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Emmanuel Etienne v. Raymond Sobina

August 10, 2011

EMMANUEL ETIENNE, PETITIONER,
v.
RAYMOND SOBINA, ET AL. RESPONDENTS.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM ON PETITIONS FOR WRIT OF HABEAS CORPUS

I. Introduction

Petitioner Emmanuel Etienne ("Etienne") filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, raising several grounds for relief, which he subsequently amended. (Pet., ECF No. 1; Am. Pet., ECF No. 10.) This Court referred the matter to Magistrate Judge Carol Sandra Moore Wells for a Report & Recommendation ("R & R") on the merits (Order, ECF No. 5), and the Commonwealth responded to Etienne's Petition (Resp., ECF No. 13).

On March 30, 2011, Judge Wells filed her R & R, which recommended that the Petition and Amended Petition be dismissed for several reasons. (R & R, ECF No. 14.) According to Judge Wells, one of Etienne's claims is not cognizable on collateral review and the remainder are time-barred and procedurally defaulted. On May 22, 2011, Etienne, after having been granted an extension of time, timely filed objections to the R & R.*fn1 (Objections, ECF No. 18.) Upon independent and thorough review, and for the reasons stated below, the Court will adopt the R & R and dismiss the Petition and Amended Petition for Writ of Habeas Corpus.

II. Factual and Procedural Background

According to the Pennsylvania Superior Court, the facts underlying Etienne's state court conviction are as follows:

"[Etienne] was convicted of having repeatedly raped his biological daughter both anally and vaginally from the time she was nine years old until she became pregnant at age thirteen. At the trial, the victim testified that [Etienne] would call her into the basement to do math homework after the victim's mother, [Etienne]'s wife, left for work on the weekends. After finishing the homework, [Etienne] would not allow the victim to leave the basement.

[Etienne] then proceeded to rape the victim both anally and vaginally despite the victim's pleas of 'stop touching me' as he would hold her down. [Etienne] threatened to kill the victim if she told her mother. The victim testified that 'more than 50' similar sexual assaults occurred at the hands of her father every weekend from the age of nine to thirteen. The victim testified that she never told anyone of the sexual assaults because she read in books that the person who raped a child would kill the child if the child told anyone.

The victim became pregnant at age thirteen and was placed in foster care after telling her mother's friend and the Department of Human Services (DHS) that [Etienne] was the father of the child. On August 21, 2006, the victim gave birth to the child, which had respiratory problems and rickets. A DNA test and subsequent report lists [Etienne] as the biological father of the victim's child. The probability of paternity is greater than 99.99 percent.

[Etienne] maintained his innocence throughout the trial, but admitted to committing the sexual assaults during sentencing. The trial court sentenced [Etienne] to serve concurrent terms of imprisonment of fifteen to thirty years for rape; ten to twenty years for [involuntary deviate sexual intercourse]; five to ten years for aggravated indecent assault; five to ten years for incest; three and one-half to seven years for endangering the welfare of a child; and two and one-half to five years for corrupting the morals of a minor. No post-sentence motions were filed by [Etienne]." Commonwealth v. Etienne, No. 2082 EDA 2007, slip op. at 2-3 (Pa. Super. Ct. Aug. 15, 2008) (citations omitted).

Etienne filed a direct appeal of his conviction and sentence, which the Pennsylvania Superior Court affirmed. Id. at 8. He did not pursue any other direct appeals. On February 11, 2009, Etienne filed a timely pro se petition under Pennsylvania's Post-Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541, et seq. ("PCRA"). (Resp. Ex. B.) He sought post-conviction relief based on several claims of ineffective assistance of counsel. (Id.) Etienne's appointed counsel filed a no-merit letter and requested to be excused from the case, pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc). (Resp. Ex. C.) The PCRA court granted the motion to withdraw and denied Etienne's PCRA petition. (Resp. Ex. D.) Etienne did not appeal the dismissal to the Pennsylvania Superior Court.

Etienne filed the instant Petition for Writ of Habeas Corpus on October 12, 2010. (Pet.; see Am. Pet.) He asserts several claims of ineffective assistance of counsel: failure to request a translator; failure to call witnesses on his behalf; failure to advise of a plea offer; failure to dispute authorization for DNA testing; failure to object to impermissible remarks during the Commonwealth's closing; failure to file post-sentencing motions; failure to raise denial of assistance of Haitian consular (Pet.); failure to advise of rights under the Vienna Convention; failure to argue violation of the right to speedy trial; and PCRA counsel's failure to request an evidentiary hearing (Am. Pet.). Judge Wells filed her R & R on March 30, 2011, recommending the Petition and Amended Petition be dismissed as time-barred. (ECF No. 14.) After an extension of time, Etienne filed timely objections to the R & R. (ECF No. 18.)

III. Parties' Contentions

A. Summary of the ...


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