United States District Court, M.D. Pennsylvania
November 10, 2005.
MARK TULL, Petitioner
DONALD T. VAUGHN, ET AL., Respondents.
The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge
Mark Tull, an inmate currently confined at the State
Correctional Institution at Graterford, Pennsylvania, originally
filed this petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254 in the United States District Court for the Eastern
District of Pennsylvania on August 28, 2001. The matter proceeded
there until February 15, 2002, when it was transferred to this
court.*fn1 Petitioner was convicted of two (2) counts of
terroristic threats, one (1) count of reckless endangerment, one
(1) count of disorderly conduct, and two (2) summary offenses. On
October 31, 1996, he was sentenced to a term of 23-120 months, to
be followed by 5 years probation. In the petition Tull raises the following grounds: (1)
denial of equal protection by the police department by not having
a specific policy for handling HIV positive arrestees; (2) the
destruction of physical evidence by police; (3) improper search
warrant resulting in illegally obtained evidence; and (4)
ineffective assistance of counsel in failing to obtain witnesses
statements/subpoena witnesses. For the reasons that follow, the
petition will be denied.*fn2
PROCEDURAL HISTORY OF CASE
Following the issuance of a Show Cause Order by this court on
April 24, 2002, a response and supporting exhibits were submitted
by respondents on May 29, 2002. (Doc. 9.) Petitioner thereafter
submitted a traverse. On July 31, 2002, the court issued an
opinion dismissing the petition on the basis of petitioner's
failure to exhaust his claims and procedural default. (Doc. 12.)
Specifically, the court found that because Tull failed to appeal
his claims to the Pennsylvania Supreme Court, he had failed to
exhaust and further failed to allege any cause to excuse his
Tull thereafter filed an appeal from this ruling with the Third
Circuit Court of Appeals. On March 25, 2003, the Third Circuit
granted Tull's request for a certificate of appealability on the
question of whether Pennsylvania Supreme Court Order 218, In re:
Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218
Judicial Administration Docket No. 1 (Pa. May 9, 2000) ("Order
218"), makes discretionary review in the Pennsylvania Supreme
Court unavailable for purposes of the federal exhaustion
requirement in 28 U.S.C. § 2254 or otherwise may constitute a
general waiver of the exhaustion requirement. In filing the
instant habeas petition, Tull had argued that he did not file an
appeal with the Pennsylvania Supreme Court in light of Order 218.
This court ruled that Order 218 did not foreclose the filing of a
petition for discretionary review with the Pennsylvania Supreme
On March 15, 2005, the Third Circuit issued an Order vacating
this court's order of July 31, 2002, and remanding the instant
habeas petition for further proceedings. In issuing their ruling,
the Third Circuit relied on the case of Lambert v. Blackwell,
387 F.3d 210, 233 (3d Cir. 2004) wherein said court held "that
Order No. 218 renders review from the Pennsylvania Supreme Court
`unavailable' for purposes of exhausting state court remedies
under § 2254(c)." The Third Circuit did acknowledge that its
decision in Lambert was not issued until after this court's
dismissal of Tull's petition. Prior to that time, there was no
guidance from the Third Circuit on this issue. (Doc. 21.) Following remand of the case, respondents were directed to file
a response to the petition and a supporting memorandum of law
addressing the merits of Tull's claims. (Doc. 22.) A response was
thereafter submitted on June 8, 2005. (Doc. 26.) A traverse was
later submitted by petitioner on July 21, 2005. (Doc. 31.) The
matter is now ripe for disposition.
The following recitation of facts is extracted from the opinion
of the Pennsylvania Superior Court on direct review.
Freeland Borough Police Officer David Bogansky
received reports that appellant was intoxicated and
creating a public disturbance. Officer Bogansky and
Officer Carol Stofka, his partner, responded but
could not locate appellant. The officers received
another report that appellant was attempting to break
into the residence of Connie Dalessandro and was
staggering and screaming. The officers searched again
but could not locate appellant. Following further
complaints, the officers finally located appellant,
who appeared drunk and disorderly.
The officers possessed prior knowledge that appellant
had tested H.I.V. positive. Appellant not only acted
intoxicated and disorderly but appeared to have blood
on his hands. The officers did not have rubber gloves
in their possession and were aware that any exchange
of blood with appellant created the highest risk of
exposure to H.I.V. infection.
The officers arrested appellant. They inquired if he
had any sharp objects in his hands or pockets.
Appellant threw some coins at the hood of the police
cruiser and leaped on top of it. The officers seized
him and placed him in the rear seat of the police
cruiser. Since the officers lacked gloves, they did
not struggle with appellant to handcuff him.
Appellant began to bite the Lexan screen separating
him from the officers and threatened to urinate and
infect them with the AIDS virus. While being placed
in a holding cell, appellant grabbed Officer
Bogansky's glove and twisted it, tearing the glove from the officer's
hand. Officers Bogansky and Stofka then left
appellant in the cell to prepare the complaint. When
they returned, they found appellant had urinated all
over himself. The officers transported appellant to
the magistrate for arraignment.
Appellant informed the officers while being
transported that he was suffering from painful sores
in his mouth, was dying a slow, painful death, and
wanted the officers to experience the same thing.
Appellant then threatened to sodomize the officers'
wives and children and infect them with the AIDS
virus. When removed from the vehicle, appellant spat
in Officer Bogansky's face, hitting him in the eyes
and mouth. Appellant also spat in Officer Stofka's
face. The officers feared exposure to H.I.V.
infection. They immediately visited a local hospital
to obtain a base line test.
Officer Bogansky testified at the bench trial that
fear of not knowing for certain that he was not
infected was disturbing both to him and to his
family. Dr. Eugene Gorski testified he treated
Officer Bogansky but admitted on cross-examination
that he never examined appellant. Dr. Mark Lobitz
testified he was the treating physician for Officer
Stofka and will give him examinations every six
months for the next year and yearly tests thereafter.
Neither officer yet has tested positive for H.I.V.
Dr. Steven Pancoast testified on behalf of appellant
that saliva is not considered a high-risk medium
capable of transmitting H.I.V. Dr. Pancoast further
testified it was important to know the viral load of
the saliva since if it was low at the time, the very
slight chance of infection would be even further
Appellant argued that there was no proof beyond a
reasonable doubt that his spitting possibly could
infect the officers. His spit had been wiped from the
face of the officers and cleaned out of the back seat
of the police cruiser. Thus, no samples of his
spittle had been preserved, and there was no
indication of its viral load and no one inspected
appellant's mouth to determine if indeed there were
open sores at that time.
In closing argument, counsel for appellant admitted
appellant was intoxicated and disorderly, spat on the
officers, and threatened to infect them but contended there was no proof that the
saliva could infect the officers. He further asserted
no one ever verified if appellant had open sores in
his mouth. The trial court convicted him of all
charges. This appeal followed imposition of sentence.
(Doc. 39-1, Pa. Super. Ct. Op. dated July 9, 1997 at 1-4.)
STANDARD OF REVIEW
A federal court is authorized to grant habeas relief to a
prisoner "in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or law or treaties of the United States."
28 U.S.C. § 2254. Habeas corpus relief shall be granted if the state court
judgment: was contrary to clearly established federal law, as
determined by the Supreme Court of the United States; involved an
unreasonable application of clearly established federal law, as
determined by the Supreme Court of the United States; or was the
result of an unreasonable determination of the facts in light of
the evidence presented in state court. 28 U.S.C. § 2254(d).
A state court judgment is contrary to clearly established
federal law if the state court arrives at a conclusion opposite
to that reached by the United States Supreme Court "on a question
of law, or if the state court decides a case differently than
[the] Court has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
A state court judgment involves an unreasonable application of
clearly established federal law if "the state court identifies
the correct governing legal principle . . . but unreasonably
applies that principle to the facts of the prisoner's case."
Id. at 413. To be an unreasonable application of clearly
established federal law, the state court's application must be
objectively unreasonable. Id. at 409; Werts v. Vaughn, 228 F.3d 178, 197
(3d Cir. 2000). In determining whether the state court's
application of the Court's precedent was objectively
unreasonable, habeas courts may consider the decisions of
inferior federal courts. Matteo v. Superintendent,
171 F.3d 877, 890 (3d Cir. 1999). State court factual determinations are
entitled to a presumption of correctness, and petitioner has the
burden of rebutting that presumption by clear and convincing
evidence. 28 U.S.C. § 2254
ANALYSIS OF CLAIMS
Based upon the Third Circuit's remand of this matter, the
claims raised by petitioner are considered exhausted and not
procedurally barred. The court will now address the claims on the
merits based upon the principles set forth above.
A. Equal Protection Claim
The first ground raised by Tull in his habeas petition is that
the arresting officers denied him equal protection of the law
because they lacked a policy with regard to the handling of HIV
positive prisoners. He claims that the officers did not utilize
"universal safety precautions" in their care, handling and
control of him while in their custody. He further contends that
the officers exploited his HIV positive status.
Pursuant to the principles announced in Preiser v. Rodriguez,
411 U.S. 475 (1973), Telford v. Hepting, 980 F.2d 745, 748 (3d
Cir.), cert. denied, 510 U.S. 920 (1993), a habeas corpus
petition is brought by a prisoner to challenge either the fact or
the duration of his confinement in prison. Federal habeas corpus
review is available only "where the deprivation of rights is such that it necessarily impacts the fact or length
of detention." Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.
The purportedly unconstitutional actions alleged by petitioner
did not in any way extend the length of his confinement. As such,
it did not adversely affect the fact or duration of his
incarceration. Accordingly, this claim is not properly pursued in
a habeas corpus action and will be dismissed.
B. Destruction of Evidence
Tull claims that the police officers destroyed physical
evidence in his case which may have been of benefit to him at
trial. In particular, he contends that the police destroyed the
saliva he expelled in the back of the police car when he spit at
arresting officers, before his attorney could conduct tests on
it. He states that the saliva was wiped from the face of the
officers and cleaned out of the back seat of the police cruiser.
This claim can be addressed without unnecessary elaboration in
that there was never any dispute that Petitioner was HIV positive
as a stipulation to this effect had been entered into by the
parties. Further, the state courts found overwhelming evidence
throughout the record that Petitioner did spit at the officers.
In fact, this had been conceded. At trial Petitioner did not deny
being HIV positive or spitting in the officers' faces. These two
supported facts make irrelevant any failure of the police
officers to preserve Petitioner's spit sample from the police
cruiser. Any alleged saliva evidence would not have assisted
Petitioner one way or the other with regard to the charges
against him. Petitioner argued only that his conduct did not
constitute the crimes that he was charged with committing. As such, the court finds this claim to
be without merit in that the state court findings are amply
supported by the record.
C. Challenge to Search Warrant
Tull contends that the search warrant did not meet statutory
provisions which therefore resulted in the use of illegally
obtained evidence against him at trial. In particular, Tull
challenges whether the prerequisite was met before obtaining a
search warrant to determine the serostatus of an individual.
Respondent contends that Tull's challenge to the warrant actually
amounts to a challenge to the evidence seized under the
exclusionary rule to the Fourth Amendment. Respondent argues that
Fourth Amendment exclusionary rule claims are cognizable on
federal habeas corpus review only if there has been no
opportunity for full and fair litigation of the claim in state
courts. In support of this argument, Respondent points to the
case of Stone v. Powell, 428 U.S. 465 (1976). In Stone, the
Court held that "where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
trial." 428 U.S. at 482.*fn4 While the Court did not
directly state what it means to have a full and fair opportunity
to litigate a Fourth Amendment claim in state court, it did cite
to the case of Townsend v. Sain, 372 U.S. 293 (1963). Stone,
428 U.S. at 494 n. 36. In Townsend, the Court held that a full and fair hearing does
not occur if "(1) the merits of the factual dispute were not
resolved in the state hearing; (2) the state factual
determination is not fairly supported by the record as a whole;
(3) the fact-finding procedure employed by the state was not
adequate to afford a full and fair hearing; (4) there is a
substantial allegation of newly discovered evidence; (5) the
material facts were not adequately developed at the state court
hearing; (6) for any reason the state trier of fact did not
afford the habeas applicant a full and fair fact hearing."
372 U.S. at 313; see also Deputy v. Taylor, 19 F.3d 1485, 1491
(3d Cir. 1994) (citing Townsend in discussing a full and fair
opportunity to litigate). The Third Circuit has concluded that a
habeas petitioner had an opportunity for full and fair litigation
where the state court provided an opportunity for a pretrial
suppression motion and the Superior Court considered the claim on
appeal. Reinert v. Larkin, 211 F.Supp.2d 589, 597 (E.D. Pa.
2002), aff'd, ___ F.3d ___, No. 02-3184, 2004 WL 1774593 (3d
Cir. Aug. 10, 2004) (citing U.S. ex rel Hickey v. Jeffes,
571 F.2d 762, 766 (3d Cir. 1978)).
In the instant case there is no question that Petitioner's
Fourth Amendment claims were addressed by the state courts.
Petitioner was clearly afforded a full and fair opportunity to
challenge the search warrant as evidenced by the July 27, 1999
PCRA hearing transcript wherein he fully set forth his Fourth
Amendment argument to the PCRA court. Thereafter, further
briefing took place and by Order of December 14, 1999, the PCRA
court denied Petitioner's Fourth Amendment claim on the merits
setting forth its reasons for doing so and citing to the record
for support. Further, Petitioner took an appeal from this denial
to the Pennsylvania Superior Court, which was also denied. Clearly,
Petitioner has had an opportunity for full and fair litigation of
his Fourth Amendment claim in the state courts making this claim
not cognizable in the instant habeas corpus petition. See
Stone v. Powell, 425 U.S. 465 (1976).
D. Ineffective Assistance of Counsel
Petitioner claims that trial counsel was ineffective in failing
to obtain a witness statement from a Luzerne County Correctional
Officer who was allegedly present during his alleged assault on
the police and could have possibly offered testimony to cast
doubt on the testimony given by the Commonwealth's witnesses. The
potential witness to whom Petitioner refers is Correctional
Officer Robert Hetro.
The "clearly established federal law" applicable to
Petitioner's claim of ineffective assistance of counsel is the
familiar two-pronged test the United States Supreme Court
articulated in Strickland v. Washington, 466 U.S. 668, 688
(1984). Specifically, a defendant must show that: (1) counsel's
performance was deficient and, (2) the deficient performance
prejudiced the defense. Prejudice has been defined as a "showing
that counsel's errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable." Id. at 687.
See also Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992)
("[A] petitioner must demonstrate a reasonable probability that,
but for the unprofessional errors, the result would have been
different."). On habeas corpus review, the pertinent inquiry is
whether the state court rulings that the Petitioner was not
denied effective assistance of counsel are contrary to or an
unreasonable application of Supreme Court precedent, or are based
upon an unreasonable determination of the facts. Rompilla, 355 F.3d at 250. That is,
the Petitioner "must show that the [state court] applied
Strickland to the facts of his case in an objectively
unreasonable manner." Id.
In examining Tull's ineffective assistance of counsel claim,
the state courts looked to the standard set forth in
Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999).
Under this standard, the petitioner must show that (1) the claim
is of arguable merit; (2) counsel had no reasonable strategic
basis for his or her action or inaction; (3) but for the errors
and omissions of counsel, there is a reasonable probability that
the outcome of the proceedings would have been different. The
state court then cited to Commonwealth v. Smolko,
446 Pa. Super. 156, 666 A.2d 672, 679 (1995), which found that in order
to obtain relief on the basis of an ineffectiveness claim
premised upon counsel's failure to call witnesses, the defendant
must establish that: (1) the witness existed; (2) the witness was
available; (3) counsel knew or should have known about the
witness; (4) the witness was prepared to cooperate and testify at
trial; and (5) absence of the testimony prejudiced the defendant.
This standard applied by the state courts is equivalent to the
deficient performance and prejudice test of Strickland. As
such, the question narrows to whether the state courts
unreasonably applied the governing standards to the facts of this
First, the state courts found that Petitioner was unable to
establish that counsel's failure to pursue Hetro as a witness was
deficient. This finding was based upon the conclusion that what,
if any, information counsel would have found is only open to
speculation. There was no evidence that pursuing Hetro would have led to the discovery of
exculpatory evidence. Further, the failure of counsel to pursue
Hetro did not result in any prejudice to Petitioner regarding his
charge of assault. Petitioner never claimed that the assault did
not occur and Petitioner did not challenge the Commonwealth's
version of what took place. Rather, Petitioner argued that his
conduct did not constitute aggravated assault or the other crimes
of which he was charged. As such, counsel cannot be found to be
ineffective for failing to pursue witnesses to discredit the
Commonwealth's version when such was not being challenged by
Petitioner in the first place. Absent a showing of a reasonable
probability of a different outcome in the trial, an ineffective
assistance claim lacks viability. Based on the foregoing, it
cannot be said that the state court applied Strickland to the
facts of Petitioner's case in an objectively unreasonable manner.
For all of the above reasons, the instant petition for writ of
habeas corpus will be denied. An appropriate Order is attached. ORDER
NOW, THIS 10th DAY OF NOVEMBER, 2005, in accordance with
the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is
2. Petitioner's pending motions for judgment on the
pleadings (Docs. 25, 27) are denied.
3. The Clerk of Court is directed to mark this matter
4. Based on the court's conclusion herein, there is
no basis for the issuance of a certificate of
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