The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
William Mangino II an inmate at the State Correctional Institution at Cresson has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
Mangino is presently serving an eight and a half to twenty year sentence imposed following his conviction, by a jury, of five counts of violating the controlled substance act, three counts of Medicaid fraud, and one count of criminal conspiracy at No. 1181 of 2004 in the Court of Common Pleas of Lawrence County, Pennsylvania. This sentence was imposed on July 5, 2007.*fn1
A pro se appeal was taken to the Superior Court in which the issues presented were:
1. The evidence at trial was insufficient.
2. The Commonwealth did not meet its statutory burden of proof.
3. The weight of evidence at trial was not sufficient.
4. Agents of Attorney General purposely separated appellant from advice and counsel in violation of U.S.C.A. 5.
5. All appellant interview statements were product of custodial interrogation and court erred in not suppressing statements or abused its discretion under U.S.C.A. 5.
6. State Board of Medicine actions and instructions to appellant to speak with and be interviewed by agents with whom they mingled in a previously initiated investigation deprived, compelled-to-obey, appellant of expectation against self-incrimination under U.S.C.A. 5 and 14.
7. The statute is constitutionally vague as it was applied to the overall practice and prescribing pattern of appellant in that it failed to warn appellant based upon "his" level of experience and the absence of any evidence presented that appellant prescribed without visually or physically examining patients or outside the traditional "bounds" or his ordinary customary pain practices dictated by standards of his specialty.
8. A "probabilistic" likelihood exists that appellant, in consideration of information that was not admitted at trial, and which is reliable, is "actually innocent" under the "Gateway standard of Carrier."
9. Commonwealth violated the rule of Brady by not disclosing that their witness John Lee had a crime in falsehood conviction for theft where his testimony, on balance, lent strong inferences to the jury that appellant knowingly prescribed to drug addicts despite Lee‟s claim that he was in pain.
10. Commonwealth violated the rule of Brady when an agent testified as to what appellant said and did where unproduced "rough draft" notes prepared during relevant interviews were not presented to the court for the purpose of cross-examination, where appellant colorfully claims those notes contained exculpatory information.
11. Omissions and errors on the part of his attorney constitutes unreasonable representation at every phase of trial and preparation and that this has procedurally defaulted appellant‟s pursuance of his claim of innocence.
12. Commonwealth medical expert testified outside the specific requisite level of experience expected under the general recognition and acceptance standard and that the court erred or abused its discretion by admitting Dr. Evanko as an expert in pain management.
13. Congress did not intend to aggregate the weight of a narcotic preparation with aspirin or Tylenol as pharmaceuticals in considering sentence guidelines, while practitioner has no control over the preparation and where certain patients cannot tolerate the pure opioid preparation.
14. Allowing all testimony that went to appellant‟s "wisdom" to prescribe where the statute is only concerned with a practitioner‟s diagnostic methods employed at the time of the patient‟s visit.
15. Not including the "good faith" instruction as a defense even though not charged.
16. Not instructing the jury that Commonwealth had the burden to prove that appellant did not "visually" or "physically" examine patients as constituting elements of the crime.
17. Not instructing jurors that "State Board opioid prescribing guidelines" have no force in law, after the court reminded itself to do so in response to appellant attorney Baluss objecting to Commonwealth medical expert‟s erroneous and prejudicial characterization that these guideline standards had force in the law.
18. By not applying the meaning of the statute to the facts of the case where the statute addresses appellant‟s state of mind specifically to the time of the doctor-patient relationship.
19. By not "authenticating" appellant‟s files on patients he had examined.
20. Allowing an agent to testify as to certain behavior patterns of some patients while exiting a medical office, where no proof was offered that appellant was in the office at that time, had seen the patients that day, or had ever treated those patients.*fn2
On June 11, 2009, the judgment of sentence was affirmed.*fn3
Mangino then filed a pro se petition for allowance of appeal to the Supreme Court of Pennsylvania in which he failed to enumerate his claims and instead presented them in narrative form. As best we can determine, it appears that the issues he sought to raise were:
1. A denial of a fair trial under the Due Process Clause of the Fifth, Sixth, Ninth and Fourteenth Amendment to the United States Constitution.
2. The testimony of the Commonwealth‟s expert, Dr. Evanko that his "nonconsensus-of-the-pain-treating-community" claim is that old MRI findings were not dispositive of a reason for long-term pain, but rather that current treatment modalities are based on an individual case and a determination of whether the presenting conditions could reasonably produce pain and not objective evidence of that pain source and that Dr. Evanko was not qualified as an expert in pain management.
3. Insufficiency of the evidence to support a conviction in that the evidence appeared to rely on objective rather ...