United States District Court, W.D. Pennsylvania
MICHAEL R. LIPINSKI, Petitioner,
JON FISHER, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, Respondents.
MEMORANDUM OPINION 
Cynthia Reed Eddy United States Magistrate Judge.
Michael R. Lipinski, is a state prisoner currently confined
at the State Correctional Institution at Huntingdon,
Pennsylvania. He seeks a writ of habeas corpus, pro
se, pursuant to 28 U.S.C. § 2254. For the reasons
set forth below, the petition will be denied.
15, 2008, Lipinski appeared before the Honorable Jeffrey A.
Manning, Court of Common Pleas of Allegheny County, Criminal
Division, waived his right to a jury trial, and immediately
proceeded to a bench trial. At the conclusion of the bench
trial, Lipinski was convicted of one count of Unlawful
Restraint and sexual assault. Lipinski was sentenced to not
less than forty-eight (48) months nor more than one hundred
and twenty (120) months at the sexual assault count and no
further penalty at the Unlawful Restraint count. The Superior
Court of Pennsylvania affirmed the judgment of sentence on
March 30, 2010. The Supreme Court of Pennsylvania denied
further review on January 15, 2011.
April 18, 2011, Lipinski filed, pro se, a request
for post-conviction relief pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat. §
9541 - 9546. On July 13, 2013, appointed counsel filed a No
Merit Letter and a Motion to Withdraw. On August 26, 2013,
the PCRA court, again Judge Manning, issued a Notice of
Intention to Dismiss and granted counsel's motion to
withdraw. In response, Lipinski filed a pro se
Response Pursuant to Pa.R.Crim. 907. On September 24, 2013,
Judge Manning dismissed the petition.
October 23, 2013, Lipinski filed pro se a Notice of
Appeal. Although ordered to do so by the PCRA court, Lipinski
did not file a Concise Statement of Matters Complained of an
Appeal (“Concise Statement”). On February 10,
2014, the PRCA court entered an Order to transmit the record
to the Superior Court and found that Petitioner's claims
were waived on appeal for failure to file a Concise
Statement. Lipinski's appeal was docketed in the Superior
Court and dismissed on May 8, 2014, for his failure to file a
brief. Thereafter, Lipinski filed the present timely petition
for writ of habeas corpus.
instant petition, Lipinski raises one claim for relief:
THE TRIAL COURT ERRED IN REFUSING TO CONSIDER FOR SUBSTANTIVE
PURPOSES TESTIMONY BY THE SOLE DEFENSE WITNESS AND THE
SUPERIOR COURT AND SUPREME COURTS DECISION IS INCONSISTENT
WITH STATE AND FEDERAL LAW GOVERNING THIS ISSUE.
Petition, at ¶ 12 (ECF No. 1). It appears that Lipinski
is reasserting the constitutional arguments made on his
behalf on direct appeal:
In not considering the sum and substance of Johnson's
testimony for its truth and substantive value, the Trial
Court committed prejudicial error. Mr. Lipinski's
fundamental constitutional rights to defend himself and
remain silent were violated.
* * *
Even assuming arguendo that the sum and substance of
Johnson's testimony was not within the state-of-mind
hearsay exception, the Fourteenth Amendment Due Process
Clause requires that such testimony still be considered for
its truth and substantive value.
Appellant's Superior Court Brief at 11-12 (ECF No. 5-3).
Standard of Review
prisoner is entitled to federal habeas relief only if he is
held “in custody in violation of the Constitution, or
laws, or treaties of the United States.” 28 U.S.C.
§ 2254(a). Insofar as a petitioner simply challenges the
correctness of the conviction under Pennsylvania law,
however, he alleges no deprivation of federal rights and may
not obtain habeas relief. Pulley v. Harris, 465 U.S.
37, 41 (1984). It has long been understood that a state may
violate its own law without violating the Constitution.
Garner v. Louisiana, 368 U.S. 157, 166 (1961).
“This court will not treat a mere error of state law,
if one occurred, as a denial of due process; otherwise, every
erroneous decision by a state court on state law would come
here as a federal constitutional question.” Gryger
v. Burke, 334 U.S. 728, 731 (1948). To receive review of
what otherwise amounts to nothing more than an error of state
law, a petitioner must argue not that it is wrong, but that
it is so wrong, so surprising, that the error
violates principles of due process.
finding of a constitutional error on habeas review, however,
does not require the granting of a habeas petition. Rather,
before granting habeas relief, the court must conduct a
harmless error analysis to determine if the constitutional
violation had a “substantial and injurious
effect” on the fairness of the trial. Fry v.
Pliler, 551 U.S. 112, 121 (2007) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993)). This requires the
petitioner to establish that the constitutional error
resulted in actual prejudice. Brecht, 507 U.S. at
637 (citing United States v. Lane, 474 U.S. 438, 449
(1986)). A finding of actual prejudice is appropriate when
there is “grave doubt” about whether the error
influenced the jury's decision, or where the evidence as
to whether the constitutional error is harmless is in
“virtual equipoise.” See Bond v. Beard,
539 F.3d 256, 276 (3d Cir. 2008) (quoting O'Neal v.
McAninch, 513 U.S. 432, 436 (1995)). “If, when all
is said and done, the court's conviction is sure that the
error did not influence the jury, or had but very slight
effect, the verdict and the judgment should stand.”
Adamson v. Cathel, 633 F.3d 248, 260 (3d Cir. 2011)
(quoting O'Neal, 513 U.S. at 437-38). Unlike the
determination of a constitutional violation, the harmless
error analysis is performed de novo by the federal
courts. Bond, 539 F.3d at 275-7 (“Fry
instructs us to perform our own harmless error analysis under
Brecht . . ., rather than review the state
court's harmless error analysis under the AEDPA
standard.”) (citing Fry, 551 U.S. at 121).
this rationale in mind, the Court turns to the issue
currently before it.
facts of this case are fairly straight forward:
According to the victim, the defendant picked her up and
offered her a ride. He took her to a secluded area, forced
her to strip and to engage in sexual acts. The victim managed
to run away from the area and police were summoned by other
witnesses who encountered the victim, who was still naked.
The defendant claimed that the sexual acts were consensual.
Commonwealth v. Lipinski, CC No.: 200613965, slip
opinion (CCP Feb. 9, 2009) (ECF No. 5-2). The issue before
the Court is fairly straight forward as well. Resolution of
this claim turns on whether the ruling to allow the
defense's sole witness's testimony as admissible only
for impeachment purposes, and not for its sum and substance,
was a violation of Lipinski's constitutional
cross examination, the following exchange occurred between
defense counsel and the victim:
DEFENSE COUNSEL: Okay. At any time up to the point you were
at the apartment complex, was there any discussion between
you and Mr. Lipinski about you perhaps dancing for money?
WITNESS: At work?
DEFENSE COUNSEL: For ...