Vargas v. Wetzel

OSCAR VARGAS, Petitioner, v. JOHN WETZEL, et al., Respondents.

Civil Action No. 14-161 Erie

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

February 24, 2016

District Judge Cathy Bissoon

Magistrate Judge Susan Paradise Baxter

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the petition for a writ of habeas corpus filed by Petitioner, Oscar Vargas, be denied and that a certificate of appealability be denied.

II. REPORT

A. Relevant Background¹

In 2006, Petitioner was charged with two counts of involuntary deviate sexual intercourse and one count each of rape, indecent assault and corruption of minors. The factual averments of the Criminal Information alleged that in separate incidents in 1998 and 1999, Petitioner placed his penis into the anus and mouth of his step-daughter, who is referred to herein as "M.L." At the time of the charged assaults, M.L. was age five and six. M.L. first reported her allegations against Petitioner in 2006, when she was 12 years old.

In July 2006, following a referral from the Office of Children & Youth Services, M.L. was examined by Dr. Justine M. Schober, a pediatric urologist. Dr. Schober's subsequent report explained that M.L. had scarring consistent with sexual trauma.

Petitioner retained Keith H. Clelland, Esq., to represent him. As part of an omnibus pre-trial motion, Clelland sought to discover any photographs that had been taken as part of Dr. Schober's examination of M.L. He also requested that the defense be permitted to have M.L. examined by its own expert. After learning that Dr. Schober had not taken any photographs during her examination (1/4/07 Hr'g Tr. at 12-14), Clelland moved to compel an independent medical examination of M.L. (CP Dkt. 16). The trial court initially granted the defense's request, but after a conference on the issue it ordered that Dr. Schober re-examine M.L. and take photographs of the examination that would be made available to the defense. Following a second examination by Dr. Schober, photographs were sent to Petitioner's defense expert, Dr. Stephen R. Guertin, for review.

Petitioner's first trial commenced in January 2008. It ended in a mistrial after the jury was unable to reach a unanimous verdict. The court scheduled Petitioner's retrial for the March 2008 term of court. After Clelland withdrew his representation of Petitioner, the court appointed Assistant Public Defenders Nicole Sloane, Esq., and Richard Gilmore, Esq., to represent him and it continued Petitioner's trial to the May 2008 term of court.

On March 6, 2008, the defense requested that the court continue the May trial date so that new counsel would have sufficient time to review the transcripts of the first trial. (CP Dkt. 36). The court denied that request. In April, the defense again moved for a continuance of the trial date. In support, Attorney Sloane noted that the transcription of the first trial was not completed until April 15, 2008. She also explained that Dr. Guertin would not be available to testify during most of the May term. (CP Dkt. 39). On April 17, 2008, the trial court issued an order denying the motion for a continuance. It held that Dr. Guertin could be called out of order if needed. (CP Dkt. 40).

Petitioner's trial began on May 13, 2008. Dr. Guertin testified for the defense via video on the first day of trial, after M.L. and two other prosecution witnesses had testified. He stated that in his expertopinion, after having examined the colposcopic photographs provided by Dr. Schober, M.L. showed no evidence of the trauma she alleged. Dr. Schober, in contrast, subsequently testified for the prosecution that M.L. had scarring consistent with sexual trauma.

After three days of testimony, the jury convicted Petitioner on all charges. The court sentenced him to a term of 63-126 months of imprisonment, to be followed by 60 months of probation. In 2010, the Superior Court of Pennsylvania denied Petitioner's direct appeal and affirmed his judgment of sentence. Commonwealth v. Vargas, No. 1628 WDA 2008, slip op. (Pa.Super.Ct. Apr. 13, 2010) ("Vargas I") (CP Dkt. 74).

Petitioner subsequently filed a pro se motion for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq.(CP Dkt. 75). The PCRA court appointed Jeffrey Veitch, Esq., to represent him. An evidentiary hearing on Petitioner's claims was scheduled for October 2012. However, no testimony was taken and oral argument on Petitioner's claims was held instead.

The PCRA court denied Petitioner's request for relief in an Opinion dated February 12, 2013. Commonwealth v. Vargas, No. 2558-2006, slip op. (C.P. Erie. Feb. 12, 2013) ("Vargas II") (CP Dkt. 88). Eric Hackwelder, Esq., was appointed to represent Petitioner in his appeal but Petitioner waived his right to counsel and proceeded pro se. On April 29, 2014, the Superior Court issued a Memorandum in which it affirmed the PCRA court's decision to deny Petitioner relief. Commonwealth v. Vargas, No. 504 WDA 2013, slip op. (Apr. 29, 2014) ("Vargas III").

After the Superior Court denied his PCRA appeal, Petitioner filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [ECF No. 1]. This statute gives federal courts jurisdiction to consider a state prisoner's federal constitutional challenges to the validity of his or her state sentence. 28 U.S.C. § 2254(a). Errors of state law are not cognizable. Id. See, e.g., Estelle v.McGuire, 502 U.S. 62, 67-68 (1991). Petitioner carries the burden of proving that he is entitled to the writ. See, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

Petitioner raises the following five claims for relief:

Claim 1: He was denied due process of law where the trial court failed to allow the defense an independent medical evaluation of M.L.

Claim 2: He was denied due process of law where the trial court denied his request for a continuance of his May 2008 trial date.

Claim 3: He was denied due process of law where the trial court granted the Commonwealth's motion to present evidence of prior crimes of violence between Petitioner and his wife and stepchildren.

Claim 4: He was denied his right to effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights because his counsel failed to:

(a) object to the admission of M.L.'s recorded statement on the grounds that it violated the Confrontation Clause as enunciated in Crawford v. Washington, 541 U.S. 36 (2004).

(b) cross-examine M.L. concerning the recorded statement; and,

(c) object and/or raise a challenge on direct appeal to the misleading and prejudicial photographs utilized by Dr. Schober.

Claim 5: "In rejecting Petitioner's state court request for post-conviction relief based upon newly discovered evidence, the state PCRA court denied relief in a manner that failed to comport with the demands of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, resulting in Petitioner being denied a fair and meaningful opportunity to assert his state-created right to demonstrate the injustice of his conviction."

[ECF No. 1 at 9-20].

Respondents filed their answer [ECF No. 12], to which Petitioner filed a reply (which he called a memorandum of law) [ECF No. 15].

B. Standard of Review

In describing the role of federal habeas proceedings, the United States Supreme Court noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

Barefoot v. Estelle, 463 U.S. 880, 887 (1983). Habeas corpus is a "'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment)).

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which amended 28 U.S.C. § 2254. AEDPA imposes "a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Pinholster, 563 U.S. at 181 (internal quotation marks and citations omitted). That standard of review is codified at 28 U.S.C. § 2254(d) and it provides:

(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(d).²

A state court decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court[,]" 28 U.S.C. § 2254(d)(1), "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," Williams v. Taylor, 529 U.S. 362, 405 (2000), or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent," id. at 406. Few adjudications by state courts fall within § 2254(d)(1)'s "contrary to" clause.

Most state court's adjudications must be evaluated under § 2254(d)(1)'s "unreasonable application" clause. The petitioner's burden under this clause is also very difficult to meet. It requires that "[i]f the state court decision...