The opinion of the court was delivered by: (Judge Rambo)
Petitioner Steven Otto, an inmate currently incarcerated at the State Correctional Institution in Albion, Pennsylvania ("SCI-Albion"), initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on October 25, 2010, as amended January 13, 2011. (Doc. 10.) Petitioner is challenging his 2004 judgment of sentence imposed by the Court of Common Pleas of Dauphin County, Pennsylvania ("trial court" or "Dauphin County court"). For the reasons that follow, the petition will be denied.
On July 9, 2004, Petitioner was found guilty of rape by forcible compulsion, involuntary deviate sexual intercourse by forcible compulsion, sexual assault, aggravated indecent assault without consent, indecent assault without consent, second degree robbery, and simple assault following a jury trial in the Dauphin County court.
(Doc. 17-1 at 86-87 (Respondents' Reproduced Record).) The Pennsylvania Superior Court summarized the relevant facts as follows:
The victim was a 21-year-old undergraduate student at York College in York, Pennsylvania. She testified that at approximately 6:00 a.m. on the morning of January 1, 2004, [Petitioner] entered her bedroom. The victim did not know [Petitioner] and had never seen him before. [Petitioner was carrying a knife in his hand. He instructed the victim to be quiet and to remain in her bed. [Petitioner] put the knife to the victim's throat and told her not to make any noise. Terrified, the victim offered to give [Petitioner] "everything" if he would let her be okay. The victim found $20 and gave it to [Petitioner], who became angry. The victim then found more money in the drawer beside her bed, and gave [Petitioner] that money as well. At one point, the victim sobbed out loud; [Petitioner] struck her hard on the side of her face. The victim blacked out momentarily. [Petitioner] ordered the victim to take off all her clothes and proceeded to rape her. Before he left the house, [Petitioner] demanded the victim's driver's license or identification. [Petitioner] remarked on the victim's age and name, and told her his name, "Steven Otto." [Petitioner] told the victim they would see each other again. [Petitioner] left with the victim's money and driver's license. The DNA profile obtained from [Petitioner]'s blood sample matched the DNA profile obtained from semen recovered from the victim after the incident.
The victim positively identified [Petitioner] as the perpetrator. (Doc. 17-2 at 71-72; Commonwealth v. Otto, 754 MDA 2005 (Pa. Super. Ct. Mar 15, 2006)). On December 3, 2004, the trial court sentenced Petitioner to an aggregate term of imprisonment of twenty (20) to forty (40) years. Petitioner was also found to be a sexually violent predator. Petitioner filed post-sentence motions, and by memorandum opinion dated March 11, 2005, the trial court denied those motions. On December 4, 2006, Petitioner filed a pro se petition for post-conviction relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. Thereafter, the PCRA court appointed counsel to represent Petitioner and held a PCRA hearing on April 5, 2007. On that same date, the PCRA court denied Petitioner's requested relief. Petitioner timely filed a counseled appeal with the Pennsylvania Superior Court. While a decision was pending, Petitioner raised additional matters pro se. As a result, on July 15, 2008, the Superior Court directed Petitioner's counsel to file a petition for remand in order to evaluate Petitioner's claims. On August 4, 2008, the Superior Court remanded the matter back to the PCRA court for appointment of new counsel in order to file an amended PCRA petition on Petitioner's behalf. The PCRA court appointed counsel who then filed two supplements to the PCRA petition on October 28, 2008 and November 17, 2008, respectively. On December 2, 2008, the PCRA court held a second PCRA hearing at which time it denied Petitioner's requested relief. On December 9, 2008, the PCRA court directed Petitioner to file a statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Petitioner filed the statement on December 31, 2008. Thereafter, on April 16, 2009, the PCRA court affirmed the denial of PCRA relief. On June 22, 2009, Petitioner filed a notice of appeal in the Superior Court. The Superior Court, in turn, affirmed Petitioner's conviction and denial of PCRA relief on February 18, 2010. Petitioner then filed a petition for allocatur in Pennsylvania's Supreme Court on March 22, 2010. The Pennsylvania Supreme Court denied allocatur on August 12, 2010.
Petitioner timely filed the instant petition for writ of habeas corpus on October 25, 2010 (Doc. 1), as amended on January 13, 2011, (Doc. 10). He also filed a supporting memorandum of law. (Doc. 11.) After receiving an extension of time in which to respond to the petition, (see Doc. 16), Respondents filed a response to the petition on April 6, 2011, (Doc. 17). Petitioner filed his reply brief on April 25, 2011, (Doc. 18), with a supplement filed on October 28, 2011, (Doc. 23). Thus, this matter is now ripe for disposition.
II. Standard of Review - AEDPA Merits Review*fn1 Section 2254(d) of Title 28 of the United States Code provides, in pertinent
part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
(1) [the decision] 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) [the decision] was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999) (emphasis in original). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2000).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 317 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp. 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)*fn2 ). Mere disagreement with an inferential leap or credibility judgment of the state court is insufficient to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams v. Taylor, 529 U.S. 362, 410 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by evidence therein should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-10.
Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:
[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the court concludes that constitutional error occurred in the state court, the court may not grant relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008).
In his petition, Petitioner makes the following claims: (1) trial counsel was ineffective for pursuing a strategy that presumed Petitioner had sexual intercourse with the victim; (2) trial counsel was ineffective on direct appeal for failing to present evidence that the victim had sexual contact with another person prior to the assault in order to explain bodily trauma; (3) counsel, at both the trial and appellate levels, was ineffective for failing to object to inconsistencies between the charges as filed and the evidence presented against Petitioner;*fn3 and (4) direct appeal counsel was ineffective for failing to challenge the sufficiency of the evidence used to find him guilty of the sexual offenses. Prior to discussing these claims, the court will set forth the standard for reviewing ineffective assistance of counsel claims.
A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees an accused in a criminal prosecution the right to assistance of counsel for his defense. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See also Wiggins v. Smith, 539 U.S. at 510, 521 (2003) (setting out the Strickland test); Williams, 529 U.S. at 390-91 (same). The first prong of the Strickland test requires a defendant to establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. It follows that when a petitioner claims that his counsel failed to raise a claim that the court determines to be meritless, habeas relief under Strickland is not available. See Strickland, 466 U.S.at 691 (failure to pursue "fruitless" claims "may not be challenged as unreasonable."); see also United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999) (stating counsel cannot be deemed ineffective for failing to raise a meritless claim). A court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;" that is, the petitioner must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Strickland, at 688-89, 690-92. The question is not whether counsel did not err, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place of counsel's conduct. Id. To that end, a court must conduct an objective review of counsel's performance measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time. Strickland, at 686; Wiggins, 539 U.S. at 522-27; see also Bobby v. Van Hook, - U.S. -, 130 S. Ct. 13, 16-20 (2009).
The second prong of Strickland requires a petitioner to show that "the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. To prove prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. This standard "is not a stringent one;" it is less demanding than the preponderance standard. Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). Further, a reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. Strickland, 466 U.S. at 697. If it is easier to dispose of an ineffectiveness claim for lack of requisite prejudice, that course should be followed. Id.
In addition, the reviewing court must evaluate counsel's performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs v. Horn, 395 F.3d 92, 106-07 (3d Cir. 2005). It is the petitioner's burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
At the time the state courts reviewed the claims that Petitioner's counsel was arguably ineffective, Strickland's familiar two-pronged test was the "clearly established federal law" applicable to ineffective assistance of counsel claims. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Thus, under § 2254(d)(1), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court's decision involved an unreasonable application of Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Further, under § 2254(d)(2), the relevant inquiry is whether the state court made unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel. Bond, 539 F.3d at 279.
Finally, Petitioner's claims of ineffective assistance of appellate counsel must be examined under the same Strickland standards cited above: 1) whether counsel's performance was unreasonable; and 2) whether counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. If a court finds no merit in a claim of ineffective assistance by trial counsel, appellate counsel cannot be found ineffective for failing to raise those same meritless issues on appeal. See United States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) ("When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel's failure to raise it does not constitute constitutionally ineffective assistance of counsel.") (citations and quotations omitted).
B. Ineffectiveness for Pursuing a Strategy that Presumed Petitioner Had Sexual Intercourse with Victim
Petitioner first claims that trial counsel was ineffective for pursuing a defense strategy of consent that presumed that he had sexual intercourse with the victim. Upon review, the court finds Petitioner is not entitled to relief on this claim.
The court notes the following background on this issue with respect to the state court record. Initially, from an overall review of the trial transcript, it is noted that trial counsel did not argue at any point during the trial that Petitioner had sexual intercourse with the victim. (See Doc. 17-1 at 120-259, N.T. Trial 7/6-9/2004.) Rather, trial counsel's questioning of each relevant witness suggested that Petitioner's version of the events in question was different from that of the victim, not simply that sexual intercourse had occurred and that it was consensual. (See id.) In fact, Petitioner testified as to his version of the events. Specifically, Petitioner testified that he and the victim were talking in the house, then went upstairs to her bedroom and kissed. (Doc. 17-1 at 222-23.) He stated that the victim patted him on his stomach and put her hands down his pants where they may have brushed by his penis. (Id. at 223.) He stated that they then fell asleep until he was awoken by a phone call and then he left. (Id.)
During her closing argument, Petitioner's trial counsel made this argument using Petitioner's version of the events:
[Petitioner] told you that when he got into her bedroom, he got on the bed and they fell off, and he told you he didn't observe any injuries on [the victim]. He didn't slide off the bed. And what injuries did she have? She had two superficial scrapes on her neck and head swelling on the side, redness. Concussion could also be caused by falling off and hitting your head.
[Petitioner] told you he was in a good mood. She was in a good mood. Giggling going on. They are having a good time. Some kissing going on. These are not easy or comfortable things to talk about, but [Petitioner] did. I have to do the same. [Petitioner] indicated to you as they were kissing, he got sexually aroused, an erection. She was patting him on the stomach, touched him on the penis.
What happens to a man when he's sexually aroused? He has an erection. There's some seminal fluid that's emitted. The serologist told you that any seminal fluid contains spermatozoa. How did the semen end up on her chest? [Petitioner] is honest. He said I don't know. I know she touched me.
[I]t's certainly feasible that after she touched him, that there was some minor seminal fluid on her hands and that she ...