The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
BRENDAN J. CARTER, CIVIL ACTION NO. 3:24-cv-1130
Petitioner,
v. (Magistrate Judge Latella)
KATHY BRITTAIN, et al.,
Respondents.
MEMORANDUM
I. Introduction
The Petitioner, Brendan J. Carter, a former high school band
director, was convicted of numerous sex offenses involving minors in the
Court of Common Pleas of Luzerne County after a jury trial on October
2, 2020. On June 3, 2021, he was sentenced to an aggregate term of
imprisonment of 84 to 168 months. Carter appealed his conviction and
sentence to the Pennsylvania Superior Court which affirmed both the
conviction and sentence in an unpublished opinion dated July 10, 2023.
Carter did not seek post-conviction relief through Pennsylvania’s Post
Conviction Relief Act. Instead, this timely habeas Petition was filed on
July 10, 2024. For the reasons that follow, the Petition will be denied.
II. Procedural History
This matter was initiated by the filing of a counseled habeas
Petition pursuant to 28 U.S.C. § 2254 on July 10, 2024. (Doc. 1). The
Respondents filed a Response on August 28, 2024. (Doc. 4). The parties
consented to the jurisdiction of a united states magistrate judge on
January 22, 2025.1 The Petition is ripe for consideration.
III. Background
The background and history of the state court proceedings is
taken from the Superior Court’s unpublished disposition in
Commonwealth v. Carter, 2023 WL 4417528, 303 A.3d 745 (Pa. Super.
Ct. 2023). To summarize,2 Carter was a band director and percussion
adviser at high schools located in Luzerne County. Id. at **1. On
October 22, 2018, a mother of one of Carter’s students reported
allegations of sexual abuse to the Pittston Area High School resource
officer, Michael Boone, who then contacted Detective Charles Balogh of
the Luzerne County District Attorney's Office. Id. The same day, the
1 The matter was reassigned to the undersigned on June 10, 2025.
2 Further elaboration will be provided where necessary as it relates to
Petitioner’s specific claims.
2
two officers interviewed victims at the Pittston Area High School and
learned that Carter was scheduled to meet with the principal at 5 p.m.
Id. When Carter arrived at the scheduled meeting, the two officers
were present and asked Carter if he knew why they were there and
Carter purportedly responded that he thought it had to do with
misusing funds. Id. The officers then advised Carter they were
actually there to discuss allegations of inappropriate behavior that
several band members made against him. The Superior Court described
the encounter as follows:
Carter agreed to speak with the officers about those
allegations, and signed a constitutional waiver form
waiving his Miranda rights at 6 p.m. During the
conversation, Carter told the officers he had received
naked images on his cell phone of former students after
they had graduated high school, but remained adamant
that he did not have any naked images of current
students on his cell phone. Carter agreed to allow
Detective Balogh to review the contents of the phone.
Carter informed the detective that he had images stored
in his Snapchat application in the folder called “for my
eyes only” and provided Detective Balogh with the
folder's passcode. There were numerous pictures of males
with their penises exposed in the folder, one of which
matched the description given to Detective Balogh earlier
by A.T., taken when A.T. was 17 years old. Detective
3
Balogh also found a picture in the folder of C.E. with his
penis exposed, also taken when he was a minor.
At around 7 p.m., Detective Balogh asked Carter if he
could audio record a statement from Carter. Carter
agreed. Carter affirmed at the beginning of the recording
that he had signed the constitutional waiver form and
understood his constitutional rights, and explicitly stated
he was agreeing to talk with the officers and have his
statement audio recorded. The recording started at 6:56
p.m., and ended at 8:03 p.m.
Carter made several admissions while talking to the
police. He “admitted that he did solicit images of a
current student’s penis from a female student. In
addition, Carter told investigators that he was forced by
a few students to expose himself in the band room closet.
Carter also told them that he and two students ejaculated
into a pudding cup and gave it to another student with
the intention of having him eat it.”
Towards the end of the interview, at 8:20 p.m., Carter
signed a warrantless search consent form for the phone
so that it could be forensically analyzed. Detective Balogh
put the phone on airplane mode and placed the phone into
evidence.
Id. at **1-2 (citations to the record omitted).
On July 29, 2019, Carter was charged with 22 offenses against
nine minor victims and trial was originally set for January 13, 2020.
Id. ** 2. On January 6, 2020, Carter filed a motion to continue the trial
and various pretrial motions including: “a motion to compel discovery
of, inter alia, Carter's cell phone for forensic examination; a motion to
4
suppress the statements and the evidence the police obtained from
Carter's interview on October 22, 2018; a motion in limine seeking to
exclude ‘electronic evidence, alleged telephone text messages and
photographs, and, alleged internet posts, internet messages and
photographs…. and a motion to take the jury to view the locations
where the abuse allegedly took place.” Id. Carter’s motion to continue
the trial was granted and a hearing on his motions was held on June 9,
2020. Id. at **3. The trial court held a suppression hearing and took
testimony from Detective Balogh and from Carter and subsequently
denied the motion on August 20, 2020.3 Id.
Trial was scheduled for Monday September 28, 2020, but the
Friday before, September 25, 2020, Carter filed a motion to continue
and for sanctions alleging that the Commonwealth prevented the
3 “As for the motion in limine, defense counsel asked the court to hold
the motion in abeyance because it was ‘going to depend on the forensic
analysis from the cell phone.’ The court granted the defense request,
and deferred the motion in limine until trial. Likewise, defense counsel
also asked the court to defer the motion for a jury view as the
Commonwealth had given the defense photos and a video of the crime
scene that defense counsel had not yet viewed but indicated may be
sufficient to alleviate the need for a jury view.” 2023 WL 4417528 at
**3.
5
defense expert from examining Carter’s cell phone. Id. at ** 3-4. The
trial court denied the motions stating:
There was a trial date for January 6th. There was an
11th hour omnibus filed. The trial ended up getting
continued. And here we are on the eve of trial and we
still have the Defense complaining about this phone.
Look, this is not a case involving voluminous digital
discovery ... We have two photos at issue. Two photos at
issue. And there is no question in the court's mind that
the Defendant has had more than ample opportunity to
get whatever digital discovery they sought, okay.
Id. at ** 5. The matter proceeded to trial and the testimony included
the following:
The victims’ testimony included testimony that: Carter
had exposed himself to the victims on multiple occasions,
and instructed the victims to expose themselves to each
other while in his presence; Carter had the victims play
a number of different inappropriate games, including
truth or dare, the “nervous game,” and a game called “Are
you?,” which meant “Are you circumcised?,” after which
Carter would ask the responder to “prove it” by exposing
his penis.
There was also testimony that: Carter instructed the
victims to masturbate into pudding cups, onto cookies
and into their hands before slapping another; Carter
asked the victims to send or show him naked pictures of
them or others and that they did so; and Carter talked
about and ranked the sizes of penises. One victim
testified that Carter “dared” him to perform oral sex on
him, which he did.
6
Detective Balogh also testified for the Commonwealth. As
he did at the suppression hearing, Detective Balogh
testified that Carter agreed to talk with him and that he
read Carter his Miranda warnings from a constitutional
waiver form before interviewing him about the
allegations. Detective Balogh recounted Carter affirmed
he understood the warnings, initialed them, and then
signed the form and said he was willing to talk to the
officers. Detective Balogh explained Carter agreed to
allow him to look at his cell phone, and once he opened
the “for my eyes only” folder on Snapchat with the
passcode given to him by Carter, he saw numerous
images of penises and naked men.
The detective testified he recognized that one of those
explicit photos was of victim A.T. based on his earlier
discussion with him. He also found a picture of victim
C.E. on the phone. Detective Balogh re-interviewed A.T.
and C.E. on October 26, 2018, and they identified the
photos as being images taken of them when they were
minors. These two photos were shown to the jury.
Carter testified on his own behalf. He generally denied
the allegations. He did admit he exposed himself to band
students on one occasion, but claimed they forced him to
do it. He also admitted he had the explicit image of A.T.
on his phone, but he insisted it was taken and sent after
A.T. turned 18. As for the picture of C.E. shown to the
jury, he maintained he did not put that image on his
phone.
Carter admitted the constitutional waiver form indicated
he had signed it at 6 p.m., but he claimed he did not
actually sign the form until 8:30 p.m. He maintained the
officers did not read his constitutional rights to him until
after the interview was completed. He acknowledged he
is heard agreeing at the beginning of the audio-recorded
statement that the investigators had gone over his
7
constitutional rights with him, and that he understood
and was waiving those rights, but claimed he had been
instructed to say that.
Id. at ** 5-6. Carter was convicted of all counts against him and was
subsequently sentenced to an aggregate term of 84 to 168 months’
imprisonment.
IV. Legal Standards
The statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). A habeas corpus petition pursuant to § 2254 is the proper
mechanism for a prisoner to challenge the “fact or duration” of his
confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827,
36 L.Ed.2d 439 (1973). “[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385
(1991). Rather, federal habeas review is restricted to claims based “on
the ground that [petitioner] is in custody in violation of the Constitution
8
or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle,
502 U.S. at 68.
A. Exhaustion and Procedural Default
A habeas petitioner must exhaust state court remedies before
obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). The traditional way
to exhaust state court remedies in Pennsylvania was to present a claim
to the trial court, the Pennsylvania Superior Court, and the
Pennsylvania Supreme Court. See Evans v. Court of Common Pleas,
Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, in light
of Pennsylvania Supreme Court Order No. 218, issued May 9, 2000,
(“Order No. 218”), it is no longer necessary for Pennsylvania inmates to
seek allocatur from the Pennsylvania Supreme Court in order to
exhaust state remedies under 28 U.S.C. § 2254(c). See Lambert v.
Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004) (“We now hold that
Order No. 218 renders review from the Pennsylvania Supreme Court
‘unavailable’ for purposes of exhausting state court remedies under §
2254(c).”). The habeas petitioner has the burden of proving exhaustion.
Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
9
A petitioner’s failure to exhaust his state remedies may be
excused in limited circumstances on the ground that exhaustion would
be futile. Lambert, 134 F.3d at 518-19. Where such futility arises from
a procedural bar to relief in state court, the claim is subject to the rule
of procedural default. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.
2000). In addition, if the state court does not address the merits of a
claim because the petitioner failed to comply with the state’s procedural
rules in presenting the claim, it is also procedurally defaulted. Coleman
v. Thompson, 501 U.S. 722, 750 (1991).
If a claim is found defaulted, the federal court may address it only
if the petitioner establishes cause for the default and prejudice resulting
therefrom, or that a failure to consider the claim will result in a
fundamental miscarriage of justice. Werts, 228 F.3d at 192. To meet
the “cause” requirement to excuse a procedural default, a petitioner
must “show that some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule.” Id. at 192-
93 (quoting and citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
Additionally, a petitioner can rely on post-conviction counsel’s
10
ineffectiveness to establish cause to overcome the default of a
substantial claim of ineffective assistance of trial counsel. Martinez v.
Ryan, 566 U.S. 1, 14 (2012). To establish prejudice, a petitioner must
prove “‘not merely that the errors at . . . trial created a possibility of
prejudice, but that they worked to his actual and substantial
disadvantage, infecting his entire trial with error of constitutional
dimensions.’” Bey v. Sup’t Greene SCI, 856 F.3d 230, 242 (3d Cir. 2017).
For a petitioner to satisfy the fundamental miscarriage of justice
exception to the rule of procedural default, the Supreme Court requires
that the petitioner show that a “constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Schlup v.
Delo, 513 U.S. 298, 327 (1995) (quoting Murray, 477 U.S. at 496). This
requires that the petitioner supplement his claim with “a colorable
showing of factual innocence.” McCleskey v. Zant, 499 U.S. 467, 495
(1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). In other
words, a petitioner must present new, reliable evidence of factual
innocence. Schlup, 513 U.S. at 324.
11
B. Merits Standard
Once a court has determined that the exhaustion requirement is
met and, therefore, that review on the merits of the issues presented in
a habeas petition is warranted, the scope of that review is set forth in 28
U.S.C. § 2254(d). Section 2254(d) provides, in pertinent part, that an
application for a writ of habeas corpus premised on a claim previously
adjudicated on the merits in state court shall not be granted unless: (1)
[the decision] was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) [the decision] was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d). To
establish that the decision was contrary to federal law “it is not
sufficient for the petitioner to show merely that his interpretation of
Supreme Court precedent is more plausible than the state court’s;
rather, the petitioner must demonstrate that Supreme Court precedent
requires the contrary outcome.” Matteo v. Superintendent, 171 F.3d
877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state
12
court decision to be an unreasonable application of federal law if the
decision, “evaluated objectively and on the merits, resulted in an
outcome that cannot reasonably be justified under existing Supreme
Court precedent.” Id.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required
to presume that a state court’s findings of fact are correct. A petitioner
may only rebut this presumption with clear and convincing evidence of
the state court’s error. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)
(stating that the clear and convincing standard in § 2254(e)(1) applies to
factual issues, whereas the unreasonable application standard of §
2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888;
Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This
presumption of correctness applies to both explicit and implicit findings
of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
Consequently, a habeas petitioner “must clear a high hurdle before a
federal court will set aside any of the state court’s factual findings.”
Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).
13
Like the “unreasonable application” prong of paragraph (1), a
factual determination should be adjudged “unreasonable” under
paragraph (2) only if the court finds that a rational jurist could not
reach the same finding on the basis of the evidence in the record. 28
U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa.
2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000);
cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). “This provision
essentially requires the district court to step into the shoes of an
appellate tribunal, examining the record below to ascertain whether
sufficient evidence existed to support the findings of fact material to the
conviction.” Breighner v. Chesney, 301 F. Supp. 2d 354, 364 (M.D. Pa.
2004) (citing 28 U.S.C. § 2254(d)(2) and (f)). Mere disagreement with an
inferential leap or credibility judgment of the state court is insufficient
to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v.
Taylor, 529 U.S. 362, 408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16
(1st Cir. 2001). Only when the finding lacks evidentiary support in the
state court record or is plainly controverted by evidence therein should
14
the federal habeas court overturn a state court’s factual determination.
Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.
IV. Discussion
A. Habeas Claims Presented for Federal Review
Carter presents five claims for review articulated as follows:
I. GROUND ONE: THE DENIAL OF PETITIONER'S
MOTIONS TO SUPRESS STATEMENTS MADE BY THE
PETITIONER AND TO SUPRESS CERTAIN EVIDENCE
II. GROUND TWO: TRIAL COURT'S DENIAL OF
PETITIONER'S MOTION FOR A JURY VIEW OF THE
ALLEGED CRIME SCENE
III. GROUND THREE: TRIAL COURT'S DENIAL OF
PETITIONER'S MOTION IN LIMINE TO EXCLUDE
ELECTRONIC EVIDENCE SUCH AS SOCIAL MEDIA
AND TEXT MESSAGE
IV. GROUND FOUR: THE COURT BELOW ERRED AND
VIOLATED THE PETITIONER'S RIGHT TO DUE
PROCESS OF LAW IN FAILING GRANT THE
PETITIONER'S MOTION FOR SANCTIONS FOR
VIOLATION OF DUTY TO DISCLOSE DISCOVERABLE
ELECTRONIC EVIDENCE, FOR FAILING TO PERMIT
THE PETITIONER TO PRESENT THE TESTIMONY OF
HIS EXPERT WITNESS AND DENYING A
CONTINUANCE OF TRIAL
15
V. GROUND FIVE: COURT'S IMPOSITION OF SENTENCE
AND FINDING THE PETITIONER WAS A SEXUALLY
VIOLENT PREDATOR WERE IN ERROR AND
CONSTITUTED AN ABUSE OF DISCRETION
(Doc. 1-3).
It is first necessary to determine whether Carter’s claims
presented in his habeas Petition are cognizable in a federal habeas
proceeding and whether they have been exhausted in the state courts
and, if not, whether the circumstances of his case are sufficient to
excuse his procedural default. The Court will then proceed to address
the merits of the exhausted claims.4
B. Non-Cognizable Claim—Ground Five
“In order to be eligible for habeas corpus relief, a petitioner must
be ‘in custody in violation of the Constitution or laws or treaties of the
4 The Respondents note that “it appears that Petitioner has simply
copied and pasted his 1925(b) statement and his appellate brief in the
Superior Court into his habeas petition.” (Doc. 4, p. 12, n. 3). Although
Petitioner’s Superior Court brief is not part of the record, Respondents’
observation appears to be correct. The Petition reads like a Superior
Court brief and not like a habeas petition. Nevertheless, Petitioner’s
“claims” will be treated as such and not as grounds in support of a state
court appeal which, in reality, is a more appropriate classification of
Petitioner’s arguments.
16
United States.’” Chowdhury v. Pennsylvania Board of Probation and
Parole, No. CV 24-5091, 2026 WL 2145002, at *5 (E.D. Pa. June 18,
2026), report and recommendation adopted sub nom. Chowdhury v.
Commonwealth of PA, No. CV 24-5091, 2026 WL 2143227 (E.D. Pa. July
24, 2026) (quoting 28 U.S.C. § 2254(a)). “Accordingly, a claim must be
‘cognizable’ for purposes of habeas review, meaning that such review is
limited to determining whether a conviction violates federal law. A
violation of state law or state criminal procedure rules does not raise a
viable habeas claim.” Id. (citing Estelle v. McGuire, 502 U.S. 62, 63
(1991) (“[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”)).
In Ground Five, Petitioner appears to raise two separate but
related claims, viz., that the trial court erred in applying Pennsylvania
sentencing law and that the trial court erred in classifying him as a
Sexually Violent Predator. Each claim will be discussed separately.
With regard to the imposition to sentencing, Petitioner argues:
Imposition of a sentence of 84 to 168 months of
incarceration, which is the maximum consistent with the
standard range of the applicable Guidelines, was not
17
"necessary" to address "the nature and circumstances of
the crime" in light of "the history, character and condition
of the defendant." 42 Pa.C.S. § 9725. To the contrary, the
extent of the confinement imposed was not "consistent
with the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victims and on
the community and the rehabilitative needs of the
Defendant." Id. § 972l(b ). At an initial sentencing, these
legislative criteria are “designed to inform the court and
to cabin its discretionary sentencing authority.”
Commonwealth v. Pasture, 630 Pa. 440, 451, 107 A.2d 21,
27 (2014).
(Doc. 1-2, pp. 42-43). These arguments are based entirely on
Pennsylvania law and do not implicate a violation of the “Constitution
or laws or treaties of the United States.” Accordingly, this claim is not
cognizable in a Section 2254 petition. See King v. Superintendent, No.
CV 26-2335, 2026 WL 2566167, at *8 (E.D. Pa. Aug. 31, 2026) (claim
that trial court improperly imposed a sentence above the state
sentencing guidelines is not cognizable on habeas review). Salaam v.
Slaughter, No. 20-CV-07820 (RMB), 2025 WL 3718635, at *10 (D.N.J.
Dec. 22, 2025) (“As a threshold matter, sentencing determinations are
generally matters of state law and are not cognizable on federal habeas
review absent a showing that the sentence was imposed on
constitutionally proscribed grounds.”) (citing Jones v. Superintendent of
18
Rahway State Prison, 725 F.2d 40, 43 (3d Cir. 1984)); Carrera v. Mason,
No. 3:24-CV-986, 2025 WL 979004, at *5 (M.D. Pa. Mar. 31, 2025)
(“Generally, sentencing is a matter of state criminal procedure that does
not fall within the purview of federal habeas corpus.”).
Similarly, much of Petitioner’s argument regarding his
classification as a Sexually Violent Predator and application of SORNA
turn entirely on state law. These claims are not cognizable in this
Section 2254 matter. There are portions of the claim that might,
however, be cognizable. In adjudicating Carter’s direct appeal, the
Pennsylvania Superior commented that “Carter has filed a brief that is
difficult to follow.” 2023 WL 4417528 at *6. Because his habeas
petition is simply a carbon copy of his brief to Superior Court, it is no
less “difficult to follow” leaving this Court with the tedious task of
detangling Petitioner’s federal claims from the mass of state law claims
involved in this issue. Although the Petition references potentially
cognizable federal claims, as discussed below, those claims are
procedurally defaulted.
19
C. Procedurally Defaulted Claims – Grounds Two, Three
and Five
“To properly exhaust state remedies, a Section 2241 habeas
petitioner must invoke ‘one complete round of the state's established
appellate review process.’” Barr v. Shenk, at *4 (quoting O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)). “The petitioner bears the burden of
showing that all claims alleged have been ‘fairly presented’ to the state
courts, and ‘it is not enough that the petitioner presents to the state
court the facts upon which a federal claim is based.’” Id. (quoting
Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
“Federal habeas courts reviewing the constitutionality of a state
prisoner's conviction and sentence are guided by rules designed to
ensure that state-court judgments are accorded the finality and respect
necessary to preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the merits of
claims, including constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state procedural rule.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court's invocation of a
20
procedural rule to deny a prisoner's claims precludes federal review of
the claims if, among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and the rule is
firmly established and consistently followed.” Id. “A state procedural
rule is ‘independent’ if it is separate from the federal issue.” Leake v.
Dillman, 594 F. App'x 756, 758 (3d Cir. 2014).
1) Ground Two – View of the Crime Scene
In his second ground for relief, Carter argues that “[t]he Trial
Court erred and abused its discretion in denying the Petitioner’s motion
to permit the jury to view the premises and locations on which the
offenses were allegedly committed.” (Doc. 1-3, p. 14). The Superior
Court held that Petitioner waived that claim on appeal. Quoting the
trial Court, the Superior Court stated:
The trial court explained:
At the hearing on [Carter's] omnibus motion, defense
counsel asked this court to hold its ruling in
abeyance until the defense had an opportunity to
review the video and photographs taken by the
Commonwealth of various locations at [Pittston Area
High School]. [See] N.T. Omnibus Hearing, 6/9/2020,
at 28. He indicated that he may be satisfied with the
photos and video of the premises he received from the
21
Commonwealth at the hearing. [See id.] Because
[Carter] did not raise this issue again at any point,
this court presumed that he was satisfied with the
discovery provided by the Commonwealth and thus
the issue is waived. Trial Court Opinion, 2/14/2022,
at 64.
Again, Carter does not address, much less dispute, this
finding of waiver or the fact that the trial court never
ruled on his motion because he did not renew it before the
trial court. Even if the issue were not waived for this
reason, which it is, we would also find the issue was
waived because of Carter's failure to meaningfully
develop the issue. See Pa.R.A.P. 302(a) (stating that
issues not raised in the trial court are waived and may
not be raised for the first time on appeal); Commonwealth
v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2006) (stating
that arguments that are not sufficiently developed are
waived). No relief is due.
Commonwealth v. Carter, 2023 WL 4417528 at * 10.
The state courts' determination that the issue was waived for
Carter's failure to develop it in the trial court forecloses federal review
of this claim. Rosario v. Bohinski, No. 3:25-CV-01973, 2026 WL
2280635, at *6 (M.D. Pa. Aug. 7, 2026) (citing Thomas v. Sec'y,
Pennsylvania Dep't of Corr., 495 F. App'x 200, 205 (3d Cir. 2012);
Troutman v. Overmyer, No. 2:14-CV-1592, 2015 WL 1808640, at *2
(E.D. Pa. Apr. 21, 2015)). “Federal habeas courts reviewing the
22
constitutionality of a state prisoner's conviction and sentence are guided
by rules designed to ensure that state-court judgments are accorded the
finality and respect necessary to preserve the integrity of legal
proceedings within our system of federalism. These rules include the
doctrine of procedural default, under which a federal court will not
review the merits of claims, including constitutional claims, that a state
court declined to hear because the prisoner failed to abide by a state
procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state
court's invocation of a procedural rule to deny a prisoner's claims
precludes federal review of the claims if, among other requisites, the
state procedural rule is a nonfederal ground adequate to support the
judgment and the rule is firmly established and consistently followed.”
Id. “Case law has held that Pa. R. App. P. 302(a), and other similar
state procedural waiver rules, are adequate and independent state rules
for the purposes of procedural default.” Troutman v. Overmyer, No.
2:14-CV-1592, 2015 WL 1808640, at *12 (E.D. Pa. Apr. 21, 2015)
(collecting cases).
23
Because the Pennsylvania Superior Court deemed Petitioner’s
second claim waived based on a state rule that is firmly established and
consistently followed, this claim is procedurally defaulted.
2) Gound Three – Denial of Exclusion of Electronic
Evidence
Petitioner’s third ground challenges the trial court’s denial of his
motion in limine to exclude certain electronic evidence at his trial. The
Superior Court held this claim was waived on appeal. In addressing
this claim the Court stated:
The trial court found this issue was waived for three
reasons. First, the trial court found Carter failed to
identify with specificity in his Rule 1925 statement which
items of evidence he argues the Commonwealth should
have been precluded from admitting. See Trial Court
Opinion, 2/14/2022, at 65, citing Pa.R.A.P. 1925(b)(4).
Second, the trial court noted that Carter requested the
court to hold the motion in limine in abeyance until trial,
the trial court did so, and Carter never renewed the
motion at trial. As such, the trial court never ruled on the
motion. See Trial Court Opinion. 2/14/2022, at 65. And
finally, the trial court pointed out, Carter did not object
to the introduction of any social media evidence at trial.
See id. at 65-66; Commonwealth v. McGriff, 160 A.3d 863,
866 (Pa. Super. 2017) (stating that a party must make a
timely objection to the admission of evidence in order to
preserve the issue for appellate review).
24
Carter does not address the issue of waiver at all in his
brief to this Court. As such, he does not dispute that he
did not specify which electronic evidence he alleged the
Commonwealth should have been precluded from
admitting in his Rule 1925 statement or otherwise. It also
means he does not dispute that he failed to renew his
motion in limine in front of the trial court or failed to
object to the admission of the electronic evidence he
purports to challenge at trial. He certainly does not point
to the place in the record where either any such renewal
or objection occurred, as is his clear burden to do. See
Commonwealth v. Baker, 963 A.2d 495, 502 (Pa. Super.
2008) (finding the appellant's claim was waived when he
did not point to the location in the record where the claim
was preserved, in violation of Pa.R.A.P. 2117(c) and
2119(e)).
Accordingly, Carter has failed to provide us with any
reason to find that the trial court made any error in
concluding Carter waived this issue and therefore, that
he is entitled to any relief on this claim.
Id. at * 8.
For the same reasons discussed above with regard to Gound Two,
Ground Three is procedurally defaulted.
3) Ground Five – Classification as a Sexually Violent
Predator
As noted above, Plaintiff challenges various aspects of his
sentence including his classification as a Sexually Violent Predator and
the application of SORNA. While most of Petitioner’s arguments rely
25
exclusively on state law, the Petition makes reference to federal
constitutional claims, although those claims are not fully articulated.
The Superior Court, however, found Petitioner’s claims waived based on
state procedural rules, explaining:
Carter also claims the trial court erred in determining he
is an SVP. Specifically, he makes a series of bald
allegations: the trial court erred by applying Subchapter
I of SORNA II to this case as that violated the ex post
facto and due process clause of both the state and federal
constitutions; the definition of “mental abnormality” is
unconstitutionally vague; there was not clear and
convincing evidence that he has any such “mental
abnormality”; the expert's SVP report was improper as it
was not based on the Static 99-R risk assessment and the
expert did not interview Carter; and the trial court's
order that Carter be assessed for SVP status was
untimely and Carter was not provided the assessment in
a timely manner. These claims fail.
As an initial matter, Carter's claims are minimally
developed, often amounting to no more than summary
assertions, and are arguably waived for that reason. See
Love, 896 A.2d at 1287. His final claim, having to do with
the timing of the assessment order and the receipt of the
assessment report, was not one of the 31 allegations of
error included in his Pa.R.A.P. 1925(b) statement, and it
is therefore waived for that reason. See Commonwealth
v. Lord, 719 A.2d 306, 309 (Pa. 1998). Similarly, as the
Commonwealth points out, Carter does not point to the
place in the record where he objected to the definition of
“mental abnormality” as unconstitutionally vague before
26
the trial court, and that claim is waived for that reason.
See Baker, 963 A.2d at 502.
His other assertions are without merit. First, Carter
claims the trial court erred by applying Subchapter I of
SORNA II to him. However, as the trial court repeatedly
noted in its opinion, Carter committed his offenses after
December 20, 2012, and therefore Subchapter H is the
subchapter that is applicable to him, and the one the trial
court applied. See 42 P.a. C.S.A. § 9799.11(c) (providing
that Subchapter H applies to offenses committed on or
after December 2012). Despite the clarity provided by the
trial court regarding this issue, Carter continues to
maintain the trial court found him to be an SVP pursuant
to Subchapter I. Because this claim continues to be
“based on incorrect premises,” Commonwealth's Brief at
31, it affords Carter no relief.
He also claims there was insufficient evidence for the
trial court to find he was an SVP. This claim is waived,
and in any event, meritless.
Because the potentially cognizable claims raised in Ground Five
were deemed waived based on state procedural rules, those claims are
procedurally defaulted.
4) Petitioner’s Procedural Default Cannot be Excused
Petitioner has not responded to the Respondents’ argument that
some of his claims are procedurally defaulted and there appear to be no
reasons to justify the default. “If a claim is found defaulted, the federal
27
court may address it only if the petitioner establishes cause for the
default and prejudice resulting therefrom, or that a failure to consider
the claim will result in a fundamental miscarriage of justice.”
Angelillo v. Warden SCI-Coal Township, 3:25CV1929, 2026 WL
1896215, at *3 (M.D. Pa. July 1, 2026) (citing Werts v. Vaughn, 228 F.3d
178, 192 (3d Cir. 2000)). “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.” Culley
v. Adams, 1:23-CV-01513, 2026 WL 2137345, at *8 (M.D. Pa. July 24,
2026) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). Petitioner
here has not crossed this first hurdle. There has been no assertion that
some objective external factor impeded Petitioner’s efforts to comply
with the state's procedural rules. Accordingly, “cause” has not been
established to excuse the procedural default.
C. Exhausted Claims – Grounds One and Four
1) Ground One
In Plaintiff’s first ground for relief, he asserts “The Trial Court
erred and abused its discretion, as well as denied the Petitioner due
28
process, in refusing the Petitioner's Omnibus Pretrial Motions to
suppress prior statements he made and to suppress physical
evidence.” (Doc. 1-3, p. 2). In support, he alleges he was questioned by
the police “repeatedly, for over three (3) hours” and was Mirandized and
signed a consent to search form only after the interrogation was over.
(Id. at p. 5). Petitioner asserts that “[a]ny statements obtained from
him were not knowingly, intelligently, or voluntarily given and were
obtained in violation of his rights under federal and state law.” (Id.).
He argues that his arrest was “the fruit of, and tainted by, the illegal
questioning by the agents of the Commonwealth of Pennsylvania” and
“any physical evidence against him obtained by the Commonwealth
from the seizure and inspection of his cellphone, without first obtaining
a search warrant, was improper and [should have been] suppressed.”
Petitioner’s suppression motion was the subject of a June 9, 2020,
hearing held by the trial court after which the motion was denied. The
Superior Court affirmed the denial of the suppression motion, reasoning
as follows:
In his first claim, Carter essentially alleges the trial court
erred in denying his motion to suppress his statements
29
given at the October 22, 2018 interview as they were
obtained in violation of his constitutional rights.
According to Carter, his statements were involuntarily
given because he was questioned over a three-hour period
and threatened by Detective Balogh, and was not advised
of his constitutional rights until after the interview was
over. This claim fails.
In rejecting this claim, the trial court first noted that
Miranda warnings are only required before an interview
when a person is in police custody. A person is in custody
for purposes of a custodial interrogation, the court
explained, when the person is physically deprived of his
freedom in any significant way or reasonably believes his
freedom of action or movement is restricted by the
interrogation. See Trial Court Opinion, 2/14/2022, at 58,
citing Commonwealth v. DiStefano, 782 A.2d 574, 579
(Pa. Super. 2001). “Police detentions become custodial
when under the totality of the circumstances the
conditions and/or duration of the detention become so
coercive as to become the functional equivalent of arrest.”
Id.
The trial court found Carter was not in custody when he
was interviewed by Detective Balogh and Officer Boone.
The court explained:
Balogh testified credibly about the circumstances of
the interview. [Carter] was interviewed at the
principal's office of the high school where [Carter]
arrived to teach band practice. The principal brought
him to the office and left him with the investigators.
The door was closed for privacy because of the
sensitive nature of the topics that were to be
discussed. The investigators told [Carter] why they
wanted to speak to him and he agreed to talk with
them. Balogh was in plain clothes. The
30
Commonwealth's evidence reflects that the tone of
the interview was cordial. [Carter] never asked to
leave, was not restrained from doing so, and was not
threatened. The totality of the circumstances do not
indicate coercion so as to constitute the functional
equivalent of an arrest.
We find no error in the court's conclusion that Carter was
not in custody during his interview with the officers, and
therefore that the officers were not required to give
Carter Miranda warnings. Carter does not address, much
less dispute, the court's finding that he was not in police
custody, but he does make a general allegation that
Detective Balogh intimidated and threatened him, and
recites his testimony at the suppression hearing in
support of this contention. He also maintains that
Detective Balogh was not credible. However, it is clear
the trial court credited Detective Balogh's testimony, and
not Carter's, as was its prerogative to do. See
Commonwealth v. Yorgey, 188 A.3d 1190, 1198 (Pa.
Super. 2018) (stating that credibility determinations are
within the exclusive province of the suppression court).
As such, Carter does not provide any persuasive
argument to disturb the court's conclusion that he was
not in police custody.
Carter does claim he did not voluntarily waive his
constitutional rights. Even though the trial court found
that Detective Balogh was not required to give Miranda
warnings because Carter was not in custody, it noted he
nonetheless did so, and found Carter voluntarily waived
his rights before making his statements to the officers. To
that end, the court noted that Detective Balogh read the
constitutional waiver questions on the constitutional
waiver form to Carter, each of which Carter initialed
31
after indicating he was agreeing to waive that right,
before talking to Carter about the allegations.
The court further quoted the exchange between Carter
and Detective Balogh at the beginning of Carter's audio-
taped statement. See Trial Court Opinion, 2/14/2022, at
60-61. It found this exchange “ma[de] clear that [Carter]
was informed of his Miranda rights and understood the
warnings both during and prior to the recording.” Id. at
61. During the exchange, Carter also specifically stated
that he was agreeing to speak with the officers and was
“not under duress or anything like that.” Id.
Carter challenges the trial court's conclusion that he
voluntarily waived his constitutional rights before giving
his statements, again alleging he was threatened by
Detective Balogh and that he also was not read his rights
until after the interview concluded. Again, Carter
testified to this effect at the suppression hearing, and the
trial court did not credit this testimony. Instead, despite
Carter's allegations that Detective Balogh's testimony
was not credible, the trial court credited the detective's
testimony that he thoroughly reviewed Carter's
constitutional rights with him before taking any
statements, and Carter waived those rights without any
coercion. See Yorgey, 188 A.3d at 1198. Based on the
above, we disagree with Carter that the trial court erred
by denying his motion to suppress the statements he
made to police.
We note that Carter also makes a bald allegation inside
his first claim that the trial court should have suppressed
the evidence from his cell phone because it was obtained
without a search warrant. In the first place, this
argument is not included in his statement of questions
involved section, and it is waived for that reason alone.
See Pa.R.A.P. 2116(a). In any event, the trial court found
32
that Carter allowed the officers to look at his phone,
handed over his phone and provided the passcode to open
the private folder in Snapchat. He signed a consent to
warrantless search form. The court concluded that the
credible testimony of Detective Balogh and Officer Boone
established that Carter's consent was voluntary and not
the product of coercion. Again, Carter does not offer any
convincing argument that the trial court erred in
reaching this conclusion.
Id. at **6-7.
When presented with the facts of this claim, the state courts
concluded that Carter was not entitled to relief. A suppression hearing
was held before the trial court and the court found that Carter was not
under a custodial detention. The trial court made a credibility
determination and found the Detective to be credible. Based on the
evidence presented at the suppression hearing, the trial court found
that Carter was brought to the principal’s office where he was
interviewed and the tone was cordial. Carter was told why the
investigators wanted to talk with him and he agreed to the interview.
Carter never asked to leave, was not restrained from doing so, and was
not threatened. Accordingly, the trial court found that based on the
33
totality of the circumstances, the interview of Carter was not a custodial
interrogation and the Superior Court affirmed.
Miranda serves to exclude from trial statements made by a
defendant during a custodial interrogation. See Miranda v. Arizona,
384 U.S. 436, 444 (1966). Thus, an individual’s Miranda rights apply
only when that individual is “in custody” and subjected to
“interrogation.” See Illinois v. Perkins, 496 U.S. 292, 296 (1990). In
determining “whether an individual is in custody, the ultimate inquiry
is ‘whether there is a formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.’” Reinert v.
Larkins, 379 F.3d 76, 86 (3d Cir. 2004) (quoting California v. Beheler,
463 U.S. 1121, 1125 (1983) (internal quotation omitted)). When the
individual has not been openly arrested when the statements are made,
“‘something must be said or done by the authorities, either in their
manner of approach or in the tone or extent of their questioning, which
indicates they would not have heeded a request to depart or to allow the
suspect to do so.’” Id. (quoting Steigler v. Anderson, 496 F.2d 793, 799
(3d Cir. 1974) (internal quotation omitted)). “Interrogation” for
34
Miranda purposes includes those words and actions “that the police
should know are reasonably likely to elicit an incriminating response.”
See Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
Here, Carter was not subjected to the type of custodial
interrogation that triggers Miranda. He was not under arrest. He
voluntarily spoke with the investigators and there was no evidence to
suggest that Carter was restrained in any way from breaking off the
encounter, let alone restrained to a degree associated with a formal
arrest. The state courts’ decisions were neither contrary to, nor
involved an unreasonable application of clearly established federal law
as determined by the Supreme Court of the United States. Further, the
decisions were not based on an unreasonable determination of the facts
in light of the evidence. And, after conducing a hearing and making
credibility determinations, the trial court found that Carter was indeed
Mirandized prior to the interview. Accordingly, the court will deny this
claim.
Likewise, Carter’s argument that he is entitled to habeas relief
based on the trial court’s failure to suppress physical evidence fails. As
35
a general rule, Fourth Amendment exclusionary-rule claims are
cognizable on federal habeas corpus review only if there has been no
opportunity for full and fair litigation of the claim in the state courts.
See Reed v. Farley, 512 U.S. 339 (1994); Withrow v. Williams, 507 U.S.
680 (1993); Jones v. Superintendent of Rahway State Prison, 725 F.2d
40, 42 (3d Cir. 1984).
Here, it is clear that Carter was previously afforded a full and fair
hearing on this claim, having raised this issue with the Luzerne County
Court of Common Pleas, and subsequently appealing this issue to the
Superior Court, which affirmed the trial court. Because Carter has
received a full and fair hearing in which to present this Fourth
Amendment claim, his instant attempt to relitigate this issue is
meritless. See Stone v. Powell, 428 U.S. 465, 481 (1976) (“[W]here the
State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state
prisoner be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was
introduced at trial.”); see also Gilmore v. Marks, 799 F.2d 51, 56 (3d Cir.
36
1986) (“[A] federal court may not reexamine the state court’s
determination that no Fourth Amendment violation occurred.”).
2) Ground Four
In Ground Four, the Petitioner alleges that the Commonwealth
failed to permit his expert to perform a proper forensic examination of
his cell phone which contained information critical to his defense. He
asserts that he requested a continuance of his trial to allow for a proper
examination or for sanctions that would exclude from trial any evidence
derived from Carter’s cellphone. As with his other claims, Ground Four
contains a mix of arguments, mostly based on state law and referencing
an abuse of discretion standard, appropriate on a direct appeal but not
here. Similarly, absent is a discussion was to why the Superior Court’s
decision was either contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States; or was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding. 28 U.S.C. § 2254(d). If, as the Respondents speculate,
the argument presented here was developed prior to the Superior
37
Court’s decision, the absence of such argument would make sense.
Nevertheless, despite Respondent’s argument to the contrary, it does
appear that Ground Fourt contains a federally cognizable claim that
was presented to the Superior Court. Petitioner asserts:
The Petitioner submitted to the Trial Court that if the
September 28, 2020 Trial was not continued and Mr.
Carter was not supplied with his Apple iPhone 6S
telephone in the possession of the Commonwealth for
forensic examination by his defense experts, his due
process rights under the Sixth Amendment of the United
States Constitution as made applicable to the
Commonwealth through the Fourteenth Amendment
of the United States Constitution as well as under the
due process clause of the Constitution of the
Commonwealth of Pennsylvania will be violated, and he
will be unable to present an adequate defense to these
charges.
(Doc. 1-3. P. 35). He argued: “The United States Supreme Court in
Ungar v. Sarafite, 376 U.S. 575, 589 (1964), applied a due process
standard pursuant to the due process clause of the Fifth and Fourteen
Amendments, which provide independent protections against arbitrary
denials of continuance requests. See 376 U.S. 588-589 and n.9. ‘At the
point where such a refusal implicates the right to effective assistance of
counsel, the guarantees of the Sixth and Fifth Amendments essentially
38
converge, as necessarily do the constitutional inquiries forced by such a
request and its denial.’ Sampley v. Attorney General of North Carolina,
786 F.2d 610,613 (4th Cir. 1986) (citing Morris, 461 U.S. at 11-12).” (Id.
at p. 37).
The Pennsylvania Superior Court addressed the substance of this
federal claim, although its analysis focused heavily on the state law
issues which Petitioner also presents here. Although lengthy, the
Superior Court’s discussion of this claim bears quoting in toto:
Carter alleges the trial court erred by failing to grant his
motion for a continuance in order to allow his expert
witness to examine his cell phone and its contents. He
argues the court should have granted the motion as it was
in the interests of justice and filed more than 48 hours
before the start of trial. He further asserts the trial
court's refusal to grant the continuance effectively
deprived him of his right to counsel. This claim fails.
The decision of whether to deny a continuance is within
the sound discretion of the trial court. See
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa.
Super. 2013). “A myopic insistence upon expeditiousness
in the face of a justifiable request for delay can render the
right to defend with counsel an empty formality.
However, not every restriction on counsel's time or
opportunity to investigate ... violates a defendant's Sixth
Amendment right to counsel.” Id. (citations and brackets
omitted). Therefore, the trial court exceeds its
constitutional authority only when it exercises its
39
discretion to deny a continuance on the basis of an
“unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for
delay.” Id. at 671-672 (citation omitted). Moreover, our
Rules of Criminal Procedure provide that a trial court
may grant a continuance in the “interests of justice.” See
Pa.R.Crim. P. 106(A). “A motion for continuance on
behalf of the defendant shall be made not later than 48
hours before the time set for the proceeding.”
Pa.R.Crim.P. 106(D).
Here, the trial court found it had not abused its discretion
in denying the motion for a continuance Carter filed on
the Friday before trial was set to begin. The court noted
that prior to this continuance motion, the trial had
already been continued numerous times due to previous
defense motions filed on September 20, 2019, October 24,
2019 and January 6, 2020.
The court also noted it specifically referenced the
January 6, 2020 continuance motion at the June 9, 2020
hearing on Carter's omnibus pretrial motions, and that
the January continuance had been granted because of the
issue with the cell phone and yet, “absolutely nothing has
happened from that point to today.” N.T. Omnibus
Motion Hearing, 6/9/2020, at 8. The court recounted that
defense counsel stated the defense had finally hired an
expert the day before and agreed to resolve the issue. The
court continued:
The defense raised the issue of digital discovery in
January and June of 2020. Defense counsel indicated
they had hired an expert on June 8, 2020. Despite
the unambiguous instructions of this court at the
Omnibus Hearing in June, arrangements were not
made for Sperber to look at the phone until the
40
afternoon of Tuesday, September 22, 2020, six days
before the scheduled trial date. Although the
Commonwealth had offered to set up a meeting for
the defense expert to review the phone on Monday,
September 21st, the earliest the defense could meet
was on Tuesday September 22nd after Yarnall had
been refused entry by the Sheriff due to COVID
protocols on September 17th. After Sperber
voluntarily left the meeting on Tuesday, the defense
did not raise the issue that they were unable to
access the phone until Friday when accompanied by
the final motion seeking a continuance.
During the meeting, Sperber was given access to
[two software programs], and [Detective Balogh's
supervisor, who was at the September 22nd meeting]
testified that Sperber would have been able to view
the file with these programs. Notably, this is not a
case with voluminous digital discovery. The instant
case involved only two relevant photographs. In
addition, the defense had been aware that the
Commonwealth was unwilling to release the cell
phone for months before Sperber's visit. If time to
continue to view the images was the issue, it is
undisputed that no one from the District Attorney's
office asked Sperber to leave before he was ready.
During the meeting itself, Yarnall was in contact
with the defense counsel and notified him of the
issues he believed Sperber was having.
As we said at the hearing on [Carter's] final motion
for continuance: “[T]here is no question in the court's
mind that [Carter] has had more than ample
opportunity to get whatever digital discovery they
sought, okay. And if necessary, to seek the
appropriate court interventions.” N.T. Motions
Hearing, 9/28/[20]20, at 131. As a result, this court
did not exercise its discretion to deny the final
41
requested continuance on the basis of “unreasoning
and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay.” Instead, the
motion for continuance was properly denied as
[Carter] failed to avail himself of the many
opportunities provided to obtain the discovery he
sought and to avail himself of the court's assistance,
if needed, in a timely fashion.
Trial Court Opinion, 2/14/2022, at 52-53 (emphasis in
original).
Carter does nothing in his brief to challenge the court's
finding that he failed to make timely and reasonable
efforts to have a defense expert examine the cell phone
and relevant electronic evidence. Carter agreed to have
his cell phone analyzed on October 22, 2018, and the
Commonwealth filed informations against him in July
2019. He was well aware there were two photos at issue
on the cell phone. Yet, he does not offer any explanation
as to why he did not hire an expert to examine the phone
until June 8, 2020, and then did not arrange to have such
an examination occur until days before trial, on
September 17, despite multiple requests by the
Commonwealth for the expert's name and repeated offers
to make arrangements for any such expert to view the
phone.
Instead, Carter broadly “contends that the trial [c]ourt's
explanation does not denote a careful consideration of the
matter. The decision reflects a myopic insistence upon
expeditiousness in the face of [his] request.” Appellant's
Brief at 55. We disagree, and conclude that the trial court
did not abuse its discretion in denying the continuance
motion. No relief is due.
42
2023 WL 4417528 at **8-10.
The Superior Court set forth the proper federal constitutional
standard in addressing this claim. The Superior Court quoted
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013)
quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964) which set forth the
standard applicable here and which was properly employed by the
Superior Court in addressing Petitioner’s claim, viz.:
The matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial of
a request for more time that violates due process even if
the party fails to offer evidence or is compelled to defend
without counsel. Contrariwise, a myopic insistence upon
expeditiousness in the face of a justifiable request for
delay can render the right to defend with counsel an
empty formality. There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as
to violate due process. The answer must be found in the
circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the
request is denied.
575 U.S. at 589-90 (cleaned up). In rejecting Petitioner’s claim, the
Superior Court relied on the fact that “the trial had already been
continued numerous times due to previous defense motions filed on
43
September 20, 2019, October 24, 2019 and January 6, 2020” and that
the trial court “noted it specifically referenced the January 6, 2020
continuance motion at the June 9, 2020 hearing on Carter's omnibus
pretrial motions, and that the January continuance had been granted
because of the issue with the cell phone.” The Superior Court also noted
that “Carter does nothing in his brief to challenge the court's finding
that he failed to make timely and reasonable efforts to have a defense
expert examine the cell phone and relevant electronic evidence.” Id.
Here, it cannot be said that the denial of the continuance was “so
arbitrary as to violate due process.” The trial was continued multiple
times and on the basis that the phone needed to be examined. Carter
was aware of the issue as early as October 22, 2018, yet failed to hire an
expert until June 8, 2020, and did not arrange to have the phone
analyzed until months later, shortly before trial. He cannot now assert
that the denial of a continuance was arbitrary in violation of due
process and his right to counsel when he was given ample time to hire
an expert and have the phone examined. Accordingly, it must be said
that the trial court’s “exercise of its discretion [in denting the
44
continuance] did not rise to the level of a due process violation.” Gaines
v. Brittain, No. CV 19-1160, 2021 WL 1124938, at *9 (W.D. Pa. Mar. 23,
2021).
Conclusion
For the reasons set forth above, the Petition will be denied. An
appropriate Order will follow.
Dated: September 4, 2026 /s/ Leo A. Latella
Leo A. Latella
United States Magistrate Judge
45