United States District Court, M.D. Pennsylvania
November 14, 2005.
JOHN J. KLING, Petitioner,
ROBERT W. MEYERS, Respondent.
The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge
John J. Kling is presently serving a sentence of twelve (12) to
thirty (30) years imprisonment at the State Correctional
Institution at Rockview, Pennsylvania. He filed this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February
10, 2003. In the petition, he challenges his 1998 conviction for
third degree murder, aggravated assault, reckless endangerment
and possession of marijuana following a jury trial in the Court
of Common Pleas of Fulton County, Pennsylvania. On initial
screening, the court dismissed the petition as time-barred
pursuant to 28 U.S.C. § 2244(d) and directed that the case be
closed. A motion for reconsideration filed by Petitioner was
granted after Petitioner provided support to the court establishing that his petition had been timely
filed.*fn1 The petition is presently before the court for
disposition. For the reasons that follow, the petition will be
The following facts are extracted from the Superior Court of
Pennsylvania's May 7, 1999 opinion on Petitioner's direct appeal
from his conviction.
On August 28, 1996, appellant was driving his red
Chrysler Conquest near McConnellsburg when he noticed
a black Chevrolet Camaro in his rear view mirror. The
Camaro, driven by Larry Seville, took off after
appellant and both automobiles began racing up a
curvy mountain road known as Scrub Ridge. At speeds
in excess of 80 m.p.h., both vehicles reached the
crest of Scrub Ridge, and with appellant in the lead,
the improvident competitors began descending the
The first downside mile from the top of Scrub Ridge
is riddled with eight substantial curves and five
cautionary speed signs. Nevertheless, appellant
maintained his excessive speeds, pulling away from
the Camaro and disappearing into the blind curves.
Through the second of these curves, appellant was on
the wrong side of the road and nearly hit Jean Pepple
traveling the opposite direction in her minivan. In
spite of this near collision, appellant neither
slowed down nor took action to mitigate the obvious
danger from his racing.
Approaching the eighth major curve on the downslope,
appellant swung into the no-passing zone and blew
past two pickup trucks traveling in front of him. He
then headed into the sharp double curve at nearly 70 m.p.h., crossed the center line
again, and struck a vehicle driven by Helen Mellott.
The collision, eight-tenths of a mile after appellant
ran Ms. Pepple off the road, killed Ms. Mellott
instantly and left her ten-year-old son with a
ruptured artery to his liver.
On December 17, 1997, following a jury trial,
appellant was found guilty of third degree murder,
aggravated assault, recklessly endangering another
person, and possession of marijuana. He was sentenced
to prison for an aggregate term of twelve to thirty
years. . . .
(Doc. 15, Ex. 3, Pa. Super. Ct. Op. dated May 7, 1999 at 1-2.)
Kling filed a direct appeal from his conviction to the
Pennsylvania Superior Court raising the following grounds: (1)
insufficient evidence to establish malice; (2) trial court error
in denying requested jury charges and (3) trial court error in
ruling on evidentiary matters. The Superior Court affirmed the
lower court's judgment on May 7, 1999. See Commonwealth v.
Kling, 731 A.2d 145 (Pa.Super. 1999). He thereafter filed a
Petition for Allowance of Appeal to the Pennsylvania Supreme
Court which was denied on October 20, 1999. See Commonwealth
v. Kling, 745 A.2d 1219 (Pa. 1999).*fn2
On October 12, 2000, Kling filed a petition under the
Pennsylvania Post-Conviction Relief Act (PCRA),
42 Pa.C.S.A. §§ 9501, et seq., raising ineffective assistance of counsel
claims. The PCRA petition was denied by the Fulton County Court
of Common Pleas on January 9, 2002. This decision was appealed to
both the Pennsylvania Superior Court and Supreme Court. Kling
thereafter filed the pending habeas corpus petition wherein he
raises the sole claim challenging the sufficiency of the evidence. Kling
argues that the evidence adduced at trial does not support a
conviction for third degree murder or aggravated assault because
he did not have the requisite state of mind to commit such
crimes. He states that the evidence fails to demonstrate the
required element of malice.
III. STANDARD OF REVIEW
A federal court will not grant a state prisoner's petition for
a writ of habeas corpus unless available state-court remedies on
the federal constitutional claim have been exhausted.
28 U.S.C. § 2254 (b)(1); Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d
Cir. 2002). The exhaustion requirement is satisfied only if the
petitioner can show that he fairly presented the federal claim at
each level of the established state-court system for review.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Whitney
v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). "Fair presentation"
of a claim means that the petitioner "must present a federal
claim's factual and legal substance to the state courts in a
manner that puts them on notice that a federal claim is being
asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.
1999) (citations omitted); See also, Holloway v. Horn,
355 F.3d 707, 714 (3d Cir. 2004).
Another avenue of relief is also available for exhaustion
purposes that of collateral review under the Pennsylvania Post
Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541,
et seq., "which permits motions for post-conviction
collateral relief for allegations of error, including
ineffectiveness of counsel, unlawfully induced guilty pleas,
improper obstruction of rights to appeal by Commonwealth officials, and violation of
constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246,
251 (3d Cir. 1991).*fn3
Respondent argues that Kling has failed to exhaust the sole
ground raised in his petition the challenge to the sufficiency
of the evidence regarding malice. Respondent admits that "[o]n
appeal, the sufficiency of the evidence was carefully reviewed by
the Pennsylvania Superior Court. . . ." (Doc. 16 at 5.) There is
also no question that a petition for allowance of appeal was
pursued to the Pennsylvania Supreme Court. Respondent argues,
however, that when raising the sufficiency of the evidence issue
in state court, Kling failed to explicitly state that his claim
was based on federal law and, as such, the state courts were
never put on notice that a federal claim was being asserted by
Kling. (Doc. 11 at 4.)
Pursuant to 28 U.S.C. § 2254 (b)(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. Thus, because the court finds the petition
to lack merit, it is unnecessary to make a determination in this
case as to whether the claim was fairly presented in the state
B. Merits 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(e)(1).
Kling maintains that the record lacks evidence of malice
sufficient to support his third degree murder and aggravated
assault convictions. A claim that the evidence is insufficient to
sustain the verdict is cognizable in habeas corpus as a due
process claim. See Jackson v. Byrd, 105 F.3d 145 (3d Cir.
1997). The test is whether "`any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.'" Id. at 148 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in Jackson v. Virginia). The
court is not to make its own subjective determination of guilt or
innocence. Id. at 319 n. 13.
When reviewing a sufficiency of the evidence claim on habeas
corpus review, the court looks to state law to determine whether
the prosecution proved each element of the offense. Byrd,
105 F.3d at 149. Direct evidence is not required. The element
challenged by Kling in his petition is the requirement of malice.
Kling does not specifically claim that the Pennsylvania
Superior Court applied any standard that was "contrary to"
federal law as determined by the United States Supreme Court. It
is clear, however, that the Pennsylvania Superior Court applied
the same rule promulgated by the United States Supreme Court,
that a conviction should be reversed if "in the light most
favorable to the prosecution, no rational jury could find guilt
beyond a reasonable doubt." Jackson v. Virginia,
443 U.S. at 324. Kling's objections appear to rely primarily on the claim
that the Superior Court "unreasonably applied" the sufficiency of
the evidence standard. In reviewing the record, it is clear that
a rational trier of fact could have found defendant guilty beyond a reasonable doubt, and the verdict is supported by
The basis of Kling's claim is the lack of evidence to establish
malice, an essential element of both third degree murder and
aggravated assault. See Commonwealth v. Hickson,
402 Pa. Super. 53, 586 A.2d 393 (1990), appeal denied, 527 Pa. 663,
593 A.2d 838 (1991). The Superior Court set forth a thorough analysis
as to the mens rea requirement including evaluation and
comparison of numerous cases with regard to the evidence of
malice required to sustain a conviction for third degree murder
or aggravated assault. A reasonable jury could certainly have
found malice to exist in this case based upon the following
evidence adduced at trial. Kling was deliberately racing his
high-powered car at speeds of 75-80 miles per hour on a two and
one-half mile stretch of a curvy mountain road. He was familiar
with the road in that he had traveled it at least two times per
week for over a year prior to the crash. He passed five
cautionary signs warning him to slow down around treacherous
curves, yet proceeded at high rates of speed cutting corners to
negotiate turns. He nearly hit another vehicle driving in the
opposition lane of travel. He consciously disregarded this
awareness and continued to race for eight-tenths of a mile after
running the other vehicle off the road, illegally passing two
trucks. He then sped into a dangerous double blind curve where he
ultimately smashed into the victims. A reasonable jury clearly
could have found the sustained recklessness on the part of Kling
necessary to prove a knowing and conscious disregard that death
or serious bodily injury was reasonably certain to occur. There
exists sufficient evidence to sustain a finding of malice and, as
such, the instant habeas petition will be denied. An appropriate
Order follows. ORDER
NOW, THIS 14th DAY OF NOVEMBER, 2005, in accordance with
the accompanying Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:
1. The petition for writ of habeas corpus is denied.
2. The Clerk of Court is directed to mark this case closed.
3. There is no basis for the issuance of a certificate of
© 1992-2005 VersusLaw Inc.