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Burckhard v. Palakovich

July 13, 2006

JOSEPH BURCKHARD, PETITIONER,
v.
JOHN A PALAKOVICH, SUPERINTENDENT, SCI- SMITHFIELD, RESPONDENT



The opinion of the court was delivered by: (Judge Kane)

MEMORANDUM AND ORDER

Petitioner, Joseph Burckhard ("Burckhard"), an inmate presently incarcerated in the State Correctional Institution at Smithfield, Huntingdon, Pennsylvania, filed the instant petition for writ of habeas corpus on April 1, 2005, pursuant to 28 U.S.C. §2254, attacking a conviction imposed by the Court of Common Pleas for Centre County.*fn1 The petition is ripe for disposition. For the reasons set forth below, the petition will be denied.

I. Background

The following facts were extracted from the Pennsylvania Superior Court opinion.

Appellant was charged with three hundred eighty four counts (384) of involuntary deviate sexual intercourse (IDSI), one hundred and thirty-one (131) counts of indecent assault, and one count of endangering the welfare of children and corruption of minors, stemming from events which allegedly occurred between Appellant and a six-year-old victim, P.K., beginning in September 1988, and ending in December of 1990. During this period, Appellant's wife was baby-sitting P.K. and her brother, at Appellant's home. P.K. and her brother were dropped off at Appellant's home around 5:30 a.m. each morning and, because school did not begin until 8:15 a.m., they would sleep in Appellant's living room until it was time for them to leave for school. During many of these mornings, Appellant would lure P.K. upstairs into his bedroom. Once there, Appellant would undress her and himself, take her to his bed, and anally penetrate her. This abuse occurred regularly for a period of two years.

A jury trial was held on June 2, 1997, and Appellant was found guilty of fifty-four (54) counts of IDSI, sixteen (16) counts of indecent assault and one (1) count of corruption of minors. Appellant was sentenced [on July 29, 1997] to thirty [five] (35) to seventy (70) years imprisonment. (Doc. 22, pp. 29-30, 25). He filed a post-trial motion, which was denied. (Doc. 22, p. 25). In his appeal to the Pennsylvania Superior Court, he raised two claims of error: "First, . . . that the trial court erred in failing to grant his motion for mistrial after the Commonwealth, during opening statements, referred to allegations that [he] had engaged in misconduct involving another child and; second, . . . [that] the trial court erred in permitting the Commonwealth to introduce witness testimony regarding certain unusual behavior allegedly exhibited by P.K." (Doc. 22, Brief for Appellant, p. 30). The judgment of the Court of Common Pleas of Centre County was affirmed on December 6, 1999. (Doc. 22, superior court opinion, p. 28). He subsequently filed a petition for allowance of appeal, which was denied.

Thereafter, he timely filed a petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, claiming that his counsel had been constitutionally ineffective for a number of reasons, including: failing to appeal the trial court's denial of his request for a Bill of Particulars; failing to present evidence of an alleged extramarital affair; failing to appeal the manner in which the trial court handled the reading of his testimony to the jury on the issue of the extramarital affair; failing to raise the issue of sufficiency of the evidence in the appeal; failing to appeal the trial court's denial of trial counsel's request for a jury instruction on prompt complaint. (Doc. 22, PCRA Court opinion, pp. 47-48). On July 21, 2003, the PCRA Court issued a lengthy opinion addressing each of the issues raised and ultimately denying Burckhard's request for relief. (Id.). He appealed the decision. On May 28, 2004, in affirming the PCRA Court, the superior court adopted the PCRA Court's opinion as its own "for purposes of further appellate review." (Doc. 22, superior court opinion, PCRA appeal, p. 63). Burckhard filed a petition for allowance of appeal. The Pennsylvania Supreme Court denied the petition on December 29, 2004. (Doc. 22, Pennsylvania Supreme Court opinion, PCRA appeal, p. 65).

Burckhard filed the instant petition on April 1, 2005. Included in the petition are the following issues:

1) Whether counsel was ineffective for failing to appeal the trial court's denial of trial counsel's request for a Bill of Particulars;*fn2

2) Whether the trial court committed reversible error in: (a) failing to grant trial counsel's motion for a mistrial; (b) allowing the victim's mother to testify as an expert witness; and (c) allowing the Commonwealth to withhold evidence;

3) Whether the trial court committed reversible error in: (a) failing to allow trial counsel to present evidence as to the "actual perpetrator"; (b) precluding evidence concerning an extramarital affair; and (c) excluding evidence about the victim's mother's boyfriend's rape conviction;

4) Whether the trial court committed reversible error in allowing Burckhard to be convicted as there was insufficient evidence;

5) Whether the trial court committed reversible error in failing to give jury instructions on the prompt complaint issue and the testimony of a child witness;

6) Whether the trial court committed reversible error by not allowing the jury to have the defendant's testimony during deliberations and by instructing the jury to disregard defendant's testimony;

7) Whether counsel was ineffective in failing to challenge an illegal sentence; and

8) Whether the trial court erred in imposing an illegal sentence.

II. Discussion

A. Exhaustion of State Court Remedies

1. Standard of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). However, habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation is accomplished "by invoking one complete round of the State's established appellate review process," thereby alerting the state courts to the federal nature of the claim. Baldwin ...


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