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Price v. Cameron

United States District Court, W.D. Pennsylvania

July 25, 2017

WILLIAM PRICE, Petitioner,
v.
KENNETH R. CAMERON, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL, UNITED STATES MAGISTRATE JUDGE

         Petitioner, William Price, an inmate currently incarcerated at the State Correctional Institution (SCI) Retreat, Pennsylvania, [1] brings this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his convictions on charges of rape, aggravated indecent assault, indecent assault, incest and corruption of minors, and the sentence of 11½ to 30 years of incarceration, imposed by the Court of Common Pleas of Fayette County, Pennsylvania on November 10, 2003 at Criminal Action No. 761 of 2002. For the reasons that follow, the petition will be denied and a certificate of appealability will be denied.

         Procedural History

         On August 4, 2003, Petitioner proceeded to trial before the Honorable Ralph C. Warman. (Am. Answer Ex. 17.)[2] He was represented by Assistant Public Defender Mary Campbell Spegar and the Commonwealth was represented by Assistant District Attorney Jack R. Heneks, Jr. On August 8, 2003, the jury found Petitioner guilty of charges of rape, aggravated indecent assault, indecent assault, incest and corruption of minors. (Am. Answer Ex. 1.) He was found not guilty of an additional charge of IDSI forcible compulsion and a charge of rape forcible compulsion was either quashed or dismissed. (Am. Answer Ex. 15B at 2.) On November 10, 2003, following a hearing (Am. Answer Ex. 19), he was found not to be a sexually violent predator, but he was sentenced to 11½ to 30 years of incarceration. (Am. Answer Ex. 3.)

         Petitioner filed an appeal in the Pennsylvania Superior Court, which was docketed at No. 2191 WDA 2003. He raised the following issues:

1. Whether the court erred in denying defense motion to sequester witnesses?
2. Whether the court erred in disallowing defense attorney to call Trooper Robert Newton of Pennsylvania State Police to explain [Petitioner's] whereabouts during the time the alleged assault was occurring?
3. Whether the court erred in not instructing the jury on the victim's failing to make prompt complaint?
4. Whether the evidence presented by the Commonwealth was insufficient to sustain the verdicts?
5. Whether [Petitioner's] sentence is excessive?

(Am. Answer Ex. 4.)[3]

         On April 29, 2004, the trial court issued an opinion pursuant to Pa. R. App. P. 1925 upholding the judgment of sentence. (Am. Answer Ex. 2.) On May 9, 2005, the Superior Court affirmed the judgment of sentence. (Am. Answer Ex. 5.) He did not seek review in the Pennsylvania Supreme Court.

         Petitioner filed a timely pro se motion under the Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 (PCRA) on February 21, 2006. (Am. Answer Ex. 6.) Although Patrick McDaniel was appointed as his counsel on May 12, 2006 (Answer Ex. 7), [4] he filed a pro se supplemental petition on July 21, 2006. (Am. Answer Ex. 7.)

         A hearing was held on December 11, 2006. (Answer Ex. 9A.) By order dated January 4, 2007, Judge Warman directed that the record remain open for four weeks for a review of the pending forensic DNA issues by Petitioner's experts. (Answer Ex. 9.)

         The four-week period elapsed and no decision was rendered. Petitioner filed a pro se application for speedy disposition on July 5, 2007. (Answer Ex. 10.) On October 25, 2007, he filed a pro se Amended Petition, and he filed the identical document again on January 14, 2008. (Answer Exs. 11A, 11B.)

         Petitioner filed additional pro se petitions on May 5, 2008, December 30, 2008 and May 11, 2009. (Answer Exs. 12A, 12B, 12C.) On October 26, 2010, he filed a memorandum of law in support of his pending petitions. (Answer Ex. 12D.)

         Meanwhile, he filed a petition for writ of habeas corpus in this Court on October 26, 2009, which was docketed at No. 09-783. He raised as his first ground that he had been denied his due process rights by the trial court's 40-month delay in resolving his first PCRA petition. On November 3, 2010, the Court filed a Memorandum and Order which stated that Petitioner had been inundating the trial court with filings and that his conduct was the cause of the delay. The Court refused to waive the exhaustion requirement, denied federal habeas relief, administratively closed the case and directed Petitioner to reinstate the action upon the exhaustion of his state court remedies. (Am. Answer Ex. 8.) Petitioner filed a notice of appeal on November 17, 2010 (ECF No. 69), but on May 10, 2011, the Court of Appeals denied the request for a certificate of appealability (ECF No. 71).

         Petitioner filed a motion on May 18, 2011 to compel the trial court to issue a decision on his PCRA petition. (Answer Ex. 15.) No response to that motion appears on the docket. (Am. Answer Ex. 15B.) On May 2, 2013, he filed a motion for independent DNA testing, but the court denied it on June 3, 2013 on the ground that he had a pending PCRA petition. (Civ. A. No. 16-117, ECF No. 19 Ex. C).

         On August 14, 2013, he filed a second PCRA petition, and he filed an amended petition on December 9, 2013. (Am. Answer Ex. 9A.) On September 15, 2014, Judge Warman held a hearing and permitted Petitioner to represent himself in the PCRA proceeding. On December 4, 2014, the PCRA court issued a notice of intent to dismiss the second petition on the ground that it was untimely (Am. Answer Ex. 10)[5] and on January 21, 2015, the court dismissed the petition (Answer Ex. 18). On March 11, 2015, Petitioner filed a third PCRA petition (Am. Answer Ex. 9B). On March 19, 2015, the PCRA court issued a notice of intent to dismiss this petition as untimely. In the notice, the court stated that there had been a hearing on his first PCRA petition on January 4, 2007, which “apparently” resulted in the denial of his first PCRA petition (Am. Answer Ex. 12 at 1). On April 6, 2015, the PCRA court dismissed the third PCRA petition as untimely. In this order, the court now stated that the first petition was “decided adversely to Petitioner.” (Am. Answer Ex. 13 at 1.)

         Petitioner filed a notice of appeal, which was docketed at No. 613 WDA 2015. On October 2, 2015, the Superior Court filed an opinion which affirmed the dismissal of the third PCRA petition as untimely, stating that, as to the first PCRA petition, the PCRA court had “held a PCRA hearing on January 4, 2007 and subsequently denied relief.” (Am. Answer Ex. 14 at 2.)

         On January 28, 2016, Petitioner submitted a petition to this Court. Unfortunately, the Court failed to note the previous history, assigned the case a new number (Civ. A. No. 16-117) and directed Petitioner to submit either the $5.00 filing fee or a completed motion to proceed in forma pauperis in order to proceed (ECF No. 2). Petitioner filed a motion to proceed IFP on February 23, 2016 (ECF No. 4), the motion was granted (ECF No. 6) and the petition was filed that same day (ECF No. 8).

         On April 29, 2016, Respondents filed an answer to the petition (ECF No. 18), in which they argued that it should be dismissed because Petitioner failed to exhaust his state court remedies. On June 8, 2016, Petitioner filed a reply brief in support of his petition (ECF No. 19). On August 23, 2016, Petitioner filed a motion to stay and for abeyance (ECF No. 25), which was granted the next day (ECF No. 26). On October 20, 2016, Petitioner filed a motion to lift the stay (ECF No. 28), in which he explained that he had filed a motion to reopen the PCRA proceedings in state court, but his motion was denied on October 5, 2016. On October 26, 2016, the Court entered an order granting Petitioner's motion, lifting the stay and reopening the case (ECF No. 29).

         By order dated January 27, 2017 (No. 16-117, ECF No. 34), the Court held that exhaustion was excused, closed Case No. 16-117, reopened Case No. 09-783 and directed that all further proceedings be filed at this case number. The Court concluded that the filings cited above demonstrated that, since 2015, the state courts have been operating under the false impression that the first PCRA petition had been denied. Thus, there were no further state court remedies available to Petitioner. On March 2, 2017, Respondents filed an Amended Response to the Petition (ECF No. 73), and on April 25, 2017, Petitioner filed a reply brief (ECF No. 76).

         Petitioner's Claims

         In the petition, Petitioner raises the following claims:

1. [Petitioner] is being deprived of his fundamental right to fair due process by the 40 month delay of state process.
2. Conviction obtained by the constitutional violation of the protection against double jeopardy.
3. There was an error in the application of law: the Commonwealth was barred by the former prosecution, where both informations arose from same criminal conduct, which Commonwealth used to show mod[u]s operandi of single perpetrator.
4. The trial court erred in the application in severing the informations and violating the “coordinate jurisdictional rule” of another judge, that informations would be tried together, without new evidence or facts not presented to prior judge.
5. Petitioner was denied effective assistance of counsel for prior counsel's failure to investigate to discover and raise, via Motion to Suppress evidence and lab report that was without sufficient foundation, where the Commonwealth's evidence could not and did not identify the fetus aborted by Dr. Thompson in 1998, as the same tissue prepared on slides by Histology Department and examined by pathologist, Dr. McPherson the next day, as the same tissue slides that were pulled from storage and new re-cut slides were prepared again by Histology Department in 2002 that were turned over to officer, as the same tissue slide samples placed in property room, as the same tissue sample slides sent to the lab. The Commonwealth failed to meet its burden of proof that the identity and condition of the aborted fetus remained unimpaired and could not, and did not establish a chain of identification or continuous custody from the time fetus was aborted and collected in 1998, until they were sent to lab in 2002.
Trial counsel was ineffective for failing to investigate to discover and object to the introduction of the new re-cut tissue slides and lab report at the time offered at trial. Petitioner was denied his fundamental 5th amendment right to fair due process and the guaranteed right to counsel under the 6th amendment right to the Const.
6. Petitioner was denied effective assistance of counsel for prior counsel's failure to investigate to discover and raise, via Motion to Suppress evidence and lab report that was without sufficient foundation, where the Commonwealth's evidence could not and did not identify the defendant's blood sample that was drawn by Hospital Technician, as the same blood samples turned over to officer, as the same blood sample placed in or removed from property room, as the same tissue blood samples sent to lab. The Commonwealth failed to meet its burden of proof that the identity and condition of the blood samples remained unimpaired from the time they were seized until samples were sent to lab, and could not and did not establish a chain of identification or continuous custody from time seized, until sent to lab.
Trial counsel was ineffective for failing to investigate to discover and object to the introduction of the blood samples and lab report at the time introduced at trial. Petitioner was denied his fundamental 5th amendment right to fair due process and the guaranteed right to counsel under the 6th amendment right to the Const.
7. Petitioner was denied effective assistance of counsel for prior counsel's failure to investigate to discover and raise, via Motion to Suppress evidence and lab report that was without sufficient foundation, where the Commonwealth's evidence, per se Scientific methodology conducted to test Formalin-fixed, paraffin-embedded (FFPE) tissue has not meet the general acceptance standard, that the laboratory failed to follow proper standards of controls in their testing of DNA samples and that the Scientific methodology conducted failed to meet reliability standards under Frye standard, where the lab had lost their accreditation for failing to follow proper standards and controls and has closed their doors for business.
Trial counsel was ineffective for failing to investigate to discover and object to the introduction of laboratory report and expert testimony at time introduced at trial. Petitioner was denied fundamental 5th amendment right to fair due process and the guaranteed 6th amendment right to counsel under the Const.
8. Petitioner was denied effective assistance of counsel for prior counsel's failure to investigate to discover and raise, via Motion to Suppress evidence and lab report that was without sufficient foundation, where Commonwealth's expert did not possess specialized knowledge in the Scientific methodology of DNA testifying (FFPE) tissue.
Trial counsel was ineffective for failing to investigate to discover and object to the introduction of expert's opinion testimony and lab report at trial. Petitioner was denied his fundamental 5th amendment right to fair due process and the guaranteed 6th amendment right to counsel under the Const.
9. The Court erred in the application of law in failing to hold a Suppression Hearing to determine the admissibility of the evidence and lab report in violation of petitioner's 5th amendment right to due process to the Const.
10. Conviction was obtained by prosecutorial misconduct, where prosecution failed to disclose to [Petitioner], evidence of Magee Hospital's Histology report, litigation package, data recording each step of the process of preparing the new re-cut DNA tissue slides for purpose of litigation in 2002, which was favorable to [Petitioner] to prove that an unqualified person at the hospital altered, and prepared DNA samples to meet lab testing requirements, and that the tissue samples were without sufficient foundation, which violated petitioner's 5th amendment right to due process of the Const.
Petitioner was denied effective assistance of counsel for trial counsel's failure to investigate to discover the Histology report and introduced it at trial, and for failing to raise the prosecutorial misconduct, via Direct appeal, which violated Petitioner's 6th amendment right to counsel guaranteed by the Const.
11. Conviction was obtained by prosecutorial misconduct, where prosecution failed to disclose to [Petitioner], evidence of Orchid Cellmark's Lab testing notes, data recording each step of the DNA testing process use to test Formalin-fixed, paraffin-embedded tissue, which violated petitioner's 5th amendment right of the Const.
Petitioner was denied effective assistance of counsel for trial counsel's failure to investigate to discover request the lab testing notes and introduce them at trial, and for failing to raise the prosecutorial misconduct, via Direct Appeal, which violated Petitioner's 6th amendment right to counsel guaranteed by the Const.
12. Petitioner was denied effective assistance of counsel for prior counsel's misconduct for prosecutor in coercion client's refusal to taking of his blood, then breaching attorney/client confidentiality by sharing information with prosecution, for failing to protect client's interest against the 8th amendment violation by forcing [Petitioner] to submit to the taking of his blood against his will.
Trial counsel was ineffective for failing to object to the introduction of blood samples and lab report that were taken against [Petitioner's] will and to preserve claims for direct appeal. Petitioner was denied his fundamental 5th amendment right to fair[] due process and the guaranteed right to counsel under the 6th amendment to the Const.
13. Petitioner was denied effective assistance of counsel, where trial counsel committed misconduct for prosecution, and the trial court erred in the application of law by continuing Petitioner's second trial, denying petitioner[] his right to have same jury as first trial guaranteed him by another judge, where second trial ran past 180 [days] of incarceration without Petitioner's consent.
Petitioner was denied effective assistance of appeal counsel, where appeal counsel failed to raise the issue for review. Petitioner was denied his fundamental 5th amendment right to fair due process and the guaranteed right to counsel under the 6th amendment to the Const.
14. Conviction was obtained by the trial court's error in failing to sequester jury from witness[e]s, which resulted in taint after improper contact, and where the trial court failed to question the entire jury for taint, which denied Petitioner his fundamental 5th amendment right to fair due process, impartial jury and equal protection clause of the 14th amendment to the Const.
Appeal counsel was ineffective for failing to raise this issue on direct appeal, which denied Petitioner his right to have the claim heard, denying petitioner his guaranteed right to counsel under the 6th amendment to the Const.
15. Petitioner was denied effective assistance of counsel for trial counsel's failure to Motion in limin[e] for mistrial after “eye witnessing” improper contact between jurors and Commonwealth witness[e]s, which denied Petitioner his 5th amendment right to due process and his 6th amendment right to counsel to the Const.
Appellate counsel was ineffective for failing to raise trial court err[o]r in failing to question entire jury to determine taint, which denied Petitioner his 5th amendment right to fair due process, to have claims heard, under the Const.
16. Petitioner was denied effective assistance of counsel for prior counsel's failure to challenge the admissibility of victim's prior inconsistent statements that were made after victim was improperly influ[e]nced, via Motion to Suppress, to challenge victim's competency to testify and expose taint, which denied Petitioner his 5th amendment right to fair due process and his 6th amendment right to counsel under the Const.
17. Petitioner was denied effective assistance of counsel for trial counsel's failure to file Motion for in camera hearing, to challenge the reliability of victim's prior consistent statements, for failure to introduce evidence of victim's prior inconsistent and contradictory statements to impeach the victim's credibility, which denied Petitioner his 5th amendment right to fair due process and his 6th amendment right to counsel under the Const.
18. The trial court erred in the application of law in failing to hold a “in camera hearing” to assess the reliability of victim's prior consistent statements, for failing to impeach victim on prior contradictory statement but instead lead the victim into adopting statement at trial regarding whether anal sodomy had occurred or was tried, which denied Petitioner his 5th amendment right to fair due process and the equal protection clause of the 14th amendment to the Const.
Appellate counsel was ineffective for failing to raise trial court's error, which denied Petitioner his 5th amendment right to due process, the right to have claims heard and the 6th amendment right to counsel under the Const.
19. Petitioner was denied effective assistance of counsel for trial counsel's failure to investigate and introduce evidence of victim's past sexual conduct, for failing to introduce evidence of victim's internet contacts, or to call witnesses to show others were responsible for the pregnancies, which denied Petitioner his 5th amendment right to fair due process and his 6th amendment right to counsel under the Const.
20. Petitioner was denied effective assistance of counsel for trial counsel's failure to introduce evidence that [petitioner] used corporal punishment “beatings” to discipline victim for wrongful conduct, for failing to introduce evidence of police reports after victim testified to her good character, which denied Petitioner his 5th amendment right to fair due process and his 6th amendment right to counsel under the Const.
21. Commonwealth erred in the application of law in failing to give [petitioner] “notice of intent” to call hearsay witness[e]s, which denied petitioner his 5th amendment right to due process.
Trial counsel was ineffective for failing to object to the introduction of hearsay statements of witnesses at trial, and Appellate counsel was ineffective for failing to raise Commonwealth's error, which denied Petitioner his 5th amendment right to due process, the right to have claims heard and his 6th amendment right to counsel under the Const.
22. Petitioner was denied effective assistance of counsel for trial counsel's failure to introduce evidence of false police report made by Commonwealth's witness, Raymond Price, to show hostility toward [Petitioner] to impeach witness's credibility on [bias] motive, for failing to object to the introduction of witness's hearsay statements that [Petitioner] did not have prior opportunity to cross-examine, for failing to cross-examine witness to introduce inconsistent and contradictory statements, for failing to [introduce] evidence that [Petitioner] used corporal punishment “beatings, ” and for ...

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