KOKINDA v. COLEMAN et al

Filing 167

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION UNDER 28 USC, SECTION 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY FILED BY PRO SE PETITIONER, JASON KOKINDA, IS DENIED AND DISMISSED; THE OBJECTIONS TO THE R & R FILED BY PETITIONER JASON KOKINDA ARE OVERRULED FOR THE REASONS SET FORTH BELOW; AND THE CLERK OF COURT SHALL MARK THE CASE CLOSED; IT IS FURTHER ORDERED THAT A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE.. SIGNED BY HONORABLE JAN E. DUBOIS ON 5/24/17. 5/25/17 ENTERED AND COPIES MAILED AND E-MAILED TO PETITIONER, E-MAILED TO COUNSEL. (pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JASON KOKINDA,

CIVIL ACTION
Petitioner,

v.
ROBERT GILMORE,
JOSH SHAPIRO,1 the Attorney General of
the State of Pennsylvania, and
JAMES B. MARTIN, the District Attorney
of the County of Lehigh,
Respondents.

NO. 13-2202

ORDER
AND NOW, this 24th day of May, 2017, upon consideration of the Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody filed by pro se petitioner, Jason
Kokinda, (Doc. No. 5, filed May 21, 2013), the record in this case, the Report and Recommendation
of United States Magistrate Judge Lynne A. Sitarski dated April 25, 2017 (Doc. No. 150, filed April
27, 2017), pro se petitioner’s Objections to April 25, 2017, R&R (Doc. No. 155, filed May 8, 2017),
and Response to Petitioner’s “Objections to April 26, 2017, R&R” (Doc. No. 157, filed May 16,
2017), IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Lynne A.

Sitarski dated April 25, 2017, as modified by this Order, is APPROVED and ADOPTED;
2.

The Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State

Custody filed by pro se petitioner, Jason Kokinda, is DENIED and DISMISSED;
3.

The Objections to April 25, 2017, R&R filed by pro se petitioner, Jason Kokinda, are

OVERRULED for the reasons set forth below; and
4.
1

The Clerk of Court shall mark the case CLOSED.

Josh Shapiro became the Attorney General of the State of Pennsylvania on January 17, 2017.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Josh Shapiro is substituted for
Kathleen Kane as a respondent in this suit.
1

IT IS FURTHER ORDERED that a certificate of appealability will not issue because
reasonable jurists would not debate (a) this Court’s decision that the petition does not state a valid
claim of the denial of a constitutional right, or (b) the propriety of this Court’s procedural rulings
with respect to petitioner=s claim. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473,
484 (2000).
The decision of the Court is based on the following:
1.

Presently before the Court is pro se petitioner’s Petition Under 28 U.S.C. § 2254 for

Writ of Habeas Corpus by a Person in State Custody. Petitioner asserts four grounds for habeas
relief: (1) the invalidity of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); (2) ineffective assistance of
counsel; (3) two alleged Due Process violations relating to the charging documents and alleged
Brady violations; and (4) Post Conviction Relief Act (“PCRA”) Court error. The Report and
Recommendation (“R&R”) prepared by Magistrate Judge Sitarski recommends that the habeas
petition be denied. Pro se petitioner filed objections to the R&R on May 8, 2017, and respondents
filed their responses to those objections on May 16, 2017.
2.

The Court conducts a de novo review of the contested portions of the R&R. See

Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In conducting the de novo review, the
Court may place “whatever reliance [it], in the exercise of sound judicial discretion, [chooses] to
place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447
U.S. 667, 676 (1980). To the extent pro se petitioner’s objections are merely “general in nature,”
the Court “need not conduct a de novo determination.” Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir.
1984). The Court addresses each of pro se petitioner’s objections in turn.
OBJECTION 1: INVALIDITY OF ERIE
3.

Petitioner’s first objection to the R&R asserts that Magistrate Judge Sitarski “wholly

evades discussion of [his] Erie claims.” Objections at 2. Contrary to petitioner’s assertion,
2

Magistrate Judge Sitarski discussed petitioner’s Erie claim and concluded that “the PCRA Court
determined that Petitioner’s jurisdictional claim lacked merit pursuant to its interpretation of the
Pennsylvania constitution. This is a question of Pennsylvania state law that this court will not
disturb.” R&R at 13. This Court agrees with that statement. The Court further notes that Erie is
inapplicable to these proceedings because Erie concerned the application of substantive state law in
civil diversity cases. Thus, the Court overrules petitioner’s objection on this issue.
OBJECTIONS 2 AND 5: INEFFECTIVE ASSISTANCE OF COUNSEL
4.

Petitioner’s second objection to the R&R states that it “fail[s] to address how Mr.

Kokinda believed that agents were actual minors, when they framed their characters as if mere
adults role-playing, rhetorically.” Objections at 2. In Objection 5, petitioner claims that “the failure
of trial counsel to obtain medical records [allegedly documenting his asexuality] was another
inexcusable fatal error.” Objections at 5. To succeed on an ineffective assistance of counsel claim,
a petitioner must show that “counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “The
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. “Judicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689.
5.

In this case, as the PCRA Court and Magistrate Judge Sitarski concluded,

petitioner’s trial counsel determined that an insanity defense was the most reasonable strategy after
investigation into petitioner’s psychiatric history, consultation with experts, and review of the
record. R&R at 19. As noted in the R&R, “[t]he role-playing defense now preferred by petitioner
did not have a greater likelihood of success, as Petitioner not only engaged in chats, but sent
pictures and arranged to meet his intended victim.” R&R at 19. The PCRA Court concluded that
counsel made a strategic decision to pursue an insanity defense and that counsel was effective. See
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Werts v. Vaughn, 228 F.3d 178, (3d Cir. 2000) (holding that Pennsylvania follows an ineffective
assistance of counsel standard not contrary to the Strickland standard). Under the circumstances of
petitioner’s case, petitioner has not demonstrated that the adjudication of this claim by the state
courts was contrary to, or an unreasonable application of, clearly established federal law.
Similarly, trial counsel’s decision to pursue an insanity defense and not introduce evidence
of petitioner’s alleged asexuality was a strategic decision. First, petitioner has presented no
evidence of his alleged asexuality. Even assuming that petitioner is asexual, the Court rejects
petitioner’s argument that “it is absurd to find criminal sexual predisposition in an asexual.”
Objections at 5. Second, petitioner has made no showing that counsel’s alleged failure to obtain his
medical records of asexuality resulted in “a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial,” Hill v. Lockhart, 474 U.S.
52, 59 (1985), because petitioner knew of his alleged asexuality at the time he pled guilty to the
offense. Accordingly, the Court overrules petitioner’s objections on this issue.
OBJECTION 3: ALLEGED BRADY VIOLATION
6.

Petitioner’s third objection to the R&R argues that “the R&R makes the fatal errors

of assuming that Mr. Kokinda did not go to trial. And therefore that, Brady and its progeny; did not
require pre-trial disclosure of evidence, evidence that resolved dispute over age-oriented role-play.”
Objections at 3. Contrary to petitioner’s assertions, Magistrate Judge Sitarski analyzed his Brady
argument in the R&R. R&R at 36. Magistrate Judge Sitarski concluded that a Brady violation did
not occur on the grounds that (a) the allegedly suppressed evidence2 would merely form the
groundwork for possible arguments or defenses and (b) that petitioner failed to prove the materiality
of the alleged evidence because it would not have changed his plea. Id. Upon review of the record
2

The Court notes that petitioner has produced no factual support for his contention that such
suppressed evidence exists. Nonetheless, this Court and Magistrate Judge Sitarski address
petitioner’s claim as if it does.
4

and the R&R, the Court concludes that there is no “reasonable probability that, had the [alleged]
evidence been disclosed to the defense, the result of the proceeding would have been different.”
United States v. Brown, 250 F.3d 811, 818 (3d Cir. 2001) (“Here, in light of Brown’s confession,
the signed ATF Forms that corroborate her confession, and Brown’s agreement in open court that
the factual basis for the crimes, as recited by the government, was accurate and correct, we conclude
that she has not undermined our confidence in the outcome of this case.”). Thus, the Court
overrules petitioner’s objection on this issue.
OBJECTION 6: DENIAL OF COUNSEL
7.

Petitioner’s sixth objection states that “all of the severe errors by counsel,

accumulatively demonstrate a denial of counsel; that he [defense counsel] acted more as a saboteur
than a defender.” Objections at 6. In Objection 6, petitioner raises no specific objection to
Magistrate Judge Sitarski’s conclusions on his ineffective assistance of counsel claims. Given the
general nature of petitioner’s objection, the Court “need not conduct a de novo determination.”
Goney, 749 F.2d at 6-7. The Court agrees with Magistrate Judge Sitarski that counsel was effective
and that each of petitioner’s discreet ineffectiveness claims are meritless. Accordingly, it overrules
petitioner’s objection on this issue.
OBJECTION 7: CERTIFICATE OF APPEALABILITY, ALL OTHER ISSUES
8.

Petitioner’s seventh objection states that petitioner objects to “any other adversarial

conclusion expressed or implied in the R&R” and the denial of the issuance of a certificate of
appealability, without stating a reason for this objection. Objections at 6. Based on the general
nature of petitioner’s objection to “any other adversarial conclusion expressed or implied in the
R&R,” this Court “need not conduct a de novo determination” of that objection. Goney, 749 F.2d at
6-7.

5

As to the certificate of appealability, such certificates are granted only upon “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because this Court
concludes that petitioner has not demonstrated “that reasonable jurists would find [its] assessment
of the constitutional claims debatable or wrong,” the Court agrees with Magistrate Judge Sitarski
that there is no basis for the issuance of a certificate of appealability. See Slack v. McDaniel, 529
U.S. 473, 484 (2000).
BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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