# GROSSO v. ZAKEN

> District Court, W.D. Pennsylvania · February 12, 2024

URL: https://www.frixlaw.com/law-library/cases/10419475

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 12, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

12

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)

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419475. Public record. Not legal advice.