United States District Court, W.D. Pennsylvania
KENNETH N. BAKER, Petitioner,
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
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.
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
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:
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
State Court Procedural History
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,
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.
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.
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
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.).
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.
then filed a Second PCRA Petition in the state courts on
April 25, 2017. ECF No. 37 at 28 - 29. 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.
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.
Federal Court Procedural History
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.
instant Amended Petition, Petitioner raises nine Grounds for
GROUND ONE: Trial counsel was ineffective
for failing to propelly [sic] and completely investigate and
call alibi witnesses, in violation of 16th [sic]
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
Id. at 8.
GROUND FOUR: Prosecution withheld evidence
in violation of the due process rights of the 14th