The opinion of the court was delivered by: Judge Kosik
Before the court is the habeas corpus petition of Robin Parmelee, filed pursuant to 28 U.S.C. § 2254. Parmelee is confined at the State Correctional Institution at Coal Township, Pennsylvania. In the petition, Parmelee challenges his 2001 conviction on multiple counts of Rape, Involuntary Deviate Sexual Intercourse, Sexual Assault, Statutory Sexual Assault, Aggravated Indecent Assault, Indecent Assault, Incest and Corruption of Minors involving his three (3) minor daughters. He is currently serving an aggregate sentence of 105 to 210 years of incarceration. He raises eight grounds (8) for relief in his petition. On March 5, 2008, an Order was issued advising Petitioner that he could choose to either withdraw the instant petition without prejudice to file another § 2254 petition raising all grounds for relief from his conviction, or have the court rule on his petition as filed. (Doc. 3.) He was granted thirty (30) days within which to notify the court of his decision and advised that the failure to do so would result in the petition being ruled on as filed. Because no notification was ever filed by Petitioner, an Order to Show Cause was issued on April 10, 2008, directing Respondent to answer the allegations in the petition and supporting Memorandum of Law. (Doc. 4.) A response to the petition and supporting Memorandum was thereafter filed on April 30, 2008. (Docs. 8, 9.) No traverse has been filed. The petition is ripe for consideration and, for the reasons that follow, will be denied.
The following background is extracted from the May 20, 2003, opinion of the Pennsylvania Superior Court on direct appeal by Petitioner from his judgment of sentence following conviction of nine (9) counts of rape, seven (7) counts of involuntary deviate sexual intercourse, nine (9) counts of sexual assault, nine (9) counts of statutory sexual assault, six (6) counts of aggravated indecent assault, thirteen (13) counts of indecent assault, three (3) counts of incest, and four (4) counts of corruption of minors.
This matter arose from allegations that, over several years, Parmelee committed repeated sexual assaults against his minor daughters, T.P., S.P., and N.P. T.P told her mother, K.P., of Parmelee's sexual assaults in mid-May of 2000. Thereafter, K.P. contacted law enforcement authorities in Lackawanna County and Wyoming County. During the course of the investigation, a forensic pediatrician, Dr. Andrea Taroli, examined T.P., S.P. and N.P. Dr. Taroli's examination of T.P. revealed significant scar tissue and clefts in her vagina and anus that were consistent with tears and lacerations caused by traumatic penetration. Due to the nature and age of the scars, Dr. Taroli concluded that the injuries to T.P. occurred prior to the onset of puberty. Dr. Taroli's examination of S.P. likewise revealed evidence of extensive vaginal scarring and concavities that were attributable to traumatic penetration that occurred in the midst of puberty. N.P.'s genital examination was normal and did not reveal injury to her genitalia.
Police arrested Parmelee on June 14, 2000, and after a preliminary hearing, a district magistrate bound the case over for trial. Prior to trial, Parmelee filed a "Motion to Inspect the file of Lackawanna County Children and Youth Services Regarding [T.P], [S.P.] and [N.P.] (hereinafter "Motion to Inspect"). Upon review of Parmelee's Motion to Inspect, the trial court ordered CYS to produce the requested case files in chambers and conducted an in camera inspection. The court determined, however, that the content of the case files was not material to Parmelee's defense and, consequently, refused to grant Parmelee or his counsel direct access to the records.
Thereafter, the court convened a jury trial, at which each of the three alleged victims testified concerning Parmelee's acts. T.P. testified that the first incident of abuse occurred when she was age 5 or 6. At that time, Parmelee lured her into the woods, commanded her to disrobe, fondled her and rubbed his penis against her exposed vagina. T.P. testified that she did not remember Parmelee abusing her again until she was in the sixth or seventh grade. At that time, Parmelee fondled T.P.'s breasts, penetrated her vagina with his fingers and engaged in forcible vaginal and anal intercourse with T.P. Parmelee forced T.P. to engage in these acts by striking her, throwing objects at her and committing other threatening behavior against T.P.
T.P. testified further that the incidents of abuse continued on at least a weekly basis through 2000. T.P.'s testimony recounted the location of the offenses, the years of their occurrence and the conditions surrounding the perpetration of the abuse. Parmelee molested T.P. and N.P. simultaneously, and he forced T.P. to choose whether she or her sisters would be victimized. T.P. testified that if she resisted Parmelee he would beat her and would threaten to kill her if she told anyone about his sexual assaults.
S.P. testified that Parmelee began molesting her on July 11, 1998. On that date, Parmelee awakened S.P. from sleep, brought her into his bedroom and fondled her breasts and vagina. Approximately two days later, Parmelee forced S.P. to perform oral sex on him. Parmelee continued to fondle S.P. on a weekly basis and began to have sexual intercourse with her later in 1998, which continued until T.P. informed her mother of Parmelee's sexual assaults. S.P. testified that Parmelee sexually assaulted her and N.P. simultaneously at a Wyoming County campground in 2000. Parmelee threatened physical harm to S.P. if she informed anyone about his sexual assaults.
Following trial, the jury found Parmelee guilty with respect to T.P. and S.P. of the multiple offenses listed above. In addition, the jury found him guilty of two counts of corruption of minors against N.P. but acquitted him of all other charges. Consistent with Parmelee's multiple sex-related offenses, the trial court ordered him to undergo an assessment by the Sexual Offenders Assessment Board to determine whether Parmelee should be classified as a sexually violent predator pursuant to 42 Pa.C.S. §§ 9791-9799. After evaluation, the Sexual Offenders Assessment Board concluded that Parmelee was not a sexually violent predator.
On January 25, 2002, following the assessment of the Sexual Offenders Assessment Board, the trial court imposed an aggregate sentence of 105 years' to 210 years' incarceration for the following convictions: nine counts of rape; seven counts of IDSI; six counts of aggravated indecent assault; thirteen counts of indecent assault; six counts of incest, and two counts of corruption of minors. The trial court found that Parmelee's nine convictions for statutory sexual assault and sexual assault merged with the rape convictions for purposes of sentencing. (Doc. 9, Ex. E, Pa. Super. Op. at 2-5.)
Petitioner filed a timely direct appeal to the Pennsylvania Superior Court on February 22, 2002. In the appeal, he raised the following grounds: (1) trial court error, after holding an in camera hearing, in failing to disclose/make available the CYS records/reports and the ineffective assistance of trial counsel in failing to move for the disclosure of the reports/records; (2) ineffective assistance of trial counsel in failing to move to preclude/object to the testimony of Dr. Taroli regarding statements given by the victims; (3) ineffective assistance of trial counsel in failing to request a "prompt complaint" instruction; (4) ineffective assistance of trial counsel in failing to object to/request a curative instruction or move for a mistrial concerning the testimony of Trooper Gilgallon as to the credibility of the facts/statements of the victims; and (5) sufficiency of evidence by the Commonwealth in sustaining their burden of proof for all counts for which Petitioner was convicted.
On May 20, 2003, the Superior Court denied the direct appeal and affirmed the judgment of sentence, but did not rule on the ineffective assistance claims. Instead, the court dismissed those claims without prejudice to Petitioner to raise the claims on collateral review by way of a Post-Conviction Relief Act (PCRA) petition.
On May 13, 2004, Petitioner filed a PCRA petition in the Court of Common Pleas of Lackawanna County. An evidentiary hearing was conducted on August 17, 2004. In the PCRA petition, Petitioner alleged five (5) instances of ineffective assistance of trial counsel and two (2) claims of ineffectiveness by his appellate counsel. These grounds were as follows: (1) failure of trial counsel to seek the disclosure of the victims' CYS records; (2) failure of trial counsel to object to certain testimony provided by Dr. Taroli referencing statements made to her by the victims during her gynecological examination of them; (3) failure of trial counsel to request a prompt complaint jury instruction; (4) failure of trial counsel to object to the testimony of Trooper Gilgallon and request a cautionary instruction; (5) failure of trial counsel to call Luke Brown, members of the Carbondale Police and representatives of the Carbondale Area School District as witnesses; (6) failure of appellate counsel to challenge the aggregate sentence of 105 to 210 years in prison as manifestly excessive or clearly unreasonable under the circumstances; and (7) failure of appellate counsel to file a petition for allowance of appeal with the Supreme Court of Pennsylvania after the Superior Court of Pennsylvania affirmed his judgment of sentence.
On June 30, 2005, the PCRA court denied the petition. A timely appeal was filed with the Pennsylvania Superior Court. The Superior Court affirmed the PCRA court on all but one (1) count. The court found that Petitioner's prior appellate counsel was ineffective for failing to file a Petition for Allowance of Appeal in the Pennsylvania Supreme Court. The Superior Court remanded the case for reinstatement of Petitioner's direct appeal rights nunc pro tunc. Petitioner thereafter filed a Petition for Allowance of Appeal, which the Supreme Court denied on February 28, 2007.
Petitioner thereafter filed the instant habeas corpus petition on December 17, 2007. In the petition, he raises the following ineffective assistance of trial counsel grounds: allowing the consolidation of additional charges to be tried as one; failing to raise issue of/request a complete CYS file for inspection and review; failing to object to Commonwealth's witnesses testimony where the shared information was from another's report; failing to request a "prompt complaint" instruction; failing to object/request a curative instruction with regard to the testimony of Trooper Gilgallon; failing to renew objection to Dr. Taroli's identification of Petitioner as causer of harm, testimony which was previously ruled inadmissible. Petitioner also raises the grounds of abuse of discretion by the trial court in allowing testimony it had previously ruled to be inadmissible and ineffective assistance of appellate counsel in failing to raise the issue of the excessive sentence imposed.
Section 2254 of Title 28, United States Code, provides that the district court "shall entertain an application for a writ of habeas corpus on behalf of a person 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 laws or treaties of the United States." See 28 U.S.C. § 2254(a). Properly presented, exhausted claims for relief that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2). A state court decision will be an "unreasonable application of" Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams v. Taylor, 529 U.S. 362, 408-409 (2000). However, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
Under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A habeas petitioner must rebut this presumption by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000).
A. Procedurally Defaulted Claims
Two of the ineffective assistance of trial counsel claims*fn1 and the trial court abuse of discretion claim raised by Petitioner are procedurally defaulted without excuse. Habeas corpus relief cannot be granted unless available state court remedies on the federal constitutional claims 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). This statutory provision has been interpreted to require the federal habeas petitioner to present both the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). To satisfy this requirement, a petitioner must demonstrate that the claim raised was fairly presented to the state's highest court, either on direct appeal or in a state post-conviction proceeding. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in PCRA proceedings. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). In addition, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
The exhaustion requirement is not a mere formality. It serves the interests of comity between federal and state systems by allowing the state an initial opportunity to determine and correct any violation of a prisoner's ...