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Folino v. Harlow

United States District Court, W.D. Pennsylvania

December 24, 2014

JOHN ORTENZIO FOLINO, Petitioner,
v.
MICHAEL HARLOW (Superintendent, State Correctional Institution at Albion, PA); THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; THE ALLEGHENY COUNTY (PA.) DISTRICT ATTORNEY'S OFFICE, Respondents.

MEMORANDUM OPINION

MAUREEN P. KELLY, Chief Magistrate Judge.

John Ortenzio Folino ("Petitioner") has filed this Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"), seeking to attack his state court conviction for first degree murder for which he was sentenced to life in prison without the possibility of parole. At trial, Petitioner confessed to shooting the victim but claimed that he was so intoxicated that he could not form the intent necessary to satisfy the mens rea element of first degree murder. Petitioner now raises eight claims, five of which are exhausted and three of which are not exhausted but procedurally defaulted. As to the five exhausted claims, Petitioner fails to carry his burden to show that the State Courts' adjudication of his claims constituted decisions that were contrary to or an unreasonable application of United States Supreme Court precedent. As to the three unexhausted claims, we find that even under de novo review, the claims fail to merit relief. In addition, a certificate of appealability is denied because jurists of reason would not find the denial of habeas relief herein debatable.

A. PROCEDURAL HISTORY

Petitioner, represented by local attorney, Patrick J. Thomassey, proceeded to a jury trial. Petitioner took the stand in his own defense and testified to his version of the events the night of the shooting. The jury convicted Petitioner of all counts and he was sentenced to life in prison for the first degree murder charge. Petitioner, through Attorney Thomassey filed a direct appeal to the Superior Court.[1] No Petition for Allowance of Appeal was filed with the Pennsylvania Supreme Court.

On September 12, 2005, Petitioner file a pro-se motion under the Post Conviction Relief Act. ECF No. 26-20 at 4 to 8. Attorney Scott Rudolph of the Allegheny County Office of the Public Defender was appointed to represent Petitioner. Attorney Rudolph filed an amended PCRA petition (the First PCRA Petition") wherein the sole issue raised was that trial/appellate counsel was ineffective for advising Petitioner that a Petition for Allowance of Appeal was not appropriate in Petitioner's case. The First PCRA Petition resulted in the PCRA trial court reinstating Petitioner's right nunc pro tunc under state law to file a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.

A counseled Petition for Allowance of Appeal was filed by Attorney Rudolph in the Pennsylvania Supreme Court, which denied it on August 9, 2006. Attorney Rudolph thereafter filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied on January 22, 2007.

On July 31, 2007, Petitioner filed a pro se a second PCRA Petition. Attorney Rudolph was again appointed to represent Petitioner. Attorney Rudolph filed an Amended PCRA Petition (the "Second PCRA Petition"). ECF No. 12-1 at 2-49 to 12-2 at 1-36. The PCRA trial Judge (who also presided over Petitioner's trial) denied the Second PCRA Petition. ECF No. 12-4 at 18 to 26.

Attorney Rudolph then filed an appeal to the Pennsylvania Superior Court, ECF No. 13-1 at 1 to 40 - ECF No. 13-2 at 1 to 35. The Pennsylvania Superior Court affirmed. ECF No. 13-5 at 29-45.

Attorney Rudolph then filed a Petition for Allowance of Appeal in the Pennsylvania Supreme Court, ECF No. 14-1 at 1 to ECF No. 14-2 at 27. The Pennsylvania Supreme Court denied the Petition for Allowance of Appeal on November 13, 2011.

Petitioner then filed a pro se Petition for Writ of Habeas Corpus in this Court, in which he raised five grounds for relief. ECF No. 4. The Respondents filed an Answer, denying that Petitioner was entitled to relief. ECF No. 10. Respondents supplemented the Answer with copies of state court records. ECF Nos. 11-14. Petitioner filed a Traverse or Reply Brief. ECF No. 21.

Petitioner also filed a Motion for Leave to File An Amended Habeas Petition ("Motion to Amend") in order to add three claims of ineffectiveness of trial counsel, which had not been raised in the state court proceedings but which Petitioner contended were permitted to be raised due to the alleged ineffectiveness of PCRA counsel for failing to raise those three claims of trial counsel's alleged ineffectiveness. ECF No. 20. The Court ordered Respondents to file a Response to the Petitioner's Motion to Amend and Respondents filed their Response, indicating that they did not oppose amendment of the Petition. ECF No. 22.

The Court then granted Petitioner's Motion to Amend, ECF No. 23 and Petitioner filed an Amended Petition. ECF No. 24. The Respondents filed an Amended Answer, ECF No. 25. Petitioner then filed a Reply Brief. ECF No. 26.

All parties have consented to the plenary exercise of jurisdiction by the Magistrate Judge. ECF Nos. 7, 9.

B. FACTUAL HISTORY

The Superior Court recounted the facts of this case as follows:

Appellant [i.e., Petitioner] and his wife, Cherie Folino, were married in 1998 and separated in 2001. Cherie and their children stayed with her brother, the victim, in this case, Robert Pesano. Appellant and Cherie disputed the ownership of "a computer given to Cherie's daughter by her grandmother. Appellant had become dependent on the computer for the bookkeeping of his construction business, and denie[d] ever having agreed to Cherie's taking possession of the computer."
In the early morning hours of February 3, 2002, Appellant, who had drunk alcohol at two bars, arrived home and "found his house vandalized and the computer missing." Appellant suspected that Cherie was responsible and drove to Robert's house "to confront her. On his way there, however, [A]ppellant claim[ed] he was running low on gas and... stop[ped] at his mother's house and [took] her car instead. Appellant was at all times aware that he was in possession of a fully loaded nine-millimeter pistol."
At approximately 2:15 a.m. [A]ppellant arrived at the victim's home. Refusing to open the door, Robert spoke to [A]ppellant through a glass panel in the door. He informed [A]ppellant that Cherie was asleep and suggested that he go home. Appellant refused and fired six rounds into the door striking Robert in the torso and limbs and killing him. Appellant then fled the scene in his mother's car. After driving around for fifty-three minutes, [A]ppellant called 911 from a gas station, informed the operator of his action and turned himself over to the police.
A three-day jury trial began on December 17, 2002, at which Appellant's defense was that he was so intoxicated he could not be found guilty of first-degree murder. A jury returned verdicts on first-degree murder, discharging a firearm into an occupied structure, carrying a firearm without a license, and two counts of recklessly endangering another person. On February 20, 2003, Appellant was sentenced to life imprisonment and a consecutive term of 5 ½ to 11 years' incarceration.

ECF No. 13-5 at 29-31 (citations and footnotes omitted).

C. APPLICABLE LEGAL PRINCIPLES

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) (the "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 Petition was filed after its effective date, the 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, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state courts' disposition of that issue. See 28 U.S.C. § 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court has expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was "contrary to... clearly established Federal law as determined by the Supreme Court of the United States" or 2) where that state court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05 (emphasis deleted). The Supreme Court explained the two situations in the following terms:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 412-13. The United States Court of Appeals for the Third Circuit has also elucidated the "contrary to" clause by noting that "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Werts v. Vaughn, 228 F.3d at 197 (quoting Matteo v. Superintendent, SCI-Albion, 171 F.3d 877, 888 (3d Cir. 1999)(en banc)). Moreover, it is Petitioner's burden to prove the state court decision is either contrary to or an unreasonable application of clearly established federal law. See Matteo, 171 F.3d at 888; Werts v. Vaughn, 228 F.3d at 197.

The AEDPA also permits federal habeas relief where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(2).

D. DISCUSSION

The first three grounds for relief that Petitioner raises, which were exhausted in the state courts, are all claims of ineffective assistance of trial counsel as follows:

GROUND ONE: [Petitioner claims that his trial counsel was ineffective due to his] "failure to present available evidence corroborating Petitioner's testimony that Decedent Pesano was a man of a violent and unpredictable nature." ECF No. 24 at 5.
GROUND TWO: [Trial counsel was ineffective due to his] "failure to object to judgeless/unrecorded jury selection hearing going forward absent Petitioner's intelligent and knowing consent."

Id. at 7.

GROUND THREE: [Trial counsel was ineffective due to his] "failure to assert Due Process basis to exclude unduly prejudicial prior crimes evidence - inflammatory testimony of ex-wife regarding prior assaults by Petitioner upon her and inflammatory photos[.]"

Id. at 8.

In addressing these three claims of trial counsel's alleged ineffectiveness, the state courts applied the state court test for ineffective assistance of counsel ultimately derived from Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). See ECF No. 13-5 at 32. This Pierce standard has been found to be materially identical to the test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Werts, 228 F.3d at 203. The United States Court of Appeals for the Third Circuit has ruled that this standard is not "contrary to" Strickland, and therefore, "the appropriate inquiry is whether the Pennsylvania courts' application of Strickland to [petitioner's] ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland." Id. at 204.

Because the state courts decided Petitioner's claims of ineffective assistance of counsel under the standards of Pierce and those standards are essentially the same as the Strickland standard, this Court is required to apply the deferential standard of 28 U.S.C. § 2254(d), which demands that a habeas petitioner demonstrate that the state court's adjudication of the federal claim resulted in a decision that was contrary to Supreme Court precedents or an unreasonable application of federal law. Pursuant to the holding of Werts, Petitioner is barred from arguing that the decisions of the state courts, applying the Pierce standard, are contrary to the standard announced in Strickland. Petitioner could argue the second sense of "contrary to, " i.e., the state courts reached a different result from that of the United States Supreme Court on a set of materially indistinguishable facts.

However, Petitioner has not argued and does not point to any United States Supreme Court decision, in existence at the time that the state courts rendered their decisions in this case, that have a set of facts that are materially indistinguishable from Petitioner's case where the outcome was different from the outcome reached by the state courts herein. Williams, 529 U.S. at 412 (analyzing whether a state court decision is "contrary to" Supreme Court precedent requires analysis of the "holdings as opposed to the dicta, of this Court's decisions as of the time of the relevant state court decision."). Indeed, even assuming that Strickland had a set of facts that are materially indistinguishable from the facts of Petitioner's case, the outcome of Strickland and the outcome in Petitioner's PCRA appeal in the Superior Court were the same, i.e., the criminal defendant was denied relief in both cases. Accordingly, Petitioner has not shown that the Pennsylvania Superior Court's PCRA decision in this case was contrary to clearly established federal law as determined by the United States Supreme Court.

Thus it remains open to Petitioner to show that the decisions of the state courts were an unreasonable application of federal law. However, Petitioner fails to show that the state courts' disposition of his claims was an unreasonable application of United States Supreme Court precedent. In Strickland v. Washington, the Supreme Court explained that there are two components to demonstrating a violation of the right to effective assistance of counsel. First, the defendant must show that counsel's performance was deficient. This requires showing that "counsel's representation fell below an objective standard of reasonableness." Id. at 688; see also Williams v. Taylor, 529 U.S. 362, 390-91 (2000). In reviewing counsel's actions, the court presumes that counsel was effective. Strickland, 466 U.S. at 689. There is no one correct way to represent a client and counsel must have latitude to make tactical decisions. Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990)("[W]hether or not some other strategy would have ultimately proved more successful, counsel's advice was reasonable and must therefore be sustained."). In light of the foregoing, the Court of Appeals for the Third Circuit has explained, ...


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