

3 Dulik’s counseled Concise Statement of Matters Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), filed on May 23, 2019, included a fourth issue which was not included in his
appellant brief to the Superior Court: “Whether the Trial Court erred in ruling that Appellant
received effective assistance of trial counsel when trial counsel failed to permit the Appellant to
testify during his trial and partake in his defense.”

4 The Petition indicates that this is “also a 5th and 14th Amendment for fundamental
fairness issue.” Pet. at Ground Four.
(ECF No. 1). Respondents filed an Answer in which they argue that the state courts properly
disposed of the issues presented on direct appeal and on PCRA collateral review. (ECF No. 11).
The Court has reviewed the filings of the parties, and the photocopies of the state court record
which Respondent provided the Court, including transcripts of the trial, sentencing hearing, and
PCRA hearing. The matter is fully briefed and ready for disposition..

The Standard for Habeas Relief under 28 U.S.C. § 2254
“The writ of habeas corpus stands as a safeguard against imprisonment of those held in
violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing
habeas corpus petitions “must be vigilant and independent . . . a commitment that entails
substantial judicial resources.” Id. This case is governed by the federal habeas statute
applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), “which imposes significant procedural and substantive limitations
on the scope” of the Court’s review. Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227
(3d Cir. 2017). Under 28 U.S.C. § 2254, federal courts in habeas cases must give considerable

deference to determinations of state trial and appellate courts. See Renico v. Lett, 599 U.S. 766,
772 (2010). Various standards must be met before the Court can review the merits of this habeas
petition.
1. Timeliness
Before the Court can address the merits of Dulik’s petition, it must first decide whether it
was timely filed. Romansky v. Superintendent Green SCI, 933 F.3d 293, 298 (3d Cir. 2019). Under
AEDPA, a state prisoner must file his federal habeas claims within one year of the date his
judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Respondents do not dispute that
the instant petition was timely filed, (ECF No. 11 at 5), and the Court has independently verified
that the petition was timely filed.
2. Has the Petition Presented Cognizable Habeas Claims?
Habeas relief may be afforded to a state prisoner only when his or her custody violates

federal law. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010). The instant Petition
raises seven grounds for relief. The six claims raising ineffectiveness of counsel each present a
cognizable claim. But as will be discussed below, to the extent Dulik is raising a claim about the
weight of the evidence such claim is not cognizable in this federal habeas case.
3. Federal Habeas Review of Properly Exhausted Claims
Among AEDPA’s procedural prerequisites is a requirement that the petitioner “has
exhausted the remedies available in the courts of the State” before seeking relief in federal court.
28 U.S.C. § 2254(b). An exhausted claim is one that has been “fairly presented” to the state courts
“by invoking one complete round of the State’s established appellate review process,” and which
has been adjudicated on the merits. Carpenter v. Vaughn, 296, F.3d 138, 146 (3d Cir. 2002)

(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)); Johnson v. Williams, 568 U.S.
298, 302 (2013). “Fair presentation” of a claim merely requires the petitioner to “present [the]
federal claim's factual and legal substance to the state courts in a manner that puts them on notice
that a federal claim is being asserted.” Greene v. Palakovich, 606 F.3d 85, 93 (3d Cir. 2010)
(citation omitted). For § 2254(d) purposes, a claim has been adjudicated on the merits “when a
state court has made a decision that finally resolves the claim on the basis of its substance, rather
than on a procedural, or other, ground.” Collins v. Sec'y of Pa. Dep't of Corr., 742 F.3d 528, 545
(3d Cir. 2014) (quoting Thomas v. Horn, 570 F.3d 105, 117 (3d Cir. 2009)).
When a claim is properly exhausted in the state courts and then raised on federal habeas
review, the level of deference afforded to the state-court decision is substantial. Bey v.
Superintendent Greene SCI, 856 F.3d 230, 236 (3d Cir. 2017), cert. denied sub nom., Gilmore v.
Bey, 138 S .Ct. 740 (2018). AEDPA “does not ‘permit federal judges to . . . casually second-guess

the decisions of their state-court colleagues or defense attorneys.’ ” Collins, 742 F.3d at 543
(quoting Burt v. Titlow, 571 U.S. 12, 14 (2013)). As a result, under § 2254(d), federal habeas relief
is unavailable for exhausted claims unless the state-court adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law . . . or
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).
This is an intentionally difficult standard to meet. Richter, 562 U.S. at 102. Section 2254(d)
“preserves authority to issue the writ in cases where there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with” clearly established Supreme Court
precedent. Id. Thus, to obtain federal habeas relief on an exhausted claim, “a state prisoner must

show that the state court's ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility of fairminded disagreement.” Id. at 103.
Finally, “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas
petition[er] must overcome the limitation of § 2254(d)[ ] on the record that was before that state
court”; “evidence introduced in federal court has no bearing on § 2254(d)[ ] review.” Cullen v.
Pinholster, 563 U.S. 170, 185 (2011) (footnote omitted). “[D]istrict courts cannot conduct
evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d).
Otherwise, federal habeas petitioners would be able to circumvent the finality of state court
judgments by establishing a new factual record.” Brown v. Wenerowicz, 663 F.3d 619, 629 (3d
Cir. 2011). “This would contravene AEDPA, which requires petitioners to diligently present the
facts in state court before proceeding to the federal courthouse.” Id.
Although mandatory, the exhaustion requirement “turns on an inquiry into what procedures

are ‘available’ under state law.” O’Sullivan, 526 U.S. at 847. Under Pennsylvania law, a federal
claim becomes exhausted once it is presented to the Pennsylvania Superior Court, either as a direct
appeal from a state criminal conviction or as an appeal from a PCRA Court’s denial of post-
conviction relief. See Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (finding that review
from the Pennsylvania Supreme Court is unavailable, and therefore not required, for purposes of
exhausting state court remedies). 5
Nor may a federal court grant a habeas petition if the state court’s decision rests on a
violation of a state procedural rule, even if the claim is properly exhausted. Johnston v. Pinchak,
392 F.3d 551, 556 (3d Cir. 2004). This procedural bar applies only when the state rule is
“independent of the federal question [presented] and adequate to support the judgment.” Leyva v.

Williams, 504 F.3d 357, 365-66 (3d Cir. 2007) (citing Nara v. Frank, 488 F.3d 187 (3d Cir. 2007)).
4. Federal Habeas Review of Unexhausted, Defaulted Claims
If a claim has not been fairly presented “to the state courts but state law clearly forecloses
review, exhaustion is excused, but the doctrine of procedural default may come into play.”
Carpenter, 296 F.3d at 146 (citations omitted). The doctrine of procedural default serves as a

5 On May 9, 2000, the Pennsylvania Supreme Court issued Order No. 218 that declares that
federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the
exhaustion requirement. In re: Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam). The
Court of Appeals for the Third Circuit has recognized the validity of this Order. See Lambert v.
Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004), cert. denied, 544 U.S. 1063 (2005).
corollary to the exhaustion requirement and provides a basis for a federal court to refuse to review
a habeas claim. Federal courts may not consider the merits of a procedurally defaulted claim
unless the petitioner can demonstrate “cause” to excuse the default and “actual prejudice resulting
from the alleged constitutional violation.” Preston v. Superintendent Graterford SCI, 902 F.3d

365, 375 (3d Cir. 2018) (quoting Davila v. Davis, -- U.S. ---, 137 S. Ct. 2058, 2065 (2017)
(quoting Wainwright v. Skyes, 433 U.S. 72 (1977)), cert. denied, -- U.S. ---, 139 S. Ct. 1613
(2019).6 The burden lies with a petitioner to demonstrate circumstances that would serve to
excuse a procedural default. See Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002); see also
Coleman, 501 U.S. at 750.
“Cause for a procedural default exists where something external to the petitioner,
something that cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the
State's procedural rule.” Maples v. Thomas, 565 U.S. 266, 280 (2012) (alterations in original)
(citations and internal quotation marks omitted). To establish prejudice, a petitioner must show
not merely that there were errors that created a possibility of prejudice, but that they “worked to

his actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Holland v. Horn, 519 F.3d 107, 112 (3d Cir. 2008) (quoting United States v. Frady,
456 U.S. 152, 170 (1982)). If cause and prejudice are established, the federal court reviews the

6 A petitioner, alternatively, can overcome a procedural default by demonstrating that the
court’s failure to review the defaulted claim will result in a “miscarriage of justice.” See Coleman
v. Thompson, 501 U.S. 722, 748 (1991); McCandless v. Vaughn, 172 F.3d 225, 260 (3d Cir. 1999).
“However, this exception is limited to a ‘severely confined category [] [of] cases in which new
evidence shows ‘it is more likely than not that no reasonable juror would have convicted [the
petitioner]’.” Preston v. Superintendent Graterford SCI, 902 F.3d 365,375 n.11 (3d Cir. 2018)
(quoting McQuiggin v. Perkins, 569 U.S. 383, 395 (2013) (internal alteration in original) (quoting
Schlup v. Delo, 514 U.S. 298, 329 (1995)).
claim “de novo because the state court did not consider the claim on the merits.” Bey, 856 F.3d at
236 (citation omitted).
Each of Dulik’s claims will be reviewed with these standards in mind.
Discussion

A. Ground One - Weight of the Evidence Claim

In his first ground for relief, Dulik raises a weight of the evidence claim as to his conviction
for assault with a deadly weapon. A weight of the evidence claim is not cognizable under the
federal habeas corpus statute because it raises solely an issue of state law. Tibbs v. Florida, 457
U.S. 31, 37-45 (1982) (weight of evidence claims raise questions of credibility; it is different from
a claim that the evidence was insufficient to support the conviction). A challenge to the weight of
the evidence necessarily “concedes that there is sufficient evidence to sustain the verdict. . . . An
allegation that the verdict is against the weight of the evidence is addressed to the discretion of the
trial court. . . . [T]he role of the trial judge is to determine that notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice.” Rainey v. Varner, 603 F.3d 189, 199 (3d Cir. 2010) (quoting
Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000)). Such a “weight of the evidence”
claim is simply not cognizable by a federal court, entertaining a habeas petition from a state
prisoner. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“[F]ederal habeas courts [have]
no license to redetermine credibility of witnesses whose demeanor has been observed by the state
trial court”). Accordingly, this claim cannot afford Dulik relief.
B. Grounds Two Through Seven - Ineffective Assistance of Trial Counsel
Grounds Two through Seven raise ineffective assistance of counsel claims in violation of
the Sixth Amendment. Clearly established federal law in governing ineffectiveness claims is set
forth in the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984). See Premo v. Moore,
562 U.S. 115, 121 (2011). This same standard has been incorporated by Pennsylvania courts as
the proper basis to consider challenges for ineffective assistance of counsel under the Pennsylvania
constitution. See Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987) (stating that

Pennsylvania courts apply elements of the Strickland test to ineffective assistance of counsel
claims). A Pennsylvania court’s resolution of an ineffective assistance claim, therefore, is
presumed to apply clearly established federal law and is due the substantial deference required by
28 U.S.C. § 2254(d).
Under the first prong of Strickland, often referred to as the “performance” prong, a
petitioner must show that counsel’s performance fell below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. Under the second prong, often referred to as the
“prejudice” prong, a petitioner must demonstrate that the deficient performance prejudiced him,
meaning that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 692. Although a petitioner must satisfy both prongs to succeed on an

ineffectiveness claim, the Supreme Court noted that “[i]f it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course
should be follows.” Id. at 697. See also Mathias v. Superintendent Frackville SCI, 876 F.2d 462,
477 (3d Cir. 2017). It is self-evident that counsel cannot be ineffective for failing to pursue
meritless claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
1. Grounds Two, Three, Four, and Six

Dulik’s second, third, fourth, and sixth grounds for relief are centered around ineffective
assistance of counsel claims related to the revocation of his concealed carry permit. Dulik
unsuccessfully raised these issues or their substantial equivalents during his PCRA proceedings
and the Superior Court adjudicated the claims on their merits. Thus, these claims will be reviewed
under the deferential standard of review under AEDPA. See 28 U.S.C. § 2254(d).
The Superior Court found that Dulik’s ineffective assistance of counsel claims regarding
the revocation of his concealed carry permit lacked merit. In explaining its conclusions, the

Superior Court stated:
In his first issue, Dulik contends that trial counsel was ineffective for failing
to object to the Commonwealth’s Exhibit 14, which is a computer printout of a Gun
Permit Check from the National Criminal Information Center (“NCIC”) indicating
that his license to carry a firearm was revoked. According to Dulik, Exhibit 14 was
the sole evidence used by the Commonwealth to establish that his license had been
revoked, which is an essential element of firearms not to be carried without a
license. Dulik claims that no evidence was presented at trial “to establish the
source, accuracy, authenticity, reliability or the manner in which the data was
compiled or recorded.” Dulik’s Brief at 15-16. On this basis, he argues that counsel
was ineffective for failing to object to the exhibit based on “lack of foundation, lack
of authenticity, hearsay.” Id. at 15. Dulik further challenges the PCRA court’s
determination that trial counsel was not ineffective for failing to object to Exhibit
14 because she believed that Dulik’s license had been revoked. Dulik asserts that
counsel’s personal belief did not negate her obligation to object to an exhibit that
contained hearsay, and lacked authentication and foundation.

The PCRA court determined that Dulik’s first issue lacks merit because the
Commonwealth presented other evidence at trial which established that Dulik’s
firearm license had been revoked. Specifically, the PCRA court heard the
testimony of Dulik’s trial counsel, who testified that Dulik told her that he had
received a letter indicating that his license had been revoked. See PCRA Court
Order, 4/3/19, at 7; see also N.T. PCRA Hearing, 2/11/19, at 6. Counsel also
testified that she personally visited the Greene County Sheriff’s Office and obtained
confirmation from Deborah Stockdale of the Sheriff’s Office that Dulik’s license
had been revoked, and that a letter was sent to Dulik notifying him of the
revocation. See PCRA Court Order, 4/3/19, at 7; see also N.T. PCRA Hearing,
2/11/19, at 17, 20, 22, 25. Counsel further testified that she was provided with an
email sent by Ms. Stockdale to Sheriff Brian Tennant (“Exhibit 1”), advising that
Dulik had called the Sheriff’s Office and wanted to know why his license had been
revoked. N.T. PCRA Hearing, 2/11/19, at 17, 20, 21.

Ms. Stockdale also testified at the evidentiary hearing, and confirmed that
Dulik’s license had been revoked, and that she had sent a letter to him via first class
mail advising of this fact. See PCRA Court Order, 4/3/19, at 7; see also N.T. PCRA
Hearing, 2/11/19, at 33-34. Ms. Stockdale further testified that, after she sent the
revocation letter, Dulik called the Sheriff’s Office, indicated that he had received
the letter, and was “[e]xtremely upset and wanted to know why his license was
revoked.” N.T. PCRA Hearing, 2/11/19, at 34, 14. Ms. Stockdale then prepared
an email to the Sheriff (Exhibit 1), advising him that Dulik had called and wanted
to know why his license had been revoked. Id. at 34-35; see also Commonwealth
Exhibit 1. Ms. Stockdale confirmed that Dulik’s counsel came to the Sheriff’s
office and inquired as to the status of Dulik’s license. Id. at 36.

The PCRA court credited the testimony of trial counsel and Ms. Stockdale,
and determined that their testimony established that counsel’s investigation
revealed that Dulik’s license had, in fact, been revoked. See PCRA Court Order,
4/3/19, at 7. On this basis, the court determined that Dulik’s first ineffectiveness
claim warranted no relief. See id. at 8, 11, 17-18.3

3 Notably, counsel also testified that she did not object to Exhibit 14
because it was introduced through the testimony of a state trooper
who laid a foundation for the exhibit to be admitted as a business
record by explaining the manner in which he had obtained that
document in the usual course of his investigation. See N.T. PCRA
Hearing, 2/11/19, at 23.

Viewing the evidence in the light most favorable to the Commonwealth, as
the prevailing party, we conclude that the PCRA court’s ruling is supported by the
evidence of record and is free of legal error. The testimony of trial counsel and Ms.
Stockdale showed that Dulik’s license was revoked. Moreover, contrary to Dulik’s
claim, Exhibit 14 was not the only evidence presented at trial to establish that his
firearm had been revoked. Accordingly, even if counsel had successfully objected
to the admission of Exhibit 14, Dulik cannot demonstrate that there is a reasonable
probability that the outcome of the proceedings would have been different. See
Johnson, supra. We therefore affirm the PCRA court’s determination that Dulik’s
first ineffectiveness claim entitles him to no relief.

In his second issue, Dulik contends that trial counsel was ineffective for not
challenging the notice he received advising of the license revocation. Specifically,
the revocation letter that the Sheriff sent to Dulik was not certified, as required by
18 Pa.C.S.A. § 6109(i). . . .

Dulik additionally argues that, because the revocation letter was not
preserved by the Greene County Sheriff’s Office, the contents of the notice could
not be established. Dulik posits that, through appropriate investigation, counsel
should have discovered and argued that the certification requirement of § 6109(i)
was not met.

The PCRA court acknowledged that, pursuant to § 6109(i), the Sheriff’s
Office is required to send a revocation letter by certified mail, and that the Sheriff’s
Office did not satisfy this requirement because it sent the revocation letter to Dulik
via first class mail. However, based on the court’s interpretation of § 6109(i), it did
not find that the lack of certification in any affected, or provided a defense to, the
revocation determination because counsel’s investigation revealed that Dulik had
actual notice of the revocation on the date of the incident in question.4

4The PCRA court concluded that a failure to send a revocation letter
by certified mail provided a defense only to the summary offense of
failing to surrender the license within five days of receipt of the
revocation notice. See PCRA Court Order, 4/3/19, at 9; see also 18
Pa.C.S.A. § 6109(i) (providing that “[a]n individual whose license
is revoked shall surrender the license to the issuing authority within
five days of receipt of the notice . . . . An individual who violates
this section commits a summary offense.”).

First, Dulik’s trial counsel testified that Dulik told her that he received a
letter from the Sheriff’s Office indicating that his license had been revoked. See
PCRA Court Order, 4/3/19, at 7; see also N.T. PCRA Hearing, 2/11/19, at 6. . . .
Because ample evidence demonstrated that Dulik had received actual notice of the
revocation, and that he was aware of the revocation on the date of the incident in
question, the PCRA court determined that counsel was not ineffective for failing to
challenge the lack of a certified revocation letter. See PCRA Court Order, 4/3/19,
at 8, 11.

. . . [W]e conclude that the PCRA court’s factual findings are supported by
the evidence of record. Accordingly, we will not disturb them. See Ford, 44 A.3d
at 1194. . . . . Here, Dulik’s receipt of the notice was not disputed, and the evidence
showed that he knew that his license was revoked. As the PCRA court’s conclusion
that counsel was not ineffective for failing to challenge the lack of certification is
supported by the record, we affirm its determination that Dulik’s second
ineffectiveness clam warrants no relief.

Superior Court Memorandum, 3/10/2020, at 5-10 (ECF No. 1-3).

Under AEDPA’s deferential standard, the Court finds that Dulik has no debatable claim
that the state court unreasonably applied clearly established federal law or reached an unreasonable
determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). As a result,
Grounds Two, Three, Four, and Six provide no grounds for relief.7

7 To the extent Dulik is seeking to raise a “5th and 14th Amendment fundamental fairness”
claim in Claim Four, such an issue has never been raised in the state courts. Thus, such a claim
while deemed exhausted is procedurally defaulted. On the record before this Court, there is no
ground on which to excuse the procedural default.
2. Ground Five - Failure to Permit the Defendant to Testify at Trial and Participate in His
Defense.
In his fifth ground for relief, Dulik contends that his trial counsel failed to permit him to
testify and participate in his defense. Dulik raised this claim in his Amended PCRA Petition and

his Concise Statement of Matters Complained of On Appeal, but the issue was not in his brief to
the Pennsylvania Superior Court on collateral review and, as a result, the claim is unexhausted.8
See Brief of Appellant, Questions Presented, at 4; and PA Rule of Appellate Procedure 2116
(explaining that the appellate brief “must state concisely the issues to be resolved” and that “[n]o
question will be considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). Given the passage of time and the fact that Dulik has already pursued a
PCRA action, this unexhausted claim will be deemed exhausted, but is procedurally defaulted.9
See e.g., Sistrunk v. Vaughn, 96 F.3d 666, 671 n.4 (3d Cir. 1996) (“the rules [of Pennsylvania’s

8 Exhaustion is not a jurisdictional limitation and federal courts may review the merits of a
state petitioner’s claim prior to exhaustion when no appropriate state remedy exists. Christy v.
Horn, 115 F.3d 201, 206 (3d Cir. 1997). If a petitioner presents unexhausted habeas claims to a
federal court, but state procedural rules bar further state court review, the federal court will excuse
the failure to exhaust and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d
Cir. 2001). Although deemed exhausted, such claims are considered procedurally defaulted.
Coleman v. Thompson, 501 U.S. 772 (749 (1991); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.
2000).

9 “A State ordinarily is required to assert a procedural default in its answer if it intends to
rely on that defense.” Szuchon v. Lehman, 273 F.3d 299, 321 (3d Cir. 2001). To the extent that
Respondent did not raise procedural default as to any of the claims which this Court finds to have
been procedurally defaulted, this Court has discretion to raise the issue sua sponte. Long v. Wilson,
393 F.3d 390 403 (3d Cir. 2004) (“raising procedural habeas issues furthers the interests of comity
and federalism. We have stated that, because such concerns are so important, it is not exclusively
up to the parties to decide whether habeas procedural issues should be raised or waived.”) (citations
omitted); Szuchon, 272 F.3d at 321 n.13 (holding that in the interests of comity and federalism a
court may raise procedural default sua sponte); 28 U.S.C. § 2254(b)(3) (“State shall not be deemed
to have waived the exhaustion requirement or be estopped from reliance upon the requirement
unless the State, through counsel, expressly waives the requirement”).
appellate procedure] dictate that an issue raised at the trial level but not preserved on appeal will
not be considered by any subsequent appellate court.”).
Dulik has failed to establish either cause and prejudice or that a fundamental miscarriage
of justice will occur if this Court does not address this claim on its merits. See Schlup v. Delo, 514

U.S. 298, 326 (1995). As a result, there is no ground on which to excuse the procedural default.
Thus, Ground Five cannot form the basis for the grant of federal habeas relief.
3. Ground Seven - Failure to Object to Offense Gravity Score and Sentencing Range for
the Charge of Firearm Carried Without a License.
In his seventh and final ground for relief, Dulik contends that trial counsel was ineffective
for failing to object to the offense gravity score that the trial court applied to his firearms
conviction. Dulik unsuccessfully raised this same claim to the Superior Court on collateral review,
which adjudicated the claim on its merits. Therefore, this claim will be reviewed under the
deferential standard of review under AEDPA. See 28 U.S.C. § 2254(d).
The Superior Court found that the PCRA Court’s conclusion that counsel was not

ineffective in failing to object to the offense gravity score was supported by the record. In support
of this conclusion, the Superior Court stated,
The PCRA court concluded that testimony from several witnesses regarding
Dulik’s threats to Danielle and Millikin that he would use the gun to “kill” them
provided sufficient evidence that the gun was loaded. See PCRA Court Order,
4/3/19, at 13 (stating “[t]he [c]ourt is convinced that threats made to “kill” with a
handgun, suggests certainly through circumstantial evidence, that [Dulik]
possessed a loaded weapon.”). On this basis it concluded that trial counsel was not
ineffective for failing to object to the OGS of 9. See id. at 14. . . .

Dulik’s own threats to kill Danielle and Millikin provided some indicia that
his gun was loaded. Thus, the PCRA court’s conclusion that counsel was not
ineffective in failing to object to the OGS score of 9 is supported by the record. We
therefore affirm the PCRA court’s determination that Dulik’s third ineffectiveness
claim entitles him to no relief.

Superior Court Opinion, 3/10/2020, at 11-12 (ECF No. 1-3).

Under AEDPA’s deferential standard, the Court finds that the state court’s application of
Strickland was objectively reasonable, and resulted in an outcome that can reasonably be justified
under Strickland. See 28 U.S.C. § 2254(d). Thus, Ground Seven entitles Dulik to no habeas relief.
C. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas petition.
It provides that “[a] certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” “When the district court denies a
habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional
claim, a [certificate of appealability] 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). When the district
court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims debatable
or wrong.” Id. Applying those standards here, the Court concludes that jurists of reason would not
find it debatable whether each of Dulik’s claims are either non-cognizable, defaulted, or meritless
and should be denied.
Conclusion
For all of the above reasons, the instant habeas petition for a writ of habeas corpus will be
denied. A certificate of appealability will be denied as well. An appropriate order follows.

DATED: March 31, 2022 BY THE COURT:

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge

cc: STEVEN T. DULIK, JR.
136 Cumberland Village
Carmichaels, PA 15320
(via U.S. First Class Mail)

David J. Russo
Greene County District Attorney's Office
(via ECF electronic notification)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417558. Public record. Not legal advice.