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BLASI v. ATTORNEY GENERAL OF COM. OF PENNSYLVANIA
October 2, 2000
JOHN JOSEPH BLASI, PETITIONER
ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA, RESPONDENT
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
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
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.
I. STANDARD: REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
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
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
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
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.
III. STANDARD: HABEAS CORPUS REVIEW AFTER AEDPA
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
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
(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.
"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.
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.
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
B. Pretrial and trial counsel were ineffective for
failing to properly object to ...