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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


  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 procedural default.

  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 Court.*fn3

  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 reduced.
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.)


  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 ...

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