Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lipinski v. Fisher

United States District Court, W.D. Pennsylvania

March 6, 2017

MICHAEL R. LIPINSKI, Petitioner,
v.
JON FISHER, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, Respondents.

          MEMORANDUM OPINION [1]

          Cynthia Reed Eddy United States Magistrate Judge.

         Petitioner, 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.

         I. Procedural History

         On May 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.

         On 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.

         On 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.

         In the 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).

         II. Standard of Review

         A state 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.

         The 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).

         With this rationale in mind, the Court turns to the issue currently before it.

         III. Discussion

         The 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 rights.[2]

         On 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.