The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Steven Romansky, an inmate confined at the State Correctional Institution at Greene, in Waynesburg, Pennsylvania ("SCI-Greene") filed the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. He challenges a 1986 Wayne County conviction. Presently before the Court is Romansky's amended petition for writ of habeas corpus. (Doc. 44.) The amended petition is ripe for disposition. For the reasons set forth below, the amended petition for writ of habeas corpus will be denied.
On August 24, 2000, Romansky filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1.) Along with his petition, Romansky filed an application to proceed in forma pauperis (Doc. 2) which was granted by Court Order (Doc. 5) dated January 11, 2001.
Romansky's petition challenged his 1986 Wayne County conviction on the following two grounds: (1) the Commonwealth knowingly used false testimony and concealed impeachment evidence; and (2) ineffective assistance of counsel for failure to suppress recordings made in violation of Pennsylvania's Wiretap Act. (Doc. 1 at 5.)
By Memorandum and Order dated August 24, 2001, this court denied relief on the petition, finding that Petitioner failed to establish that United States Supreme Court precedent required a contrary outcome to that reached in state court regarding his two claims before this Court. (Docs. 19, 20.) On September 6, 2001, Petitioner filed an appeal to the United States Court of Appeals for the Third Circuit. (Doc. 21.)
On March 7, 2002, the Third Circuit Court of Appeals granted Romansky's request for a certificate of appealability, "limited to the issue of whether Romansky was denied due process by the Commonwealth's failure to disclose that it had a cooperation agreement with Thomas Smithers and by knowingly using false testimony from Special Agent Russell Thomas."*fn1 (Doc. 29.) The Order also directed the parties to "address the jurisdictional issue of whether Romansky was 'in custody' on the Wayne County Convictions at the time he filed this habeas action." (Id.)
By Order dated January 6, 2005, the Third Circuit Court of Appeals, affirming the determination that Romansky was "in custody" at the time he filed his habeas petition, granted Romansky's motion for remand "without prejudice to Petitioner's filing a motion to amend the habeas petition to allow additional claims based upon the audiotape evidence."*fn2 (Doc. 31.) Subsequent to the remand, Respondents provided Romansky with a copy of the four audiotapes.
On September 6, 2005, Romansky filed an amended petition, along with a supporting brief and exhibits. (Docs. 44-46.) He raises the following issues for review:
I. Petitioner was denied his Fifth, Sixth and Fourteenth Amendment rights when the Commonwealth violated the statutory provisions of Title 18 Pa.C.S.A. § 5704(2)(ii).
II. Petitioner was denied his Fifth, Sixth and Fourteenth Amendment rights under Massiah [v. United States, 377 U.S. 201 (1964)] and its progeny when the Commonwealth surreptitiously recorded trial strategy via radio transmitter placed on co-defendant after the right to counsel had attached.
III. Petitioner was denied his Fifth, Sixth and Fourteenth Amendment rights under Brady [v. Maryland, 373 U.S. 83 (1963)] and its progeny when the Commonwealth failed to provide him with the surreptitious recordings and exculpatory evidence contained within. (Id.)
After being granted an enlargement of time within which to respond, (Doc. 53), Respondent filed a response to the petition on March 17, 2006. (Doc. 52.) Because the response only addressed Petitioner's third issue, by Order dated September 26, 2007, Respondent was directed to file a supplemental answer addressing issues one and two. (Doc. 55.) Petitioner was also afforded additional time to file a traverse. (Id.) On October 16, 2007, Respondent filed a supplemental answer (Doc. 57), and on November 5, 2007, Romansky filed a traverse. (Doc. 59.)
Following a jury trial, Romansky was found guilty of Arson Endangering Property, 18 Pa. Cons. Stat. § 3301(c); Reckless Burning or Exploding, 18 Pa. Cons. Stat. § 3301(d); Causing or Risking Catastrophe, 18 Pa. Cons. Stat. § 3301(b); and Tampering with Evidence, 18 Pa. Cons. Stat. § 4910(1) on September 17, 1986 in the Court of Common Pleas of Wayne County. (Doc. 8 at 1.) The conviction involved a fire on or about September 25, 1984 in an impoundment where suspected stolen vehicles were being held behind the Pennsylvania State Police ...