The opinion of the court was delivered by: Judge Rambo
Petitioner Steven L. Romansky, an inmate currently confined at the Greene State Correctional Institution ("SCI-Greene") in Waynesburg, Pennsylvania, commenced this action by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 2.) He challenges his 1986 conviction in Monroe County. He alleges that the Commonwealth withheld four audiotape recordings pre-trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). The parties have briefed the issues, and the matter is ripe for disposition. For the reasons set forth below, the petition will be denied.
On May 23, 1985, a fire caused substantial damage to commercial property owed by S & S Lumber Company in Tobyhanna Township, Monroe County. (Doc. 17-4 at 51.) On March 24, 1986, Romansky was charged with arson and related offenses in connection with that fire. (Id. at 29.) Following a jury trial, on November 10, 1986, Romansky was convicted of arson endangering persons and arson endangering property. (Id.) Romansky's post-trial verdict motions were denied, and on March 26, 1987, he was sentenced to a term of incarceration of not less than three years nor more than six years, to run consecutively to a previous sentence from Wayne County.*fn1 (Id. at 29, 51.)
Romansky filed a direct appeal from his sentence to the Pennsylvania Superior Court. On January 6, 1988, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Romansky, 541 A.2d 32 (Pa. Super. 1988) (Table). By order dated May 12, 1988, the Pennsylvania Supreme Court denied Romansky's petition for allowance of appeal. Commonwealth v. Romansky, 549 A.2d 134 (Pa. 1988) (Table).
On June 24, 1996, Romansky filed a petition under Pennsylvania's Post Conviction Relief Act , 42 Pa. Cons. Stat. Ann. § 9541, et seq. ("PCRA"). Although the court appointed counsel several times, Romansky ultimately elected to proceed pro se. (See Doc. 17-4 at 5.) Following an evidentiary hearing on July 26, 1999, his PCRA petition was denied on September 21, 1999. (Doc. 17-4 at 13.) Romansky appealed the denial of his first PCRA petition to the Pennsylvania Superior Court, which was denied on August 23, 2000. (See Doc. 17-5 at 11.)
On July 24, 2001, Romansky filed a petition for writ of habeas corpus with this court. On January 16, 2002, the petition was denied on the merits. See Romansky v. Blaine, Civil No. 1:CV-01-1373, Doc. 12. On January 6, 2003, Romansky's request for a certificate of appealability was denied by the Third Circuit Court of Appeals. See id., Doc. 15.
On November 21, 2001, in connection with his action in this court challenging his 1986 Wayne County conviction, Romansky filed a petition for writ of mandamus with the Third Circuit Court of Appeals. See Romansky v. Blaine, Civil No. 1:00-CV-1520, Doc. 27. In his petition, Romansky requested copies of four audiotapes that had been submitted by the Office of Attorney General of Pennsylvania in response to this court's show cause order in the matter filed at Civil No. 1:00-CV-1520. See id. The four audiotapes contain conversations that were recorded on December 19, 1985, January 14, 1986, and January 19, 1986, between Romansky and an individual named Thomas Smithers, who worked with the government to secretly record the conversations. See id., Doc. 15. Romansky alleged that the Commonwealth failed to provide him with copies of these audiotapes in response to his requests for discovery prior to his 1986 criminal trial. See id., Doc. 27. He further alleged that the Commonwealth's failure to provide copies of these tapes prior to trial constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963). See id. On March 27, 2002, the Third Circuit Court of Appeals granted Romansky's request and compelled the Commonwealth to provide him with copies of the four audiotapes within fourteen days. See id., Doc. 29.
Following his receipt of the four audiotapes, on April 29, 2002, Romansky filed a second PCRA petition. (See Doc. 17-5 at 24.) In that petition, Romansky asserted that the audiotapes contained exculpatory evidence that was unavailable at trial and would have changed the trial's outcome. (See id. at 24, 26.) On May 1, 2002, the PCRA court denied Romansky's petition. (See id. at 9.) In its January 15, 2003 Memorandum, the Pennsylvania Superior Court stated Romansky's issues on appeal as follows:
1. Did the Lower Court Commit Reversible Error of Law By Denying [Romansky's] Post-Conviction Petition Without The Appointment of Counsel And Holding A Hearing In Violation of Both The Pennsylvania And Federal Constitutions?
2. Did The Lower Court Commit Reversible Error of Law By Denying [Romansky's] Post-Conviction Petition Without the Mandatory Notice Required of Intent To Dismiss In Violation of Both The Pennsylvania And Federal Constitutions?
3. Did The Lower Court Commit Reversible Error of Law By Denying [Romansky] His Compulsory Due Process Rights To A Fair Trial Under The State And Federal Constitutions When The Commonwealth Failed To Provide Exculpatory Evidence (Four (4) Cassette Tapes) As Required By Pa. R. Crim. P. Rule 305 And In Violation of [Brady v. Maryland]?
(Doc. 17-5 at 24-25.) The Superior Court determined that Romansky's third issue regarding the availability of exculpatory evidence was dispositive of his request for relief. (See id. at 25.) Romansky asserted that the evidence in the four audiotapes placed him at a different place than the crime scene at the relevant time, thus rendering it impossible for him to be guilty. (See id. at 25-26.) Because he claimed that the audiotapes constituted exculpatory evidence that was unavailable at trial and would have changed the trial's outcome, and because he timely made this claim following the release of the tapes in March 2002, the Superior Court determined that he raised an after-discovered evidence claim. (See id. at 26 (citing Pa. Cons. Stat. § 9543(a)(2)(vi)).) Moreover, because Romansky raised an issue of material fact with regard to the audiotapes, the Superior Court remanded the case to the PCRA court pursuant to Pa. R. Crim. P. 908(A)(2). (See id. at 27-28, 29.) The Superior Court directed that, "The trial court shall convene an evidentiary hearing to determine if the audiotapes exist and to weigh the contents of the audiotapes against all the other evidence relating to guilt produced at trial." (Id. at 27-28.)
On remand, the PCRA court held an evidentiary hearing, reviewed the four audiotapes, and reviewed briefs submitted by the parties. (Doc. 17-4 at 52.) The PCRA court determined that the four audiotapes did not contain any exculpatory evidence. (Id. at 55, 57, 58.) Thus, by order dated December 16, 2003, the PCRA court denied Romansky's second PCRA petition. (Id. at 59.)
In his appeal to the Pennsylvania Superior Court from the denial of his second PCRA petition, Romansky's sole issue was that the trial court erred by denying his second PCRA petition alleging violations under Brady v. Maryland, 373 U.S. 83 (1963), despite the fact that it was proven at the PCRA hearing that the Commonwealth failed to turn over audiotapes prior to trial that contained material favorable to Romansky. (Id. at 71.) In a Memorandum dated October 20, 2004, the Superior Court found that the record supported the PCRA court's determination that the audiotapes are not exculpatory and that there was no Brady violation, and thus, the PCRA court's order denying Romansky's second PCRA petition was affirmed. (Id.) On April 26, 2005, the Pennsylvania Supreme Court denied further review. (Doc. 3 at 8.)
On June 6, 2005, Romansky filed an application pursuant to 28 U.S.C. § 2244 with the Third Circuit Court of Appeals seeking permission to file a second or successive petition for writ of habeas corpus under 28 U.S.C. § 2254. (Docs. 1-2, 1-3.) By order dated July 12, 2005, the Third Circuit Court of Appeals granted Romansky's application and directed that the application and supporting documents, including his proposed petition for writ of habeas corpus, be forwarded to this court for further proceedings. (Doc. 1-1.) Accordingly, on July 13, 2005, Romansky's petition (Doc. 2) and supporting memorandum of law (Doc. 3) were filed with this court.
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), on August 26, 2005, the Court issued a formal notice to Romansky that he could either have his petition ruled on as filed, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Doc. 6.) On September 16, 2005, Romansky filed his notice of election requesting that the court rule on the petition as filed. (Doc. 10.) Accordingly, an order to show cause was issued on April 14, 2006 and served on the warden of SCI-Greene, the Pennsylvania Office of Attorney General, and the Monroe County District Attorney's Office. (Doc. 11.) The Pennsylvania Office of Attorney General subsequently referred the case to the Monroe County District Attorney in light of the ...