Culley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSHUA MICHAEL CULLEY, :

Petitioner : No. 1:23-cv-01513

:

v. : (Judge Kane)

:

MELINDA ADAMS, Superintendent of :

SCI Mercer, et al., :

Respondents :

MEMORANDUM

Currently before the Court are pro se Petitioner Joshua Michael Culley (“Culley”)’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254 as well as his motion for a status

conference. For the reasons stated below, the Court will dismiss in part and deny in part

Culley’s Section 2254 habeas petition, deny as moot Culley’s motion seeking a status

conference, decline to issue a certificate of appealability, and direct the Clerk of Court to close

this case.

I. BACKGROUND

A. State Court Proceedings

On November 3, 2017, a jury sitting in the Court of Common Pleas of Cumberland

County (“CCP”) found Culley guilty of rape by forcible compulsion (18 Pa. C.S. § 3121(a)(1)),

sexual assault (18 Pa. C.S. § 3124.1), and unlawful restraint – serious bodily injury (18 Pa. C.S.

§ 2902(a)(1)). See (Doc. No. 1 at 1); Commonwealth v. Culley, No. 1081 MDA 2018, 2019 WL

2564536, at *1 (Pa. Super. Ct. June 21, 2019) (unpublished) (“Culley I”); Commonwealth v.

Culley, No. 121 MDA 2022, 2022 WL 16832485, at *1 (Pa. Super. Ct. Nov. 9, 2022)

(unpublished) (“Culley II”); Docket, Commonwealth v. Culley, No. CP-21-CR-0000311-2017

(Cumberland Cnty. Ct. Com. Pl. filed Feb. 3, 2017) (“CCP Dkt.”). The facts underlying Culley’s

convictions were summarized as follows:

The victim met Culley when she started working at Renewal by Anderson in

November of 2016. Culley was one of the employees assigned to train her. During

a cigarette break on the Friday of her first week, the victim and Culley exchanged

phone numbers and made plans to hang out after work.

The victim and her cousin, S.S., later went to Culley’s parent’s home. Culley was

waiting outside for them when they arrived and led them into his room, which was

located in the basement attached to the garage.

Shortly after getting there, Culley went upstairs and brought down a bottle of

whiskey. The victim testified that she had about five shots, and both Culley and

S.S. had more. Eventually, S.S. became ill and spent the remainder of the night in

the bathroom. Thereafter, the victim periodically checked in on her cousin in the

bathroom.

Around the third time the victim checked in on S.S., Culley pushed her back onto

his bed and climbed on top of her. He took her pants and underwear down and

began having vaginal intercourse with her. When the victim told him to stop and

yelled for help he hit her in the face. S.S. heard her cousin yelling, but was too

incapacitated to help. Culley held her down by holding both of her arms above her

head with one hand, and at one point held her throat down with the other hand. The

assault lasted around five minutes, at which time Culley went upstairs. The victim

collected her things and carried S.S. up the stairs they had come down and drove

home.

After leaving work the next day, the victim went to Holy Spirit hospital for a rape

kit. She later went home and told her mother what had happened.

On Sunday morning, the victim went to the Silver Spring Township Police

Department where she spoke with Detective Andrew Bassler and gave a written

statement.

While at the police station, the victim made a consensual (recorded) phone call to

Culley, with Detective Bassler and Detective Carrie Webber present. Culley

ultimately returned her call after she texted him that she needed to talk. During the

phone call, Culley stated, “I don’t want this to sound completely horrible, but did

you like agree at all at first or did I like rape you.”

See Culley I, 2019 WL 2564536, at *1.

On February 6, 2018, the CCP sentenced Culley to an aggregate period of state

confinement for a minimum of 92 months to a maximum of 184 months, to be followed by 60

months of state probation. See (Doc. No. 1 at 1); Culley I, 2019 WL 2564536, at *1.1 After

receiving an extension of time, Culley timely filed post-sentence motions on May 21, 2018,

which the CCP denied on June 7, 2018. See (Doc. Nos. 1 at 2; 12-2; 12-4); Culley I, 2019 WL

2564536, at *1; CCP Dkt. Culley then timely filed a notice of appeal to the Pennsylvania

Superior Court on July 3, 2018. See (Doc. Nos. 1 at 2–3; 12-5; 12-9); Culley I, 2019 WL

2564536, at *1; CCP Dkt.

Culley raised two issues on direct appeal. See Culley I, 2019 WL 2564536, at *2, 3.

First, he claimed that there was insufficient evidence to sustain the jury’s verdict. See id. at *2.

Second, he argued that the CCP erred “by denying defense counsel the right to refresh the

victim’s recollection.” See id. at *3.

The Superior Court, via an unpublished decision, determined that Culley waived his

sufficiency-of-the-evidence claim because he failed to properly raise it in his Pennsylvania Rule

of Appellate Procedure 1925(b) statement of matters complained of on appeal. See id. at *2.2

1 This aggregate sentence constitutes the sentence the CCP imposed for Culley’s rape

conviction. See Culley I, 2019 WL 2564536, at *1; CCP Dkt. The CCP imposed concurrent

sentences for Culley’s sexual assault and unlawful restraint convictions. See Culley I, 2019 WL

2564536, at *1; CCP Dkt. In addition, the CCP imposed a period of 48 months’ probation on

Culley’s unlawful restraint conviction, which was ordered to run consecutive to his incarceration.

See Culley I, 2019 WL 2564536, at *1; CCP Dkt. It is unclear from the docket and state court

records whether the CCP ordered that this period of probation would run consecutive to Culley’s

60 months of probation for his rape conviction.

2 Rule 1925(b) allows a trial court seeking “clarification of [an appellant’s] errors complained of

on appeal” to “enter an order directing the appellant to file of record in the trial court and serve

on the judge a concise statement of the errors complained of on appeal.” See Pa. R. App. P.

1925(b). The appellant’s statement must, inter alia, “concisely identify each error that the

appellant intends to assert with sufficient detail to identify the issue to be raised for the judge.”

See Pa. R. App. P. 1925(b)(4)(ii). Any “[i]ssues not included in the Statement and/or not raised

The Superior Court also explained that even if it construed Culley’s sufficiency-of-the-evidence

claim as a challenge to the weight of the evidence, he could not obtain appellate relief because he

failed to first raise this claim with the CCP. See id.

As for Culley’s second appellate claim, the Superior Court concluded that it lacked merit

because it was “completely belied by the record.” See id. at *3. The Superior Court pointed out

that the CCP did not deny Culley’s counsel the right to refresh the victim’s recollection; rather, it

was “evident from the trial testimony that defense counsel explicitly decided on his own not to

refresh the victim’s recollection with the recording of her interview with Detective Bassler.” See

id. Moreover, although Culley argued that the CCP “suggested” that the interview must be

played in its entirety for the jury, the Superior Court explained that the trial transcript showed

that the CCP never “indicate[d] that it would require playing the entire video for the jury. On the

contrary, the [CCP] specifically excluded the jury from hearing any part of that video and only

made reference to the victim being able to watch the entire video.” See id. (citing N.T., Feb. 21,

2018, at 76–77). Accordingly, the Superior Court determined that Culley’s claims did not merit

relief, and it affirmed his judgment of sentence. See id.

Following the Superior Court’s decision, Culley filed a petition for allowance of appeal

with the Pennsylvania Supreme Court, which the Court denied on December 31, 2019. See

(Doc. No. 12-10); Commonwealth v. Culley, 222 A.3d 751 (Pa. 2019) (unpublished table

in accordance with the provisions of [Rule 1925(b)(4)] are waived.” See Pa. R. App. P.

1925(b)(4)(vii); see also Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. Ct. 2015) (“If

Appellant wants to preserve a claim that the evidence was insufficient, then the [Rule] 1925(b)

statement needs to specify the element or elements upon which the evidence was insufficient. . . .

[If a Rule] 1925(b) statement . . . does not specify the allegedly unproven elements[,] . . . the

sufficiency issue is waived [on appeal].” (citation omitted)).

decision); Culley II, 2022 WL 16832485, at *1. Culley did not seek further review by the United

States Supreme Court. See (Doc. No. 1 at 3).

On June 1, 2020, Culley filed his first petition for post-conviction collateral relief under

Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S. §§ 9541–46 (“PCRA”). See (id.; Doc.

No. 12-12); Culley II, 2022 WL 16832485, at *2; CCP Dkt. The CCP appointed counsel to

represent Culley,3 and PCRA counsel filed an amended PCRA petition on January 12, 2021. See

(Doc. No. 12-13); Culley II, 2022 WL 16832485, at *2; CCP Dkt. In his counseled amended

PCRA petition, Culley asserted that his trial counsel was ineffective for failing to: (1) present

character witnesses; (2) object to the Commonwealth providing the defense with “relevant

witness interviews and/or written statements by [the] victim and her cousin” on the day of trial;

(3) file a motion to suppress the recorded telephone conversation between Culley and the victim;

(4) address the Commonwealth’s allegedly false and misleading opening statement; (5) “explore

whether [the victim’s] sexual infidelity to her boyfriend was a possible reason to fabricate [her]

complaint”; and (6) question the victim about her “trial testimony that was inconsistent with

prior statements and testimony and with the statements of other witnesses, including relevant

witness interviews and/or written statements by her and her cousin.” See (Doc. Nos. 12-13 at 3–

5); see also (Doc. Nos. 12-14 at 4–5; 12-16 at 3–4).

The CCP held an evidentiary hearing on Culley’s amended PCRA petition on August 16,

2021. See (Doc. No. 12-27); Culley II, 2022 WL 16832485, at *2. Following the hearing, the

Commonwealth filed a brief in opposition to the amended petition on September 29, 2021, and

3 Another Court of Common Pleas Judge was assigned to Culley’s PCRA proceedings. See

(Doc. Nos. 12-24 at 2 (indicating that the Honorable Thomas A. Placey presided over Culley’s

jury trial); 12-27 at 2 (indicating that the Honorable Albert H. Masland presided over Culley’s

PCRA evidentiary hearing)); CCP Dkt.

Culley filed a brief in support of his amended petition on October 4, 2021. See (Doc. Nos. 12-

14; 12-15); CCP Dkt. On December 17, 2021, the CCP issued an Opinion and Order denying the

amended PCRA petition. See (Doc. No. 12-16 at 2–12); Culley II, 2022 WL 16832485, at *2.

Culley timely appealed from the CCP’s denial of his amended PCRA petition to the

Superior Court on January 18, 2022. See (Doc. No. 12-17); Culley II, 2022 WL 16832485, at

*2. Culley raised the following issues on appeal:

1. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to call character witnesses to the stand, even after PCRA

hearing testimony that [Culley] and his father had urged otherwise and had

several (including female witnesses) available and willing to testify on behalf

of [Culley], and when [t]rial counsel[’s] . . . hearing testimony indicated that he

knew that [Culley] and his father wanted character witness testimony[?]

2. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to adequately address [a] possible [Brady v. Maryland,

373 U.S. 83 (1963)] [sic] violation including delayed witness statements and as

a result continued on with the trial without proper preparation, even when [t]rial

counsel . . . admitted in hearing testimony regarding this issue: “I said I made

some mistakes. And that may have been one of the bigger ones . . . ?”

3. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to adequately explore whether [the victim]’s sexual

infidelity to her boyfriend was a possible reason to fabricate complaint [?]

4. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to adequately question [the victim] regarding inconsistent

statements including those that she made at the time of the trial [?]

5. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to adequately address and/or file a motion to suppress

questionable one-party-consent recorded phone calls [?]

6. Did the [CCP] err by denying Culley’s claims that [t]rial [c]ounsel was

ineffective for failing to adequately address Commonwealth’s false and/or

misleading opening statement regarding semen that was found in [the victim ?]

See Culley II, 2022 WL 16832485, at *2 (quoting Culley’s Appellate Br. at 5); see also (Doc.

No. 12-19 at 6).

On November 9, 2022, the Superior Court affirmed the denial of Culley’s amended

PCRA petition via an unpublished decision. See Culley II, 2022 WL 16832485, at *1, 8. Culley

then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which the

Court denied on June 27, 2023. See Commonwealth v. Culley, 300 A.3d 1005 (Pa. 2023)

(unpublished table decision). It does not appear that Culley filed a petition for a writ of certiorari

with the United States Supreme Court.

B. Federal Habeas Proceedings

Culley commenced the instant action by filing his Section 2254 habeas petition on

August 18, 2023.4 (Doc. No. 1.) Culley contends that his trial counsel was ineffective for failing

to (1) call character witnesses; (2) “properly address” the Commonwealth’s late discovery and

purported Brady violation(s); and (3) file a motion to suppress the recorded telephone

conversation between him and the victim. See (id. at 5, 7, 8, 16–18). Culley also alleges that the

prosecutor committed prosecutorial misconduct by: (1) refusing to have the victim testify during

Culley’s preliminary hearing; (2) asserting that they had never offered him a plea deal after

receiving a counter-offer from his new trial counsel; (3) lying in an affidavit to cause the CCP to

revoke his bail; (4) providing the defense with discovery of certain materials on the first day of

trial; (5) not disclosing a “third interview” with S.S. until the second day of trial; (6) including

“inflammatory and prejudicial blatant lies” in their opening statement to the jury; and (7) relying

on an unlawfully recorded telephone call to support their case. See (id. at 10, 20–22). For relief,

4 The federal “prisoner mailbox rule” provides that a pro se prisoner’s habeas petition is deemed

filed “at the time [they] delivered it to the prison authorities for forwarding to the court clerk.”

See Houston v. Lack, 487 U.S. 266, 276 (1988). Here, Culley includes a declaration that he

placed his petition in the prison mail system on August 18, 2023. See (Doc. No. 1 at 15). As

such, the Court uses August 18, 2023, as the petition’s filing date, even though the Clerk of

Court did not docket it until September 13, 2023.

Culley seeks an Order vacating his sentence and remanding his case for a new trial. See (id. at

15).

On October 5, 2023, the Court issued an Administrative Order with Notice of Limitations

on Filing of Future Petitions Under 28 U.S.C. § 2254, which required Culley to sign and return a

notice of election indicating whether he wanted to withdraw his current petition or have the

Court rule on his petition as filed. See (Doc. No. 3). Culley timely filed a notice stating that he

wished to have the Court rule on his petition as filed, which the Clerk of Court docketed on

October 17, 2023. See (Doc. No. 4).

The Court issued an Order on October 25, 2023, which, inter alia, required Respondents

to file an answer to Culley’s habeas petition. See (Doc. No. 5). After receiving an extension of

time (Doc. Nos. 7, 8), Respondents filed their response in opposition to the petition along with

various documents from the state court record on January 16, 2024 (Doc. No. 12). Culley, after

also receiving an extension of time (Doc. Nos. 13, 14), filed a reply brief in further support of his

habeas petition on March 8, 2024 (Doc. No. 15).

According to the Pennsylvania Department of Corrections Supervised Individuals

Locator (https://inmatelocator.cor.pa.gov), Culley was released on parole on February 15, 2026.

Soon thereafter, Culley filed a notice of change of address with the Clerk of Court. (Doc. No.

17.) On April 14, 2026, Culley filed a motion for a status conference. (Doc. No. 18.) Culley’s

motion and habeas petition are ripe for disposition.

II. LEGAL STANDARDS

A. Section 2254 Habeas Petitions

A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner

challenging the “very fact or duration” of their confinement and seeking “immediate release or a

speedier release from that imprisonment.” See Preiser v. Rodriguez, 411 U.S. 475, 498–99

(1973); Leamer v. Fauver, 288 F.3d 532, 542–44 (3d Cir. 2002). A district court is authorized to

“entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court only on the ground that [they are] in custody in violation of the

Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2254(a). Claimed

violations of state law, standing alone, will not entitle a petitioner to relief, absent a showing that

those violations are so great as to be of a constitutional dimension. See Estelle v. McGuire, 502

U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).

Furthermore, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas

corpus must have exhausted the remedies available to them in the courts of the state. See 28

U.S.C. § 2254(b)(1)(A).

These same principles that limit habeas relief to errors of a constitutional dimension also

require federal courts to give an appropriate degree of deference to the factual findings and legal

rulings made by the state courts during state criminal proceedings. There are two critical

components to this deference mandated by Section 2254.

First, with respect to legal rulings by state courts, habeas relief is unavailable to a

petitioner for any claim that has been adjudicated on its merits in state court unless it can be

shown that the state court decision was either: (1) “contrary to” or involved an unreasonable

application of clearly established case law; see id. § 2254(d)(1); or (2) was “based upon an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding,” see id. § 2254(d)(2). Applying this deferential standard of review, federal courts

frequently decline invitations by habeas petitioners to substitute their legal judgments for the

considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338–

39 (2006) (concluding that state court’s decision on petitioner’s peremptory challenge based on

Batson v. Kentucky, 476 U.S. 79 (1986), “was not an unreasonable determination of the facts in

light of the evidence presented to the state court”); see also Warren v. Kyler, 422 F.3d 132, 139–

40 (3d Cir. 2005) (determining that state court’s decision to apply presumption in the applicable

version of 42 Pa. C.S. § 9714 was not “an objectively unreasonable application of clearly

established federal law”); Gattis v. Snyder, 278 F.3d 222, 231 (3d Cir. 2002) (“We agree with

the District Court that the state court decisions are not contrary to clearly established federal

law.”).

In addition, the determination of a factual issue by a state court is presumed to be correct

unless the petitioner can show by clear and convincing evidence that this factual finding was

erroneous. See 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.”). This presumption in favor of the correctness of state court factual

findings has been extended to a host of factual findings made during criminal proceedings. See,

e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) (explaining that under the

applicable standard, “we have not the slightest hesitation in saying that the trial court’s

conclusion as to [the defendant’s] competency was fairly supported by the record” (citation and

internal quotation marks omitted)). This principle applies to factual findings made both by the

state trial court and state appellate courts. See Rolan v. Vaughn, 445 F.3d 671, 679 (3d Cir.

2006) (“Generally, federal courts defer to state appellate court determinations of fact.”). Thus,

this Court may not reassess credibility determinations made by the state courts and must give

equal deference to both the explicit and implicit factual findings made by the state courts. See

Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000) (“[W]e must provide the same presumption

of correctness required by § 2254(e)(1) to the state courts’ implicit factual findings as we provide

to express findings of the state courts.” (citing Campbell v. Vaughn, 209 F.3d 280, 285–86 (3d

Cir. 2000))). Applying this standard of review, federal courts may only grant habeas relief

whenever “[o]ur reading of the PCRA court records convinces us that the Superior Court made

an unreasonable finding of fact.” See Rolan, 445 F.3d at 681.

B. Ineffective Assistance of Counsel Claims

The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the [a]ssistance of [c]ounsel for his

defence.” See U.S. Const. amend VI. However, “[t]hat a person who happens to be a lawyer is

present at trial alongside the accused . . . is not enough to satisfy [this] constitutional command.”

See Strickland v. Washington, 466 U.S. 668, 685 (1984). Rather, “[t]he Sixth Amendment

recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that

is critical to the ability of the adversarial system to produce just results.” See id. For that reason,

the Supreme Court “has recognized that ‘the right to counsel is the right to the effective

assistance of counsel.’” See id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14

(1970)).

To show that a petitioner was denied the effective assistance of counsel, they must satisfy

a two (2)-prong standard, as set forth by the Supreme Court in Strickland. Under the first prong

of the Strickland standard, a petitioner must show that “counsel’s performance was deficient.”

See id. at 687. This requires a showing that “counsel’s representation fell below an objective

standard of reasonableness.” See id. at 687–88; Williams v. Taylor, 529 U.S. 362, 390–91

(2000). Indeed, “[c]ounsel’s performance is deficient only “when counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” See

McKernan v. Superintendent Smithfield SCI, 849 F.3d 557, 564 (3d Cir. 2017) (quoting

McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 102 (3d Cir. 2012)). This requires the

“reasonably effective assistance” of counsel:

[Courts] consult no checklist, as no catalog can “satisfactorily take [into] account .

. . the range of legitimate decisions regarding how best to represent a criminal

defendant.” Id. at 688–89[.] That is why [the courts’] review of counsel’s

performance is “highly deferential,” United States v. McCoy, 410 F.3d 124, 135

(3d Cir. 2005), for “it is all too easy for a court” to find a certain act or omission

unreasonable after the defense ultimately proves unsuccessful, Strickland, 466 U.S.

at 689[;] see also Rolan[, 445 F.3d at 681–82] (“[C]ounsel’s strategic choices will

not be second-guessed by post-hoc determinations that a different trial strategy

would have fared better.”).

See Rogers v. Superintendent Greene SCI, 80 F.4th 458, 462 (3d Cir. 2023).

Under the second prong of the Strickland standard, a petitioner must show that counsel’s

“deficient performance prejudiced [his] defense.” See 466 U.S. at 687. “Simply ‘show[ing] that

the errors had some conceivable effect on the outcome of the proceeding’ is not enough, as

‘[v]irtually every act or omission of counsel would meet that test.’” Rogers, 80 F.4th at 464

(quoting Strickland, 466 U.S. at 693). This prong requires a “showing that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” See id.

Thus, the petitioner must show that there is “a reasonable probability that,” if not for counsel’s

errors, “the result of the proceeding would have been different.” See id. at 694. A reasonable

probability, in turn, “is a probability sufficient to undermine confidence in the outcome.” See id.

This “requires a substantial, not just conceivable, likelihood of a different result.” See Cullen v.

Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation marks omitted).

A habeas petitioner must satisfy both prongs and a failure to do so is fatal to his

Strickland claims. See 466 U.S. at 687 (stating that “[u]nless a defendant makes both showings,

it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that

renders the result unreliable”); Dooley v. Petsock, 816 F.2d 885, 889 (3d Cir. 1987).

Additionally, a court is permitted to choose which prong of the Strickland standard to apply first,

and a court may reject an ineffective assistance claim on the ground that the petitioner was not

prejudiced without ever addressing whether counsel’s performance was deficient. See 466 U.S.

at 697. In other words:

Although [the Supreme Court has] discussed the performance component of an

ineffectiveness claim prior to the prejudice component, there is no reason for a court

deciding an ineffective assistance claim to approach the inquiry in the same order

or even to address both components of the inquiry if the defendant makes an

insufficient showing on one. In particular, a court need not determine whether

counsel’s performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies. The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice, which [the

Supreme Court expects] will often be so, that course should be followed. Courts

should strive to ensure that ineffectiveness claims not become so burdensome to

defense counsel that the entire criminal justice system suffers as a result.

See id.

For purposes of AEDPA, see 28 U.S.C. § 2254(d)(1), the “clearly established Federal

law” as to an ineffective assistance of counsel claim is the two (2)-prong standard established by

Strickland. See Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (citation omitted); Cullen,

563 U.S. at 189 (explaining that “[t]here is no dispute that the clearly established federal law” for

an ineffective assistance of counsel claim under the Sixth Amendment is Strickland). Although

the Pennsylvania Supreme Court uses slightly different language than that of the United States

Supreme Court to address ineffective assistance of counsel claims, Pennsylvania’s standard is

consistent with the federal standard set forth in Strickland. See Werts v. Vaughn, 228 F.3d 178,

202–04 (3d Cir. 2000) (holding that a Pennsylvania state court applying Pennsylvania’s

ineffective assistance of counsel standard did not contradict Strickland); Jacobs v. Horn, 395

F.3d 92, 106 n.9 (3d Cir. 2005) (citing Werts, 228 F.3d at 204, and noting that the Third Circuit

has “previously ruled that Pennsylvania’s test for assessing ineffective assistance of counsel

claims is not contrary to Strickland”)).

Finally, it bears emphasis that “[s]urmounting Strickland’s high bar is never an easy

task,” see Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s

application of Strickland was unreasonable under [Section] 2254(d) is all the more difficult.”

See Harrington v. Richter, 562 U.S. 86, 105 (2011). Accordingly, when the state court has

decided an ineffective assistance of counsel claim on the merits, “[t]he question ‘is not whether a

federal court believes the state court’s determination’ under the Strickland standard ‘was

incorrect but whether that determination was unreasonable—a substantially higher threshold.’”

See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S.

465, 473 (2007)). Further, “because the Strickland standard is a general standard, a state court

has even more latitude to reasonably determine that a defendant has not satisfied that standard.”

See id. (citation omitted). This has been referred to by the Supreme Court as “‘doubly

deferential.’” See, e.g., Cullen, 563 U.S. at 190 (explaining that “[w]e take a highly deferential

look at counsel’s performance . . . through the deferential lens of Section 2254(d)” (citation,

internal citation, and internal quotation marks omitted)).5 The Court must apply a high level of

5 Where a petitioner’s claimed violations of federal law were not adjudicated on the merits by

the state courts, AEDPA’s deferential standard, see 28 U.S.C. § 2254(d), does not apply, and the

deference both to counsel’s actions and to the state court’s determination that counsel’s actions

were constitutionally adequate. See Dunn v. Reeves, 594 U.S. 731, 739 (2021); Knowles, 556

U.S. at 123 (citing Yarborough v. Gentry, 540 U.S. 1, 5–6 (2003)). Thus, the Court may only

grant habeas corpus relief if “every ‘fairminded jurist’ would agree that every reasonable lawyer

would have made a different decision.” See Dunn, 594 U.S. at 739–40 (quoting Harrington, 562

U.S. at 101).

C. Exhaustion of State Remedies and Procedural Default

Absent unusual circumstances, a federal court should not entertain a petition for writ of

habeas corpus, unless the petitioner has first satisfied the statutory exhaustion requirement

providing that habeas relief “shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State.” See 28 U.S.C. § 2254(b)(1)(A); see

also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This exhaustion requirement is grounded

on principles of comity to ensure that state courts have the initial opportunity to review federal

constitutional challenges to state convictions. See Werts, 228 F.3d at 192; Picard v. Connor, 404

U.S. 270, 275–76 (1971).

Section 2254 codifies this principle by requiring that a habeas petitioner exhaust the

remedies available in the courts of the State, see 28 U.S.C. § 2254(b)(1)(A), meaning a state

prisoner must “fairly present” their claims in “one complete round of the state’s established

appellate review process,” before bringing them in federal court. See O’Sullivan, 526 U.S. at

845 (stating that “[b]ecause the exhaustion doctrine is designed to give the state courts a full and

fair opportunity to resolve federal constitutional claims before those claims are presented to the

district court reviews the petitioner’s claims de novo. See Cone v. Bell, 556 U.S. 449, 472

(2009) (citations omitted); Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012).

federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established review process”).

This requires that the claim brought in federal court be the substantial equivalent of that

presented to the state courts. See Picard, 404 U.S. at 278 (“[T]he substance of a federal habeas

corpus claim must first be presented to the state courts.”); see also McCandless v. Vaughn, 172

F.3d 255, 261 (3d Cir. 1999) (holding that petitioner must present both “factual and legal

substance” of claim to state courts). Mere reliance of state and federal claims on the same

constitutional provision does not render the two claims substantially equivalent. See Brown v.

Cuyler, 669 F.2d 155 (3d Cir. 1982); Zicarelli v. Gray, 543 F.2d 466 (3d Cir. 1976). Instead,

both the legal theory and the facts on which a federal claim rests must have been presented to the

state courts. See Picard, 404 U.S. at 277; Brown, 669 F.2d at 158–61.

“When a claim is not exhausted because it has not been ‘fairly presented’ to the state

courts, but state procedural rules bar the applicant from seeking further relief in state courts, the

exhaustion requirement is satisfied because there is ‘an absence of available State corrective

process.’” McCandless, 172 F.3d at 260 (quoting 28 U.S.C. § 2254(b)). Nevertheless, Section

2254 habeas petitioners “are considered to have procedurally defaulted their claims and federal

courts may not consider the merits of such claims unless the applicant establishes ‘cause and

prejudice’ or a ‘fundamental miscarriage of justice’ to excuse [their] default.” See id. (quoting

Coleman v. Thompson, 501 U.S. 722, 750 (1991). To demonstrate “cause” for a procedural

default, a petitioner must point to some objective external factor which impeded their efforts to

comply with the state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986).

“Prejudice” will be satisfied only if the petitioner can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of federal law. See

Lockhart v. Fretwell, 506 U.S. 364, 366 (1993).

Alternatively, if a petitioner demonstrates that a “constitutional violation has probably

resulted in the conviction of one who is actually innocent,” see Murray, 477 U.S. at 496, then a

federal court can excuse the procedural default and review the claim to prevent a fundamental

miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank,

266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in

extraordinary cases, and actual innocence means factual innocence, not legal insufficiency. See

Bousley v. United States, 523 U.S. 614, 623 (1998); Murray, 477 U.S. at 496. A petitioner

establishes actual innocence by asserting “new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial,” showing that no reasonable juror would have voted to find the petitioner

guilty beyond a reasonable doubt. See Hubbard v. Pinchak, 378 F.3d 333, 339–40 (3d Cir.

2004).

In general, attorney errors in collateral proceedings do not establish cause to excuse a

procedural default unless the petitioner can meet the narrow exception to this general rule set

forth in Martinez v. Ryan, 566 U.S. 1 (2010). Under Martinez, “[i]nadequate assistance of

counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial,” see id. at 9, if the petitioner can satisfy two

factors: that the underlying, otherwise defaulted, claim of ineffective assistance of trial counsel is

“substantial,” meaning that it has “some merit,” see id. at 14; and that the petitioner had “no

counsel” or “ineffective” counsel during the initial phase of the state collateral review

proceeding. See id. at 17; see also Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014).

A petitioner demonstrates that the underlying ineffective assistance of trial counsel claim

has “some” merit by “show[ing] that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” See Workman v.

Superintendent Albion SCI, 915 F.3d 928, 937–38 (3d Cir. 2019); see also Martinez, 566 U.S. at

13–14. A petitioner demonstrates that post-conviction counsel’s ineffectiveness caused the

procedural default by showing that post-conviction counsel’s performance was deficient under

the first prong of the standard established in Strickland. See Preston v. Superintendent

Graterford SCI, 902 F.3d 365, 376 (3d Cir. 2018); see also Workman, 915 F.3d at 937–38.

III. DISCUSSION

A. Whether Culley’s Petition is Moot Due to His Release on Parole

As indicated above, Culley was released on parole on February 16, 2026. Therefore, the

Court will address whether Culley’s habeas petition is moot due to his release on parole.

“Article III of the [United States] Constitution limits federal ‘judicial Power’ to the

adjudication of ‘Cases’ or ‘Controversies.’” Abreu v. Superintendent Smithfield SCI, 971 F.3d

403, 406 (3d Cir. 2020) (quoting Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d

Cir. 2009)). “For a case or controversy to exist, a petitioner, throughout each stage of the

litigation, ‘must have suffered, or be threatened with, an actual injury traceable to the

[respondent] and likely to be redressed by a favorable judicial decision.’” Id. (quoting DeFoy v.

McCullough, 393 F.3d 439, 442 (3d Cir. 2005)). Consequently, “a habeas corpus petition

generally becomes moot when a prisoner is released from custody because the petitioner has

received the relief sought.” See id. (citing DeFoy, 393 F.3d at 441); see also Hamilton v.

Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (explaining that mootness is “a doctrine that ‘ensures

that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit,’

and which is ‘concerned with the court’s ability to grant effective relief’” (quoting Freedom from

Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 476 (3d Cir. 2016) and

County of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001))).

Nevertheless, a petitioner who has been released from custody “may obtain judicial

review of a [habeas] petition by showing that [they] continue[] to suffer from secondary or

collateral consequences of [their] conviction.” See Abreu, 971 F.3d at 406 (citations omitted).

Generally speaking, “collateral consequences will be presumed when the [petitioner] is attacking

[their] conviction while still serving the sentence imposed for that conviction [and] . . . where

the[y are] attacking that portion of [their] sentence that is still being served.” See id. (citing

United States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008)). Once a petitioner has been released,

however, the Court does “not presume that a conviction carries collateral consequences.” See

Abreu, 971 F.3d at 406 (citing Burkey v. Marberry, 556 F.3d 142, 148 (3d Cir. 2009)). Instead,

the Court “must ‘address[] the issue of collateral consequences in terms of the “likelihood” that a

favorable decision would redress the injury or wrong[,]’” and “[i]t is not enough if ‘collateral

consequences proffered by the petitioner’ amount to ‘a possibility rather than a certainty or even

a probability.’” See id. (quoting Burkey, 556 F.3d at 148).

Here, Culley’s release on parole does not moot his Section 2254 petition because:

“[I]n the criminal context, an individual who is on parole or released on his or her

own recognizance is deemed in custody because of the significant restrictions

imposed on his or her freedom.” Kumarasamy v. Att’y Gen. of U.S., 453 F.3d 169,

172 (3d Cir. 2006). A petitioner’s release on parole may render his habeas claims

moot where release on parole is the only relief sought. See, e.g., Razzoli v. FCI

Allenwood, 200 F. App’x 166, 169 (3d Cir. 2006).

See Wilson v. Delbalso, No. 19-cv-05205, 2021 WL 3777124, at *2 n.4 (E.D. Pa. June 29,

2021), report and recommendation adopted, 2021 WL 3771871 (E.D. Pa. Aug. 24, 2021); see

also Harris v. Lagana, No. 13-cv-05063, 2015 WL 4413085, at *2 (D.N.J. July 16, 2015)

(explaining that the “custody” requirement for habeas corpus relief “is defined not only as

physical confinement, but includes such limitations on a person’s liberty as those imposed during

parole”). Culley’s requests for relief include more than simply his immediate release from

incarceration; accordingly, his habeas petition is not moot despite his release from state

incarceration on parole.

B. Analysis of Culley’s Habeas Claims

1. Ineffective Assistance of Counsel Claims

a. Preliminary Issues

After reviewing Culley’s ineffective assistance of counsel claims in his petition as well as

reviewing the arguments in his reply brief, the Court has identified two preliminary issues it must

address. The first issue relates to the standard applicable to Culley’s claims. As explained

above, for Culley to obtain habeas relief in this case, he must show that the state courts’

decisions were (1) “contrary to” or involved an unreasonable application of clearly established

case law, namely, Strickland; see id. § 2254(d)(1); or (2) were “based upon an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,” see

id. § 2254(d)(2). Yet, at no point in Culley’s submissions does he identify these standards or

attempt to argue that he satisfies either standard. Culley, who never discusses the state courts’

decisions on his claims in his submissions, does not argue or attempt to show that these decisions

were “based upon an unreasonable determination of the facts in light of the evidence presented”

in proceedings before the CCP, see id., and even if he included such an argument in his petition,

he fails to rebut any factual findings by clear and convincing evidence. See id. § 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.”). In addition, Culley does not

argue or attempt to show that the state courts’ decisions were “contrary to” Strickland, nor could

he, considering that the state courts applied applicable state law consistent with Strickland. See

(Doc. No. 12-16 at 4 (setting forth law applicable to Culley’s ineffective-assistance-of-counsel

claims)); Culley II, 2022 WL 16832485, at *2–3 (same); see also Werts, 228 F.3d at 202–04

(holding that a Pennsylvania state court applying Pennsylvania’s ineffective assistance of

counsel standard did not contradict Strickland).

Instead, Culley poses his arguments in a manner suggesting that he believes that this

Court conducts a de novo review of his claims. This is evidenced by Culley’s sole reference to

Strickland in his submissions, which is included in his reply brief. There, Culley correctly

identifies the Strickland standard applicable to ineffective assistance claims, and he accurately

indicates that ineffective assistance claims involve mixed questions of law and fact. See (Doc.

No. 15 at 10); see also Strickland, 466 U.S. at 698 (stating that both prongs of the standard

applicable to ineffective assistance claims involve “mixed questions of law and fact”). However,

he completely ignores the fact that the state courts rejected his ineffective assistance claims on

their merits, which means that this Court will not conduct a de novo review of his claims by

applying Strickland and instead must apply a high level of deference both to his trial counsel’s

actions and to the state court’s determinations that counsel’s actions were constitutionally

adequate. See Dunn, 594 U.S. at 739; Knowles, 556 U.S. at 123 (citing Yarborough, 540 U.S. at

5–6). Moreover, Culley must go beyond a showing that the state courts’ determinations were

incorrect and show that they were unreasonable. See Knowles, 556 U.S. at 123.

In the end, Culley fails to apply any of the applicable standards of review to his

ineffectiveness claims. Nevertheless, because he does not argue that the state courts’

determinations were contrary to Strickland or based on an unreasonable determination of the

facts, this Court’s review of his claims is limited to determining whether the state courts’

determinations were reasonable. In other words, Culley may obtain habeas relief on his

ineffectiveness claims only if he demonstrates that that the state courts’ decisions involved an

unreasonable application of Strickland.

The second issue presented by Culley’s submissions is his attempt to assert new

arguments in his reply brief. Culley’s habeas petition presents three ineffectiveness claims: (1)

trial counsel was ineffective for failing to call character witnesses who would have testified

about Culley’s reputation in the community for peacefulness and non-violence; (2) trial counsel

was ineffective for failing to object to the prosecution providing certain evidence to the defense

on the first day of and during the trial; and (3) trial counsel was ineffective for failing to file a

motion to suppress the recorded telephone conversation between Culley and the victim. See

(Doc. No. 1 at 5–10, 16–18). Yet, in his reply brief, Culley appears to assert that trial counsel

was ineffective in other respects, including, inter alia: (1) “forcing [Culley] to admit his prior

DUI and false information to law enforcement convictions” on direct examination, see (Doc. No.

15 at 11–12); (2) “pressuring [Culley] to take a plea instead of concentrating on effectively

representing him,” (id. at 12); (3) “misrepresent[ing]” the DNA evidence in his discussion with

Culley about taking a plea for the purpose of pressuring Culley to take a plea, see (id.); (4)

failing to file any pretrial motions or raise objections during the trial, see (id. at 21); (5) failing to

“question[] the [victim] about her completely contradictory and exculpatory statements that she

made to the Sane nurse[, Nurse Gray,] and police,” see (id. at 22); (6) failing to question the

victim about her “blatant lies she got caught in on the stand during her testimony,” see (id.); (7)

failing to conduct “any kind” of investigation despite promising to conduct a “thorough

investigation of facts[,] witnesses[,] and the police process and techniques,” and having a “guy”

who could “retrieve important deleted exculpatory information from [Culley]’s phone,” see (id.);

(8) having “very little contact with [Culley] to prep[are] for trial and review discovery for

comment and investigation,” see (id.); and (9) conducting a “poor cross[-]examination” of the

victim, see (id. at 22–23). Culley further argues that the public defender assigned to represent

him on direct appeal “would not contact [him] for any reason and no matter how many requests

and messages were made,” and then, when Culley finally saw his appellate brief, “it contained

none of the issues [Culley] had complained of and was a mere 9 lines on a sheet of paper.” See

(id. at 23–24).

This Court will not consider any of these additional ineffectiveness claims that Culley

raises for the first time in his reply brief. “A reply brief is intended only to provide an

opportunity to respond to the arguments raised in the response brief and is not ordinarily a forum

to raise new claims. This principle applies in the habeas context, and provides grounds for

disregarding the arguments thus raised.” United States v. Nestor, Nos. 07-cr-00369, 10-cv-

00556, 2010 WL 4879200, at *6 (W.D. Pa. Nov. 23, 2010) (internal citation omitted); see also

Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 978 F.2d 1318, 1327 n.11 (3d Cir. 1992)

(explaining that a moving party “may not raise new issues and present new factual materials in a

reply brief that it should have raised in its initial brief”); Judge v. United States, 119 F. Supp. 3d

270, 284 (D.N.J. 2015) (explaining general rule that a moving party may not raise new issues and

present new factual materials in a reply brief “extends to the habeas context as ‘[b]asic fairness

requires that an opposing party have a fair notice of his adversary's claims, as well as an

opportunity to address those claims’” (alteration in original) (quoting Soto v. United States, No.

04-cv-02108, 2005 WL 3078177, at *6 (D.N.J. Nov. 16, 2005))).

Moreover, even if the Court were to look past Culley’s improper attempt to assert

additional ineffectiveness claims via his reply brief, the Court would still not consider them here

for several reasons. First, after the Clerk of Court docketed Culley’s habeas petition, this Court

issued an Administrative Order which, inter alia: (1) notified Culley about certain limitations on

his right to file another habeas petition in the future if the Court considered his current petition;

(2) informed Culley that he “should carefully consider whether [his] current habeas petition

raises all grounds for relief from his conviction” and advised if that if it did not, he might want to

withdraw it before the Court considers it; (3) provided Culley with the opportunity to withdraw

his petition without prejudice to him, “after giving the petition more thought, to file an all-

inclusive § 2254 petition, subject to statutory limitations”; and (4) directed Culley to complete

and return a Notice of Election in which he indicated whether he wanted to “stand on [his]

current petition or . . . withdraw [it] so [he could] file an all-inclusive petition.” See (Doc. No. 3

at 1–3). Culley then timely returned a Notice of Election stating that he did not want to

withdraw his petition and desired to “have the [C]ourt rule on [his] petition as filed.” See (Doc.

No. 4 at 1); see also R. 2(c), 28 U.S.C. foll. § 2254 (requiring habeas petition to “specify all the

grounds for relief available to [them]” and to “state the facts supporting each ground” in their

petition).

Second, Culley has not filed any motion seeking leave to amend his habeas petition or

otherwise indicated that he seeks to amend his petition, which would have provided Respondents

with the opportunity to address his request. Third, even if the Court considered Culley’s reply

brief as a motion seeking leave to amend or an amendment to his original petition, the Court

would deny most of the motion as futile or dismiss all but one of the additional habeas claims

because they are unexhausted and procedurally defaulted.6 Culley’s raises only one additional

claim with the CCP as part of his PCRA proceedings, namely, his claim that trial counsel failed

to properly cross-examine the victim about her prior inconsistent statements. See (Doc. Nos. 12-

12 at 3 (asserting in his original pro se PCRA petition that “trial [c]ounsel was ineffective by not

6 In general, habeas petitions “may be amended or supplemented as provided in the rules of

procedure applicable to civil actions.” See 28 U.S.C. § 2242; R. 12, 28 U.S.C. foll. § 2254 (“The

Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory

provisions or these rules, may be applied to a proceeding under these rules.”); Fed. R. Civ. P.

81(a)(4) (providing that the Federal Rules of Civil Procedure applies in habeas proceedings with

certain exceptions inapplicable here). Federal Rule of Civil Procedure 15 governs amended and

supplemental pleadings and provides in pertinent part as follows:

(1) Amending as a Matter of Course. A party may amend its pleading once as a

matter of course no later than:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after

service of a responsive pleading or 21 days after service of a motion under Rule

12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only

with the opposing party's written consent or the court’s leave. The court should

freely give leave when justice so requires.

See Fed. R. Civ. P. 15(a)(1)–(2); see also Miller v. Zaken, 21-cv-01230, 2024 WL 1621902, at

*8 (M.D. Pa. Apr. 15, 2024) (“Amendment of habeas corpus petitions is governed by Federal

Rule of Civil Procedure 15.”).

Under the pre-2009 version of Rule 15(a), “once a responsive pleading has been filed, a prisoner

may amend the petition ‘only be leave of court or by written consent of the adverse party.’” See

Mayle v. Felix, 545 U.S. 644, 663 (2005) (quoting Fed. R. Civ. P. 15(a) (1993)). Thus, the

government’s filing of an answer to a habeas petition terminated the petitioner’s ability to amend

their petition as a matter of right. See id. However, Rule 15(a)(1) was amended in 2009 to no

longer terminate the right to amend by service of a responsive pleading. See Fed. R. Civ. P.

15(a)(1) advisory committee’s note to 2009 amendment (“[T]he right to amend once as a matter

of course is no longer terminated by service of a responsive pleading.”). As such, a habeas

petitioner arguably has 21 days after the filing of a respondent’s answer to amend their habeas

petition as a matter of course under Rule 15(a)(1).

adequately questioning [the victim] regarding statements she made at the time of trial, thereby

violating [Culley]’s Confrontation Clause [r]ights”); 12-14 at 5 (asserting in his counseled

amended PCRA petition that “[t]rial counsel failed to adequately question [the victim] regarding

[her] trial testimony that was inconsistent with prior statements and testimony and with the

statements of other witnesses, including relevant witness interviews and/or written statements by

her and [S.S.]”); 12-16 at 9 (denying Culley’s claim that trial counsel was ineffective due to his

“inadequate cross-examination of the victim and [S.S.]”)); Culley II, 2022 WL 16832485, at *6

(addressing Culley’s claim on appeal that the CCP erred by not concluding that his trial counsel

was “ineffective for failing to adequately question the victim regarding inconsistent statements,

including those that she made at the time of the trial”). Culley neither alleges that he fully

exhausted his other claims nor argues that his procedural default should be excused.7

Fourth, and finally, even if the Court considered Culley to have amended his petition to

include a claim that his trial counsel was ineffective for failing to adequately cross-examine the

victim about alleged inconsistent statements, including those that she made at the time of trial,

the Court would deny this claim because he fails to show that the state courts’ determinations on

this claim were unreasonable.8 The CCP determined that this claim did not entitle Culley to

habeas relief, stating as follows:

[Trial counsel] is further charged with inadequate cross-examination of the victim

and [S.S.], the Commonwealth’s only other direct witness, concerning

7 Assuming arguendo that these new claims were exhausted and not procedurally defaulted,

Culley cites no facts in support of his unexhausted claims and many of his claims are belied by

the record. Compare (Doc. No. 15 at 21 (claiming that trial counsel never posed any objections

during the trial)), with (Doc. No. 12-24 at 106 (trial counsel raising a hearsay objection)).

8 There does not appear to be a timeliness issue with such an amendment insofar as any such

amendment would have occurred, after applying statutory tolling, within one year after Culley’s

judgment of sentence became final. See 28 U.S.C. § 2244(d)(1) (setting forth limitations period

for Section 2254 habeas petitions).

inconsistencies in their trial testimony, their oral and written police statements, the

victim’s statements to Nurse Gray, and certain text messages. However, the record

indicates that counsel made extensive and compelling use of these materials;

demonstrating inter alia (1) that [S.S.], contradicting the victim’s testimony, did not

recall hearing the victim screaming or crying out for help;9 (2) that [S.S.], as she

was departing the scene, recalled speaking to [Culley], contra the victim’s claim

that [Culley] had already exited the basement apartment;10 (3) that the victim

responded to Nurse Gray immediately following the incident that [Culley] had

performed cunnilingus, contra her testimony on direct examination that “there was

honestly no . . . play beforehand, it was just strictly sex;11 (4) that the victim’s

testimony that she and [Culley] had made plans to smoke marijuana, but not drink,

contradicted her police statement, which referenced only drinking;12 and (5) that

the victim’s testimony that the group’s plans for smoking marijuana never came to

fruition was contradicted by [S.S.]’s police statement and was, as the victim

admitted on cross-examination, untrue.13 On this record, and absent a specific

proffer as to which inconsistencies went unexamined and to what prejudicial effect,

we must conclude that [Culley]’s claim lacks arguable merit. Our experience is

that when a cross-examination is successful on a few matters, it is successful

indeed.

See (Doc. No. 12-16 at 9–10 (footnotes in original)).

As for the Superior Court, it affirmed the CCP’s determination that Culley’s claim was

meritless, explaining as follows:

Culley next argues trial counsel was ineffective for failing to adequately question

the victim regarding inconsistent statements, including those that she made at the

time of the trial. Culley’s Br. at 5.

Although this issue is listed as the fourth issue in Culley’s statement of the

questions involved, the argument section of Culley’s brief does not contain a

separate section on this issue, in violation of Pennsylvania Rule of Appellate

9 N.T. Trial, at 36:6–14 (victim); 123:4–124:6 ([S.S.]).

10 Id., at 37:11–21, 79:17–25 (victim), 124:7–125:11 ([S.S.]).

11 Id., at 36:2–5 (victim), 151:2–152:4 (Nurse Gray).

12 Id., at 27:24–28:5, 47:6–50:25; Commonwealth’s Exhibit 4.

13 Id., at 27:24–28:1, 57:19–61:9; Commonwealth’s Exhibit 5.

Procedure 2119(a).14 Instead, Culley has combined this issue with the discussion

of the Brady claim in a single section titled “Brady [V]iolation Inconsistent

Statements.” See Culley’s Br. at 36–38. However, because Culley’s failure to

comply with Rule 2119(a) does not impede our review, we decline to find waiver.

But see In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (finding waiver where Rule

2119(a) violation impeded “meaningful appellate review”).

Culley generally argues that trial counsel should have cross-examined the victim

about her prior inconsistent statements. However, Culley fails to specify what those

inconsistent statements were, only stating that the “police reports and the transcript

of the preliminary hearing bear out these inconsistencies[.]” Culley’s Br. at 37–38.

Moreover, the record indicates that trial counsel thoroughly cross-examined the

victim at trial about numerous inconsistences. See N.T. Trial, at 46–50, 61–62, 74–

75, 92–94. Counsel reiterated at the PCRA hearing that he brought out

inconsistencies between the victim’s testimony at trial and her statements to police.

N.T. PCRA Hearing, at 37–38. Thus, we find no error in the [CCP]’s determination

that this claim lacks arguable merit. See [CCP] Op. at 8.

See Culley II, 2022 WL 16832485, at *6 (footnote in original).

Culley fails to show that the state courts’ determinations were unreasonable. The state

court record supports their conclusion that Culley failed to identify the victim’s supposed

inconsistent statements and identify which portions of the other evidence contradicted those

statements in his written submissions. See (Doc. Nos. 12-12 at 3; 12-14 at 9; 12-19 at 16).

Additionally, during his testimony at the PCRA hearing, Culley vaguely described the victim’s

alleged inconsistent statements as follows:

The statements leading up to trial were statements that she made in the rape kit as

far as foreplay and other consensual acts, and then the testimony -- well, I guess her

reports to the police officer and then her ongoing testimony at trial, whether it’s a

lot of conflicts between the two of them.

14 See Pa. R.A.P. 2119(a) (stating that in an appellate brief, “[t]he argument shall be divided into

as many parts as there are questions to be argued; and shall have at the head of each part -- in

distinctive type or in type distinctively displayed -- the particular point treated therein, followed

by such discussion and citation of authorities as are deemed pertinent”).

See (Doc. No. 12-27 at 10). This information is insufficient to specifically identify

inconsistencies between the victim’s trial testimony and any of her prior statements.15

Furthermore, the state courts reasonably determined that trial counsel thoroughly cross-

examined the victim, see (Doc. No. 12-24 at 45–77, 80–86, 93–94), or brought out

inconsistencies in her testimony through his cross-examination of other witnesses. Compare (id.

at 37 (victim testifying on direct that she and Culley’s sexual interactions involved “just strictly

sex”)), with (id. at 152 (Nurse Gray testifying on cross-examination that her notes from victim’s

visit at hospital for rape kit state that victim told her that Culley performed oral sex on her)).

Trial counsel also testified at the PCRA hearing that he “planned” his cross-examination of the

victim, “cross-referenced the paperwork from . . . not only the rape kit, but also the report that

was attached, the DNA report,” and “believe[d he] . . . cross-examine[d the victim] effectively.”

See (Doc. No. 12-27 at 39). Accordingly, even if the Court permitted Culley to amend his

petition to include this specific ineffectiveness claim, the Court would deny the claim because he

fails to satisfy his burden to show that the state courts’ determinations were unreasonable.16

15 In Culley’s reply brief, he complains that trial counsel was ineffective because he did not

cross-examine the victim about information contained (presumably) in S.S.’s statement to police,

which he believes was “similar” to his version of events. See (Doc. No. 15 at 23). Putting aside

the fact that Culley fails to identify (and this Court could not locate) any Pennsylvania Rule of

Evidence trial counsel could invoke to impeach the victim by using not her own, but S.S.’s

interview or statement to police, he does not provide a copy of the statement he references, so the

Court has no way to determine whether his representations about the contents of the statement

are accurate.

16 Assuming arguendo that Culley was able to show that the state courts’ determinations about

counsel’s performance were unreasonable, and the Court reviewed whether Culley also

demonstrated prejudice due to counsel’s performance under Strickland, the Court would still

deny this claim because Culley has not made a sufficient showing that the outcome of his trial

would have been different.

b. Trial Counsel’s Decision Not to Call Character Witnesses

Culley asserts that his trial counsel was ineffective because counsel failed to call

character witnesses at trial who would testify about Culley’s reputation for peacefulness/non-

violence. See (Doc. No. 1 at 16).17 The CCP rejected this claim, explaining in pertinent part as

follows:

The general standard for evaluating a claim of ineffective assistance is well settled

and applicable to each of [Culley’s] arguments. Counsel is presumed effective, and

[Culley] bears the burden of demonstrating that any legal strategy forgone was of

arguable merit, that counsel lacked a reasonable basis for declining to pursue the

strategy, and that, but for the errant decision, an outcome more favorable to [Culley]

is reasonably likely to have been obtained.18 The presentation of character

evidence, which is not “mere make-weight,” and which “may, in and of itself, create

a reasonable doubt of guilt,” is a strategy of arguable merit.19 This is doubly so

where, as here, the case turns in large part on the relative credibility of victim and

accused.20 It is further evident that [trial counsel], having discussed the possibility

of presenting character witnesses with [Culley] and his father, either knew or should

have known of the seven individuals who, it is stipulated by the parties, were

available to testify as to [Culley]’s reputation for . . . non-violence.21 Nevertheless,

we find counsel’s decision not to call these witnesses reasonable under the

circumstances.

17 As described supra, Culley also claimed that trial counsel was ineffective for failing to present

character witnesses to testify about his reputation in the community for honesty. Culley does not

include this claim in his habeas petition, see (Doc. No. 1 at 16 (“At [the] PCRA [e]videntiary

hearing, trial counsel admitted that he was aware that [Culley] wanted to call character witnesses

to vouch for the pertinent trait of [Culley] being non-violent”); see also (Doc. No. 15 (indicating

that his character witnesses would have testified to his reputation in the community for “non-

violence and peacefulness”); as such, the Court will not address it here.

18 Commonwealth v. Weiss, 606 A.2d 439, 441–42 (Pa. 1992).

19 Id. at 442.

20 Id.

21 Proceedings of Hearing of October 4, 2021 (hereinafter “N.T. Hearing”), at 28:14-23 (defense

counsel), 7:11-22 ([Culley]), 21:21-22:16 (father), 26:3-11 (stipulation). See Commonwealth v.

Treiber, 121 A.3d 435, 498 (Pa. 2015) (counsel is not ineffective for failing to call witnesses

unless witnesses were available and known, or should have been known, to counsel).

. . . Turning to [Culley]’s reputation for non-violence, [trial counsel] declined to

broach that subject for fear of opening the door to evidence of [Culley]’s criminal

record and his preference for “rougher [consensual] sex.”22 As to the former, we

note that two of [Culley]’s convictions, False Report23 and False Identification,24

were already admissible – not in rebuttal of character evidence, but as crimen falsi

per Pa.R.E. 609(a) – and so, in this respect, counsel’s concern was unfounded. As

to the latter, it is not clear that testimony concerning [Culley]’s sexual proclivities

could have been admitted,25 nor, in the alternative, that [Culley] would have been

meaningfully prejudiced by its admission.26

However, [Culley]’s several non-crimen-falsi convictions, especially the two of

Possession with Intent to Deliver (“PWID”)27 and three of Driving [U]nder the

[I]nfluence (“DUI”),28 would have been rendered admissible by the adoption of the

strategy forgone. Where the Commonwealth cross-examines a character witness

regarding [their] knowledge of particular acts of misconduct by the defendant to

test the accuracy of [their] testimony and the standard by which [they] measure[]

reputation[,]” Commonwealth v. Peterkin, 513 A.2d 373, 382–[83] (Pa. 1986), the

inquiry is not limited to acts relevant to the character trait vouched for on direct

examination. Commonwealth v. Jones, 636 A.2d 1184 (Pa. Super. 1984)

(witnesses to defendant’s reputation for non-violence subject to cross-examination

as to defendant’s involvement in drug trade).

22 N.T. Hearing, at 39:10.

23 18 Pa. C.S. § 4906(a), Docket No. CP-21-CR-0000142-2010.

24 18 Pa. C.S. § 4914(a), Docket No. CP-21-CR-0001223-2012.

25 This appears to be an issue of first impression in the Commonwealth. See, however, [sic]

State v. Gaspar, 982 A.2d 140, 149 (R.I. 2009) (evidence of defendant’s penchant for “rough or

aggressive [consensual] sexual activity” inadmissible in sexual assault case as “very likely to

confuse the jury and invite an emotional response”).

26 Despite its potential for prejudice, this evidence could have served to demonstrate that

superficially violent aspects of [Culley]’s encounter with the victim were not, in fact, indicative

of compulsion or non-consent. [Trial counsel] appears to have considered such a strategy. N.T.

Hearing, at 39:5-40:3.

27 35 P.S. § 780-113(a)(30), Docket Nos. CP-21-CR-0001646-2017 and CP-21-CR-0000973-

2010.

28 75 Pa. C.S. § 3802(B), (D)(3); Docket Nos. CP-21-CR-0002969-2009, CP-21-CR-0000142-

2010, and CP-21-CR-0000592-2010. [Culley] admitted to one conviction of DUI on direct

examination. Proceedings of Trial of October 31, 2017 to November 2, 2017 (hereinafter “N.T.

Trial”), at 295:10.

While [Culley]’s past crimes were non-violent and, indeed, “relatively minor” in

comparison to those with which he was charged in the case sub judice, we must

disagree that such evidence necessarily “would have had little if any impact on a

fact-finder.”29 PWID is a felony offense, itself tending to evoke animus; while the

DUIs may have spoken to [Culley]’s drinking habits, thus corroborating the

victim’s narrative in terms of the role that she assigned to alcohol in the events of

that evening.30 The weighing of such risks is a subtle business, one lying within

the realm of reasonable professional judgment, which we find was exercised here

by [trial counsel].

See (Doc. No. 12-16 at 4–6 (footnotes and ninth alteration in original).

The Superior Court concluded that the CCP “did not err” in determining that Culley’s

ineffectiveness claim lacked merit. See Culley II, 2022 WL 16832485, at *3. In reaching this

conclusion, the Superior Court explained:

A criminal defendant may offer evidence of a pertinent character trait as substantive

evidence that the defendant did not commit a charged crime. See Pa.R.E.

404(a)(2)(A). “Evidence of good character is substantive and positive evidence,

not a mere make weight to be considered in a doubtful case,” and “is an independent

factor which may of itself engender reasonable doubt or produce a conclusion of

innocence.” Commonwealth v. Goodmond, 190 A.3d 1197, 1201 (Pa. Super. 2018)

(citation omitted). However, “[t]he failure to call character witnesses does not

constitute per se ineffectiveness.” [Treiber, 121 A.3d at 498]. Rather, to succeed

on such a claim, a petitioner must establish the following:

(1) the witness existed; (2) the witness was available to testify for

the defense; (3) counsel knew of, or should have known of, the

existence of the witness; (4) the witness was willing to testify for the

defense; and (5) the absence of the testimony of the witness was so

prejudicial as to have denied the defendant a fair trial.

Goodmond, 190 A.3d at 1202 (citation omitted).

The decision whether to call a certain witness usually involves a matter of trial

strategy. See Commonwealth v. Jones, 652 A.2d 386, 389 (Pa. Super. 1995). The

failure to present character witnesses may be excused if counsel “had a reasonable

basis for failing to present character witnesses at appellant's trial.” [Weiss, 606

A.2d at 442]. If a defendant raises the issue of his good character, evidence of prior,

29 Amended Petition, at 15.

30 E.G. [sic] “I felt like it was the alcohol that made him do what he did.” N.T. Trial, at 40:1-11.

non-crimen falsi convictions may be admissible. Commonwealth v. Murphy, 182

A.3d 1002, 1008 (Pa. Super. 2018).

Here, trial counsel admitted in his testimony at the PCRA hearing that Culley

wished to present character witnesses. However, counsel stated Culley never gave

him a list of the witnesses’ names, except for his aunts’ names, despite counsel’s

request. N.T. PCRA Hearing, 8/16/21, at 41–42. Counsel also testified he

explained to Culley he was concerned that the testimony of any potential character

witness as to Culley’s reputation for law-abidingness would allow Culley’s prior

criminal convictions to be admissible on cross-examination, in addition to his

history of alcohol use. Id. at 40–41. Counsel stated he ultimately decided it was in

Culley’s best interest not to call character witnesses. Id. at 41.

The PCRA court found counsel’s decision reasonable. PCRA Court Opinion, filed

12/17/21, at 2. The court opined that Culley's non-crimen falsi convictions,

especially two convictions for possession with intent to deliver and three

convictions for driving under the influence(“DUI”), would have been rendered

admissible by the presentation of character testimony. Id. at 4. It noted the

admission of Culley’s DUI’s, in particular, would have corroborated “the victim’s

narrative in terms of the role that she assigned to alcohol in the events of that

evening.” Id. Accordingly, the court concluded that counsel acted in the realm of

reasonable professional judgment in deciding to not call character witnesses. Id.

The PCRA court did not err. Trial counsel’s decision not to call character witnesses

was a reasonable trial strategy. See Commonwealth v. Van Horn, 797 A.2d 983,

988 (Pa. Super. 2002) (concluding that trial counsel had a reasonable trial strategy

for not calling character witnesses because he believed they would be questioned

about appellant’s prior convictions, and thus, was not ineffective); see also

Commonwealth v. Morales, 701 A.2d 516, 526 (Pa. 1997) (concluding “[t]rial

counsel cannot be deemed ineffective for failing to present character witnesses who

could have been cross-examined about appellant’s prior bad acts.”). Since the

record supports the PCRA court’s determination that trial counsel had a reasonable

basis for not calling character witnesses, Culley’s first issue is without merit.

See id. at *3–4.

Here, Culley falls short in satisfying his burden to show that this Court should grant him

habeas relief on his first ineffectiveness claim. Understandably, in attempting to satisfy his

burden, Culley focuses on trial counsel’s admission during the PCRA evidentiary hearing that he

knew Culley wanted to call character witnesses to testify about his reputation in the community

for peacefulness/non-violence, as well as the stipulation entered into between him and the

Commonwealth in which they stipulated that seven witnesses were available and willing to

testify as to his character for peacefulness/non-violence at his trial. See (Doc. No. 1 at 16). He

also argues that trial counsel’s concern regarding opening the door to the introduction of Culley’s

prior crimes if they presented character witnesses was unfounded because (1) trial counsel

brought up his prior convictions while questioning Culley during trial and (2) his prior

convictions were inadmissible under the Pennsylvania Rules of Evidence. See (id.).

Culley’s arguments pertaining to trial counsel’s knowledge of his desire to present

character witnesses or their willingness and availability to testify at trial are of no moment

because the state courts agreed with Culley that his trial counsel knew that Culley wanted to

present character witnesses at trial. See (Doc. No. 12-16 at 4 (pointing out that trial counsel

“discussed the possibility of presenting character witnesses with [Culley] and his father”));

Culley II, 2022 WL 16832485, at *3 (“[T]rial counsel admitted in his testimony at the PCRA

hearing that Culley wished to present character witnesses.”). The state courts also agreed that

counsel should have known, or did know, all or some of the potential character witnesses. See

(Doc. No. 12-16 at 4 (determining that trial counsel “either knew or should have known of the

seven individuals who, [as] stipulated by the parties, were available to testify as to [Culley]’s

reputation for . . . non-violence”)); see also Culley II, 2022 WL 16832485, at *3 (“[Trial

c]ounsel stated Culley never gave him a list of the witnesses’ names, except for his aunts’ names,

despite counsel’s request.” (citation omitted)). Thus, Culley fails to show that the state courts’

decisions were unreasonable insofar as they agreed with these arguments.

Regarding Culley’s other argument about the reasonableness of trial counsel’s decision

not to call character witnesses, which primarily relates to Pennsylvania Rule of Evidence

405(a)(1), it does not entitle him to habeas relief. Despite this conclusion, there is a portion of

Culley’s argument that is persuasive. Namely, it appears that the state courts incorrectly

determined that Culley’s introduction of character evidence in the nature of his reputation for

peacefulness/non-violence in the community would have opened the door for the prosecution to

cross-examine Culley’s character witnesses about his non-crimen falsi convictions for driving

under the influence (“DUI”). See (Doc. No. 12-16 at 6); Culley II, 2022 WL 16832485, at *4.

As for the CCP, it cited to two cases, Commonwealth v. Peterkin, 513 A.2d 373, 382–83

(Pa. 1986) and Commonwealth v. Jones, 636 A.2d 1184 (Pa. Super. Ct. 1994), for the

proposition that the prosecution could have cross-examined Culley’s character witnesses about

his DUI convictions. Both of those decisions appear to have been decided prior to

Pennsylvania’s adoption of Pennsylvania Rule of Evidence 405, which was adopted in 1998 and

specifically states that “[o]n cross-examination of the character witnesses, the court may allow an

inquiry into relevant instances of the person’s conduct probative of the character trait in

question.” Pa. R. Evid. 405(a)(1) (emphasis added).31 It appears highly doubtful that

convictions for DUIs are probative of a person’s character for peacefulness/non-violence. See,

e.g., Commonwealth v. Stemler, No. 1895 MDA 2012, 2013 WL 11253829, at *9 (Pa. Super. Ct.

Sept. 17, 2013) (unpublished) (“Evidence of Appellant’s DUI convictions would not have been

admissible to rebut evidence that Appellant had a reputation as a non-violent person because they

do not pertain to the relevant character trait of non-violence.”).

The Superior Court appears to have made a similar incorrect determination. It also cited

to two cases, Commonwealth v. Van Horn, 797 A.2d 983, 988 (Pa. Super. Ct. 2002) and

Commonwealth v. Morales, 701 A.2d 516, 526 (Pa. 1997), in support of its determination that

31 It is unclear whether any provisions in Rule 405 were included in a different Rule or statute

prior to 1998.

“[t]rial counsel’s decision not to call character witnesses was a reasonable trial strategy.” See

Culley, 2022 WL 16832485, at *4. However, neither of those cases was relevant to Culley’s

case because trial counsel in the cited cases were concerned with the defendants’ prior

convictions for offenses pertinent to the character trait of non-violence. See Van Horn, 797 A.2d

at 988 (concluding that trial counsel had a reasonable basis for not calling character witnesses

“because he believed that they would be cross-examined concerning Appellant’s prior

convictions for burglary and statutory rape”); Morales, 701 A.2d at 526 & n.24 (determining that

trial counsel was not ineffective for failing to call character witnesses because those witnesses

“could have been cross-examined about appellant’s prior bad act” and “appellant had a lengthy

record of criminality and a reputation for violence”).

Although it appears that the state courts incorrectly determined that trial counsel had a

reasonable basis for not calling character witnesses insofar as it would have opened the door to

the prosecution cross-examining those witnesses about Culley’s three DUI convictions, the state

courts’ ultimate decisions to not find that counsel acted unreasonably are still reasonable for two

reasons. See Knowles, 556 U.S. at 123 (explaining that when the state court has decided an

ineffective assistance of counsel claim on the merits, “[t]he question is not whether a federal

court believes the state court’s determination under the Strickland standard was incorrect but

whether that determination was unreasonable—a substantially higher threshold.” (citation and

internal quotation marks omitted)). First, unlike Culley’s three DUI convictions, it appears that

his two PWID convictions would have been admissible for the prosecution to use when cross-

examining Culley’s character witnesses about his reputation for nonviolence. Under

Pennsylvania law, “a character witness may be cross-examined regarding [their] knowledge of

particular acts of misconduct by the defendant to test the accuracy of [their] testimony and the

standard by which [they] measure[] reputation.” See Commonwealth v. Kouma, 53 A.3d 760,

769 (Pa. Super. Ct. 2012) (citation omitted); see also Commonwealth v. Fletcher, 861 A.2d 898,

916 (Pa. 2004) (“By presenting reputation evidence as to his character for peacefulness and non-

violence, Appellant ‘opened the door’ for the Commonwealth to cross-examine his character

witness regarding specific instances of conduct probative of the character trait in question. As a

result, the Commonwealth was entitled to cross-examine [the witness] concerning her degree of

knowledge of Appellant’s character.” (citations omitted)). Following this principle, the Superior

Court has concluded that a prosecutor may cross-examine a defendant’s character witnesses

about whether they “deemed a drug dealer to be a peaceful person” because such cross-

examination related to “the witnesses’ standard by which they measure[d] peacefulness.” See

Commonwealth v. Rashid, 160 A.3d 838, 848–49 (Pa. Super. Ct. 2017). The Superior Court has

also determined that:

[c]onvictions for drug dealing . . . are relevant to a consideration of whether a

defendant has a reputation for being peaceful and nonviolent. See [Rashid, 160

A.3d at 848–49]. Thus, where a defendant presents reputation evidence from a

character witness, [they] “open[] the door” for the Commonwealth to cross-

examine the character witness regarding the defendant’s drug trafficking . . .

convictions. See Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 916

(2004) (“[W]here the defense presents evidence of the defendant’s reputation for

peacefulness, the prosecution is permitted to test that testimony by inquiry into

whether the witness is aware of convictions which tend to refute that reputation.”)

(quotation and quotation marks omitted)).

See Commonwealth v. Regan, No. 287 EDA 2017, 2018 WL 2307383, at *6 (Pa. Super. Ct. May

22, 2018). Thus, the state courts reasonably determined that trial counsel’s decision not to call

character witnesses was reasonable insofar as it would have opened the door to the prosecution

cross-examining those witnesses about Culley’s felony drug dealing convictions. See

Commonwealth v. Hull, 982 A.2d 1020, 1023 (Pa. Super. Ct. 2009) (“Counsel has a reasonable,

strategic basis for not calling character witnesses if [they] ha[ve] a legitimate reason to believe

that the Commonwealth would cross-examine the witnesses concerning bad-character evidence.”

(citing Van Horn, 797 A.2d at 988)).

Second, the state courts reasonably determined that Culley’s introduction of character

witnesses would have rendered his DUI and PWID convictions admissible, even if the DUI

convictions could not be used to cross-examine those witnesses. As the Superior Court pointed

out, “[i]f a defendant raises the issue of [their] good character, evidence of prior, non-crimen

falsi convictions may be admissible.” See Culley II, 2022 WL 16832485, at *3 (citing

Commonwealth v. Murphy, 182 A.3d 1002, 1008 (Pa. Super. Ct. 2008)). In particular,

Pennsylvania law provides that:

No person charged with any crime and called as a witness in his own behalf, shall

be asked, or if asked, shall be required to answer, any question tending to show that

he has committed, or been charged with, or been convicted of any offense other

than the one wherewith he shall then be charged, or tending to show that he has

been of bad character or reputation unless:

(1) he shall have at such trial, personally or by counsel, asked questions of the

witness for the prosecution with a view to establish his own good reputation or

character, or has given evidence tending to prove his own good character or

reputation . . . .

See 42 Pa. C.S. § 5918(1).

Under Section 5918(1), if trial counsel called character witnesses on Culley’s behalf, he

would have opened the door to the prosecution cross-examining Culley about his other two DUI

convictions and his two PWID convictions.32 As the CCP noted, “PWID is a felony offense,

32 During trial, trial counsel asked Culley about at least one of those DUI convictions to explain

why Culley (who was 27 years old at the time of trial) had his mother pick him up from work on

the day he raped the victim. See (Doc. No. 12-24 at 295 (“Q[.] And we just heard your mom

testify about the night of the incident, her coming to pick you up. That was common practice,

correct? A[.] Yes. Q[.] And someone would drop you off? A[.] Yes. Q[.] And why was that,

Joshua? A[.] I do not drive, sir. Q[.] And why don’t you drive? A[.] I have lost my license for a

DUI.”)).

itself tending to evoke animus; while the DUIs may have spoken to [Culley’]s drinking habits,

thus corroborating the victim’s narrative in terms of the role that she assigned to alcohol in the

events of that evening.” See (Doc. No. 12-16 at 6). The Superior Court agreed with the CCP’s

assessment of this evidence. See Culley II, 2022 WL 16832485, at *4 (determining that the CCP

“did not err” in concluding that, inter alia, “Culley’s non-crimen falsi convictions, especially two

convictions for [PWID] and three convictions for [DUI], would have been rendered admissible

by the presentation of character testimony” (citation omitted)). Culley fails to show that these

determinations were unreasonable.

Overall, even if part of the state courts’ determinations relating to Culley’s claim that his

trial counsel was ineffective for failing to call character witnesses to testify about Culley’s

reputation in the community for peacefulness and non-violence were incorrect, Culley fails to

satisfy his heightened burden to show that their determinations were unreasonable. He also fails

to show that “every ‘fairminded jurist’ would agree that every reasonable lawyer would have

made a different decision” than his trial counsel did in this case. See Dunn, 594 U.S. at 739–40

(quoting Harrington, 562 U.S. at 101).

Moreover, assuming arguendo that Culley demonstrated that the state courts

unreasonably determined that trial counsel employed a reasonable trial strategy when deciding

not to present character witnesses, he would satisfy only the first part of the Strickland analysis.

In other words, he has not specifically argued that he was prejudiced by trial counsel’s alleged

failure or explained in detail how he was prejudiced by this alleged failure.

The state courts never addressed whether Culley was prejudiced by trial counsel’s

conduct because they concluded that trial counsel had a reasonable basis for not calling character

witnesses at step one of the two-step Strickland analysis. See (Doc. No. 12-16 at 4–6); Culley II,

2022 WL 16832485, at *3–4. Nevertheless, even under de novo review, Culley fails to show he

was prejudiced by trial counsel’s decision not to call character witnesses.

The Court recognizes that character evidence can, in itself, create a reasonable doubt in

certain cases. See United States v. Rice, No. 14-cr-00119, 2023 WL 4138256, at *10 (M.D. Pa.

June 22, 2023) (“[G]ood character evidence ‘may be enough to raise a reasonable doubt of guilt’

in some circumstances.” (citing Michelson v. United States, 335 U.S. 469, 476 (1948) and

United States v. Logan, 717 F.2d 84, 88 (3d Cir. 1983))); Weiss, 606 A.2d at 442 (“Evidence of

good character is substantive, not mere makeweight evidence, and may, in and of itself, create a

reasonable doubt and, thus, require a verdict of not guilty.” (citing Commonwealth v. Neely, 561

A.2d 1 (Pa. 1989))). However, this is not one of those cases because it was not simply a case

involving conflicting testimony between a defendant and a victim insofar as the prosecutor also

played the recording of Culley’s statements during his conversation with the victim and two

police detectives, which trial counsel acknowledged was “very damning.” See (Doc. No. 12-16

at 31). Furthermore, it is unclear how believable Culley’s witnesses would have been or how

they would have held up under cross-examination because they never testified during Culley’s

PCRA hearing due to the parties stipulating that the seven character witnesses would have

testified about Culley’s reputation in the community for “peacefulness and honesty.” See (id. at

26). And the Court must point out again that if these character witnesses testified at trial, the

prosecution could have cross-examined them regarding at least Culley’s PWID convictions, and

the prosecution could have cross-examined Culley about those same convictions during his trial

testimony. Accordingly, even if the Court found that the state courts’ determination that trial

counsel employed a reasonable trial strategy by not calling character witnesses was in fact

unreasonable, Culley has either waived any argument that he suffered prejudice by failing to

articulate it in his petition or reply brief, or failed to demonstrate that there is reasonable

probability that if counsel called character witnesses to testify about his reputation for

peacefulness/non-violence, the result of his trial would have been different.

c. Trial Counsel’s Alleged Failure to Challenge the Prosecution’s

Provision of Late Discovery and Possible Brady Violation

For his second ineffectiveness claim, Culley asserts that his trial counsel was ineffective

for failing to act after the prosecution did not produce (1) certain text messages, other reports,

and written statements from the victim until the first day of trial and (2) an audio/video-recorded

interview of S.S. until the second day of trial. See (Doc. No. 1 at 17). Culley asserts that trial

counsel failed to recall either the victim or S.S. or move for a mistrial after receiving this late-

disclosed evidence. See (id.).

The CCP rejected Culley’s claim, stating as follows:

[Culley] claims . . . that the Commonwealth violated its obligations under [Brady]

by supplying the defense with certain text messages and a transcription of [S.S.]’s

police interview only on the day of trial.33 It is undisputed that the Commonwealth

delayed in producing certain items, which, if not duplicative of already available

evidence, may well have been favorable to [Culley] insofar as they served to

undermine his accuser’s credibility. Commonwealth v. Haskins, 60 A.3d 538, 547

(Pa. Super. 2012) (Brady applicable to withholding of impeachment evidence).

However, counsel’s thorough cross-examination of the victim and her cousin,

discussed in detail supra, belies any – again unspecified – claim of prejudice.

Despite [Culley]’s incredulity that counsel was “somehow able to review this new

material before he cross-examined [the Commonwealth’s witnesses],34 the record

33 The record is somewhat opaque, but it appears that the “new material” consisted of text

messages in paper form that counsel had already obtained in electronic form, and a transcription

of [S.S.]’s police interview, the recording of which counsel had already viewed. N.T. Hearing at

33:13–25. Elsewhere, however, [trial counsel] indicated that he received a recording (not a

transcription) of [S.S.]’s interview. Id. at 35:11–19. Finally, in his proffer, [Culley] refers only

vaguely to “witness interviews and/or written statements by [the] victim and [S.S.].” Amended

Petition, at 2.

34 Id. at 17.

suggests that [trial counsel], an experienced member of our bar,35 who already

possessed much if not all of the relevant evidence,36 did precisely that.

See (Doc. No. 12-16 at 10–11 (all alterations except third to last alteration in original; footnotes

in original).

As for the Superior Court, it agreed with the CCP that Culley’s claim was meritless,

explaining as follows:

Culley next argues trial counsel was ineffective for failing to object to a possible

Brady37 violation, including a witness statement by S.S., the victim’s cousin who

was present on the night of the incident, that the prosecution turned over to defense

counsel in the middle of the trial. Culley’s Br. at 14. Culley contends that because

the Commonwealth failed to timely produce this evidence, defense counsel was

unable to adequately prepare and cross-examine S.S. about numerous

inconsistencies in her statements. Id. at 14, 34.

During the trial, the Commonwealth conceded it had inadvertently failed to turn

over to defense counsel a disk of a 46-minute police interview of S.S.:

[The Commonwealth]: Your Honor, at this point it appears that the

Commonwealth from the police department was provided two

copies of one interview mistakenly and not provided the audio

recording and audio and video recording of the interview with [S.S.]

I did not have it prior to this very moment, which means defense

counsel doesn’t have it.

N.T. Trial, 10/31/17, at 165–66; see also Commonwealth’s Br. at 19–20, 23.38

The Commonwealth thereafter provided defense counsel with the disk. N.T. Trial,

at 168. Counsel asked to review the disk overnight and resume cross-examination

of the detective the next morning, and the court agreed. Id. at 168, 172–73. Counsel

indicated the next day at trial that he reviewed the interview[,] and he did not intend

35 N.T. Hearing, at 27:8–25.

36 See footnote [20] supra.

37 Brady v. Maryland, 373 U.S. 83 (1963).

38 Trial counsel testified that he already knew about other statements and text messages that he

received from the Commonwealth prior to trial. It was only S.S.’s police interview that was

considered new material. N.T. PCRA Hearing, at 33–34.

to recall S.S. for any additional cross-examination. Id. at 176. Counsel testified at

the PCRA hearing that he had had adequate time to review S.S.’s police interview

and that he was able to effectively cross-examine her at trial. N.T. PCRA Hearing,

at 33–34.

The [CCP] found that while the Commonwealth delayed in producing certain

evidence, defense counsel’s thorough cross-examination of S.S. belied any claim

of prejudice. [CCP] Op. at 8. The [CCP] noted counsel already possessed most of

the relevant evidence prior to trial and was able to adequately review S.S.’s late-

produced interview. Id. 8–9.

No relief is due on this claim. Despite Culley’s claim that having S.S.’s interview

prior to trial “would have aided counsel in cross-examination regarding numerous

inconsistences[,]”39 Culley fails to identify any specific inconsistent statement or

evidence that the interview revealed. Moreover, the record demonstrates that

counsel extensively cross-examined S.S. on numerous inconsistencies. They

included whether she was “black out drunk” or just sick from drinking alcohol,

whether she smoked a marijuana “blunt” rather than a “bowl,” whether Culley

brought her food while she was sick in the bathroom, and her general recollection

of the night in question. See N.T. Trial, at 112–[]25. Thus, counsel had a

reasonable basis not to object to a purported Brady violation when he had an

adequate opportunity to review the evidence and made a strategic decision not to

recall S.S.

See Culley II, 2022 WL 16832485, at *4–5 (some alterations in original; footnotes in original).

Here, Culley fails to satisfy his burden to show that the state courts’ decisions involved

an unreasonable application of Strickland. Culley asserts that the prosecutor waited until the first

day of trial to disclose to the defense “text messages and other reports from the victim as well as

written statements from the victim” and then turned over S.S.’s audio/video recorded interview

on the second day of trial after the victim and S.S. had already testified. See (Doc. Nos. 1 at 17;

15 at 13, 14). Culley believes that this information was “very useful” and “critical”

impeachment evidence and “contained crucial statements that directly contradicted and

conflicted with the [victim’s testimony], and other testimony”; yet, trial counsel chose to not

recall either the victim or S.S. to testify and did not move for a mistrial. See (Doc. Nos. 1 at 17;

39 See Culley’s Br. at 34.

15 at 13, 14).40 Culley also asserts that during the PCRA evidentiary hearing, trial counsel

testified that, inter alia, he “should have done some thing [sic] different but is not super human”

and “when he spoke to jury members[,] that was something that could have changed their

minds.” See (Doc. No. 1 at 17); see also (Doc. No. 15 at 13).

None of these arguments merit habeas relief. In the first instance, and as explained more

above, Culley does not discuss the state courts’ determinations on this claim or attempt to

explain why those determinations were unreasonable, which are sufficient reasons in themselves

for the Court denying this ineffectiveness claim. Additionally, and despite any argument by

Culley to the contrary, see (Doc. Nos. 1 at 17; 15 at 13), the evidence in the record shows that the

only evidence provided to him by the prosecution at the time of, or during trial, that trial counsel

was unaware of beforehand, was an audio/video recording of law enforcement’s interview with

S.S. See (Doc. No. 12-27 at 34 (testifying that the police interview of S.S. was “new material,”

and he already knew about the text messages and “the statement”)).41 As such, Culley’s

ineffectiveness claim pertaining to late discovery/Brady is limited to the audio/video recording of

S.S.’s police interview.

As for that recording, the state courts’ determinations that trial counsel was not

ineffective were reasonable. The Superior Court reasonably determined that (1) Culley, as he

40 In his reply brief, Culley asserts that trial counsel failed to review S.S.’s recorded interview

with him. See (Doc. No. 15 at 13 (claiming that trial counsel never “show[ed] or discussed [the

interview] with [him] to provide input, context or dispute [sic]”). This is yet another new

ineffectiveness claim which Culley did not assert in his habeas petition; further, there is no

indication in the record that he raised and exhausted this claim in the state courts. Culley has

waived the opportunity to present this claim, and he provides no justification for this Court to

excuse his procedural default. As such, the Court will not consider the claim here.

41 It appears that trial counsel possessed a summary of S.S.’s interview in a police report, but

lacked the actual recording. See (Doc. No. 12-27 at 36).

has here, failed to identify any specific inconsistent statement or evidence that the interview

revealed; (2) trial counsel extensively cross-examined S.S. on numerous inconsistencies in her

testimony; (3) trial counsel had an adequate opportunity to review the audio/video recording of

S.S.’s interview when the CCP gave him until the following day to review it as well as the

opportunity to recall the victim or S.S. if he wanted to do so; and (4) trial counsel made a

strategic decision not to recall S.S. to the stand. See Culley II, 2022 WL 16832485, at *5; see

also (Doc. No. 12-24 at 166–69, 172–73, 175, 177–78 (showing discussions between the CCP

and counsel for the parties relating to the belatedly disclosed recorded interview of S.S., the CCP

allowing trial counsel until the next day to review the interview, the prosecution indicating that it

was unopposed to the defense recalling S.S., and trial counsel’s decision not to recall S.S. to the

stand after having reviewed the evidence). Accordingly, Culley is not entitled to habeas relief on

his second ineffectiveness claim.42

42 The Court notes that although Culley contends that trial counsel should have moved for a

mistrial due to the belated disclosure of S.S.’s recorded interview, it is unlikely that the CCP

would have granted such a motion insofar as trial counsel had the opportunity to review the

evidence and recall S.S. (or the victim) if he deemed it necessary. See, e.g., Commonwealth v.

Mancuso, 357 A.3d 957, 999 (Pa. Super. Ct. 2026) (explaining that although a trial court “has the

discretion to dismiss the charges” if a discovery violation occurs, such a sanction is reserved for

“only the most extreme and egregious violations,” and “[i]f the only prejudice to the defendant is

surprise, a continuance is appropriate” (citations omitted)). In addition, although trial counsel

testified at the PCRA hearing that he “believed he ma[d]e an error” regarding S.S.’s recorded

interview, he never explained why he believed he made an error or specified which part(s) of

S.S.’s interview he should have questioned her if he recalled her to the stand. See (Doc. No. 12-

27 at 35–36). Finally, although trial counsel also testified at the PCRA Hearing that he spoke to

a juror and the juror told him that “those issues may have been things that a jury would have

considered,” he never identified the “issues” and pointed out that the juror did not “admit[] to

[him] that [the jury’s] answers would have been different.” See (id. at 35 (emphasis added)).

d. Trial Counsel’s Failure to File a Motion to Suppress the

Recorded Telephone Conversation Between Culley and the

Victim

For his third ineffectiveness claim, Culley contends that his trial counsel should have

filed a motion to suppress the telephone conversation between him and the victim, which was

recorded by the police. See (Doc. No. 1 at 18). The CCP determined that this claim was

meritless, explaining as follows:

[Culley] finds error in counsel’s failure to seek the suppression of the recording of

a phone call between himself and the victim, to which only the victim consented,

and which, therefore – [Culley] asserts without supporting citation – was of

doubtful admissibility. We disagree. The legislature has provided unambiguously

for the lawful interception of electronic communications by or at the behest of a

law enforcement officer, where, as here, “one of the parties to the communication

has given prior consent.” 18 Pa. C.S. § 5704(2)(ii). Counsel, having investigated

this matter and consulted with his colleagues, “did not see a way” to construct a

non-frivolous argument for suppression.43 Nor, do we.

See (Doc. No. 12-16 at 11 (footnote in original)).

As for the Superior Court, it also rejected Culley’s claim as follows:

[W]hile at the police station, the victim made a recorded phone call to Culley, with

detectives present. During the phone call, Culley stated, “I don’t want this to sound

completely horrible, but did you like agree at all at first or did I like rape you.”

Culley contends that trial counsel was ineffective for failing to file a motion to

suppress and/or adequately address this one-party consent phone call. Culley’s Br.

at 45.

Where a petitioner alleges counsel ineffectively failed to file a suppression motion,

“the inquiry is whether the failure to file the motion is itself objectively

unreasonable, which requires a showing that the motion would be meritorious.”

Commonwealth v. Johnson, 179 A.3d 1153, 1160 (Pa. Super. 2018). “Where the

challenge is to a failure to move for suppression of evidence, the defendant must

establish that there was no reasonable basis for not pursuing the suppression claim

and that if the evidence had been suppressed, there is a reasonable probability the

verdict would have been more favorable.” Commonwealth v. Melson, 556 A.2d

836, 839 (Pa. Super. 1989).

43 N.T. Hearing, at 30:20–31:16.

Here, trial counsel testified at the PCRA hearing that he investigated whether to file

a motion to suppress the phone call and even consulted with his law partner and

paralegal about it. N.T. PCRA Hearing, at 30–31. However, counsel stated they

were ultimately unable to find any legal basis on which to file a suppression motion,

and he did not want to file a frivolous motion. Id. at 31–32.

Pennsylvania is a generally a “two-party” consent state, meaning that all parties to

a communication must consent to it being recorded. 18 Pa. C.S.A. §§ 5703,

5704(4). However, Section 5704 sets forth several exceptions, including

subsection 2, which allows law enforcement to use wiretaps without obtaining prior

judicial approval if one of the parties to the conversation consents to the

interception. See 18 Pa. C.S.A. § 5704(2)(ii); see also Commonwealth v. Bellamy,

252 A.3d 656, 667 (Pa. Super. 2021).

. . . Culley fails to provide any legal analysis of any potential basis for the

suppression of the wiretap evidence. He does not explain how the requirements of

section 5704(2)(ii) were not met, or otherwise set forth an argument that a

suppression motion would have been meritorious. Accordingly, Culley has failed

to meet his burden and his claim of ineffectiveness fails. See Commonwealth v.

Watley, 153 A.3d 1034, 1044 (Pa. Super. 2016) (stating counsel will not be found

ineffective for failing to file a motion to suppress if the grounds asserted for that

motion lack merit).44

See Culley II, 2022 WL 16832485, at *6–7 (footnote in original).

Presently, Culley posits several arguments in his habeas petition and reply brief in

support of his general claim that trial counsel was ineffective for failing to move to suppress the

recorded telephone call. Starting with Culley’s petition, Culley argues that the telephone

conversation “failed to meet the guidelines set forth in [18 Pa. C.S. § 5704(2)(ii)]” because a

Cumberland County assistant district attorney failed to review “all of the facts of the case prior to

authorizing such a call.” See (Doc. No. 1 at 18). He claims that neither the “detective” nor the

assistant district attorney reviewed the rape kit from the victim prior to the call; as such, the

authorization for the call “was simply based on the conflicting stories of the [victim].” See (id.).

44 See also Commonwealth v. Spotz, 896 A.2d 1191, 1210 (Pa. 2006) (stating “[c]ounsel will

not be deemed ineffective for failing to raise a meritless claim”).

He further claims that had counsel filed a motion to suppress, “it would have been upheld which

would have eliminated the prosecutions [sic] whole case as their only evidence, that was taken

out of context, would have been thrown out.” See (id.).

In his reply brief, Culley appears to argue that the telephone recording also violated the

Federal Wiretap Act and, regardless of whether federal or state law applied, police had no valid

basis to record the call insofar as “there was no emergency situation, . . . no immediate danger of

death or serious physical injury to any person, . . . no conspiratorial activities threatening

national security, [or] conspiratorial activities characteristic of organized crime.” See (Doc. No.

15 at 16–17). He also indicates that police did not obtain a warrant before recording the call.

See (id.).

Culley further argues that trial counsel failed to conduct any “investigation . . .

whatsoever”; rather, “[h]e merely stated [during the PCRA hearing] that he consulted with his

paralegal and a law partner and they saw no way to suppress the evidence and that to try would

be frivolous and meritless.” See (id.). Culley contends that trial counsel should have

investigated, inter alia, the following:

1. Was [the] non[-]consenting party[, i.e., Culley,] at home? 5704(2)(iv) [sic].

Did law enforcement consider whether, or know, if [Culley] was in his

home[?] [U]nder this section different authorizations are required such as

an order from the president Judge or their designee who shall also be a Judge

in the [C]ourt of [C]ommon [P]leas, and based on investigation and

affidavits.

2. . . . [T]he certifications of the law enforcement personnel conducting the

wiretap, who was from another borough due to a conflict of interest with

Silver Spring Townships Officer authorized to perform wiretaps.

3. . . . [T]he chain of custody as required by this statute.

4. [I]f any [a]uthorizations by the District Attorney, in writing, designating

an assistant district [a]ttorney existed or were given.

5. [The existence of] . . . emergent or exigent circumstances as required.

See (id. at 17–18). Culley also asserts that trial counsel should have investigated whether it was

legal for an assistant district attorney, other than the one “for the case” to “respond to the police

office for the purposes of this wiretap.” See (id. at 18). And he once again claims that:

The [assistant district attorney] did not have all the facts and did not examine the

[r]ape kit which was present at the police office and was available for his

examination of the [victim’s] statements to [Nurse Gray] during the rape kit

preparation and investigation. The [victim’s] interview with [Nurse Gray] had

completely different statements contradicting her statements to the [assistant

district attorney] and the police. The two interviews were very different accounts

of fact, mistruths and truth by the [victim] and would have given the [assistant

district attorney] no reason to approve the wiretap, if he was properly authorized to

do so.

See (id. at 18–19).

Like his first two ineffectiveness claims, Culley’s third claim lacks merit. He fails to

identify how the state courts’ determinations that counsel acted reasonably in not filing a motion

to suppress were unreasonable in any respect. The Superior Court’s determination, in particular,

is factually accurate, well-reasoned, and in accordance with the applicable law. Overall, Culley

has not satisfied his burden to show that “every ‘fairminded jurist’ would agree that every

reasonable lawyer would have made a different decision” regarding filing a motion to suppress

the recorded statement. See Dunn, 594 U.S. at 739–40 (quoting Harrington, 562 U.S. at 101).

As such, he is not entitled to habeas relief on this third claim.45

45 The Court also notes that Culley’s assertion that trial counsel failed to conduct any

investigation into the recorded telephone call is belied by the record. See (Doc. No. 12-27 at 31–

32 (“I had my paralegal look at it. I looked at it. Mr. Costopoulous[, trial counsel’s law partner,]

looked at it.” (emphasis added)); id. at 32 (testifying that he “wanted a second opinion” about

whether he could challenge the recorded telephone call because he “did not see a way” to

challenge it, and acknowledging that “no one came up with any way that the recorded telephone

call was obtained illegally or would have been potentially suppressible”)). Moreover, although

Culley identifies topics relating to the recording that he believes trial counsel should have

investigated, he fails to point to any part of the record that would show that such an investigation

2. Prosecutorial Misconduct Claims

Culley asserts that the prosecutor committed prosecutorial misconduct by: (1) refusing to

have the victim testify during Culley’s preliminary hearing; (2) asserting that they never offered

him a plea deal after receiving a counteroffer from his new trial counsel; (3) lying in an affidavit

to cause the CCP to revoke his bail; (4) providing the defense with discovery of certain materials

on the first day of trial; (5) not disclosing a “third interview” until the second day of trial; (6)

including “inflammatory and prejudicial blatant lies” in their opening statement to the jury; and

(7) relying on an unlawful recorded telephone call to support their case. See (id. at 10, 20–22).

Respondents argue that, at a minimum, Culley’s claims except for his claim relating to the

prosecutor’s opening statement, are unexhausted and procedurally defaulted, and he has failed to

identify cause, prejudice, or a fundamental miscarriage of justice to excuse the procedural default

of those claims. The Court will first address the exhaustion and procedural default issue before

turning to the merits of any properly preserved claims.

would have revealed facts that would have led to a meritorious suppression motion. For

instance, despite Culley asserting that trial counsel should have investigated the “chain of

custody” or “the certifications of law enforcement personnel conducting the wiretap,” see (Doc.

No. 15 at 18), he fails to point to any evidence that such an investigation would have shown

issues with the chain of custody or deficiencies in the certifications of the law enforcement

personnel conducting the wiretap. Also, although Culley contends that trial counsel should have

investigated whether he was at home at the time of the call, see (id. at 17), he points to no facts in

the record showing where he was at the time of the call and, according to his trial testimony, he

was not at home and instead at a VFW at the time of the call. See (Doc. No. 12-24 at 331

(testifying that he was at the VFW when he returned the victim’s call); id. at 334–35 (testifying

that he became “uncomfortable to continue having the conversation [with the victim],” which

caused him to “step[] to . . . [a] separate area outside the bar area” to continue the conversation).

Even if Culley was at home at the time of the call, the only way that the requirements of Section

5704(2)(iv), which would require an order from the president judge or their designee before the

oral interception could occur, would have applied to his call would be if he and the victim were

both in his home at the time of the call. See 18 Pa. C.S. § 5704(2)(iv) (“For the purposes of this

paragraph, an oral interception shall be deemed to take place in the home of a nonconsenting

party only if both the consenting and nonconsenting parties are physically present in the home at

the time of the interception.”). That was not the case here.

a. Exhaustion and Procedural Default

Culley’s first three prosecutorial misconduct claims are unexhausted. He never raised on

direct appeal or as part of his PCRA proceedings any claim pertaining to the prosecutor’s failure

to have the victim testify during the preliminary hearing, the prosecutor never offering him a plea

deal after receiving a counteroffer from his new counsel, or the prosecutor lying in an affidavit to

cause the CCP to revoke his bail. See (Doc. Nos. 12-2 (stating issues raised in post-sentence

motions); 12-7 (identifying issues raised in direct appeal brief); 12-12 at 3 (specifying issues

raised in Culley’s original pro se PCRA petition); 12-14 at 4, 6 (stating issues raised in counseled

amended PCRA petition)); Culley I, 2019 WL 2564536, at *2, 3 (reciting issues raised on direct

appeal); Culley II, 2022 WL 16832485, at *2 (stating issues raised on appeal from denial of

amended PCRA petition). Although Culley generally asserts that he exhausted these claims in

his reply brief, see (Doc. No. 15 at 1–3, 4–5), and laments that he had “no control over the State

Court system and how they choose to review appeals and relief issues or chose not to review

them at all,” he does not specify any location in the state court record in which he raised these

claims with the state courts. Thus, Culley’s first three claims are unexhausted.

Culley has also procedurally defaulted these claims insofar as he could no longer proceed

to file a PCRA petition raising the claims because of the PCRA’s one-year time bar and waiver

provisions, the latter of which would bar Culley from raising his prosecutorial misconduct claims

because he could have raised them on direct appeal. See 42 Pa. C.S. § 9545(b) (setting forth

time for filing a PCRA petition); id. § 9544(b) (“For purposes of this subchapter, an issue is

waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”); Commonwealth v. Wholaver,

177 A.3d 136, 174 (Pa. 2018) (holding that claims of prosecutorial misconduct that a petitioner

could have raised on direct appeal are waived for purposes of the PCRA). As such, the Court

may consider these claims only if Culley shows cause and prejudice or a fundamental

miscarriage of justice. He fails to do so here.

The only excuse Culley briefly mentions in his reply brief is that he supposedly “had no

control [over] how [his] counsel presented the issues.” See (Doc. No. 15 at 4). The Court

recognizes that, in general, attorney errors in collateral proceedings do not establish cause to

excuse a procedural default unless the petitioner can meet the narrow exception to this general

rule set forth in Martinez.

Here, Culley falls far short of showing that his procedural default is excused under

Martinez. When elaborating on his contention that he had no control over his counsel, he

discusses the actions of his direct appeal counsel, and Martinez focuses on the actions of counsel

in collateral proceedings, not on the conduct of direct appeal counsel. See 566 U.S. at 9; see also

Davila v. Davis, 582 U.S. 521, 529–30 (2017) (concluding that Martinez does not extend to

claims of direct appeal counsel ineffectiveness). Also, Martinez does not apply to claims of

prosecutorial misconduct or Brady violations. See Teats v. Genovese, No. 22-5365, 2022 WL

22317601, at *5 (6th Cir. Nov. 4, 2022) (unpublished) (“Martinez applies only to claims of

ineffective assistance of trial counsel and not to other claims, such as those pertaining to

prosecutorial misconduct and Brady violations.”); Brooks v. Armel, No. 20-cv-02885, 2021 WL

7967620, at *8 (E.D. Pa. Nov. 30, 2021) (“Because Brooks’ final claim alleges only

prosecutorial misconduct, Martinez is inapplicable.” (citing Wanamaker v. Smith, No. 20-cv-

01332, 2021 WL 601543, at *20–21 (E.D. Pa. Feb. 16, 2021))), report and recommendation

adopted, 2022 WL 1028056 (E.D. Pa. Apr. 6, 2022).

Furthermore, to the extent that Culley is somehow invoking the fundamental miscarriage

of justice exception, he fails to make such a showing insofar as he provides no evidence in

support of his first three prosecutorial misconduct claims. He identifies no evidence that the

prosecutor refused to have the victim testify during his preliminary hearing,46 lied in an affidavit

to cause the CCP to revoke his bail, or failed to offer him a plea deal after receiving a

counteroffer from his new trial counsel. Even if he did, he does not explain how any of these

acts constitute prosecutorial misconduct. He does not cite to any law providing that a prosecutor

must have a victim testify during a preliminary hearing, and the Court notes that the prosecutor’s

burden at a preliminary hearing is merely to “establish[] at least a prima facie case that a crime

has been committed and that the accused is probably the one who committed it.” See

Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa. Super. Ct. 2017). It is possible that a prosecutor

could satisfy this burden without having the victim testify.

Culley also fails to acknowledge that a prosecutor need not offer him a plea deal at all,

and in the realm of contract law, a counteroffer terminates the original offer. See Toppy v.

Passage Bio, Inc., 285 A.3d 672, 682 (Pa. Super. Ct. 2022) (citing Yarnall v. Almy, 703 A.2d

535, 539 (Pa. Super. Ct. 1997)). Accordingly, the fundamental miscarriage of justice exception

does not excuse Culley’s procedural default of his first three prosecutorial misconduct claims.

As for Culley’s remaining prosecutorial misconduct claims, i.e., that the prosecutor

committed misconduct by (1) providing discovery on the first day and during trial, (2) misstating

facts in their opening statement to the jury, and (3) relying on an allegedly unlawful recorded

telephone call to support their case, he never raised these prosecutorial misconduct claims during

46 According to the publicly available docket sheet for Culley’s proceedings before the

Magisterial District Judge, Culley waived his preliminary hearing. See Commonwealth v.

Culley, No. MJ-09304-CR-0000730-2016 (Magis. Dist. Ct. filed Dec. 15, 2016).

the trial or on direct appeal. See (Doc. No. 12-2 (stating issues raised in post-sentence motions);

12-7 (identifying issues raised in direct appeal brief); Culley I, 2019 WL 2564536, at *2, 3

(reciting issues raised on direct appeal). By failing to do so, he waived those issues. See 42 Pa.

C.S. § 9544(b); see also Pa. R. App. P. 302(a) (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).

However, Culley undoubtedly raised claims pertaining to the late discovery, the

prosecutor’s opening statement, and the recorded telephone call through his ineffective

assistance of counsel claims in his PCRA proceedings. See Culley II, 2022 WL 16832485, at *2.

Although this is a close question, the Court finds that the instant prosecutorial misconduct claims

are the substantial equivalent of Culley’s ineffective assistance claims presented to the state

courts during his PCRA proceedings and on appeal. See Picard, 404 U.S. at 278 (“[T]he

substance of a federal habeas corpus claim must first be presented to the state courts.”); see also

McCandless, 172 F.3d at 261 (holding that petitioner must present both “factual and legal

substance” of claim to state courts). Therefore, the Court will address those remaining claims on

the merits.

b. Late Discovery

Culley contends that the prosecutor committed misconduct, and violated Brady, by

disclosing certain evidence on the first day of trial and the second day of trial. See (Doc. No. 1

at 20). These two claims are meritless.

As the state courts determined either expressly or implicitly, see (Doc. No. 12-16 at 10–

11); Culley II, 2022 WL 16832485, at *4–5, there was no Brady violation in this case. “A Brady

violation occurs if the government does not disclose evidence favorable to the defendant that is

material to either guilt or innocence, and this failure prejudices the defendant.” United States v.

Zayas, 32 F.4th 211, 230 (3d Cir. 2022) (citing Brady, 373 U.S. at 87); see also United States v.

Risha, 445 F.3d 298, 303 (3d Cir. 2006) (explaining that, under Brady, “the prosecution’s

suppression of evidence favorable to a criminal defendant violates due process when the

evidence is material to guilt or punishment” (citing Brady, 373 U.S. at 87)); Lambert v.

Blackwell, 387 F.3d 210, 252 (3d Cir. 2004) (explaining that, to prove a Brady violation, a

petitioner must show “(1) the government withheld evidence, either willfully or inadvertently;

(2) the evidence was favorable, either because it was exculpatory or of impeachment value; and

(3) the withheld evidence was material”). The “prejudice inquiry turns on whether the defendant

received a fair trial, one resulting in a verdict worthy of confidence, in the absence of the

evidence.” See id. (citing United States v. Bansal, 663 F.3d 634, 670 (3d Cir. 2011)).

Here, the prosecution appears to have produced certain evidence, all of which appears to

be impeachment evidence, to the defense on either the first day of trial or during the second day

of trial.47 In both instances, there was no due process (or Brady) violation because the

prosecution made the evidence available to the defense in a way that they could effectively use

it. See United States v. Fallon, 61 F.4th 95, 123 (3d Cir. 2023) (“Where the government makes

Brady evidence available during the course of a trial in such a way that a defendant is able to

effectively use it, due process is not violated and Brady is not contravened.” (quoting United

States v. Johnson, 816 F.2d 918, 924 (3d Cir. 1987))). “Thus, [the Court] must consider whether

[the defendant] was ‘able to use the material and suffered prejudice from an untimely

47 It is unclear from the record precisely which evidence the prosecution disclosed to the defense

on the first day of trial. Nevertheless, as already explained, trial counsel testified at the PCRA

hearing that he already possessed or was aware of all the evidence disclosed except for the

audio/video recording of S.S.’s interview with law enforcement.

disclosure.’” United States v. Edwards, No. 22-3306, 2024 WL 4035909, at *1 (3d Cir. Sept. 4,

2024) (unpublished) (quoting Fallon, 61 F.4th at 123).

Culley fails to identify any evidence in the record showing that the defense was unable to

use whatever material the prosecution disclosed on the first day at trial, which is unsurprising

considering that trial counsel testified that he either had, or was aware of, this evidence

beforehand. As for S.S.’s recorded interview, even though S.S. had already testified and been

cross-examined by trial counsel prior to the prosecution disclosing the interview to the defense,

the trial court agreed to allow trial counsel to review the evidence overnight and would have

permitted trial counsel the opportunity to recall S.S. to the stand if he wanted to do so. Trial

counsel reviewed the recorded interview and ultimately made the strategic decision not to recall

S.S. to the stand. Therefore, Culley was able to use the material but decided not to do so. Culley

further has failed to show that he suffered any prejudice from the untimely disclosure insofar as

he fails to demonstrate how the belatedly disclosed evidence would have contradicted the

testimony at trial. Accordingly, Culley has failed to show that the state courts’ determinations

were contrary to or involved an unreasonable application of clearly established case law or were

based on an unreasonable determination of the facts, and, as such, the Court will deny Culley’s

request for habeas relief on his two prosecutorial misconduct claims related to the prosecution’s

late disclosure of evidence.

c. Opening Statement

Culley argues that the prosecutor’s opening statement was “riddled with extremely

inflammatory and prejudicial blatant lies,” including that his “semen was found inside of the

victim” even though “the serology report very clearly ruled [him] out as a donor” and that S.S.

could hear the victim “screaming for help.” See (Doc. No. 1 at 20); see also (Doc. No. 15 at 19).

The CCP, which addressed only Culley’s argument relating to the prosecutor’s comment about

his semen and the victim, rejected his ineffectiveness claim as follows:

Assuming arguendo that the Commonwealth’s statement was factually untrue, so

as to lend arguable merit to [Culley]’s claim, and that [trial counsel] lacked any

reasonable basis for failing to respond to that falsehood, it is plain that [Culley]

suffered no prejudice. He admitted to having sexual relations with the victim;

indeed, that the encounter was consensual was the crux of his defense.48 Further,

while [Culley] specifically – if immaterially – denied ejaculating,49 such that the

Commonwealth’s assertion might be viewed as having a discrediting effect, the

victim herself corroborated [Culley]’s testimony on this topic.50 An unrebutted

false statement, if such there was here, speaking neither to any material fact nor to

the credibility of any witness can work no prejudice.51

See (Doc. No. 12-16 at 7–8 (footnotes in original)).

The Superior Court “agree[d] with the [CCP] that Culley sustained no prejudice” by the

prosecutor’s statement about the presence of his semen on the victim. See Culley II, 2022 WL

16832485, at *8. It explained that “[t]he presence or absence of Culley’s DNA on the victim

was inconsequential because Culley admitted having sexual intercourse with the victim. Further,

any misstatement by the Commonwealth was clarified by the testimony of the DNA expert, as

well as defense counsel’s argument.” See id.

Here, the Court will not consider Culley’s claim pertaining to the prosecutor’s alleged

comment about S.S.’s testimony during her opening statement because he failed to exhaust this

48 [N.T. Trial] at 322:1–323:13.

49 Id., at 327:12–13.

50 Id. at 79:14–16.

51 Having thus resolved the issue on other grounds, we need not consider whether the

Commonwealth’s statement that [Culley]’s semen “was present” is a fair representation of

Weaver’s testimony that the DNA in question occurs in the general population at a frequency of

0.000104%, such that [Culley] “[cannot] be excluded” as having contributed to the sample. Id.,

at 212:11–17.

claim in the state courts. He failed to raise it in his pro se PCRA petition, see (Doc. Nos. 12-12

at 3 (listing claims)), in his counseled amended PCRA petition, see (Doc. No. 12-14 at 4, 6

(stating claims)), or during his testimony at the PCRA hearing, see (Doc. No. 12-27 at 12, 14–

15), which meant that neither the CCP nor the Superior Court ever addressed it. See (Doc. No.

12-16 at 7–8); Culley II, 2022 WL 16832485, at *7–8. Culley also can no longer raise this

claim, see 42 Pa. C.S. § 9544(b); as such, it is procedurally defaulted, and Culley has not

identified a reason to excuse his procedural default.

As for Culley’s claim pertaining to the prosecutor’s comment about the presence of his

semen, Culley does not argue that the state courts’ determinations were based on an

unreasonable determination of the facts in light of the evidence presented during his PCRA

proceedings. This limits Culley’s avenue for relief to his ability to show that the state courts’

determinations were contrary to, or involved an unreasonable application of clearly established

case law relating to prosecutorial misconduct in the context of a prosecutor’s opening statement

to a jury.

The clearly established federal law concerning prosecutorial misconduct in an opening

statement is as follows:

Allegations of prosecutorial misconduct are reviewed under the standards for

fundamental fairness as guaranteed under the Due Process Clause. Darden v.

Wainright, 477 U.S. 168, 181–82 [(1986)]. To constitute a due process violation,

the prosecutorial misconduct must be “‘of sufficient significance to result in the

denial of the defendant’s right to a fair trial.’” United States v. Bagley, 473 U.S.

667, 676 [(1985)] (quoting United States v. Agurs, 427 U.S. 97, 108 [(1976)]). The

relevant question is whether the prosecutor’s comments so infected the trial with

unfairness so as to make the resulting conviction a denial of due process. Donnelly

v. DeChristoforo, 416 U.S. 637, 643 [(1974)]. In making this determination, the

statements or conduct at issue cannot be viewed in isolation. Rather, a court must

assess the strength of the evidence against the defendant and decide whether the

prosecutor’s statements plausibly could have tipped the scales in favor of the

prosecution. United States v. Young, 470 U.S. 1, 11 [(1985)]. In other words, “the

court must consider the probable effect the prosecutor’s [statements] would have

on the jury’s ability to judge the evidence fairly.” Id.[; s]ee also Commonwealth v.

Duffy, 83[2] A.2d 1132 (Pa. Super. 2003) (“Prosecutorial misconduct occurs when

the effect of the prosecutor’s comments would be to prejudice the trier of fact,

forming in its mind fixed bias and hostility toward the defendant so that it could not

weigh the evidence objectively and render a true verdict.”)[.]

See Wright v. Pennsylvania, No. 19-cv-00844, 2021 WL 8945614, at *12 (W.D. Pa. May 18,

2021), report and recommendation adopted, 2022 WL 2292776 (W.D. Pa. June 24, 2022).

Culley has not shown that the state courts’ determinations were contrary to or involved an

unreasonable application of this clearly established federal law. As the state courts explained,

even if the prosecutor’s statement was factually inaccurate, Culley testified that he and the victim

engaged in consensual sexual relations, the DNA expert testified about whether Culley’s semen

was present on the victim (or, more specifically, whether he could be excluded as contributing to

the sample), and trial counsel argued to the jury in his closing that the sex between Culley and

the victim was consensual. Therefore, the prosecutor’s statement, even if factually inaccurate,

did not prejudice Culley by tipping the scales in favor of the prosecution. See Young, 470 U.S.

at 11. Accordingly, the Court will not grant Culley habeas relief on this claim.

d. Recorded Telephone Call

Because the Court has already discussed Culley’s arguments as well as the state courts’

determinations relating to his ineffective assistance of counsel claim regarding his recorded

telephone call with the victim, the Court will not repeat them here. As with his ineffectiveness

claim, Culley fails to show that the state courts’ determinations were based on an unreasonable

determination of the facts in light of the evidence presented during his PCRA proceedings, or

that they were somehow contrary to, or involved an unreasonable application of clearly

established federal law. Overall, Culley’s arguments, even if the Court considered them under a

de novo standard of review, fail because he fails to show that any prosecutorial misconduct

occurred.52

Pennsylvania is “generally a ‘two-party’ consent state, meaning that all parties to a

communication must consent to it being recorded.” See Culley, 2022 WL 16832485, at *7

(citing 18 Pa. C.S. § 5703). However, 18 Pa. C.S. § 5704 provides several exceptions to this

rule, see id., including an exception specifically related to law enforcement:

(2) Any investigative or law enforcement officer or any person acting at the

direction or request of an investigative or law enforcement officer to intercept a

wire, electronic or oral communication involving suspected criminal activities,

including, but not limited to, the crimes enumerated in section 5708 (relating to

order authorizing interception of wire, electronic or oral communications), where:

. . .

(ii) one of the parties to the communication has given prior consent to such

interception. However, no interception under this paragraph shall be made unless

the Attorney General or a deputy attorney general designated in writing by the

Attorney General, or the district attorney, or an assistant district attorney designated

in writing by the district attorney, of the county wherein the interception is to be

initiated, has reviewed the facts and is satisfied that the consent is voluntary and

has given prior approval for the interception . . . .

See 18 Pa. C.S. § 5704(2)(ii).

Culley admits that an assistant district attorney approved the interception, see (Doc. No. 1

at 18), but he believes that the assistant district attorney did so without having all the facts, such

as the victim’s rape kit. See (id.). However, Section 5704(2)(ii) does not require the assistant

52 To the extent that Culley argues in his reply brief that the prosecutor committed prosecutorial

misconduct because the recorded conversation violates the Federal Wiretap Act, see (Doc. No.

15 at 16–17), this claim is unexhausted and procedurally defaulted because he never raised it

with the state courts, is barred from doing so now, and has not demonstrated that any procedural

default should be excused. Also, the Federal Wiretap Act provides for one-party consent. See

18 U.S.C. § 2511(2)(c) (“It shall not be unlawful . . . for a person acting under color of law to

intercept a wire, oral, or electronic communication, where such person is a party to the

communication or one of the parties to the communication has given prior consent to such

interception.”).

district attorney to know or review all the facts; rather, they must have reviewed the facts and be

satisfied that the consenting party’s consent is voluntary. See 18 Pa. C.S. § 5704(2)(ii).

Furthermore, Culley points to no evidence that the assistant district attorney did not review the

facts available to them or that the victim did not voluntarily consent to the call. In fact, he does

not identify any evidence showing that there were any issues with the oral interception of his call

with the victim. Accordingly, this prosecutorial misconduct claim lacks merit.

e. Cumulative Prosecutorial Misconduct

Culley asserts that he was prejudiced by cumulative instances of prosecutorial

misconduct, which tainted the trial and resulted in his guilty verdicts. See (Doc. No. 1 at 21).

This Court is unaware of any decision recognizing cumulative prosecutorial misconduct as a

ground for habeas relief. Instead, the cumulative error doctrine applies to ineffective assistance

of counsel claims and provides that:

The cumulative effect of multiple errors may warrant habeas relief. [Marshall v.

Hendricks, 307 F.3d 36, 94 (3d Cir. 2002).] “Cumulative errors are not harmless if

they had a substantial and injurious effect or influence in determining the jury’s

verdict, which means that a habeas petitioner is not entitled to relief based on

cumulative errors unless he can establish ‘actual prejudice.’” [Albrecht v. Horn,

485 F.3d 103, 139 (3d Cir. 2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 637

(1993))]. But to find cumulative error “requires the existence of ‘errors’ to

aggregate. Absent such errors by counsel, the cumulative error doctrine does not

apply.” [Aponte v. Eckard, No. 15-561, 2016 WL 8201308, at *20 (E.D. Pa. June

3, 2016), report and recommendation adopted, 2017 WL 467633 (E.D. Pa. Feb. 3,

2017)].

See Haitos v. Hainsworth, No. 14-cv-00372, 2025 WL 2884815, at *7 (M.D. Pa. Oct. 9, 2025)

(internal footnotes replaced with citations).

Assuming arguendo that this Court should, or could, consider prejudice from

prosecutorial misconduct cumulatively, Culley has not shown that there is any prejudice to be

accumulated because he fails to show any misconduct by the prosecution in his criminal case.

Accordingly, Culley’s creative cumulative prosecutorial misconduct claim also fails.

C. Certificate of Appealability

“Unless a circuit justice or judge issues a certificate of appealability [(“COA”)], an

appeal may not be taken to the court of appeals from . . . the final order in a habeas proceeding in

which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. §

2253(c)(1)(A). A COA may issue only if the applicant has made a substantial showing of the

denial of a constitutional right. See id. § 2253(c)(2). When deciding whether to issue a COA

after a denying a Section 2254 petition on the merits, the Court applies the following standard:

“The petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 U.S.

473, 484 (2000).

In this case, jurists of reason would not find the disposition of this case debatable, i.e.,

that Culley’s claims do not warrant habeas relief because they are either meritless or unexhausted

and procedurally defaulted. Accordingly, the Court will not issue a COA in this case.

IV. CONCLUSION

For the reasons stated above, the Court will dismiss in part and deny in part Culley’s

Section 2254 habeas petition, decline to issue a certificate of appealability, deny his motion for a

status conference as moot, and direct the Clerk of Court to close this case. An appropriate Order

follows.

s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania