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Duane Pettit v. Brian Coleman

September 20, 2011


The opinion of the court was delivered by: Judge Fischer

Magistrate Judge Bissoon


Petitioner Duane Pettit ("Petitioner") filed this Petition for Writ of Habeas Corpus on September 4, 2008. (Docket No. 1). Petitioner challenges, under 28 U.S.C. § 2254, his 2004 convictions in the Court of Common Pleas of Washington County, Pennsylvania, on charges of rape, 18 Pa. Cons. Stat. § 3121, involuntary deviate sexual intercourse ("IDSI"), 18 Pa. Cons. Stat. § 3123, and incest, 18 Pa. Cons. Stat. § 4302, for which he currently is serving a sentence of seven-and-one-half to 15 years confinement. For the reasons stated below, this petition will be denied.

I. The Crimes

The facts presented at Petitioner‟s criminal trial were summarized by the PCRA trial court as follows:

During a June 2003 weekend, [Petitioner‟s] child, [daughter] (age 11) came to stay with her father, [Petitioner], and her mother, Pamela Pettit, at 75 1/2 West Chestnut Street, Washington, Pennsylvania . . . . [Daughter] has lived with her aunt, Patricia Lynn English, since 1994 when both [daughter] and her brother . . . were removed from her parents‟ home following allegations of sexual abuse . . . . On Friday evening, [daughter] slept in a bed in the living room with her mother and father on either side of her. When Pamela Pettit fell asleep, [Petitioner] removed [daughter‟s] clothing as well as his, and then penetrated her vagina with his penis.

The next morning [daughter] woke up and ate breakfast in bed in the living room while watching television. Both [Petitioner] and Pamela Pettit were present in the house; however, only [Petitioner] was in the living room with [daughter]. [Petitioner] again took off both his and [daughter‟s] clothes and penetrated her vagina with his penis. On this occasion, [Petitioner] also put his penis in [daughter]‟s mouth and forced her to perform oral sexual intercourse on him. [Daughter] did not mention these incidents to her mother because [Petitioner] said he would hurt her if she told anyone. That same evening [Petitioner] again removed both his and [daughter‟s] clothes and penetrated her vagina with his penis. Finally, on Sunday of the same weekend, [Petitioner] and Pamela Pettit hosted guests at their home where [Petitioner] was drinking alcohol. [Daughter] testified that her father again took off his and her clothes and penetrated her vagina with his penis.

Sunday evening, [daughter‟s] grandparents came and picked her up at her parent‟s [sic] home on West Chestnut Street. [Daughter] first reported the incidents to her teacher, Miss Zimarolli, approximately eight months later. On March 3, 2004, Washington County Children and Youth Services referred this case to the Washington City Police Department and Corporal Daniel Stanek. The victim, [daughter], made statements on March 24, 2004 that her natural father, [Petitioner], had sexual intercourse with her and forced her to perform sexual intercourse on him over three consecutive days in June 2003. Following interviews with the police and Children and Youth Services, [daughter] was transported to Children‟s Hospital in Pittsburgh, Pennsylvania for a medical evaluation. Dr. Janet Squires, M.D., examined [daughter] and concluded that the exam could neither support nor rule out her report of sexual abuse.

PCRA Trial Ct. Op. at 1-2, and n.1.

II. Claims

Petitioner explicitly raises the following claims for relief. First, Petitioner alleges ineffective assistance of trial and appellate counsel based on trial counsel‟s failure to object to the prosecutor vouching for -- and exhibiting her personal opinion regarding -- the credibility of the victim‟s testimony during closing arguments. Second, Petitioner complains of prosecutorial misconduct with respect to the prosecutor‟s elicitation of information regarding Petitioner‟s incarceration from a defense witness during trial. Third, Petitioner claims that counsel at his criminal trial did not listen to any of his input during voir dire. Finally, Petitioner argues that the trial judge improperly ordered him to register with the state as a sex offender for the rest of his lifetime.*fn1

III. Procedural Issues

Before this Court can address the merits of Petitioner‟s claims, it is necessary to examine whether this petition fulfills the applicable procedural requirements, as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

A. AEDPA's Statute of Limitations

The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed under the one-year limitations period applicable to such petitions. In this regard, the federal habeas corpus laws impose a one-year limitations period applicable to state prisoners, which provides as follows.

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d) (as amended). Respondents concede that all of Petitioner‟s claims are timely under AEDPA‟s statute of limitations. (Docket No. 10, at 3-4)

B. Exhaustion

It is next necessary to determine whether Petitioner‟s claims have been adequately exhausted in the state courts and, if not, whether the circumstances of his case are sufficient to excuse his procedural default.

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996) (abrogated on other grounds by Beard v. Kindler, 130 S.Ct. 612, 618 (2009)); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal petition to the state‟s trial court, intermediate appellate court, and highest available court before exhaustion will be considered satisfied. O‟Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). The petitioner has the burden of establishing that the exhaustion requirement has been met. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O‟Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).

Exhaustion is not a jurisdictional limitation, however, and federal courts may review the merits of a state petitioner‟s claims prior to exhaustion when no appropriate state remedy exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997); Doctor, 96 F.3d at 681; Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). A petitioner shall not be deemed to have exhausted state remedies, ...

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