Kuhn v. Gillmore

MICHAEL A. KUHN, Petitioner v. ROBERT GILLMORE, et al., Respondents

CIVIL ACTION NO. 3:15-0015

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

December 3, 2020

(JUDGE MANNION)

MEMORANDUM

Petitioner, Michael A. Kuhn, an inmate confined in the Greene State Correctional Institution, Waynesburg, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He challenges his conviction and sentence imposed in the Court of Common Pleas of Centre County. Id. The petition is ripe for disposition. For the reasons outlined below, the petition will be denied.

I. Factual and Procedural Background

The facts underlying Kuhn's conviction are contained in the trial court's March 20, 2010 Opinion in response to matters complained of on appeal. (Doc. 17-4 at 202). These facts are as follows:

In the early hours of July 4, 2007, Lisa Hundley returned home to her second floor apartment located on 164 East McCormick Avenue in downtown State College. Ms. Hundley had been out with her friends that night and left the fire escape door open to let in some fresh air. Her sleep was cut short by a man who stood over her and growled, "Don't fuckin' move. I'm going to rob you. I have a knife." The man pushed Ms. Hundley's face down on the mattress and tied both her hands behind her head with tape and electrical cord he severed from a nearby nightstand lamp. When he was done securing Ms. Hundley's arms he tied her ankles together so that she could not move. Lying face down on the mattress Ms. Hundley noticed for the first time that her pillow and mattress had blood on them while the back of her head felt warm and sticky. She could hear the man roaming her apartment while speaking causally about what he was going to take. Ms. Hundley pleaded with the man to take what he needed and to leave her alone.

As she was pleading and crying the man came back into the bedroom, pulled off the comforter covering Ms. Hundley and asked, "Are you naked under there?" "Can I get a feel?" The man inserted his fingers into her vagina. Ms. Hundley was able to convince the man that she had to use the bathroom. The man agreed to let her use the bathroom but refused to untie her. As Lisa Hundley hobbled towards the bathroom she looked at the man and saw his face. He appeared to be in his mid to late twenties. He was white, dark brown hair, slight build and a goatee. He was wearing wire-rim glasses, dark shirt, and a baseball hat on backwards. Of particular importance were his teeth. Ms. Hundley testified that his teeth were misshapen, and yellow, crooked and it looked like some were missing. Ms. Hundley's description of the man's teeth would later lead to Mr. Kuhn's arrest and the matching of his DNA which was collected from Ms. Hundley after a rape kit was taken.

After Lisa Hundley finished in the bathroom Mr. Kuhn followed her back to her bed and pushed her into the same position she had been in and raped her. After raping Ms. Hundley, Mr. Kuhn got up from the bed and started pacing the rooms of the apartment saying, "What to steal? What to steal?" Ms. Hundley testified that Mr. Kuhn repeated this behavior, raping her three times by penetrating her vagina with his penis and also oncepenetrating her anus with his penis. Before each rape Mr. Kuhn would remove the cord around her legs and then retie the cord when he was finished. He also checked to make sure her hands were still tightly bound.

After the final rape Ms. Hundley was blindfolded with her own shirt. Ms. Hundley was able to hear Mr. Kuhn rummaging through a bag of metal tools he had brought with him. As Ms. Hundley was face down on her mattress, with her hands bound and unable to protect herself, Mr. Kuhn approached the bed and told her, "Don't fucking move, bitch." Mr. Kuhn then struck Ms. Hundley's skull four or five times with what Ms. Hundley testified felt like a steal two-by-four. When she regained consciousness, she awoke in a puddle of her own blood which had saturated the mattress to the point that it had started to pool. Ms. Hundley was able to untie herself and get to her neighbor's apartment and call the police.

Id.

The following procedural background has been set forth in the Pennsylvania Superior Court's April 30, 2014, Memorandum Opinion, affirming the denial of Petitioner's Post Conviction Relief Act petition:

Following a jury trial on June 26, 2009, Kuhn was convicted of criminal attempt - murder of the first degree, rape, involuntary deviate sexual intercourse, burglary, aggravated assault, terroristic threats, and false imprisonment. Kuhn was subsequently sentenced on September 17, 2009, to an aggregate term of 48 to 96 years' imprisonment. Kuhn appealed his judgment of sentence, which was affirmed by this Court on December 20, 2010. Kuhn's petition for allowance of appeal to the Pennsylvania Supreme Court was denied on June 22, 2011.

On March 16, 2012, Kuhn filed a pro se PCRA petition. The PCRA court appointed counsel and counsel then filed an amended PCRA petition. Thereafter, PCRA counsel filed a petition for leave to withdraw and a "no-merit" brief pursuant toCommonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)(en banc).

After review of the "no-merit" brief, on June 6, 2013, the PCRA court issued notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss Kuhn's petition without a hearing. On that same date, the PCRA court issued an order granting counsel's petition to withdraw.

Kuhn filed a response to the PCRA court's Rule 907 notice. The PCRA court subsequently dismissed Kuhn's petition without a hearing. This pro se appeal followed.

Kuhn raises the following issues for our review:

A. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLANT'S PRIOR PCRA COUNSEL LEAVE TO WITHDRAW?

B. WHETHER THE LOWER COURT FAILED TO APPROPRIATELY CONSIDER APPELLANT'S ISSUES WHEN IT CONDUCTED ITS "INDEPENDENT REVIEW" AND ALSO FOLLOWING APPELLANT'S PRO SE RESPONSE TO THE COURTS NOTICE TO DISMISS?¹

C. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT APPELLANT WAS NOT ENTITLED TO RELIEF WITH REGARDS TO TRIAL COUNSEL'S INEFFECTIVENESS?

D. WHETHER THE LOWER COURT ERRED IN DETERMINING THAT APPELLANT'S SUPPRESSION

ISSUES WERE NOT ENTITLED TO POST-CONVICTION RELIEF?²

(Doc. 17-4 at 315-317, Pennsylvania Superior Court Memorandum Opinion). On April 30, 2014, the Pennsylvania Superior Court affirmed the PCRA court's order dismissing Kuhn's PCRA petition, finding that Kuhn's issues unmistakably lacked arguable merit. Id.

On January 6, 2015, Petitioner filed the instant petition for writ of habeas corpus, in which he raises the following four issues for review:

1. Trial counsel was ineffective for failing to secure and/or utilize a DNA expert during trial.

2. Trial counsel was ineffective for failing to order sentencing transcripts from lower court on direct appeal, so appellate court could not hear issue of excessive sentence on appeal.

3. Violation of Petitioner's Fourth Amendment right against illegal seizure when Petitioner's illegal arrest in companion case was used to hold him to investigate the instant case.

4. Trial counsel was ineffective for failing to object to Detective Aston's testimony during trial.

(Doc. 1, petition).

II. Legal Standards of Review

A habeas corpus petition pursuant to 28 U.S.C. §2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). 28 U.S.C. §2254, provides, in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

....

(d) 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. Section 2254 sets 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); Glenn v. Wynder, 743 F.3d402, 406 (3d Cir. 2014). A federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §2254(a). This limitation places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings resulted in "a fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure." Reed v. Farley, 512 U.S. 339, 348 (1994) (citations omitted).

Kuhn's case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA").

III. Discussion

Under the AEDPA, federal courts reviewing a state prisoner's application for a writ of habeas corpus may not grant relief "with respect to any claim that was adjudicated on the merits in State court proceedings" unless 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 adecision that was based on an unreasonable...