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Dean v. Folino

December 26, 2008

MICHAEL DEAN
v.
LOUIS FOLINO, ET AL.



The opinion of the court was delivered by: Hon. Norma L. Shapiro, J.

MEMORANDUM AND ORDER

Michael Dean, a pro se litigant incarcerated at the State Correctional Institute at Waynesburg, Pennsylvania, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge Lynne Sitarski filed a Report and Recommendation ("R&R") recommending the petition be denied. The R&R will be adopted and the petition will be denied.

I. BACKGROUND

On June 21, 1983, following a jury trial in the Lehigh County Court of Common Pleas, Michael Dean was convicted of first degree murder, theft and receipt of stolen property. Commonwealth of Pennsylvania v. Dean, Case No. 39-258-1983, Verdict Slip (Lehigh County Court of Common Pleas, Doc. No. 23). Dean was sentenced to life imprisonment and his direct appeal was unsuccessful. Commonwealth v. Dean, 564 A.2d 1002 (Pa. Super. Ct. 1989) (table). The Pennsylvania Supreme Court denied Dean's request for discretionary review on May 2, 1990. Commonwealth v. Dean, 578 A.2d 926 (Pa. 1990) (table).

At trial, Dean had accused the victim's husband of committing the murder and claimed to have witnessed, but not participated in, the killing. See Case No. 39-258-1983, N.T. pp. 995-1011, 6/17/83 (Lehigh County Court of Common Pleas, Doc. No. 122) (testimony of Michael Dean). The Commonwealth presented evidence that Dean had acted alone. See Case No. 39-258-1983, N.T. p. 692, 6/15/83 (Lehigh County Court of Common Pleas, Doc. No. 122) (testimony of David Briggs, the victim's husband). Certain physical evidence recovered from the crime scene was also inculpatory, although not conclusive of Dean's guilt. In particular, a stain found on the victim's skirt was identified as Type A blood. Case No. 39-258-1983, N.T. p. 525, 6/14/83 (Lehigh County Court of Common Pleas, Doc. No. 122). The jury was told that the victim had Type O blood, but both Dean and the victim's husband had Type A blood. Id. at 482, 534-37.

On March 13, 1992, Dean filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. §§ 9541, et seq. Dean, challenging the prosecution's use of forensic evidence at trial, claimed that DNA testing, not available in 1983, would show that hair and blood matter recovered from the crime scene were not his own and belonged to the person who actually killed the victim. The trial court granted the petition and ordered the Commonwealth to make the evidence available for DNA testing at Dean's expense. Case No. 39-258-1983, Order, 6/1/92 (Lehigh County Court of Common Pleas, Doc. No. 94).

On December 7, 2000, Dean filed a second PCRA petition. Claiming he could not afford the cost of DNA testing, Dean sought an order requiring the Commonwealth to bear the expense. The Commonwealth did not object and the trial court granted Dean's petition. Case No. 39-258-1983, Order, 12/4/01 (Lehigh County Court of Common Pleas, Doc. No. 112). The DNA test results showed the hair sample found on the victim's elbow belonged to the victim. See Mitotyping Technologies Report, filed 1/24/02 (Lehigh County Court of Common Pleas, Doc. No. 113). Counsel for Dean conceded that the test results were not exculpatory. Case No. 39- 258-1983, N.T. p.5, 2/26/02 (Lehigh County Court of Common Pleas) ("I don't think they bear it [sic] on the guilt or innocence of Mr. Dean.").

Dean had hoped to conduct DNA testing of the blood-stained skirt, but it could not be located despite a comprehensive search by the Allentown Police Department. Commonwealth v. Dean, Case No. 39-258-1983, Slip op. at 3-4 (Lehigh County Court of Common Pleas, May 8, 2002). At a hearing on Dean's second PCRA petition, Dean's counsel asked the court to infer bad faith from the disappearance of this evidence and requested a new trial. Id. at 5. The court denied Dean's request. Case No. 39-258-1983, Order, 5/9/02 (Lehigh County Court of Common Pleas, Doc. No. 118). The Superior Court, explaining that Dean had known the skirt was lost in 1992 but failed to file a claim until 2000, found the petition untimely and affirmed. Commonwealth v. Dean, Case No. 1935 EDA 2002, Slip op. at 3-4 (Pa. Super. Ct. May 28, 2003).

Dean's third PCRA petition seeking DNA testing of all remaining physical evidence was denied without opinion. Case No. 39-258-1983, Order, 12/26/07 (Lehigh County Court of Common Pleas, Doc. No. 118). Dean did not appeal.

II. DEAN'S HABEAS PETITION

Dean filed the instant petition for writ of habeas corpus on January 17, 2008 and asserted three grounds for relief: (1) the conviction was "obtained by unconstitutional failure to disclose evidence favorable to Defendant;" (2) the prosecution offered expert testimony about blood recovered from the crime scene without determining whether the blood was Type A or Type Aand such testing "could have exonerated Defendant at onset had blood came back anything other than Defendant's;" and (3) ineffective assistance of counsel at all stages of the proceedings.*fn1

Magistrate Judge Sitarksi filed an R&R recommending the petition be denied as untimely.

Dean filed objections claiming: (1) ineffective assistance of counsel; (2) unlawful interrogation by police and detectives; (3) denial of right to counsel during police interrogation; (4) ineffective assistance of counsel (continuation of objection no. 1); (5) ineffective assistance of trial counsel for failure to object to erroneous jury instructions; (6) insufficiency of evidence to support a conviction of first degree murder; (7) "Petitioner had requested numerous items used against him as evidence at trial to be DNA tested, only 2 hairs were tested;" (8) the results of DNA tests performed in 2002 exonerated him; (9) violation of due process based on the Commonwealth's failure to preserve exculpatory evidence; (10) violation of due process based on the Commonwealth's failure to test the Rh factor of blood found at the crime scene; (11) violation of due process (continuation of objection no. 10); (12) the trial was unfair because the prosecution played a tape of Dean's interrogation and provided each juror with a transcript containing an inflammatory and prejudicial transcription error; (13) the evidence was insufficient to support a conviction of theft and receipt of stolen property; (14) ineffective assistance of trial counsel for failure to object to testimony by a Commonwealth witness who "alluded to yet another cheap attempt by the ...


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