II. STATEMENT OF FACTS
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.
After a jury trial in the Court of Common Pleas of Lackawanna
County,*fn2 Blasi was found guilty of involuntary deviate sexual
anal intercourse, involuntary deviate sexual intercourse, involuntary
deviate oral intercourse (two counts), corruption of minors, endangering
the welfare of children, indecent assault (two counts), and indecent
exposure. Blasi was sentenced to two consecutive 5 to 10 year terms, each
grouping various counts, for a total sentence of incarceration of 10 to
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.
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).