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Gagot v. Clark

United States District Court, W.D. Pennsylvania

July 25, 2018

MARCUS ANTHONY GAGOT, KY-0046, Petitioner,
v.
MICHAEL CLARK, et al., Respondents.

          MEMORANDUM OPINION AND ORDER

          Robert C. Mitchell United States Magistrate Judge

         Marcus Anthony Gagot an inmate at the State Correctional Institution -Albion has presented a petition for a writ of habeas corpus (ECF No.3) which he has been granted leave to prosecute in forma pauperis.[1]

         Gagot is serving a fifteen to thirty year sentence imposed on February 14, 2013 following his conviction by a jury of aggravated indecent assault, indecent assault, rape, statutory sexual assault, sexual assault and corruption of minors at No. CP-04-CR-1892-2011 in the Court of Common Pleas of Beaver County, Pennsylvania.[2] An appeal was taken to the Superior Court in which the sole issue presented was “whether the guilty verdict as to all counts, rendered by the jury would ‘shock the conscience' as being against the weight of the evidence.”[3] On April 25, 2014, the judgment of sentence was affirmed.[4] A petition for allowance of appeal to the Pennsylvania Supreme Court was filed and leave to appeal was denied on August 26, 2014.

         A timely post-conviction petition was filed and dismissed without a hearing on June15, 2016.[5] An appeal was filed in which the questions presented were:

I. Did counsel render prejudicially ineffective assistance for failing to notice, make inquiries and obtain a copy of the arrest warrant being that Appellant was not provided a copy…
II. Did counsel render prejudicially ineffective assistance for failing to effectively cross-examine Ms. Valentine on her conflicting statements contained in Kathy Kloonan's report in comparison to her statements to police and on the stand…
III. Did counsel render prejudicially ineffective assistance for accepting a $3, 000 retainer and failing to comply with Pa.R.Crim.P. 120(a)(1), and thereby placing the appellant at a disadvantage, unfairly at a critical stage pursuant to United States v. Cronic, 466 U.S. 648, 659 …
IV. Did counsel render prejudicially ineffective assistance for failing to move the court for an in-camera inspection of otherwise confidential information protected by law or statute with regard to only the verbatim statements made pertaining to the allegations pursuant to Commonwealth v. Ritchie, 509 Pa. 357 (1985), if not discoverable or within the possession of the Commonwealth.
V. Did the trial court err in its denial of appellant's motion for judgment of acquittal having failed to prove all the elements of “forcible compulsion” as required by law…
VI. Did Assistant District Attorney commit prosecutorial misconduct by failing to disclose complete discovery concerning the “relative fluorescence unit' values of both DNA samples obtained and tested along with the report of Jennifer Wright of CYS who interviewed Ms. Valentine…
VII. Did counsel render prejudicially ineffective assistance for failing to familiarize himself with the process of DNA testing sufficiently to move the court for the need of an expert, and to require the prosecution to produce the “relative fluorescence unit” values report to better and effectively cross-examine Dr. Hai Sheng Li as his cross-examination of her was minimal and inadequate.[6]

         On April 7, 2017 the denial of post-conviction relief was affirmed[7] and allowance of appeal was denied on May 3, 2017.

         In the instant petition filed on June 19, 2017, petitioner contends he is entitled to relief on five claims of ineffective assistance of counsel and one claim each of prosecutorial misconduct/Brady violation and abuse of discretion by the court. Specifically, he contends that he is entitled to relief on the following grounds:

         I. Ineffective counsel in that:

1. Counsel failed to enter his appearance pursuant to Pa.R.Crim. P. 120 (A)(1) after having been retained forcing [him] to go through a formal arraignment unrepresented at this critical stage. [This he claims was critical in that the date of arraignment created the timeframe in which to file various motions].
2. Counsel failed to petition the court for an in-camera inspection of verbatim statements made by the alleged victim to CYS employee Jennifer Wright and Patty Husselton of the Women's Center [resulting in denial] of the ability to effectively confront and cross-examine the witness[es] against me in violation of procedural and substantive rights ...

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