MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
NORA BARRY FISCHER, District Judge.
It is respectfully recommended that the petition for a writ of habeas corpus filed by Petitioner, John Alexander Snyder, be denied and that a certificate of appealability be denied.
A. Relevant Background
In 2008, Petitioner was charged in the Court of Common Pleas of Warren County with committing numerous sexual offenses against his daughter Jessica. Her mother, Jennifer Snyder, was married to Petitioner but they were separated and did not live together. Jury selection in that criminal case was scheduled for April 6, 2009. In the early morning hours of April 5, 2009, Jessica was at her mother's home, which is located at 1108 Madison Avenue in Warren, Pennsylvania. She and her maternal grandmother, Lucille Woods, were awake at around 1:35 a.m. and on the first floor of the home when they heard someone smashing out the windows of Jennifer's van, which was parked in the driveway of the home. Jessica called 911 and told the dispatcher that Petitioner was the vandal. Lucille also spoke to the dispatcher.
Officer Paul Reinken responded to the scene and observed that three of the windows in Jennifer's van had been destroyed. He interviewed Jessica and Lucille. Afterwards, Petitioner was charged with one count of Criminal Mischief for vandalizing the van, and one count of Retaliation Against a Witness (Jessica was scheduled to testify against him at his upcoming criminal trial). Those two charges were filed at Criminal Docket No. CP-62-199-2009 in the Court of Common Pleas of Warren County.
Petitioner's trial was held on March 19, 2010. The Honorable Maureen Skerda presided. Public Defender John Parroccini, Esq., represented Petitioner. Jessica Snyder and Lucille Woods were two of the prosecution's witnesses. Jessica testified on direct review that as soon as the incident happened her grandmother screamed to her "it's John [Petitioner]. Call 911." (SCR at 321). She said that when she looked out the front door she "saw John running, like away from the house and, like, towards his car. That [sic] was parked directly under the street light." (SCR at 327). The prosecutor asked Jessica how she knew it was Petitioner's car, and she replied: "Because, him and my mom bought it, I don't remember how long it was, before he moved out. But, I knew what the car was. And, it was parked outside of our house like every day when he still lived there." (SCR at 328). Jessica also testified that Petitioner "yelled at me and screamed[, ]" and that she got a good look at his face. She stated that there was no question at all that the vandal was Petitioner. (SCR at 328-29).
Attorney Parroccini attempted to show during his cross-examination of Jessica that she merely assumed that the vandal was Petitioner. Jessica acknowledged that as soon as she heard the commotion outside she immediately suspected that he was responsible. (SCR at 332, 338). Her suspicion was confirmed, she stated, when "[h]e yelled that he was going to kill me[, ]" and "looked right up at the porch where my grandma was." (SCR at 334). Parroccini then asked Jessica about testimony that she had given at a hearing that took place a few days after the incident on April 9, 2009. He pointed out that although she now was indicating she observed Petitioner from the front, during that hearing she had stated that she saw him from the side and as his back was turned towards her. Jessica clarified that she saw "[t]he side of his face." (SCR at 335). On redirect examination, Jessica testified that she was "absolutely certain" that the vandal was Petitioner and that she had become sure of that fact "[w]hen he was running from the van... to his car on Hammond." (SCR at 241).
Lucille Woods testified that as soon as the vandalism started she called to Jessica to dial 911 because Petitioner was smashing out the windows in the van. (SCR at 247). She said that she was absolutely certain that it was Petitioner and that she got a "direct look when he was smashing the back of the window on [Jennifer's] van." (SCR at 351-52). She also said she saw him running from the house to his car. (SCR at 353).
Attorney Parroccini attempted to demonstrate through his cross-examination of Lucille that she was only able to observe the vandal for a few seconds. (SCR at 357-58). He also attempted to point out a purported inconsistent statement she had made at the April 9, 2009, hearing about observing Petitioner from a window in the living room as opposed to a "side" window. Lucille clarified that the "side" window she had referenced was located in the living room. (SCR at 359-60).
Petitioner's fiance, Deidre Cayre, testified for the defense. She stated that she was with Petitioner at the time of the incident. They were at his mother Connie Snyder's home. Connie lived on Pioneer Avenue, which is located not far from Jennifer's home on Madison Avenue. Deidre stated that Petitioner left Connie's home at about 1:15 a.m. to drop his daughter Natasha off at her mother's home on Buchanan Street, which is located three blocks away. Deidre testified that he returned to his mother's home on Pioneer Street a few minutes later. She stated that she and Petitioner were having sexual intercourse at around the time the vandalism occurred at Jennifer's home. (SCR at 377-78, 382-83).
Petitioner's mother, Connie Snyder, also testified for the defense. Her testimony was inconsistent with Deidre's. She stated that Petitioner left to take Natasha home at 12:15 a.m. and that he came home "just a few minutes later." (SCR at 367). On cross-examination, she admitted that at the April 9, 2009, hearing she testified that Petitioner had left her house at around 1:20 a.m. (SCR at 370).
Petitioner's other daughter, Natasha Snyder, testified that Petitioner took her home around 1:15 a.m. the morning of April 5, 2009. (SCR at 393). On cross examination, she acknowledged that Petitioner drove her in his red car. (SCR at 398). She also stated that he was drinking a beer. (SCR at 399).
Finally, Officer Reinken testified that he drove the route the prosecution was claiming Petitioner took the morning of the incident (from Connie's home, to Natasha's home, to Jennifer's home, and then back to Connie's home). He stated that he did it twice around 2:00 a.m. and that it took him just over nine minutes once, and just over ten minutes the other time. (SCF at 403-08). Thus, if Petitioner did leave Connie's home at around 1:15 a.m. (as both Deidre and Natasha stated), he would have had time to drop Natasha off and then be at Jennifer's home at the time the vandalism occurred.
The jury found Petitioner guilty of both crimes. The trial court imposed monetary penalties for the crime of Criminal Mischief. For the crime of Retaliation Against a Witness or Victim, the court sentenced Petitioner to a term of imprisonment of 11 months to 2 years, to be served consecutive to a sentence he was serving for his conviction in the other criminal case (the 12-36 months' imprisonment he received on his conviction of Indecent Assault of Person Less than 13 years of Age (see footnote 2)). (SCR at 144).
Petitioner, who was dissatisfied with Attorney Parroccini's representation, did not pursue a direct appeal. Instead, he immediately filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (SCR at 138-43). He claimed that Parroccini provided him with ineffective assistance for failing to call three witnesses for the defense: his father, an unidentified State Trooper, and another unidentified individual. These witnesses, Petitioner contended, would have proved his innocence.
The PCRA court (Judge Skerda) appointed Nicole Sloane, Esq., to represent Petitioner in the PCRA proceeding. On September 13, 2010, Petitioner, through Sloane, filed a counseled PCRA motion and raised the following three claims of ineffective assistance of trial counsel:
PCRA Claim 1: Attorney Parroccini failed to present evidence pertaining to the statements made during the 911 call. Attorney Parroccini's failure to point out discrepancies between the 911 tape, in which Lucille [Wood] admitted she could not see the vandal, and trial testimony, in which Lucille said she observed Petitioner, was not designed to effectuate the Petitioner's interests. Counsel's unreasonable performance prejudiced Petitioner because the jury did not have the opportunity learn that the witnesses merely believed that the assailant must be Petitioner and did not actually see the assailant at the time the vandalism took place. Further, had Attorney Parroccini properly impeached Lucille's testimony on this point, the jury would have likely questioned the veracity of all of Lucille's testimony.
PCRA Claim 2: Attorney Parroccini failed to subpoena a Pennsylvania State Police trooper who could have testified about the vandalism in the neighborhood where the victim's vehicle was vandalized. Attorney Parroccini knew about the other acts of vandalism, knew that the State Police had information pertaining to the vandalism, and failed to subpoena both the trooper and the evidence. Attorney Parroccini's failure to call the trooper was not designed to effectuate Petitioner's interests. Counsel's unreasonable performance prejudiced Petitioner by denying the jury from hearing about an alternative theory behind the vandalism that did not include Petitioner.
PCRA Claim 3: Attorney Parroccini failed to object when the prosecutor elicited testimony by the investigating officer that as a result of the alleged vandalism, the officer "filed for violation of protection from abuse order." Further, Attorney Parroccini pointed out that at a previous " revocation hearing , " Jessica testified she observed Petitioner from the back. Attorney Parroccini had no reasonable basis for not objecting to the references to prior crimes and bad acts. Allowing such references were not designed to effectuate Petitioner's interests. Counsel's unreasonable performance prejudiced Petitioner because evidence that the defendant engaged in other criminal behavior before the instant offense made the jury more likely to believe Petitioner committed the crimes charged. Additionally, Attorney Parroccini had no reasonable basis for failing to ask for a cautionary instruction.
(SCR at 192-93 (emphasis in original)).
The PCRA court scheduled an evidentiary hearing on Petitioner's claims. Prior to that proceeding, Petitioner subpoenaed Trooper Gross of the Pennsylvania State Police to testify in support of Claim 2. The Commonwealth filed a motion to quash (SCR at 77) and on October 5, 2010, the PCRA court presided over an in-chambers hearing in which Trooper Gross testified that he had no knowledge regarding vandalisms that might be relevant to Petitioner's case. (SCR at 476). On that same date, the PCRA court issued an order that the subpoena be quashed. (SCR at 213).
The PCRA hearing was held on October 15, 2010. Petitioner and Attorney Parroccini testified. On October 29, 2010, the PCRA court issued a Memorandum Opinion in which it denied each of Petitioner's claims on the merits. (SCR at 216-23).
Petitioner, through Attorney Sloane, filed an appeal with the Superior Court of Pennsylvania. In that appeal, Petitioner contended that the PCRA court erred in denying Claims 1 and 3. No issue was raised regarding the denial of Claim 2. (SCR at 243-44).
On June 24, 2011, the Superior Court issued a Memorandum in which it affirmed the PCRA court's decision to deny relief. It adopted in full those portions of the PCRA court's Memorandum Opinion in which it addressed Claims 1 and 3 (the only claims raised on appeal). (SCR at 269-72).
On or around August 11, 2011, Petitioner filed a second pro se PCRA motion. (SCR at 257-67). He claimed that Attorney Sloane was ineffective as his PCRA counsel for failing to convince the PCRA court that he was prejudiced when the jury heard of his prior bad acts. He also claimed that Sloane was ineffective for failing to raise the claim that Attorney Parroccini was ineffective for not requesting that the trial court read a cautionary instruction to the jury regarding witness identification in accordance with Commonwealth v. Kloiber , 106 A.2d 820 (Pa. 1954).
On October 18, 2011, the PCRA court notified Petitioner that it was going to deny his second PCRA motion without a hearing because his claims had no merit. It advised him that he had 20 days to show cause why the motion should not be denied. (SCR at 277). Petitioner filed a response in which he argued that the PCRA court should not have considered the merits of the claims he raised in his second PCRA motion. He contended that Attorney Sloane should have withdrawn as his counsel once he notified her that he was dissatisfied with her representation and, therefore, the PCRA court should reinstate his appeal rights nunc pro tunc in his first PCRA proceeding. (SCR at 287-90).
On November 29, 2011, the PCRA court issued an Order in which it denied the second PCRA motion. It was not persuaded by the arguments that Petitioner made in his response to its notice of intent to dismiss. (SCR at 293). Petitioner then filed a pro se appeal to the Superior Court. In his subsequent Concise Statement of Matters Complained of on Appeal (SCR No. 337-39), he claimed the PCRA court erred in denying his second PCRA motion. He also raised numerous new claims (many of which he raises in his federal habeas petition), but in Pennsylvania a litigant may not raise new claims for the first time on appeal. Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Moreover, Petitioner subsequently abandoned that appeal and, on December 5, 2012, the Superior Court denied it for failure to file a brief. (SCR, unnumbered second-to-last page).
In September of 2012, approximately three months before the Superior Court issued its order denying Petitioner's appeal, Petitioner filed with this Court his petition for a writ of habeas corpus pursuant to the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This Court stayed the case pending the completion of Petitioner's appeal before the Superior Court. [ECF No. 2]. On January 9, 2013, the Court lifted the stay. Respondents subsequently filed their Answer [ECF No. 14], to which Petitioner filed a Reply [ECF No. 17].
Petitioner raises seven grounds for relief and numerous subclaims. In Ground One, he contends: "actual innocence, miscarriage of justice, denial of due process in violation of U.S. Constitutional Amendments 1, 4, 5, 6, 9, 14." In support of this claim, he alleges that the prosecution committed Brady violations and improperly manipulated the jury during the selection process. (He raises these same claims in more detail in Ground Three). Petitioner also complains about his "malicious assignment" to the Cambria County prison and the alleged "failure to provide timely and necessary medical treatment of a dislocated shoulder incurred at Cambria Co. Prison." He further argues that the separation of powers doctrine was violated because the District Attorney "approv[ed] of criminal informations[.]" [ECF No. 1 at 5].
In Ground Two, Petitioner contends that the "Pennsylvania legislature fraudulently abolished the Constitutional requirement of an indicting grand jury and [unintelligible] as to prosecution by criminal informations[, ]" and that, as a result, he "was denied due process of law by proceeding in a tribunal without jurisdiction in violation of [his] rights and liberty interests secured by the U.S. Constitution[al] Amendments 1, 5, 6, 9, 14." [ECF No. 1 at 7].
In Ground Three, Petitioner repeats many of the grounds for relief that he raised in Ground One and elaborates upon them. He contends the district attorney "was caught red handed' tampering with/manipulating petitioner's jury" to exclude males. Petitioner also contends that the prosecution withheld exculpatory evidence of similar acts of vandalism in violation of Brady. He argues that officials in Warren County, the District Attorney, and the Court of Common Pleas "maintain undue control and influence over Public Defender and his assistance and other court appointed counsel[.]" Petitioner further argues that the "District Attorney, knowing that he had been caught in prosecutor misconduct - jury tampering [-] persisted in prosecuting petition in violation of the double jeopardy clause of the Pennsylvania Constitution, Article I, § 10 and U.S. Constitution Due Process and Double Jeopardy Clauses of Amendments 5, 6, 14 thereto." [ECF No. 1 at 9].
In Ground Four, Petitioner raises the following claims of ineffective assistance of counsel:
(a) Public Defender counsels failed to properly investigate petitioner's case and call available witnesses who were ready and willing to testify (including but not limited to petitioner) in petitioner's behalf and defense and/or to cooperate in petitioner's attempts to present a viable defense to the jury.
(b) Public defender counsel failed to challenge and impeach documented discrepancies in victim-witness statements and 911 transcript conversations, thereby allowing the district attorney to use known perjured testimony to obtain a conviction and prejudice petitioner.
(c) Public defender counsel failed to object (or request cautionary-corrective jury instruction) as to testimony/offers to the effect exposing petitioner's "prior bad" acts to the jury which prejudiced petitioner and which likely were deliberately and schematically induced by district attorney through one or more Commonwealth witnesses.
(d) Public defender counsel failed to demand discovery and [B]rady materials or to effect remedies for Brady violations.
(e) Public Defender failed to file post conviction motions.
(f) Public Defender failed to ensure that petitioner would be appointed non-conflicted appeal counsel.
(g) Public Defender failed to act as sentencing counsel and failed to ensure that Appellant would be given exercise opportunity for allocution.
(h) Public Defender Chief failed to timely remove ineffective counsel and personality conflict impeding his performance and failed to arrange for court ot [sic] appoint[ed] non-conflict counsel instead of Chief Public Defender.
(i) Public Defenders failed to timely invoke double jeopardy bars to further prosecution including but not limited to bars from prosecutorial misconduct - Jury Tampering (2x).
(j) PCRA Counsel failed to investigate petitioner's case and raise, prosecute all meritorious issues in petitioner's case, including but not limited to double jeopardy, [B]rady violations, ineffectiveness.
[ECF No. 1 at 10]. The allegations that Petitioner raises in Grounds 4(b) and (c) are the same as the ones he raised in PCRA Claims 1 and 3. As explained below, those two claims - which he raised in his first counseled PCRA motion and in his subsequent appeal to the Superior Court - are the only claims that Petitioner exhausted in state court.
In Ground Five, Petitioner contends that he "was denied due process and subjected to double jeopardy and illegal sentence enhancement in violation [of] U.S. Constitution Amendments 5, 6, 14 to United States Constitution." In support of this claim, he contends that when he was imprisoned at SCI Cresson, he refused to admit his guilt or submit to treatment programs because he was challenging his convictions. He asserts that in retaliation, the Warden caused him to be transferred to the Cambria County Jail, which interfered with his ability to litigate his cases.
In Ground Six, Petitioner contends that he "was denied a fair and impartial judge and tribunal in violation of Amendments 1, 5, 6, 14 to the United States Constitution" ...