BREKNE v. STATE OF PENNSYLVANIA et al

Filing 12

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE RICE IS APPROVED AND ADOPTED; THE PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. SECTION 2254 IS DENIED; AS PETITIONER HAS FAILED TO MAKE A SUBSTANTIAL SHOWING OF THE DENIAL OF A CONSTITUTIONAL RIGHT OR DEMONSTRATED THAT A REASONABLE JURIST WOULD DEBATE THAT CORRECTNESS OF THIS RULING, THE COURT DECLINES TO ISSUE A CERTIFICATE OF APPEALABILITY AND THE CLERK IS DIRECTED TO CLOSE CIVIL ACTION NO. 14-788. SIGNED BY HONORABLE JOHN R. PADOVA ON 6/1/15. 6/1/15 ENTERED AND COPIES EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, ) Modified on 6/1/2015 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KERI ANN MARIE BREKNE

CIVIL ACTION

v.

F\LED
JUN -1 2015

STATE OF PENNSYLVANIA, et al.

NO. 14-788

~~CHAEL E. l<U~~p~~:rk

ORDER-MEMORANDUM
AND NOW, this 1st day of June, 2015, upon careful and independent consideration of the
Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docket No. 1), and after
review of United States Magistrate Judge Timothy R. Rice's Report and Recommendation
(Docket No. 7), and consideration of Petitioner's Objections to the Report and Recommendation
(Docket No. 9), IT IS HEREBY ORDERED that:
1.

Petitioner's Objections are OVERRULED.

2.

The Report and Recommendation of Magistrate Judge Rice is APPROVED and
ADOPTED.

3.

The Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is
DENIED.

4.

As Petitioner has failed to make a substantial showing of the denial of a
constitutional right or demonstrated that a reasonable jurist would debate the
correctness of this ruling, the Court declines to issue a certificate of appealability
under 28 U.S.C. § 2253(c)(2).

5.

The Clerk is directed to CLOSE Civil Action No. 14-788.

On July 9, 2008, Petitioner pled guilty to five counts of aggravated indecent assault, and
the state court thereafter sentenced her to thirty-six to seventy-two months' imprisonment on each
of the five counts, all to run consecutively. Petitioner subsequently completed direct and Post

Conviction Relief Act ("PCRA") appeals in the state court system, and has since filed the instant
Petition for a Writ of Habeas Corpus (the "§ 2254 Petition"). In the § 2254 Petition, Petitioner
asserts three grounds for relief from her sentence: (1) that the sentencing court violated her due
process rights under the Eighth and Fourteenth Amendments by considering improper factors in
connection with her sentencing; (2) that her trial counsel was ineffective in violation of the Sixth
Amendment for failing to raise that issue in the trial court; and (3) that the PCRA court violated her
Fourteenth Amendment due process rights by failing to recuse itself because of bias.

In a

thorough and well-reasoned Report and Recommendation, Magistrate Judge Rice recommended
that we deny Petitioner's first and third claims because they are procedurally defaulted and
meritless, and that we deny her second claim because it is meritless. Petitioner asserts the
following Objections to the Report and Recommendation: (1) the Magistrate Judge erroneously
recommended that we deny Petitioner's ineffectiveness claim because her due process claim
pursuant to the Eighth and Fourteenth Amendments is meritless; 1 (2) the Magistrate Judge
erroneously recommended that no miscarriage of justice will arise from a determination that her
claim that the court improperly failed to recuse was procedurally defaulted; (3) the Magistrate
Judge erred by recommending that her claim that the PCRA court should have recused is meritless;
and (4) the Magistrate Judge erred by recommending that no certificate of appealability should be
issued.2

1

We do not read Petitioner's Objections to take issue with the Magistrate Judge's
recommendation that we deny Petitioner's direct due process claim pursuant to the Eighth and
Fourteenth Amendments because that claim is procedurally defaulted.
2

Petitioner also asserts that the Magistrate Judge erred by not making it clear that her
ineffective assistance of counsel claim was not procedurally defaulted. However, there was
simply no reason for the Magistrate Judge to explicitly recommend that the ineffectiveness claim
2

Petitioner first objects to the Magistrate Judge's treatment of her ineffectiveness claim.
Petitioner argues in the § 2254 petition that her trial counsel was ineffective for failing to argue at
sentencing that the court violated her Eighth and Fourteenth Amendment due process rights when
it considered that Petitioner took "little responsibility," "minimize[d] [her] predatory behavior,"
"groomed [the] victim," "told [the victim] that [she] owned her," and "involved [herself] in every
conceivable kind of controlling behavior that could possibly be rendered on" the victim. (N.T.
10/10/08 at 64-65.) In Petitioner's view, these comments demonstrated that the court took into
consideration whether the victim had consented to the charged sexual contact, and she argues that
such consideration was improper and violated her due process rights. The Magistrate Judge
recommended, however, that this due process claim had no merit and therefore recommended that
counsel could not have been ineffective for failing to raise it. See United States v. Sanders, 165
F .3d 248, 253 (3d Cir. 1999) ("There can be no Sixth Amendment deprivation of effective counsel
based on an attorney's failure to raise a meritless argument." (citations omitted)).
In her objection, Petitioner contends that the Magistrate Judge's recommendation that the
due process claim has no merit is erroneous. According to Petitioner, by considering consent, the
sentencing court punished her for a crime she did not commit because consent is not an element of
aggravated indecent assault under 18 Pa. Cons. Stat. Ann. § 3125(a)(8), i.e., her crime of
conviction, but is an element of aggravated indecent assault under 18 Pa. Cons. Stat. Ann. §
3125(a)(l).

Petitioner thus contends that the court essentially punished her for a separate,

was not procedurally defaulted because he addressed that claim on its merits. We therefore
overrule this Objection to the Magistrate Judge's Report and Recommendation.
3

uncharged, and more serious crime. 3 However, the Magistrate Judge correctly recommended that
this argument is meritless because the law is clear that a sentencing judge is permitted to consider
the circumstances under which a defendant committed her crimes of conviction. See United
States v. Watts, 519 U.S. 148, 151 (1997) (emphasizing the "longstanding principle that
sentencing courts have broad discretion to consider various kinds of information" when sentencing
defendants); see also 42 Pa. Cons. Stat. Ann. § 9721(b) (stating that Pennsylvania sentencing
courts "shall follow the general principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative needs of the
defendant").

Consequently, we overrule Petitioner's Objection to the Magistrate Judge's

recommendation that her due process claim has no merit and that her ineffectiveness claim is
therefore meritless as well.
Petitioner further objects to the Magistrate Judge's recommendation that we deny her
claim that her Fourteenth Amendment due process rights were violated when the PCRA court
declined to recuse itself for bias. The Magistrate Judge recommended that this due process claim
was procedurally defaulted because: (1) Petitioner based her recusal claim in state court solely on
state law and therefore failed to fairly present a federal due process claim there, see Rainey v.
Varner, 603 F.3d 189, 198 (3d Cir. 2010); and (2) Petitioner failed to allege cause forthe default or
that failure to review the federal due process claim would result in a fundamental miscarriage of
3

At the time Petitioner was sentenced, Pennsylvania law imposed a mandatory minimum
sentence of five years' imprisonment for convictions under 18 Pa. Cons. Stat. Ann.§ 3125(a)(l),
but there was no mandatory minimum for convictions under 18 Pa. Cons. Stat. Ann.§ 3125(a)(8).
See 42 Pa. Cons. Stat. Ann. § 9718(a). There is no dispute that Petitioner was not actually
sentenced under 18 Pa. Cons. Stat. Ann.§ 3125(a)(l) or that she did not receive the mandatory
minimum penalty applicable to violation of that statute.
4

justice, see Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). The Magistrate Judge further
recommended that, even if the claim was not defaulted, the state court decisions rejecting
Petitioner's recusal arguments were not "contrary to, or ... an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States" and were not
"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), because Petitioner failed to show that the PCRA court
exhibited partiality or bias against her. See Martinez v. Stridiron, 538 F. App'x 184, 188 (3d Cir.
2013) ("Due process requires recusal only when a judge 'has a direct, personal, substantial,
pecuniary interest in a case' or when there are 'circumstances in which experience teaches that the
[objective] probability of actual bias on the part of the judge ... is too high to be constitutionally
tolerable.'" (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 867-77 (2009))).
Petitioner now objects to the Magistrate Judge's recommendations regarding this claim,
contending that her failure to exhaust her federal due process claim in state court should be
excused because a fundamental miscarriage of justice will ensue if we do not consider that claim
on the merits. She further argues that the Magistrate Judge mis-assessed the merits of her claim
by using a standard that required her to prove actual bias, when due process only requires that she
establish that the court exhibited an appearance of bias. Using what she contends is the proper
standard, she argues that the state court's comments at sentencing that her conduct was "insidious"
and "appall[ing]," and that the crime was the most "heinous" that the judge had seen in 20 years,
were sufficient to establish an appearance of bias that violated due process.

4

4

(N. T. 10/10/08 at

The trial court judge who sentenced Petitioner also presided over Petitioner's PCRA
proceedings. Accordingly, Petitioner relies on the judge's comments at sentencing to argue that
the PCRA should have recused itself.
5

60-63.)
However, unlike Petitioner, we do not read the Magistrate Judge's Report and
Recommendation to hold Petitioner to a standard of establishing actual bias, as he properly quoted
controlling precedent that due process requires recusal not only when there is actual bias but also
when there is merely an"' [objective] probability of actual bias."' (R & Rat 8 (quoting Martinez,
538 F. App'x at 188 (alteration in original).)

Moreover, we, like the Magistrate Judge, conclude

that the sentencing court's isolated remarks on which Petitioner relies to establish a due process
violation are insufficient to establish an appearance of bias. See Liteky v. United States, 510 U.S.
540, 555 (1994) (stating that "judicial remarks ... that are critical or disapproving of, or even
hostile to" a defendant will only support a bias challenge if "they reveal an opinion that derives
from an extrajudicial source" or "they reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible").

Accordingly, we overrule Petitioner's Objection to the

Magistrate Judge's analysis of the merits of her claim that her due process rights were violated by
the PCRA court's failure to recuse, and likewise overrule her Objection to the Magistrate Judge's
recommendation that she has not established a fundamental miscarriage of justice to excuse her
procedural default of that claim.
Petitioner finally objects to the Report and Recommendation on the ground that the
Magistrate Judge erred by recommending that we should not issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2). However, for the reasons explained above, Petitioner has
failed to make a substantial showing of the denial of a constitutional right, and she has also failed
to demonstrate that a reasonable jurist would debate the correctness of this ruling. See Slack v.

6

McDaniel, 529 U.S. 473, 484 (2000). Consequently, we overrule Petitioner's Objection to the
Magistrate Judge's recommendation that we should not issue a certificate of appealability.

For the foregoing reasons, we overrule each of Petitioner's Objections and adopt the
Report and Recommendation in its entirety.
BY THE COURT:

7