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Richard Nyamwange v. Jon D. Fisher

June 23, 2011

RICHARD NYAMWANGE, PETITIONER
v.
JON D. FISHER, : RESPONDENT.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Richard Nyamwange ("Petitioner" or "Nyamwange"), a former state inmate, who presently is a detainee of the United States Immigration and Customs Enforcement ("ICE") Office confined at the Pike County Correctional Facility in Lords Valley, Pennsylvania, initiated the above action through counsel by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1.) Nyamwange challenges his 2007 conviction in the Court of Common Pleas of Monroe County, Pennsylvania, of one (1) count of sexual assault, one (1) count of aggravated indecent assault, and two (2) counts of indecent assault. At the time of filing, Nyamwange was serving the two and one-half (2 1/2 ) to five (5) year sentence of imprisonment imposed by the Court of Common Pleas of Monroe County.*fn1 The Petition is fully briefed and ripe for disposition. For the reasons set forth herein, the Petition will be denied.

PROCEDURAL BACKGROUND

I. Criminal Conviction in State Court

The facts surrounding the events that gave rise to Nyamwange's arrest and his conviction in the Monroe County Court of Common Pleas were summarized by the Pennsylvania Superior Court in its Memorandum disposing of his direct appeal from his judgment of sentence as follows:

In the summer of 2006, the victim was a 19-year-old student at East Stroudsburg University and was employed in a work-study program run by the Office of Business Management and Economics. [Nyamwange] was professor of economics at the university, and hired the victim to do secretarial work for him. For unrelated reasons, [Nyamwange] did not pay the victim at the end of the summer, and the victim, a local resident, transferred to a new school. Accordingly, when the victim was home for Thanksgiving, she agreed to have lunch with [Nyamwange] for the purpose of receiving her back pay. [Nyamwange] forgot his checkbook, however, and the victim accepted [Nyamwange's] invitation to return to his home for the purposes of being paid and seeing the home remodeling work that [Nyamwange] was having performed. The parties drove separately to [Nyamwange's] home.

Once there, [Nyamwange] took the victim on a tour of the premises, ending in [Nyamwange's] upstairs bedroom. At [Nyamwange's] suggestion, the victim remained in [Nyamwange's] bedroom watching television until it was time for her to leave for her 3:00 p.m. job at the local mall. [Nyamwange] went downstairs. From prior to lunch until this point in time, the victim had been in constant cell phone/texting contact with Joseph Tepedino, her boyfriend. N.T., 9/6/07, at 40-42, 45. Twenty minutes later, [Nyamwange] came upstairs and wrote the victim a check for the $75.00 he owed to her.

According to the victim's testimony, as she rose to leave, [Nyamwange] 'fell into her,' knocking her back on his bed.Id. at 47. The victim feared that [Nyamwange] had a heart attack, and asked if he was all right. The victim testified that [Nyamwange] then stated, 'it's been so long,' and tried to kiss her. Id. at 47-48. The victim, who at this point began to cry, told [Nyamwange] 'no,' and tried to squirm out from under [Nyamwange's] body. Id. at 48-49. Using one hand, [Nyamwange] pinned the victim's arms above her head and continued to kiss the victim's mouth and 'all over her cheeks.' He also licked her chest. Id. at 50-51. In an unsuccessful effort to make her assailant stop, the victim bit [Nyamwange's] lip and nipple. Id. at 51-52.

While rubbing his clothed body against the victim's body, [Nyamwange] pushed up the victim's skirt and pushed aside the shorts and panties that she wore underneath. Id. at 52. [Nyamwange] digitally penetrated the victim's vagina. Id. at 53. [Nyamwange] then exposed his penis and put it inside the victim's vagina. Id. at 54. The victim testified as follows:

[Victim]: I kept telling him no, and he kept telling me that it wasn't going to hurt me and that he wasn't going to come in me, and he kept saying it's been so long.

Q: When you told him no, [victim], did he stop and get off you? [Victim]: No.

Q: At any point, [victim], did you see or do you know whether or not he had ejaculated? [Victim]: Yeah. He had let go of me, and then he had ejaculated into his hand, and then he got up and went to the bathroom, and that was when I left. Id. at 55.

The victim testified that she ran downstairs, and [Nyamwange] followed. He 'bear hugged' her and offered cash instead of a check. Id. at 57. The victim threw the money at [Nyamwange] and ran out of the front door. The victim testified that she drove to the end of the street, stopped her car, and cried. Id.at 58. She telephoned Tepedino and the two arranged to meet at the mall where the victim was employed. Id. at 59. [Nyamwange] subsequently was arrested and charged. [Nyamwange's] omnibus pre-trial motion was denied, in pertinent part, on April 24, 2007. Docket Entry 19. An opinion was filed the same day. Id.

On September 10, 2007, a jury convicted [Nyamwange] as stated above. Sentencing occurred on February 1, 2008. Bail pending appeal was denied. No other post-sentence motion was filed. A timely notice of appeal was filed on February 15, 2008. In February 20, 2008, the court directed [Nyamwange] to file a Pa. R.A.P. 1925(b) statement of errors complained of on appeal within 21 days. [Nyamwange] complied on March 5, 2008. The court filed its initial opinion on April 29, 2008, and a supplemental opinion on May 9, 2008. (Doc. 1-3 at 2-4, 6/8/09 Pa. Super. Ct. Op.)*fn2

II. Direct Appeal

In his direct appeal from his judgment of sentence, Nyamwange raised three (3) issues for review, which the Pennsylvania Superior Court summarized as follows:

1. Whether a new trial is required since the trial court erred by finding the Rape Shield Statute restricted Nyamwange's cross-examination of the alleged victim and Joseph Tepedino, her boyfriend, where the defense was arguing she fabricated her lack of consent to protect her relationship with Tepedino, where Tepedino's DNA was found on the alleged victim's thong, where she denied having consensual sex with anyone within two weeks prior to the incident and where Tepedino denied having a relationship with the alleged victim prior to the alleged victim's incident with Nyamwange?*fn3

2. Whether a new trial is required since the trial court failed to read Nyamwange's proposed charge on reasonable mistake of fact?

3. Whether a new trial is required since the trial court erred in not granting Nyamwange's Omnibus Pre-trial Motion to suppress what was seized by the Commonwealth's search warrants?

(See Doc. 1-3 at 4-5, 6/8/09 Pa. Super. Ct. Op.) The Pennsylvania Superior Court concluded that each of Nyamwange's arguments was devoid of merit, and therefore, affirmed the judgment of sentence. (See id. at 5-13.)

Nyamwange subsequently filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court in which he raised the following two (2) questions for review:

1. Whether by limiting Nyamwange's cross examination of D.P. and Tepedino and denial of admittance of evidence of boyfriend's DNA on D.P.'s thong, the trial court denied Nyamwange his constitutional right to due process and to confront witnesses against him.

2. Whether the trial court erred when it failed to read Nyamwange's proposed charge on reasonable mistake of fact?

(Doc. 1, Petition, at 6 ¶ 9(m).) By Order dated November 24, 2009, the Pennsylvania Supreme Court denied Nyamwange's Petition for Allowance of Appeal. (Doc. 1-5, 11/24/09 Order.)

III. Petition for Writ of Habeas Corpus

On March 2, 2010, Nyamwange's counsel filed the instant Petition on his behalf. (Doc. 1.) In his Petition, he raises ...


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