Rosario-Torres v. Lane

JESUS ROSARIO-TORRES, Petitioner v. SUPERINTENDENT JAY LANE, et al., Respondents

Civil No. 3:16-cv-1891

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 1, 2019

(Judge Mariani)

MEMORANDUM

Petitioner Jesus Rosario-Torres ("Rosario-Torres"), filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of Pike County, Pennsylvania. (Doc. 1). For the reasons discussed below, the Court will deny the petition.

I. Factual and Procedural Background

The Superior Court, in considering Rosario-Torres' appeal from his judgment of sentence, adopted the following factual and procedural background set forth in the trial court's opinion:

In May of 2007, [Joseph Atwell] was operating a substantial cocaine distribution operation out of his home in Forks Township, Northampton County. Jesus Rosario-Torres and Norman "Carolina" Domenech were two of his associates who aided in this operation. During the early morning hours of May 31, 2007, Atwell, Torres and Domenech were at Atwell's house. Atwell and Torres told Domenech that the three of them needed to go do a job. They drove in Atwell's car to the wooded entrance of the Bear's Den Hunting Club in Porter Township, Pike County. Atwell, Torres and Domenech exited the vehicle and proceeded on foot some distance away from the road.

Atwell and Torres then shot Domenech multiple times and left him at the scene.

Domenech's body was subsequently discovered by a group of men visiting the Bear's Den Hunting Club. The resulting investigation led police to Atwell, whose home was Domenech's last known address[,] and eventually to Torres. They were both charged with murder in the first degree [and related charges].

The Commonwealth filed appropriate notices of its intent to try Torres and Atwell jointly and its intention to seek the death penalty in both cases. A jury trial was held over seven days beginning on April 29, 2010. The jury convicted both defendants of Murder in the First Degree, Conspiracy to Commit Murder in the First Degree, Kidnapping and Conspiracy to Commit Kidnapping. [Atwell was also convicted of possessing a firearm without a license, persons not to possess a firearm and possession of an instrumentality of crime.]

The penalty phase of the trial occurred over four days. Upon deliberating for several hours, however, the jury was unable to reach a unanimous decision and expressed to the trial court that further deliberations would be unproductive. The trial court determined that the jury was hopelessly deadlocked and imposed a sentence of life imprisonment on both Torres and Atwell for the crime of murder in the first degree. On the remaining charges, Torres received a total aggregate sentence of not less than 30 years nor more than 60 years [and Atwell received a total aggregate sentence of not less than 41 years nor more than 104 years.]

Torres filed a post-sentence motion which the trial court denied. He then filed a timely notice of appeal on August 12, 2010. [Atwell filed a timely notice of appeal on July 22, 2010]. Pursuant to Pa.R.A.P. 1925, Torres [and Atwell each] submitted to the trial court a concise statement of matters complained of on appeal.

(Doc. 9-27, pp. 2-3, Commonwealth v. Torres, No 2281 EDA 2010 (Pa. Super. Sept. 13, 2011)). On direct appeal to the Pennsylvania Superior Court, Rosario-Torres sought reviewof the following issues:

1. Whether the Trial Court erred by denying Petitioner's motion to sever.

2. Whether the Trial Court erred by admitting certain evidence seized from Defendant Atwell's residence.

3. Whether the Trial Court erred in its cautionary jury instructions regarding the evidence seized from Defendant Atwell's residence.

4. Whether the Trial Court erred in denying Petitioner's motion for a mistrial.

5. Whether the Trial Court erred in denying Petitioner's Second Omnibus Motion relating to suppression of certain evidence.

6. Whether the Trial Court erred in granting the Commonwealth's Motion in Limine to preclude cross-examination of Witness Echevarria regarding her past drug use.

7. Whether the Trial Court erred in precluding cross-examination of Witness Echevarria regarding her prior stay in a mental health facility.

8. Whether the Trial Court erred in quashing Petitioner's subpoena to obtain medical records of Witness Echevarria.

9. Whether the Trial Court erred in denying the Petitioner's Motion for Transcripts of certain proceedings.

(Doc. 9-25). On September 13, 2011, the Superior Court affirmed Rosario-Torres' judgment of sentence. (Doc. 9-27).

Rosario-Torres filed a petition for allowance of appeal to the Pennsylvania Supreme Court on October 12, 2011. (Doc. 9-28). On February 1, 2012, the Pennsylvania Supreme Court issued an order denying the petition. (Doc. 9-29). Rosario-Torres did notfile a petition for writ of certiorari to the United States Supreme Court.

Rosario-Torres filed a timely petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. C.S. §§ 9541-9546. (Doc. 9-30). Counsel was appointed for Rosario-Torres, who subsequently filed a motion to withdraw as counsel. (Doc. 9-31). The PCRA court granted PCRA counsel's motion to withdraw, and notified Rosario-Torres of the court's intention to dismiss his PCRA petition. (Doc. 9-32). Rosario-Torres then filed an amended PCRA petition, claiming ineffective assistance of counsel at trial. (Doc. 9-33). Specifically, Rosario-Torres claimed that trial counsel advised him not to testify, thereby depriving him of his right to testify and his right to a coherent trial strategy. (Id.). Rosario-Torres further averred that the trial court erred by failing to colloquy him to determine whether his waiver of the right to testify was knowing and voluntary. (Id.). On March 25, 2013, a hearing was held on the amended PCRA petition. (Doc. 9-34). The PCRA court denied the petition and Rosario-Torres filed a timely appeal to the Pennsylvania Superior Court. (Docs. 9-35, 9-37). On December 4, 2013, the Superior Court affirmed the PCRA court's decision. (Doc. 9-38). Rosario-Torres then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. (Doc. 9-39). The Pennsylvania Supreme Court heard the appeal and ultimately remanded the case back to the PCRA court with the direction to appoint PCRA counsel for a limited evidentiary hearing. (Doc. 9-40). The PCRA court appointed counsel and held an evidentiary hearing on March 3, 2015. (Doc. 9-41). On March 9, 2015,following the hearing, the PCRA court issued an order denying the amended PCRA petition. (Doc. 9-42).

Rosario-Torres filed a pro se notice of appeal from the March 9, 2015 order. (Doc. 9-43). Counsel for Rosario-Torres subsequently filed a petition to withdraw as counsel, and an accompanying Turner/Finley¹ no-merit brief. (See Doc. 9-45, p. 1). On appeal to the Pennsylvania Superior Court, Rosario-Torres raised the following issues:

1. Did the PCRA Court abuse its discretion in failing to grant relief on Petitioner's claim that trial counsel was ineffective for giving unreasonable advice not to testify on his own behalf where Petitioner produced evidence that Counsel's advice was based on a hunch that the Commonwealth had not produced enough evidence to sustain a guilty verdict?

2. Was PCRA Counsel ineffective for failing to present the testimony of Petitioner's daughter at the evidentiary hearing where her testimony would have contradicted trial counsel's statements about the advice he gave Petitioner and his statement that Petitioner admitted guilt to him?

(Doc. 9-43). On May 4, 2016, the Superior Court granted counsel's petition to withdraw and affirmed the PCRA court's opinion. (Doc. 9-45; Commonwealth v. Torres, 2016 WL 2352826 (Pa. Super. May 4, 2016)).

Rosario-Torres then filed the instant petition for federal habeas relief.

II. Issues Presented in the Federal Habeas Petition

Rosario-Torres sets forth the following ten grounds for relief in the federal habeaspetition:

1. Whether the trial court erred in denying the Defendant's written and oral motions to sever his case from that of his co-defendant Joseph Atwell, thus denying the Defendant due process and his right to a fair trial.

2. Whether the trial court erred in admitting into evidence certain items seized at Defendant Atwell's property that bore no connection to Defendant Torres, including various guns not alleged to have been used in the commission of the crimes charged, various types and quantities of drugs, a white supremacist manual, and various items alleged to be related to the drug trade including baggies and owe lists, thus denying the Defendant due process and his right to a fair trial.

3. Whether the trial court erred in its cautionary instructions to the jury related to the items referenced in Question #2 as such instructions were insufficient to cure the prejudice caused by the introduction of said items, thus denying the Defendant due process and his right to a fair trial.

4. Whether the trial court erred in denying the Defendant's motion for a mistrial following the introduction into evidence and vivid display to the jury of various guns, drugs and other items seized at Defendant Atwell's house thus denying the Defendant due process and his right to a fair trial.

5. Whether the trial court erred in denying the Defendant's second (further amended) omnibus motion to suppress statements and evidence specifically related to a cell phone and picture obtained therefrom, which were illegally obtained from the Hispanic, non-English speaking Defendant, where the Defendant signed a Waiver of Rights and Consent to Search Form printed in English and a non-certified translator was used.

6. The trial court erred in granting the Commonwealth's Motion in Limine to preclude cross-examination or use of extrinsic evidence of past drug use from the Commonwealth's key witness, Magaly Echevarria, whereevidence of prolonged drug use was directly related to the

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