United States District Court, M.D. Pennsylvania
JOHN E. JONES III, JUDGE
Donald Michael Kloch (“Petitioner” or
“Kloch”), a state inmate currently confined at
the State Correctional Institution at Houtzdale,
Pennsylvania, filed his “All-inclusive Amended
Petition” (Doc. 5) for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 on May 26, 2017, seeking relief from
his convictions in Court of Common Pleas of York County,
Pennsylvania, criminal case CP-67-CR-0006893-2012. Initially,
Respondents moved to dismiss the petition as untimely. The
Court denied the motion on October 30, 2017, and directed
Respondent to file a Response to the petition. (Doc. 14).
Following a sixty day enlargement of time, Respondents filed
their response on February 5, 2018. Petitioner filed his
Traverse on February 16, 2018. The Amended Petition is ripe
for disposition. For the reasons that follow, the Court will
deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
February 11, 2013, a jury found Kloch guilty of one count of
attempted homicide, two counts of aggravated assault, three
counts of terroristic threats, one count of false
imprisonment, one count of unlawful restraint, three counts
of simple assault, three counts of recklessly endangering
another person, and one count of attempted involuntary
deviate sexual intercourse, in Court of Common Pleas of York
County, Pennsylvania, criminal case CP-67-CR-0006893-2012.
(Doc. 18-2, p. 225).
Superior Court set forth the following pertinent facts:
[Kloch's] convictions arose from events that transpired
on May 7, 2012, in Peach Bottom Township. At that time, the
victim, Aerial Auble, was at [Kloch's] house purchasing
and consuming drugs. Auble came and went from [Kloch's]
residence several times that day. Eventually, after
exchanging text messages with one Kacey Simon, Auble informed
[Kloch] that Simon could get them a good deal on Percocet.
[Kloch] gave Simon $800 and transported Auble and Simon to a
house in Maryland. [n.1 The record variously identifies the
amount of money as $800 and $900]. Simon went into the house,
but never returned, and no one answered the door to the house
when [Kloch] knocked. Simon initially had responded to text
messages from Auble, but eventually stopped returning her
[Kloch] and Auble returned to [Kloch's] residence and
went into his bedroom. [Kloch] announced his intent to go to
Simon's house. He retrieved a double-barreled shotgun and
loaded it. Auble attempted to grab her purse and leave, but
[Kloch] prevented her. [Kloch] told Auble that she was
responsible for him losing his money and that she needed to
fix it. [Kloch] then repeatedly told Auble that she better be
“a good piece of ass' for his money. [Kloch]
grabbed Auble by the hair and the shotgun discharged through
the floor near Auble's feet. [Kloch] pushed Auble onto
the bed and, while holding her down, reloaded the shotgun.
[Kloch] first tried to remove Auble's clothing and then
exposed his penis and attempted to force Auble's face
down to his groin, telling her to “suck his
At this moment, Auble's cellular telephone began to ring.
[Kloch] grabbed the phone and hit Auble in the head with it
which had the inadvertent effect of answering the telephone.
On the other end was Auble's mother who overheard the
sounds of their struggle. Auble's mother summoned
Auble's father and the two of them, along with one
Benjamin Pohl, went to [Kloch's] house. Ultimately,
Auble's father and Pohl entered the house and broke down
the bedroom door. [Kloch] threatened them with the shotgun,
and a physical struggle for the gun ensued among [Kloch],
Auble's father, and Pohl, with the gun twice discharging
into the bedroom wall. [Kloch] eventually lost control of the
gun and Auble, her father, and Pohl were able to make their
escape. [Kloch] followed them out onto his front porch
threatening that if he saw any of them again, he would kill
(Id. at pp. 80-81).
30, 2013, he received a sentence of 8 ½ to 17 years
imprisonment followed by 5 years of probation. (Id.
at 227). Following the denial of post-sentence motions, he
filed a timely appeal. (Id.). On July 8, 2014, the
Superior Court of Pennsylvania affirmed his judgment of
sentence. (Id., citing Commonwealth v.
Kloch, 105 A.3d 784 (Pa. Super. 2014) (unpublished
October 15, 2014, he filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§9541-9546. (Id.). The PCRA court
appointed counsel. (Id.). Counsel filed an amended
petition on February 2, 2015, raising the following issues:
A. [Kloch] received ineffective assistance of counsel because
trial counsel was not adequately prepared for trial.
B. Ineffective assistance of trial counsel due to
counsel's failure to call character witnesses on
C. Trial counsel was ineffective for failing to engage the
services and present testimony of an expert in Firearms and
D. Trial counsel was ineffective for failing to properly
preserve the claim that the verdict was against the weight of