United States District Court, M.D. Pennsylvania
Cleveland Butler, Petitioner, Pro se, Frackville, PA.
For PA State Attorney General, Respondent: Dauphin County District Attorney, Dauphin County Courthouse, Harrisburg, PA.
For Dauphin County District Attorney's Office, Respondent: Jason Eugene McMurry, Dauphin County DA's Office, Dauphin County Courthouse, Harrisburg, PA; Joseph P. Cardinale, Jr., Dauphin County Courthouse, Harrisburg, PA.
Kosik United States District Judge.
In this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Cleveland Butler (" Petitioner") challenges his 2000 conviction and sentence in the Court of Common Pleas of Dauphin County, Pennsylvania on numerous counts of sex-related charges and hindering apprehension. Following a jury trial, he was sentenced to 15-30 years imprisonment. He is currently confined at the State Correctional Institution at Frackville, Pennsylvania. The petition is ripe for consideration and, for the reasons that follow, will be denied.
The relevant factual background of this case, as extracted from the November 15, 2010 opinion of the Dauphin County Court of Common Pleas advising Petitioner of the intent to dismiss his petition for relief under the Post Conviction Relief Act (" PCRA"), 42 Pa.C.S.A. § § 9541-9546, is as follows:
After a four day trial in May 2000, a jury found [Cleveland Butler] guilty of seven (7) Counts of involuntary deviate sexual intercourse, (7) counts of statutory sexual assault, seven (7) counts of indecent assault, seven (7) counts of indecent exposure, seven (7) counts of corruption of minors, and one (1) count of hindering apprehension and prosecution, all docketed at 2929 C.D. 1999. The same jury also found Butler guilty of one (1) count each of institutional sexual assault, indecent exposure, and corruption of minors, docketed at 2930 C.D. 1999.
On August 31, [the trial court] sentenced Butler to an aggregate term of fifteen (15) to thirty (30) [years] in a state correctional institution, along with fines and costs of prosecution.
The evidence presented at trial, construed in favor of the Commonwealth as the verdict winner, established the following facts:
In March of 1999, Melanie Grubb, then 15 years old and a juvenile, was detained at the Schaffner Youth Center for violations of probation. (Notes of testimony of Jury, Volume 1, dated May 11-12, 2000 at 62-63). While there, Grubb met Butler, who worked at Schaffner. (N.T. 164-65). Grubb did not know Butler before March 1999. (N.T. I 64). After an orientation period, Grubb was moved to a " pod" on which Butler worked. Id. She began receiving special treatment from Butler, such as extra telephone calls. (N.T. I 64-65).
At some point, Grubb received photographs of herself from her mother in which Grubb was wearing what Butler considered to be provocative clothing. (N.T. 165-68). However, he also made a comment to Grubb about how good she looked in the photographs. (N.T. 170-73). After that, the relationship became romantic in nature, and included writing letters and physical contact. Id. At first, the contact was kissing that took place in the closet, restrooms while Grubb was cleaning, or in the doorway to Grubb's room. (N.T. 166-68).
On one occasion, during " R& R" between 3:00 and 3:30 p.m., Butler went into Grubb's room and performed oral sex on her. (N.T. I 68-70).
On another occasion, Grubb could see Butler masturbating in a classroom across from Grubb's room. (N.T. I 170-73).
After being at Schaffner for some time, Grubb had to appear in court for her probation violation. (N.T. I 74). She was ordered to go to Gaudenzia, a rehabilitation center, for the purpose of addressing her problems without being sent to boot camp. (N.T. I 75). After arriving on approximately May 26, 1999, Grubb received a card from Butler, and left Gaudenzia through a window. (N.T. I 75-76). She went to Butler's house (N.T. I 76), where he asked [Grubb] if the staff at Gaudenzia tested for alcohol. (N.T. I 77). When Grubb told Butler that there was no alcohol testing, they went to a bar and bought alcohol, then returned to Butler's house, drank and had sex. Id. The sex included digital penetration of Grubb by Butler as well as vaginal intercourse. Butler then drove Grubb back to Gaudenzia, dropping her off across the street from the facility. (N.T. I 79, 90).
After being at Gaudenzia for a total of approximately four days, Grubb left again, this time going to the home of a friend. (N.T. I 80-81). After a month later, Grubb was sent back to Schaffner. (N.T. I 80-81). During the month that she was out of detention, she saw Butler on multiple occasions at his home. (N.T. I 80). Generally, Grubb would call Butler and he would pick her up and take her to his home, where they would drink and have sex. (N.T. 81-82). On these occasions, the sex included oral and vaginal sex and digital penetration, and the pair used items such as handcuffs, flavored massage oil, and chocolate syrup. (N.T. I 82-84, 86).
Butler did not return Grubb to Gaudenzia after the first time that she was at his residence. (N.T. I 85). Eventually, however, Grubb's Probation Officer saw her walking down the street and took her into custody. (N.T. I 87). Grubb estimated that she had sex with Butler on five or six occasions after she left Gaudenzia. (N.T. I 87-88).
After her return to Schaffner, Grubb found that her relationship with Butler was not the same. After talking to another girl at Schaffner, Grubb approached the staff and told them about her relationship with Butler. (N.T. I 91). Grubb told Detective Todd Johnson of the Dauphin County Criminal Investigative Division the details of her involvement with Butler. (N.T. 193).
On July 13, 1999, Johnson and other law enforcement officers executed a search warrant for Butler's residence. (N.T. 1181; N.T. II 66). The warrant produced a significant amount of physical evidence corroborating statements made by Grubb, such as handcuffs, flavored massage oil, and chocolate syrup. (N.T. I 185-187). Johnson found Grubb's description of the home to be accurate, " [d]own to the carpet leading to the bedroom." (N.T. II 73).
(Doc. 12-15 at 52-55, Commonwealth v. Butler, No. 2929, 2930 CR 1999 (Dauphin Cty. Ct. Com. Pl. Nov. 15, 2009)).
The jury found Petitioner guilty on all charges. He filed a Post-Trial Motion for Extraordinary Relief based upon purported recantation letters written to him by the victim after the trial. On August 30, 2000, a hearing was conducted. The following day, Petitioner's motion was denied and the trial court imposed the sentence of 15-30 years in prison.
On direct appeal to the Pennsylvania Superior Court, the following grounds were raised:
1. Trial court error when it ruled that letters written by the victim and statements made by the victim were admissible;
2. Trial court error when it failed to grant request for a mistrial when letters written by the victim to the investigating officer and in the Commonwealth's possession were not turned over to Petitioner prior to trial or at the conclusion of victim's direct examination;
3. Court improperly allowed impeachment testimony of Commonwealth witness Lawrence Clark, which was inadmissible since Petitioner had not testified and his credibility was not at issue;
4. Trial court error when it failed to properly address an objection to incorrect dates on the criminal information; and
5. Trial court error when it prohibited Petitioner from introducing a statement by the victim to the investigating detective and prohibited cross-examination of the victim about her poor relationship with her step-father.
On October 17, 2001, the judgment of sentence was affirmed. (Doc. 12-11 at 42-54.) The Pennsylvania Supreme Court denied a request for allowance of appeal on March 6, 2002.
On February 20, 2003, Petitioner filed a pro se petition under the PCRA. Following the appointment of counsel, an amended petition was filed on October 22, 2003. (Doc. 12-12 at 1-43.) Evidentiary hearings were conducted on October 7, 2004 and February 2, 2005. (Id. at 44-89; Doc. 12-13 at 1-94.)
On February 28, 2006, the PCRA court issued an opinion advising Petitioner of the intent to dismiss the PCRA petition. Petitioner filed a motion to proceed pro se and a request for a Grazier hearing, which the court denied on April 7, 2006. On the same date, an order was entered dismissing the PCRA petition.
An appeal from the denial of the PCRA was filed with the Superior Court. On June 29, 2007, the Superior Court remanded the case for purposes of a Grazier hearing, and directed that the trial court take under advisement Petitioner's request for new counsel (Doc. 12-14 at 41-43.) The Superior Court did not reach the merits of the counseled PCRA petition analyzed by the trial court in its February 28, 2006 opinion because on appeal to the Superior Court, Petitioner only raised the issue relating to his pro se status.
On August 24, 2007, the PCRA court set a date for a Grazier hearing. On August 30, 2007, Petitioner filed a " Motion to Withdraw Request to Proceed Pro Se and in the Alternative the Appointment of Conflict Free PCRA Counsel and Nullification of Prior PCRA Proceedings Due to Present PCRA Counsel's Conflicting Interest." A hearing was conducted on September 18, 2007 to determine Petitioner's intentions with respect to representation. Petitioner stated that he did not wish to proceed pro se, but also did not wish to continue with his originally appointed PCRA counsel. As such, new PCRA counsel was appointed. The PCRA court did not address any allegations at this time by Petitioner that his original PCRA counsel had a conflict of interest. Petitioner was informed that his newly-appointed PCRA counsel could raise any alleged ineffectiveness claims to the extent they existed. New PCRA counsel was appointed on September 19, 2007, and an amended PCRA petition was filed on Petitioner's behalf on December 20, 2007. (Doc. 12-14 at 45-55.) The following grounds were raised in the counseled amended PCRA:
1. Whether the PCRA court erred when it determined that trial and appellate counsel were not ineffective for failing to secure the testimony of several character witnesses that were ready, willing and available to testify on behalf of the defendant at the time of trial as to his reputation for good sexual behavior in the community;
2. Whether the trial court erred when it determined that trial and appellate counsel were not ineffective for failing to secure the testimony of two (2) alibi witnesses that were ready, willing and available to testify as to the whereabouts of the defendant on the day of May 29, 1999;
3. Whether the PCRA court erred when it determined that trial and appellate counsel were not ineffective for failing to challenge the sufficiency of the probable cause contained within the search warrant issued to search defendant's residence as the information utilized therein was stale; and
4. Whether the PCRA court erred when it determined that trial and appellate counsel were not ineffective for failing to file a Bill of Particulars requesting that the Commonwealth set forth the dates specific when the alleged crimes were to have occurred.
(Id. at 49.) Despite the filing of this counseled amended PCRA petition, on January 4, 2008, Petitioner filed a Motion to Proceed Pro Se and Request that Leave be Granted to Allow Present PCRA Counsel to Withdraw. On January 17, 2008, PCRA counsel filed a motion to withdraw. Based upon these filings, the PCRA scheduled a Grazier hearing for February 21, 2008. The hearing was conducted and on March 10, 2008, both Petitioner's request to proceed pro se and PCRA counsel's motion to withdraw were granted.
On January 25, 2008, an amended PCRA petition was filed. (Doc. 12-14 at 56-99.) It is unclear if this was prepared and submitted pro se or with the assistance of PCRA counsel prior to his withdrawal. The following four (4) grounds were raised:
1. PCRA court erred when it determined that trial and appellate counsel were not ineffective for failing to secure the testimony of several character witnesses that were ready, willing and available to testify on behalf of the Appellant at the time of trial as to his reputation for good sexual behavior in the community;
2. PCRA court erred when it determined that trial and appellate counsel were [not] ineffective for failing to secure the testimony of two  alibi witnesses that were ready, willing, and available to testify as to the whereabouts of the Appellant on the day of May 29, 1999;
3. PCRA court erred when it determined that trial and appellate counsel were not ineffective for failing to challenge the sufficiency of the probable cause contained within the search warrant issued to search Petitioner's residence as the information utilized therein was stale; and
4. PCRA court erred when it determined that trial  and appellate counsel were not ineffective for failing to file a bill of particulars requesting that the Commonwealth set forth the dates specific when the alleged crimes were to have occurred.
On July 16, 2008, Petitioner filed an Amended Pro Se PCRA Petition. (Doc. 12-15 at 1-50.) In the amended petition, he set forth the following grounds and numbered them as indicated:
Claim #5 Second PCRA counsel, first PCRA counsel, and appellate counsel labored under an actual and/or perception of a conflict of interest; Second PCRA counsel rendered ineffective assistance in failing to raise first PCRA counsel's conflict of interest, and for failing to raise appellant counsel's conflict of interest in violation of Petitioner's rights under the 6th and 14th Amendments of the Constitution ...