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Kloch v. Smith

United States District Court, M.D. Pennsylvania

July 29, 2019

DONALD MICHAEL KLOCH, Petitioner,
v.
BARRY SMITH, Superintendent; PA STATE ATTORNEY GENERAL, Respondents.

          MEMORANDUM

          HON. JOHN E. JONES III, JUDGE

         Petitioner 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).

         The 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 messages.
[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 dick.”
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 them.

(Id. at pp. 80-81).

         On May 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 memorandum).

         On 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 [Kloch's] behalf.
C. Trial counsel was ineffective for failing to engage the services and present testimony of an expert in Firearms and Ballistics.
D. Trial counsel was ineffective for failing to properly preserve the claim that the verdict was against the weight of ...

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