Opinion
Civil Action No. 17-1172
08-27-2018
ROBERT BROWNLEE, Petitioner, v. SUPERINTENDENT, SCI FAYETTE, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
District Judge Nora Barry Fischer
REPORT AND RECOMMENDATION
I. RECOMMENDATION
For the following reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Robert Brownlee [ECF No. 1] be denied and that a Certificate of Appealability also be denied.
II. REPORT
Before the Court is Petitioner's counseled Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. [ECF No. 1.] Petitioner pleaded guilty to corruption of minors in violation of 18 Pa.C.S. § 6301(a), and indecent assault in violation of 18 Pa.C.S.A. § 3126(a)(7). [ECF No. 12, Ex. 2, p. 154.] He was sentenced to an aggregate term of ten to twenty years of imprisonment. [ECF No. 12, Ex. 2, pp. 214-223; ECF No. 12, Ex. 6.] For the following reasons, Petitioner's application for federal habeas corpus relief will be denied.
For ease of reference, citations used herein refer to the Exhibit numbers, rather than letters, that appear on this Court's docket.
A. Relevant Background
On November 12, 2013, a criminal complaint charged Petitioner with 151 counts, stemming from conduct occurring from May 28, 2007 to September 2, 2013: fifty counts of corruption of minors in violation of 18 Pa.C.S.A.§ 6301(a)(1)(ii); fifty counts of indecent exposure in violation of 18 Pa.C.S.A. 3126(a)(7); fifty counts of indecent exposure in violation of 3127(a); and fifty counts of corruption of minors in violation of Section 6301(a)(1)(1). [ECF No. 12, Ex. 2, pp. 121-153.] Subsequently, the Commonwealth filed an Information containing the same charges. Id. at p. 121. A later-filed Stipulation Amending Information added additional counts of corruption of minors in violation of Section 6301(a)(1)-M1. [ECF No. 12, Ex. 3, p. 33.] Petitioner entered a guilty plea on May 7, 2014, and was sentenced on October 23, 2014. [ECF No. 2, p. 8; ECF. No. 12, Ex. 2, pp. 155-163.] He did not take a direct appeal.
Petitioner filed a post-sentence Motion pursuant to Pa.R.Cr.P. 720. [ECF No. 12, Ex. 8, p. 2.] The Court denied the Motion. [ECF No. 12, Ex. 9, p. 1.] He then filed a counseled Petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), arguing that counsel was ineffective for failing to object to the Information, because it did not state the dates and locations of the charged crimes with sufficient specificity; and for neglecting to object to the trial judge's failure to explain in open court the elements of each offense. In particular, Petitioner argued that the court did not state the "course of conduct" element of 18 Pa.C.S. § 6301(a)(1)(ii), and counsel did not object to the omission. The Petition further argued that the insufficiently specific Information, and lack of explanation of the offenses at the plea hearing, violated Petitioner's due process rights. [ECF No. 12, Ex. 10, pp. 1-2.]
Section 6301(a)(1)(ii) states as follows: "Whoever, being the age of 18 years and upwards, by any course of conduct in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less than 18 years of age...commits a felony of the third degree."
By Opinion dated April 11, 2016, following a hearing on Petitioner's ineffective assistance claims, the Court of Common Pleas of Jefferson County (the "PCRA Court") denied the PCRA Petition. [ECF No. 12, Ex. 11.] Petitioner took a counseled appeal, raising counsel's failure to address the insufficient specificity of the Information and the court's failure to identify the elements of the offense at the plea proceeding. [ECF No. 12, Ex. 12, pp. 10-33.] In a non-precedential decision, Commonwealth v. Brownlee, 2017 Pa. Super. Unpub. LEXIS 1780 (Pa. Super. Ct. May 11, 2017), the Superior Court of Pennsylvania affirmed the lower court's decision. [ECF No. 12, Ex. 13, pp. 1-20.] On May 30, 2017, Defendant filed a Petition for Allowance of Appeal. [ECF No. 12, Ex. 14, pp. 1-61.] The Supreme Court of Pennsylvania denied the Petition. [ECF No. 12, Ex. 15.] The present Petition followed. [ECF No. 1.]
B. AEDPA
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision 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)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):
[Under the "contrary to" clause], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Id. at 1498.
The Third Circuit Court of Appeals, consistent with the Williams v. Taylor interpretation, set forth in Matteo v. Superintendent, SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert. denied 528 U.S. 824 (1999), a two-tier approach to reviewing § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [v. Dubois], 145 F.3d [16], 24-25 [1st Cir. 1998)]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. If so, then the petition should be granted.Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1) is restricted "to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 365. Under the "unreasonable application" clause,
a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.Id.
If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 F. Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Indeed, as the Third Circuit recently explained:
While a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant
habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is "firmly convinced that a federal constitutional right has been violated," Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) ("[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard"). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).
The AEDPA further provides for relief if an adjudication "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." 28 U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state court decision is based on an "unreasonable determination of the facts" if the state court's factual findings are "objectively unreasonable in light of the evidence presented in the state-court proceeding," which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, of course, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
C. Discussion
1. Exhaustion and Procedural Default
First, a district court must address whether a petitioner has exhausted available state remedies, as required by 28 U.S.C. § 2254(b) and (c). Nonetheless, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Respondents acknowledge that Petitioner's claim based on counsel's failure to object to the Information and the judge's failure to inform Petitioner of the statutory elements has been exhausted. They contend, however, that it is unclear whether Petitioner's claim based on counsel's own failure to advise Petitioner of the statutory "course of conduct" element has been exhausted. Because this Court denies Petitioner's ineffective assistance claims on the merits, infra, exhaustion need not be resolved.
In addition, Respondents perceive a third claim, based directly on alleged federal due process violations stemming directly from the Information itself and the trial court's failure to explain the pertinent statutory elements. A federal due process claim, Respondents assert, has not been exhausted. [ECF No. 12, pp. 9-14.] In his Response to State's Opposition to 2254 Habeas Corpus Petition, Petitioner does not address the exhaustion of this particular claim in detail. Instead, Petitioner broadly contends that exhaustion of a federal claim does not require him to have specifically referenced federal law. [ECF No. 15, p. 7.]
Although trial court error is not typically cognizable on habeas review, a claim that the trial court violated Fourteenth Amendment due process rights might be amenable to such review. See, e.g., Edwards v. Rozum, No. 07-1736, 2008 U.S. Dist. LEXIS 9530, at *18 (E.D. Pa. Feb. 7, 2008). Such a claim, however, must meet exhaustion requirements, and thus must have been "fairly presented" to the state courts. Id. at *19. "The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review." Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). Each reviewing court must be given "a fair opportunity" to act on the federal claim, and the "method of legal analysis to be applied in federal court [must have been] available to the state courts." Holloway v. Horn, 161 F. Supp. 2d 452, 469 (E.D. Pa. 2001).
In addition, the Petitioner must "present the state courts with the same claim he urges upon the federal courts." Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971) (emphasis added). Couching "a due process claim within the guise of an ineffective assistance of counsel claim" does not necessarily exhaust the due process claim, particularly if the issue decided by the state courts was not the "substantial equivalent" of the due process claim in his habeas petition. Cf. Fogg v. Phelps, 414 F. App'x 420, 429 (3d Cir. 2011). "Requiring courts to follow a 'daisy chain,' to divine the federal constitutional claim is insufficient presentation of the federal claim." Rozum, 2008 U.S. Dist. LEXIS 9530, at 23. A habeas petitioner bears the burden of showing that he has exhausted available state remedies. Perry v. Nash, No. 05-3149, 2005 U.S. Dist. LEXIS 17019, at *6 (D.N.J. Aug. 8, 2005). Further, our Court of Appeals has cautioned that the exhaustion requirement "should be strictly adhered to ...." Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990).
In this case, the trial court's comportment with federal due process was not fairly presented at each level of the state court's review system. This Court will assume, for present purposes, that Petitioner placed the PCRA Court on notice of such a claim. On appeal to the Superior Court, however, Petitioner raised two discrete challenges. One was a challenge to counsel's failure to object to the Information, and the other as a challenge to counsel's failure to object to the trial court's omission regarding the statutory elements. [ECF No. 12, Ex. 12, pp. 5-6.] Although he noted federal constitutional issues that counsel failed to address, Petitioner raised no claim directly challenging the trial court's violation of his due process rights. That question was not presented to the Superior Court and, therefore, it did not directly address the question of federal due process. Moreover, in accordance with the questions presented to it, the Superior Court did not address any issue that was the "substantial equivalent" to Petitioner's federal due process claims. Therefore, those claims have not been exhausted.
Petitioner's Initial Brief in the Superior Court identified the following questions presented:
I. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S VIOLATION OF THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE ARISING FROM THE COURT'S FAILURE TO INFORM MR. BROWNLEE OF EACH AND EVERY ELEMENT OF A FELONY VIOLATION OF 18 PACSA 6301(a)(1)(ii)?[ECF No. 12, Ex. 12, pp. 5-6.]
II. WHETHER TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO OBJECT TO A CRIMINAL INFORMATION AND STIPULATED AMENDED INFORMATION...[THAT FAILED TO INCLUDE INFORMATION SUFFICIENT] TO PROTECT THE FEDERAL AND STATE CONSTITUTIONAL RIGHT TO FAIR NOTICE OF THE CHARGE AND PROTECT APPELLANT'S RIGHT NOT TO BE PUNISHED MORE THAN ONCE FOR THE SAME CRIME?
If a federal court "can confidently predict that the state courts would not entertain review of the claims because such review would be barred by a state procedural rule, such as a statute of limitations," then exhaustion is deemed futile. Bender v. Wynder, No. 05-998, 2006 U.S. Dist. LEXIS 102231, at *18 n.8 (W.D. Pa. June 5, 2006). In that case, the claims are considered "procedurally defaulted" in federal habeas court. Id. "The procedural default doctrine applies to bar federal habeas review when a state court has declined or would decline 'to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'" Id. (citing Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004)). Pursuant to 42 Pa.C.S.A. § 9545(b), a PCRA claim must be filed within one year of the date that the judgment becomes final, subject to exceptions not pertinent here. Any PCRA petition that Petitioner might now attempt to file would be untimely, and unreviewable in the Pennsylvania Courts. All federal due process claims raised in the Petition at bar have been procedurally defaulted.
Respondents indicate that they make no claim of procedural default, to the extent that procedural default doctrine bars a habeas court from considering alleged violations of state procedural rules. Today's Opinion addresses default in a different context, solely to the extent that it relates to Petitioner's failure to exhaust federal due process claims.
2. Ineffective Assistance of Counsel
Defendant's Petition contends that trial counsel was ineffective because he did not object to the trial court's failure to inform Petitioner of every element of 18 Pa.C.S.A. § 6301, and did not object to the lack of specificity in the Information. [ECF No. 2]. Petitioner's contentions overlap. In essence, he contends that the Information's failure to specify dates and times, combined with the failure to explain the "course of conduct" element of 18 Pa.C.S. § 6301(a)(1)(ii)(F3), induced him to plead guilty despite a lack of "course of conduct" evidence occurring after December 6, 2010. That date is significant because Section 6301(a)(1) was amended, effective December 6, 2010, to require multiple acts over time. [ECF No. 2, p. 19.] Petitioner points to trial counsel's testimony that the prosecution had indicated that "one of the girls had put one of the incidents at issue after the date that [the statute] was enacted." Id. at p. 20. In other words, he contends that the prosecution could not have proved more than one offense - and thus no "course of conduct" - after the statute's effective date.
For these claims, Strickland v. Washington, 466 U.S. 668 (1984), supplies the "clearly established Federal Law" referred to by Section 2254(d)(1). In order to demonstrate ineffective assistance under Strickland, a defendant must show that counsel's performance fell below "the wide range of professionally competent assistance" and also that the deficient conduct prejudiced defendant. Id. at 687. Counsel's performance must be assessed according to the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 689. Under the prejudice prong, the pertinent question is whether there is a reasonable probability that, absent the alleged errors, the result would have been different. Id. at 694-95; see also Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000). Speculation cannot establish sufficient prejudice under this standard. See United States v. Young, No. 12-3788, 2013 U.S. Dist. LEXIS 77195, at *7 (E.D. Pa. May 31, 2013).
A Court's review of ineffective assistance claims must be "'highly deferential,'" and must "'indulge a strong presumption' that, under the circumstances, counsel's challenged actions 'might be considered sound ... strategy.'" Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (quoting Strickland, 466 U.S. at 689). Moreover, "[d]ecisions in trial strategy are to be afforded appropriate deference; it is not the Court's role to second-guess such decisions, absent a fundamental defect." United States v. Pawlowski, No. 9-209, 2014 U.S. Dist. LEXIS 66607, at *5 (W.D. Pa. May 15, 2014). Therefore, it is "only the rare claim of ineffectiveness of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Gray, 878 F.2d 702, 711 (1989). Notably, in the Section 2254 context, this Court's review is "doubly deferential," requiring a "'highly deferential' look at counsel's performance...through the 'deferential lens of § 2254(d).'" Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (citing Knowles v. Mirzayance, 129 S. Ct. 1411, 1419, n.2 (2009)).
a. "Contrary to" Federal Law
First, in accordance with Section 2254(d)(1), this Court must determine whether the challenged decisions were contrary to Strickland. In considering Petitioner's ineffective assistance claims, the Court of Common Pleas stated as follows:
Under the three-prong test delineated in Commonwealth v. Travaglia, 661 A. 2d 352 (Pa. 1995), a defendant must demonstrate three things in order to establish an ineffectiveness claim: 1.) That his underlying claim is of arguable merit; 2.) that counsel's action or inaction was not grounded in any reasonable basis designed to effectuate his interests; and 3.) that but for the act or omission, the outcome would have been different. Should the defendant fail to demonstrate prejudice, the Court may dismiss his claims on that basis alone without inquiring into the first two prongs of the test. Id. at 357 (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)). Failure to satisfy any one of the prongs will, in fact, defeat an ineffectiveness claim. See e.g., Commonwealth v. Cox, 863 A. 2d 536, 544 (Pa. 2004).[ECF No. 12, Ex. 11, pp. 4-5.]
Similarly, the Superior Court applied the following standard on appellate review:
When a PCRA petitioner alleges ineffective assistance of counsel, counsel is presumed to have provided effective representation unless the petitioner pleads and proves that: (1) the underlying claim is of arguable merit; (2) counsel had no reasonable basis for his or her conduct; and (3) the petitioner was prejudiced by counsel's action or omission..." In order to meet the prejudice prong of the ineffectiveness standard, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." A claim of ineffective assistance of counsel will fail if the petitioner does not meet any of the three prongs.[ECF No. 12, Ex. 14, p. 51].
At the outset, the undersigned finds that the state courts' decisions in this case were not "contrary to" Strickland or any other United States Supreme Court precedent, because the state courts properly identified and applied the reasonableness standard as outlined by the Supreme Court in Strickland. Our Court of Appeals has found that a state court decision applying the Pennsylvania ineffective assistance of counsel test does not apply a rule of law that contradicts Strickland, and thus is not "contrary to" established Supreme Court precedent. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Therefore, Petitioner is not entitled to relief under the contrary to clearly established federal law standard of Section 2254.
b. "Unreasonable Application" of Federal Law
Because the state court's ineffective assistance decisions were not contrary to Strickland, the Section 2254(d)(1) inquiry moves to the question of whether those decisions involved an unreasonable application of Strickland. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in original). Accordingly, a state court's determination to deny a claim precludes federal habeas relief if "fairminded jurists could disagree" about its correctness. Harrington v. Richter, 562 U.S. 86, 101 (2011). In the context of this inquiry, "[a] state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id. at 101. Even a compelling claim for relief does not mean that the state court's rejection of that claim was unreasonable. Id. at 102. "[T]he appropriate inquiry is whether the Pennsylvania courts' application of Strickland to [Petitioner's] ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland." Werts, 228 F. 3d at 204. "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
Here, the PCRA Court found that under the circumstances of Petitioner's case, the Information sufficiently articulated the dates and times of the alleged criminal conduct. [ECF No. 12, Ex. 11, pp. 6-7.] Moreover, the PCRA Court rejected Petitioner's contention that the Information exposed him to double jeopardy. Id. at pp. 7-8. Because Petitioner's challenges to the Information lacked merit, the PCRA Court found that counsel could not be deemed ineffective for failing to raise those challenges: "In all its particulars,...[Petitioner's] claim regarding the insufficiency of the criminal Information lacks merit. That being the case, [counsel] cannot be deemed ineffective for not filing a Bill of Particulars or motion to quash." Id. at p. 8. Moreover, the PCRA Court, assessing the circumstances of the case and the credibility of Petitioner's hearing testimony, found that Petitioner did not suffer actual prejudice as a result of counsel's conduct in that regard. Id. at pp. 6-11. The PCRA Court stated as follows: "What the Court actually believes...is that the defendant would have pled guilty in this case even had [counsel] indicated that the information was defective as alleged." Id. at pp. 8-9.
The PCRA Court also addressed Petitioner's allegations regarding the "course of conduct" element of the statute, and concluded that Petitioner knew -indeed, was "well aware"--that the element was part of the charges to which he was pleading. Id. at p. 10. Thus, the Court concluded, the trial court's omission "did not affect [Petitioner's] due process rights." Id. In addition, as with Petitioner's claim regarding the Information's lack of specificity, the PCRA Court found that Petitioner had not demonstrated the required prejudice regarding the trial court's failure to state the elements of the relevant offense. "[B]ecause he was independently aware of the elements of each offense to which he was pleading guilty, the Court's omission had no bearing on his decision to plead." Id. Regarding both challenges to counsel's conduct, the PCRA Court concluded: "Because the defendant has failed to prove that his substantive issues have merit or that his attorney's omissions prejudiced him...he is not entitled to relief under the Post Conviction Relief Act." Id. at p. 10.
The Superior Court, addressing Petitioner's "course of conduct" challenge, observed that counsel had acknowledged failing to explain the "course of conduct" element to Petitioner. [ECF No. 12, Ex. 14, p. 56.] It concluded, however, that "[d]espite these omissions, [Petitioner] admitted committing a course of conduct of sex offenses...." Id. In so doing, the Superior Court stated that "to satisfy ex post facto requisites, at least one of [the] acts must occur on or after the effective date of the 'course of conduct' element, December 6, 2010," and that conduct prior to the effective date could satisfy the statute. Id. at p. 55. The Superior Court noted that Petitioner admitted to six occasions of conduct, and implicitly acknowledged one instance occurring after December 6, 2010, as well as watching a videotape in which one victim stated that he abused her at least fifty times on holiday weekends between May, 2007 and September, 2013. Id. Further, the Superior Court stated as follows:
[D]efense counsel testified that he reviewed the videotape together with [Petitioner] and also sent [Petitioner] a copy of a police report in which one of the victims stated that he abused her when she was between ages eight and thirteen, close to the same time period as May 2007 to September 2013. Although the question is close, we conclude that the totality of these circumstances establishes that [Petitioner] was on notice at the time of his guilty plea that at least one of the incidents in his course of sex offenses took place after December 6, 2010. For these reasons, the PCRA Court correctly concluded that [Petitioner's] first allegation of ineffective assistance of counsel lacks arguable merit.Id. at p. 57.
We also agree with the PCRA court that this argument fails due to lack of prejudice. The failure to mention the course of conduct element during the plea colloquy did not induce Appellant to plead guilty.
Accordingly, The Superior Court reached the following conclusions:
Although the question is close, we conclude that the totality of these circumstances establishes that [Petitioner] was on notice at the time of his guilty plea that at least one of the incidents in his course of sex offenses took place after December 6, 2010. For these reasons, the PCRA court correctly concluded that [Petitioner's] first allegation of ineffective assistance of counsel lacks arguable merit...[W]e also agree with the PCRA court that this argument fails due to lack of prejudice. The failure to mention the course of conduct element during the guilty plea colloquy did not induce [Petitioner] to plead guilty. Instead, the record satisfies us that he pleaded guilty to avoid the danger of going to trial...By pleading guilty to ten offenses, including one felony corruption count, [Petitioner] eliminated the risk of a potentially catastrophic sentence that might have arisen from the verdict.
Id. at p. 57.
The Superior Court did not explicitly address counsel's conduct regarding the Information's specificity. Instead, it determined that "it would be unjust to allow [Petitioner] to escape criminal liability for these acts merely because the minor victims did not write down the dates of the incidents," and that the Information did not violate his double jeopardy rights. [ECF No. 12, Ex. 14, pp. 59-60.] The Superior Court did address prejudice through the lens of double jeopardy, however, agreeing with the PCRA Court's conclusion that the threat of future criminal charges stemming from the conduct charged in the Information was "wholly theoretical." Id. at p. 60. --------
Regarding counsel's failure to challenge the Information, the Superior Court indicated that the Information was sufficient, and that a prejudice argument, based on the potential for double jeopardy, was speculative. Id. at pp. 59-60. It agreed with the PCRA Court that the asserted prejudice stemming from the Information's lack of specificity was "wholly theoretical." Id. at p. 60.
Evaluated objectively and on the merits, the state courts' analyses resulted in outcomes that can reasonably be justified under Strickland, and do not represent an unreasonable application of federal law. As Plaintiff has pointed out, the record reflects that trial counsel chose not to challenge the information because he did not want to antagonize the prosecution, or risk a heavy sentence; he did not see any advantage to contesting the "course of conduct" issue because at least one incident occurred after the date of the pertinent statute. [ECF No.12, Ex. 12, p. 11]. Given the evidence available to Petitioner and counsel at the time of and preceding his plea, as well as the charges he faced, the state courts' analyses and conclusions are not an unreasonable application of Strickland's highly deferential approach and applicable presumptions. Furthermore, the analyses do not represent an unreasonable application of federal principles requiring prejudice to rise above speculation. In all respects, the outcome of this matter can reasonably be justified under Strickland. Petitioner cannot prevail under this inquiry.
D. Certificate of Appealability
"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)). Petitioner has not made such a showing, and no certificate of appealability should issue.
III. CONCLUSION
For the aforementioned reasons, it is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Robert Brownlee [ECF No. 1] be denied and that a Certificate of Appealability also be denied.
Dated: August 27, 2018.
/s/_________
Lisa Pupo Lenihan
United States Magistrate Judge Cc: Cheryl J. Sturm, Esquire
Jeffrey D. Burkett, Esquire
(Via CM/ECF electronic mail)