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Rose v. Varano

United States District Court, Western District of Pennsylvania

March 25, 2014

ANTHONY MICHAEL ROSE, JC-3055, Petitioner,
v.
DAVID VARANO, et al., Respondents.

MEMORANDUM AND OPINION

Robert C. Mitchell United States Magistrate Judge

Anthony Michael Rose has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.[1] For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Petitioner is presently serving a 140 to 280 month sentence imposed following his conviction, by a jury, of burglar and robbery at Nos. CP-02-17880-2008 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on June 24, 2009.[2] An appeal to the Superior Court was filed in which the issues presented were:

I. Should the trial court suppress a prejudicial and unduly suggestive photographic array, when the witnesses are visible to each other when selecting the photographs and the defendant's photograph significantly differs from the other photographs in the array?
II. Is a defendant entitled to an unanimous jury verdict under Article III, §2 of the Sixth Amendment of the United States Constitution and Article I, §6 of the Pennsylvania Constitution?
III. Are an appellant's due process rights violated under the Fifth Amendment of the United States Constitution and Article 1, §9 of the Pennsylvania Constitution and does the trial court abuse its discretion when the trial court schedules a hearing to question a juror regarding his verdict months after the jury was polled and then limits the relevant questions that can be asked of the juror?

On February 4, 2011, the judgment of sentence was affirmed.[3] A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which the question presented for review was:

I. Does due process attach at a Pa.R.A.P. Rule 1926 hearing to correct the record and does the manner in which a Pa.RA.P., Rule 1926 hearing is conducted violate due process when the trial court 1) calls a juror in to testify; 2) refuses to allow the defendant to call relevant witnesses; or 3) refuses to allow the defendant to question witnesses the trial court decides to call during the hearing?[4]

On July 12, 2011, leave to appeal was denied.[5]

On December 20, 2011, Rose filed a PCRA petition, [6] and on July 12, 2012, post-conviction relief was denied.[7] An appeal was filed in the Superior Court in which the questions presented were:

I. Did the Court err or abuse its discretion when it dismissed Appellant's Petition without an evidentiary hearing on Appellant's claim that trial counsel was ineffective for failing to object to the Commonwealth's mischaracterization of a non-existent assault charge amounting to prosecutorial misconduct, said claim not being patently frivolous, is supported by evidence of record, and where a genuine issue of material fact existed which, if proven, would entitle Appellant to relief?
II. Did the Court err or abuse its discretion when it dismissed Appellant's Petition without an evidentiary hearing on Appellant's claim that trial counsel was ineffective for failing to move to exclude or object [to] the use of other crimes, wrongs or acts evidence, specifically the mention of the August 28, 2008 date used at trial and the use of the Supplemental Police Report by Pittsburgh Police Officer Evans where the Commonwealth failed to meet its notice requirement under Pa.R.E. 404(b) regarding this alleged incident, a claim that was not patently frivolous, is supported by evidence of record, and where a genuine issue of material fact existed which, if proven, would entitle Appellant to relief?
III. Did the Court err or abuse its discretion when it dismissed Appellant's Petition without an evidentiary hearing on Appellant's claim that trial counsel was ineffective for failing to move to suppress the Search Warrant issued for the search of 1458 Franklin Avenue, Pittsburgh, PA 15221 conducted on October 29, 2008 based on the staleness of the information contained in the affidavit, a claim that was not patently frivolous, is supported by evidence of record, and where a genuine issue of material fact existed which, if proven, would entitle Appellant to relief?
IV. Did the Court err or abuse its discretion when it dismissed Appellant's Petition without an evidentiary hearing where Appellant's claim that trial counsel was ineffective for failing to ensure Appellant's Constitutionally guaranteed right to be present at the suppression hearing conducted prior to trial, a claim that was not patently frivolous, is supported by evidence of record, and where a genuine issue of material fact existed which, if proven, would entitle Appellant to relief?
V. Did the Court err or abuse its discretion in dismissing the matter without holding an evidentiary hearing when the claims raised were not patently frivolous, were supported by evidence in the record and where genuine issues of material fact existed which, if proven, would entitle Appellant to relief?[8]

On July 15, 2013, the denial of post-conviction relief was affirmed.[9] A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which essentially these same questions were presented.[10] On November 19, 2013, leave to appeal was denied.[11]

In his petition here which appears to be disconnected and difficult to comprehend, Rose appears to allege he is entitled to relief on the following grounds:

I. The verdict was not unanimous, the stenographer's transcript was recorded such that Juror # 12 said "no" when asked if he agreed with the verdict; and thereafter the trial court, months later, held a hearing to question Juror # 12 to "correct" the record - violated petitioner's right to due process of law under the 14* Amendment when it refused to allow the stenographer to testify at this hearing, nor allow petitioner to question this juror.
II. The identification photo array, and the procedure, were unduly suggestive violative of due process; the affiant included false statements in the affidavit of probable cause and search warrant regarding identification, necessitating the need for a "Franks" hearing; particularly in light of the fact he was denied his right to be present at his suppression hearing; and petitioner was denied his right to a fair trial thereby. U.S.C.A. Const. Amend 6; 14 III. Prosecutorial misconduct, "Brady" discovery violations, et al.; a prosecution deliberately undertaken to deprive this petitioner a fair trial. U.S.C.A. Const. Amend 5, 6, 14.
IV. Miss Goldston's testimony was contradictory in conflict with the laws of human experience, insufficient to maintain petitioner's ...

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