Talbert v. Harry

PAUL TALBERT, Petitioner, v. SUPERINTENDENT LAUREL HARRY, et al., Respondents.

1:18-cv-0953

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 3, 2021

Hon. John E. Jones III

MEMORANDUM

Petitioner Paul Talbert ("Petitioner" or "Talbert"), a state inmate presently on probation, files the instant petition (Doc. 1, 1-1) for writ of habeas corpus pursuant to 28 U.S.C. § 2254, accompanied by exhibits (Docs. 1-1 through 1-4), seeking relief from the Judgment of Sentence of two-and-a-half to five years imprisonment followed by five years of probation entered in the Court of Common Pleas of York County, Pennsylvania, on April 21, 2014, in criminal case CP-67-2721-2011, after a jury found him guilty of various crimes including Aggravated Indecent Assault of a person less than 16 years of age, Indecent Assault, and Corruption of Minors. Respondents answered the petition with a Response (Doc. 12) and Exhibits (Docs.1-1, 1-2). Thereafter, Talbert filed a Traverse. (Doc. 14).¹

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

I. FACTUAL AND PROCEDURAL BACKGROUND

The Superior Court of Pennsylvania set forth the following relevant factual background and procedural history while reviewing Talbert's appeal from a November 15, 2016 PCRA court order denying relief::

On March 25, 2011, Appellant was charged with a number of crimes, including aggravated indecent assault of a person less than16 years of age, indecent assault, and corruption of minors. [n.1: 8 Pa.C.S.A. §§ 3125(a)(8), 3126(a)(8), and 6301(a)(1), respectively.]. Appellant proceeded to a jury trial, where the victim testified that Appellant is her stepfather and that he began sexually abusing her when she was around 12 years of age. As the victim testified, Appellant is along-haul truck driver and Appellant first sexually abused her in his truck, when he was on a work-trip to New Jersey. N.T. Trial, 8/12/13, at 81-83. The victim testified that, during this incident, Appellant "tried to put his dick in [her] vagina," but that she could not remember whether Appellant succeeded in doing so. Id. at 83-84. The victim testified that Appellant next sexually assaulted her approximately one to two years later and that, after the second time, Appellant sexually abused her about "once or twice a month" until she was 16 years old. Id. at 86 and 89. Further, the victim testified that, during the later instances of abuse, Appellant would either rub [her] clit[oris] or put his finger in" her vagina - and that Appellant did so multiple" times. Id. at 89-94.

On August 13, 2013, a jury convicted Appellant of the above-mentioned crimes and, on April 21, 2014, the trial court sentenced Appellant to serve a term of two-and-a-half to five years in prison,followed by five years of probation. N.T. Sentencing, 4/21/14, at 73-74. This Court affirmed Appellant's judgment of sentence on August 4, 2015; our Supreme Court denied Appellant's petition for allowance of appeal on December16, 2015. Commonwealth v. Talbert, 131 A. 3d 81 (Pa. Super. 2015) (unpublished memorandum) at 1-14, appeal denied, 128 A.3d 220 (Pa. 2015).

On February 3, 2016, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel and Appellant filed an amended petition on May 16, 2016. The PCRA court held hearings on May 27, and July 29, 2016. On November 16, 2016, the PCRA court denied relief. This timely appeal follows.

(Doc. 12-2, pp. 581-83). The Superior Court noted that, although Talbert raised a number of issues in his Pennsylvania Rule of Appellate Procedure 1925(b) statement, including ineffective assistance of counsel and lower court error related to after discovered exculpatory evidence, he failed to include a Pennsylvania Rule of Appellant Procedure 2116 "statement of questions involved" section in his brief. (Id. at 583-85). The court concluded that because "he clearly and distinctly 'identifies the specific issue[s]...in the argument section of [the] appellate brief...[his] failure to comply with Rule 2116(a) does not impede our ability to review the issue[s]..." (Id. at 585, n.3). The Superior Court extracted the following ineffective assistance of counsel appellate issues from Talbert's brief:

1. Because the failure to cross-examine [the victim] on prior inconsistent statements is both of arguable merit and raises a reasonable probability of a different verdict, the [trial]court erred.

2. Because trial counsel's failure to call multiple witnesses regarding prior inconsistent statements of [the victim] is both of arguable merit and raises the reasonable probability of a different verdict, the [trial] court erred.

3. Trial counsel's failure to develop an adequate trial strategy because of his insufficient communication with [Appellant] requires a new trial.

4. Because trial counsel's failure to introduce prior inconsistent statements of [the victim] regarding the charged offense is both of arguable merit and raises the reasonable probability of a different verdict, the [trial] court erred.

Appellant's Brief at 1-30. [footnotes omitted].

(Id. at 584-85). The court also considered his contention that he was entitled to relief based on exculpatory after-discovered evidence. (Id. at 592). The Superior Court affirmed the PCRA court's order denying relief. Talbert filed a Petition for Allowance of Appeal with the Supreme Court; the court denied the petition on March 26, 2018. (Id. at 597).

Thereafter, Talbert timely filed the instant petition pursuant to 28 U.S.C. § 2254.

II. 28 U.S.C. § 2254 STANDARDS OF REVEW

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner in custody pursuant to the judgment of a state court 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.

(b)(1) 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 unless it appears that -

(A) the applicant has exhausted the remedies available in the courts of the State;

...

(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 clearly 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, 536 U.S. 170, 181 (2011); Glenn v. Wynder, 743 F.3d 402, 406 (3d Cir. 2014). A federal court may consider such a petition 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). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts.

Further, a federal habeas court may not consider a petitioner's claims of state law violations; review is limited to issues of federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); 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.").

III. GROUNDS FOR RELIEF

Talbert seeks habeas relief based on the following grounds:

Ground One: The PCRA court erred in denying him relief on Sixth Amendment right effective assistance of counsel grounds when trial counsel testified at the PCRA hearing that he was "ineffective on multiple levels."

Ground Two: Trial counsel was ineffective in failing to discuss with him and his family any witnesses who would testify and establish his innocence.

Ground Three: Trial counsel violated his right to effective assistance of counsel based on "complete failure to have in place any trialstrategy, to discuss any trial strategies with his client, or do any pretrial research and investigation."

Ground Four: Trial counsel was ineffective in failing to partake in any pretrial discussion with him and his family regarding questions that should be asked of trial witnesses.

Ground Five: Trial counsel failed to investigate, interview, and arrange to have witnesses at trial including the case worker from children and youth, individuals from York Hospital, and Detective Hopple.

Ground Six: Trial counsel vailed to engage in adequate pretrial preparation and failed to adequately cross-examine any of the state's witnesses.

Ground Seven: Trial counsel's failure to obtain a medical expert in Asperger's Disorder and failure to conduct research in this field which hampered his ability to cross-examine the state's medical expert.

Ground Eight: Trial counsel failed to prepare and cross-examine the victim about her multiple inconsistent statements made during all stages of the proceedings.

Ground Nine:

...