GROSSO v. ZAKEN

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RICHARD GROSSO, )

)

Petitioner, ) Civil Action No. 23-71E

)

v. ) District Judge Susan Paradise Baxter

) Magistrate Judge Maureen P. Kelly

SUPERINTENDENT MICHAEL J. ZAKEN; _ )

THE DISTRICT ATTORNEY OF ERIE ) Re: ECF Nos. 32 and 39

COUNTY, and THE ATTORNEY )

GENERAL OF THE STATE OF )

PENNSYLVANIA, )

)

Respondents. )

MEMORANDUM ORDER

Richard Grosso (‘Petitioner’) is a state prisoner currently incarcerated at the State

Correctional Institution at Greene (“SCI-Greene’”’) in Waynesburg, Pennsylvania.

Petitioner initiated this action by submitting his initial Petition under 28 U.S.C. § 2254

for Writ of Habeas Corpus by a Person in State Custody (the “Initial Petition”), which was

received by this Court on March 16, 2023. ECF No. 1. The Initial Petition was accompanied by

a supporting Memorandum of Law. ECF No. 1-1. Petitioner paid the filing fee on

March 21, 2023. ECF No. 3. The Initial Petition and Memorandum of Law were formally filed

the same day. ECF Nos. 4 and 5.

On March 30, 2023, pursuant to this Court’s Order, ECF No. 2, Petitioner submitted an

Amended Petition on this Court’s approved form. ECF No. 11. The Amended Petition explicitly

incorporates his Memorandum of Law. Id. at 8.

In the Amended Petition, Petitioner attacks convictions at Docket No. CP-25-CR-1568-

2019 in the Court of Common Pleas of Erie County, Pennsylvania, for Escape, in violation of

18 Pa. C.S.A. § 5121, and Disorderly Conduct, in violation of 18 Pa. C.S.A. § 5503. ECF No. 11

at 1. See also Docket, Com. v. Grosso, No. CP-25-CR-1568-2019 (CCP Erie County)

(available at https://uj sportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-25-CR-

0001568-2019&dnh=Bt8eRfm%2BeVDm2ko W Wb4pkw%3D%3D (last visited Feb. 12, 2024)).

Currently before this Court are Petitioner’s Motion for Leave to Conduct Discovery

under Fed.H.C.R. 6 (“Discovery Motion”), ECF No. 32, and his correspondence dated December

15, 2023, ECF No. 39, which the Court construes of as a motion for status update. The

Discovery Motion is fully briefed, ECF Nos. 34 and 38, is ripe for disposition, and will be

denied. Petitioner’s request for status update is mooted by this Memorandum Order, and will be

denied as moot.

I. FACTUAL HISTORY AND PROCEDURAL BACKGROUND

The following is a recitation of the relevant factual and procedural history by the

Pennsylvania Superior Court in its opinion relative to Petitioner’s appeal from the denial of post-

conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”),

42 Pa. C.S.A. § 9541 et seq.

On March 15, 2019, Appellant attempted to escape from SCI-

Albion by scaling fences and moving between prison yards before

guards apprehended him in an unauthorized area of the prison. On

April 8, 2019, the Commonwealth filed a Criminal Complaint

charging him with Criminal Attempt - Escape. Public defender

Alan Natalie, Esq., entered his appearance on behalf of Appellant

prior to the June 4, 2019 preliminary hearing. On July 24, 2019,

the Commonwealth filed a Criminal Information charging

Appellant with Escape, but not Attempted Escape, stating that

Appellant “did attempt to escape from Albion State Correctional

Institute ...; thereby [Appellant] did commit the crime of

Escape[.]” The complaint and the information additionally charged

Appellant with Disorderly Conduct because his conduct forced the

prison “to go into lock down causing disruption to the normal

routine of the facility.”

On February 28, 2020, counsel filed a motion to withdraw, citing a

breakdown in the attorney-client relationship based upon

Appellant's numerous pro se filings, which included allegations of

counsel ineffectiveness. The trial court granted counsel's request to

withdraw on March 2, 2020, and Appellant waived his right to

counsel on March 5, 2020.

On March 11, 2020, the court held a plea hearing at which the

Assistant District Attorney (ADA) reviewed Appellant's waiver of

his right to counsel and clarified, among other things, that “if any

errors or rule violations occur and you don't object to them at the

right time, you'll lose your right to object permanently.” Appellant

reiterated that he voluntarily waived his right to counsel. The ADA

then described the charges as set forth in the Criminal Information,

stating that as a result of his “attempt to escape,” he committed

“the crime of [E]scape.”

During the plea colloquy, the trial court asked Appellant if he

understood the charges. When Appellant indicated that he was

being charged with Attempted Escape, the court corrected him

explaining that Escape “is the official term[.]” At the conclusion of

the colloquy, the court accepted Appellant's plea to Escape and

Disorderly Conduct, finding it “knowing and voluntary.”

Subsequently, the trial court reappointed Attorney Natalie upon

Appellant's request for sentencing counsel. The court sentenced

Appellant to 27 to 54 months of incarceration for Escape and one

year of probation on the Disorderly Conduct charge, to be served

consecutively. The court stated that the sentence imposed for

Escape was “at the lowest end of the standard range.”

Attorney Natalie filed a notice of appeal in this Court on behalf of

Appellant and a “Statement of Intent to File an

Anders/McClendon Brief, pursuant to Pa.R.[A.]P. 1925(c)(4), in

Lieu of a Statement of Matters Complained of on Appeal” (Anders

Statement). Counsel indicated that Appellant maintained that he

should have been prosecuted for Attempted Escape rather than

Escape because he “did not achieve full removal” from the prison.

Counsel additionally acknowledged that Appellant sought to

challenge the consecutive aspect of his probationary sentence for

Disorderly Conduct.

In its Pa.R.A.P. 1925(a) Opinion, the trial court opined that

Appellant's allegations of error related to his guilty plea were

“belied by the record,” given that Appellant entered his plea

“knowingly, voluntarily, and intelligently.” The trial court

additionally rejected Appellant's challenge to the consecutive

nature of his Disorderly Conduct sentence, which the court deemed

to be within the discretion of the court. Thereafter, Appellant filed

a document pro se seeking to discontinue his appeal, and this Court

issued an order to that effect on October 7, 2020.

Within weeks, Appellant filed a pro se PCRA petition on October

19, 2020. Following his appointment as PCRA counsel, Attorney

William Hathaway, Esq., filed a supplemental PCRA petition

setting forth Appellant's challenge to the “integrity of the plea

proceeding” due to the confusion regarding the charges. The

Supplemental PCRA Petition additionally alleged that the ADA

committed prosecutorial misconduct in allowing the charge of

Escape to proceed when the facts supported only Attempted

Escape and that Attorney Natalie provided ineffective assistance of

counsel by failing to file a petition to withdraw Appellant's plea

prior to sentencing. It also asserted a claim of ineffective assistance

of counsel based upon counsel's alleged failure to challenge the

discretionary aspects of Appellant's sentence for Disorderly

Conduct.

In response to Appellant's supplemental petition, — the

Commonwealth conceded the arguable merit of Appellant's

ineffectiveness claim related to his plea given Appellant's “facially

valid concern for confusion and misunderstanding,” regarding the

“precise crime to which he entered a guilty plea.” The

Commonwealth emphasized, however, that Appellant could not

demonstrate ineffective assistance of counsel because Appellant

represented himself at the plea hearing. The Commonwealth

further noted that Attorney Natalie was “not ineffective in failing

to go against [Appellant's] own willful acts or failing to override

[Appellant's] own missteps at his guilty plea,” and rejected claims

of prejudice resulting from the plea given that Attempted Escape

and Escape are both felonies of the third degree that resulted in the

same offense gravity score for sentencing purposes. It additionally

countered Appellant's challenge to his sentence for Disorderly

Conduct by asserting that the sentence was within the discretion of

the trial court.

Following an evidentiary hearing, the PCRA Court issued an

opinion in support of denying PCRA relief on December 20, 2021,

and Appellant filed a notice of appeal on January 9, 2022. The

record does not indicate that the PCRA Court requested Appellant

to file a Pa.R.A.P. 1925(b) Statement. On January 14, 2022, the

PCRA Court entered an order indicating that it would not file an

additional opinion, relying instead on its prior orders and opinions.

Com. v. Grosso, 287 A.3d 860 (Table), No. 69 WDA 2022, 2022 WL 7297683, at *1-3 (Pa.

Super. Ct. Oct 13, 2022) (original footnotes omitted, additional footnote added), appeal denied,

293 A.3d 564 (Pa. 2023). □□□ also Docket, Grosso, No. 69 WDA 2022 (available at

https://ujsportal.pacourts.us/Report/PacDocketSheet?docketNumber=69%20WDA%202022&dn

h=FxCiEZ3BaXqB9j1WPEMF2Q%3D%3D (last visited Feb. 12, 2024)).

In his PCRA appeal, Petitioner raised the following issues:

A. Whether the appellant's entry of a guilty plea to escape was

invalid in that the charging documents and all relevant notice

afforded to the appellant referenced that he was charged with

attempted escape?

B. Whether the guilty plea was rendered void due to the combined

prosecutorial misconduct and ineffective assistance of counsel in

permitting the appellant to enter a guilty plea to a criminal offense

that he was not charged with and then failing to seek to withdraw

that ill-gotten plea after reassuming legal representation?

C. Whether the appellant was afforded ineffective assistance of

counsel in that the conduct of the appellant factually and legally

supported an attempted escape or arguably a mere administrative

violation of the institution given that he was detained within the

confines of the institution in an unauthorized area without any

substantial step undertaken toward escaping?

D. Whether the appellant was afforded ineffective assistance of

counsel in that defense counsel failed to preserve and present a

sentencing claim on his behalf that the conviction for disorderly

conduct should have merged for purposes of sentencing?

Grosso, 2022 WL 729768, at *3 (internal citation omitted). The Superior Court found all of

these issues to have been waived, either due to Petitioner’s pro se withdrawal of his direct

appeal, or due to his failure to adequately brief the issue. Id. at *5-6, See also Pa. R.A.P.

2119(a) (requiring that each point in an argument be “followed by such discussion and citation of

authorities as are deemed pertinent”). In a footnote, the Superior Court additionally indicated

that the ineffective assistance of counsel portions of Issue B lacked merit, because Petitioner

waived his right to counsel during his guilty plea, and because Petitioner had failed to show

prejudice because the crimes of Attempted Escape and Escape both would subject him to the

same offense gravity score at sentencing under state law. Id. at *5 n.21.

Petitioner timely sought leave to appeal from the Pennsylvania Supreme Court on

October 27, 2022; however, allocatur was denied on March 2, 2023. Docket, Com. v. Grosso,

No. 264 WAL 2022 (available at https://uj sportal.pacourts.us/Report/PacDocketSheet?docketNu

mber=264%20WAL%202022&dnh=luOTritWLYfU1gZY3HymyQ%3D%3D — (last__visited

Feb. 12, 2024)).

Il. THE AMENDED FEDERAL HABEAS PETITION

Petitioner initiated this federal habeas action March’ 2023, as stated above. In the

pending Amended Petition, ECF No. 11, Petitioner asserts the following grounds for relief.

Ground One: Petitioner was wrongly charged with escape when he never broke custody

from his jailers.

(a) Supporting facts[]: Petitioner should have been charged, if at all, with

“Criminal Attempt” 18 Pa C.S. § 901, not Escape 18 Pa. C.S. § 5121,

since he never left the jail. When Petitioner agreed to plead guilty, the

Court and prosecutor lead Petitioner into believing Petitioner was pleading

guilty to criminal attempt it wasn’t until he received a new “status sheet”

at SCI-Greene that he learned he was convicted of escape. Trial Counsel

should have had the escape charge dismissed and/or objected to said

Escape charge during the sentencing phase. See Petitioner’s

Memorandum of Law.

Id. at 5

Ground Two: (a) Whether Petitioner should have been charged with escape, but instead

was led to believe he was pleading guilty to criminal attempt (both

offenses contain 2 different statutes);

(b) Whether escape and disorderly conduct offenses & sentences should

have merged for sentencing purposes since the elements of each offense

were directly related to each other;

(c) Whether Mr Natalie was ineffective in his assistance by failing to raise

any timely objections to the escape charge since Petitioner never escaped,

nor objected at the sentencing phase to the non-merger of consecutive

sentences imposed and intending to file an Anders-McClendon brief on

direct appeal. -

Id. at 7.

At “Ground Three,” Petitioner explicitly re-raises his prior grounds for relief, but does

not assert any additional basis for relief. Id. at 9.

Respondents answered the Amended Petition on May 5, 2023. ECF No. 19. Petitioner

submitted a Traverse on July 11, 2023. ECF No. 30.

On August 8, 2023, Petitioner submitted the Discovery Motion. ECF No. 32.

Respondents filed their Response in opposition on September 8, 2023. ECF No. 34. Petitioner

filed a Reply on October 3, 2023. ECF No. 38.

The pending Discovery Motion is ripe for consideration.

Ill. THE DISCOVERY MOTION (ECF No. 32)

In the pending Discovery Motion, ECF No. 32, Petitioner seeks the following discovery

from Respondents’ attorney Michael Burns of the Erie County District Attorney’s Office.

1. The misconduct report from SCI Albion dated March 15, 2019, charging

Petitioner with “Escape.”

2. The written security report from SCI Albion, transcribed by security captain

Howard Sissem on or after March 15, 2019, relating to Petitioner's alleged escape

attempt at SCI Albion on March 15, 2019.

3. The various maps devised by the security office at SCI Albion, which clearly

depict Petitioner's precise “escape route” within the confines of SCI Albion, and

which also clearly show where Petitioner was actually apprehended during the

early morning hours of March 15, 2019, within the SCI Albion facility.

4. The actual police Criminal Complaint with the affidavit of probable cause,

alleging he actually escaped from custody, thus breaking custody from SCI

Albion on March 15, 2019.

5. The written definitions of the Commonwealth of Pennsylvania’s criminal offenses

of: Escape, 18 Pa.C.S. §5121, and Criminal Attempt, 18 Pa.C.S. §901.

6. The “Sentencing Order” issued June 18, 2020, and signed by Judge David Ridge,

which shows Petitioner was actually sentenced for the offenses of Escape and

Disorderly Conduct.

ECF No. 32 at 1-2.

Petitioner also seeks to propound the following proposed Requests for Admission on

Respondents.

a. Mr. Grosso was found, laying still, by the weight-pit area of the recreation yard at

SCI Albion, on the morning of March 15, 2019.

b. Mr. Grosso did not breach the outer perimeter fence at SCI Albion on March 15,

2019.

c. Mr. Grosso did not physically touch the outer perimeter fence at SCI Albion on

March 15, 2019.

d. Mr. Grosso admitted to the SCI Albion security captain that he had changed his

mind about escaping.

e. Mr. Grosso did not breach the “four-foot” fence paralleling the outer perimeter

fence at SCI Albion on Mach 15, 2019,

Id. at 3-4. Petitioner’s justification for this discovery is that he was not guilty of Escape or

Attempted Escape.! Id. at 2-4.

| This is a reference to Commonwealth v. McCloskey, 341 A.2d 500 (Pa. Super. Ct. 1975),

which Petitioner cites multiple times throughout his briefing. McCloskey is inapposite for two

reasons. First, it dealt with the former crime of prison breach, 18 Pa. C.S.A. § 4309, which was

repealed in 1973. See Com. v. Meise, 312 A.2d 48, 49-50 and n.3 (Pa. Super. Ct. 1973).

Second, it was decided before the enactment of the present Pennsylvania Attempt statute, 18 Pa.

C.S.A. § 901, which supplanted the common law analysis for abandonment recited in

McCloskey court relied, and upon which Petitioner now relies. Com. v. Howard, 375 A.2d 79,

82-83 (Pa. Super. Ct. 1977).

To be sure, 18 Pa. C.S.A. § 901(c) allows the defense of “renunciation” to the crime of attempt if

it is “voluntary and complete[.]” But the statute further states that “(2) A renunciation is not

‘voluntary and complete’ within the meaning of this subsection if it is motivated in whole or part

by: (i) a belief that circumstances exist which increase the probability of detection or

apprehension of the defendant or another participant in the criminal enterprise, or which render

more difficult the accomplishment of the criminal purpose[.]” Given that the record before this

Court indicates that Petitioner’s alleged renunciation was motivated by this very thing, see, ¢.g.,

(continued ....)

Much of the requested written discovery already is part of the record before this Court.

Namely, Item Nos. 1, 4, and 6 are in the paper state court record, and will be considered by this

Court. With respect to Item 2, a “Memorandum of Interview” between Petitioner, Captain

Sissem, and Lieutenant Floyd, dated March 15, 2019, also is in the state court record. With

respect to Item 3, multiple maps purporting to be of Petitioner’s location during the escape

attempt are attached to Petitioner’s initial PCRA petition. With respect to Item 5, Petitioner

simply seeks copies of the relevant statutes, but has not indicated why he cannot access them via

his prison’s law library.

With respect to the proposed Requests for Admission, Petitioner proposes to propound

the same on Respondents. ECF No. 32 at 3. Neither the state court record nor the parties’

briefing indicate that any Respondent hereto was a witness to the underlying crimes of which he

was convicted.

IV. DISCUSSION

A. Discovery in Federal Habeas Proceedings

“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to

discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); Harris v.

Nelson, 394 U.S. 286, 297 (1969) (“broad-ranging preliminary inquiry is neither necessary nor

appropriate in the context of a habeas corpus proceeding.”). Discovery is authorized in Rule 6(a)

of the Rules Governing Section 2254 Cases in the United States District Court only by leave of

court upon a showing by the petitioner of “good cause,” which may be made “where specific

ee

ECF No. 5 at 4 (“The mobile unit did not move and petitioner who was counting on using the

cover of the early morning darkness to successfully pull this off, realized the sun was coming up

and as a result, he ruled out his escape altogether”), his argument that he is innocent even of

attempt is unpersuasive.

allegations before the court show reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is ... entitled to relief].]” Harris, 394 U.S. at 300; see

also Bracy, 520 U.S. at 908-09; Lee v. Glunt, 667 F.3d 397, 404 3d Cir. 2012).

“The burden rests upon the petitioner to demonstrate that the sought-after information 1s

pertinent and that there is good cause for its production.” Williams v. Beard, 637 F.3d 195, 209

(3d Cir. 2011). “[B]Jald assertions and conclusory allegations do not provide sufficient ground to

warrant requiring the state to respond to discovery[.]” Zettlemoyer v. Fulcomer, 923 F.2d 284,

301 (3d Cir. 1991); Mayberry _v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (same).

Additionally, Rule 6 does not authorize what is commonly referred to as “fishing expeditions,”

and it is not enough for a petitioner to speculate that the discovery he seeks might yield

information that would support one of his claims or that it would give support to a new claim.

See, e.g., Deputy v. Taylor, 19 F.3d 1485, 1493 Gd Cir. 1994) (quoting with approval Munoz v.

Keane, 777 F. Supp. 282, 287 (S.D.N.Y. 1991) (“petitioners are not entitled to go on a fishing

expedition through the government’s files in hopes of finding some damaging evidence”)); see

also Rega v. Wetzel, No. 13-cv-1781, 2014 WL 4079949, at *2 (W.D. Pa. Aug. 18, 2014);

Tedford v. Beard, No. 09-cv-409, 2010 WL 3885207, at *4 (W.D. Pa. Sept. 28, 2010) (“Because

a petitioner in a § 2254 case must first exhaust any claim in state court before he brings it in

federal court, a federal court must, in considering a state prisoner’s motion for discovery, take

into account any lack of diligence on the petitioner’s part in developing the record in state

court.”).

Further, where an assessment of a habeas petition reveals that it fails on some legal

ground, the proper course is to deny motions seeking factual discovery. Brown v. DiGuglielmo,

No. 07-3465, 2007 WL 4242266, at *1 n.2 (E.D. Pa. Nov. 29, 2007) (citing Williams v. Bagley,

10

380 F.3d 932, 974-76 (6th Cir. 2004)) (noting that discovery requests relating to procedurally

defaulted claims were properly denied because discovery could not lead to a colorable basis for

relief on those claims); Peterkin v. Horn, 30 F. Supp. 2d 513, 518-20 (E.D. Pa. 1998) (same).

B. Petitioner has not demonstrated good cause for the discovery that he seeks.

As stated above, many — if not all — of the documents that Petitioner seeks are part of the

paper record before this Court already, and were reviewed as part of the preparation of this

Memorandum Order and contemporaneously-filed Report and Recommendation. They — like

Petitioner’s proposed Requests for Admission — are sought for the purpose of attacking the

merits of the Escape charge to which Petitioner pleaded guilty. ECF No. 32 at 2-4. But for the

reasons stated in the Report and Recommendation, Petitioner waived his right to do this when he

knowingly, intelligently, and voluntarily pleaded guilty. This is clear on the record even under

de novo review. That knowing, voluntary, and intelligent waiver further precludes Petitioner’s

ineffective assistance of counsel claims. Nothing in the requested discovery would support an

argument that Petitioner’s plea was invalid, or that trial counsel was ineffective for failing to

move to withdraw it.

The undersigned acknowledges that the requested discovery might arguably be used to

support an attack on the possible procedural default of Petitioner’s claims. But even if this Court

were convinced that the requested documents — to the extent that they are not already a part of

the paper state court record — and the proposed Requests for Admissions were proper for that

purpose under Section 2254(e)(2) and Rule 6 of the Rules Governing Section 2254 Cases,

Petitioner still would not be able to prevail on his claims even under de novo review for the

reasons discussed more fully in the Report and Recommendation.

11

Accordingly, because the discovery that Petitioner seeks would not aid Petitioner in

demonstrating that he is entitled to relief on the grounds asserted, Harris, 394 U.S. at 300, his

Discovery Motion will be denied.

Vv. | CONCLUSION

For the reasons set forth herein, Petitioner’s pending Discovery Motion, ECF No. 32, will

be denied. Petitioner’s motion for a status update, ECF No. 39, will be denied as moot in light of

this Memorandum Order.

An appropriate Order follows.

AND NOW, this ae “ay of February, 2024, IT IS HEREBY ORDERED that:

1. Petitioner’s Motion for Leave to Conduct Discovery under Fed.H.C.R. 6,

ECF No. 32, is DENIED.

2. Petitioner’s correspondence dated December 15, 2023, ECF No. 39, which this Court

construes of as a motion for status update, is DENIED AS MOOT in light of this Memorandum

Order.

IT IS FURTHER ORDERED that, in accordance with the Magistrate Judges Act, 28

U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen

(14) days from the date of this Order to file an appeal to the District Judge which includes the

basis for objection to this Order. Any party opposing such an appeal may respond within

fourteen (14) days thereafter.

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Any appeal is to be submitted to the Clerk of Court, United States District Court, 700

Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a

waiver of any appellate rights.

BY.THE COURT: .

EE RAMA EE Ah Peg! MOE Mi of ae

OF EAT Se Ae ge

MAUREEN P. KELLY SF

UNITED STATES MAGISTRATE JUDGE

ce: Richard Grosso

CW-6956

SCI Greene

169 Progress Drive

Waynesburg, PA 15370

All counsel of record (via CM/ECF)

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