Diaz v. Oberlander

1

HAMETT DIAZ, Petitioner, v. DEREK OBERLANDER, Respondent.

No. 4:20-CV-01667

United States District Court, M.D. Pennsylvania

February 14, 2023

MEMORANDUM OPINION

Matthew W. Brann Chief United States District Judge

Petitioner Hamett Diaz, (“Diaz”), an inmate confined in the Forest State Correctional Institution, Marienville Pennsylvania, files the instant counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction and sentence imposed in the Court of Common Pleas of Monroe County in criminal case CP-45-CR-0000396-2014.

For the reasons set forth below, the petition for writ of habeas corpus, which is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 April 24, 1996 (“AEDPA”), will be denied.

I. BACKGROUND

The relevant facts and procedural history, extracted from the Pennsylvania Superior Court's May 7, 2020 decision, affirming the denial of Diaz's PCRA petition, are as follows:

[Appellant] is the stepfather of K.C., a 15 year old female. K.C. has a 17 year old friend, K.O., who is the victim (hereinafter referred to as “Victim”). On October 19, 2013, at around 12:00 p.m., [Appellant] drove K.C. and Victim from Blakeslee, Monroe County, Pennsylvania to New York City, NY, so that K.C. and Victim could get their nails done. During the drive, [Appellant] furnished K.C. and Victim with alcohol. [Appellant] also drank alcohol. While in New York when K.C. was getting her nails done, [Appellant] and Victim went to a liquor store in order to purchase more alcohol.

After K.C. and Victim were finished with their nails, [Appellant], K.C., and Victim headed back to Pennsylvania. Upon returning to Pennsylvania, they stopped at a Burger King restaurant for Victim to use the bathroom. Victim was so intoxicated, she required assistance walking to and using the bathroom. Around 11:00 p.m., [Appellant], K.C. and Victim arrived back at [Appellant] and K.C.'s home in Blakeslee. When they arrived at the home, [Appellant] sent K.C. into the house to see if K.C.'s mother, [Appellant's] wife, was awake.

After K.C. went into the house, [Appellant] drove off with the Victim to a secluded service road. At this point, Victim began zoning in and out. After pulling onto the service road, Victim recalls [Appellant] getting out of the minivan, opening the trunk door, and laying out the backseat. [Appellant] then called Victim to move to the back of the minivan. When Victim moved to the back of the minivan she hit her head. The next thing Victim recalls she was lying on her back in the rear of the minivan. Victim then remembers [Appellant] putting his mouth on her vagina. Victim recalls [Appellant] putting his penis in her vagina. She testified that she was in and out of consciousness and that she was so intoxicated she was slurring her words and unable to speak.

[Appellant] and Victim arrived back at [Appellant] and K.C.'s house and she was unable to walk. Victim stated she “crawled” up the stairs. When Victim entered the house, she was crying and she immediately told K.C. that she and [Appellant] had driven down the mountain and she believed “something may have happened.” K.C. then helped Victim wash up, get changed, and get into bed.

Victim later woke up around 4:00 a.m. on October 20, 2014, and told K.C. that she thought [Appellant] had sex with her. K.C. confirmed that Victim had come back to the house crying. Victim then called her ex- boyfriend about the incident. Victim's ex-boyfriend told his mother; the ex-boyfriend's mother called Victim's mother who called the police. Victim's mother then drove to [Appellant's] house and waited with Victim until the police arrived. The police arrived with an ambulance and Victim was transported to the hospital.

Commonwealth v. Diaz, 152 A.3d 1040, 1042 (Pa.Super. 2016) (quoting Trial Court Opinion, 10/2/15, at 1-3).

Appellant was convicted by a jury of rape of a person who is unconscious, aggravated indecent assault, unlawful contact with a minor, corruption of minors, and endangering the welfare of children. The trial court sentenced him to a mandatory minimum sentence on the rape conviction pursuant to 42 Pa.C.S. § 9714(a)(2) (“Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement”). On appeal, this Court vacated the judgment of sentence after concluding that the mandatory minimum sentence was inapplicable. Appellant was resentenced on September 8, 2017, to an aggregate term of incarceration of 140 to 280 months, and he did not file a direct appeal.

On September 15, 2018, Appellant filed the instant, counseled PCRA petition in which he identified three omissions of trial counsel that he contended deprived him of a fair trial. First, he faulted counsel for failing to object to inculpatory hearsay testimony elicited from Victim. Second, he alleged that counsel should have called four witnesses, some of whom would have impeached Victim's testimony regarding her level of intoxication and others also offering testimony as to the reasons why Appellant went to New York the next day. Several of the witnesses would have confirmed that Appellant's minivan remained in Appellant's driveway for at least one week in order to contradict State Police Trooper Wesnak's testimony that he did not obtain a search warrant for DNA testing on the minivan because he could not locate it until such time as the testing would have been futile. Finally, Appellant alleged that counsel was ineffective when he failed to object and seek a curative instruction when the Trooper testified that Appellant opted not to answer questions on the advice of his attorney. Following an evidentiary hearing on March 25, 2018, the PCRA court concluded that no relief was due. Appellant timely appealed, and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant presents three issues for our review:

I. Whether the trial court erred^[1] in denying the [PCRA] Petition where trial counsel was ineffective in failing to object to the admission of hearsay testimony in which multiple witnesses testified that [Appellant's] step-daughter, K.C., confirmed that [Appellant] raped [Victim] and encouraged [Victim] to call for help.

II. Whether the trial court erred in denying the [PCRA] Petition where trial counsel was ineffective in failing to call defense witnesses who would have directly impeached critical testimony from the Commonwealth's witnesses such as the allegations that [Victim] was too intoxicated to consent to sexual intercourse and that [Appellant] had tampered with the alleged crime scene and fled the jurisdiction.

III. Whether the trial court erred in denying the [PCRA] Petition where trial counsel was ineffective in failing to object to the investigating officer's disparagement of [Appellant's] refusal to give a statement and instead hire an attorney on the basis that the testimony violated [Appellant's] rights to counsel and his rights against self-incrimination under the Pennsylvania and United States Constitutions.^[2]

In a Memorandum Opinion filed May 7, 2020, the Superior Court affirmed, finding no error in the PCRA court's conclusion that Petitioner was not entitled to relief on his claims.^[3] On January 6, 2021, the Pennsylvania Supreme Court denied Diaz's petition for allowance of appeal.^[4] On August 10, 2020, while Diaz's state court litigation was pending, he filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania.^[5] By Order dated September 11, 2020, the Eastern District transferred Diaz's action to the Middle District.^[6] On September 15, 2020, Diaz filed a motion to stay his federal proceedings while he exhausted his state court remedies.^[7]By Memorandum and Order dated September 18, 2020, Petitioner's motion to stay was granted and Petitioner was directed to notify the Court within thirty (30) days of the termination of his pending state court review.^[8]

On March 1, 2021, after exhausting state court remedies, a counseled amended petition was filed on behalf of Diaz, raising for federal review, the following three issues of ineffective assistance of counsel:

1. Trial counsel failed to object to inadmissible hearsay testimony from Diaz's stepdaughter in which she confirmed that Diaz had raped the complainant, who was her 17-year-old friend. Because this was essentially a one-witness case in which the complainant alleged that Diaz assaulted her, the failure to object to this patently inadmissible testimony provided the jury with corroboration in a case in which there would have been no corroboration. Trial counsel allowed multiple witnesses to testify to this hearsay despite the fact that Diaz's stepdaughter did not testify at trial.

2. Second, trial counsel was ineffective in failing to call defense witnesses who would have impeached the testimony of the investigating officer and the complainant. The complainant claimed at trial that the alleged assault took place while she was incapacitated from drinking alcohol, but three of Diaz's family members saw her shortly after the alleged assault and saw that she did not exhibit any signs of intoxication. Trial counsel inexplicably failed to call these witnesses at trial to impeach her testimony.

3. Third, trial counsel was ineffective in failing to object when the investigating officer disparaged Diaz's decision to retain counsel and decline to give a statement. This testimony should have resulted in a mistrial, or at a minimum, a cautionary instruction, as the jury was left with the inference

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