# Culley

> District Court, M.D. Pennsylvania · July 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11414006

## Case

- **Full name:** Joshua Michael Culley v. Melinda Adams, Superintendent of SCI Mercer, et al.
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** July 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE 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 June 21, 2019) (unpublished) (“Culley I”); Commonwealth v.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(unpublished) (“Culley II”); Docket, Commonwealth v. Culley, No. CP-21-CR-0000311-2017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 disc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11414006. Public record. Not legal advice.