The opinion of the court was delivered by: Judge Muir
Petitioner, Derrick Lamar Dorn, filed the instant counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Dauphin County, Pennsylvania. (Doc. 1). For the reasons that follow, the Court will deny the petition.
The following background has been extracted from the Trial Court's May 27, 2008 Memorandum Opinion Pursuant to Pa.R.A.P. 1925(a). (Doc. 10, Ex. F, Memorandum Opinion).
Defendant was a certified nursing assistant (CNA) at the Susquehanna Center, an extended care facility in Harrisburg, Pennsylvania. A CNA is assigned to a number of residents and was responsible for duties such as bathing, washing, feeding, positioning and taking vital signs of the resident. [N.T. 2-15-05 p. 30-31]. On the evening of October 12-13, 2001, Peggy Schmidt was a resident at the Susquehanna Center, and Dismus Irungu was employed as a charge nurse. A charge nurse is in charge of directing staff as to the care of the residents on a certain floor. [N.T. 2-15-05 pp. 27-29]. It was the first night that Irungu and Defendant worked together. [N.T. 2-15-05 pp. 30-31]. The two worked on the 3:00 p.m. to 11:00 p.m. shift together, then both worked the 11:00 p.m. to 7:00 a.m. shift. Defendant was very curious as to when Irungu was going to take his break and, at about 3:30 a.m., Irungu told Defendant that he was going on his 1/2 hour break; additionally, two other CNA's working the floor took breaks at that time. [N.T. 2-15-05 pp. 32-34].
Irungu did not take his full break; instead, he returned to the floor after about ten minutes had gone by. When he got off of the elevator, heard noises coming from Schmidt's room; specifically, "creaking" noises and Schmidt's voice saying "nah, nah." [N.T. 2-15-05 p. 35]. Irungu entered Schmidt's room and noticed that the curtain was drawn. Irungu stepped inside the curtain, observed Schmidt with her gown drawn up over her breasts, her legs up, and Defendant between her legs having sex with her. [N.T. 2-15-05 p. 36] Irungu asked what he was doing, to which Defendant responded, "Oh, shit." [N.T. 2-15-05 pp. 36-37]. Defendant pulled out of Schmidt, and, still with an erection, proceeded toward Irungu, who warned him away. Defendant begged Irungu to keep the incident quiet. [N.T. 2-15-05 p. 37]. Irungu went to the nurses' station and paged Rose Umana, the supervisor, who was on the second floor at the time; he told her that there was going to be a 911 call. [N.T. 2-15-05 p. 43].
Umana got off the elevator on the third floor, and observed Defendant sitting at the nurses' station with his head down. [N.T. 2-16-05 p. 6]. Defendant was unresponsive when Umana asked him what happened. Irungu explained what happened. Umana recalled that Schmidt, whom she had known for about a year, was not able to communicate beyond a murmur, was mentally impaired and lacked judgment. [N.T. 2-16-05 p. 8]. In fact, Dr. Herman Lawson, Schmidt's attending physician for approximately three years, testified that Schmidt was totally dependent on others to survive, suffered from brain trauma, dementia, and a seizure disorder and was not able to consent to sexual activity.*fn1 [N.T. 5-15-05 pp. 65-67, 70]. Defendant apologized to Umana, and stated that he "didn't mean to do it." He further relayed that Schmidt had invited him, and that he did not have an orgasm. [N.T. 2-16-05 pp. 9-10]. After telling Defendant that he was sick and needed a clergyman, Umana called the director of nursing and the police. [N.T. 2-16-05 p. 10].
Following a jury trial held on September 9, 2002, Defendant, proceeding pro se, was found guilty of Rape of a Mentally Disabled Person. See*fn2 18 Pa.C.S.A. § 3121 (a)(5). Defendant was sentenced to 114 to 240 months imprisonment. Defendant appealed, and the Superior Court vacated the judgment and remanded for a new trial.
A second trial was held in February, 2005. Again, a jury found Defendant guilty and this Court sentenced him to 120 to 240 months incarceration. On September 13, 2005, Defendant filed a notice of appeal. No action was taken due to the fact that the notice of appeal was filed pro se while Defendant was represented, and also because the motion was untimely. On October 11, 2005, Defendant filed a Motion for Withdrawal of Counsel; such Motion was granted, and this Court appointed substitute counsel to represent Defendant. On November 11, 2005, Defendant filed a pro se petition for relief under the Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541 et seq. On May 3, 2006, Defendant filed an Amended PCRA petition, through counsel. The PCRA court granted relief in the form of reinstatement of the right to appeal nunc pro tunc on October 2, 2006. That order was subsequently vacated on October 4, 2006.
An evidentiary hearing was held on November 17, and December 6, 2007, relating to Defendant's Amended Petition.
Id. By Order of Court dated November 14, 2007, the PCRA court reinstated petitioner's appellate rights by finding the following:
Given the overwhelming nature of the evidence, the complaints as to decisions made at trial are dismissed; however, the court does find that trial counsel failed to timely file post-trial motions and/or direct appeal subsequent to receiving notification from defendant. Defendant's counsel, Jason P. Kutulakis is directed to continue representation and preserve the appropriate issues on appeal. (Doc. 10, Ex. A, copy of Docket of Court of Common Pleas, No. CP-22-CR-0004059-2001).
On November 29, 2007, petitioner filed a notice of appeal to the Pennsylvania Superior Court. Id. He subsequently filed a concise statement of matters complained of on appeal in which he raised the following issues:
a. The Trial Court overruled Anthony Thomas' objection to the admission of any evidence relating to forcible compulsion.
b. The Trial Court erroneously granted the Commonwealth's motions to apply the rape shield statute to the victim's medical records.
2. Ineffective Assistance of Counsel:
a. It is believed and therefore averred that Anthony Thomas told Defendant the day that his trial started that he was not prepared to go to trial, but he did not think that the court would grant him any more continuances.
b. Anthony Thomas failed to request a continuance even after acknowledging his lack of preparation and inability to go to trial to his client.
c. Anthony Thomas failed to create a record for the Appellant to pursue issues that may have been appealable.
d. Anthony Thomas failed to object after a sidebar with the Judge regarding nursing notes; it is believed and therefore averred that during that sidebar, Mr. Thomas attempted to introduce these notes as evidence and the Honorable Judge Evans did not allow Mr. Thomas to do so.
e. Anthony Thomas failed to object to any of the witnesses who offered opinions as they were being qualified as experts, and therefore should have sought expert reports pretrial pursuant to Pa.R.Crim.P. 573.
f. It is believed and therefore averred that Appellant did not receive the state's expert report.
g. Anthony Thomas failed to file a Motion to Compel pursuant to Rule 573 in order to force the prosecution to give a copy of the report to the Defendant.
h. Anthony Thomas failed to request a separate evaluation of the victim to determine her mental capacity.
i. Anthony Thomas failed to object to hearsay that was introduced through many of the state's witnesses, including but not limited to Dr. Lawson and Rose Umana.
j. Anthony Thomas failed to object to the prejudicial admission of the photographs of the bloody diaper or bloody bed pan.
k. Anthony Thomas failed to subpoena the state witnesses that he wished to recall to the stand; therefore, these witnesses were unable to be recalled to the stand during the Defendant's case-in-chief, as they had left the building.
l. Anthony Thomas did not prepare the Defendant before he testified in court.
m. Anthony Thomas failed to prepare jury instructions per the Judge's directive.
n. Anthony Thomas failed to submit the jury instructions that his client had handwritten and requested they be submitted to the judge.
o. Anthony Thomas failed to object to the sentence that was imposed based on the fact that there was a lack of sufficient reason to depart from the standard applicable guideline range as the court did not sufficiently place the basis on the record.
p. Anthony Thomas failed to file a post-sentence motion on his client's behalf.
q. Anthony Thomas had no contact with Appellant between the time that he was found guilty and the sentencing hearing.
r. Anthony Thomas failed to show at three (3) sentencing hearings and was brought to the sentencing hearing on August 11, 2005 by a sheriff.
s. Anthony Thomas repeatedly told his client that he was having issues with his life that were affecting his ability to effectively represent the Defendant, but never sought permission to withdraw.
t. Anthony Thomas was complaining of persons bugging his office and purportedly putting viruses onto his computers in his office.
u. It is believed and therefore averred that none of this occurred and that Anthony Thomas was unable to understand this.
(Doc. 10, Ex. F, Trial Court Memorandum Opinion pursuant to Pa.R.A.P. 1025(a), filed May 27, 2008).
By Memorandum Opinion dated May 27, 2008, the trial court affirmed the judgment of sentence, finding the following:
Ultimately, in light of the convincing evidence of the egregious crime committed by Defendant, this Court finds that none of the foregoing challenges are sufficient to warrant relief. As there was no error on the part of the Trial Court, it is respectfully submitted that the judgment of sentence be affirmed. Id.
Petitioner filed an appeal to the Pennsylvania Superior Court in which he raised the following two issues for review in his Pa.R.A.P. 1925(b) statement of errors:
1. Whether trial counsel's cumulative errors resulted in his ineffectiveness essentially causing Appellant to receive no assistance of counsel at trial?
2. Whether trial court erred during trial, creating matters which are appealable?
(Doc. 10, Ex. I, Memorandum Opinion dated February 5, 2009).
In a Memorandum Opinion dated February 5, 2009, the Pennsylvania Superior Court, affirmed the judgment of sentence, finding the following:
We have reviewed the record, the parties' briefs, the trial court
opinion and the applicable law. We conclude that the trial court's
well-reasoned opinion of May 27, 2008 aptly addresses Appellant's
individual ineffective assistance of counsel arguments.*fn3
Specifically, we agree with the trial court and the
Commonwealth that, in light of the overwhelming evidence of
Appellant's guilt, trial counsel's alleged errors, viewed
individually, did not prejudice Appellant.
We also conclude that the trial court adequately addresses Appellant's claims of trial court error. In summary, we reject Appellant's ineffective assistance of counsel arguments based on the trial court opinion. We reject Appellant's constructive denial of counsel argument based on this memorandum. We reject Appellant's claims of trial court error based on the trial court opinion. Since none of Appellant's arguments are meritorious, we affirm the judgment of sentence.Id.
On March 9, 2009, petitioner filed a petition for allocatur with the Supreme Court of Pennsylvania, which was denied on September 9, 2009. (Doc. 10, Ex. J., copy of Docket of Supreme Court of Pennsylvania, No. 150 MAL 2009).
On November 3, 2009, Dorn filed the instant petition for writ of habeas corpus in which he claims trial counsel was ineffective for failing to:
a. file an appeal at his client's demand;
b. demand and compel discovery for expert reports ...