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Louis Paolicelli v. Gerald Rozum; the Attorney General

July 17, 2012

LOUIS PAOLICELLI, PETITIONER,
v.
GERALD ROZUM; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; AND THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

OPINION

Louis Paolicelli, (APetitioner@), a state prisoner, was convicted in a jury trial of one count each of: Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(a)(1); Indecent Assault, 18 Pa..C.S.A. § 3126(a)(1); Corruption of Minors, 18 Pa.C.S.A. § 6301 and Endangering Welfare of Children, 18 Pa.C.S.A. § 4304. These convictions arose out of incidents that occurred in June, 2003, involving the Petitioner's then 13 year old step-daughter. At trial, the step-daughter testified against Petitioner. Petitioner did not testify at the trial. Although Petitioner was also charged with rape of his step-daughter, the jury acquitted him of that charge.

Petitioner has filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), attacking his convictions. Petitioner raises three claims of ineffective assistance of counsel. Because the state courts rejected all of the claims on the merits, and because Petitioner fails to show that the state courts= disposition of his claims was contrary to or an unreasonable application of United States Supreme Court precedent, the Petition should be denied.

I. RELEVANT PROCEDURAL HISTORY

Petitioner is proceeding pro se and filed the Petition in November, 2010. ECF No. 3. In the Petition, he raised the following issues:

1) Ineffective assistance of counsel for failing to object where the defendant[']s [i.e., Petitioner's] substantative [sic] right of due process where [sic] violated where the presiding judge was not present during voir dire and defendant did not sign waiver.

2) Trial counsel was ineffective for failing to raise the verdict was against th[e] weight of the evidence.

3) Trial counsel was ineffective in violation of article 1, section 9 of the Pennsylvania Constitution and the 6th and 14th Amendment of the United States Constitution for interfering with defendant[']s right to testify.

ECF No. 3 at 3.

Respondents, represented by the office of the District Attorney of Allegheny County, filed an Answer, arguing, inter alia, that Petitioner failed to show that the adjudication of Petitioner's three claims by the state courts was contrary to or an unreasonable application of then existing United States Supreme Court precedent. ECF No. 10. The Answer was also accompanied by various exhibits from the state court record. The District Attorney also caused the original state court record to be forwarded to the Clerk's Office.

In May 2011, Petitioner filed a Motion for Release from Custody pending determination of this Petition. ECF No. 17. This Court denied the Motion on March 22, 2012. ECF No. 22. Petitioner filed an interlocutory appeal of the order denying his Motion for Release From Custody. ECF No. 23. Such an interlocutory appeal from a non-final order does not divest this Court of jurisdiction to adjudicate the Petition. See, e.g., U.S. v. Amarra-Herrarte, 153 F.App'x 452, 454 (9th Cir. 2005) ("Second, Amarra-Herrarte's interlocutory appeal did not rob the district court of jurisdiction to try the case. His appeal was properly dismissed for lack of jurisdiction because he appealed from a non-final order. An appeal from an unappealable order does not divest a district court of jurisdiction."); U.S. v. Rodgers, 101 F.3d 247, 252 (2d Cir. 1996) ("notice of appeal from a district court order that was non-final did not divest the jurisdiction of the district court").

This case was subsequently reassigned to the undersigned. ECF No. 20. All parties have consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 12, 14.

II. APPLICABLE STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, '101 (1996) ("AEDPA") which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. ' 2254 was effective April 24, 1996. Because the Petition at issue was filed 2010, the ...


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