The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
(Magistrate Judge Smyser)
On March 13, 2008, petitioner Charles Gladfelter, pro se,*fn1 an inmate currently incarcerated at State Correctional Institution in Hunlock Creek, Pennsylvania, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Rec. Doc. No. 1). With leave of the Court, an amended petition was filed on August 21, 2008. (Rec Doc. No. 22). Gladfelter is challenging his conviction and sentence in the Court of Common Pleas of York County, Pennsylvania, with claims of ineffective assistance of counsel and trial court error. The government filed a response to Gladfelter's petition on March 3, 2008. (Rec. Doc. No. 5).
The matter was initially referred to United States Magistrate Judge Smyser. On January 26, 2009, Magistrate Judge Smyser filed a thirteen-page (13) report and recommendation. (Rec. Doc. No. 36). In his report, Magistrate Judge Smyser, finding that there was no trial court error and that state courts reasonably held that Gladfelter enjoyed effective assistance of counsel, concluded that Gladfelter's petition for a writ of habeas corpus should be dismissed.
On February 6, 2009, petitioner filed objections to the report and recommendation. (Rec. Doc. Nos. 39, 41). With our permission, amended objections were filed on March 20, 2009. (Rec. Doc. No. 45). Petitioner filed a supporting brief with his objections. (Rec. Doc. No. 46). This matter is now ripe for disposition.
After de novo review of the record, including the report and recommendation and plaintiff's objections to the report and recommendation, and applicable law, we have concluded that we agree with the magistrate judge's analysis and recommendations, and will therefore adopt the report and recommendation so far as it is consistent with this opinion and dismiss the petition.
On September 5, 2003, Gladfelter was found guilty of involuntary deviate sexual intercourse, statutory sexual assault and indecent assault in the Court of Common Pleas of York County, Pennsylvania ("trial court" or "York County Court"). The relevant facts were summarized by the trial court as follows:
A Criminal Complaint was filed on October 30, 2002 which charged [Gladfelter] with Involuntary Deviate Sexual Intercourse (§ 3122.1 of the Crimes Code); Aggravated Indecent Assault (§ 3125 of the Crimes Code); Indecent Assault (§ 3126 of the Crimes Code); and Unlawful Acts Under the Pharmacy Act (63. P.S. § 390-8)(13)). The charges stemmed from allegations that [Gladfelter] had consensual sexual contact with H.J.L. (date of birth: 2/4/87) at various locations in and about Jefferson Borough, North Condorus, Codorus and Manheim Townships, York County, Pennsylvania during the months of July and August 2002. During that time H.J.L. was 15 years of age and [Gladfelter] was 24 years of age. The Pharmacy Act violation was based upon allegations that [Gladfelter] had supplied his wife's birth control pills to H.J.L. to prevent pregnancy.
The case was tried to a jury September 3, 4, and 5, 2003 at the conclusion of which [Gladfelter] was found guilty of Involuntary Deviate Sexual Intercourse, Statutory Sexual Assault and Indecent Assault. [The remaining charges of Aggravated Indecent Assault and violations of the Pharmacy Act were withdrawn from the jury's consideration.]
Although during the trial of the case the victim, H.J.L. testified to the nature of the sexual contacts and acts between her and [Gladfelter], there was never any issue as to those sexual acts and contacts occurring. Rather the focus of the proceeding was upon the consensual nature of the sexual contacts and [Gladfelter]'s assertion of the defense of "mistake of age." See, § 3102 of the Crimes Code. [Gladfelter] testified as to his belief that H.J.L. was at least 16 years of age during the period of time that he had sexual contact with the victim, while H.J.L. testified that she had told [Gladfelter] she was 15 years of age and that due to past and rather long standing acquaintanceship and family histories, [Gladfelter] was aware of her actual age of 15 years during the time period in question.
At a sentencing hearing conducted and held on December 17, 2003 the Trial Court imposed the following sentences:
1. On the offense of Involuntary Deviate Sexual Intercourse [Gladfelter] was sentenced to 75 to 150 months in a State Correctional Institution;
2. On the offense of Statutory Sexual Assault [Gladfelter] was sentenced to 15 to 30 months in a State Correctional Institution concurrent;
3. No separate sentence was imposed on the offense of Indecent Assault.
(Rec. Doc. No. 29, Appx. D at pp. 1-3). On December 24, 2003, petitioner filed a pro se petition for reconsideration of sentence. Replacing his trial counsel, Thomas Kearney, III, Esq., with Christopher Ferro, Esq. on December 30, 2003, petitioner filed post-sentencing motions, which were denied on February 9, 2004.
Gladfelter also timely filed a direct appeal to the Pennsylvania Superior Court, raising two (2) issues. Specifically, Gladfelter claimed the trial court erred in excluding testimony regarding the victim's prior false allegation of sexual misconduct and in excluding statements made by the victim's brother as inadmissible hearsay. Pennsylvania v. Gladfelter, No. 400-MDA-2004, at p. 1 (Pa. Super. Ct. Dec. 29, 2004) (unpublished memorandum) ("Gladfelter I"). The Superior Court affirmed the judgment of sentence. Id. Gladfelter did not seek allowance of appeal with the Pennsylvania Supreme Court. Pennsylvania v. Gladfelter, No. 109-MDA-2006, at p. 2 (Pa. Super. Ct. Oct. 18, 2006) (unpublished memorandum) ("Gladfelter II").
On July 22, 2005, Gladfelter, through counsel, filed a petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. After an evidentiary hearing, the York County Court dismissed the PCRA petition, concluding that it was without merit, on November 18, 2005. Gladfelter II at p. 2.
Gladfelter filed a timely appeal to the Pennsylvania Superior Court in which he raised the following issues:
. Whether trial counsel was ineffective for failing to request a curative instruction and/or a mistrial after the complaining witness testified that her sexual relationship with [Gladfelter] stopped when "he started dating someone else" in her school?
. Whether trial counsel's failure to impeach the Commonwealth's complaining witness with evidence tending to show bias and/or motive to testify falsely against [Gladfelter] was ineffective assistance of counsel?
. Whether trial counsel was ineffective for failing to object to the trial court's jury instruction which indicated that the jury could find [Gladfelter] guilty if there was a sexual relationship between [Gladfelter] and the Complainant?
. Whether trial counsel was ineffective for failing to request a mistrial after the jury indicated to the trial court that it was deadlocked and presented the court with a tally of its current vote?
. [Whether] trial counsel was ineffective for failing to properly investigate and later present critical evidence in support of [Gladfelter's] mistake of age defense?
On October 18, 2006, the Superior Court affirmed the judgment of the PCRA Court. In its discussion, the Superior Court addressed the standard for demonstrating trial counsel's ineffectiveness, stating that Gladfelter "must show by a preponderance of the evidence, ineffective assistance of counsel which, in circumstances of the particular case, so undermined the truth determining process that no reliable adjudication of guilt or innocence could have taken place." Id. at 3 (quoting Pennsylvania v. Johnson, 868 A.2d 1278, 1281 (Pa. Super. Ct. 2005)). In doing so, Gladfelter needed to "demonstrate: (1) the underlying claim is of arguable merit; (2) that counsel has no reasonable strategic basis for his or her action or inaction; and (3) but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Id. (quoting Johnson, 868 A.2d at 1281).
After reviewing the issues raised by Gladfelter and Kearney's testimony regarding Kearney's reasons for not taking the actions questioned by petitioner, the Superior Court determined that Gladfelter had not sustained his burden of proof under the PCRA to show that Kearney's course of action was not a "tactical decision that was reasonable under the circumstances " or that he was prejudiced by counsel's actions with regards to Kearney's failure to request a curative instruction or mistrial after the complaining witness testified regarding the reason her sexual relationship with Gladfelter ceased, id. at 7-8, Kearney's decision not to object to the trial court's jury instruction, id. 10-11, or trial counsel's decision not to hire an investigator to search for more information regarding the "mistake of age" defense, id. at 14. The court also concluded that it could not address Gladfelter's argument that his trial counsel was ineffective by failing to confront the complainant with evidence of her previous false allegation of sexual misconduct because the court previously addressed the issue on direct appeal. Id. at 8-9. Lastly, the court noted that Gladfelter failed to show there was any merit to his contention that Kearney was "ineffective for failing to request a mistrial when, after three and one-half hours of deliberation, the jury reported to the court that it was deadlocked . . . ." Id. at 11-12. Gladfelter subsequently filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied by order dated February 15, 2007. Pennsylvania v. Gladfelter, 917 A.2d 313 (Pa. 2007).
On March 13, 2008, Gladfelter timely filed a petition for writ of habeas corpus with this Court. An amended petition was timely filed, with leave from the Court, on August 21, 2008, in which he alleges three claims of ineffective assistance of counsel and one claim of ...