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Durbin v. The Attorney General of State of Pennsylvania

United States District Court, W.D. Pennsylvania

December 1, 2017

JOSEPH E. DURBIN, Petitioner,



         Joseph E. Durbin (“Petitioner”) is a state prisoner who has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his state court convictions for, inter alia, Involuntary Deviate Sexual Intercourse, Corruption of Minors and Aggravated Indecent Assault in connection with his sexual assault of the daughter of a woman whom he was romantically involved with at the time. Because the Petition is time-barred it will be dismissed. Alternatively, because none of the grounds raised merits relief, the Petition will be dismissed.


         The Superior Court of Pennsylvania, in its opinion affirming the denial of relief in the Post Conviction Relief Act (“PCRA”) proceedings, recounted the relevant factual testimony adduced at trial as follows:

The first prosecution witness was Karen Renz, the mother of minor victim, M.R., and former companion of Defendant. Ms. Renz testified that she became aware of the sexual contact between her daughter and Mr. Durbin after her nephew read about the abuse in [the victim's] diary over Memorial Day weekend in 2001. She stated that her daughter was present when she read the diary and that her daughter was very upset. She then instructed the Defendant to leave her home. Ms. Renz contacted the police and the diary was turned over to them for investigation.
On cross-examination, Ms. Renz testified that she, the Defendant, and her five (5) children, including M.R., spent a considerable amount of time together as a family and that she had never observed any inappropriate touching by the Defendant in relation to M[.]R. Ms. Reitz further stated that M.R. had never informed her of any inappropriate touching in the five (5) years Ms. Renz had a relationship with the Defendant.
On redirect, Ms. Renz stated that the Defendant would often spend time alone with M.R. and would take her places without the permission of Ms. Renz. She characterized the relationship between the Defendant and M.R. as especially close. She also indicated that [M.R.] never recanted or changed her account of the abuse.
Corporal J. David Dryer of the Donegal Township Police testified as to his participation in the investigation. He stated that he was the officer dispatched to the scene following a complaint of child molestation. He found the victim, M.R., crying with her mother, her sister, and her cousin. He stated that they reported that Mr. Durbin had been molesting M.R. and then gave him the diary, directing him to the entries regarding the molestation. He stated that upon reading the entries, he took further statements from those present and then interviewed Mr. Durbin.
On cross-examination, the officer stated that he was not familiar with the Renz household apart from the present allegations, had no knowledge of any other claims of abuse and noticed no signs of the abuse on the victim during the investigation. The officer further testified that M.R. never changed her story regarding these incidents.
Prior to the victim testifying, the Court and counsel engaged in a lengthy sidebar regarding the admissibility of the diary, due to the fact that it referenced incidents involving the Defendant and two other minors. The Court and counsel agreed not to circulate the diary to the jury. Further, M.R. was permitted only to testify that this was her diary, that she did write about inappropriate contact with the Defendant, and that her cousin's reading of the diary stalled [sic] the investigation. M.R. could then describe the inappropriate contact, but only as it related to herself.
The victim, M.R., age 13 at the time of the trial, testified that she had not intended for anyone to read her diary. She explained that it was just a coincidence that her cousin read a page referencing the molestation. M.R. testified that she was embarrassed to learn that her cousin had read her diary and tried to prevent him from showing it to her mother. She further testified that the molestation began about a year after the Defendant began dating her mother and continued until her mother discovered the relationship. The molestation occurred in her mother's bedroom, in the Defendant's trailer, and in various other deserted areas. M.R. stated that the Defendant would tell her that she should only lose her virginity to him and that he would marry her. She also said that Mr. Durbin told her that if anyone found out about the molestation, her mother would be hurt. M.R. testified that the molestation consisted of the Defendant placing his erect penis in her mouth on at least ten (10) to fifteen (15) different occasions, attempting to place his erect penis in her vagina on more than twenty (20) occasions, placing his fingers in her vagina on numerous occasions, and touching her breasts and buttocks. The victim testified that she did not like what the Defendant was doing to her, but did not say anything for fear of him hurting her mother. On cross-examination, M.R. stated that most of the sexual encounters between herself and Mr. Durbin occurred in the time period between when he returned to the home after work and when he picked up the victim's mother from her place of employment.
Following the victim's testimony, Ethan Ward, Chief of Police for Donegal Township, testified. Chief Ward testified that the victim related to police that the incidents of molestation occurred over a period of years. He further provided that the physical examination came back as inconclusive. Chief Ward testified that, in all of the interviews, the victim never recanted her statements or gave inconsistent accounts. At the close of the Commonwealth's case, the Court dismissed the charge of Unlawful Contact or Communication with a Minor.
The defense called the victim's cousin, Robert Ealy, who first discovered the diary. Mr. Ealy, age 15, stated that he found the diary in the living room while searching for paper, and became concerned when he saw the word “molest”. He stated that he immediately contacted his aunt, Karen Renz, the victim's mother, and took the diary to her. He testified that when the victim saw him approaching her mother to deliver the diary, she became upset and attempted to stop him.
The defense then called Virginia Wright, a longtime family friend of the Defendant, as a character witness. At a sidebar, the Commonwealth indicated that, if Ms. Wright testified to the Defendant's good character, they would be introducing evidence of the same character trait. The Assistant District Attorney asked if defense counsel was aware of the Defendant's prior indecent assault convictions in other slates [sic]. At that point, defense counsel ceased direct examination of Ms. Wright.
Following another sidebar regarding the introduction of the results of the medical examination, the defense chose not to introduce the entire report into evidence. The defense further chose not to request a recess in order to find and produce Melanie Caldwell. Ms. Caldwell was the nurse involved in the medical examination of the victim and failed to appear, even though she had been subpoenaed by the defense. Mr. Durbin was advised of his rights to testify and to remain silent. Following consultation with Attorney Winter, he chose not to testify.
The victim was next called as a hostile witness for the purpose of showing that her testimony regarding the place of the last sexual encounter was inconsistent with her preliminary hearing testimony. After another sidebar, the Court permitted the Defendant to call M.R. The victim read her preliminary hearing testimony and stated that the incident referenced at that hearing was, in fact, the last sexual encounter with the Defendant.
Nurse Caldwell finally appeared, but the Defendant's counsel informed the Court that the defense no longer wished to call her to testify and would simply rely on the information regarding the inconclusive nature of the medical exam, which had previously been testified to by Chief Ward.
The Defendant changed his mind and wanted to take the stand. Attorney Winter again reviewed with Mr. Durbin his right to remain silent. The Defendant responded that he understood his right and was taking the stand knowingly and voluntarily. Mr. Durbin testified that he had a good relationship with the victim, her mother and family. He stated that he considered himself a father to the victim and her siblings, and would never do anything to hurt them. The Defendant stated that any touching that could be considered inappropriate might have been brushing up against them in the hall or maybe giving the victim a big hug. On cross-examination, the Assistant District Attorney asked Defendant if he “had been deceptive about [his] past to [Ms. Renz].” Mr. Durbin admitted that he had lied to Ms. Renz about his past because he felt she would leave him if she knew. The defense then rested. It should be noted that neither side elaborated on the references to Mr. Durbin's past.

Com. v. Durbin, 1713 WDA 2013, 2014 WL 10917392, at *6 - 8 (Pa. Super. June 4, 2014) (quoting the PCRA trial court opinion).


         A. State Court Procedural History

         The Superior Court described the procedural history of the case as follows:

Following a jury trial on July 15, 2002, Appellant was convicted of the aforementioned crimes. On August 20, 2002, Appellant filed an application for the appointment of new counsel, alleging that Appellant's trial counsel provided ineffective assistance of counsel. The court conducted a sentencing hearing on October 28, 2002, after which it sentenced Appellant to the above term of incarceration and granted Appellant's application for new court-appointed counsel. On November 7, 2002, Appellant filed post-sentence motions. At the hearing on the motions, Appellant requested, and was granted, permission to withdraw his claim of ineffective assistance of counsel and his claim that the Commonwealth's evidence was insufficient to support the jury verdict. Thereafter, the court entered an order denying Appellant's post-sentence motions. Appellant timely filed an appeal to this Court. This Court affirmed the judgment of sentence on November 10, 2003. Commonwealth v. Durbin, 382 WDA 2003 (Pa. Super. Nov.10, 2003) (unpublished memorandum). Appellant subsequently filed a petition for allowance of appeal to the Pennsylvania Supreme Court on November 26, 2003; it was denied on April 14, 2004. Commonwealth v. Durbin, 848 A.2d 927 (Pa. x 2004).
On May 31, 2005, Appellant filed a PCRA petition. Appellant was appointed counsel and an amended PCRA petition was filed on October 11, 2007. On November 29, 2007, the petition was dismissed as untimely. Appellant filed an appeal from this order on December 17, 2007. On August 6, 2008, this Court vacated the PCRA court's order and remanded the case to the PCRA court for consideration of the issues raised in Appellant's petition. Commonwealth v. Durbin, 961 A.2d 1273 (Pa. Super. 2008) (unpublished memorandum).
Pursuant to the remand, the PCRA court ordered Appellant to file an amended PCRA petition on June 22, 2009. Almost one year later, on June 16, 2010, Appellant complied. The Commonwealth filed a response to the petition on November 7, 2011. On December 17, 2012, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant's petition without a hearing. The court ultimately dismissed the petition on October 2, 2013. This timely appeal followed.

Id. at *1 (footnotes omitted). The Superior Court affirmed the denial of PCRA relief on June 4, 2014. Petitioner then filed a timely Petition for Allowance of Appeal in the Pennsylvania Supreme Court, which denied it on December 17, 2014. Com. v. Durbin, 105 A.3d 735 (Pa. Dec. 17, 2014) (Table).

         B. Federal Court Procedural History

         Petitioner paid the filing fee and the Petition was filed on September 21, 2015. ECF No. 4. In the Petition, he raised the following four grounds for relief:

GROUND ONE: WAS [sic] petitioners Federal Constitutional Rights violated under the color of law when there was adjudication contrary to Federal presedents [sic] determined by United State[s] SUPREME COURT. . . .
The commonwealth failed to bring the case to trial within 180 days of the complaint being filed. Which is unreasonable application of clearly established law.
US 6 Amendment right to speedy trial U.S. 14 Amendment the equal protection of the lwa [sic].

ECF No. 4 at 5.

GROUND TWO: Petitioner['s] claims was [sic] adjudicated contrary to, and involved unreasonable application of clearly established Federal law as determined by the supremr [sic] court of the UNUTED [sic] STATES… The right to have compulsory process for obtaining witnesses in petitioner favor, and right to confrontation clause[.]

Id. at 7.

GROUND THREE: State procedure bar to relief, denial of effective assistance of hybrid representation....
State of Pennsylvania rule of aPPellate [sic] procedure 3304, where a litigant is represented by an attorney before the court the litigant submits for filling [sic] a petition, motion, brief or any type o [sic] of pleading in the matter it shall not be docketed! So any filling [sic] that is not ...

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