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Molina v. Rozum

August 27, 2009

YERKO ANTONIO MOLINA, PETITIONER,
v.
GERALD L. ROZUM, SUPERINTENDENT, SCI-SOMERSET, DISTRICT ATTORNEY OF CUMBERLAND COUNTY, PENNSYLVANIA, ATTORNEY GENERAL OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Petitioner Yerko Antonio Molina ("Molina"), a state prisoner incarcerated at the State Correctional Institution in Somerset, Pennsylvania ("SCI-Somerset"), has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the petition will be denied.

I. Procedural History

On September 2, 2004,*fn1 after a jury trial conducted in the Court of Common Pleas of Cumberland County, Pennsylvania, before Judge Edward E. Guido (the "trial judge"), Molina was convicted of attempted murder, aggravated assault, simple assault, and recklessly endangering another person. Doc. No. 10-4, p. 3. He was acquitted of operating a vehicle without a driver's license. Id. He was sentenced to an aggregate of nine and one-half years to twenty years in prison on October 6, 2004. Id. Five days later, pursuant to an agreement reached by the parties, the trial judge modified Molina's sentence to an aggregate of eight and one-half years to eighteen years in prison. Id. Molina filed a post-sentence motion on October 13, 2004. Id. On January 28, 2005, the trial judge modified Molina's sentence to an aggregate of eight and one-half years to seventeen years in prison. Id.

Molina did not directly appeal his conviction and sentence to the Pennsylvania Superior Court. On February 16, 2005, he filed a timely pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA") [42 PA. CONS. STAT. § 9541 et seq.]. Id. Molina alleged that his trial counsel, Gregory Abeln ("Abeln"), had been ineffective. A hearing was held before the trial judge on June 2, 2005. Doc. No. 10-6. Molina, who was represented by counsel, appeared and testified at the hearing. Id., pp. 13-20. Testimony was also taken from Abeln and David Freed ("Freed"), the First Assistant District Attorney who had prosecuted Molina. Id., pp. 4-12, 20-25. The trial judge denied Molina's PCRA petition.

Molina appealed the denial of his PCRA petition to the Superior Court. On July 19, 2005, he filed a "concise statement of the errors complained of on appeal" pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Doc. No. 10-2, pp. 23-24. The only issue raised in this statement was Abeln's alleged ineffectiveness for failing to object to multiple references at trial to Molina's status as an illegal alien. Id., p. 23. In his brief to the Superior Court, Molina argued only that Abeln had been ineffective for permitting the jury to hear about his immigration status. Id., pp. 7-19. No other issues were placed before the Superior Court. In an opinion dated April 6, 2006, the Superior Court held that Abeln's representation of Molina at trial had not been ineffective. Commonwealth v. Molina, 897 A.2d 1190 (Pa.Super.Ct. 2006). The Pennsylvania Supreme Court denied Molina's petition for allowance of appeal on July 27, 2006. Commonwealth v. Molina, 903 A.2d 1233 (Pa. 2006).

On July 27, 2007, Molina filed the instant petition for a writ of habeas corpus. Doc. No. 1. In accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties have consented to have this matter resolved by a United States Magistrate Judge. Doc. No. 17.

II. Background

Molina and Brenda Molina ("Brenda") were co-workers for an employer located in Carlisle, Pennsylvania.*fn2 Doc. No. 10-5, p. 33. Molina, a Chilean national, was an illegal alien. He evidently worked under the alias of "Samuel Feliciano" in order to avoid detection while maintaining a job. Doc. No. 10-4, p. 4. In late 2001, Molina and Brenda started dating. Doc. No. 10-5, pp. 32-35. Molina moved into Brenda's apartment in Newville, Pennsylvania. Id., p. 34. At some point in 2002, Molina and Brenda moved in with two friends who were residing in Mechanicsburg, Pennsylvania. Id.

In late 2002, Molina lost his job because of attendance-related problems. Doc. No. 10-4, p. 3. Brenda, however, was still employed. Id. Molina asked Brenda to take off from work in order to travel to Canada for a car show. Id. They went to Canada, where they were asked to produce identification information. Id. Although Brenda was able to produce the requested information, Molina was not. Id. The Canadian authorities apparently instructed Molina that he could not proceed further. Id. When Molina and Brenda attempted to return to the United States, Molina was temporarily detained. Id., p. 4. Fearing that he would be deported to Chile, Molina told Brenda that he would be able to remain in the United States if she would marry him. Doc. No. 10-5, p. 38. Molina and Brenda decided to get married. Id. They ultimately got married on January 3, 2003. Id., p. 32. They continued to reside in Mechanisburg. Id., pp. 38-39.

The marriage apparently began to deteriorate rapidly. One day in late 2003, when Brenda returned home, Molina asked her where she had been. Id., p. 39. Brenda reacted by telling Molina to leave the residence. Id. In response to questions posed to her by Molina, Brenda stated that she was "seeing" and "sleeping with" somebody else. Id., pp. 39-40.

On December 18, 2003, Robert Yost, Jr. ("Yost"), a member of the Newville Special Fire Police, received an urgent instruction to respond to what was believed to have been an automobile accident involving two vehicles. Id., p. 6. The reported "accident" had occurred on Brandy Run Road in Newville. Id. When he arrived at the scene, Yost observed two cars on the right side of the road. Id., p. 7. A woman standing nearby indicated to him that the two individuals involved in the "accident" had been badly injured. Id. Nevertheless, Yost did not notice any significant damage to the two vehicles. Id., pp. 7-8.

When Yost approached the vehicles, he found one of them empty and the other occupied. Id., p. 8. Peering into the occupied vehicle, which was a blue compact car, Yost found Molina on top of Brenda in the front seat. Id. The scene was very bloody. Id. A knife was lying on the passenger's side floorboard. Id. Yost contacted police and emergency medical personnel and alerted them to a probable stabbing. Id. Only the front driver's side window was partially down. Id., p. 8. The other windows of the car were closed. Id. Yost yelled into the partially opened window. Id., p. 9. He noticed no reaction from Molina, but Brenda opened her eyes and made "eye contact" with him. Id. Yost assured Brenda that help was on the way. Id.

Some volunteer firefighters arrived on the scene shortly thereafter. David Bobb ("Bobb") opened the driver's side door and grabbed Molina. Id., p. 24. Chris Darhower ("Darhower"), an emergency medical technician, opened the passenger's side door and grabbed the knife. Id. He handed the knife to William Stum ("Stum"), who proceeded to lay it next to a nearby tree. Id., p. 30. Molina and Brenda were subsequently removed from the car and transported in ambulances for emergency medical treatment. They both survived. Molina was ultimately charged with attempting to take Brenda's life.

According to Brenda's testimony at Molina's trial, the incident of December 18, 2003, began when Molina rammed the right front passenger's side of his vehicle into the left front driver's side of her vehicle. Id., pp. 41-42. When Brenda opened the driver's side door of her car, Molina was standing "right there" with a knife. Id. As Brenda turned to look at Molina, he cut the left side of her neck with the knife. Id., p. 43. Molina then proceeded to cut his own neck. Id., pp. 43-44. Brenda started to kick Molina in the chest, telling him that she loved him. Id., p. 44. Molina stabbed himself in the chest. Id., p. 45. Molina fell on top of Brenda, and the door to the car closed. Id., pp. 44-45. At some point during the struggle, Brenda's right hand was cut with the knife. Id., p. 46. Brenda struggled to breathe when Molina was on top of her. Id., p. 48. She pushed his head up, but it "flopped back down." Id. Molina apparently lost consciousness while lying on top of Brenda. Id., pp. 47-48.

During the trial, Abeln attempted to show that Brenda had been the aggressor. Doc. No. 10-6, pp. 8-9. The jury nevertheless believed Brenda's testimony. Molina was convicted of attempted murder, aggravated assault, simple assault and recklessly endangering another person. Doc. No. 10-4, p. 3.

III. Standards of Review

A. Exhaustion and Procedural Default

The exhaustion requirements applicable to claims asserted in a federal habeas corpus petition are rooted in subsections (b) and (c) of 28 U.S.C. § 2254, which provide:

§ 2254. State custody; remedies in Federal courts

***

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the ...


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