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October 2, 2000


The opinion of the court was delivered by: McCLURE, District Judge



On September 18, 1998, petitioner John Joseph Blasi, an inmate at the State Correctional Institution at Waymart, Wayne County, Pennsylvania, commenced this action with the filing of a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Blasi was convicted in 1994 in the Court of Common Pleas of Lackawanna County of four counts of involuntary deviate sexual intercourse, two counts of indecent assault, and one count each of corruption of a minor, endangering the welfare of a child, and indecent exposure. Two consecutive terms of incarceration for a period of 60 to 120 months were imposed, combining various counts relative to each term. Blasi's total sentence was 120 to 240 months' incarceration.

On direct appeal, the Superior Court affirmed the judgment of conviction and sentence, Commonwealth v. Blasi, 663 A.2d 244 (Pa. Super. Ct. 1995) (table), and the Supreme Court denied a petition for allocatur, Commonwealth v. Blasi, 666 A.2d 1050 (Pa. 1995) (table). Before the Supreme Court ruled, Blasi filed a petition under the state Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. 9541 et seq., which was denied by the trial court. The Superior Court again affirmed, Commonwealth v. Blasi, 711 A.2d 1037 (Pa. Super. Ct. 1998) (table), and the Supreme Court again denied allocatur. Commonwealth v. Blasi, 727 A.2d 127 (Pa. 1998) (table). [Hereafter, written opinions of the state courts before which Blasi appeared are cited in their unpublished form.]
A prior action by Blasi challenging the jury selection process in Lackawanna County under 42 U.S.C. § 1983 was dismissed because 1983 is an improper vehicle for challenging the validity of a state conviction. Blasi v. Barrasse, No. 4:CV-94-0757 (M.D. Pa. Sept. 6, 1994) (relying on Heck v. Humphrey, 129 L. Ed. 2d 383 (1994)).

Blasi filed the original petition pro se, but we appointed counsel in an order (with an accompanying memorandum) issued on December 17, 1998. Before service was made, the petition was reviewed by U.S. Magistrate Judge Raymond J. Durkin, who recommended that the petition be dismissed as untimely in part and otherwise for failure to exhaust state remedies. We adopted the report and recommendation as amended by our Memorandum and Order of Court dated December 17, 1998. The petition was dismissed as a mixed petition under Rose v. Lundy, 455 U.S. 509 (1982), and it progeny. However, we appointed counsel and granted leave to file an amended petition, to proceed only with the exhausted claims, or to return to state court to exhaust further claims. Blasi v. Attorney General of Commonwealth of Penna., 30 F. Supp.2d 481 (M.D. Pa. 1998).

An amended petition for a writ of habeas corpus was filed on April 14, 1999, and Magistrate Judge Durkin thereafter directed a response to the petition. The Office of the Attorney General of Pennsylvania referred the matter to the District Attorney for Lackawanna County, and that office represents the Commonwealth.

Before the court is a second report and recommendation by Magistrate Judge Durkin, which recommends that the petition be denied.



A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F. Supp. 1238, 1239 (M.D. Pa. 1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140 (1985). However, the district court may not grant a motion for summary judgment, Fed. R. Civ. P. 56, or a motion to dismiss under Fed. R. Civ. P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990).

Blasi has objected to the report and recommendation as it addresses each of his claims; we therefore review the matter de novo.


To explain the relationships among the persons involved and to place events into context, we begin with events occurring well before the incidents giving rise to the charges against Blasi. In 1983, Blasi's divorce from his first wife became final. He met and began to date Joanne Kester, and moved in with her in 1984. They resided in Scranton, Pennsylvania. Joanne had two sons, David and Michael. While both were Joanne Kester's sons, they had different fathers. Joanne's first husband, Francis Kester, adopted David as his son. Francis Kester is Michael Kester's natural father.

In 1988, Blasi married Joanne and became the stepfather of David and Michael. At the time of the marriage, Michael was nine or ten years old.*fn1 That same year, Blasi injured his right shoulder while working as a nurse's aide. He testified during his trial that the injury never fully healed.

Apparently, the marriage was stormy. There was testimony at trial that Blasi physically abused his wife and stepsons, and both Blasi and Joanne testified that they argued frequently. In 1991, Joanne filed for a protection-from-abuse ("PFA") order, and Blasi was required to stay away from her. On the day before a hearing related to the PFA order, Blasi filed a complaint for divorce. A reconciliation was effected, however, and Blasi returned to Joanne's home.

On January 27, 1992, Blasi injured his left shoulder while working at a furniture company, after which he was on "disability" for a period of time. Blasi had to undergo medical treatment and physical therapy, and his arm was in a sling for at least part of the time. According to Blasi's own testimony, the injury mostly affected the range of motion in the arm.

Throughout this period, David Kester, the older of Joanne's sons, had disciplinary problems. In an attempt to address those problems, Joanne went to Lackawanna County Children and Youth Services (CYS). One of the measures attempted was to send David to live with an aunt, Joanne's sister, in the Allentown area. Once there, David told the aunt that there might be problems with Blasi being at home alone with Michael. The aunt called Joanne and advised her to seek counseling for Michael, which Joanne did.

After initial reticence, Michael told the counselor, Robert Frein, of incidents which occurred at home while his mother was working. These consisted of Blasi watching pornographic movies and masturbating, then having Michael masturbate. During subsequent interviews with Frein and either police or CYS personnel, Michael related that the incidents also involved Blasi touching Michael (including both masturbation and performing oral sex), and vice versa. Eventually, Michael told of two instances in which Blasi anally penetrated Michael.

Michael was unable to specify the dates on which the incidents, numbering either four or five altogether, took place. However, they began in either late February or early March, 1992, and ended in late March or April of the same year. Michael estimated the dates based on their relation to his birthday.


The Commonwealth contends that Blasi has not exhausted his remedies in the state courts, so that the petition should be dismissed. Blasi argues that his claims have been exhausted and should be addressed on the merits. The court has authority to address unexhausted claims if the petition is denied. We therefore set forth the standards for exhaustion and for addressing a claim on the merits. Since the petition was filed after its effective date, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110 Stat. 1217 (Apr. 24, 1996), govern. Williams v. Taylor, 120 S. Ct. 1479, 1486 (2000); Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Weeks v. Snyder, 219 F.3d 245, 256 (3d Cir. 2000).

Also, each of Blasi's claims asserts ineffective assistance of counsel based on a purported deficiency on the part of either trial or appellate counsel. We therefore set forth the standard governing claims of ineffective assistance.

(A) Exhaustion

The statutory provision governing exhaustion of remedies by a state prisoner challenging his or her conviction reads:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

28 U.S.C. § 2254(b).

"Absent a valid excuse, a habeas petitioner must present all federal claims to the state courts." Coss v. Lackawanna County D.A., 204 F.3d 453, 460 (3d Cir. 2000) (en banc; citing § 2254(b); Rose v. Lundy, 455 U.S. 509 (1982)). The exhaustion requirement serves the interest of comity and preserves the role of state courts in protecting federally guaranteed rights by allowing state courts to have the first opportunity to entertain federal constitutional challenges. Id. (quoting Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992), cert. dismissed, 506 U.S. 1089 (1993); further citation omitted).

Claims asserted in a petition under § 2254 are exhausted if the petitioner "fairly presented" the claims to each level of the state courts. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000). A claim is fairly presented for purposes of exhaustion if both the legal theory and the facts underpinning the federal claim have been presented to the state courts and the same method of legal analysis to be applied in federal court was available to the state courts. Evans at 1231. While the petitioner need not cite "book and verse" of the Constitution, a "somewhat similar state-law claim" is insufficient. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). The factual and legal substance of the claim must be presented in such manner as to put the state courts on notice that a federal claim is being asserted. Id.

Some of the ways that a petitioner may fairly present a claim to the state courts without being explicit in asserting the claim as a federal constitutional claim include: "(a) reliance on pertinent federal cases employing a constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." McCandless at 261-262 (citing Evans at 1232, which in turn quoted Daye v. Attorney General of New York, 696 F.2d 186 (2d Cir. 1982) (en banc)).

The petitioner bears the burden of establishing exhaustion of state remedies. Lines at 159.

(B) Review of Merits of Claims

If a petitioner has exhausted all of the claims in his or her petition, the federal court on habeas review may consider the merits of the claims, as provided in the following statutory language:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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).

A state court decision is "contrary to" Supreme Court precedent if: (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, that is, if the state court applies a rule that contradicts the governing law set forth in Supreme Court opinions; or (2) the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that of the Supreme Court. Williams v. Taylor, 120 S. Ct. 1495, 1519-1520 (2000). A state court decision involves an "unreasonable application of" Supreme Court precedent if the state court's application of clearly established federal law was objectively unreasonable, as opposed to erroneous or incorrect. Id. at 1521-1522.

(C) Ineffective Assistance of Counsel

A criminal defendant has a right to the effective assistance of counsel under the Sixth Amendment to the Constitution of the United States. "A defendant claiming ineffective assistance of counsel must show (1) that counsel's representation `fell below an objective standard of reasonableness,' . . . and (2) that counsel's deficient performance prejudiced the defendant. . ." Roe v. Flores-Ortega, 120 S. Ct. 1029, 1034 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). See also Weeks at 257.

In determining whether counsel's conduct is reasonable, a court must judge counsel's conduct in the context of the facts of the particular case, viewed as of the time of counsel's conduct, and must be highly deferential. Flores-Ortega at 1034-1035 (citing Strickland at 688-690). When the claim of ineffective assistance is based on conduct during the course of a legal proceeding, the defendant demonstrates prejudice by establishing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 1037; Weeks at 257. A "reasonable probability" is one sufficient to undermine confidence in the outcome of the proceeding. Weeks at 260; Coss at 462.


The claims Blasi asserts in his amended petition are:

I. Blasi was denied his Sixth Amendment right to effective assistance of pretrial and trial counsel.
A. Pretrial and trial counsel were ineffective for failing to secure a transcript of the preliminary hearing.
B. Pretrial and trial counsel were ineffective for failing to properly object to ...

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