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Allam v. Harry

United States District Court, M.D. Pennsylvania

April 4, 2017

ANDREW J. ALLAM, SR., Petitioner
v.
LAUREL HARRY, Respondent

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         Presently before the court is the report (Doc. 34) entered by Chief Magistrate Judge Susan E. Schwab, recommending that petitioner Andrew J. Allam, Sr.'s petition for a writ of habeas corpus (Doc. 1) be denied. Petitioner has raised numerous objections to the report, (see Doc. 35), but has only briefed two main issues, (see Doc. 36). For the following reasons, the court will overrule Petitioner's objections and deny his petition for a writ of habeas corpus.

         II. Background

         The detailed factual and procedural background of this case has been fully set forth in Judge Schwab's report, (see Doc. 34 at 2-21), and knowledge of that extensive background is presumed. Seeking relief under 28 U.S.C. § 2254, Petitioner claims that (1) the state criminal information charging him with fifty-six counts relating to the sexual abuse of a minor[1] was constitutionally defective, and (2) there was insufficient evidence to convict him of all but one of those fifty-six counts.

         Regarding habeas claim one, Petitioner contends that the state criminal information (Doc. 27-1 at 52-61), as outlined in Judge Schwab's report, (see Doc. 34 at 2-3 & nn.1-7), “was defective and violated the due process and double jeopardy clauses of the United States Constitution.” (Doc. 36 at 13). Petitioner maintains that the information lacked sufficient specificity regarding the charged offenses, and therefore contravenes clearly established federal law concerning the constitutional requirements of a charging instrument. (Doc. 27 at 57-75). Claim one was adjudicated on the merits in state court. (Doc. 34 at 31-32).

         In habeas claim two, Petitioner argues that there was insufficient evidence to support fifty-five of the fifty-six counts of conviction. (Doc. 27 at 75-83). Petitioner contends that the evidence presented at trial was too equivocal and lacked sufficient “differentiation” between the multiple sets of identical counts charged to support the convictions on all but one of the charges. Claim two was not adjudicated on the merits in state court. (Doc. 34 at 36-37).

         On February 21, 2017, Judge Schwab issued a fifty-two page report, recommending that Petitioner's claims for habeas relief be denied. (Doc. 34). On March 1, 2017, Petitioner filed objections to Judge Schwab's report and recommendation. This matter is now ripe for disposition.

         III. Discussion

         When a party objects to a magistrate judge's report and recommendation, the district court must review de novo the contested portions of the report. 28 U.S.C. § 636(b)(1)(C); M.D. Pa. Local Rule 72.3. Uncontested portions of the report are reviewed for “clear error on the face of the record.” Clouser v. Johnson, 40 F.Supp.3d 425, 430 (M.D. Pa. 2014) (quoting Cruz v. Chater, 990 F.Supp. 375, 375-78 (M.D. Pa. 1998) (quoting 1983 Advisory Committee Notes to Federal Rule of Civil Procedure 72(b))). Here, Petitioner has raised two main objections to the magistrate judge's report, and they will be addressed in turn.

         A. Habeas Claim One - Defective State Criminal Information

         Judge Schwab disagreed with Petitioner's claim that his state criminal information violated clearly established federal law and therefore permitted relief under 28 U.S.C. § 2254(d)(1). In her report, she reasoned that although Petitioner relied on Russell v. United States, 369 U.S. 749 (1962), as the “clearly established” federal law regarding the sufficiency of charging instruments, that case's general criteria for indictment sufficiency are too broad to establish the specific rule Petitioner attempts to assert on habeas review. Furthermore, although Petitioner provided a Sixth Circuit case that supports his deficient-information contention, only holdings of the Supreme Court of the United States constitute clearly established federal law for the purposes of section 2254(d)(1). Thus, even if Petitioner's information ran afoul of that Sixth Circuit decision, Petitioner still had not met the requirements of section 2254(d)(1) because that circuit decision was not clearly established federal law.

         Petitioner contends that Judge Schwab erred by “doom[ing his] claim because he did not cite a Supreme Court opinion in which the Supreme Court found a charging document that was similar to his constitutionally inadequate.” (Doc. 36 at 15-16). He argues instead that the state court's decision finding his charging instrument adequate was contrary to clearly established federal law set forth by the Supreme Court in Russell. He contends that the criminal information is contrary to the holding of Russell because it “did not provide adequate notice to [Petitioner].” (Id. at 15). Additionally, Petitioner maintains that the Sixth Circuit case he cited-Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005)-was presented as “persuasive authority” that exemplified other federal courts finding that a charging instrument like his did not pass constitutional muster under Russell; it was not meant to provide the clearly established federal law under section 2254(d)(1).

         Under 28 U.S.C. § 2254(d), “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits” unless such adjudication “resulted in a decision that was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis added). Under section 2254(d)(1), a state court decision is contrary to Supreme Court precedent if the state court reached a “conclusion opposite to that reached by th[e Supreme] Court on a question of law or if the state court decides a case differently than th[e Supreme] Court has on a set of materially indistinguishable facts.” Marshall v. Hendricks, 307 F.3d 36, 51 (3d Cir. 2002) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). The Supreme Court has repeatedly admonished that only its decisions can provide the established legal propositions that will support habeas relief under section 2254(d)(1). See Lopez v. Smith, 135 S.Ct. 1, 3-4 (2014) (per curiam). Moreover, “Circuit precedent cannot refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme] Court has not announced.” Id. at 4 (citation and internal quotation marks omitted).

         Here, the state criminal information provided the initials of the minor victim, stated the elements of the charges, gave notice of the crimes charged by citing to the exact criminal statutory sections and subsections, and indicated the severity of those charges. (See Doc. 27-1 at 52-61). Furthermore, after Petitioner requested a bill of particulars providing, among other things, the dates, times, and locations of the various charged offenses, the state prosecutor responded by providing a specific timeframe for when the multiple sexual crimes allegedly were committed against the minor victim. (Doc. 27-2 at 42). Both the Pennsylvania Court of Common Pleas and the Pennsylvania Superior Court upheld the constitutionality of the information. (Doc. 27-2 at 52-54, 116-19). Petitioner's state collateral review petition, which also challenged the constitutionality of the information, was dismissed, that dismissal was affirmed by the Superior Court, and the Supreme Court of Pennsylvania denied a petition for allowance of appeal. (Doc. 27-2 at 219-72).

         Notably, Petitioner has not pointed to any Supreme Court case that holds that such a charging instrument violates the Constitution by providing inadequate notice to a defendant. To the extent that Petitioner contends that there exists a clearly established constitutional right to a charging instrument that provides “differentiated” charges, which include distinct facts underlying every similar offense charged when the alleged course of criminal conduct took place over an extended period of time, this court disagrees. Unless and until the Supreme Court of the United States provides such a specific rule, Petitioner cannot meet the requirements of section 2254(d)(1) for this particular claim. It is of no matter that Valentine may provide such a rule, because circuit court ...


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