Opinion
Civil Action 3:18-CV-02405
09-13-2022
DANIEL WESLING, Petitioner, v. WARDEN ERIC TICE, et al., Respondents.
MANNION, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK Chief United States Magistrate Judge
This is a pro se habeas corpus action arising under 28 U.S.C. 2254 initiated upon the filing of the original petition in this matter by Petitioner Daniel Wesling (“Wesling”) on November 26, 2018. (Doc. 2). On November 30, 2020, Wesling filed an amended petition (the “Petition”) which serves as the controlling petition in this case. (Doc. 22). In his Petition, Wesling challenges his October 2013 conviction and March 2014 sentence in the Monroe County Court of Common Pleas, Pennsylvania. (Doc. 1, at 1); (Doc. 22, at 11); see also Commonwealth v. Wesling, Docket No. CP-43-CR-0001697-2012 (Monroe County C.C.P.). Wesling is currently incarcerated at State Correctional Institution at Somerset (“SCI-Somerset”) located in Somerset County, Pennsylvania. (Doc. 2, at 1). Respondents Warden Eric Tice, the Attorney General of the State of Pennsylvania (hereinafter collectively known as “Respondents”), and Monroe County District Attorney's Office responded to the Petition on June 25, 2021. (Doc. 26). Accordingly, Davis's Petition is ripe for review and disposition. For the following reasons, Wesling's Petition shall be denied and DISMISSED WITH PREJUDICE. (Doc. 22).
I. Background and Procedural History
On March 28, 2014, Wesling was sentenced in the Monroe County Court of Common Pleas, Pennsylvania, to 180 to 360 months of incarceration and to undergo a sexual offender evaluation, comply with all treatment recommendations, and pay costs for rape, attempted rape, aggravated indecent assault, sexual assault, statutory sexual assault, indecent assault, and unlawful contact with a minor. Commonwealth v. Wesling, Docket No. CP-43-CR-0001697-2012 (Monroe County C.C.P.). Wesling is currently serving his sentence at SCI-Somerset. (Doc. 2, at 1). Wesling initiated the present action by filing his original Petition and a Motion for Stay and Abeyance on November 26, 2018 in the United States District Court for the Western District of Pennsylvania. (Doc. 2). On December 20, 2018, the United States District Court for the Western District of Pennsylvania transferred this case to the United States District Court for the Middle District of Pennsylvania. (Doc. 6). On March 11, 2020, the Court ordered Wesling to show cause as to why a stay and abeyance should be granted and why any procedurally defaulted claims should be excused. (Doc. 10, at 6). On August 17, 2020, the Court granted Wesling's motion for a stay on condition that he inform the Court within 30 days of the disposition of his second PCRA petition and granted his motion to proceed in forma pauperis. (Doc. 16); (Doc. 15 at 29-30). On September 24, 2020, Wesling filed a Motion to Amend/Correct his original petition. (Doc. 20). The Court granted Wesling's Motion to Amend/Correct on November 3, 2020, and Wesling filed an Amended Petition on November 30, 2020. (Doc. 21); (Doc. 22). On March 16, 2021, the Court the Clerk to serve a copy of the Petition on Respondents. (Doc. 23). On June 25, 2021, Respondents filed their response to Wesling's Petition. (Doc. 26). On July 9, 2021, Wesling filed a motion to grant writ unconditionally due to non-compliance by respondent which the Court denied on October 5, 2021. (Doc. 27; Doc. 28).
On April 13, 2022, the Court ordered that Wesling show cause as to why the Petition should not be dismissed without prejudice and noted that, in its current form, the Petition was considered a “mixed” petition. (Doc. 29, at 10-11). On May 2, 2022, Wesling elected to remove his fifth claim so that the Court may proceed on the current Petition. (Doc. 30, at 1).
In his Petition, Wesling alleges that (1) he was convicted upon insufficient evidence; (2) his pre-trial counsel was ineffective for failing to file any pre-trial motions and failing to communicate with his subsequent counsel; (3) the trial court violated his Constitutional rights under the Sixth Amendment by denying his motion for a bill of particulars and (4) by allowing his alleged deficient indictment to proceed to trial and; (5) the Commonwealth of Pennsylvania violated the due process clause of the Fifth Amendment by failing to conduct a fair trial including freedom from prosecutorial misconduct. (Doc. 22, at 16). Respondents argue that Wesling's sufficiency of the evidence claim fails because the testimony from the witness is sufficient to convict Wesling due to the nature of the case and that Wesling conceded to the filing of supplemental pretrial motions and thus there was no prejudice of reasonable probability that the outcome of the proceedings would have been different . (Doc. 26, at 1). Respondents also contend that Wesling failed to raise his Constitutional claims through state court remedies and has thus failed to exhaust his state court remedies. (Doc. 26, at 1-2). Finally, Respondents urge the Court to deny Wesling's Habeas Petition because it “contains previously litigated as well as unexhausted claims” and such “mixed petitions” are precluded from review by the district court. (Doc. 26, at 2); see also Rose v. Lundy, 455 U.S. 509, 522 (1982).
I. Habeas Claims Presented
Wesling presents the following grounds for relief in his federal habeas Petition:
1) The evidence does not sufficiently support his conviction;
2) His pre-trial counsel was ineffective in failing to file any pre-trial motions and for failing to communicate with Wesling's subsequently appointed counsel;
3) The trial court violated his Sixth Amendment rights in denying him the opportunity to file a motion for a bill of particulars;
4) The trial court violated his Sixth Amendment rights by permitting his alleged deficient indictment to proceed to trial; and
II. Legal Standard
Wesling brings his Petition pursuant to 28 U.S.C. § 2254, which permits federal courts to issue habeas corpus relief for persons in state custody. While a prisoner may properly challenge the “fact or duration” of his confinement through a § 2254 petition, the statute sets “several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Preiser v. Rodriguez, 411 U.S. 475 498-99 (1973). Further, “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.â€). Rather, federal habeas review is limited to claims based “on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.†28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. As such, a writ of habeas corpus is an “ ‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the criminal proceedings.” See Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)).
The statutory text of § 2254 additionally requires that federal courts give the appropriate deference to the legal rulings and factual findings of state courts made during criminal proceedings, and provides in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(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; or
(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.28 U.S.C. § 2254(d).
Thus, given these deferential standards of review, federal courts frequently decline invitations by habeas petitioners to disturb the considered views of state courts. SeeRice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
With respect to § 2254(d)(1), the Supreme Court defines “clearly established federal law” as “holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). Further, to warrant relief under § 2254(d)(1), a state court's “unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Regarding 28 U.S.C. § 2254(d)(2), “a determination of a factual issue made by a State court shall be presumed to be correct” unless a petitioner can show, by clear and convincing evidence, that the finding was erroneous. 28 U.S.C. § 2254(e)(1); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Moreover, habeas relief will not be granted pursuant to § 2254(d)(2) if a reasonable basis existed for the state court to make its factual finding. See Burt v. Titlow, 571 U.S. 12, 18 (2013). In the instant petition, Wesling challenges his October 2013 conviction based on the sufficiency of the evidence, ineffective pre-trial counsel, trial court abuse of discretion, a deficient indictment, and prosecutorial misconduct stemming from his July. (Doc. 17, at 11, 13, 73).
III. Discussion
A. Exhaustion and Procedural Default
Generally, a federal district court may not grant a habeas petition unless the petitioner has first exhausted all available state court remedies. See 28 U.S.C. § 2254(b); O'Sullivan v.Boerckel, 526 U.S. 838, 842 (1999). Indeed, the Supreme Court of the united States has held that, when a district court is presented with a “mixed” petition containing both exhausted and unexhausted claims, it must be dismissed without prejudice in its entirety to allow the petitioner an opportunity to achieve “total exhaustion.” Rose, 455 U.S. at 522.
Fourteen years after the Rose decision, Congress enacted the AEDPA, which imposed a one-year statute of limitations on the filing of federal habeas petitions. See 28 U.S.C. § 2244(d); Rhines v. Weber, 544 U.S. 269, 273-74 (2005). “As a result of the interplay between AEDPA's 1-year statute of limitations and Rose's dismissal requirement, petitioners who come to federal court with ‘mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.” Rhines, 544 U.S. at 275.
Here, however, Wesling's petition is not a “mixed” petition, subject to dismissal under Rose because his petition contains both exhausted and procedurally defaulted claims. (Doc. 22). The Court has previously found that Wesling has exhausted his second claim regarding the conduct of his public defender attorney Spishock through his first PCRA petition. (Doc. 2, at 3-4; Doc. 15, at 23; Doc. 22, at 38-48). Additionally, the Court notes that claims one, three, and four appear to have been asserted in Wesling's second PCRA petition. (Doc. 22, at 17-65). First, claim one addresses the sufficiency of the evidence presented at Wesling's trial. (Doc. 22, at 17-38). Specifically, Wesling raises issues with the location of the events testified to, the lack of specific time regarding the testimony, the inclusion of oral sex testimony counted in the Count 1 rape charge, and the large time period of the testimony and evidence. (Doc. 22, at 13, 17-38). On direct appeal, Wesling raised the issue of sufficient evidence and in his second PCRA petition, Wesling alleged “due process concerns” regarding evidence and testimony permitted by the trial court. (Doc. 2, at 2; Doc. 14, at 67). Next, claim three addresses the trial court's denial of Wesling's request for a bill of particulars. (Doc. 22, at 13, 50-58). In his second PCRA petition, Wesling challenged the trial court's denial of his motion for a bill of particulars. (Doc. 14, at 67). Finally, claim four addresses an alleged constitutionally deficient indictment. (Doc. 22, at 13, 58-65). In his second PCRA petition, Wesling contends that “the trial court erred in allowing a constitutionally deficient indictment to proceed into trial.” (Doc. 14, at 67).
“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.'” McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (quoting 28 U.S.C. § 2254(b)(1)(B)(i)); see also Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available' to him.”). Thus, for the purpose of this federal habeas proceeding, Wesling's claims are all exhausted, whether actually or technically so.
“Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted ....” Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001). Generally, a federal court may not review a habeas claim that is procedurally defaulted. Johnson v. Folino, 705 F.3d 117, 127 (3d Cir. 2013). A claim is procedurally defaulted when “a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule.” Coleman, 501 U.S. at 750. The one-year statute of limitations applicable to state PCRA proceedings has been held to be such an independent and adequate state procedural rule. See Glenn v. Wynder, 743 F.3d 402, 409 (3d Cir. 2014); Banks v. Horn, 49 F.Supp.2d 400, 403-07 (M.D. Pa. 1999). See generally Bronshtein v. Horn, 404 F.3d 700, 708-10 (3d Cir. 2005) (discussing history and strict application of the PCRA statute of limitations since 1999).
“[I]f the challenged claims are procedurally defaulted, not merely unexhausted, then the petition is no longer ‘mixed,' the ‘stay and abeyance' issue is moot, and the only question is whether the petitioner can overcome the procedural default of the challenged claims to allow them to be considered by the federal court pursuant to § 2254.” Boss v. Ludwick, 863 F.Supp.2d 845, 856 (N.D. Iowa 2012). If a petition contains both exhausted claims and procedurally defaulted claims, the Court may address the merits of the exhausted claims and may only address the merits of the procedurally defaulted claims if an exception to the procedural default applies. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993); see also Lines, 208 F.3d at 160 (noting the “cause and prejudice” and “fundamental miscarriage of justice” excuses to procedural default).
In his current petition, Wesling alleges a cause exception for his procedurally defaulted claims. (Doc. 22, at 49-50); see also Coleman, 501 U.S. at 750. “The principal exception to this general rule precluding federal review of habeas claims that have been procedurally defaulted is for petitioners who can show ‘cause and prejudice' for the procedural default.” Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (quoting Cristin v. Brennan, 281 F.3d 404, 414 (3d Cir. 2002)). Wesling contends that his PCRA counsel did not timely respond to his requests for documents and that “he was precluded of amending any new claims, including [his] unexhausted claims, once [he] was denied being allowed to amend his initial PCRA.” (Doc. 22, at 49). Wesling contends that once he received his documents, he proceeded to present his claims through state court, however he “found himself foreclosed from obtaining review of the collateral claims set forth in [his second] PCRA.” (Doc. 22, at 49). Wesling concludes that his PCRA attorney “impeded [his] efforts to comply with the state procedural rule of timeliness for his [second] PCRA . . . [and that he] should not be precluded from Federal review of his unexhausted claims.” (Doc. 22, at 50).
To demonstrate a cause and prejudice exception a petitioner must demonstrate “(1) cause for his failure to raise his claim in state court; and (2) prejudice to his case as a result of that failure.” Parmelee v. Piazza, 622 F.Supp.2d 212, 221 (M.D. Pa. 2008) (citing Coleman, 501 U.S. at 750). “To demonstrate ‘cause' for a procedural default, the petitioner must show that something ‘external' to the defense impeded petitioner's efforts to comply with the state's procedural rule.” Parmelee, 622 F.Supp.2d at 221 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). After demonstrating cause, a petitioner must demonstrate prejudice by alleging something that “worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Parmelee, 622 F.Supp.2d at 221 (quoting Murray, 477 U.S. at 494).
The United States Supreme Court has recognized that, under certain circumstances, the procedural default of an ineffective assistance of trial counsel claim may be excused where the default was caused, in turn, by ineffective assistance of counsel in post-conviction collateral proceedings. See Martinez v. Ryan, 566 U.S. 1, 8-17 (2012). In Martinez, the Supreme Court held that:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [state] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.Martinez, 566 U.S. at 17.
The Supreme Court subsequently extended its holding in Martinez to apply not only to cases where state procedural law expressly prohibited ineffective assistance claims on direct appeal, but also where a “state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal ....” Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013). The Third Circuit thereafter examined Pennsylvania's procedural framework in light of Trevino and determined that Martinez applies because, as a matter of practicality, Pennsylvania generally does not consider ineffective assistance claims on direct review. Cox v. Horn, 757 F.3d 113, 124 n.8 (3d Cir. 2014). Pursuant to Martinez, ineffective assistance of PCRA counsel may serve as “cause” to excuse a petitioner's procedural default in failing to exhaust his underlying ineffective assistance of trial counsel claims before the PCRA court.
Under Martinez, the failure of a federal habeas petitioner's counsel to raise a claim in an initial-review collateral proceeding can constitute cause if (1) PCRA counsel's failure itself constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and (2) the underlying ineffective assistance of trial counsel claim is “a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit.” Martinez, 566 U.S. at 14; Glenn, 743 F.3d at 410. “Under Strickland, courts are precluded from finding that counsel was ineffective unless they find both that counsel's performance fell below an objectively unreasonable standard, and that the defendant was prejudiced by that performance.” Marshall v. Hendricks, 307 F.3d 36, 85 (3d Cir. 2002). This review of counsel's performance must be “highly deferential,” as the petitioner has the burden of overcoming the strong presumption that his counsel's conduct fell “within the wide range of reasonable professional assistance” and that counsel “made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689-90. Even if a petitioner demonstrates that his attorney's performance fell below prevailing professional norms, habeas relief will only be available if he further demonstrates that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 691-92. To demonstrate that he was prejudiced by counsel's ineffective performance, a petitioner “must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Courts properly deny an ineffective assistance of counsel claim upon determining that a petitioner fails to make a sufficient showing under either the performance component or the prejudice component, without any need to address the other prong. Strickland, 466 U.S. at 697.
Here, in reviewing the record, it is evident that Wesling is not entitled to have any procedural default excused under Martinez because his underlying claims of ineffective assistance of counsel lack merit. See infra. As Wesling has failed to identify justifiable cause to excuse his default, it is recommended that his procedurally defaulted claims be dismissed.
B. Ineffective Pre-Trial Counsel claim
Having determined that Wesling's ineffective assistance of pretrial counsel claim was properly exhausted, the court must now address the claim on its merits. Habeas corpus is an “‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the criminal proceedings.” Dunn, 247 F.3d at 468 (quoting Calderon, 525 U.S. at 146). Accordingly, a federal court may not grant a state prisoner habeas relief with respect to any claim that was adjudicated on the merits in state court, unless the state court proceedings:
(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; or
(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.28 U.S.C. § 2254(d).
The Supreme court defines “clearly established federal law” as “holdings, as opposed to the dicta, of [the Supreme] court's decisions as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.
In his second ground for relief, Wesling alleges that the conduct of his public defender attorney Spishock (“Attorney Spishock”) was ineffective for waiving Wesling's preliminary hearing and failing to file supplemental pretrial motions. (Doc. 22, at 38-48). The standard for ineffective assistance of counsel claims was established in the seminal Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court articulated a two-pronged test for evaluating whether counsel's performance was constitutionally deficient. Specifically, “[u]nder Strickland, courts are precluded from finding that counsel was ineffective unless they find both that counsel's performance fell below an objectively unreasonable standard, and that the defendant was prejudiced by that performance.” Marshall, 307 F.3d at 85. This review of counsel's performance must be “highly deferential,” as the petitioner has the burden of overcoming the strong presumption that his counsel's conduct fell “within the wide range of reasonable professional assistance” and that counsel “made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689-90. Even if a petitioner demonstrates that his attorney's performance fell below prevailing professional norms, habeas relief will only be available if he further demonstrates that this deficient performance prejudiced his defense. Strickland, 466 U.S. at 691-92. To demonstrate that he was prejudiced by counsel's ineffective performance, a petitioner “must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Courts properly deny an ineffective assistance of counsel claim upon determining that a petitioner fails to make a sufficient showing under either the performance component or the prejudice component of the Strickland two-part test. Strickland, 466 U.S. at 697.
Although Pennsylvania state courts evaluate ineffective assistance claims by applying a test that differs slightly from Strickland, the Third Circuit has made clear that Pennsylvania's test is not contrary to Strickland.Jacobs v. Horn, 395 F.3d 92, 106 n.9 (3d Cir. 2005) (citing Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000)). Accordingly, under the deferential standard mandated by 28 U.S.C. § 2254(d)(1), the Court may only grant Hardy habeas relief on his ineffective assistance of counsel claim upon finding that the PCRA Court and Superior Court's decisions involved an unreasonable application of Strickland. Furthermore, because Hardy's ineffective assistance of counsel claim was adjudicated on the merits in state court, this Court's “review is ‘doubly deferential:' the state court was obligated to conduct deferential review of counsel's performance and [this Court] must give deference to the state court rulings under AEDPA.” Showers v. Beard, 635 F.3d 625, 629 (3d Cir. 2011).
Wesling avers that “when viewing Attorney Spishock's total failure in light of Strickland's predictive judgment analysis [Wesling] was prejudiced and thus, fulfilled Strickland's 2nd prong.” (Doc. 22, at 48). Furthermore, Wesling asserts “[t]he Superior Court of Pennsylvania's conclusion that [Wesling] could not prove prejudice was contrary to or an unreasonable application of clearly established Supreme Court precedent.” (Doc. 22, at 48). Thus, Wesling contends that he is entitled to a writ of habeas corpus on this claim. (Doc. 22, at 48). Wesling claims “when viewing the circumstances of [Wesling's] case and what Attorney Spishock should have done, especially compared with replacement counsel, instead of what Attorney Spishock actually did do, constructive denial of counsel, that lack of communication and filing nothing for [Wesling's] advocacy cause official interference with the defense.” (Doc. 22, at 48). Further, Wesling asserts “[t]he whole case would have gone differently with different judicial judgments, different ADA positions, different defense questioning, and physical evidence to present to the jury.” (Doc. 22, at 48). Thus, Wesling avers that “it is reasonably likely that the result of the trial would have been different.” (Doc. 22, at 48). In opposition, Respondent denies this claim and states that “[Wesling] conceded that replacement counsel [was] permitted to file supplemental pretrial Motions and did so, thus there was absolutely no prejudice and [Wesling] cannot prove that but for counsel's alleged ineffectiveness, there was a reasonable probability that the outcome of the proceedings would have been different.” (Doc. 26, at 1).
After the Superior Court affirmed his judgment of sentence, Wesling filed a pro se PCRA petition, in October 2015, raising ineffective-assistance-of-trial-counsel and statute-of-limitations grounds. Wesling, No. CP-43-CR-0001697-2012; (Doc. 2, at 3). The PCRA court appointed Brian S. Gaglione, Esq., to represent Wesling and set a November 23, 2015 deadline for Gaglione to file an amended PCRA petition “to cure any defects in the original pro se petition.” (Doc. 2-1, at 2). After requesting three extensions of the deadline to file an amended PCRA petition, Gaglione filed a petition seeking to withdraw as counsel, along with a no-merit letter in which he “framed the issues raised by [Wesling] as follows”: “‘the statute of limitations had run due to the passage of time between when these crimes were alleged to have occurred and when [Wesling] w[as] charged'”; and “that Attorney Spishock [i.e., Wesling's first trial counsel] ‘rendered deficient performance and her counsel decisions had no reasonable basis other than to undermine the truth determining process.'” (Doc. 2-1, at 2).
With the filing of his habeas petition, Wesling did not provide a copy of his first PCRA petition for the Court's review, nor has he provided a copy of that petition in his response to the undersigned's show-cause order. (Doc. 2; Doc. 10, at 4; Doc. 14). As the undersigned previously noted, the Court looks, not to the original petition, but to the issues raised on appeal from that petition. (Doc. 10, at 4 (citing Jacobs v. Folino, No. 07-CV-00925, 2010 WL 6568289, at *8 (E.D. Pa. Aug. 10, 2010) (“A claim that is raised in a PCRA petition, but abandoned later in the course of the state court proceedings is not exhausted.”), report and recommendation adopted, No. 07-CV-00925, 2011 WL 1627350 (E.D. Pa. Apr. 28, 2011)).
In his no-merit letter, Gaglione first noted that there was no merit to Wesling's statute-of-limitations ground for collateral review given that the allegations were alleged to have occurred between 1990 and 2001, all of the offenses were committed against children, the applicable statute of limitations (relating to “major sexual offenses”) was extended in 2004 to 12 years beyond attainment of a victim's 18th birthday, and the Commonwealth, therefore, had until 2011 and 2014 to bring the charges against Wesling. (Doc. 2-1, at 2). Gaglione then addressed the ineffective-assistance-of-counsel claim, which included, among other arguments, the contention that Spishock was ineffective for failing to file pretrial motions on Wesling's behalf:
I can't see how Attorney Spishock compromised your defense in any way. You hired private counsel prior to trial in this matter. Private counsel filed a number of pre-trial motions on your behalf, including an Omnibus Motion and a Habeas Motion. The hearing that was held on the Habeas Motion is the functional equivalent of a preliminary hearing, so any error of judgment or missed opportunity that Attorney Spishock committed by waiving your preliminary hearing and not filing pre-trial motions was rectified.... [I]n looking at the pre-trial filings, the transcripts from trial, and the brief in support of your appeal, I was unable to find any issues that rise to the level necessary for collateral relief through the PCRA statute. In short, Ms. Spishock had very little to do with [Wesling's] defense and the people who actually defended [Wesling] appeared to do it competently and within the bounds of expected advocacy.(Doc. 2-1, at 3-4 (ellipses and first set of brackets in original)).
Given Gaglione's no-merit letter, the PCRA court issued a March 18, 2016 Order, stating, “[a]fter an independent review of the record, this Court agrees with Attorney Gaglione that the issues raised in [Wesling's] PCRA Petition are without merit.” (Doc. 2-1,at 4). The court denied the PCRA petition, advising Wesling that he had 30 days to appeal. (Doc. 2-1, at 4).
In analyzing Wesling's direct appeal, the Superior Court addressed his ineffective pre trial counsel claim against Attorney Spishock as follows:
Specifically, Wesling asserts that Attorney Spishock was ineffective “for not putting in any time[-]critical motions” requesting the prosecution to fix the dates when the alleged offenses occurred with reasonable certainty, thereby preventing Wesling from raising statute of limitations or alibi defenses. Wesling also claims that Attorney Spishock failed to communicate with Wesling's replacement counsel, Attorney Newman, Attorney Salnick, and Attorney Fuchs. Although Wesling concedes that replacement counsel were permitted to file supplemental pretrial Motions, and to request a hearing, he argues that replacement counsel were “unable to recover from time critical omissions of [Attorney] Spishock[ ].”Commonwealth v. Wesling, No. 980 EDA 2016, 2017 WL 1901717, at *3 (Pa. Super. Ct. Apr. 27, 2017) (citations omitted).
Applying the standard applicable to claims of ineffective assistance of counsel, the Superior Court set forth the following:
Notably, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of Attorney Spishock. Even if we were to conclude that Wesling's arguments had satisfied the first two prongs of the ineffectiveness test, we are persuaded by the PCRA court's reasoning that Wesling cannot satisfy the third prong of the test. In its Opinion, the PCRA court addressed Wesling's ineffectiveness claim regarding Attorney Spishock's failure to request a bill of particulars, and determined that the issue lacked merit because one of Wesling's replacement counsel, “Attorney Salnick[,] adequately raised and argued a [M]otion for a bill of particulars.” See PCRA Court Opinion, 5/25/16. at 3. Additionally, in its prior Orders, the PCRA court addressed Wesling's additional ineffectiveness claims regarding Attorney Spishock, and determined that the claims lack merit. See PCRA Court Order, 3/18/16, a 1-3 (addressing Wesling's claim that Attorney Spishock was ineffective for counseling Wesling to waive his preliminary hearing); see also PCRA Court Order, 2/23/16, at 1-2 (same). We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's second issue. See PCRA Court Opinion, 5/25/16, at 3; PCRA Court Order, 3/18/16, at 1-3; PCRA Court Order, 2/23/16, at 1-2.Wesling, 2017 WL 1901717, at *3.
In addition, rejecting Wesling's ineffective pre-trail counsel claim against his replacement counsel, the Superior Court set forth the following:
Once again, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of his replacement counsel. Additionally, as noted above, the PCRA court determined that Wesling's third issue lacked merit because replacement counsel did, in fact, raise and argue a Motion for a bill of particulars. See PCRA Court Opinion, 5/25/16, at 3. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's third issue. See id.Wesling, 2017 WL 1901717, at *4.
The Superior Court further held that Wesling's claim that “both groups of attorney[s] [were] ineffective” was not supported by a discussion in his appellate brief in violation of Pa. R.A.P. 2119(a). Wesling, 2017 WL 1901717, at *4. The Superior Court noted that the PCRA court had deemed this “issue as too vague to be adequately addressed” and ultimately “determine[d] that Wesling failed to preserve this issue for our review.” Wesling, 2017 WL 1901717, at *4.
Against the Superior Court's backdrop, Wesling has failed to demonstrate how Attorney Spishock's assistance of counsel fell below an objectively unreasonable standard. As noted in Strickland, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. Here, the facts of the case during the time period in question reveal that Attorney Spishock's actions were reasonable given the options available to him. Wesling claims Attorney Spishock's failure to request a bill of particulars prevented Wesling from anticipating the evidence brought against him and including evidence of his whereabouts during 1997 to 2001. (Doc. 22, at 46). However, Wesling concedes that replacement counsel were permitted to file supplemental pretrial motions and a bill of particulars and did so. (Doc. 22, at 44). The undisputed findings of the PCRA court and Superior Court is that because Wesling's replacement counsel had raised and argued a motion for a bill of particulars, Wesling could not establish that but for Attorney Spishock's allegedly ineffective representation, Wesling's criminal proceedings would have concluded with a different result. Wesling, 2017 WL 1901717, at *3. Further, the Court agrees with the Superior Court's and the PCRA court's analysis of Wesling's arguments concerning waiver of the preliminary hearing when considering Gaglione's no-merit letter, and the courts' finding that Wesling's ineffective assistance of counsel claims lack merit “because his replacement counsel did, in fact, raise and argue a motion for a bill of particulars.” Wesling, 2017 WL 1901717, at *3-4. Based upon a review of the record, the Court concludes that the PCRA court and the Superior Court reasonably applied the Strickland standard in finding that Attorney Spishock's actions in waiving a preliminary hearing and not filing pretrial motions did not constitute ineffective assistance of counsel.
Therefore, the undersigned finds that this claim has failed to meet the standards required for habeas relief and recommend that Wesling's requested relief be denied on this claim.
C. Sufficiency of the Evidence Claim
Wesling presents a claim addressing the sufficiency of the evidence presented at Wesling's trial, which the court has determined is procedurally defaulted. (Doc. 22, at 1738). Specifically, Wesling challenges his conviction on three grounds:
(1) Did prosecution prove beyond a reasonable doubt that Wesling violated the counts brought against him when the punishments are directly related to the age of the victim and those charges were dropped or amended before jury deliberations?
(2) Did the prosecution prove beyond a reasonable doubt that the probable rape occurred in Pennsylvania?
(3) Did the merging of counts 1 through 4 violate Wesling's right to anticipate what evidence will be presented against him?(Doc. 22, at 18-38).
Wesling argues “the Superior Court decision affirming the conviction of [Wesling] was an unreasonable application of the Fourteenth Amendment requirement that the prosecution present evidence sufficient to prove every fact of a crime beyond a reasonable doubt.” (Doc. 22, at 37) (citing In reWinship, 397 U.S. 358, 365-66 (1970); Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Wesling further asserts “[t]here remains reasonable doubt because there are limits by what inferences reason will allow to be drawn. The locus of the crimes and the unreasonable dates used was all speculation which in turn prejudiced [Wesling].” (Doc. 22, at 37-38). Wesling claims he “was precluded from attempting to prove that he was not present at the victims house on the date in question because no date or limited period of time was asserted by the Commonwealth.” (Doc. 22, at 26). Respondent denies this claim and states that “[t]he victims both testified at trial to the sexual abuse perpetrated on them by [Wesling], and it is well-established that ‘the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses.'” (Doc. 26, at 1) (quoting Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999), appeal denied, 758 A.2d 1194 (2000).
As an initial matter, this claim is procedurally defaulted as Wesling did not raise a sufficiency of the evidence claim until his second PCRA petition. (Doc. 2, at 2; Doc. 14, at 67). In response to the Court's Order to show cause, Wesling asserts that this claim is not procedurally defaulted because he did in fact raise his sufficiency of the evidence claim on direct appeal. (Doc. 30, at 1). As Wesling has failed to identify justifiable cause to excuse his default, it is recommended that his insufficiency of the evidence claims be dismissed.
Nevertheless, even if the claim was not procedurally defaulted, it is meritless. In reviewing sufficiency-of-the-evidence claims, the court must determine “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.” Jackson, 443 U.S. at 319. This is a highly deferential standard and requires that reviewing courts ask whether the jury's verdict was “merely rational.” United States v. Hodge, 321 F.3d 429, 439 (3d Cir. 2003); United States v. Caraballo-Rodriguez, 726 F.3d 418, 431, 434 (3d Cir. 2013) (en banc). When a state court decision rejects a sufficiency of the evidence challenge, a federal court may only overturn the state court decision if it was “objectively unreasonable.” Cavazos v. Smith, 565 U.S. 1, 2 (2011); Coleman v. Johnson, 566 U.S. 650, 651 (2012). Accordingly, “the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality.” See Coleman, 566 U.S. at 656. “Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors ‘draw reasonable inferences from basic facts to ultimate facts'.” Coleman, 566 U.S. at 651 (quoting Jackson, 443 U.S. at 319).
In his counseled direct appeal, Wesling challenged his conviction on three grounds:
(1) Was there not insufficient evidence that any of the acts which formed the basis of the charges for which Mr. Wesling was convicted occurred in Pennsylvania and thus was not the evidence insufficient to find Mr. Wesling guilty of any charges?
(2) Was not the evidence insufficient to prove beyond a reasonable doubt that Mr. Wesling committed rape or attempt[ed] rape of K.B., in that there was no evidence of penile penetration or an attempt to penetrate?
(3) Should not the sentences on Counts 1 and 5 have merged?Commonwealth v. Wesling, No. 1386 EDA 2014, 2015 WL 6956554, at *1 (Pa. Super. Ct. June 30, 2015); (Doc. 2, at 2).
In support of his appeal, Wesling provided a statement pursuant to Pa. R.A.P. 1925(b), in which he (1) “complain[ed] that th[e] [trial court] lacked jurisdiction to sentence him, claiming that there was no evidence adduced at trial that any of the acts with which he was charged occurred in Pennsylvania”; (2) “challenge[d] the sufficiency of the evidence as it relate[d] to his convictions on Amended Count[s One and Five], contending that there was no evidence to support a finding of penetration or attempted penetration”; and (3) “complain[ed] that the sentences he received for Amended Count One [and] Count[s Five and Fifteen] were illegal in that the offenses should have merged for sentencing purposes.” Wesling, 2015 WL 6956554, at *3.
Denying the appeal and affirming judgment of sentence, the Superior Court of Pennsylvania held that the trial judge's opinion “ably and comprehensively dispose[d] of Wesling's issues raised on appeal, with appropriate reference to the record and without legal error ....” Wesling, 2015 WL 6956554, at *1. Incorporated into the Superior Court's June 2015 Memorandum denying the appeal was the trial judge's Statement Pursuant to Pa. R.A.P. 1925(a). The Rule 1925(a) Statement provides background and procedural history relevant to the instant petition, including the following:
Rule 1925(a) requires, with exceptions, that “the judge who entered the order giving rise to the notice of appeal . . . file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found.” Rule 1925(b), in turn, requires the appellant, when directed by the trial judge, to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal.” See Pa. R.A.P. 1925(a)-(b).
In 2009, Pocono Mountain Regional Police were contacted by investigators in Broward County, Florida, with information that Appellant may have sexually assaulted the victims in the above captioned case, sisters K.B. and P.U., over a period of time spanning about a decade when the two women were minors. Police interviews were conducted, resulting in the Commonwealth filing a criminal complaint on June 29, 2009, charging Appellant with seventy[-]two (72) various sex offenses.
At the time of the filing of the criminal complaint, Appellant was incarcerated in Florida, pending trial on other sexual assault charges. A detainer was lodged against Appellant on July 1, 2009, and after the resolution of Appellant's case
in Florida, Appellant was extradited to Pennsylvania where he posted bond on July 26, 2012.
Also on July 26, 2012, Appellant waived his preliminary hearing under the counsel of Ms. Robin A. Spishock, Esq. of the Monroe County Public Defender Office. Appellant waived formal arraignment on September 24, 2012. On October 5, 2012, a Criminal Information was filed against Appellant charging him with twenty-nine (29) various sex offenses.
On February 27, 2013, Mr. George H. Newman, Esq. entered his appearance on behalf of Appellant. On March 13, 2013, Mr. Jack Fuchs, Esq., and Mr. Michael Salnick, Esq., were both granted pro hac vice admission for the purpose of representing Appellant.
On April 9, 2013, Appellant filed numerous Motions to Dismiss and a Motion for a Bill of Particulars. That same day, the Commonwealth filed its Notice pursuant to Pennsylvania Rule of Evidence 404(b) of its intent to introduce prior bad acts including the allegations of sexual assault in the State of Florida. On April 18, 2013, Appellant filed a Motion to Preclude the Commonwealth from introducing such 404(b) evidence. On May 14, 2013, the Commonwealth filed a Supplemental Notice of Prior Bad Acts indicating its intent to introduce evidence that Appellant sexually abused K.B. and P.U. in the Stale of New Jersey.
A hearing on Appellant's Pre-Trial Motions was held on May 14, 2013. Following the hearing, and in consideration of subsequently submitted briefs, this Court issued an Opinion and Order dated July 19, 2013 denying Appellant's Motions, which we incorporate here.
On September 19, 2013, Appellant filed several Motions in Limine. On September 20, 2013, the Commonwealth also filed several Motions in Limine. By three separate Orders dated October 2, 2013. Appellant's Motions in Limine were denied.Wesling, 2015 WL 6956554, at *2 (footnotes omitted).
Regarding his first ground for appeal, the trial court found that “the trial testimony of victims K.B. and P.U. were replete with statements that they were sexually abused by Appellant in this Commonwealth, and specifically, in Monroe County.” Wesling, 2015 WL 6956554, at *3. The court noted that “one of the primary backdrops to this unfortunate story is the house where the victims grew up, 1120 Deer Trail Road, located in Pocono Pines, Monroe County, Pennsylvania, 1835”; “Appellant was a frequent guest at the Deer Trail Road house, spending nights in Dorothy's room”; “K.B. testified to a rather vivid memory of an incident which occurred at the Deer Trail Road house”; “P.U. testified to incidents with Appellant at her parent's house on Deer Trail Road”; and “another locus of the abuse testified to at trial was a house that Appellant bought in the late 1990s, located approximately one mile from the Deer Trail Road house.” Wesling, 2015 WL 6956554, at *4-5. Thus, the trial court found that “ample testimonial evidence was adduced at trial establishing that the acts which formed the basis of the charges for which Appellant was convicted did in fact occur in this Commonwealth and we disagree with Appellant's vacuous claim to the contrary.” Wesling, 2015 WL 6956554, at *5.
The trial court then rejected Wesling's second ground for appeal, i.e., insufficiency of evidence as to Counts One (rape by forcible compulsion) and Five (attempted rape by forcible compulsion) of the criminal information. Regarding Count One, the court cited K.B.'s testimony, inter alia, that Wesling would have K.B. sit on his lap and his penis would be “in the area of her vagina or anus,” noted that K.B. had reported to a detective that “probably just the tip would have gone inside my vagina just a little bit,” and found, in the alternative, that there was sufficient evidence to convict on Count One based on testimony of oral intercourse. Wesling, 2015 WL 6956554, at *6-7 (citing testimony including, “I remember him kissing me like on my vagina, and I remember like this uncomfortable pressure. I just remember feeling like all of his uncomfortable pressure ....”). The trial court continued, “Admittedly, Appellant's parents' house, where the described oral sex took place, is located in New Jersey. After she finished recounting her memory of this event, however, the Commonwealth asked her how many times similar incidents took place. To this, K.B. responded that ‘[i]t happened more than one time, but I couldn't give you a number.'” Wesling, 2015 WL 6956554, at *7 (brackets in original). Given K.B.'s testimony and that the large majority of events occurred in Monroe County, the trial court concluded that jurors could draw the reasonable inference that incidents of oral sex may have also occurred in Pennsylvania. Wesling, 2015 WL 6956554, at *7. The same testimony, along with K.B.'s testimony about other occasions where, for example, Wesling pushed her up against the wall and pulled down her underwear, led the court to concluded that there was sufficient evidence in support of the jury's conviction on Count Five (attempted rape). Wesling, 2015 WL 6956554, at *8.
“A person commits rape if he or she has sexual intercourse by forcible compulsion or by threat of forcible compulsion. 18 Pa. C.S.A. § 3121(a)(1). ‘Sexual intercourse' is defined as ‘intercourse per os or per anus, with some penetration however slight; emission is not required.' 18 Pa. C.S.A. § 3101. This ‘include[s] vaginal intercourse, anal intercourse, oral intercourse, and penetration by a foreign object, but not digital penetration of the vagina.' Commonwealth v. Kelley, 569 Pa. 179, 188, 801 A.2d 551, 556 (Pa.2002).” Wesling, 2015 WL 6956554, at *6.
Finally, the trial court found no basis for Wesling's third appeal ground concerning his contention that Amended Count One, Count Five, and Count Fifteen (contact or communication with a minor, sexual offense) should have merged. The trial court noted that, generally, a completed offense and an attempt to commit the same offense are merged but further noted that “there is no way of knowing whether the jury based their guilty verdicts for R[a]pe and Attempted Rape on the same criminal act.” Wesling, 2015 WL 6956554, at *8. Therefore, finding “no way of knowing upon which facts the jury based its verdicts,” the court rejected this ground for appeal because “allowing the two convictions to merge for sentencing purposes would be to give Appellant a volume discount on crime.” Wesling, 2015 WL 6956554, at *8. The trial court then stated that Count Fifteen should not merge with Counts One and Five because the unlawful-contact conviction was not predicated solely on the convictions for rape and attempted rape. Wesling, 2015 WL 6956554, at *8 (“Even if it were, however, they would not merge for sentencing purposes.”). The Superior Court adopted the trial court's reasoning, and Wesling did not file a petition for allocator with the Pennsylvania Supreme Court seeking review of the Superior Court's denial of his direct appeal. (Doc. 2, at 2).
Upon review, the Court find finds the state court's rejection of Wesling's sufficient of the evidence claims was a reasonable determination of the facts in light of the evidence presented, and was neither contrary to, nor an unreasonable application of Jackson. Based on the testimony by K.B. and Wesling, and given the presumption of correctness afforded to the state court with respect to a factual determination, the Court is unable to conclude that the state court's determination that a rational fact finder could infer that Wesling's conviction was unreasonable. See 28 U.S.C. § 2254(e)(1). Accordingly, habeas relief is not warranted on this claim.
D. Trial Court's Abuse of Discretion Claim
Wesling's third claim addresses the trial court's denial of his request for a bill of particulars. (Doc. 22, at 13, 50-58). Wesling argues that he was prejudiced because “the Commonwealth charged [Wesling] with counts 17-24 for all different date ranges and allegations of sexual intercourse or deviated sexual intercourse.” (Doc. 22, at 57). in addition, Wesling asserts “[d]ue to the vagueness in the discovery and the criminal information counts that were not connected to distinguishable incidents, it is not possible to prepare an adequate defense and avoid trial surprises.†(Doc. 22, at 55). Respondent contends that “[Wesling] has not previously raised this claim and has not exhausted his state remedies as this is the first time he is raising this issue, but is prohibited by 28 U.S.C. § 2254 b1A.” (Doc. 26, at 1). However, the Court has previously noted that in his second PCRA petition, Wesling contends that “the trial court erred in denying Appellant's Motion for Bill of Particulars ....” (Doc. 14, at 67; Doc. 29, at 8).
Although Wesling identifies this issue as a trial court error, it is clear from the argument made in his petition that he is raising an ineffective assistance of counsel claim. (Doc. 22, at 50-58).
As an initial matter, this claim is procedurally defaulted as Wesling has never raised the trial court's abuse of discretion claim. Wesling, 2017 WL 1901717, at *7. To overcome procedural default, Wesling must “demonstrate cause for the default and actual prejudice from the alleged violation of federal law” or demonstrate that failure to consider the claim “will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The latter exception requires new and reliable evidence of the petitioner's actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995). In response to the Court's Order to show cause as to why this claim should not be barred as procedurally defaulted, Wesling asserts that he did not pursue a claim against the PCRA court because he “fits in the following category of a newly abandoned Pa. R. Cim. [P.] 907 dicta for challenging PCRA counsels performance.” (Doc. 30, at 2). Relying on Commonwealth v. Bradley, 261 A.3d 381, 387 (Pa. 2021), Wesling further explains “there is nothing in the language of Rule 907 that would notify a lawyer, let alone a pro se petitioner, that Rule 907 is the mechanism by which to challenge PCRA counsel's performance.” (Doc. 30, at 2). Wesling submits he “had no recourse but to do the most he could with the time that was left after ex-PCRA counsel's actions or non-actions.” (Doc. 30, at 2).
The procedural default of this claim cannot be excused as the ineffective assistance of trial counsel claim is not “substantial.” SeeMartinez, 566 U.S. at 14. Wesling has not demonstrated that the sentencing statute is unconstitutional. The Superior Court specifically found that Wesling waived any claim that his PCRA counsel was ineffective because “he failed to challenge his PCRA counsel's representation after receiving Attorney Gaglione's notice of withdrawal letter, and the Notice of the PCRA court's intent to dismiss his Petition pursuant to Pa. R. Crim. P. 907.” Wesling, 2017 WL 1901717, at *2 n.5. Where the Superior Court examined Wesling's claim that PCRA counsel was ineffective, the court stated:
Here, the PCRA court determined that, in the Turner/Finley “no merit” letter, Attorney Gaglione had described the extent of his review, identified the issues that Wesling sought to raise, and explained why the issues lacked merit. See PCRA Court Order, 3/18/16, at 1-3. The PCRA court also confirmed that Attorney Gaglione had provided a copy of the Turner/Finley “no merit” letter to Wesling. Seeid. at 3. The PCRA court thereafter reviewed the issues raised in the Turner/Finley “no merit” letter and, after conducting an independent review, determined that the issues Wesling sought to raise lacked merit. Seeid.at 1-3 (wherein the PCRA court agreed with Attorney Gaglione's assessment that the issues raised by Wesling lacked merit, and noted that Wesling had failed to file a response to the PCRA court's Pa. R. Crim. P. 907 Notice of its intent to dismiss the Petition without a hearing). Based on our independent review of the record, we conclude that the PCRA court's decision to permit Attorney Gaglione to withdraw from representation is supported by the record and free of legal error, and affirm on this basis as to Wesling's first issue. Seeid.Wesling, 2017 WL 1901717, at *2.
Moreover, the court noted that, pursuant to Commonwealth v. Friend, 869 A.2d 607, 615 (Pa. Super. 2006), Wesling's PCRA counsel provided Wesling with a notice of his intention to seek permission to withdraw from representation, and advised Wesling of his rights to proceed pro se, or retain private counsel. Wesling, 2017 WL 1901717, at *2 n.4.
A federal habeas court will not review an issue of federal law where the petitioner presented the claim to the state courts in a manner that precluded review on the merits because petitioner failed to comply with a state procedural requirement, and the decision of the state court refusing to consider the merits rests on a state law ground that is “independent of the federal question and adequate to support the judgment.” Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997) (citing Coleman, 501 U.S. at 750); seeSistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (“if the final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal, federal habeas review is foreclosed”). The Superior Court's finding was a straightforward application of the PCRA's waiver provisions, and this holding is an independent and adequate state ground for the state court decision. SeeColeman, 501 U.S. at 749-752 (describing “the important interests served by state procedural rules” and “the harm to the States that results when federal courts ignore these rules”). Federal courts in this Circuit have consistently and repeatedly held that the PCRA default provisions - its prohibition against previously litigated and waived claims - are independent and adequate state grounds barring federal habeas review. See, e.g., Lines, 208 F.3d at 164-66; Sistrunk, 96 F.3d at 674-75; Belle v. Varner, No. 99-CV-5667, 2001 WL 1021135, at *8 (E.D. Pa. Sept. 5, 2001) (non-precedential).
Because the PCRA's waiver rule provision is both independent and adequate, Wesling has procedurally defaulted these claims. He is, accordingly, not entitled to federal habeas review unless he can meet his burden of establishing “cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Harris v. Reed, 489 U.S. 255, 260-63 (1989); Morris v. Horn, 187 F.3d 333, 342 (3d Cir. 1999). As Wesling has failed to identify justifiable cause to excuse his default, it is recommended that his insufficiency of the evidence claims be dismissed. See 28 U.S.C. § 2254(b)(1)(A).
Even if his abuse of discretion claim were not procedurally defaulted, Wesling would not be entitled to relief on the merits. As Wesling pointed out, the law allowed him to request that the Commonwealth file a bill of particulars that would more definitively articulate what it intended to prove at trial. See Pa. R. Crim. P. 907. Here, Wesling asserts that the trial court's failure to grant his motion for a bill of particulars prejudiced him because “there is no additional discovery which provides either a time frame or a location of the alleged incident that would allow Appellant to adequately prepare a defense and avoid being surprised at trial.” (Doc. 22, at 53). In addition, Wesling claims that “[d]ue to the vagueness in the discovery and the criminal information counts that were not connected to distinguishable incidents, it is not possible to prepare an adequate defense and avoid trial surprises.” (Doc. 22, at 55). Wesling asserts the vague and indefinite nature of the charges precluded from attacking the credibility of the victim and proving that he did not visit the victim's house on the date in question. (Doc. 22, at 57).
Wesling's argument attributing fault to the trial court's abuse of discretion for failing to grant his motion for a bill of particulars was addressed and rejected as meritless by the Superior Court in it decision affirming the PCRA court. Wesling, 2017 WL 1901717, at *3-4. First, the Superior Court noted “the PCRA court addressed Wesling's ineffectiveness claim regarding Attorney Spishock's failure to request a bill of particulars, and determined that the issue lacked merit because one of Wesling's replacement counsel, ‘Attorney Salnick[,] adequately raised and argued a [M]otion for a bill of particulars.'” Wesling, 2017 WL 1901717, at *3. Next, the court explained:
In his third issue, Wesling claims that replacement counsel were ineffective for failing to request a bill of particulars from the Commonwealth. Brief for Appellant at 16-17. Wesling argues that replacement counsel “failed to raise, litigate or preserve the issue of whether the Commonwealth proved the dates of the commission of the offenses beyond a reasonable doubt[,] and did not fix the date of the offenses with reasonable certainty[,]” thereby causing prejudice to Wesling. id. at 17-18. Wesling contends that, if the Commonwealth had presented “the realistic dates” of his alleged offenses, then he would have been able to produce evidence of his innocence, including receipts and bank statements. id. at 34.
Once again, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of his replacement counsel. Additionally, as noted above, the PCRA court determined that Wesling's third issue lacked merit because replacement counsel did, in fact, raise and argue a Motion for a bill of particulars. See PCRA Court Opinion, 5/25/16, at 3. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's third issue. See id. Wesling, 2017 WL 1901717, at *3-4.
The court further clarified that Wesling's ineffectiveness claim based on a bill of particulars is without merit because “a thorough review of the May 14, 2013 hearing transcript reveals that Attorney Salnick adequately raised and argued a motion for a bill of particulars.”Wesling, 2017 WL 1901717, at *7.
Although the state court did not cite to Strickland, the case law that the court relied upon contained the same standard of review as the governing United States Supreme Court standard. See Wesling, 2017 WL 1901717, at *3 (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010)). There is no indication that the state court unreasonably applied established federal law in reaching its decision, or that the state court decision was based on an unreasonable application of the facts in light of the evidence presented at trial. Wesling has not demonstrated that the state court's decision, when evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. See Simmons, 590 F.3d at 231. Accordingly, habeas relief is not warranted on this claim.
E. Constitutionally Deficient Indictment Claim
Wesling's final claim involves an alleged constitutionally deficient indictment. (Doc. 22, at 13, 58-65). Wesling asserts “[t]he trial court allowed a constitutionally deficient indictment to proceed into trial, violating both the United States Constitution Sixth Amendment and Article 1, Section 9 of the Pennsylvania constitution [b]y not fairly informing [Wesling] of the charges against him which he must defend and protect [Wesling] against double jeopardy.” (Doc. 22, at 58). Respondent contends that [Wesling] has not previously raised this claim and has not exhausted his state remedies as this is the first time he is raising this issue, but is prohibited by 28 U.S.C. § 2254 b1A.” (Doc. 26, at 2). However, the Court has previously noted that in his second PCRA petition, Wesling contends that “the trial court erred in allowing a constitutionally deficient indictment to proceed into trial.” (Doc. 14, at 67; Doc. 29, at 8).
Again, although Wesling identifies this issue as a trial court error, it is clear from the argument made in his petition that he is raising an ineffective assistance of counsel claim. (Doc. 22, at 58-65).
As an initial matter, to the extent that Wesling claims that the bill of information failed to comply with Pennsylvania Rule of Civil Procedure 560, the claim is non-cognizable on federal habeas review. Saunders v. Lamas, No. 12-7131, 2015 WL 9451022, at *19 n.37 (E.D. Pa. Aug. 13, 2015). Although Wesling's claim that the bill violated his federal constitutional rights is cognizable on federal habeas review, the claim is procedurally defaulted since he did not raise the issue in state court and is unable to show that the default should be excused pursuant to the Martinez or miscarriage of justice exceptions.
To overcome procedural default, Wesling must “demonstrate cause for the default and actual prejudice from the alleged violation of federal law” or demonstrate that failure to consider the claim “will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The latter exception requires new and reliable evidence of the petitioner's actual innocence. Schlup, 513 U.S. at 321. In response to the Court's Order to show cause as to why this claim should not be barred as procedurally defaulted, Wesling again asserts that he did not pursue a claim against the PCRA court because he “fits in the following category of a newly abandoned Pa. R. Cim. [P.] 907 dicta for challenging PCRA counsels performance.” (Doc. 30, at 2). Relying on Commonwealth v. Bradley, 261 A.3d 381, 387 (Pa. 2021), Wesling further explains “there is nothing in the language of Rule 907 that would notify a lawyer, let alone a pro se petitioner, that Rule 907 is the mechanism by which to challenge PCRA counsel's performance.” (Doc. 30, at 2). Wesling submits he “had no recourse but to do the most he could with the time that was left after ex-PCRA counsel's actions or non-actions.” (Doc. 30, at 2).
As discussed supra, the procedural default of this claim cannot be excused as the ineffective assistance of trial counsel claim is not “substantial.” SeeMartinez, 566 U.S. at 14. Wesling has not demonstrated that the sentencing statute is unconstitutional. The Superior Court specifically found that Wesling waived any claim that his PCRA counsel was ineffective because “he failed to challenge his PCRA counsel's representation after receiving Attorney Gaglione's notice of withdrawal letter, and the Notice of the PCRA court's intent to dismiss his Petition pursuant to Pa. R. Crim. P. 907.” Wesling, 2017 WL 1901717, at *2 n.5. Where the Superior Court examined Wesling's claim that PCRA counsel was ineffective, the court specifically stated:
Wesling also contends that replacement counsel were ineffective, and violated his Sixth Amendment rights, because they failed to follow Pa. R. Crim. P. 578, which requires that “all pretrial requests for relief shall be included in one omnibus motion.” Brief for Appellant at 16 (citing Pa. R. Crim. P. 578). Wesling further asserts that replacement counsel “failed to preserve, raise or litigate the issue of [a] statute of limitations defense.” Brief for Appellant at 34. However, these issues were not raised in Wesling's court-ordered Pa. R.A.P. Concise Statement of matters complained of on appeal. Accordingly, he failed to preserve them for our review. SeeCommonwealth v.Lord, 719 A.2d 306, 309 (Pa. 1998) (providing that, if an appellant is directed to file a concise statement of matters to be raised on appeal pursuant to Pa. R.A.P. 1925(b), any issues not raised in that statement are waived.).Wesling, 2017 WL 1901717, at *3 n.6.
A federal habeas court will not review an issue of federal law where the petitioner presented the claim to the state courts in a manner that precluded review on the merits because petitioner failed to comply with a state procedural requirement, and the decision of the state court refusing to consider the merits rests on a state law ground that is “independent of the federal question and adequate to support the judgment.” Lambrix, 520 U.S. at 522-23 (citing Coleman, 501 U.S. at 750); seeSistrunk, 96 F.3d at 673 (“if the final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal, federal habeas review is foreclosed”). The Superior Court's finding was a straightforward application of the PCRA's waiver provisions, and this holding is an independent and adequate state ground for the state court decision. See Coleman, 501 U.S. at 749-752 (describing “the important interests served by state procedural rules” and “the harm to the States that results when federal courts ignore these rules”). Federal courts in this Circuit have consistently and repeatedly held that the PCRA default provisions - its prohibition against previously litigated and waived claims - are independent and adequate state grounds barring federal habeas review. See, e.g.,Lines, 208 F.3d at 164-66; Sistrunk, 96 F.3d at 674-75; Belle, 2001 WL 1021135 at *8 (non-precedential).
Because the PCRA's waiver rule provision is both independent and adequate, Wesling has procedurally defaulted these claims. He is, accordingly, not entitled to federal habeas review unless he can meet his burden of establishing “cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; Harris, 489 U.S. at 260-63; Morris, 187 F.3d at 342. As Wesling has failed to identify justifiable cause to excuse his default, it is recommended that his insufficiency of the evidence claims be dismissed. See 28 U.S.C. § 2254(b)(1)(A).
Even if his abuse of discretion claim were not procedurally defaulted, Wesling would not be entitled to relief on the merits. Relying on Hamling v. United States, 418 U.S. 87, Wesling argues the original bill of information was defective because “[t]he discovery does not state the fact of any specific month, season or years giving any factual basis for the twenty-nine (29) offenses.” (Doc. 22, at 61). Wesling contends “[a]s the twenty-nine (29) criminal counts were not anchored to twenty-nine (29) distinguishable offenses, [Wesling] has little ability to defend himself.” (Doc. 22, at 63). The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation.” U.S. Const. amend VI. “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'” Hamling, 418 U.S. at 117 (quoting U.S. v. Carll, 105 U.S. 611, 612 (1882)). “Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.” Hamling, 418 U.S. at 11718 (quoting U.S. v. Hess, 124 U.S. 483, 487 (1888)). “[T]he [United States] Supreme Court has determined that a charge or Bill of Information satisfies due process when it contains the elements of the crime, permits the accused to plead and prepare an adequate defense, and allows the disposition to be used as a bar in a subsequent prosecution.” McCalvin v. Mooney, No. 14-CV-572, 2014 WL 7008584, at *2 (E.D. Pa. 2014) (quotations omitted).
Here, the original bill of information put Wesling on notice of the offenses with which he was charged and the dates associated with them. (Doc. 22-1, at 21-25). Wesling was charged with twenty-nine (29) counts of rape, sexual assault, indecent assault, and corruption for offenses that took place at various times between 1990 and 2001. (Doc. 22-1, at 21-25). At the jury trial on October 7, 2013, after the Commonwealth rested, Wesling moved for a judgment of acquittal on all twenty-nine (29) counts. Wesling, 2015 WL 6956554, at *2. “In response to this Motion, Count One (1) of the Criminal Information was amended by the Commonwealth to cover January 1, 1990 through November 5, 2000; Counts Two (2), Three (3), Four (4), Eight (8), Ten (10), Eleven (11), Thirteen (13), Eighteen (18), Twenty (20), Twenty-One (21), Twenty-Two (22), Twenty-Four (24), Twenty-Five (25) and TwentySeven (27) were withdrawn by the Commonwealth, and; Counts Seventeen (17) and Nineteen (19) were dismissed by [the trial court].” Wesling, 2015 WL 6956554, at *2. After Wesling was found guilty after trial by jury, he was timely sentenced, post-sentence motions were addressed, and he timely filed an appeal. Wesling, 2015 WL 6956554, at *2. The Superior Court affirmed Wesling's judgment of sentence on June 30, 2015, and no petition for allocator was filed. Wesling, 2015 WL 6956554, at *2.
In his appeal to the denial of his PCRA petition, Wesling argued that “Attorney Spishock was ineffective ‘for not putting in any time[-]critical motions' requesting the prosecution to fix the dates when the alleged offenses occurred with reasonable certainty, thereby preventing Wesling from raising statute of limitations or alibi defenses.” Wesling, 2017 WL 1901717, at *3. The Superior Court found that Wesling's due process claim lacked merit:
In his third issue, Wesling claims that replacement counsel were ineffective for failing to request a bill of particulars from the Commonwealth. Brief for Appellant at 16-17. Wesling argues that replacement counsel “failed to raise, litigate or preserve the issue of whether the Commonwealth proved the dates of the commission of the offenses beyond a reasonable doubt[,] and did not fix the date of the offenses with reasonable certainty[,]” thereby causing prejudice to Wesling. id. at 17-18. Wesling contends that, if the Commonwealth had presented “the realistic dates” of his alleged offenses, then he would have been able to produce evidence of his innocence, including receipts and bank statements. id. at 34.
Once again, Wesling has not addressed, or even discussed, the appropriate legal standard for establishing the ineffectiveness of his replacement counsel. Additionally, as noted above, the PCRA court determined that Wesling's third issue lacked merit because replacement counsel did, in fact, raise and argue a Motion for a bill of particulars. See PCRA Court Opinion, 5/25/16, at 3. We agree with the reasoning of the PCRA court, which is supported by the record and free of legal error, and affirm on this basis as to Wesling's third issue. See id.Wesling, 2017 WL 1901717, at *3-4.
Wesling's Sixth Amendment claim is meritless and neither his trial nor PCRA counsel were ineffective for failing to raise it. The state court decision was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wesling, 2017 WL 1901717, at *3-4. Moreover, the undersigned finds that the original bill of information, generated in 2012, clearly gave Wesling notice that the Commonwealth intended to proceed on the rape, sexual assault, indecent assault, and corruption charges with respect to two minor victims for alleged offenses that took place at various times between 1990 and 2001. (Doc. 22-1, at 21-25); see Hamling, 418 U.S. at 117 (concluding that a charge or Bill of Information satisfies due process when it contains the elements of the crime, permits the accused to plead and prepare an adequate defense, and allows the disposition to be used as a bar in a subsequent prosecution). Wesling has not demonstrated that the state court's decision, when evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. See Simmons, 590 F.3d at 231. Accordingly, habeas relief is not warranted on this claim.
IV. Recommendation
Based on the foregoing, it is respectfully recommended that Wesling's Petition (Doc. 22) be DENIED and DISMISSED WITH PREJUDICE and that the Clerk of Court be directed to CLoSE THIS CASE. Additionally, it is recommended that Wesling's motion to grant writ (Doc. 27) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated September 13, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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.