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Flick v. Giroux

United States District Court, W.D. Pennsylvania

February 26, 2018

JASON RAY FLICK, Petitioner,

          District Judge, Kim R. Gibson




         For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 1) and the Supplement to that Petition (ECF No. 8) be denied and that a Certificate of Appealability also be denied.

         II. REPORT

         Pending before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner Jason Ray Flick (“Petitioner”) on March 25, 2015, pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner seeks relief from his judgment of sentence of seventeen (17) to thirty-five (35) years of incarceration entered on June 3, 2010 by the Somerset County Court of Common Pleas following his convictions for one count of aggravated assault, eleven counts of endangering welfare of children, six county of simple assault, six counts of recklessly endangering another person, and one count of furnishing alcohol to minors. Commonwealth v. Flick, No. CP-56-CR-0000141-2008 (Ct. Com. Pleas Somerset County).[1]

         A. Facts of the Crime

         The trial court summarized the incidents underlying the charges against Petitioner as follows:

The charges arose from a series of events which occurred between December 2006 and September 2007 in which the victim was [Petitioner's] son . . ., who was born April 15, 2005. These incidents involved [Petitioner] striking the child to the extent that the child suffered bruises[, ] was knocked off his feet by the blows[, ] and, on at least one occasion, knocking the wind out of him; allowing his [child] to drink alcoholic beverages by placing beer in the child's “sippy” cup; shooting him numerous times with an “air-soft” gun leaving welts on the child's body; forcing the child to drink hot sauce by grabbing his face and pouring the sauce into his mouth; draping a large snake around the child's shoulders; writing or drawing demeaning and derogatory words and/or pictures on the child's face and body with a permanent marker; leaving the child unattended and unsupervised in his room on several occasions while leaving the home; and causing the child to suffer a fractured left femur and an occipital skull fracture while the child was left in [Petitioner's] care and control.

(Trial Court Memorandum & Order Denying Post-Trial Motion, 9/15/10; ECF No. 30-8, p.2.)

         B. Relevant Procedural Background

         In December 2007, the Commonwealth charged Petitioner with offenses stemming from twelve incidents. On August 28, 2009, Petitioner filed a motion for a change of venue or venire alleging that prejudicial pretrial publicity “ha[d] so poisoned the minds of prospective jurors in [Somerset C]ounty that a fair and impartial trial would be impossible.” (Superior Court Memorandum, 8/30/11; ECF No. 31-5, p.2) (citing Petitioner's Mot. For Change of Venire, 8/28/09; ECF No. 31-2, p.55.) Petitioner contended that the publicity's “[s]pecific references to [his] position, prior criminal record, and . . . the alleged acts” prejudiced him. Id., pp.2-3. He also argued that “[t]he numerous derogatory comments posted along with the articles” provided “a representative sample of the bias” he faced in Somerset County. Id., p.3. Petitioner supported his motion with five news articles and two Internet blog posts. Id. However, the trial court denied Petitioner's motion “without prejudice subject to the opportunity to attempt to pick a jury.” Id., p.4 (citing Order, 11/3/09, at 1.)

         Jury selection was held on March 8, 2010. (N.T. Jury Selection, 3/8/10; ECF No. 30-1.) The Commonwealth and Petitioner's counsel conducted a voir dire of potential jurors and nineteen (19) of forty-five (45) potential jurors responded that they had seen, heard or read about the case in the media. (N.T. Jury Selection, 3/8/10, pp.14-17, 19-21.) Of those nineteen (19) jurors, seven (7) jurors indicated that it would be “impossible . . . to give [Petitioner] a fair trial based solely on the evidence that [they would] hear in [the] courtroom and the law as the Judge” explained it, and they were all excused for cause. Id., pp.15-21. Only two jurors who had heard about the case and indicated that they could still give Petitioner a fair trial were seated. Id., pp.14-21, 53-56. Petitioner's counsel used two preemptory challenges, waiving six of them. Id., p.55.

         The jury trial began on March 24, 2010. (N.T. Trial, 3/26/10; ECF Nos. 30-2 - 30-6.) The trial court asked the Commonwealth to draft a verdict slip for the jury's use during deliberation, which the trial court and Petitioner's counsel reviewed. Before the court gave the proposed verdict slip to the jury, Petitioner's counsel affirmed that he did not “have any corrections or issues with it.” (N.T. Trial, 3/26/10, at 216.) The final version of the verdict slip had a heading for each incident: “incident of September 30, 2007, ” “drinking beer incident, ” “snake incident, ” “July 4/5 incident, ” “‘air soft' gun incident, ” “June 2007 incident, ” “December 2006/January 2007 incident, ” and “second December 2006/January 2007 incident.” (Post- Sentence Mot. Pursuant to Pa.R.Crim.P. 720, 6/14/10; ECF No. 30-7, pp.7-9.) The slip had spaces for “guilty” or “not guilty” next to each charge. Id.

         On March 26, 2010, the jury convicted Petitioner of the crimes as charged. On June 2, 2010, the court imposed an aggregate sentence of seventeen (17) to thirty-five (35) years' imprisonment and an aggregate fine. Commonwealth v. Flick, No. CP-56-CR-0000141-2008 (Ct. Com. Pleas Somerset County).

         Petitioner filed a timely post-sentence motion for a new trial and arrest of judgment. (Post-Sentence Mot. Pursuant to Pa.R.Crim.P. 720, 6/14/10; ECF No. 30-7.) He alleged that the trial court erred in denying his motion for change of venue, appointing a former district attorney as his counsel, and giving the jury a prejudicial verdict slip. Id. On August 2, 2010, the trial court held a hearing regarding the motion and denied the motion on September 15, 2010. (Trial Court Memorandum, 9/15/10; ECF No. 30-8.) Petitioner filed a timely notice of appeal (Notice of Appeal, 10/13/10; ECF No. 31-2, p.54) and a Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal raising two issues: (1) Whether the court erred in not allowing his case to be tried outside of Somerset County; and (2) Whether the court erred in submitting a verdict slip which contained editorialization thereby creating a prejudice in the minds of the jurors to convict him (Brief for Appellant, 1/26/11; ECF No. 31-3, pp.1-15). On appeal, the Superior Court of Pennsylvania affirmed Petitioner's judgment of sentence. (Superior Court Memorandum, 8/30/11; ECF No. 31-5.)

         Petitioner next filed a petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”) on April 5, 2013. (Motion for Post Conviction Collateral Relief; ECF No. 32-1.) On May 29, 2013, the PCRA court held a preliminary review of the petition, during which Petitioner's PCRA counsel and the Commonwealth provided argument on whether an evidentiary hearing was necessary. (Superior Court Memorandum, 6/20/14; ECF No. 33-2, p.2); (N.T., 5/29/13; ECF No. 33-4, pp.17-55.) Following that argument, the court ordered counsel to brief the issue of timeliness and the issues that Petitioner raised in his petition. Id. The PCRA court also ordered the Commonwealth to respond to counsel's brief. Id. Following the briefing, on August 16, 2013, the PCRA court found that the PCRA petition was timely, but that an evidentiary hearing was unnecessary. (Memorandum & Order, 8/16/13; ECF No. 33-3, pp.2126.) Consequently, the court issued a notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 907. (Order, 8/16/13; ECF No. 33-3, p.26.) Petitioner's PCRA counsel filed a response to the Rule 907 notice on September 13, 2013, raising an issue that had not been raised in the PCRA petition or during oral argument. (ECF No. 33-4, pp.15-16.) On September 24, 2013, the PCRA court dismissed the PCRA petition. (Order, 9/24/13; ECF No. 32-3.)

         Petitioner filed a notice of appeal on October 25, 2013. (Superior Court Memorandum, 6/20/14; ECF No. 33-2, p.3.) The PCRA court ordered, and Petitioner timely filed, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Id. In lieu of a Rule 1925(a) opinion, the PCRA court relied upon its August 16, 2013 memorandum and order in finding that the petition was without merit. Id.

         On appeal, Petitioner argued that the PCRA court erred in denying his petition because his counsel was ineffective during the pre-trial phase and at trial. Id., p.4. Specifically, he argued that his appointed counsel was ineffective for waiving his preliminary hearing without a basis to do so and for not filing a habeas corpus motion to test whether the Commonwealth could present a prima facie case. Id., p.5. He also argued that his counsel was ineffective for failing to call certain witnesses at trial. Id, p.6. The Superior Court of Pennsylvania affirmed the PCRA court's denial of relief in a Memorandum dated June 20, 2014. (Superior Court Memorandum, 6/20/14; ECF No. 33-2.)

         Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court on July 21, 2014. (Appeal from Memorandum Entered on 6/20/14; ECF No. 33-3, pp.1-9.) It was denied on January 21, 2015. (Order, 1/21/15; ECF No. 33-5). He initiated the instant habeas corpus proceeding on March 25, 2015 (ECF No. 1), and filed a Supplement to his Petition on June 24, 2015 (ECF No. 8). Respondents filed a Motion to Dismiss the Petition (ECF No. 29) that was converted into an Answer by the Court in an Order dated November 16, 2015, (ECF No. 34). The Petition is now ripe for review.

         C. Standard of Review

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):

[Under the “contrary to” clause], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 1498. The Third Circuit Court of Appeals, consistent with the Williams v. Taylor interpretation, set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528 U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:

First, the federal habeas court must determine whether the state court decision was “contrary to” Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that “Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” O'Brien [v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an “unreasonable application” of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.

Id. at 891. The phrase “clearly established Federal law, ” as the term is used in Section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 365. Under the “unreasonable application” clause,

a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent GraterfordSCI, 677 F. App'x 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[, ] [a] federal court must then resolve ...

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