Opinion
1:19-cv-184
10-12-2021
PAUL WILLIAM BEATTY, Petitioner v. KEVIN KAUFFMAN, THE ATTORNEY GENERAL OF THE STATE OF PENSYLVANIA, and DISTRICT ATTORNEY OF VENANGO COUNTY, Respondents
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS
CORPUS [ECF NO. 1]
RIGHARD A. LANZILLO (UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the petition for a writ of habeas corpus, ECF No. 1, be denied and that no certificate of appealability issue.
II. Report
A. Background and Procedural History
Before the Court is a pro se petition for a writ of habeas corpus filed by Paul William Beatty pursuant to 28 U.S.C. § 2254. ECF No. 1. Beatty is incarcerated at the State Correctional Institution at Huntingdon, serving a sentence of imprisonment imposed by the Court of Common Pleas of Venango County, Pennsylvania.
A review of the record and the criminal docket sheet for Beatty's underlying convictions in Commonwealth v. Beatty, No. CP-61-CR-0000666-2010 (Venango Cnty. Com. Pl.), reveals the following relevant facts. Following a jury trial, Beatty was convicted of one count each of rape of a child, indecent assault, endangering the welfare of children, and corruption of minors. The victim of Beatty's crimes was A.S., the daughter of his paramour. On January 5, 2012, he was sentenced to an aggregate term of imprisonment of 15 to 30 years. He filed a direct appeal; the Pennsylvania Superior Court affirmed his judgment of sentence on October 28, 2013. Commonwealth v. Beatty, 87 A.3d 895 (Pa. Super. 2013) (unpublished memorandum). Beatty did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
The criminal docket is available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-61-CR-0000666-2010&dnh=kTUdnKncci8WW0C%2B8EZBUg%3D%3D (last visited September 24, 2021).
On January 22, 2014, Beatty filed a petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. This petition was dismissed on July 23, 2014. Beatty filed an appeal from the dismissal. On December 1, 2015, the Pennsylvania Superior Court affirmed the order dismissing the petition because Beatty had waived his appellate issue by failing to file a court-ordered statement of matters complained of on appeal. Commonwealth v. Beatty, 135 A.3d 648 (Pa. Super. 2015). On May 3, 2016, the Pennsylvania Supreme Court denied Beatty's petition for allowance of appeal. Commonwealth v. Beatty, 138 A.3d 1 (Pa. 2016).
On September 8, 2014, while his first PCRA petition was on appeal, Beatty filed a second PCRA petition, which the PCRA court held in abeyance pending resolution of the appeal. On July 14, 2016, Beatty filed a motion to “reinstate” his second PCRA petition, which the PCRA court granted on July 22, 2016. On December 28, 2017, following multiple evidentiary hearings, the PCRA court denied the petition. On April 8, 2019, the Pennsylvania Superior Court affirmed the denial of PCRA relief on the basis that the second PCRA petition was untimely and thus the PCRA court had no jurisdiction to address its merits. Commonwealth v. Beatty, 207 A.3d 957 (Pa. Super. 2019). Beatty filed a petition for allowance of appeal, which was denied by the Pennsylvania Supreme Court on October 16, 2019. Commonwealth v. Beatty, 218 A.3d 850 (Pa. 2019).
The instant petition was filed on June 28, 2019. ECF No. 1. Respondents filed a response thereto on September 30, 2019. ECF No. 14. Beatty filed a Traverse on December 14, 2019. ECF No. 19.
An identical copy of the Traverse was filed at ECF No. 20.
Upon review, the undersigned found that, in large part, Beatty's petition appeared to be untimely. Because the Court may raise the issue of timeliness sua sponte as long as the petitioner is given fair notice and an opportunity to respond and is not prejudiced, Day v. McDonough, 547 U.S. 198, 205-10 (2006); United States v. Bendolph, 409 F.3d 155, 161-70 (3d Cir. 2005) (en banc), the undersigned issued an Order to Show Cause why the identified claims should not be dismissed for failure to file them without the applicable limitations period, thus providing Beatty with the required notice and opportunity to respond. ECF No. 21. Respondents were also invited to submit a response setting forth their position. Id. Beatty filed a Response to the Order to Show Cause. ECF No. 24. Respondents did not submit a response., The petition is now ripe for review.
B. Analysis
1. Timeliness of Grounds 1-15
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year limitations period for state prisoners seeking federal habeas review. It is codified at 28 U.S.C. § 2244(d) and provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section.28 U.S.C. § 2244(d).
In analyzing whether a petition for writ of habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger date” for the one-year limitations period pursuant to section 2244(d)(1). Caldwell v. Mahally, et al., 2019 U.S. Dist. LEXIS 192046, *17 (W.D. Pa. Nov. 5, 2019). Second, the court must determine whether any “properly filed” applications for postconviction or collateral relief were pending during the limitations period that would toll the statute pursuant to section 2244(d)(2). Id. at *17-18. Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. Id. at * 18.
a. Grounds 1-12, 15
Beatty asserts sixteen grounds for relief in his petition, fifteen of which are related to his trial (Grounds 1-15). ECF No. 1 at 5-24. Thirteen of these claims do not implicate newly enunciated constitutional rights or facts that were discovered later (Grounds 1-12, 15). Furthermore, it does not appear that there were any state-created impediments that prevented Beatty from raising these claims sooner. Consequently, the “trigger date” for the claims set forth in Grounds 1-12 and 15 is the date on which Beatty's judgment of sentence became final.
Beatty's judgment of sentence became final on or about November 27, 2013, at the expiration of the time for filing with the Pennsylvania Supreme Court a petition for allowance of appeal from the Pennsylvania Superior Court's affirmance of the judgment of sentence. Pa.R.A.P. 1113(a); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (noting that ajudgment becomes final at the conclusion of direct review or the expiration of time for seeking such review). The one-year limitations period for filing a habeas corpus petition began to run on that date. 28 U.S.C. § 2244(d)(1)(A). Accordingly, Beatty had to file any federal habeas petition concerning these trial-related claims by November 27, 2014. Because the instant habeas petition was filed on June 28, 2019, after the one-year limitations period had expired, these claims are statutorily time-barred. Given this deficiency, the Court must determine whether Beatty can take advantage of the statutory tolling provision set out in Section 2244(d)(2).
In his Response to the Order to Show Cause, Beatty challenges what he construes as this Court's finding that he “failed” by not filing a petition for allowance of appeal to the Pennsylvania Supreme Court. ECF No. 24 at 3. The Court passes no judgment on this decision and merely sets forth the relevant procedural history of the case in its determination of the timeliness of his petition.
Section 2244(d)(2) provides that the one-year limitations period is tolled during the pendency of a “properly filed” state post-conviction proceeding. Beatty filed his first PCRA petition on January 22, 2014, by which time 56 days of his one-year limitations period had expired. Those proceedings were “properly filed, ” and, thus, tolled the statute of limitations until they were concluded on May 3, 2016, when the Pennsylvania Supreme Court denied Beatty's petition for allowance of appeal. At that time, Beatty had 309 days remaining in the limitations period.
In his Response to the Order to Show Cause, Beatty challenges what he construes as this Court's finding that his initial PCRA petition was untimely. ECF No. 24 at 4. As should be clear from the above explanation, this Court finds that the statute of limitations was tolled during the litigation of this timely filed petition.
As the Pennsylvania Superior Court held in its April 8, 2019 decision, Beatty's second PCRA proceeding was not a “properly fded application for State post-conviction or other collateral review” under the terms of § 2244(d)(2). Commonwealth v. Beatty, 207 A.3d at 963-64. Thus, that proceeding did not toll the statute of limitations pursuant to section 2244(d)(2). See Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely under state law, that is the end of the matter for purposes of § 2244(d)(2).”) (quotation marks and brackets deleted); id. at 417 (“Because the state court rejected petitioner's PCRA petition as untimely, it was not ‘properly filed,' and he is not entitled to statutory tolling under § 2244(d)(2).”).
The Court will consider the applicability of equitable tolling infra.
b. Ground 13
As for Ground 13, Beatty raises a due process claim therein, alleging that “[o]ver two years after his January 2012 sentencing, ” he “was made aware” that the prosecutor had given gifts to the victim during the trial. ECF No. 1 at 19-20. In support of this claim, Beatty attaches to his Traverse the letter by which he was made aware of this information. ECF No. 19-2 at 4. The letter is dated August 21, 2014. Id. Accordingly, the trigger date for this claim is August 21, 2014.
Because August 21, 2014, fell during the litigation of Beatty's properly filed PCRA petition, the one-year period was tolled until that litigation was completed, which was, as set forth above, on May 3, 2016. Therefore, Beatty had one year, or until May 3, 2017, to file a habeas petition as to this claim. He did not do so. The Court will consider the applicability of equitable tolling infra.
c. Ground 14
As for Ground 14, Beatty raises a due process claim therein, alleging that the prosecutor was made aware of the victim's “penchant to fabricate falsehoods, ” and still chose to prosecute the underlying case “in his never ending quest for career advancement.” ECF No. 1 at 21-23. In support of this claim, Beatty attaches to his Traverse an affidavit from the victim's guardian in which she attests that she informed the prosecutor prior to trial of the victim's “continuing issues regarding the truth or falsity of situations.” ECF No. 19-4 at 1-4. This affidavit is dated March 17, 2017. Id. Accordingly, it is reasonable to assign the trigger date for this claim as March 17, 2017. Beatty had one year, then, or until March 17, 2018, to file a habeas petition as to this claim. He did not do so. The Court will consider the applicability of equitable tolling infra.
d. Equitable Tolling
The United States Supreme Court has held that AEDPA's statute-of-limitation period “is subject to equitable tolling in appropriate cases.” Holland v. Florida, 130 S.Ct. 2549, 2560 (2010). A petitioner is entitled to equitable tolling only if he shows both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and prevented timely filing. Id. at 2562. See also Massey v. Superintendent Coal Twp. SCI, 2021 U.S. App. LEXIS 20533, at *6-7 (3d Cir. 2021).
In his Response to the Order to Show Cause, Beatty argues that he is entitled to equitable tolling because he diligently pursued his rights by diligently litigating his second PCRA petition which was ultimately determined to be untimely. ECF No. 24 at 5. He also points out that the PCRA court placed his second PCRA petition “in abeyance” upon its original filing. Id.
Beatty also argues that he is eligible for the “actual innocence” exception to the statute of limitations. ECF No. 24 at 5-6. The Court need not evaluate the merits of this argument.
As the Pennsylvania Superior Court explained, when a PCRA petition is filed while another PCRA petition is pending on appeal, the petitioner must choose to pursue the appeal or the new petition. Commonwealth v. Beatty, 207 A.3d at 961. He cannot do both. Id. Further, as the Superior Court explained, the PCRA court does not have jurisdiction to place a new petition in repose pending the outcome of the appeal. Id. The PCRA court is required to dismiss any subsequent PCRA petition filed while an appeal of a prior petition is pending. Id. (citing Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000)). Nonetheless, it is undisputed that when Beatty filed his second PCRA petition while the appeal of his first PCRA petition was pending, the PCRA court did not dismiss the second PCRA petition, but instead held it in abeyance and subsequently entertained it following the conclusion of the appeal of the first PCRA petition. Until the Superior Court found the second petition to be untimely in its April 8, 2019 decision, Beatty justifiably relied on the PCRA court's actions in believing that his PCRA litigation was on track and continuous and that the statute of limitations for filing a federal habeas petition had not resumed.
The Court finds that these facts constitute an extraordinary circumstance. See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 90-91 (3d Cir. 2013) (explaining that an extraordinary circumstance exists where a court misleads a litigant and the erroneous information operates to prevent the litigant from pursuing his rights); Thompkins v. Colvin, 2015 U.S. Dist. LEXIS 98380, at *4 (W.D. Pa. July 28, 2015) (explaining that [m]isinformation or misleading instructions from a court may form the basis for equitable tolling.”)
Upon consideration of the totality of the circumstances surrounding the state court proceedings, and cognizant of the strong presumption in favor of granting equitable tolling in habeas cases, Massey, 2021 U.S. App. LEXIS 20533, at *9 (citing Holland, 560 U.S. at 645-46), the Court finds that equitable tolling should extend the date on which the statute of limitations resumed following the litigation of Beatty's PCRA petitions at least until April 8, 2019, when Beatty first had notice that his second PCRA petition was untimely. At the time of the Superior Court's decision, 309 days remained in the limitations period. Beatty filed the instant petition on June 28, 2019, approximately 81 days later. Thus, the petition was timely filed.
2. Merits
a. Ground 1: Ineffective assistance of counsel for failing to object to opening statement
Beatty first asserts that his trial counsel was ineffective for failing to object to statements made by the prosecutor, Assistant District Attorney James Carbone, in his opening statement in which he “assassinated” Beatty's character. ECF No. 1 at 5, 11. Beatty argues that Carbone portrayed him as “lazy, slothful, extremely possessive and controlling, ” addicted to pills, and irate with the victim's mother on the date of the crime, all of which was inadmissible character evidence or argument unsupported by the evidence. Id.
Beatty raised this claim in his direct appeal. Commonwealth v. Beatty, 2013 PA Sup. Ct. Briefs LEXIS 7540, *70-72; Beatty, 87 A.3d 895 (unpublished memorandum at 6, 22). The Superior Court held, in relevant part:
Respondents argue that Beatty did not raise this argument on direct appeal. ECF No. 14 at 11 -12. In support of this argument, Respondents cite to the Superior Court Opinion of October 28, 2013. Id. at 11. Their error may stem from the copy of that opinion which is attached to the response; it is incomplete, containing only the odd-numbered pages of the slip opinion. ECF No. 14-6.
In this case, the trial court, who presided over the trial and witnessed the prosecutor's actions, found no prosecutorial misconduct. In seeking a new trial based on ineffective assistance, [Beatty] asks this Court to conclude, based on the
cold record, that the trial court abused its discretion in denying him relief. In essence, [Beatty] asks this Court to substitute its judgment for that of the trial court. As noted above, in order for a trial court to have abused its discretion, we must conclude that “the trial court misapplied the law or acted unreasonably in the exercise of its discretion.” [Commonwealth v.] Culver, 51 A.3d [866] at 871 [(Pa. Super. 2012)]. Because our review of the record supports the trial court's conclusion that [Beatty] was not unduly prejudiced by Attorney Carbone's conduct during the trial, [Beatty's] ineffectiveness claim fails. Loner [836 A.2d 125 (Pa. Super. 2003)], supra.Beatty, 87 A.3d 895 (unpublished memorandum at 26-27).
Because the state court reviewed this claim and rejected it on its merits, the following standard is applicable in this Court:
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996, if a state court rejects a claimed federal violation on the merits, to obtain habeas relief a petitioner must show that the ruling:
(1) resulted in a decision that 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) resulted in a decision that 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). See also Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004); Thomas v. Horn, 570 F.3d 105 (3d Cir. 2009).
An unreasonable application of federal law focuses on whether the state court unreasonably applied relevant Supreme Court holdings. White v. Woodall, 572 U.S. 415, 419-20, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014). A petitioner must show an error so egregious “that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 102-03, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). An unreasonable determination of the facts is one where the petitioner proves by clear and convincing evidence, see 28 U.S.C. § 2254(e)(1), that the conclusion drawn from the evidence by the state court is so improbable that it “blinks reality.” See Miller-El v. Dretke, 545 U.S. 231, 266, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); This is a high bar to clear: as long as reasonable minds might disagree about the correctness of a factual determination,
a federal habeas court must defer to the state court's determination. See Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).Allen v. Kerestes, 2019 U.S. Dist. LEXIS 193970, at *2-4 (W.D. Pa. Nov. 4, 2019).
Beatty does not argue that the Superior Court's ruling - that he was not prejudiced by the prosecutor's conduct at trial - was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. He asserts only that his trial counsel's admission as to her ineffectiveness renders this claim meritorious. ECF No. 19 at 9. This argument is unavailing. Even assuming arguendo that trial counsel so testified (Beatty does not provide record citation for trial counsel's admission), the fact that her assessment of her performance conflicted with the Superior Court's conclusion of law falls well short of establishing that the court unreasonably applied relevant Supreme Court holdings. Beatty is not entitled to habeas relief on this claim.
b. Ground 2: Ineffective assistance of counsel for failing to object to expert testimony of Sarah Gluzman
Beatty next asserts that his trial counsel was ineffective for failing to object to improper bolstering testimony from expert witness Sarah Gluzman. ECF No. 1 at 6-7, 11. Ms. Gluzman, a forensic interviewer of children who are suspected of being physically or sexually abused, testified at trial about her interview of A.S. Beatty raised a similar claim in his direct appeal. Here, he points to one statement from Ms. Gluzman, wherein she described the follow-up recommendation she made for A.S. following the interview. Specifically, Ms. Gluzman recommended that A.S. continue in therapy and work with a provider experienced in working with children who have been sexually abused. ECF No. 14-1 at 164. Beatty argues that testimony about Ms. Gluzman's recommendation improperly bolstered A.S.'s credibility as to whether the abuse occurred.
In resolving this claim on direct appeal, the Pennsylvania Superior Court held:
This Court has summarized:
The law is clear that the determination of the veracity of a witness is reserved exclusively for the jury. Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988). As such, testimony, especially that of an expert, which serves to bolster the veracity of a sexual abuse victim impermissibly infringes upon the province of the jury. Seese, supra', Commonwealth v. Garcia, 403 Pa. Super. 280, 588 A.2d 951 (1991).
Commonwealth v. Loner, 609 A.2d 1376, 1377 (Pa. Super. 1992).
... The trial court... ruled that the testimony of the forensic interviewers, who had taken statements from the victim after an investigation had been initiated, could not be used substantively by the Commonwealth, but rather only as prior consistent statements to help the jury determine the victim's credibility. Before the forensic interviewers testified, the trial court instructed the jury regarding this distinction and in what manner the jury should receive the testimony. ...
Our review of the testimony of each expert witness reveals no improper comments relative to the victim's credibility. In arguing to the contrary, [Beatty] refers to statements that must be considered in the context in which they were given; either to establish the witness's role in disclosure and/or investigation, the victim's competency, or to permit diagnosis. See e.g., Commonwealth v. Hernandez, 615 A.2d 1337, 1341 (concluding that the trial court's instructions correctly informed the jury that the witness, in performing her job, made certain evaluations and reached conclusions distinct from the jury's function as fact-finder). Commonwealth v. Loner, 609 A.2d 1376, 1377 (explaining that the Commonwealth may present evidence of child victim's prior consistent statement to corroborate the victim's testimony). When read in the context of their entire testimony, the experts' testimony cannot be perceived as usurping the credibility determinations of the jury. Thus, [Beatty's] ineffectiveness claim fails.Beatty, 87 A.3d 895 (unpublished memorandum at 15-16).
Beatty makes no effort to challenge the state court's ruling on this issue. He does not argue that that decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. The only United States Supreme Court case he cites in support of this claim concerns only the standard for ineffective assistance of counsel, not the substance of the claim. ECF No. 19 at 11 (citing Hinton v. Alabama, 571 U.S. 263 (2014)). Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim.
c. Ground 3: Ineffective assistance of counsel for failure to object to expert testimony of Jody Vemam
Beatty next asserts that his trial counsel was ineffective for failing to object to improper bolstering testimony from expert witness Jody Vemam. ECF No. 1 at 8-9, 11. Ms. Vemam, a licensed professional counselor, testified at trial about treatment she provided to A.S. Beatty raised a similar claim in his direct appeal. Here, he points to statements from Ms. Vemam wherein she described A.S.'s experience with post-traumatic stress disorder caused by the sexual assault. Beatty argues that Ms. Vemam's testimony improperly bolstered A.S.'s credibility as to whether the abuse occurred.
In Beatty's direct appeal, the Pennsylvania Superior Court analyzed this claim in conjunction with the previous claim. The analysis set forth above applies to both claims.
As with the previous claim, Beatty makes no effort to challenge the state court's ruling on this issue. He does not argue that that decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any relevant United States Supreme Court case. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim.
Beatty cites to United States v. Cronic, 466 U.S 648 (1984) and Strickland v. Washington, 466 U.S. 668 (1984), for general principles of an ineffective assistance of counsel claim.
d. Grounds 4-6: Ineffective assistance of counsel for failing to object to testimony of M.K.
Beatty next asserts that his trial counsel was ineffective for failing to object to testimony from M.K., Beatty's former paramour and A.S.'s mother. ECF No. 1 at 10-13. Beatty argues that M.K.'s testimony about his drug use, the disciplinary tactics he used on A.S. and her siblings, and his mistreatment of M.K. was improper character evidence under Pennsylvania Rule of Evidence 404.
In addressing these claims in Beatty's direct appeal, the Pennsylvania Superior Court found that the ineffectiveness claims were meritless because the trial court gave all required cautionary and limiting instructions as to the limited purpose of the character evidence. Beatty, 87 A.3d 895 (unpublished memorandum at 22-27).
In support of the instant petition, Beatty does not argue that the Superior Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any relevant United States Supreme Court case. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on these claims.
e. Ground 7: Ineffective assistance of counsel for failing to request a mistrial
Beatty next asserts that his trial counsel was ineffective in failing to request a mistrial when the prosecutor repeatedly solicited improper character evidence in violation of the trial court's instructions to him. ECF No. 1 at 13-14. Beatty represents that he raised this issue on direct appeal, id. at 14, but he did not. In his direct appeal, he raised a related claim of trial counsel ineffectiveness in failing to object to this evidence. Beatty, 87 A.3d 895 (unpublished memorandum at 6, 22-27). That claim has been addressed above. However, Beatty did not raise a claim that trial counsel was ineffective for failing to request a mistrial.
Because Beatty did not raise this claim in state court, the claim has not been exhausted. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). When a petitioner has failed to fairly present his claim to the state courts, but state procedural rules, such as the time limitations in the PCRA, see 42 Pa.C.S. § 9545(b), now bar him from doing so the exhaustion requirement is excused; however, the claims are considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). A petitioner can overcome procedural default by demonstrating “cause for the default and actual prejudice as a result of the alleged violation of federal law, or [] that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Beatty has not made any such demonstration. This claim is procedurally defaulted.
f. Ground 8: Ineffective assistance of counsel for failing to object to testimony from Jennifer Sprohar
Beatty next argues that his trial counsel was ineffective for failing to object to the testimony of Jennifer Sprohar concerning her characterization of him as violent, aggressive, and controlling towards M.K. ECF No. 1 at 14-15. In addressing this and other related claims in Beatty's direct appeal, the Pennsylvania Superior Court explained the following:
In this case, the trial court concluded that [Beatty's] claim of prosecutorial misconduct lacked merit. It explained:
We disagree with [Beatty's appellate] counsel when he contends that the prosecutor ambushed [Beatty] by espousing a theory of “transferred aggression” and we reiterate our conclusion that we allowed the evidence as to [Beatty's] controlling and abusive behavior towards the victim's mother in
part to explain for the jury why [A.S.] took off her clothes at [Beatty's] request and why she delayed so long in reporting. The prosecutor did in his summation discuss the concept of transferred aggression. But that argument, we conclude, was not dispositive since the only issue in the trial was whether or not the jury would accept the testimony of the victim as being credible in the context of [Beatty's] testimony that in fact he was never alone with [A.S.],
The court ruled in the Motion in Limine hearing that the Commonwealth's use of the controlling behavior as to the mother would be limited by what [A.S.] had perceived and to the extent that the behavior influenced [her] decision not to disclose. The issue, however, was, throughout the trial, important because [A.S.] did state that she only agreed to take off her clothes after [Beatty] threatened to hurt her mother and the last thing [Beatty] said to her before she left the room, after the assault, was that if she told anyone he would hurt her mother. Obviously A.S.'s perceptions as to the state of the mother's risk of being hurt were extremely important in assessing the [her] recital of what took place. Therefore, we conclude the prosecutor used the evidence available to him in order to offset the concern that he had that the jury would be skeptical of [A.S.'s] testimony because of her age at the time of the alleged assault and the fact that she did not report it for almost four years after the event.
It is true that, generally speaking, character evidence is not admissible and is only allowed in evidence under certain exceptions. However, as [Pa.R.E.] 404(b) states, one of those exceptions when character evidence is allowable is when the prosecution is attempting to prove motive.
[Beatty] contends that we erroneously allowed the Commonwealth to use references to drug use, cruelty, sloth, harassment, disorderly conduct, assault, and other bad character evidence. We did, throughout the trial, give limiting instructions on the issues of the controlling behavior of [Beatty]. We gave limiting instructions both at the time the testimony was elicited and again in our general charge to the jury. We do not agree with [Beatty's appellate] counsel that the Commonwealth in fact rested its theory on “transferred aggression.” Rather the Commonwealth rested its theory on the basis that [A.S.] was being truthful and that she withheld reporting the event because of her fear for her mother and her fear of [Beatty]. The Commonwealth's gratuitous comments upon transferred aggression versus any need for sexual gratification [Beatty] may have wanted by assaulting [A.S.] are no more than suppositions that could be presented in either a closing or opening as reasons why [Beatty] assaulted [A.S.].
So the Commonwealth, we conclude, may have properly argued to the jury that [Beatty's] reason or motive for sexually assaulting [A.S.] was because he was venting on the mother. We do not see unfair prejudice to [Beatty] in that argument. We conclude that it was superfluous to what was the core of the case, which was who was being truthful, [A.S.] or [Beatty]. The [Pa.R.E.] 404[b] evidence had to come in because of the fresh complaint issues. It would have been unduly unfair to the Commonwealth and to the victim to not allow some explanation as to why the victim took so long to report.
Trial Court Opinion, 8/10/12, at 6-10 (citations omitted).
Again, our review of the record supports the trial court's conclusions. Significantly, each time the trial court gave limiting instructions, it discussed prior bad acts and the fact that the jury should not consider the evidence to conclude that [Beatty] had a bad character or a propensity to commit crimes. See infra. Whether the Commonwealth's theory of the case was “pure fantasy, ” as posited by [Beatty], Appellant's Brief at 44, was an issue to be assessed by the jury.Beatty, 87 A.3d 895 (unpublished memorandum at 22-25).
In support of the instant claim, Beatty baldly asserts that Sprohar's testimony was outside of the scope of the character evidence approved by the trial court. ECF No. 1 at 14. The Pennsylvania Superior Court determined that it was not. Beatty does not argue that the Superior Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any United States Supreme Court case relevant to the decision at issue. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim.
g. Ground 9: Ineffective assistance of counsel for failing to object to testimony of Aimee Wood-Wessell
Beatty next asserts that his trial counsel was ineffective for failing to object to improper bolstering testimony from expert witness Aimee Wood-Wessell. ECF No. 1 at 15-16. Ms. Wood-Wessel, a forensic interviewer of children who are suspected of being physically or sexually abused, testified at trial about her interview of A.S. Beatty argues that Ms. Wood-Wessell's testimony about A.S.'s understanding of the difference between the truth and a lie improperly bolstered A.S.'s credibility as to whether the abuse occurred. The Court was unable to find the precise testimony quoted by Beatty, see ECF No. 19 at 25, 26, in the trial transcript, nonetheless, this claim is substantively similar to the claims raised in Grounds 2 and 3. In Beatty's direct appeal, the Pennsylvania Superior Court analyzed this claim in conjunction with those related claims. The analysis set forth above in the discussion of Ground 2 applies to this claim as well.
As he failed to do with regard to those related claims, Beatty makes no effort to challenge the state court's ruling on this issue. He does not argue that that decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any United States Supreme Court case. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim.
h. Ground 10: Ineffective assistance of counsel for failing to correct trial court
Beatty next asserts that his trial counsel was ineffective when she failed to correct the trial court when it informed the jury that Beatty had not taken a polygraph. ECF No. 1 at 16-17. Beatty represents that he raised this issue on direct appeal, id. at 17, but he did not. In his direct appeal, he raised a related claim of trial counsel's ineffectiveness in failing to caution him not to mention the polygraph test in his testimony. Beatty, 87 A.3d 895 (unpublished memorandum at 6, 20-22). That claim will be addressed in Ground 11. However, Beatty did not raise a separate claim that trial counsel was ineffective for failing to correct the trial court's curative instruction concerning the polygraph.
Because Beatty did not raise this claim in state court, the claim has not been exhausted. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan, 526 U.S. at 842. Because he cannot now present this claim in a PCRA petition, the exhaustion requirement is excused; however, the claim is considered to be procedurally defaulted. See, e.g., Lines v. Larkins, 208 F.3d 153, 162-66 (3d Cir. 2000). Beatty has failed to overcome this procedural default be demonstrating cause and prejudice or that failure to consider the claim will result in a fundamental miscarriage of justice, see Coleman v. Thompson, 501 U.S. 722, 750 (1991); thus, he cannot obtain habeas relief on this claim.
i. Ground 11: Ineffective assistance of counsel for failing to adequately prepare Beatty to testify
Beatty next asserts that his trial counsel was ineffective for failing to adequately prepare him to testify. ECF No. 1 at 17-18. Specifically, Beatty asserts that his counsel should have cautioned him not to mention the polygraph exam he took, his incarceration for domestic violence for an incident with M.K., or having spoken to his probation officer regarding M.K. Id. at 17.
In addressing this claim on direct appeal, the Pennsylvania Superior Court held as follows:
In his eighth claim, [Beatty] asserts that trial counsel was ineffective for failing to properly prepare him for his testimony. Specifically, [Beatty] complains that trial counsel “did not caution him not to mention the polygraph test nor did she caution him not to mention his incarceration or speaking to his probation officer.” Appellant's Brief at 38 (emphasis deleted). According to [Beatty], these shortcomings by trial counsel, “led to the introduction of inadmissible references to prior criminal conduct without any cautionary instruction.” Id., [Beatty] also argues that the court's instruction to the jury concerning the polygraph exam, which was approved by trial counsel, made him “look like a liar.” Id. [Beatty] complains that the trial court did not address his claim regarding his mention of incarceration or probation. With regard to the polygraph issue, [Beatty] contends that the trial court “again misrepresents the facts.” Id. at 39.
In addressing this issue regarding the polygraph, the trial court explained:
[Beatty] did adduce in his testimony that he had passed a polygraph. [The] Commonwealth at that point objected. [Beatty's] statement that he passed a
polygraph was spontaneous and unexpected by everyone else in the courtroom. We did have extensive conference with counsel on how to deal with the polygraph testimony and the court did give a curative and limiting instruction; this was after extended discussion with counsel. For [Beatty's appellate present] counsel to contend that [Beatty's] trial counsel had not properly warned [him] not to mention the polygraph is to ignore the fact that [Beatty] himself, when he made the statement [at trial], stated he knew that it was not admissible.
Trial Court Opinion, 8/10/12, at 17 (citation omitted).
Our review of the record reveals that, once [Beatty] made the polygraph disclosure, the parties disagreed as to what the police officer who administered the test had said about its results. To this end, the Commonwealth wished to call the police officer in rebuttal to testify that [Beatty] attempted to manipulate the results of the test by breathing in a certain manner and by moving about during administration of the test. The Commonwealth was unsuccessful in locating the police officer. After additional discussion, the parties agreed to the following instruction, which the trial court gave to the jury prior to the presentation of the closing arguments and the court's jury charge:
THE COURT: Okay, now something else happened which has been problematic and I wanted to discuss it with you here. [Beatty] during the course of his testimony mentioned something about a polygraph exam. A polygraph, some of you probably [are aware that] the term is somewhat synonymous with a lie detector. Lie detectors are not admissible in court and they're not admissible in court because they are not deemed scientifically reliable. So throughout the entire time I've been a lawyer and a Judge, they've never been admitted and are not even supposed to be mentioned. In this case there was no valid polygraph administered in this case. Therefore, the fact [Beatty] mentioned a polygraph, it's not for your consideration. No valid polygraph exam was conducted in this case. But nevertheless, even if there had been it would not be admissible either way. If it would have been positive for guilt it wouldn't be admissible, had it been negative it would not be admissible. They're scientifically unreliable, and therefore jurors are not allowed to consider [them], I only mention it to you because [Beatty] mentioned it to you and the Commonwealth felt put upon by that, understandably, and they asked---I've been asked to explain the law to you on this topic. It's not for your consideration at all.N.T., 8/16/11, at 205-06.
Although [Beatty] argues otherwise, we conclude that any prejudice to either [him] or the Commonwealth was cured by the above instruction. Although the trial court inaccurately states in its opinion that [Beatty] testified that he passed the polygraph exam, the trial court did not make this misstatement in its instruction to the jury. In
addition, we agree with the trial court that [Beatty's] claim that trial counsel failed to forewarn him about mentioning the polygraph, loses validity when [Beatty] expressly informed the jury he knew of its inadmissibility. Finally, although the trial court did not give a limiting instruction regarding prior bad acts following [Beatty's] testimony, the jury had already received such an instruction on more than one occasion. Thus, [Beatty's] claim of ineffectiveness lacks merit.Beatty, 87 A.3d 895 (unpublished memorandum at 20-22).
In support of this petition, Beatty does not argue that the Superior Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any relevant United States Supreme Court case. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim. Piece
Beatty does provide an incomplete, and incorrect, citation to “Krulewitch v, U.S, , 69 S.Ct. (1939), ” for a quotation concerning curative instructions. ECF No. 19 at 30. The quotation does not appear in Krulewitch v. United States, 69 S.Ct. 716 (1949). In any event, the quotation, which is not attached to a developed analysis, is insufficient to constitute an adequate challenge to the state court ruling.
j. Ground 12: Ineffective assistance of counsel for failing to object to closing argument
Beatty next asserts that his trial counsel was ineffective when she failed to object to improper statements about Beatty's character made by Carbone in the prosecution's closing argument. ECF No. 1 at 18-19. Beatty raised this argument on direct appeal in conjunction with the claims set forth here at Grounds 1 and 8 concerning prosecutorial misconduct and character evidence. As set forth above, the Superior Court found no merit therein.
In support of this claim, Beatty asserts, “the state court's decisions on this issue were clearly not in [] line with the Record.” ECF No. 19 at 33. He does not argue that the Superior
Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. He does not cite to any relevant United States Supreme Court case. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Beatty has failed to show that he is entitled to habeas relief on this claim.
k. Ground 13: Due process violation stemming from prosecutor's contact with victim
Beatty next asserts that he was denied his right to due process under the law by the prosecutor's misconduct in “plying” the victim with gifts in order to ensure her ongoing cooperation. ECF No. 1 at 19-21. Beatty raised this claim in his second PCRA petition, which was determined by the Superior Court to be untimely. Beatty, 207 A.3d at 964. Because Beatty failed to raise this claim in compliance with Pennsylvania's state procedural requirements and the states court declined to address it on its merits for that reason, it is procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Beatty appears to argue that this Court should nonetheless address the merits of his claim because failure to do so would result in a fundamental miscarriage of justice. ECF No. 19 at 33 (asserting that dismissing this petition based on “filing irregularity” would be a “travesty-of-justice”). As the Court of Appeals for the Third Circuit has explained:
Generally, this exception will apply only in extraordinary cases, i.e., “where a constitutional violation has probably resulted in the conviction of one who is actually innocent. . . .” 477 U.S. at 496. Thus, to establish a miscarriage of justice, the petitioner must prove that it is more likely than not that no reasonable juror would have convicted him. Schlup v. Delo, 513 U.S. 298, 326, 130 L.Ed.2d 808, 115 S.Ct. 851 (1995).Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000).
Beatty has failed to demonstrate any such miscarriage of justice. As Respondents point out, at the hearing held on this issue before the PCRA court, Beatty failed to adduce any evidence to support this claim. ECF No. 14 at 33-34. In support of his claim, Beatty cites to a March 17, 2017, affidavit from Shirley Hensley, A.S.'s one-time guardian, wherein she attests that Carbone interviewed A.S. alone and gave her a backpack and a stuffed animal as gifts. ECF No. 19 at 37; ECF No. 19-4. However, as Respondents argue, when Beatty presented Hensley as a witness at the June 23, 2017, PCRA hearing specifically to develop evidentiary support for the issues raised here in Grounds 13 and 14, he did not elicit testimony from her on these subjects.
Beatty also cites to a “recantation” interview of A.S. conducted by the District Attorney of Venango County on April 20, 2017, wherein she spoke “about these issues.” ECF No. 19 at 37. The video of this interview was presented to the PCRA court. In the video, A.S. stated that Carbone gave her a bouncy ball and other “little trinkets.” N.T. PCRA Hearing, 06/27/17, at 56. That court found A.S.'s “testimony” in this video to be incredible. ECF No. 14-8 at 9. Beatty subpoenaed A.S. to appear at the June 23, 2017, PCRA hearing, but she did not appear. Obviously, no testimony from A.S. was adduced at the hearing.
Finally, Beatty cites to another criminal case in which Carbone was found to have committed prosecutorial misconduct. In that case, Carbone was found to have given gifts to the child victim's family, to have made promises to the victim's family about having a family member released from prison and to have been dishonest with the trial court about these acts. Commonwealth v. Klem, 2014 Pa. Super. Unpub. LEXIS 899 (Pa. Super. 2014). This unrelated case, based on non-identical facts which were developed the post-sentence proceedings before the trial court, does not provide this Court with a basis upon which to find a miscarriage of justice in this case.
Accordingly, this Court is left with an affidavit, unsupported by testimony from the affiant despite her appearance at a subsequent hearing to develop the record as to this issue, and an out-of-court statement which does not exactly corroborate the affidavit and, in any case, which has been determined by the state court to be incredible. Beatty has simply failed to demonstrate a miscarriage of justice so as to overcome the procedural default. He is thus not entitled to habeas relief on this claim.
1. Ground 14: Due process violation stemming from prosecutor's knowledge of victim's penchant for untruthfulness
Beatty next asserts that he was denied his right to due process under the law by the prosecutor's misconduct in bringing the criminal case and in permitting the victim to testify at trial when he was aware of her penchant for lying. ECF No. 1 at 21-22. Beatty raised this claim in his second PCRA petition, which was determined by the Superior Court to be untimely. Beatty, 207 A.3d at 964. Because Beatty failed to raise this claim in compliance with Pennsylvania's state procedural requirements and the states court declined to address it on its merits for that reason, it is procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Beatty makes no effort to overcome procedural default as to this claim. He can have no habeas relief thereupon.
m. Ground 15: Ineffective assistance of counsel for failing to be aware of potential defense
Beatty next claims that his trial counsel was ineffective because she was unaware of a potential defense for him: the “memory error” defense. ECF No. 1 at 23-24. On direct appeal, the Pennsylvania Superior Court addressed this claim as follows:
In his next claim, [Beatty] asserts that trial counsel was ineffective because she was unaware of the “memory error” defense and its potential use in this case. According to [Beatty], this defense theory is known as “source misattribution” and refers to when a person has a memory, but attributes it to the wrong source. Appellant's Brief at 25. Included within the discovery material was a report in which the victim stated that she observed her mother and [Beatty] having “sex in front of her, ” and that [Beatty] “beat on her mother.” Id. at 26. [Beatty] asserts:
[T]he easy argument to make would have been that the alleged victim saw these things, sex and violence at the hand of [Beatty], and then imagined or worried about them happening to her. After a period of years, her memory played tricks on her and she believed that the things she imagined could
happen to her had actually happened. She would actually then not be lying but, rather, she would be mistaken, due to source misattribution. This very viable defense was unknown to [Beatty's] trial counsel but was [Beatty's] best, and maybe, only reasonable chance for acquittal.
Id.
[Beatty] next states, “Amusingly, the trial court dealt with trial counsel's failure to use the memory error defense by suffering a memory error.” Id. While the trial court did state in its opinion that it believed present counsel abandoned this theory during the course of the post-sentence hearing, the trial court further stated that it was aware “that the concept of source misattribution has not been allowed heretofore in Pennsylvania courts” because it “is simply another method to be used by experts in assessing credibility.” Trial Court Opinion, 8/10/12, at 15 (footnote omitted). Our review of the applicable case law supports the trial court's conclusion.
As noted above, “trial counsel's strategic choices cannot be the subject of a finding of ineffectiveness if the decision to follow a particular course of action was reasonably based and not the result of sloth or ignorance of available alternatives.” [Commonwealth v.] Loner, [836 A.2d 125, 132-33 (Pa. Super. 2003)]. Although trial counsel testified that she was unaware of this defense theory, even [Beatty] acknowledges that this Court in Commonwealth v. Robinson, 5 A.3d 339 (Pa. Super. 2010), upheld the trial court's refusal to permit the defense to present expert testimony on the subject of memory error because it would be another way of improperly permitting an expert to comment on the credibility of witnesses. Nevertheless, [Beatty] asserts that Robinson does not prohibit a defendant “from arguing to the jury that an eyewitness may have suffered a memory error.” Appellant's Brief at 26.
In order to establish ineffectiveness, trial counsel's approach must be “so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233, 234 (Pa. 1981). Our Supreme Court has defined “reasonableness” as follows:
Our inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com. ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)).
Although [Beatty] argues that trial counsel should have argued memory error to the jury, we cannot conclude, absent the presentation of expert testimony, that this argument would have resulted in a different verdict. See Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining that a defendant asserting ineffectiveness based upon trial strategy must demonstrate that the “alternatives not chosen offered a potential for success substantially greater than the tactics utilized”); see also Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995) (A defendant is not entitled to appellate relief simply because a chosen strategy is unsuccessful). Thus, [Beatty] has failed to establish this claim of ineffectiveness.Beatty, 87 A.3d 895 (unpublished memorandum at 8-10).
Beatty does present an argument in response to the Superior Court's decision; however, it is misdirected. Beatty asserts:
Furthermore, contrary to the state appellate court[']s contention that even if there are experts out there in “memory error, ” and that the Defense could have called to expert to testify and by not being aware of said expert(s) the trial counsel “wasn't necessarily deficient”; Petitioner argues the following: 1) A cursory ‘Google-search' could have provided any basis, germane therapeutic information on the issue of “memory error, ” and [] the specialists who dealt in it 2) The Public Defender's Office, where trial counsel was posted, undoubtedly had far more resources at their disposal than a simple “Google-search” 3) Trial Counsel- at Petitioner's May 2012 Post Sentence Motion hearing- admitted that she should have been aware of this possible defense, and done more research on it 4) Trial counsel DID NOT have ANY defense; therefore, Petitioner suffered tremendous prejudice due to this Ineffectiveness.ECF No. 19 at 40-41.
Beatty misconstrues the holding of the Superior Court. On appeal, Beatty argued that, even though the law would not have permitted expert testimony at trial on the subject of memory error, his trial counsel should have presented the theory through “effective cross examination” and argument to the jury. Beatty, 2013 PA Sup. Ct. Briefs LEXIS 7540 at *46. As set forth above, the Superior Court held that Beatty failed to establish the prejudice element of his ineffectiveness claim because it found that Beatty had failed to establish that presenting the concept of memory error without expert testimony argument, which was the only way it could have been done, would have resulted in a different verdict. Beatty's only argument in response to the holding is a bald assertion that, indeed, he suffered “tremendous prejudice due to this Ineffectiveness.” ECF No. 19 at 41.
Beatty also misquotes the Superior Court. The phrase, “not necessarily deficient, ” does not appear in the Superior Court opinion.
Beatty does not argue that the Superior Court's ruling was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Further, he does not argue that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Finally, his bald assertion is unavailing. He is not entitled to habeas relief on this claim.
n. Ground 16: Violation of rights to due process and confrontation
In his final claim, Beatty asserts that he was denied his constitutional rights to due process and confrontation when the PCRA court conducted an evidentiary hearing without compelling the victim to testify at the hearing. ECF No. 1 at 24-28. This claim is not cognizable in a habeas petition. As the United States Court of Appeals for the Third Circuit has held, “the federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the petitioner's collateral proceeding does not enter into the habeas calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998); see also Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004) (explaining that “habeas proceedings are not the appropriate forum ... to pursue claims of error at the PCRA proceeding”). Beatty cannot obtain habeas relief on this claim.
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Id. Applying those standards here, jurists of reason would not find it debatable whether Beatty's claims should be denied for the reasons given herein. Accordingly, no certificate of appealability should issue.
III. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 631 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).