Opinion
CIVIL NO: 1:14-CV-01940
02-21-2017
ANDREW J. ALLAM, SR. Petitioner v. LAUREL HARRY, Respondent
(Judge Caldwell) () REPORT AND RECOMMENDATION
I. Introduction.
In this habeas corpus case, the petitioner, Andrew J. Allam, Sr., is challenging his conviction and sentence from the Court of Common Pleas of Pike County, Pennsylvania arising from his sexual abuse of a child. Allam presented 26 claims in his habeas petition, but his counsel briefed only two claims: (1) the information charging him with 56 counts was defective; and (2) there was insufficient evidence to convict him of 55 of those 56 counts. Because Allam's claims are without merit, we recommend that his petition for a writ of habeas corpus be denied.
II. Background and Procedural History.
A. Charges and Pretrial Proceedings.
By a criminal information, the Commonwealth charged Allam with 56 counts relating to sexual abuse of K.S. between May 1, 2007 and August 21, 2009, at a home in Crescent Lake Community, Pike County. Doc. 27-1 at 52-61. Allam was charged with three counts of rape of a child in violation of 18 Pa.C.S. § 3121(c); five counts of involuntary deviate sexual intercourse with a person less than 13 years old in violation of 18 Pa.C.S. § 3123(b); 15 counts of involuntary deviate sexual intercourse with a person less than 16 years old in violation of 18 Pa.C.S. § 3123(a)(7); 17 counts of statutory sexual assault in violation of 18 Pa.C.S. § 3122.1; five counts of indecent assault of a person less than 13 years old in violation of 18 Pa.C.S.A. § 3126(a)(7); one count of corruption of a minor in violation of 18 Pa.C.S. A. § 6301(a)(1); and 10 counts of indecent assault of a person less than 16 years old in violation of 18 Pa.C.S.A. § 3126(a)(8). Id.
Each of the three counts in the information charged that Allam did "engage in sexual intercourse with a female complainant, K.S., who is less than 13 years of age." Doc. 27-1 at 52.
Each of the five counts in the information charged that Allam did "engage in deviate sexual intercourse with a female complainant, K.S., who is less than 13 years of age, in that he performed oral sex on complainant and caused complainant to perform oral sex on him." Doc. 27-1 at 53.
Each of the 15 counts in the information charged that Allam did "engage in deviate sexual intercourse with a female complainant, K.S., who is less than 16 years of age and the Defendant is four or more years older than the complainant and they are not married to each other, in that he performed oral sex on complainant and caused complainant to perform oral sex on him." Doc. 27-1 at 53-56.
Each of the 17 counts in the information charged that Allam did "engage in sexual intercourse with a female complainant, K.S., who is under the age of 16 years and the Defendant is four or more years older than the complainant and they are not married to each other." Doc. 27-1 at 56-59.
Each of the five counts in the information charged that Allam did "have indecent contact with a female complainant, K.S., or caused the complainant to have indecent contact with him, by touching the genitals of the complainant with his hands and/or fingers and causing the complainant to touch his penis, the complainant being less than 13 years of age." Doc. 27-1 at 59.
This count in the information charged that Allam "being the age of 18 years or more, corrupted or did an act that tended to corrupt the morals of a minor, K.S., or aided, abetted, enticed or encouraged the minor in the commission of a crime, or knowingly assisted or encouraged the minor in violating his or her parole, in that he engaged in sexual activity with a female minor, K.S., who is less than 18 years of age." Doc. 27-1 at 60.
Each of the ten counts in the information charged that Allam did "have indecent contact with a female complainant, K.S., or caused the complainant to have indecent contact with him, by touching the genitals of the complainant with his hands and/or fingers and causing the complainant to touch his penis, the complainant being less than 16 years of age and the defendant is four or more years older than the complainant and they are not married to each other." Doc. 27-1 at 60-61.
Allam filed a request for a bill of particulars seeking the "exact dates, times and locations" of the events underlying the charges, the "conduct specifically and personally committed" by him, and the conduct that "specifically forms the elements of the crimes charged." Doc. 27-2 at 40. The prosecution responded that the exact dates and times of the offenses are unknown but the "offenses were a course of conduct which occurred between May 1, 2007 and August 21, 2009." Doc. 27-2 at 42.
Allam filed an omnibus pretrial motion seeking to have the criminal information dismissed because it was vague; seeking to have statements that he made to the police suppressed on that basis that he was not advised of his Miranda rights before giving the statements; seeking to have a statement that K.S. made to the police suppressed on the basis that the statement was tainted by others vilifying him to K.S. or, in the alternative, to have a competency hearing of K.S.; seeking to preclude evidence from DNA testing on the basis that he did not sign the consent form for such testing until after his DNA sample was taken; and seeking to dismiss the charges against him on the grounds of double jeopardy given that in an earlier dependency proceeding, the judge determined that he had sexually abused K.S. and the judge terminated his parental rights as to his own children. Doc. 27-1 at 62-71. He later filed a supplemental omnibus pretrial motion adding claims that the Commonwealth should be required to produce K.S. for an interview by a defense expert, that evidence of a letter that he sent to K.S. from jail should be suppressed, and that the judge should recuse himself. Doc. 27-1 at 72-83.
After a hearing, the court denied Allam's omnibus pretrial motion. Doc. 27-1 at 213-225. As relevant to the issues raised in this case, the court concluded that the information did not violate Allam's due process rights and denied his motion to dismiss the information for vagueness. Id. at 214-215. It also found that Allam was not subject to custodial interrogation when he made statements to the police; thus, the police were not required to advise him of his Miranda rights. Id. at 216-217. Concluding that because K.S. was 14 years old at the time she made statements, Allam was not, as a matter of law, entitled to a taint hearing and it was for the jury to judge K.S.'s credibility, the court denied Allam's motion to suppress the statements made by K.S. Id. at 217-218. The court also denied Allam's motion to preclude DNA evidence finding that Allam consented to the DNA test. Id. at 221-222. It also denied his motion to dismiss on double jeopardy grounds finding that the dependency proceedings were civil, rather than criminal, in nature and Allam was not in jeopardy of criminal punishment in those proceedings. Id. at 222-223.
B. The Trial and Verdict.
A jury trial was held on November 18-19, 2010. See Doc. 27-1 at 226-571. At trial, the prosecution relied on the testimony of the victim, K.S., as well as the testimony of Pennsylvania State Police Trooper James Travis. The prosecution also presented a DNA expert, testimony from a crisis intervention worker, and testimony from an employee of the Pike County Correctional Facility. The defense recalled Trooper Travis, and the defense presented one new witness—Dianna Goldberg. The evidence at trial revealed the following.
On August 21, 2009, K.S., fourteen years old and alone, delivered a baby on the floor of the bathroom of her home. She had not known that she was pregnant. K.S. was taken to the hospital, where she spoke to Trooper Travis. She initially told Trooper Travis that the father of her child was someone from school, which is what her mother and Allam, who was 37 years old and K.S.'s mother's boyfriend, told her say. Later, however, she told Trooper Travis that Allam was the father of her baby. Subsequent DNA tests confirmed that Allam is the father of K.S.'s child.
Trooper Travis also spoke to Allam at the hospital on the night the baby was born. Allam admitted that he had sex with K.S., but he said it happened only once. He also told Trooper Travis that he wanted to marry K.S. "after all this." Doc. 27-1 at 339. In a written statement made at the police station later that evening, Allam again admitted to having sex with K.S. one time. About two weeks later, Allam again admitted to Trooper Travis that he had sex with K.S. This time, he admitted that it was more than a one-time thing, and it started within six months of April of 2007, when they moved into a house at Crescent Lake. He told Trooper Travis that K.S. was like his wife, that they had a "normal" husband and wife relationship, and that "[t]hey would have intercourse and oral sex just like any normal husband and wife." Doc. 27-1 at 352. Allam provided another written statement to that effect. In that written statement, Allam also admitted to having intercourse with K.S. about 20 times, and he stated, "[w]e both performed oral sex on each other maybe ten times." Id. at 355.
Although K.S. initially told Trooper Travis that she and Allam had sex only one time, she testified that that was not true. In fact, she recalls having sexual intercourse with Allam 20 times. K.S. testified that in 2007, while she was only 12 years old, her relationship with Allam became sexual. Allam started by touching K.S.'s vagina and breasts. She testified that he touched her vagina with his hands, with his penis, and with his mouth. She also testified that before she turned 13, Allam performed oral sex on her five or six times and she performed oral sex on him probably the same number of times. And she testified that she had intercourse with Allam three times before she turned 13. According to K.S., after she turned 13, she performed oral sex on Allam probably 20 or more times and he performed oral sex on her maybe same number of times. K.S. also testified that after she turned 13, she continued to touch Allam's genitals and he continued to touch her genitals with his hands. She testified that that touching happened more than once.
At trial, the prosecution also presented the testimony of a crisis intervention caseworker who spoke to Allam in August of 2009. Allam told her that K.S. was more of a wife to him than her mother was and that he and K.S. had been "messing around" for the past three years. Id. at 413.
Through the testimony of an employee of the Pike County Correctional Facility, the prosecution also presented portions of recorded phone calls that Allam made from prison to Dianna Goldberg. The upshot of these calls was that Allam was instructing Goldberg to tell K.S. to say that they had had sex only once. During these calls, Allam also stated that he and K.S. had a right to do what they wanted, that he was going to get K.S. pregnant again, and that she would have another baby before she was 16.
The prosecution also presented at trial a letter that Allam sent to K.S. while he was in prison. In addition to professing his love for K.S., Allam tells K.S. that his roommate is the father of one or her friends and that this roommate said the best thing she can do is deny everything because she will not get in trouble. Doc. 27-2 at 5 & 7. Allam attached a number of documents to the letter including a written statement that K.S. gave to Trooper Travis on November 18, 2009. In that statement, K.S. recounted her relationship with Allam, and she explained that she took over the role of wife to him. She stated that they had oral sex about 20 times and that they had sexual intercourse about 20 times. She also stated that "[d]uring the same time that the oral sex starte[d] we began to touch each other in the genital areas." Doc. 27-2 at 13. Although admitted into evidence, the letter from Allam to K.S. was not published to the jury until the prosecution read portions of the letter during its closing argument.
After the Commonwealth rested, Allam moved to dismiss the case on the basis that the Commonwealth failed to produce sufficient evidence to support all the charges against him. The Court denied that motion, and the defense proceeded to present its case. It called Dianna Goldberg who testified that she was the person that Allam was talking to on the recordings played by the Commonwealth. She testified that she had no intent of going through with what Allam was asking her to do on the recordings. On cross-examination, she testified that Allam had admitted to her that he had sex with K.S. more than once. The defense also recalled Trooper Travis and questioned him about the circumstances under which Allam gave a DNA sample.
During deliberations, the jury requested to see, among other things, Allam's letter to K.S. and K.S.'s November 18, 2009 statement. The trial judge refused to send the letter itself to the jury room, but he sent K.S.'s statement, which was attached to the letter, to the jury.
The jury found Allam guilty of all 56 counts. Doc. 27-2 at 20-26. The judge later sentenced him to a total of 40 to 80 years imprisonment and a total fine of $169,500. Doc. 27-2 at 27-39.
C. Direct Appeal.
Allam filed an omnibus post trial motion seeking a new trial and seeking to modify his sentence. Doc. 27-2 at 44-46. After the trial court denied that motion, Allam filed an appeal to the Superior Court of Pennsylvania. Doc. 27-2 at 47-49. In his brief to the Superior Court, Allam raised the following nine claims:
(1) Whether the lower court erred as a matter of law in denying defendant's motion to suppress the charges for lack of specificity in the charging instrument?
(2) Did the Honorable Court err by failing to suppress the statements of Allam made on 8/21/2009 and 09/03/2009?
(3) Did the lower court err by denying defendant's motion for mistrial based on [the] prosecutor[']s reference in closing argument to defendant's silence?
(4) Did the Honorable Court err in not suppressing [the] statement of KS made on 11/18/09?Doc. 27-2 at 77-78.
(5) Did the Honorable Court err in denying defendant's request for a taint hearing?
(6) Did the lower court err in denying defendant's double jeopardy defense, raised as part of the omnibus pre-trial motion and at trial?
(7) Did the Honorable Court err by failing to give the jury a double jeopardy instruction in closing argument?
(8) Whether the DNA evidence was obtained contrary to the laws of the Commonwealth?
(9) Whether the trial court erred in finding the defendant to be a sexually violent predator?
On December 2, 2011, the Superior Court affirmed Allam's judgment of sentence. See Com. v. Allam, 40 A.3d 182 (Pa. 2012) (table); see also Doc. 27-2 at 113-138. It concluded that Allam waived claims 3, 7, and 9 and that Allam's other claims were meritless. Doc. 27-2 at 116-138. More specifically, as to Allam's claim that the criminal information lacked specificity, the court found that given that the case involved a "years-long" continuous course of criminal conduct involving sexual abuse of a child, the trial court properly denied Allam's motion to dismiss the charges for lack of specificity. Id. at 118. As to Allam's claim that the court erred in failing to suppress his statements to the police, the Superior Court found that the trial court's factual finding that Allam was not subject to custodial interrogation when he made statements was supported by the record. Id. at 124. As to Allam's claim that the court erred in not suppressing K.S.'s November 18, 2009 statement to the police, the Superior Court agreed with the trial court that Allam lacked standing to request suppression of K.S.'s statement. Id. at 129. As to Allam's claim that the court erred in denying his request for a "taint" hearing to determine whether K.S. was competent to testify, the Superior Court agreed with the trial court that because K.S. was 14 years old, Allam was not, as a matter of law, entitled to a taint hearing. Id. at 132. As to Allam's claim that the court erred in denying his defense of double jeopardy, the Superior Court agreed with the lower court's conclusion that double jeopardy was not implicated by the dependency proceedings because Allam was not in jeopardy of criminal punishment in those proceedings. Id. at 134-135. As to Allam's claim regarding the legality of the collection of the DNA evidence, the Superior Court concluded that the lower court's finding that Allam had consented to the DNA test was supported by the record. Id. at 137.
On August 7, 2012, the Pennsylvania Supreme Court denied Allam's petition for allowance of appeal. Com. v. Allam, 50 A.3d 124 (Pa. 2012) (table).
D. PCRA Proceedings.
On August 27, 2010, Allam filed a Post-Conviction Relief Act (PCRA) petition. Doc. 27-2 at 196-203. After allowing Allam's counsel leave to withdraw, the PCRA court notified Allam of its intent to dismiss the PCRA petition and gave Allam 20 days to respond to the proposed dismissal. Doc. 27-2 at 219-220. Allam did not respond, and the PCRA dismissed the petition without a hearing. Doc. 27-2 at 221.
The PCRA petition refers to an "Exhibit A-1" for a statement of his claims. Doc. 27-2 at 198. That exhibit is not part of the record in this case. But PCRA counsel listed the claims set forth in that exhibit in her no-merit letter attached to her motion to withdraw as counsel. See Doc. 27-2 at 207-209.
After Allam filed a notice of appeal, the PCRA judge issued an opinion pursuant to Pa.R.A.P. 1925 explaining his decision on the PCRA petition. Doc. 27-2 at 244-252. The judge concluded that Allam's claims of ineffective assistance of counsel were the only claims properly raised in the PCRA petition, but he found that there was no evidence of ineffective assistance. Id. at 247-248. He also concluded that the claims raised in the PCRA petition that Allam had also raised on direct appeal were previously litigated, and, thus, not properly raised in connection with the PCRA petition. Id. at 248-250. The PCRA court also determined that Allam's "allegations of prosecutorial and police misconduct [were] unsupported by the record and were never raised on direct appeal and also not raised in Defendant's PCRA Petition." Id. at 250-251. Further, it determined that the claims of prosecutorial misconduct were without merit. Id. at 251. With respect to the remaining claims, the PCRA court determined that Allam "failed to plead a constitutional violation with any particularity." Id. at 252. Further, the PCRA court determined that Allam "failed to plead the remaining claims cited in his Amended Concise Statement in his original PCRA petition." Id. Thus, the PCRA court implicitly determined that Allam had waived those claims. See id. Finally, the PCRA Court determined that Allam waived his right to a hearing on his PCRA petition by failing to respond to the no-merit letter. Id.
According to the Superior Court of Pennsylvania, a Rule 1925 opinion provides a trial court with an opportunity to explain its trial and post-trial actions. See Commonwealth v. Clinton, 683 A.2d 1236, 1239 (Pa. Super. Ct. 1996); see also, Hull v. Kyler, 190 F.3d 88, 100-01, (3d Cir. 1999) (discussing Rule 1925).
The Superior Court affirmed the PCRA court. Com. v. Allam, No. 959 EDA 2013, 2014 WL 10965163, at *4 (Pa. Super. Ct. Mar. 7, 2014). After pointing out that Allam's statement of his claims was "merely a rambling attack on multiple facets of the trial court's proceedings," the Superior Court agreed with the PCRA court that "nearly all of [Allam]'s issues presented were previously litigated in his direct appeal, were waived, or they are not cognizable claims under the PCRA." Id. The Superior Court also agreed with the PCRA court that the only "cognizable issues that are arguably viable" were Allam's ineffective-assistance-of-counsel claims. Id. And as to those claims, it agreed with the PCRA court that they were without merit. Id. In sum, the Superior Court concluded that "the PCRA court's opinion thoroughly addresses the issues raised on appeal, delineates which issues are cognizable, concludes those issues lack merit, and explains why the remaining issues were either previously litigated and disposed of on direct appeal or waived." Id.
On September 3, 2014, the Pennsylvania Supreme Court denied Allam's petition for allowance of appeal. Com. v. Allam, 99 A.3d 75 (Pa. 2014) (table).
E. The Habeas Petition and Proceedings.
On October 7, 2014, Allam filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. Allam's pro se petition raises 26 claims:
(1) The consent & DNA obtained from defendant is in violation of state and federal constitutions, and contrary to the laws of the Commonwealth. This violated petitioner's right as guaranteed by Amendment 4 of the U.S. Constitution. See Katz v. United States, 389 U.S. 347 S-Ct.
(2) The testimony by KS at jury trial is contradictory, evasive, not conclusive, and contrary to prior PCCY statements, reports, and evidence at several juvenile court proceedings. Thus, the failure to impeach by petitioner's counsel constitutes IAC thus violating petitioner's 6 Amendment to the U.S. Constitution. See Driscoll v. Delo, 71 F.3d 701.
(3) Defendant's counsel so utterly failed to defend against the charges that the trial was the functional equivalent of a guilty plea rendering counsel's representation presumptively inadequate. This violated petitioner's right to due-process of law and right to counsel as guaranteed by Amendments 5 and 6 to the U.S. Constitution. See United States v. Cronic, 466 U.S. 648 S.Ct.
(4) The Commonwealth violated the defendant's federal & Pennsylvania Constitutional rights, defendant was substantially denied an opportunity to present a defense by the Commonwealth's failure to specify the date or dates on which the alleged offenses were actually committed. This violated PA Const. Article 1 §9 Amendments 5 and 14 to the U.S. Constitution. See Twining v. N.J., 211 U.S. 78 S-Ct.
(5) The trial court improperly allowed KS to testify as a witness for the Commonwealth at trial, after the same president judge had determined KS to be unavailable due to emotional distress and could not communicate effectively at prior juvenile court hearings.
(6) Defendant was denied a unanimous jury verdict based on carbon-copy counts and conduct that was not differentiated in anyway. This violated petitioner's right to trial by jury, and his right to a unanimous jury verdict as guaranteed by Amendments 6 and 14 to the U.S. Constitution and PA Const. Article 1 §6 and §9. See Burch v. Louisiana, 441 U.S. 130 S.Ct.
(7) The prosecution of defendant in criminal court regarding the same parties, conduct, and facts that were already litigated in juvenile court violates the double jeopardy clause of the 5th & 14th Amendments of the U.S. Constitution and in violation of due-process. See Breed v. Jones, 421 U.S. 519 S-Ct.
(8) The signature on the bottom of pages one & two of the alleged victim's 11-18-09 PSP written statement are not of the alleged victim, thus a product of forgery.
(9) The criminal information 469-2009 filed against the defendant was not signed by the attorney for the Commonwealth which calls into question the authenticity of said information. This violated petitioner's right guaranteed by Amendment 5 to the U.S. Constitution. See Commonwealth v. Brinton, 303 Pa. Super. 14, 449 A.2d 54.
(10) Defendant's counsel was ineffective in failing to conduct a reasonable pre-trial investigation. This violated defendant's right to counsel as guaranteed by Amendments 6 & 14 of the U.S. Constitution. See Wiggins v. Smith, 123 S.Ct. 2527.
(11) The Assistant District Attorney Sarah A. Wilson had committed prosecutorial misconduct which so infects the defendant's jury trial with unfairness as to make the resulting conviction a denial of due process. This violated petitioner's right to due process [and] a fair trial, as guaranteed by Amendment 5, 6, and 14 to the U.S. Constitution. See Estelle v. McGuire, 502 U.S. 62.
(12) The Commonwealth had failed to prove an element of each offense, and due to lack of evidence, the Commonwealth failed to meet its burden. This violated petitioner's right to due process of law as guaranteed by Amendments 5 and 14 to the U.S. Constitution. See In re Winship, 397 U.S. 358, S-Ct.
(13) The Commonwealth obtained DNA samples from KS & CS without consent, which is contrary to PA & U.S. Constitutions and contrary to the laws of the Commonwealth. This constitutes illegal search and seizure, thus violating Amendment 4 of the U.S. Constitution. See Katz v. U.S. 389 U.S. 347 S-Ct.
(14) The jury erred in finding defendant guilty on all counts with no evidence and contradictory testimony from (KS), testimony is contrary to her 11-18-09 statement, juvenile court evidence, PCCY testimony and evidence. This violated petitioner's right to effective counsel and due process as guaranteed by Amendments 5, 6, and 14 to the U.S. Constitution. See Naupe v. People of Illinois, 360 U.S. 264.
(15) The Commonwealth by charging defendant with six sets of carbon copy counts that are identical in every way and undifferentiated in the criminal information violate ordinary rules of notice, duplicity, multiplicity, jury unanimity, double jeopardy, sufficiency of the evidence, constitutional and due process rights as guaranteed by Amendments 5, 6, 7, and 14 to the U.S. Constitution. See U.S. v. Cruikshank, 92 U.S. 542 S-Ct.
(16) Trooper Travis had testified at pre-trial & jury trial. [S]aid testimony was inconclusive, contradictory, bias, and perjured, [and] his actions constitute a personal interest in proving defendant is guilty. This violated Amendment 6 to the U.S. Constitution. See McCall, 714 F.Supp. at 379.
(17) Defendant was tried in both juvenile court and criminal court thus, a "dual sovereignty" the second trial being criminal and prosecuted by the Commonwealth constitutes double jeopardy, [which is] a violation of the 5th & 14th amendments of the U.S. Constitution. See Waller v. Florida, 397 U.S. 387 S-Ct.
(18) Defendant's criminal information No. 469-2009 is defective; the information had charged all the offenses in the generic statutory definition employed by the statute. This denied petitioner's right to notice, due process and protection from double jeopardy, as guaranteed by Amendments 5, 6, and 14 to the U.S. Constitution. See Russell v. United States, 369 U.S. 749 S-Ct.
(19) The application for the warrant of arrest, and the actual warrant of arrest filed by the (MJD) that Trooper Travis had while arresting defendant on 11-24-09 were both incomplete and invalid. This violated petitioner's rights as guaranteed by Amendment 4 and 14 to the U.S. Constitution. See Franks v. Delaware, 438 U.S. 154.
(20) Trooper Travis failed to read defendant Miranda warnings prior to questioning, and before he arrested defendant and had placed him in hand cuffs on 11-24-09. This violated petitioner's right to counsel and to remain silent as guaranteed by Amendments 5 and 6 to the U.S. Constitution. See Commonwealth v. Witherspoon, 756 A.2d 677, and Commonwealth v. Simala, 252 A.2d 575.
(21) The trial judge by allowing the 11-18-09 PSP written statement by KS to be taken back into the jury room during deliberation is [a] violation[] of defendant's constitutional rights and contrary to rules of court. This violated petitioner's right to confrontation and cross-examination as guaranteed by Amendments 5, 6, and 14 to the U.S. Constitution. See Crawford v. Washington, 124 S.Ct. 1354.
(22) ADA Wilson had erred by agreeing to allow the KS PSP written statement to go back into the jury room during deliberation, thus denying defendant's right to a fair trial and in violation of PA Court rules and due process. This violated Amendments 5 and 6 to the U.S. Constitution. See Nabia v. U.S., 546 U.S. 803 S-Ct.
(23) Defendant's defense attorney Mark Moulton had erred by agreeing with the ADA to allow KS['s] 11-18-09 PSP written statement to go back into the jury room during deliberation[s], which violated defendant's due process rights. This violated Amendments 5 and 6 to the U.S. Constitution. See Powell v. Alabama, 287 U.S. 45 S-Ct.
(24) Exhibit 10, the "letter" from defendant to KS, was read by ADA Wilson during closing arguments. [This] was improper, contrary to PA court rules and violative of defendant's constitutional rights. This violated Amendment 6 to the U.S. Constitution. See Gochicoa v. Johnson, 53 F.Supp. 2d.Doc. 1 at 15-87 (some spelling, grammar, capitalization, and punctuation corrected for readability).
(25) Defendant states the probable cause prepared by Trooper Travis contains several false statements regarding criminal conduct that are not corroborated by his police report or statements made by defendant nor KS. The probable cause reflects libel, perjury, and fraud by Trooper Travis. This denied petitioner his rights as guaranteed by Amendments 4 and 14 to the U.S. Constitution. See Franks v. Delaware, 438 U.S. 154. S-Ct and U.S. v. Halsey, 257 F. Supp. 1002.
(26) Petitioner had been sentenced pursuant to the minimum mandatory sentencing provided by 42 Pa.C.S. § 9718 to 10 to 20 years on each count of rape of a child (3)-counts and sentenced to 10 to 20 years on each count of IDSI (20)-counts. Those mandatory sentences are unconstitutional. See Comm. v. Newman, No. 1980 EDA 2012, 2014 WL 4088805 - Aug. 20th 2014, citing U.S. Supreme Court, Alleyne v. U.S.
On June 22, 2015, the respondent filed a response to the habeas corpus petition. The response did not, however, comply with either the Order directing the response or Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. The respondent also did not include copies of the relevant state proceedings as ordered. Further, the respondent did not address each claim in the petition. For example, while the respondent asserted that Allam failed to present many of his 26 claims to the state courts, she did not assert to which claims she was referring. Further, the respondent asserted that most of Allam's claims are based on fabricated facts that do not appear in the record. Again, however, the respondent failed to assert which facts were fabricated. Given the respondent's wholly inadequate response, we appointed counsel to represent Allam, and we ordered Allam's counsel to file either an amended petition or a brief addressing the claims in Allam's petition. On September 9, 2015, Allam filed a brief in support of the original petition, but he only briefed two of the 26 claims in the petition. The respondent filed a response to Allam's brief, and on November 27, 2015, Allam filed a reply.
III. Habeas Standards.
A. Exhaustion and Procedural Default.
"Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism." Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). One of these rules is that a state prisoner must exhaust available state remedies before filing a petition for habeas corpus in federal court. 28 U.S.C. § 2254(b) and (c). The exhaustion requirement serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) ("Comity . . . dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief."). "The exhaustion rule also serves the secondary purpose of facilitating the creation of a complete factual record to aid the federal courts in their review." Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A habeas corpus petitioner bears the burden of demonstrating that he has exhausted state remedies. O'Halloran v Ryan, 835 F.2d 506, 508 (3d Cir. 1987). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845.
In Pennsylvania, pursuant to Order 218 of the Pennsylvania Supreme Court, review of criminal convictions and post-conviction relief matters from the Pennsylvania Supreme Court is discretionary and "unavailable" for purposes of exhausting state court remedies under § 2254. Lambert v. Blackwell, 387 F.3d 210, 233 (3d Cir. 2004). Thus, to exhaust state remedies, a Pennsylvania prisoner need appeal only to the Pennsylvania Superior Court.
In order to exhaust state remedies for federal habeas corpus purposes, a petitioner must show that he fairly presented his federal claim to the state courts. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The fair-presentation requirement provides the State the opportunity to consider and correct an alleged violation of a prisoner's federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). "If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id. at 365-66. "It is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted). Rather, for a claim to have been fairly presented to the state courts, both the legal theory and the facts supporting the claim must have been presented to the state courts. O'Halloran, 835 F.2d at 508.
"[O]rdinarily a state prisoner does not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27, 32 (2004). "A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" Id. Although to meet the fair-presentation requirement, a petitioner need not cite '"book and verse"' of the federal constitution, "the substance of a federal habeas corpus claim must first be presented to the state courts." Picard, 404 U.S. at 278. "A petitioner can 'fairly present' his claim through: (a) reliance on pertinent federal cases; (b) reliance on state cases employing constitutional analysis in like fact situations; (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution; and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007).
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused. Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002); see also McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) ("When a claim is not exhausted because it has not been 'fairly presented' to the state courts, but state procedural rules bar the applicant from seeking further relief in state courts, the exhaustion requirement is satisfied because there is 'an absence of available State corrective process.'"). Such a claim is procedurally defaulted, rather than unexhausted. A procedural default occurs when a prisoner's claim is barred from consideration in the state courts by an "independent and adequate" state procedural rule. Martinez, 132 S.Ct. at 1316. A procedural default generally bars a federal court from reviewing the merits of a habeas claim that the prisoner procedurally defaulted in state court. Id.; Munchinski v. Wilson, 694 F.3d 308, 332 (3d Cir. 2012). "Grounded in principles of comity and federalism, the procedural default doctrine prevents a federal court sitting in habeas from reviewing a state court decision that rests on a state law ground 'that is sufficient to support the judgment,' when that state law ground 'is independent of the federal question and adequate to support the judgment.'" Munchinski, 694 F.3d at 332-33 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). "In such situations, 'resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory.'" Id. at 333.
There are, however, exceptions to the bar on consideration of procedurally defaulted claims. Martinez, 132 S.Ct. at 1316. A federal court may consider the merits of a procedurally defaulted habeas claim in two situations: (1) the petitioner establishes cause for the default and actual prejudice because of the alleged violation of federal law; or (2) the petitioner demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. "To show cause and prejudice, 'a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements.'" Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002) (quoting Coleman, 501 U.S. at 753). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime by presenting new evidence of innocence." Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citation omitted).
B. The Standard for Addressing Habeas Claims on the Merits.
In addition to overcoming procedural hurdles, a state prisoner must meet exacting substantive standards in order to obtain habeas corpus relief. As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 limits the power of a federal court to grant a state prisoner's petition for a writ of habeas corpus. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A federal court may not grant habeas corpus relief with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;28 U.S.C. § 2254(d).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
The standard under Section 2254(d) is highly deferential and difficult to meet. Cullen, 563 U.S. at 181. It "reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-103 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). State courts are presumed to know and follow the law, Woods v. Donald, 135 S.Ct. 1372, 1376 (2015), and Section 2254(d) "'demands that state-court decisions be given the benefit of the doubt.'" Cullen, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
Under Section 2254(d)(1), only the holdings, not the dicta, of the Supreme Court constitute "clearly established Federal law." Howes v. Fields, 132 S.Ct. 1181, 1187 (2012). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 563 U.S. at 181. Under the "contrary to" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000).
Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413. But federal habeas relief may be granted only if the state court's application of clearly established federal law was objectively unreasonable. Keller v. Larkins, 251 F.3d 408, 418 (3d Cir. 2001). "[A]n incorrect application of federal law alone does not warrant relief." Id. "[I]f the state-court decision was reasonable, it cannot be disturbed." Hardy v. Cross, 132 S.Ct. 490, 495 (2011). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). "When assessing whether a state court's application of federal law is unreasonable, 'the range of reasonable judgment can depend in part on the nature of the relevant rule' that the state court must apply." Renico v. Lett, 559 U.S. 766, 776 (2010) (quoting Yarborough, 541 U.S. at 664). "Because AEDPA authorizes federal courts to grant relief only when state courts act unreasonably, it follows that '[t]he more general the rule' at issue—and thus the greater the potential for reasoned disagreement among fair-minded judges—'the more leeway [state] courts have in reaching outcomes in case-by-case determinations.'" Id. (emphasis in original).
Under the "unreasonable determination of the facts" provision of § 2254(d)(2), the test "is whether the petitioner has demonstrated by 'clear and convincing evidence,' § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record." Roundtree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011). "[T]he evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication." Id. at 538.
"In considering a § 2254 petition, we review the 'last reasoned decision' of the state courts on the petitioner's claims." Simmons v. Beard, 590 F.3d 223, 231-32 (3d Cir. 2009) (citing Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir.2008)). Thus, "[w]e review the appellate court decision, not the trial court decision, as long as the appellate court 'issued a judgment, with explanation, binding on the parties before it.'" Burnside v. Wenerowicz, 525 F. App'x 135, 138 (3d Cir. 2013). But when the highest state court that considered the claim does not issue a reasoned opinion, we look through that decision to the last reasoned opinion of the state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
The highly deferential standard of § 2254(d) applies only to claims that have been "adjudicated on the merits" in the state court. Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012). "[I]f the state court did not reach the merits of the federal claims, then they are reviewed de novo." Id. But we must still presume that the state court's factual determinations are correct, and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Further, even as to a claim adjudicated by the state court on the merits, if a habeas petitioner overcomes the § 2254(d) hurdle, the habeas court then considers the claim de novo. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (When § 2254(d) is satisfied, "[a] federal court must then resolve the claim without the deference AEDPA otherwise requires.").
IV. Sufficiency-of-the-Criminal-Information Claim.
Allam presents a claim that the criminal information was unconstitutional because it charged him with numerous counts that "provided little detail regarding each offense" and "the multiple, undifferentiated charges in the Information violated Allam's rights to notice and his right to be protected from double jeopardy." Doc. 27 at 59 & 63.
The Superior Court addressed Allam's challenge to the criminal information as follows:
Appellant's first issue is that the court erred in denying his motion to dismiss all the charges for lack of specificity in the criminal complaint. He avers that the complaint alleged twenty to thirty acts, each of which required him to account for his whereabouts and actions on those dates. He argues he bore "a fundamentally unfair burden" to defend against "a charge of conduct occurring anywhere within a fourteen-month period." Appellant's Brief at 19. Appellant then cites to case authority for the principle that in child sexual abuse cases, the Commonwealth is afforded great latitude in forming its charging instrument. However, he argues, those case overlook an important premise: our jurisprudence, as symbolized by the blind lady of justice, "requires facts to be uniformly analyzed by 'cold' filters, so that each analysis is done the some rote way." Id. at 17.
Appellant concedes that current Pennsylvania authority provides the Commonwealth latitude in drafting a criminal information in a child sexual abuse case. In Commonwealth v. Brooks , 7 A.3d 852 (Pa. Super. 2010), appeal denied, 21 A.3d 1189 (Pa. 2011), to which Appellant cites, this Court stated that the Commonwealth bears a duty to
fix the date when an alleged offense occurred with reasonable certainty. . . . The purpose of so advising a defendant of the date when an offense is alleged to have been committed is to provide him with sufficient notice to meet the charges and prepare a defense.
Id. at 857-58 (citation and quotation marks omitted). However, the Brooks Court further noted:
Case law has further "established that the Commonwealth must be afforded broad latitude
when attempting to fix the date of offenses which involve a continuous course of criminal conduct" This is especially true when the case involves sexual offenses against a child victim.
Id. at 858 (emphasis added) (citations omitted). Indeed, Appellant cites the following statement made by this Court: "[W]e do not believe that it would serve the ends of justice to permit a person to rape and otherwise sexually abuse his child with impunity simply because the child has failed to record in a daily diary the unfortunate details of her childhood." Appellant's Brief at 17 (quoting Commonwealth v. Niemetz , 422 A.2d 1369, 1373 (Pa. Super. 1980)).
We interpret Appellant's discussion as an argument that this line of case authority was wrongly decided. To the extent he asks this Court to overrule those cases or announce a new rule, we cannot do so.[10] See Commonwealth v. Prout , 814 A.2d 693, 695 n.2 (Pa. Super. 2002) (per curiam) (stating Superior Court is constitutionally bound to follow decisions of Pennsylvania Supreme Court and bound by prior Superior Court panel decisions). Instead, we find that in this case of years-long sexual abuse against a child, the trial court properly applied the law in denying Appellant's motion to dismiss the charges for lack of specificity in the criminal complaint. See Brooks , 7 A.3d at 857-58; Niemetz , 422 A.2d at 1373.
Doc. 27-2 at 116-119 (emphasis in original; one footnote omitted).[10 Appellant also cites Valentine v. Konteh , 395 F.3d 626 (6th Cir. 2005), in support of his argument. We decline to consider this decision, as "[a]bsent a United States Supreme Court pronouncement, decisions of federal courts are not binding on state courts . . . ." See Commonwealth v. Rolan , 964 A.2d 398, 407 (Pa. Super. 2008).]
Allam does not cite any Supreme Court case in which the Supreme Court found a criminal information constitutionally inadequate because it charged numerous instances of the same crimes occurring over an extended period without setting forth a specific date or specific circumstances surrounding each instance or otherwise differentiating the claims. Instead, Allam contends that the Superior Court's opinion was contrary to Russell v. United States, 369 U.S. 749, 751, 752-755 (1962) (holding that indictments for refusing to answer certain questions of a congressional subcommittee in violation of 2 U.S.C. § 192 (which made it criminal to refuse to answer any question "pertinent to the question under inquiry") were constitutionally inadequate given that they "failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated"). In that case, the Supreme Court set forth "two of the criteria by which the sufficiency of an indictment is to be measured." Id. at 763. The first criteria set forth by Russell was "whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet." Id. (internal quotation marks omitted) (quoting Cochran v. United States, 157 U.S. 286, 290 (1895)). The second criteria set forth by Russell was "in case any other proceedings are taken against [the defendant] for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." Id. at 764. (quoting Cochran, 157 U.S.at 290).
Russell "stand[s] for nothing more than the general proposition that a defendant must have adequate notice of the charges against him." Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam). The general proposition that a defendant must receive adequate notice of the charges "is far too abstract to establish clearly the specific rule" id., that Allam is asserting, i.e., that a criminal information that charges numerous instances of the same crimes occurring over an extended period of time without differentiating between the crimes is unconstitutional. Allam has not cited a Supreme Court case that clearly establishes that the criminal information in his case was unconstitutional. Thus, he has not shown that the state court decision was contrary to clearly established federal law under § 2254(d)(1).
Allam does cite Valentine v. Konteh, 395 F.3d 626, 628 (6th Cir. 2005), in support of this claim. In that case, "Valentine was convicted of 20 'carbon-copy' counts of child rape, each of which was identically worded so that there was no differentiation among the charges and 20 counts of felonious sexual penetration, each of which was also identically worded." Id. at 628. "The prosecution did not distinguish the factual bases of these charges in the indictment, in the bill of particulars, or even at trial." Id. "The District Court issued the writ of habeas corpus . . . on the ground that the indictment and conviction violated Valentine's federal due process rights to notice of the crime charged with sufficient specificity so that he would not again be put in jeopardy of the same crime." Id. The Sixth Circuit affirmed holding that "the multiple, undifferentiated charges in the indictment violated Valentine's rights to notice and his right to be protected from double jeopardy." Id. at 631. It concluded that the state court's decision holding otherwise was an unreasonable application of Russell.
Although Valentine does support Allam's position that the criminal information in his case was defective, the Supreme Court has repeatedly admonished that under 28 U.S.C. § 2254(d), only the holdings of its decisions constitute clearly established federal law; Circuit Court opinions do not count. See Lopez, 135 S. Ct. at 2 ("We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is 'clearly established.'"). Under § 2254(d), "Circuit precedent cannot 'refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced.'" Id. at 4 (quoting Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013)). Thus, although Valentine supports Allam's contention that the criminal information in his case was unconstitutional, it is not a basis to hold that the state court here violated clearly established federal law. Accordingly, Allam is not entitled to a writ of habeas corpus on the basis that the criminal information was constitutionally insufficient.
V. Sufficiency-of-the-Evidence Claim.
Allam claims that the evidence was insufficient for the jury to convict him of 55 of the 56 counts against him. Although he does not claim that there was insufficient evidence to convict him of corruption of a minor, he claims that there was insufficient evidence to convict him of all the others counts.
Allam concedes that he procedurally defaulted his sufficiency-of-the-evidence claim by failing to raise it in state court during his direct appeal. The respondent, on the other hand, contends that the PCRA court adjudicated the sufficiency-of-the-evidence claim on the merits. In fact, the PCRA court concluded that the only claims raised in the PCRA petition that were not waived or previously litigated were Allam's ineffective-assistance-of-counsel claims. And the PCRA court adjudicated on the merits only those ineffective-assistance-of- counsel claims. The PCRA court implicitly held that the sufficiency-of-the-evidence claim was waived because Allam did not raise it on direct appeal. And the Superior Court agreed with the PCRA court. Thus, we reject the respondent's assertion that the sufficiency-of-the-evidence-claim was adjudicated on the merits in the state court. Rather, Allam procedurally defaulted his sufficiency-of-the-evidence claim.
Although Allam concedes that he procedurally defaulted his sufficiency-of-the-evidence claim, he contends that he can show cause and prejudice to excuse his default. He contends that the court should excuse his procedural default because his PRCA counsel was ineffective by failing to raise a claim that his appellate counsel was ineffective for failing to raise the sufficiency-of-the-evidence claim on appeal.
The same attorney represented Allam both at trial and on direct appeal. Although Allam attempts to frame the issue as his trial counsel failing to raise a sufficiency-of-the-evidence claim, trial counsel did actually raise that claim at trial after the Commonwealth rested its case. The claim, however, was defaulted because it was not included in Allam's direct appeal. Thus, it was his counsel acting in his appellate capacity that caused the default. --------
To establish "cause" for a procedural default, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Mere "[a]ttorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray, 477 U.S. at 488). Attorney error that rises to the level of a Sixth Amendment violation, however, does constitute cause. Id. at 753-54. "Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that federal habeas review entails." Id. at 754. Thus, because there is a constitutional right to effective assistance of counsel on direct appeal, "an attorney's errors during an appeal on direct review may provide cause to excuse a procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims." Martinez v. Ryan, 566 U.S. 1, 11 (2012).
In Coleman, the Court held that ineffective assistance of counsel on appeal from a denial of state habeas review is not cause for a procedural default. 501 U.S. at 757. The Court in Coleman reasoned that because there is no constitutional right to counsel in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings, and, therefore, attorney error on appeal of such proceedings does not constitute cause to excuse a procedural default. Id. at 752-754. Reiterating "that counsel's ineffectiveness will constitute cause only if it is an independent constitutional violation," the Court stated that "[i]n the absence of a constitutional violation, the petitioner bears the risk in federal habeas for all attorney errors made in the course of the representation." Id. at 754-55.
In Martinez, the United States Supreme Court created a narrow exception to the rule set forth in Coleman that an attorney's errors in post-conviction collateral proceedings do not constitute cause to excuse a procedural default. 132 S.Ct. at 1315. The Court in Martinez held that a prisoner may establish cause for the procedural default of an ineffective-assistance-of-trial-counsel claim by demonstrating the ineffective assistance of his or her counsel in "initial-review collateral proceedings," which the Court defined as collateral proceedings that "provide the first occasion to raise a claim of ineffective assistance at trial." Id. The Court declined to hold, however, that there is a constitutional right to counsel in initial-review collateral proceedings. Id. The Court stressed that the rule of Coleman continues to apply "except as to initial-review collateral proceedings for claims of ineffective assistance of counsel at trial." Id. at 1319.
Relying on Martinez, Allam contends that the ineffective assistance of his PCRA counsel is cause to excuse his procedural default of his sufficiency-of-the-evidence claim. Allam's reliance on Martinez falters at the outset because under Martinez, the ineffective assistance of PCRA counsel can only be used to show cause for default of an ineffective-assistance-of-trial-counsel claim. Here, the claim that Allam procedurally defaulted is a sufficiency-of-the-evidence claim, not an ineffective-assistance-of-trial-counsel claim. Thus, Martinez cannot be used to excuse the procedural default.
Allam also contends that "[t]he cause in the present case is a combination of the ineffective assistance of trial counsel in failing to raise a meritorious issue on appeal and the ineffective assistance of PCRA counsel in failing to advance the claim of ineffective assistance of appellate counsel." Doc. 27 at 49-50. As set forth above, the ineffective assistance of PCRA counsel cannot be used to excuse the default of the sufficiency-of-the-evidence claim. Moreover, if appellate counsel was ineffective by failing to raise the sufficiency-of-the-evidence claim on direct appeal that may constitute cause for the procedural default, but as Allam recognizes, to do so the claim of ineffective assistance of appellate counsel must have been exhausted in the state court as an independent claim first and not itself procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 448 & 451-453 (2000) (holding that "a federal habeas court is barred from considering an ineffective-assistance-of-counsel claim as 'cause' for the procedural default of another claim when the ineffective-assistance claim has itself been procedurally defaulted" and when the petitioner cannot "satisfy the cause-and-prejudice standard with respect to that claim") (italics in original). Allam did not raise an ineffective-assistance-of-appellate counsel claim in state court, and as it is too late for him to do so now, he has procedurally defaulted such a claim. Thus, unless he can show cause and prejudice to excuse his procedural default of the ineffective-assistance-of-appellate-counsel claim, such claim cannot constitute cause for the procedural default of his sufficiency-of-the-evidence claim.
Allam's attempt to excuse the procedural default of the ineffective-assistance-of-appellate-counsel claim by relying on Martinez and the ineffective assistance of PCRA counsel is unavailing. "Martinez does not apply to allegations that PCRA counsel was ineffective in advancing the claim that direct appeal counsel in the state courts rendered constitutionally defective representation." Robertson v. PA Atty. Gen., No. 4:CV-10-0833, 2014 WL 4977508, at *8 (M.D. Pa. Oct. 3, 2014); see also Jordan v. Rozum, No. CV 13-2503, 2016 WL 5673913, at *6-7 (E.D. Pa. Oct. 3, 2016) (concluding that under Martinez, ineffectiveness of PCRA counsel cannot supply cause to excuse the procedural default of a claim of ineffective assistance of appellate counsel and noting that although the Third Circuit has yet to address the issue, the Sixth, Seventh, Eighth, and Tenth Circuits have explicitly held that Martinez does not apply in such a situation and only the Ninth Circuit has held otherwise). Thus, the ineffective assistance of PCRA counsel cannot be used to excuse the procedural default of the ineffective-assistance-of-appellate-counsel claim. Accordingly, Allam cannot use the procedurally defaulted ineffective-assistance-of-appellate-counsel claim to establish cause for his procedural default of his sufficiency-of-the-evidence claim.
Moreover, even if Allam could show cause to excuse his procedural default of his sufficiency-of-the-evidence claim, he cannot show prejudice because there was sufficient evidence to convict him. Sufficiency-of-the-evidence claims are governed by the seminal case of Jackson v. Virginia, in which the Court held that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319 (1979) (emphasis in original). This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts," and under this standard, the court must presume that the trier of fact resolved any conflicts in favor of the prosecution. Id. at 319 & 326.
Here, despite Allam's arguments that the evidence was undifferentiated and K.S.'s testimony was equivocal in certain respects, given the testimony from K.S. about Allam's ongoing sexual contact with her and about the number of times certain acts occurred as well as Allam's own statements about his sexual relationship with K.S., the jury could reasonably find that Allam was guilty of all 56 counts beyond a reasonable doubt.
Allam argues that given K.S.'s testimony that he had sexual intercourse with her "maybe about three" times before she turned 13, doc. 27-1 at 293, the testimony was equivocal and not sufficient to support convictions for three counts of rape of a child. Despite the "maybe" in the context of this testimony, K.S. later confirmed that she has sex with Allam three times before she turned 13:
Q: How many times total would you say you had sex with Andrew Allam?Doc. 27-1 at 301. At the time of the offenses, 18 Pa.C.S. §3121(c) provided: "A person commits the offense of rape of a child, a felony of the first degree, when the person engages in sexual intercourse with a complainant who is less than 13 years of age." Given K.S.'s testimony that Allam has sex with her three times before she turned 13, there was sufficient evidence for a reasonable jury to convict Allam of three counts of rape of a child.
A: I recall about twenty.
Q: And you said about 3 of them were before you turned 13?
A: Yes.
Allam also argues that K.S.'s testimony that he performed oral sex on her "maybe five or six" times before she turned 13 and that the number of times she performed oral sex on him was "probably about the same," doc. 27-1 at 293, was insufficient to convict him of 5 identical counts of Involuntary Deviate Sexual Intercourse (IDSI) with a person under 13. At the time of the offenses, 18 Pa.C.S. §3123(b) provided: "A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age." Deviate sexual intercourse is defined as, among other things, "[s]exual intercourse per os or per anus between human beings." 18 Pa.C.S.A. § 3101. And "the ordinary meaning of 'per os or per anus' is through or by means of the mouth or posterior opening of the alimentary canal." Com. v. Kelley, 569 Pa. 179, 186 (2002). Although K.S.'s testimony was somewhat equivocal about the exact number of times oral sex occurred before she was 13, Allam was charged with only five counts of IDSI with a person under 13, and the testimony was sufficient for a reasonable jury to conclude that oral sex occurred at least five times before K.S. turned 13.
The same goes with respect to the five counts of indecent assault of a child under 13. K.S. testified that her relationship with Allam became sexual when she was 12, when Allam started to touch her vagina and breasts. She also testified that she and Allam had intercourse three times before she was 13 and that there was multiple instances of oral sex before she was 13. Moreover, in one of Allam's statement to the police, he admitted that the sexual relationship started within six months of April of 2007, at which time K.S. was only 12 years old. At the time of the offenses, 18 Pa.C.S.A. § 3126(a)(7) provided: "A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complaint to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or complainant and . . . (7) the complainant is less than 13 years of age." "Indecent contact" is defined as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa.C.S.A. § 3101. And the touching does not have to be with the hands or fingers. See Com. v. Castelhun, 889 A.2d 1228, 1234 (Pa. Super. Ct. 2005) ("It is evident from the record, that Castelhun had indecent contact with the victim, J.T. on more than one occasion. Castelhun repeatedly touched J.T. in a sexual way when he placed his penis into J.T.'s mouth, digitally penetrated her genitalia, and inserted his penis into her vagina, all for the sole purpose of arousal and gratification of his sexual desires."); Com. v. Hawkins, 614 A.2d 1198, 1201-1202 (Pa. Super. Ct. 1992) (observing that "whether the offender is touching a sexual or intimate part of the victim's body, or the offender is forcing the victim to touch a sexual or intimate part of his body, the act of "touching," . . . is not limited to the hand or finger" and concluding that "it does not strain logic to reason that when Hawkins kissed the victim's vagina, bringing his mouth into contact with a sexual part of the victim's body, his conduct fell within the statutory prohibitions of the indecent assault statute"); Com. v. Grayson, 549 A.2d 593, 594 (Pa. Super. Ct. 1988) (holding that "the brushing of appellant's penis against the underside of the victim's jaw constitutes touching as contemplated by the statute" and "indecent contact within the meaning of the statute"). Here, the five counts in the information charged that Allam did "have indecent contact with a female complainant, K.S., or caused the complainant to have indecent contact with him, by touching the genitals of the complainant with his hands and/or fingers and causing the complainant to touch his penis, the complainant being less than 13 years of age." Doc. 27-1 at 59. Given K.S.'s testimony about Allam touching her breasts and vagina before she turned 13 as well has her testimony about performing oral sex on him, which by definition involved her touching his penis with her mouth, before she turned 13, there was sufficient evidence for a reasonable jury to convict Allam of five counts of indecent assault of a child under 13.
Similarly, there was sufficient evidence for a reasonable jury to convict Allam of 15 counts of IDSI with a child under 16. At the time of the offenses, 18 Pa.C.S. §3123(a)(7) provided: "A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant: . . . (7) who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other." There is no dispute that Allam was more than four years older than K.S. and that they were not married. K.S. testified that after she turned 13, she performed oral sex on Allam probably 20 or more times and he performed oral sex on her maybe the same number of times. In addition, Allam admitted in his statement to police that he and K.S. "both performed oral sex on each other maybe ten times." Doc. 27-1 at 355. Given the testimony, there was sufficient evidence for the jury to convict Allam of the 15 counts of IDSI with a child under 16.
There also was sufficient evidence for the jury to convict Allam of 17 counts of statutory sexual assault. At the time of the offenses, 18 Pa.C.S. § 3122.1 provided: "Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other." There is no dispute that Allam was more than four years older than K.S. and that they were not married. K.S. testified that Allam had sex with her 20 times, three of which were before she turned 13, which means that 17 were after she turned 13. Thus, there was sufficient evidence for the jury to convict Allam of 17 counts of statutory sexual assault.
Finally, we conclude that there was sufficient evidence with respect to the ten counts of indecent assault of person less than 16 years old. At the time of the offenses, 18 Pa.C.S.A. § 3126(a)(8) provided: "A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complaint to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or complainant and . . . (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other." There is no dispute that Allam was more than four years older than K.S. and that they were not married. Allam points to the following testimony, which he characterizes as "horribly inadequate" and "paltry" to support these counts:
Q: And during the time after you turned 13 did you continue to touch his genitals?Doc. 27-1 at 302 and Doc. 27 at 82. If that were the only testimony relevant to these counts, we might agree with Allam that it was insufficient to support a conviction of 10 counts of indecent assault. But remember touching for indecent assault is not limited to touching with hands or fingers. And given K.S.'s testimony that she performed oral sex on Allam (which means she touched his penis with her mouth) 20 or more times after she turned 13, there was sufficient evidence for a reasonable jury to convict Allam of ten counts of indecent assault of a person less than 16 years old.
A: Yes.
Q: And did he continue to touch yours with his hands?
A: Yes.
Q: And to you have an estimate of how many times that happened?
A: No.
Q: Was it more than once?
A: Yes.
In sum, there was sufficient evidence to convict Allam of all the counts brought against him. Thus, Allam cannot show prejudice to excuse his procedural default of his sufficiency-of-the-evidence claim. Moreover, even if procedural default did not bar this claim, because there was sufficient evidence to convict him of all counts, the claim would nevertheless fail on the merits. Accordingly, Allam is not entitled to a writ of habeas corpus on the basis of this claim.
VI. Other Claims.
Because Allam's counsel briefed only two of his 26 claims, we consider the remaining claims waived. Even if not waived, however, the remaining claims do not entitled Allam to a writ of habeas corpus.
Allam's claims for violations of state law are not cognizable in a habeas corpus petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." "Thus, federal habeas corpus relief does not lie for errors of state law.").
Given that Allam had a full and fair opportunity to present his Fourth Amendment claims to the state courts, his Fourth Amendment claims (Claims 1, 13, 19 & 25) are also not cognizable in a habeas corpus petition. See Stone v. Powell, 428 U.S. 465, 494 (1976) (holding that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the court may not grant habeas relief to a state prisoner on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial).
Because Allam did not raise some of his claims (Claims 2, 5, 8, 9, 14, 16, 21, 22, 23 & 24) on direct appeal or in his PCRA petition, he procedurally defaulted those claims and he has not shown cause and prejudice or fundamental miscarriage of justice to excuse the procedural default. Further, as to claims (Claims 3, 7, 10, 11, 17, & 20) that were addressed on the merits by the state court, Allam has not shown how the state court decision was contrary to or an unreasonable application of clearly established federal law or that the state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court.
Finally, as to his sentencing claim (Claim 26) based on Alleyne v. United States, 133 S.Ct. 2151 (2013) (holding that any fact that increases the statutory minimum sentence for a crime must be decided by a jury beyond a reasonable doubt), Allam cannot prevail on that claim here because Alleyne does not apply retroactively to cases on collateral review. See United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014); United States v. Reyes, 755 F.3d 210, 212 (3d Cir. 2014).
VII. Recommendation.
Based on the foregoing, we recommend that the petition for a writ of habeas corpus be denied.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 21st day of February, 2017.
S/Susan E . Schwab
Susan E. Schwab
Chief United States Magistrate Judge