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Thomas A. Walsh v. Michael D. Klopotoski


January 25, 2012


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


Before the Court are Petitioner Thomas A. Walsh's Objections to the Report and Recommendation and Request for Appointment of Counsel. *fn1 Because Petitioner's Objections lack merit, the Court will overrule Petitioner's Objections, approve and adopt the Report and Recommendation, and deny the Petition. The Court will also deny the request to appoint counsel. *fn2


The Report and Recommendation ("R&R") of United States Magistrate Judge Lynne A. Sitarski describes in detail the facts and procedural history underlying the Petition. The background information is accurate and consistent with the record in this case and Petitioner does not object to this section of the R&R. The Court adopts the factual background and procedural history as contained in the R&R and sets forth herein only the context necessary to address Petitioner's objections.

Petitioner was tried by a jury in the Chester County Court of Common Pleas, convicted of Aggravated Assault, *fn3 two counts of Simple Assault, *fn4 Stalking, *fn5 Possession of an Instrument of a Crime, *fn6 two counts of Recklessly Endangering Another Person, *fn7 Criminal Mischief, *fn8 Terroristic Threats, *fn9 Loitering and Prowling at Nighttime, *fn10 and Retaliation against Witness, *fn11 and sentenced to 13-37 years imprisonment. The conviction stems from an encounter between Petitioner and his ex-wife, Dinah Walsh. On October 15, 2003, at approximately 8:30 p.m., Mrs. Walsh pulled into the driveway of her home. As Mrs. Walsh was opening her car door, Petitioner grabbed her from behind and began beating her in the head with a hammer. According to Mrs. Walsh, Petitioner alternated between hitting her with the hammer and breaking the windows of her car.

Petitioner had been released from prison about a week before the incident occurred. He had been prescribed the antidepressant drug Elavil while incarcerated, but was not provided with this medication upon release. Petitioner asserts that, at the time of the incident, he was experiencing withdrawal from Elavil. According to Petitioner, this withdrawal, when combined with what Petitioner claims is a pre-existing traumatic brain injury, caused Petitioner to become violent. He asserts that his trial counsel was ineffective for failing to raise a defense based on this mental impairment. Judge Sitarski agreed with the state court that the record showed that trial counsel was not ineffective. Petitioner objects to this conclusion.


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), *fn12 governs habeas petitions like the one before this Court. Under AEDPA, "a district court shall entertain an application for writ of a habeas corpus [filed on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." *fn13 Where, as here, the habeas petition is referred to a magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), a district court conducts a de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." *fn14

Where the claims presented in a federal habeas petition have been decided on the merits in state court, a district court may not grant relief unless the adjudication of the claim in state court:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. *fn15

A state court's decision is "contrary to" clearly established law if the state court applies a rule of law that differs from the governing rule set forth in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent." *fn16 A decision is an "unreasonable application" of clearly established law if "the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." *fn17 The "unreasonable application" clause requires more than an incorrect or erroneous state court decision. *fn18 Instead, the application of clearly established law must be "objectively unreasonable." *fn19


A. Petitioner's Objections

Petitioner asserts that his trial counsel was ineffective for failing to pursue an insanity or diminished capacity defense at trial. Ineffective assistance of counsel claims are evaluated pursuant to the two-pronged test established in Strickland v. Washington. *fn20 Under Strickland, counsel is presumed to have acted reasonably and to have been effective unless a petitioner can demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced petitioner. *fn21 To establish prejudice, a petitioner must show there is a reasonable possibility that but for counsel's deficient performance the outcome of the underlying proceeding would have been different. *fn22 Accordingly, "[a]n attorney cannot be ineffective for failing to raise a claim that lacks merit." *fn23

Petitioner's trial counsel was not ineffective for failing to raise a diminished capacity defense. "Diminished capacity is an extremely limited defense" *fn24 and under Pennsylvania law, it is a defense only to a first degree murder charge. *fn25 Therefore, trial counsel's failure to raise diminished capacity as a defense to Petitioner's assault charges did not render his performance ineffective.

Similarly, trial counsel's failure to raise an insanity defense did not render his performance ineffective. An insanity defense is not available simply because a defendant has a mental illness; to offer this defense, a defendant's impairment must meet Pennsylvania's legal definition of insanity. *fn26 Here, the Superior Court "agree[d] with the PCRA court that the psychiatrist specifically found that any withdrawal from Elavil, and indeed any underlying mental condition, would not have offered [Petitioner] a defense at trial." *fn27 Judge Sitarski agreed, concluding that trial counsel was not deficient in failing to pursue an insanity defense.

There is ample evidence in the record supporting trial counsel's decision not to pursue an insanity defense in Petitioner's case. Trial counsel contacted Dr. Kenneth Weiss for his medical opinion as to the effects of withdrawal from Elavil. Dr. Weiss opined that the most worrisome possible effect of withdrawal is an abrupt change in mood and flu-like symptoms, but that withdrawal would not affect an individual's cognitive ability to understand the difference between right and wrong. In addition, Dr. Weiss conducted a psychiatric evaluation of Petitioner. In Dr. Weiss's opinion, there was no basis to support that any medical or psychiatric condition brought about Petitioner's violent behavior. *fn28

PCRA counsel's investigation into the effects of Elavil withdrawal revealed similar results. PCRA counsel contacted Dr. Michael Dorfman, who rendered his opinion that sudden discontinuance of Elavil might cause excessive sleepiness or flu-like symptoms. But neither of the doctors consulted by trial and PCRA counsel opined that uncontrolled violence was a symptom of withdrawal from Elavil. Therefore, trial counsel's failure to raise an insanity defense based on these unsustainable assertions was not deficient and the state court's finding to this effect was not objectively unreasonable.

B. Petitioner's Request to Appoint Counsel

Petitioner asserts that due to his alleged mental impairments, he has relied upon friends in preparing his legal filings; however, circumstances beyond his control prevented him from obtaining this assistance in filing his objections to the R&R. He therefore requests that the Court appoint counsel to assist him in filing objections. The Court will not appoint counsel at this stage of the proceedings. All issues have been fully briefed by the parties and the time for filing objections has passed. Petitioner was able to raise the argument that trial counsel was ineffective for failing to raise an insanity or diminished capacity defense, and for the reasons stated above, this argument is without merit. Accordingly, the Court will deny Petitioner's request for appointment of counsel.


For the foregoing reasons, the Court will deny Petitioner's request to appoint counsel, overrule Petitioner's Objections, approve and adopt the Report and Recommendation, and deny the Petition. Since Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability shall not issue. *fn29

An appropriate Order follows.

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