The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Petitioner Robert Payne filed a timely pro se Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody (doc. no. 1) seeking relief from a 2006 conviction and sentence of 16 to 40 years, in the aggregate, on related charges of rape of a child, involuntary deviate sexual intercourse, indecent assault and statutory sexual assault following a jury trial in the Court of Common Pleas of Allegheny County, Pennsylvania. The evidence presented at trial established that Petitioner, then a City of Pittsburgh Police Officer, was involved in a romantic relationship with Rhonda Reese. After about a month of dating, Reese moved into Petitioner's home with her then-11-year-old daughter, Andrea, whom she often left in Payne's care. On one of these occasions, Petitioner touched Andrea's buttocks on top of her clothing. Andrea testified that the events progressed to include multiple instances of touching, oral and vaginal intercourse.
After careful review of the habeas petition and supplements thereto, the Commonwealth of Pennsylvania's response, and the state court records, including the opinions of the Court of Common Pleas and of the Pennsylvania Superior Court denying Payne's petition for relief under Pennsylvania's Post Conviction Relief Act, and applying the deferential standard of review required under AEDPA, this Court must deny the section 2254 petition for habeas relief and decline to issue a certificate of appealability.
On July 12-17, 2006, Petitioner appeared before the Honorable Donna Jo McDaniel for a jury trial, represented by David Shrager, Esquire. At the close of trial, Petitioner was convicted on all counts and, on October 26, 2006, appeared before Judge McDaniel for sentencing, where he was sentenced as follows:
Count 1, rape of a child: a term of incarceration of not less than 8, nor more than 20 years;
Count 2, IDSI: a term of incarceration of not less than 8, nor more than 20 years, to be served consecutive to the sentence imposed at Count 1;
Counts 3 and 4, aggravated indecent assault: a term of incarceration of not less than 2 1/2 years, nor more than 5 years, to be served concurrent to the other sentences imposed. Trial counsel initially filed a notice of appeal to the Pennsylvania Superior Court on December 22, 2006, but at Petitioner's direction, he withdrew the appeal and withdrew as counsel so that Petitioner could file a petition for post-conviction collateral relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541--9546, raising claims of trial counsel's ineffectiveness. On November 26, 2007, Petitioner, through Erika Kreisman, Esquire, filed a petition for post-conviction collateral relief under the PCRA.
PCRA counsel filed addenda and a supplement to the PCRA petition, and
a motion for discovery of psychiatric records. On April 30, 2009, the
PCRA court issued an order giving notice of its intent to dismiss
Petitioner's PCRA petition. On June 8, 2009, Petitioner filed, pro se,
a petition requesting a Grazier hearing so that Petitioner may waive
his right to counsel on
the record, and proceed with his PCRA proceeding pro se.*fn1
On June 24, 2009, Attorney Kreisman filed a motion to
withdraw, requesting that the PCRA court appoint Petitioner new
counsel or allow him to proceed pro se, as he requested, and on July
27, 2009, Petitioner appeared before Judge McDaniel for the Grazier
hearing at which he waived his right to counsel and was granted leave
to continue with his PCRA petition and all subsequent appeals pro se.
On July 27, 2009, Petitioner filed a pro se supplement to his PCRA petition with an additional claim of ineffectiveness of trial counsel and a response to the court's notice of intent to dismiss Petitioner's PCRA petition. On July 31, 2009, the PCRA court issued an order dismissing Petitioner's PCRA petition, finding his claims of ineffective assistance of counsel to be without merit. Petitioner appealed, and on October 1, 2009, the PCRA court issued an opinion in response to Petitioner's concise statement of matters complained of on appeal. Commonwealth's Answer to Petition for Writ of Habeas Corpus, Exhibit 20, (doc. no. 11-02, pp. 42-51).
The Pennsylvania Superior Court affirmed Judge McDaniel in a unanimous Memorandum Opinion filed on September 13, 2010. Commonwealth's Answer to Petition for Writ of Habeas Corpus, Appendix, Exhibit 20, (doc. no. 11-05, pp. 23-34). In his pro se Brief for Appellant in the Pennsylvania Superior Court, Petitioner raised, inter alia, the following claims which he now makes in his section 2254 petition:
1. The PCRA Court erred in concluding trial counsel's failure to move for a judgment of acquittal on the basis that the Commonwealth did not prove that the offenses occurred on October 29, 2003, did not deprive Petitioner of the effective assistance of counsel because the underlying issue was frivolous.
2. The PCRA Court erred in concluding trial counsel's failure to impeach Rhonda Reese with a prior crimen falsi conviction for making false reports to law enforcement did not deprive Petitioner of the effective assistance of counsel as the prior crimen falsi conviction was too old to be admissible under the Pennsylvania Rules of Evidence.
3. The PCRA court erred in concluding trial counsel's failure to object and request a mistrial when the Commonwealth's expert testified that "in general, children don't disclose abuse, as a general rule for several months after the abuse has occurred," did not deprive Petitioner of the effective assistance of counsel where the expert was explaining why there was no physical evidence and did not improperly bolster the child victim's credibility.
4. The PCRA court erred in concluding trial counsel's failure to object to the prosecutor impeaching a Commonwealth witness (the child victim, Angela Payne) with an alleged prior inconsistent statement that was not signed or adopted by the witness, did not deprive Petitioner of the effective assistance of counsel as there is no requirement under the Pennsylvania Rules of Evidence that prior inconsistent statements used to impeach be signed or adopted.
In its Memorandum Opinion, the Pennsylvania Superior Court affirmed the decision of the Court of Common Pleas of Allegheny County, and Petitioner timely filed ...