ZAYAS v. LUTHER et al
ORDER THAT UPON DE NOVO REVIEW, PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED WITH PREJUDICE; A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE; AND THE CLERK IS DIRECTED TO MARK THIS CASE CLOSED.. SIGNED BY CHIEF JUDGE LAWRENCE F. STENGEL ON 11/14/17. 11/14/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER, E-MAILED TO COUNSEL.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUPERINTENDENT LUTHER, et al.,
AND NOW, this 14th day of November, 2017, upon careful and independent
consideration of the petition for writ of habeas corpus, and after review of the thorough
and well-reasoned Report and Recommendation of United States Magistrate Judge
Thomas J. Rueter, IT IS HEREBY ORDERED that:
Upon de novo review, petitioner’s objections are OVERRULED;
The report and recommendation is APPROVED and ADOPTED; 1
Petitioner Raymond Zayas brings this pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. §2254. On August 28, 2017, United States Magistrate Judge Thomas J. Rueter
issued a Report and Recommendation, recommending that the petition be dismissed. Petitioner
filed Objections to the Report and Recommendation on September 11, 2017. For the following
reasons, I will overrule the Objections, approve and adopt the Report and Recommendation, and
dismiss the petition with prejudice without an evidentiary hearing.
I will review de novo the portions of the Report and Recommendation to which petitioner
objects and I may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Petitioner makes
several objections, which I will address in turn.
At the outset, six of the seven objections lodged by petitioner concern his third claim for
relief: ineffective assistance of PCRA counsel for failing to argue that the medical reports from
Ohio that were referenced by Dr. McClogan were inadmissible under Crawford v. Washington,
541 U.S. 36 (2004). As Judge Rueter correctly held, a claim alleging PCRA counsel’s
ineffectiveness is not cognizable on habeas review. 28 U.S.C. §2254(i). Petitioner attempted to
amend this allegation in his reply brief, asserting that PCRA counsel was ineffective for failing
to allege trial counsel ineffectiveness for failing to object to the admission of forensic reports
from TriCounty Advocacy Center. The underlying claim alleging trial counsel ineffectiveness
was unexhausted and procedurally defaulted. Judge Rueter liberally read the petitioner’s reply
brief as an invocation of the Martinez exception, asserting that the procedural default was caused
by PCRA counsel’s ineffectiveness in failing to assert this claim. Martinez v. Ryan, 566 U.S. 1
(2012). Judge Reuter concluded that petitioner failed to demonstrate that the underlying claim
was “substantial.” Therefore, petitioner was unable to overcome the procedural default. As
discussed below, petitioner’s objections to Judge Rueter’s well-reasoned and thorough Report
and Recommendation are overruled.
First, petitioner argues that that the “R&R refers to the check that Petitioner believes was
intercepted and endorsed by Nevelyn Vargas as an unemployment insurance check” but it was a
check for workers’ compensation benefits. (Pet.’s Written Objections to the Rep. & Rec.
[hereinafter Objections]). Petitioner does not explain how this had any impact on the outcome of
his petition, and I am unable to come up with any scenario where this wording would somehow
entitle petitioner to a grant of his habeas petition. Accordingly, this objection is overruled.
Petitioner next objects to Judge Rueter’s finding that trial counsel’s alleged
ineffectiveness for failing to object to Dr. McClogan’s testimony was not “substantial” as
required to excuse the procedural default under Martinez. Petitioner argues the claim is
substantial because this testimony was inadmissible under Crawford. As stated in the Report and
Recommendation, Dr. McClogan testified as a medical expert, basing her testimony on the
children’s medical records and transcripts from the forensic interviews. Dr. McClogan’s reliance
on medical records did not constitute “testimonial hearsay” under Crawford and did not violate
the Confrontation Clause. The underlying claim alleging ineffective assistance of trial counsel is
meritless and cannot excuse the procedural default under Martinez. Accordingly, this objection is
Petitioner’s third and fifth objections concern a related argument that the holding in
Crawford was not limited to “prior testimony at a preliminary hearing, before a grand jury, or at
a formal trial, and to police interrogation [sic].” Petitioner argues that Crawford includes forensic
interviews and physical examinations that are conducted for use at a future trial, such as those
conducted at TriCounty Advocacy Center. As stated in the Report and Recommendation, “the
medical examinations were conducted by a nurse practitioner, not law enforcement officers . . .
[t]he purpose of the medical examinations and interviews was ‘not to create a record for trial and
thus is not within the scope of the [Confrontation] clause.’” Accordingly, this objection is
Next petitioner objects to Judge Rueter’s reliance on Williams v. Illinois, 567 U.S. 50, 57
(2012), arguing that this is a plurality opinion. Even if it were improper for a court to rely on a
plurality opinion, which it is not, the underlying claim alleging ineffective assistance of trial
counsel is not “substantial,” and petitioner is unable to demonstrate actual prejudice. Petitioner
is, therefore, unable to overcome the procedural default. Accordingly, this objection is overruled.
Petitioner’s sixth objection concerns Judge Rueter’s reliance on Ohio v. Clark, 135 S. Ct.
2173 (2015) for the proposition that “[s]tatements of very young children will rarely, if ever,
implicate the Confrontation Clause.” Petitioner argues that he does not take issue with the
testimony of the victim at his trial because she was subject to cross-examination. Petitioner takes
issue with the testimony of Dr. McClogan and the extent it relied on the allegedly testimonial
statements of a nurse practitioner who was not available for cross-exanimation. For the reasons
discussed above, the medical records from TriCounty Advocacy Center do not constitute
The petition for a writ of habeas corpus is DISMISSED with prejudice;
A certificate of appealability WILL NOT ISSUE; and
The Clerk is directed to mark this case CLOSED.
BY THE COURT:
/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, C. J.
testimonial evidence. What is more, Judge Rueter’s reliance on Ohio v. Clark provides further
support for the admissibility of this evidence to the extent portions of these records contain
statements by the victims. Accordingly, this objection is overruled.
Finally, petitioner objects to Judge Rueter’s finding that he was not prejudiced. Petitioner
argues that Dr. McClogan’s testimony concerning the nurse practitioner’s physical examination
was the only physical evidence supporting the allegations. Whether the underlying claim alleging
ineffective assistance of trial counsel is a “substantial claim” is a threshold issue. Bey v.
Superintendent Greene SCI, 856 F. 3d 230, 238 (quoting Miller-El v. Cockrell, 537 U.S. 322,
327 (2003)). Because petitioner failed to establish that this claim had merit, Petitioner was
unable to overcome the procedural default and Judge Rueter declined to reach the prejudice
prong of the analysis. Even if Judge Reuter had reached the prejudice prong, petitioner cannot
demonstrate actual prejudice to overcome the procedural default. Contrary to petitioner’s
assertion that the nurse practitioner’s findings were the “only physical evidence,” the
overwhelming evidence demonstrates petitioner’s guilt and he is unable to establish prejudice as
a result of the default. Accordingly, this objection is overruled.
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