United States District Court, W.D. Pennsylvania
JOSEPH E. DURBIN, Petitioner,
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, JAMEY LUTHER, Superintendent of SCI- Laurel Highlands, and DISTRICT ATTORNEY OF WASHINGTON COUNTY, Respondents.
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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
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
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
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
State Court Procedural History
Superior Court described the procedural history of the case
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).
Federal Court Procedural History
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