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Lenhart v. Rozum

United States District Court, W.D. Pennsylvania

February 28, 2014



ARTHUR J. SCHWAB, District Judge.

This habeas case, filed pursuant to 28 U.S.C. § 2254, was only recently transferred to this author after the Honorable Kim R. Gibson recused himself. ECF No. 60. Regrettably, this case has been pending for a long time due, in no small part, to the failure of the Office of the Somerset County's District Attorney to file an adequate answer and/or to obey orders of the Court.

Randy Ross Lenhart ("Petitioner") was convicted of Unlawful Restraint, Simple Assault and Resisting Arrest in connection with his driving a teenaged girl around the area of Somerset, Pennsylvania, traveling through both Somerset and Westmoreland Counties. The crimes occurred in January 2003. The victim, Carla Humberson, testified at Petitioner's trial and described her actions in repeatedly asking Petitioner to either take her home or take her to her sister's home, and Petitioner's repeated refusals to comply. The victim testified that at one point, she attempted to get out of the car but Petitioner threatened her with a knife. State police troopers who effectuated Petitioner's arrest testified at Petitioner's trial as to how Petitioner fought their attempts to handcuff Petitioner. Petitioner did not take the stand to testify at his trial due to a 1980 conviction for rape. Having heard all of the testimony, the jury convicted Petitioner of all three criminal charges. Petitioner now brings the present federal habeas Petition pursuant 28 U.S.C. § 2254 in order to challenge those convictions. Because Petitioner has procedurally defaulted all but two of his claims, he fails to show entitlement to relief. As to the two claims that Petitioner did not procedurally default, Petitioner fails to show that the State Courts' adjudication of those claims constituted a disposition that was contrary to or an unreasonable application of United States Supreme Court precedent. Accordingly, the Petition is denied.


In its opinion affirming the denial of post-conviction relief, the Pennsylvania Superior Court recounted the facts of this case as follows:

[In] the late evening hours of January 22, 2003, [Appellant] went to the residence of Elizabeth Barron, in the Village of Friedens, [] in Somerset County, and spoke to Barron's teen-aged daughter, Carla Humberson. At the time, Barron was at work. Both women knew [Appellant] because Barron had lived for a time with [Appellant's] sister. Humberson informed [Appellant] that her mother was not home and went to her bedroom. At approximately 3 to 4:00 A.M. on the morning of January 23, 2003, [Appellant] returned to the home and awakened Humberson telling her that he had left her younger brother [who was about 15 years old at that time] at a local Sheetz store and that he needed her to accompany him to find her brother. Humberson accompanied [Appellant] because she was concerned about the boy, for whom she was responsible because their mother was at work, although she was uncomfortable being with [Appellant].
While traveling from Friedens into Somerset, [Appellant] traveled on back roads, indicating that he was afraid the police were looking for him [at the time, Petitioner was on parole from his 1980 rape conviction]. They arrived in Somerset, drove around the Sheetz parking lot and left again, this time traveling to [Appellant's] home in Bakersville, also in Somerset County. [Appellant] went into the house, saying he had to plug in his electronic monitor, while Humberson stayed in the car. When [Appellant] returned to the car, Humberson asked him to take her home. [Appellant] asked her if there was anyone with whom she could stay in Bakersville but she said no. Humberson testified that she was afraid she would get hurt if she got out of the car. [Appellant] drove off, taking more back roads, until they arrived in Donegal, where she recognized the BP gas station. [Appellant] told her that he would drop her off there and she could call her mother, but when they arrived at the gas station [Appellant] stated that the police were there and kept driving.
Humberson asked [Appellant] to drop her off at her sister's home in Mt. Pleasant and pointed out the road where her sister lived. [Appellant] said no, that he would rather speak to Barron face to face when he returned Humberson home. At a stop light, Humberson attempted to get out of the car but [Appellant] produced a knife and placed it near her leg. Humberson stated that [Appellant] also said, "Don't get out, don't make a scene. I don't want to hurt you."
[Appellant] kept driving and got lost. Humberson tricked him into going back toward Somerset and, when they arrived back at [Appellant's] house, he circled around it to make sure the police were not present. After stopping for gas, [Appellant] continued to drive toward Somerset until he struck a snow bank and the car became disabled. [Appellant] coasted the car down a hill and Humberson located a home at which a friend lived. She asked to go in and call her mother and, after arguing with her, [Appellant] accompanied her to the home. Neither party told the residents of the home [whose last name was Stahl] what had been going on and Humberson stated that she did not make a plea for help because she was afraid. She called her mother who told her that the police were at the Barron home [because the mother had reported Humberson missing]. She arranged to meet her mother at [Appellant's ] car. When she told Appellant that the police were at Barron's home, [Appellant] started getting agitated.
Barron arrived followed by Trooper Durbin. By this time it was daylight. Derbin testified that [Appellant] was seated inside a white Grand Am and Humberson was standing outside the car appearing to be agitated and in a hurry to get to Barron's car. He stated [that] Barron was yelling at [Appellant] who alighted from the car. The Trooper took Humberson aside to question her about the incident. After hearing Humberson's version of the events and verifying that she did not know where the knife was, Derbin evaluated the situation and told Humberson and Barron to get into Barron's car. He told [Appellant] to stay out of his car and had him produce his driver's license, then called for assistance.
While waiting approximately 20 minutes for assistance, Derbin noted that [Appellant] was becoming more agitated. When Trooper Domen arrived, Derbin briefed him and both approached [Appellant], telling him to put his hands on the roof of his car. As they told him they were taking him back to the barracks and sought to place him in handcuffs, [Appellant] removed his hands from the roof and attempted to flee. The Troopers held onto [Appellant] as they struggled from [Appellant's] car onto the hood of one of the police cars then out into the middle of the road. The Troopers attempted to use pepper spray but [Appellant] continued struggling and swearing at them. [Appellant] regained his feet and all three men ended up on the hood of Barron's car and then rolled into a snow bank. [Appellant] lay in the snow, face down, with his arms under him so that the Troopers could not handcuff him. They attempted to use pressure points to subdue him to no avail. They attempted to use the pepper spray again until it froze in the 5 degree cold. The Troopers kept [Appellant] pinned to the ground until Trooper Thomas and Corporal Bowman arrived. All four Troopers had to assist to get [Appellant] handcuffed. The struggle with [Appellant] lasted 15 to 25 minutes.
During the pat-down search prior to [Appellant's] attempt to flee, a screwdriver and roll of duct tape were recovered from his jacket pocket. After [Appellant] was subdued, while preparing to transport [Appellant] to the police barracks, Corporal Bowman asked [Appellant] for permission to search his car. After Appellant [sic] consented to the search verbally, the knife was found on the floor of the back of [Appellant's] car, behind the driver's seat.
By verdict entered October 24, 2003, [Appellant] was convicted by a jury of Unlawful Restraint, a felony of the second degree, Simple Assault, a misdemeanor of the second degree, and Resisting Arrest, also a misdemeanor of the second degree. On October 18, 2003[, Appellant] was sentenced on all three charges to an aggregate sentence of not less than 6 years nor more than 14 years in a State Correctional Institution.

Superior Court slip op., ECF No. 28-1 at 220 to 223 (footnotes omitted) (quoting from PCRA Trial Court opinion, 10/31//08, at 2 to 5).


At trial Petitioner was represented by the Somerset Public Defender's Office in the person of Attorney Michael Kuhn, apparently a part time employee of that office with his own private practice as well. Attorney Kuhn also represented Petitioner on direct appeal.[1] The Superior Court affirmed the conviction. ECF No. 29-1 at 133 to 144. On January 15, 2005, the Pennsylvania Supreme Court denied the Petition for Allowance of Appeal. ECF No. 40 at 4 to 5.

On January 7, 2005, Petitioner filed a Post Conviction Relief Act ("PCRA") Petition on the pre-printed form utilized in the State Courts. ECF No. 28-1 at 232 to 251. Petitioner raised many issues in the PCRA Petition and on January 11, 2005, Attorney Joseph Policicchio was appointed to represent Petitioner in the PCRA proceedings.[2] Evidentiary hearings were conducted by the PCRA trial judge, who was also the trial judge who presided over Petitioner's criminal trial and sentencing. The PCRA petition was denied by the PCRA trial court. Petitioner, through Attorney Policicchio, filed an appeal to the Superior Court. Attorney Policiccihio filed his Concise Statement of Matters Complained of On Appeal ("the Concise Statement") on October 6, 2008.[3] The PCRA Trial Court issued its opinion explaining its denial of PCRA relief. ECF No. 29-1 at 1 to 7. In the appellate brief filed in the Pennsylvania Superior Court, Attorney Policicchio winnowed the issues down to just two issues, namely:

I. Was trial counsel ineffective in failing to file a suppression application to challenge the search of Appellant's vehicle and in failing to object to certain items at trial which were not admitted into evidence?
II. Was trial counsel ineffective by failing to call as witnesses various individuals who were disclosed to trial counsel by Appellant, in particular one Dustin Barron?

ECF No. 28-1 at 223 to 224. The Superior Court affirmed the denial of PCRA relief. ECF No. 28-1 at 220 to 230. Petitioner, through Attorney Policicchio, then filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which denied it on October 7, 2009.

Petitioner then initiated the present proceedings in this Court. He filed a Petition for Writ of Habeas Corpus, ECF No. 5, on December 16, 2010. He then filed an Amended Petition on January 10, 2011. Although he entitled it an Amended Petition, the Court deems both the Petition and the Amended Petition taken together to constitute the effective Petition as it is clear that by means of the Amended Petition, Petitioner did not intend to supplant the Petition but merely to supplement the Petition.

The District Attorney was ordered to file an Answer, ECF No. 8, but failed to do so, requiring the Court to issue an Order to Show Cause. ECF No. 11. The District Attorney filed a response to the Order to Show Cause, ECF No. 12, in which the District Attorney's Office cursorily addressed the Petition, asserting that Petitioner has not shown he exhausted his state court remedies. ECF No. 12 at 3. The Court then ordered the District Attorney's Office to file a fuller answer and to cause the original State Court record to be transmitted to this Court. ECF No. 13. The District Attorney's Office filed an Answer, ECF No. 15, which again solely addressed the defense of non-exhaustion. Id . at 6 to 7 ("Since the exhaustion issue is dispositive at this point, respondent will not address the merits of petitioner's claims unless this Court directs to the contrary."). At this point the case was referred to a different Magistrate Judge. ECF No. 16. Petitioner filed a Traverse, ECF No. 17. The District Attorney was again ordered to cause the original State Court record to be transmitted to this Court. ECF No. 20.

On January 17, 2013, Petitioner filed a Motion for Judgment on the Pleadings. ECF No. 21. The following day the Court ordered the District Attorney's Office to file a response by February 18, 2013. Subsequently, Petitioner filed a brief in support of the Motion. ECF No. 22. The District Attorney's Office failed to file its response to Petitioner's Motion for Judgment on the Pleadings and consequently, Petitioner filed a Motion for Default. ECF No. 23. The District Attorney's Office, now occupied by a different District Attorney, filed a Response, explaining the failure of the District Attorney's Office to respond to Court orders by noting that "all emails on this matter were sent to Attorney Spangler's [i.e., the former District Attorney] email account and not forwarded to anyone's attention." ECF No. 24 at 1. Catherine Ann Primavera-Zakucia of the Somerset County District Attorney's Office entered her appearance on behalf of the Respondents. ECF No. 25. The District Attorney's Office then filed copies of much of the State Court record. ECF Nos. 28, 29, and 30.

Petitioner filed a Renewed Motion for Sanctions. ECF No. 31. The Court denied Petitioner's Renewed Motion for Sanctions, his Motion for Judgment on the Pleadings and other various motions. ECF No. 32. Petitioner also filed a Motion for Appointment of Counsel, ECF No. 33, which the Court denied. ECF No. 34. The Court then ordered the District Attorney's Office to file a more complete Answer and specifically directed the District Attorney's Office to address Petitioner's contentions regarding his excuse for any procedural default and to also address Petitioner's claims on the merits. ECF No. 35. The District Attorney's Office requested a 30 day extension of time in which to file the more complete Answer, ECF No. 39, which was granted, with the caveat that no further extensions would be granted. The District Attorney's Office filed the more complete Answer on September 11, 2013. ECF No. 40.

Shortly thereafter, Petitioner filed two motions on the same day, a Motion for Expansion of the Record, ECF No. 41, and a Motion to Strike the more complete Answer that had been filed at ECF No. 40. ECF No. 42. The Court denied Petitioner's Motion to Strike and directed a response from the District Attorney's Office to Petitioner's Motion for Expansion of the Record. ECF No. 43. The District Attorney's Office filed its response. ECF No. 45. The Court then granted in part and denied in part, Petitioner's Motion for Expansion of the Record. ECF No. 46. The Court granted the Motion to the extent that the Respondents were required to provide to Petitioner and this Court, transcripts of the closing arguments and the trial Court's jury instructions but denied it in all other respects. ECF No. 46.

Petitioner then filed an Affidavit in support of the habeas Petition. ECF No. 53. Petitioner also filed Exhibits in Support of the Petition. ECF No. 54. Petitioner also filed a Motion to allow the transcripts of his 1980 trial for rape to be included in the record of this case. ECF No. 55. The Court ordered a response from the District Attorney's Office to the Petitioner's Motion to Allow the 1980 transcripts. The District Attorney's Office filed a Response, opposing the addition of the 1980 transcripts. ECF No. 56. The Court denied Petitioner's Motion to include the 1980 transcripts. ECF No. 57. The Petitioner then filed another exhibit in support of the Petition, which was a sample contract entered into by those required to undergo sex offender's treatment. ECF No. 59.

As noted above, the Honorable Kim R. Gibson, recently recused himself from this case on January 29, 2013. ECF No. 60. The case was then assigned to this author.

On February 21, 2013, Petitioner filed a Motion for Order Directing DNA testing on evidence from his 1980 rape conviction, ECF No. 62, and a Brief in Support. ECF No. 63.


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 enacted on April 24, 1996. Because Petitioner's habeas Petition was filed after its effective date, AEDPA is applicable to this case. Werts v. Vaughn , 228 F.3d 178, 195 (3d Cir. 2000).

Where the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the ...

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