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Calhoun v. Smith

United States District Court, W.D. Pennsylvania

September 9, 2019

GARY CALHOUN, Petitioner,
v.
BARRY SMITH, Superintendent of SCI Houtzdale; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; and DISTRICT ATTORNEY OF CAMBRIA COUNTY, Respondents.

          Kim R. Gibson Judge

          REPORT AND RECOMMENDATION

          MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE

         I. RECOMMENDATION

         For the reasons that follow, it is respectfully recommended that the Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), ECF No. 3, be dismissed and that a Certificate of Appealability be denied.

         II. REPORT

         A. FACTUAL BACKGROUND

         The Pennsylvania Superior Court, in its July 11, 2016 Memorandum affirming the denial of Petitioner's first Post Conviction Relief Act ("PCRA") Petition, summarized the facts of this case as follows:

         During Appellant's direct appeal, we summarized the facts underlying his conviction and sentence as follows:

[Appellant] was charged with one count of corruption of minors and two counts each of indecent assault and endangering the welfare of children after his daughter, H.C., disclosed that [Appellant] repeatedly had her remove her pants and underwear, ostensibly so that [Appellant] could check to see if she was wiping properly, and touched her vaginal area, rubbing his fingers in a circular motion. A jury convicted [Appellant] of one count of corruption of minors and, on December 17, 2013, the trial court sentenced him to a mandatory term of twenty-five years in prison pursuant to 42 Pa, C.S, A. § 9781.2.[fn.1] [Appellant] was also found to be a sexually violent predator pursuant to 42 Pa.C.S.A. § 9792 and was directed to comply with the registration provisions of Megan's Law IV.
[fn.1] Section 9718.2 imposes a mandatory twenty-five-year sentence on offenders who have a prior conviction for certain offenses enumerated in 42 Pa.C.S.A. § 9799.14. [Appellant] was convicted in 1993 of multiple such offenses in relation to the sexual abuse of a daughter from a previous marriage.
Commonwealth v. Calhoun, 93 WDA 2014 (Pa. Super. 2014) (memorandum opinion).

Cmmw. v. Calhoun, 848 WDA 2015, 2016 WL 4965111, at *1 (Pa. Super. July 11, 2016) (some footnotes omitted).

         B. PROCEDURAL HISTORY

         1. State Court Procedural History

         The Pennsylvania Superior Court, in its July 11, 2016 Memorandum affirming the denial of Petitioner's first PCRA Petition, summarized the state court procedural history as follows:

Appellant filed a timely notice of appeal and we affirmed his judgment of sentence on November 12, 2014.
On January 1, 2015, Appellant filed a pro se petition for postconviction collateral relief. The PCRA court appointed counsel and counsel later filed an amended PCRA petition on Appellant's behalf. Within the PCRA petition, Appellant alleged that his trial counsel was ineffective for the following reasons: 1) "for failing to investigate the circumstances in which the allegations of sexual abuse surfaced [and] for failing to investigate or interview Christina Gibson who was present at the time the allegations were set forth by [H.C.];" 2) "for failing to investigate and present medical records supporting the medical conditions of the victim relevant to establishing a viable component of [Appellant's] defense;" 3) "for failing to subpoena the attendance and testimony at trial of Mr. William Ward, a former employee of Cambria County Children [and] Youth;" 4) "for failing to elicit and present school records of [E.C.] and the other children, medical records of [M.C.] and [G.C.] and divorce records and correspondence as [Appellant] requested to combat inferences and allegations" made by the Commonwealth;" and, 5) "for failing to object to the presence of the jury during testimony regarding competency of the minors [H.C.] and [M.C.]." Amended PCRA Petition, 3/12/15, at 3-6 (internal bolding omitted) (some internal capitalization omitted).
On March 26, 2015, the PCRA court held a hearing on Appellant's petition. During the PCRA hearing, Appellant presented the testimony of both he and his trial counsel, Arthur McQuillan, Esquire (hereinafter "Attorney McQuillan" or "trial counsel"). Appellant did not present the testimony of Christina Gibson or William Ward. Further, during the hearing, Appellant did not "present medical records supporting the medical conditions of the victim" and Appellant did not "present school records of [E.C.] and the other children, medical records of [M.C] and [G.C.] and divorce records and correspondence." Amended PCRA Petition, 3/12/15, at 3-6.
On April 28, 2015, the PCRA court entered an order denying Appellant's PCRA petition. Appellant filed a timely notice of appeal and now raises the following issues: 4
[1.] Whether trial counsel was ineffective for failing to investigate and interview Christina Gibson, a witness present at the time in which the allegations of sexual abuse against [Appellant] surfaced?
[2.] Whether trial counsel was ineffective for failing to investigate and present medical records and testimony on Appellant's behalf supporting the asserted defense of good faith medical and hygienic [purpose]?
[3.] Whether trial counsel was ineffective for failing to subpoena or request the attendance and testimony at trial of William Ward, a former employee of Cambria County Children and Youth Services?
[4.] Whether trial counsel was ineffective for failing to elicit and present school records of Appellant's other children as well as divorce records and correspondence as Appellant requested prior to trial in order to combat inferences and allegations made by the Commonwealth?
[5.] Whether trial counsel was ineffective for failing to object to the presence of the jury during competency testimony of [] Appellant's minor children, which ...

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