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Baker v. Gilmore

United States District Court, W.D. Pennsylvania

August 19, 2019

KENNETH N. BAKER, Petitioner,
v.
ROBERT GILMORE, THE ATTORNEY, GENERAL OF THE STATE OF PENNSYLVANIA and DISTRICT ATTORNEY OF BEAVER COUNTY, Respondents.

          OPINION AND ORDER

          MAUREEN R. KELLY, UNITED STATES MAGISTRATE JUDGE

         Kenneth Baker ("Petitioner"), has filed his amended pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Amended Petition"), ECF No. 28, which is the operative petition, seeking to attack his state court convictions for aggravated assault, rape, involuntary deviate sexual intercourse, aggravated indecent assault, unlawful restraint and simple assault in connection with his attack on his estranged girlfriend in her home in July, 2010. As a consequence of these convictions, Petitioner is serving an aggregate sentence of 24 ½ to 49 years.

         For the reasons that follow, the Amended Petition will be denied because none of the grounds for relief merits the grant of federal habeas relief. Furthermore, because jurists of reason would not find this disposition of the Amended Petition debatable, a certificate of appealability will also be denied.

         I. FACTUAL BACKGROUND

         The Pennsylvania Superior Court in its November 21, 2014 Memorandum, adopted as its own, the summary of facts which the Post Conviction Relief Act ("PCRA") trial court provided as follows:

         The evidence and testimony presented at trial indicated that, on the evening of Saturday, July 24, 2010, Karen Dreher [i.e., the crime victim] attended her 30-year high school reunion with her cousin at the Beaver Valley Country Club. T.T., at 61-64.1 They stayed at the reunion until approximately midnight, at which time they went to Li'l Joe's bar in Beaver Falls with some friends. Id. at 67-68. At approximately 2:00 a.m., Ms. Dreher left the bar, and her cousin drove her to her home at 2207 7th Avenue in Beaver Falls. Id. at 68. Her cousin then watched as Ms. Dreher exited the vehicle and entered her house. Id. at 71.

1 The Court notes that Ms. Dreher, who was the victim of the underlying crimes in the above-captioned matter, suffered a stroke in 2004 and, as a result, has had difficulty communicating verbally since that time.
Upon entering the house, Ms. Dreher found her estranged boyfriend, the Defendant Kenneth N. Baker (hereinafter, "Defendant"), in a back room of her house.2 Id. at 95, 110-11. She indicated to Defendant that he startled her and that she was going upstairs to get undressed and to go to sleep. Id. at 111-12. According to Ms. Dreher, Defendant then followed her upstairs and began beating her, pulling her hair out, tearing her nightgown, and attempting to choke her "to death." Id. at 114, 126, 161. She testified that she felt as though she was dying as he choked her. Id. at 114. Ms. Dreher also testified that, after beating her, Defendant inserted a metal tube into her anus and had sex with her against her will. Id. at 115. Ms. Dreher indicated that, after this abuse took place, Defendant made her bathe and wash her clothes. Id. at 115- 16. According to Ms, Dreher, Defendant prevented her from leaving the house or calling for help until shortly before noon on Monday, July 26, 2010, after he left. Id. at 118. Once Defendant left the house, Ms. Dreher escaped to the residence of her neighbor Vernon Jeter, and the police and paramedics were called. Id. at 118-19. Ms. Dreher was then transported to the Heritage Valley Medical Center where she was examined and treated for her injuries. Id. at 119-20.
2Other testimony presented at trial suggested that Ms. Dreher let Defendant into her house. Id. at 488.
At approximately 1:30 p.m. on July 26, 2010, Detective Kevin Burau of the Beaver Falls Police Department reported to the Heritage Valley Medical Center to speak with Ms. Dreher. T.T., at 318-19. Upon arrival, Detective Biirau was told by Ms. Dreher that she was physically and sexually assaulted by Defendant in her home after returning to the residence early Sunday morning, July 25, 2010. Id. at 320-24. While speaking to Ms. Dreher, Detective Burau observed that she had bruises, scratches, and swelling on her face and neck and that she was visibly shaken and in pain. Id. at 320, 323. Following this discussion, Detective Burau obtained the sexual assault evidence collection kit that was assembled in connection with this ease. Id. at 325. Detective Burau then secured a search warrant for Ms. Dreher's residence to collect additional evidence relating to this matter. Id. at 325-26.

Com, v. Baker, 152 WDA 2014, 2014 WL 10788752, at *l-2 (Pa. Super. Nov. 21, 2014); PCRA Trial Court Opin., ECF No. 9-19 at 1 - 2.1

         II. PROCEDURAL HISTORY

         A. State Court Procedural History

         The Pennsylvania Superior Court, in its November 21, 2014 Memorandum also adopted the PCRA trial court's recounting of the state court procedural history as follows:

On July 27, 2010, Detective Burau filed a criminal complaint charging Defendant with one count of aggravated assault, one count of burglary, one count of criminal trespass, two counts of rape, two counts of involuntary deviate sexual intercourse, one count of sexual assault, three counts of aggravated indecent assault, three counts of indecent assault, two counts of unlawful restraint, two counts of simple assault, one count of recklessly endangering another person, and one count of harassment. A warrant was issued for Defendant's arrest, and, on August 12, 2010, Defendant was confined in the Beaver County Jail. Approximately one month later, Defendant posted bail and was released.
Following a preliminary hearing on November 5, 2010, the charges were held for Court. On November 29, 2010, the Commonwealth filed an Information charging Defendant with the above-listed offenses. Initially, Defendant was scheduled for trial during the January 2011 trial term; however, on January 27, 2011, defense attorney Stephen D. Colafella withdrew his appearance on behalf of Defendant because of Defendant's inability to meet his financial obligations to Mr. Colafella. As a result, Defendant's trial was continued to the March 2011 trial term. Defendant subsequently violated the requirements of his bond by failing to provide notice of his change of address, and he failed to appear at a Criminal Judicial Pre-Trial Conference scheduled for February 15, 2011. As a result, a bench warrant was issued on February 16, 2011, and Defendant was again incarcerated on February 28, 2011.
On March 7, 2011, Assistant Public Defender Thomas Kurt Fuchel entered his appearance on behalf of Defendant, and the trial was continued to the May 2011 trial term in order to provide time for defense counsel to prepare. On March 30, 2011, Defendant filed apro se Motion for Conflicts Counsel, alleging that Attorney Fuchel was negotiating a plea agreement on behalf of Defendant without having met with him. Defendant later filed apro se Motion for Ineffective Counsel as well as apro se Motion for Conflict of Interest, in which Defendant alleges that prosecuting attorney Frank Martocci represented Defendant in a 1998 case. These motions were forwarded to Attorney Fuchel in accordance with Rule 576(A)(4) of the Pennsylvania Rules of Criminal Procedure, and no further action was taken on them.
On May 10, 2011, the trial was again continued to the July 2011 trial term because Defendant was waiting on DNA analysis and discovery photos. On July 12, 2011, the Commonwealth filed an Amended Information which included one count each of aggravated assault (18 Pa.C.S.A. § 2702(a)(1)), criminal trespass (18 Pa.C.S.A. § 3503(a)(1)(i)), rape (18 Pa.C.S.A. § 3121(a)(1)), involuntary deviate sexual intercourse (18 Pa.C.S.A. § 3123(a)(1)), aggravated indecent assault (18 Pa.C.S.A. § 3125(a)(2)), indecent assault (18 Pa.C.S.A. § 3126(a)(2)), unlawful restraint (18 Pa.C.S.A. § 2902(a)(1)), simple assault (18 Pa.C.S.A. § 2701(a)(1)), and harassment (18 Pa.C.S.A. § 2709(a)(1)),
Defendant's trial took place on July 13, 14, and 15, 2011. Following trial, the jury returned a verdict of not guilty on the charge of criminal trespass and a verdict of guilty on the charges of aggravated assault, rape, involuntary deviate sexual intercourse, aggravated indecent assault, indecent assault, unlawful restraint, and simple assault. The Court also found Defendant guilty of the summary offense of harassment.
On July 18, 2011, the Court set a date for sentencing and ordered that Defendant undergo a Sexually Violent Predator Assessment. On the same date, Defendant filed apro se Notice of Appeal and Request for Transcripts which were forwarded to Attorney Fuchel. Defendant submitted a similar motion on September 1, 2011 which was also forwarded to Attorney Fuchel.
Defendant's Assessment was conducted on September 23, 2011 by Julia L. Lindemuth, a member of the Pennsylvania Sexual Offenders Assessment Board. After the assessment, the Commonwealth requested a hearing to determine Defendant's status as a sexually violent predator. On September 27, 2011, prior to his sentencing, Defendant again filed a. pro se Motion for Conflicts Counsel which was also forwarded to the Public Defender's Office. No action was taken on his Motion until the sentencing hearing on October 25, 2011.
During the sentencing hearing, Defendant was represented by Assistant Public Defender Ronald Rojas, who was appointed to replace Attorney Fuchel after he left the Public Defender's Office. Through his pro se Motion for Conflicts Counsel, Defendant indicated that he was seeking to raise issues of ineffective assistance of counsel relating to Attorney Fuchel's representation of Defendant during trial. Citing Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), the Court refrained from addressing Defendant's ineffectiveness claims at the. sentencing hearing, stating that such issues should not be raised until collateral review. The Court then heard testimony from Ms. Lindemuth and Defendant on the issue of Defendant's status as a sexually violent predator. Following the testimony and arguments, the Court found that Defendant has anti-social personality disorder, causing him to sexually offend Ms. Dreher and making it likely that Defendant will reoffend. As a result, the Court concluded that Defendant should be classified as a sexually violent predator. The Court also sentenced Defendant to a term of incarceration of 24 and one-half years to 49 years based on his convictions for aggravated assault, rape, involuntary deviate sexual intercourse, and unlawful restraint.
On November 2, 2011, Defendant, through Attorney Rojas, filed a Post Sentence Motion challenging the weight and sufficiency of the evidence and requesting a new trial or dismissal of the charges. The Court scheduled oral argument on the Motion for January 30, 2012. During the following months, Defendant filed a. pro se Motion to Modify and Reduce Sentence, two pro se Petitions to Proceed In Forma Pauperis, a pro se Notice of Appeal, a pro se motion alleging ineffective assistance of counsel, a pro se Petition for Nunc Pro Tune-Rule, apro se Application for Credit Time, and apro se Motion for Post Conviction Collateral Relief. No action was taken on these motions other than to forward them to Attorney Rojas. After hearing oral argument on Defendant's Post Sentence Motion, the Court denied the Motion in an Opinion dated February 15, 2012. On March 14, 2012, Defendant appealed, and on December 3, 2012, the Superior Court of Pennsylvania affirmed the judgment of sentence.
Upon receipt of Defendant's pro se Motion for Post Conviction Collateral Relief that was filed on January 18, 2012, the Court appointed Attorney Steven Valsamidis to represent Defendant in these collateral proceedings. Attorney Valsamidis subsequently requested and was granted leave to withdraw from this matter due to a conflict of interest. As a result, on May 29, 2013, Attorney Sherri Hurst was appointed to represent Defendant in these collateral proceedings. After review of the record in this matter and the applicable law, Attorney Hurst filed a no-merit letter, concluding that the issues raised by Defendant lack merit and that no other issues could be raised on Defendant's behalf that would make him eligible for relief. On November 25, 2013, Defendant filed a pro se Notice of Appeal. The Notice was not docketed or forwarded to the Superior Court because Defendant failed to include the proper proof of service and filing fee. On December 6, 2013, the Court granted Attorney Hurst leave to withdraw from this matter and provided Defendant with 21 days to show cause why his Motion for Post Conviction Collateral Relief should not be dismissed. On December 16, 2013, Defendant filed a document entitled Intention to Not Dismiss Petition for Relief Under P.C.RA. After review of this document, the Court dismissed Defendant's Motion for Post Conviction Collateral Relief on January 7, 2014. In doing so, the Court incorporated the reasoning specified in Attorney Hurst's no merit letter.
On January 20, 2014, Defendant filed the instant pro se Notice of Appeal. The Court subsequently granted Defendant leave to proceed in forma pauperis and directed Defendant to file a Statement of Errors Complained of on Appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On February 6, 2014, Defendant filed a pro se Pa.RA.P. 1925(b) Statement raising 13 allegations of error.

Com. v. Baker, 2014 WL 10788752, at *2-A; ECF No. 9-19 at 2 - 7.

         The Superior Court affirmed the denial of PCRA relief and adopted the reasoning of the PCRA trial court as its own. Id. at 1; ECF No. 9-22 at 2 ("We conclude that Judge Tesla's 21-page opinion accurately and thoughtfully disposes of the issues presented by Appellant. Accordingly, we adopt his opinion as our own and affirm the order denying Appellant's PCRA petition on that basis.") (footnote omitted).

         After the Superior Court affirmed the denial of PCRA relief, Petitioner filed a pro se Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, which denied relief on March 30, 2015. Commonwealth v. Baker, No. 611 WAL 2014 (Pa.).

         After initiating this current federal habeas proceeding on March 1, 2016 in this Court and after Respondents filed their Answer, ECF No. 9, wherein they pointed out that Petitioner had not properly exhausted two of his Grounds For Relief, which he had raised in his original habeas petition filed at ECF No. 3, Petitioner requested this Court to stay these federal habeas proceedings in order for him to go back to state court and exhaust his state court remedies. ECF No. 14. This Court granted the stay. ECF No. 15.

         Petitioner then filed a Second PCRA Petition in the state courts on April 25, 2017. ECF No. 37 at 28 - 29.[2] The PCRA Court, on April 26, 2017, entered a Preliminary Order and Notice of Court, indicating that it intended to dismiss the second PCRA Petition because Petitioner was not entitled to relief and notifying Petitioner that he was permitted to file a response to that Preliminary Order and Notice of Court. ECF No. 37 at 25 - 26. After being granted an extension of time to file his Response, ECF No. 37 at 39, Petitioner filed his brief response on or about June 7, 2017. ECF No. 37 at 42 - 43. On June 16, 2017, the PCRA Court dismissed Petitioner's Second PCRA Petition as time barred in addition to finding that the issues of trial counsel's alleged ineffectiveness had been waived for not being raised previously in the first PCRA petition. ECF No. 37 at 48 - 49. Petitioner was advised of his right to appeal to the Pennsylvania Superior Court. From the docket of Petitioner's criminal case, it does not appear that he filed any appeal thereafter regarding the denial of his Second PCRA Petition.

         We take judicial notice of the fact, as revealed by the dockets of the Court of Common Pleas of Beaver County, that while these federal habeas proceedings were pending, Petitioner filed on July 24, 2019, yet a third PCRA Petition in the Court of Common Pleas of Beaver County. The Court of Common Pleas of Beaver County on July 29, 2019, issued a Notice of Intent to Dismiss the Third PCRA Petition.

         B. Federal Court Procedural History

         In the instant federal habeas action, Petitioner filed a Motion for Leave to Proceed In Forma Pauperis ("IFP Motion"), ECF No. 1, which was granted. ECF No. 2. The Petition was filed on March 3, 2016. ECF No. 3. Respondents filed their Answer on April 14, 2016, wherein Respondents asserted that Petitioner had failed to exhaust certain of his claims. ECF No. 9. On February 24, 2019, Petitioner filed a Motion for Stay and Abeyance, wherein he sought a stay of these federal habeas proceedings while he returned to state court to exhaust his state court remedies with respect to those allegedly unexhausted claims. The Court did stay the case pending Petitioner's exhaustion of his state court remedies, but denied his request to require the state court to conduct an evidentiary hearing. ECF No. 15. After some intervening filings, Petitioner file a Motion to Reopen the case on August 24, 2017. ECF No. 22. The Court granted the Motion to Reopen, and ordered Petitioner to file an amended Petition containing all claims that he wished to raise. ECF No. 23. Petitioner then filed the instant Amended Petition, which is the operative Petition. ECF No. 28.

         In the instant Amended Petition, Petitioner raises nine Grounds for Relief:

GROUND ONE: Trial counsel was ineffective for failing to propelly [sic] and completely investigate and call alibi witnesses, in violation of 16th [sic] Amendment.

         ECF No. 28 at 5.

GROUND TWO: Trial court violated the Due Process clause of the 14th Amendment by denying appellant from being involved injury sellection [sic].

Id. at 7.

GROUND THREE: Trial Court denied Appellant effective representation in violation of the 6th Amendment.

Id. at 8.

GROUND FOUR: Prosecution withheld evidence in violation of the due process rights of the 14th ...

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