URYC v. CAMERON et al

Filing 12

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 3/3/17. 3/3/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GARY WAYNE URYC,
Petitioner,
CIVIL ACTION

v.
SUPERINTENDENT CAMERON, et al,
Respondents. :

No.16-1527

MEMORANDUM
KEARNEY,J.

March 3, 2017

A state court prisoner petitioning pro se for a writ of habeas corpus under 28 U.S.C. §
2254 raising a wide variety of challenges to the effectiveness of his earlier lawyers and evidence
admitted in his state court trial must show his claims have some merit. We separately test the
merits with appropriate deference to the Pennsylvania trial and appellate courts' rulings on the
same issues.

When, as here, he does not demonstrate merit or otherwise fails to show he

exhausted newly raised claims in the state court, we must deny his petition for habeas relief.

I.

Procedural History
The Lancaster County jury convicted Gary Wayne Uryc of two counts of involuntary

deviate sexual intercourse, one count of incest, two counts of indecent assault, one count of
corruption of minors, and two counts of felony intimidation of a witness. 1 On August 28, 2012,
the Court of Common Pleas for Lancaster County imposed an aggregate sentence of thirty-two
(32) to sixty-four (64) years in prison.2 Mr. Uryc timely filed an appeal, and the Superior Court
of Pennsylvania affirmed his judgment of sentence on March 4, 2014. 3 Mr. Uryc did not appeal
to the Pennsylvania Supreme Court. 4
Mr. Uryc timely filed a pro se post-conviction relief petition on October 6, 2014. 5 The
post-conviction relief court appointed counsel to represent Mr. Uryc. 6 The appointed counsel

filed an amended petition seeking time credit for Mr. Uryc's period of incarceration between his
arrest and his date of sentencing. 7 The appointed counsel then filed a "no merit" letter regarding
the remaining claims in the petition and moved to withdraw. 8
The post-conviction relief court granted Mr. Uryc credit for time served on December 10,
2014. 9 The post-conviction relief court issued notice of its intent to dismiss Mr. Uryc's petition
without a hearing on February 11, 2015. 10 Mr. Uryc filed a response in opposition on February
23, 2015. 11 On March 10, 2015, the post-conviction relief court granted the counsel's motion to
withdraw and dismissed the petition without a hearing. 12
Mr. Uryc timely filed a prose appeal. 13 The Pennsylvania Superior Court affirmed the
post-conviction relief court's dismissal of his petition on November 10, 2015. 14 Mr. Uryc
petitioned the Pennsylvania Supreme Court for allowance of appeal, 15 but then withdrew his
petition and directed the Supreme Court to close the matter. 16 The Pennsylvania Supreme Court
closed the matter on February 22, 2016. 17 Mr. Uryc timely filed this habeas petition on March
10, 2016. 18

II.

Analysis
Mr. Uryc presents five grounds for habeas relief. The first ground concerning a Miranda

violation is meritless. The second ground concerns two claims regarding Mr. Uryc's recorded
phone calls from prison. He first claims the Commonwealth violated the Pennsylvania
Wiretapping Act in recording these phone calls and introducing them as evidence. This claim is
not cognizable on federal habeas review. He also claims the Commonwealth violated his due
process rights under the Fourteenth Amendment in recording these calls. This claim is
procedurally defaulted. The third ground concerning ineffective assistance of counsel in failing
to pursue these Wiretapping Act claims is meritless. The fourth ground concerning ineffective

2

assistance of counsel in failing to cross-examine the victim at trial is also meritless. The fifth
ground concerning ineffective assistance of counsel in failing to challenge Mr. Uryc' s sentence
as excessive on appeal is also meritless. In the accompanying Order, we deny Mr. Uryc's habeas
petition.

A. We deny Mr. Uryc's Miranda claim as meritless.
Mr. Uryc first argues the Pennsylvania Superior Court erred in rejecting his Miranda
claim on his direct appeal. 19 His claim is meritless.
When Mr. Uryc arrived at the Lancaster County jail, he completed standard paperwork
requesting an attorney to represent him. 20 The next day, two police officers visited him at the
jail. 21 They administered the Miranda warning and presented him with a waiver to sign if he
wished to speak with them. 22 Mr. Uryc reviewed the waiver and signed it. 23 He gave a lengthy
statement to the police, and then revised the statement. 24 Mr. Uryc later filed a pre-trial motion to
suppress these statements. 25 The court held a hearing and denied the motion. 26
Mr. Uryc argues the police questioned him in violation of Edwards v. Arizona. 27 The
Commonwealth argues Edwards is distinguishable, and the Superior Court found Mr. Uryc made
a knowing, intelligent, and voluntary waiver of his Miranda rights under Montejo v. Louisiana. 28
We agree.
Mr. Uryc did not present an Edwards argument on direct appeal. In Edwards, the
Supreme Court held "when an accused has invoked his right to have counsel present during
custodial interrogation, a valid waiver of that right cannot be established by showing only that he
responded to further police-initiated custodial interrogation even if he has been advised of his
rights."

29

Mr. Uryc signed a form requesting an attorney when he entered the jail after his arrest.

This form merely requested a lawyer's representation in the criminal proceeding. He did not ask

3

for counsel during the interview nor did he tell the police he had requested counsel before the
interview. 30 Mr. Uryc has not shown he invoked his right to counsel during a custodial
interrogation. 31 The teachings in Edwards do not apply to Mr. Uryc's claims.
The Pennsylvania Superior Court reviewed and denied Mr. Uryc's Miranda claim on
direct appeal. The Pennsylvania Superior Court applied Montejo and found "[w]hen a defendant
has received the Miranda warnings, the waiver is considered knowing and intelligent." 32 The
Superior Court also found "[n]othing in the record indicates that Uryc's decision to waive his
right to counsel was the product of coercion."33 Because Mr. Uryc's waiver was knowing,
intelligent, and voluntary under Montejo, "[t]he trial court did not err in refusing to suppress the
statement. " 34
A state court's factual determinations are entitled to a highly deferential presumption of
correctness absent clear and convincing evidence to the contrary. 35 The Superior Court
determined the police did not violate Mr. Uryc's right to counsel because he knowingly,
intelligently, and voluntarily waived his Miranda rights. Mr. Uryc cannot show by clear and
convincing evidence these determinations are incorrect.
Under Montejo, a defendant may waive the right to counsel as long as the waiver is
"voluntary, knowing, and intelligent."36 The United States Supreme Court stated:
"The defendant may waive the right whether or not he is already represented by counsel;
the decision to waive need not itself be counseled .... And when a defendant is read his
Miranda rights (which include the right to have counsel present during interrogation) and
agrees to waive those rights, that typically does the trick[.]" 37
The police read Mr. Uryc his Miranda rights, they checked off each of Mr. Uryc's answers on
the form, and Mr. Uryc reviewed the waiver and signed it. 38 The circumstances do not suggest
the police coerced Mr. Urye into signing the waiver. The police remained seated throughout the
interview, did not raise their voices, and described the interview at trial as "cordial." 39 The police
4

also allowed him to revise his statement. 40 Mr. Uryc voluntarily, knowingly, and intelligently
signed the waiver. The Superior Court's application of Montejo is correct. Mr. Uryc's Miranda
claim is meritless.

B. Mr. Uryc's challenges to the trial court admitting recorded prison phone calls lacks
merit.
Mr. Uryc asserts two claims regarding his recorded phone calls from prison. He first
claims the Commonwealth violated the Pennsylvania Wiretapping and Electronic Surveillance
Control Act by recording these phone conversations and introducing them as evidence for the
intimidation counts at trial. 41 He argues the trial court should not have allowed these recordings
into evidence. 42 He also claims both his appellate counsel and his post-conviction relief counsel
were ineffective for failing to pursue this issue during the direct appeal and post-conviction
collateral proceedings. 43

1. Mr. Uryc's Pennsylvania Wiretapping Act and due process claims.
Mr. Uryc claims the police recorded his calls home from prison in violation of the
Pennsylvania Wiretapping Act. 44 Mr. Uryc did not raise this claim on direct appeal. 45 Mr. Uryc
presented this claim during his post-conviction proceedings as an ineffective assistance of
counsel claim. 46 He presents it now as a straightforward challenge to the admission of the
evidence. He also claims he has suffered a Fourteenth Amendment due process violation. 47 The
Commonwealth argues "Petitioner's claim that the procedures of the Wiretap Act were violated
fails to implicate any issue of federal law, and is accordingly not cognizable in a habeas corpus
1

action." 48 The Commonwealth also argues the federal due process claim is procedurally
defaulted. 49 We agree.

5

To prevail on a federal habeas petition, a petitioner must show he is "in custody in
violation of the Constitution or laws or treaties of the United States."so Under 28 U.S.C. § 2254,
"a federal court may not issue the writ on the basis of a perceived error of state law."s 1 While
Mr. Uryc cites provisions of the federal Electronic Communications Privacy Act52 in his habeas
petition and claims "[t]he federal principles apply to state prisoners, as well," 53 his claim does
not raise a federal issue. State authorities recorded his calls and the court of common pleas
admitted them under 18 Pa.C.S. § 5704(14),s4 not a federal statute. Mr. Uryc did not cite any
federal statutes in the post-conviction proceedings.ss He relied on the Pennsylvania Wiretapping
Act. 56 Because his Wiretapping Act claim "is based on purely state law," it is not cognizable on
federal habeas review. 57
Mr. Uryc's due process claim is procedurally defaulted.

A habeas petitioner "must

'fairly present' his federal claims to the state courts before seeking federal habeas relief by
invoking 'one complete round of the State's established appellate review process. "'58 If a
petitioner fails "to raise these claims through one complete round of the state court's review,
[these claims] are unexhausted."59 Procedural default occurs when a claim is unexhausted and
"there are no additional state remedies available to pursue ... or when an issue is properly
asserted in the state system but not addressed on the merits because of an independent and
adequate state procedural rule. "60
Mr. Uryc did not raise this due process claim on direct appeal or during the postconviction relief proceedings. Because Mr. Uryc did not invoke this claim "through one
complete round of the state court's review," 61 this claim is not exhausted. There are no additional
state remedies available for Mr. Uryc to pursue regarding this claim. 62 This ineffective assistance
of counsel claim is procedurally defaulted.

6

It is possible to nevertheless overcome procedural default. The petitioner must show

either "cause and prejudice," or "a sufficient probability that our failure to review his federal
claim will result in a fundamental miscarriage of justice."63 Mr. Uryc provides no grounds for
cause to overcome the procedural default of this claim. Because Mr. Uryc cannot establish the
cause prong, there is no need to consider the prejudice prong. 64
A petitioner may establish "a fundamental miscarriage of justice" by asserting an "actual
innocence" claim. 65 The Supreme Court "has made it clear that the actual innocence exception
to the unreviewability of procedurally defaulted claims should be applied only in the rarest of
cases." Id. To succeed on an actual innocence claim, the petitioner must present "new reliable
evidence ... not presented at trial" and show "it is more likely than not that no reasonable juror
would have convicted him in light of the new evidence."66 Mr. Uryc also cannot establish a
fundamental miscarriage of justice because he has not made an actual innocence claim, nor has
he provided "new reliable evidence" of his innocence.

2. Mr. Uryc's claim of ineffective assistance of appellate and post-conviction
relief counsel for failing to pursue the Wiretapping Act lacks merit.
Mr. Uryc asserts an ineffective assistance of counsel claim challenging his appellate and
post-conviction relief counsels' failure to pursue this wiretapping issue on direct appeal and in
his post-conviction relief petition. 67

These claims of ineffective assistance of counsel are

meritless.
In his post-conviction relief petition, Mr. Uryc asserted a claim of ineffective assistance
of trial counsel for "failing to properly pursue suppression" of the prison tapes. 68 In his appeal
from his post-conviction relief petition, he claimed ineffective assistance of his appellate counsel
for "failing to appeal the suppression ruling" of the trial court. 69 He also claimed ineffective

7

assistance of post-conviction relief counsel for "refusing to pursue this issue in behalf [sic] o.f
appellant in the PCRA proceeding."70
Mr. Uryc asserts two ineffective assistance of counsel claims against his appellate and
post-conviction relief counsel. He claims his appellate counsel "should be faulted for failing to
pursue this allegation on the direct appeal." 71 He also claims his post-conviction relief counsel
"refused to pursue the allegation[.]"72 He argues "[b]oth PCRA counsel, and appellate counsel,
erred in failing to pursue this claim in behalf [sic] of petitioner throughout the state court." 73
Mr. Uryc did not raise this ineffective assistance of appellate counsel claim in his postconviction relief petition, although he raised it on the appeal. Because attorneys from the
Lancaster County Public Defender's Office represented Mr. Uryc at both his trial and direct
appeal, we consider this appellate counsel claim subsumed in his earlier ineffective assistance of
trial counsel claim. This claim is exhausted, and we may examine its merits.
Under the ineffective assistance of counsel standard in Strickland v. Washington, the
petitioner must show the counsel's actions fell "outside the wide range of professionally
competent assistance."74 The petitioner must also show there is a reasonable possibility the
outcome of the underlying proceeding would have been different if not for the counsel's
deficient performance. 75 Failing to raise a meritless claim on appeal does not constitute
ineffective assistance, as this performance is not deficient and would not have affected the
outcome of the proceeding. 76
Following a suppression hearing, the trial court ruled the evidence admissible under 18
Pa.C.S. § 5704(14), which permits county correctional officials to intercept and record phone
calls from inmates. 77 The post-conviction relief court rejected Mr. Uryc's claim of ineffective
assistance of trial counsel in his post-conviction relief petition, stating "[t]he admitted

8

conversations are admissible since they were evidence of the crime and not just conversations
about the Defendants [sic] prior offenses." 78 The court held the trial counsel was not ineffective
for failing to suppress this evidence. 79 The post-conviction relief court then held on appeal the
tapes were admissible under § 5704(14), 80 and noted "for the sake of completeness that the
procedures used by prison officials in intercepting the telephone calls satisfied section
5704(14)." 81 The Superior Court found Mr. Uryc's ineffectiveness claim "lacks arguable
merit." 82
Factual determinations of the state court are entitled to a highly deferential presumption
of correctness absent clear and convincing evidence to the contrary. 83 The Pennsylvania standard
for ineffective assistance of counsel is also not contrary to the Strickland standard.

84

We find the state courts' determinations are not contrary to clearly established federal
law or an unreasonable determination of the facts. Section 5704(14) provides "[i]t shall not be
unlawful and no prior court approval shall be required for. .. [a]n investigative officer, a law
enforcement officer or employees of a country correctional facility to intercept, record, monitor
or divulge any telephone calls from or to an inmate in a facility." 85 The statute also provides
"[t]he contents of an intercepted and recorded telephone conversation shall be divulged ... in the
prosecution or investigation of any crime." 86 Mr. Uryc's recorded conversations were admitted to
investigate and prosecute the intimidation counts. 87 This evidence is admissible under the
Pennsylvania Wiretapping Act. Because Mr. Uryc's underlying claim of a Wiretapping Act
violation lacks merit, he cannot show his appellate counsel was ineffective in choosing not to
pursue this claim on direct appeal.
We now turn to Mr. Uryc's claim of ineffective assistance of post-conviction relief
counsel. If Mr. Uryc is claiming ineffectiveness of his post-conviction relief counsel in failing to

9

pursue the admissibility issue, then this claim is not cognizable.ss If Mr. Uryc is claiming
ineffectiveness of his post-conviction relief counsel for failing to pursue his trial counsel's
ineffectiveness,s9 then this claim is meritless. The trial court properly admitted the phone tapes
under the Pennsylvania Wiretapping Act. We have no basis to find Mr. Uryc's trial and postconviction relief counsel ineffective for failing to pursue a meritless claim.

C. Mr. Uryc's claim of ineffective assistance of trial counsel for failing to impeach a
trial witness either lacks merit or is procedurally defaulted.
Mr. Uryc claims his trial counsel's failing to impeach a key trial witness constitutes
ineffective assistance. 90 If this claim is the same as the claim asserted in the post-conviction
relief proceedings, it is meritless. If this claim is different from the claim asserted in the postconviction relief proceedings, it is procedurally defaulted.
In his post-conviction relief petition, Mr. Uryc claimed ineffective assistance of trial

counsel for failing to cross-examine the victim with a police detective's email giving an alternate
timeline of the abuse. 91 On appeal, Mr. Uryc claimed "PCRA counsel[] refus[ed] to pursue a
layered ineffective counsel claim contending that appellate counsel erred in failing to address
trial counsel's failure to investigate, and produce as defense witnesses ... police officials in
charge of retaining a police report that contains information obtained from the victim that
contradicts her trial testimony on a critical fact." 92 Mr. Uryc frames his post-conviction relief
appeal around his post-conviction relief counsel's "refusal to pursue these allegations in behalf
[sic] of appellant in the PCRA proceeding below."93 While Mr. Uryc frames this claim in the

post-conviction appeal as a layered ineffective assistance of counsel claim involving his postconviction relief counsel, his appellate counsel, and his trial counsel, we consider it a reiteration
of his ineffective assistance of trial counsel claim from the initial petition.

10

Mr. Uryc now claims ineffective assistance of trial counsel for "failing to investigate,
locate, and produce evidence that could have impeached the contended victim on a material fact
of great importance."94 Assuming this ineffective assistance of trial counsel claim for failing to
investigate, locate, and produce impeachment evidence is the same as the ineffective assistance
of trial counsel claim for failing to cross-examine the victim asserted in the post-conviction relief
petition, it is meritless.
Under Strickland, the petitioner must show the counsel's actions fell "outside the wide
range of professionally competent assistance." 95 The petitioner must also show there is a
reasonable possibility the outcome of the underlying proceeding would have been different if not
for the counsel's deficient performance. 96 A state court's factual determinations are entitled to a
highly deferential presumption of correctness, 97 and Pennsylvania follows an ineffective
assistance of counsel standard not contrary to the Strickland standard. 98
The post-conviction relief court held Mr. Uryc's ineffective assistance of trial counsel
claim is meritless. 99 The court found "[t]he victim did not write the email therefore the
information in the email was not admissible during her cross-examination as an inconsistent
statement." 100 The court also stated "trial counsel made a rational decision not to make an issue
of her testimony at trial and the email is in fact consistent with the victim's testimony at trial." 101
The Superior Court then found the victim "neither wrote nor signed the note; nor is there any
indication that the note was the product of a formal witness examination. For these reasons, the
detective's note could not be used to impeach [the victim]." 102 The Superior Court also found the
"trial counsel's failure to impeach [the victim] with the detective's summary did not prejudice
Uryc." 103 Mr. Uryc's trial counsel tried to impeach the victim with a different inconsistency, but
the jury still convicted Mr. Uryc of multiple sexual offenses. 104 The court held "[t]he additional

11

impeachment testimony that Uryc claims should have been used during trial would not have
changed this outcome, given the strong evidence of guilt introduced by the Commonwealth[.]" 105
We find the state courts' determinations are not contrary to clearly established federal
law or an unreasonable determination of the facts. Mr. Uryc has not shown the outcome of his
trial would have been different had his trial counsel pursued this matter. He points to no other
inconsistencies in the victim's testimony, and the impeachment evidence his trial counsel did use
did not persuade the jury. The content of the email is also generally consistent with the victim's
testimony. The email states the victim reported experiencing abuse between the ages of six and
ten, having no memory between the ages of ten and twelve, and experiencing abuse again
between the ages of twelve and fifteen. 106 The victim testified at trial she experienced abuse
around the ages of five or six, then again around twelve or thirteen, with no memory between the
ages of seven and nine. 107 The state courts correctly determined Mr. Uryc 's ineffective assistance
of trial counsel claim is meritless.
If we alternatively interpret his claim of ineffective assistance of trial counsel as different

from the claim asserted in the post-conviction relief petition, it is procedurally defaulted. A
petitioner "must 'fairly present' his federal claims to the state courts before seeking federal
habeas relief[. ]"108 If a petitioner fails "to raise these claims through one complete round of the
state court's review, [these claims] are unexhausted." 109 Procedural default occurs when a claim
is unexhausted and "there are no additional state remedies available to pursue[. ]"110
Mr. Uryc did not present this possibly alternate version of his ineffective assistance of
trial counsel claim at any point in the state court proceedings. Because Mr. Uryc did not invoke
this claim "through one complete round of the state court's review," 111 this claim is not
exhausted. There are no additional state remedies available for Mr. Uryc to pursue regarding this

12

claim. This ineffective assistance of trial counsel claim is procedurally defaulted. Mr. Uryc has
also provided no grounds to overcome this procedural default.

D. Mr. Uryc's claims regarding his excessive sentence either lacks merit or is not
reviewable.
Mr. Urye next claims the trial court imposed an excessive sentence in violation of his
Fourteenth Amendment due process rights and the Eighth Amendment's prohibition on cruel and
unusual punishment. 112 He also claims ineffective assistance of appellate counsel for failing to
pursue this claim. 113 To the extent Mr. Uryc is raising this issue as an ineffective assistance of
counsel claim, it is meritless. To the extent Mr. Uryc is raising this issue as a straightforward
challenge to his sentence, it is not cognizable.
Mr. Uryc's trial counsel filed a post-sentence motion to modify the sentence. 114 The trial
court denied the motion. 115 Mr. Uryc did not raise this issue on his direct appeal. 116 In his postconviction relief petition, Mr. Uryc claimed the trial court gave him an excessive sentence, even
"though the sentence was imposed within the statutory maximum limits." 117 He argued the trial
court did not properly consider the relevant mitigating factors and improperly focused on "the
nature of the offense. " 118 He also claimed "appellate counsel should be ruled to have provided
ineffective assistance of counsel for failing to pied [sic] this allegation upon the direct appeal of
the petitioner." 119 The post-conviction relief court treated this claim as an ineffective assistance
of counsel claim, because "a claim regarding the discretionary aspects of his sentence, raised in
the context of an ineffectiveness claim, would be cognizable under the PCRA."120 Mr. Uryc
raised this same claim in his appeal from his post-conviction relief petition. 121 The Superior
Court treated the claim as a straightforward challenge to his sentence, not as an ineffective
assistance of counsel claim. 122

13

Mr. Uryc now argues in his habeas petition "[c]ounsel failed to argue excessive sentence

[sic] claim."123 He argues "appellate counsel is the person to be faulted for failing to address this
claim in behalf [sic] of petitioner. " 124 This claim lacks merit.
Under Strickland, Mr. Uryc must show his counsel's actions fell "outside the wide range
of professionally competent assistance." 125 He must also show there is a reasonable possibility
the outcome of the underlying proceeding would have been different if not for his counsel's
deficient performance. 126 Failing to raise a meritless claim on appeal does not constitute
ineffective assistance. 127 A state court's factual determinations are entitled to a highly deferential
presumption of correctness, 128 and Pennsylvania follows an ineffective assistance of counsel
standard not contrary to the Strickland standard. 129
The post-conviction relief court found the trial court:
"considered, in detail, the pre-sentence report as well as the sentencing guidelines
and penalties authorized. At sentencing, the Court listened to both the comments
of the Defendant and his counsel's arguments. Therefore the Court was made
aware of and took into consideration numerous factors including the Defendant's
work history, education, and criminal history." 130
The court held appellate counsel "did not err in failing to address the issue in her appeal and the
issue is meritless." 131 On appeal, the Superior Court held his straightforward challenge was not
cognizable. 132 The Superior Court noted:
"Even if this claim were cognizable under the PCRA, it is devoid of merit,
because the trial court took into consideration not only the seriousness of Uryc's
crimes but also his age, intelligence, work history, ability to follow directions,
criminal history, and character, as well as the presentence investigation, Uryc's
statements, and counsel's arguments." 133
We find the state courts' determinations are not contrary to clearly established federal
law or an unreasonable determination of the facts. The trial court considered the pre-sentence
report, sentencing guidelines, trial counsel's arguments, and relevant mitigating factors, and

14

sentenced Mr. Uryc within the sentencing guidelines. 134 The Superior Court also held this
excessive sentence claim lacks merit. 135 His appellate counsel was not ineffective for failing to
raise a meritless claim. 136
Mr. Uryc also claims "the state court failed to provide required Due Process of Law
requirements in the sentencing of petitioner .... [and] [t]he sentence imposed should also be ruled
as an act of cruel and unusual punishment." 137 Mr. Uryc argues the trial court disregarded the
"numerous mitigating factors," and "showed extreme bias and prejudice in the sentencing
proceeding." 138 This straightforward challenge to the discretionary aspects of his sentence is not
cognizable. "A federal habeas court is not authorized to review the discretionary aspects of a
state court sentence." 139 Mr. Uryc cannot assert this claim on federal habeas review. 140
We deny Mr. Uryc's habeas petition with prejudice.

III.

Conclusion

Mr. Uryc raises a variety of evidentiary challenges properly rejected by the Pennsylvania
trial and appellate courts. As he petitions for habeas relief without counsel, we can alternatively
interpret his arguments but, even under a liberal interpretation, Mr. Uryc' s new spin on old
claims are procedurally defaulted as not being exhausted in the state court.

1

ECF Doc. No. 7-6, at pp. 90-91.

2

Id. at p. 91.

3

Id.

4

Id.

5

Id.

15

9

Id. at p. 92.

10

Id.

11

Id.

12

Id.

13

Id.

14

Id. at p. 89.

15

Id. at p. 116

16 Iid .
17

at p. 152.

Id.

18

ECF Doc. No. 1-1, at p. 1. On January 31, 2017, we vacated the reference to the Honorable
Elizabeth T. Hey for a report and recommendation and elected to directly address Mr. Uryc's
claims without a report and recommendation. ECF Doc. No. 11.
19

Id. at p. 15.

20

E cF Doc. No. 7-5, at pp. 6-7; ECF Doc. No. 1-1, at p. 16.

21

EcF Doc. No. 7-5, at p. 7.

22

Id.

23

Id.; ECF Doc. No. 1-1, at p. 16.

24

ECF Doc. No. 7-5, at p. 8.

25

Id.

26

Id.

16

27

ECF Doc. No. 1-1, at p. 15.

28

ECF Doc. No. 7, at pp. 13-14.

29

451 U.S. 477, 484-85 (1981).

30

ECF Doc. No. 7-5, at p. 22.

31

Id.

32

Id. (citing Montejo v. Louisiana, 556 U.S. 778, 786-87 (2009)).

33

Id.

34

Id.

35

Weeks v. Snyder, 219 F.3d 245, 257 (3d Cir. 2000); 28 U.S.C. § 2254(e)(l).

36

556 U.S. at 786.

37

Id.

38

ECF Doc. No. 7-5, at p. 7.

39

Iid . at p. 22.

40

Id.

41

E cF Doc. No. 1-1, at pp. 19-20.

42 Iid .

at p. 22.

43

Iid . at p. 27.

44

Iid . at p. 19.

45

E cF Doc. No. 7-5, at p. 9.

46 Iid .

at p. 78; ECF Doc. No. 7-6, at pp. 29-31, 44-46.

47

E cF Doc. No. 1-1, at p. 19.

48

E cF Doc. No. 7, at p. 15.

49 Iid .

at p. 10.
17

50

28 U.S.C. § 2254(a); Ozoroski v. Klem, No. 04-561, 2004 WL 1446046 at *12 (E.D. Pa. June
28, 2004).

51

Pulley v. Harris, 465 U.S. 37, 41 (1984).

52

18 U.S.C. § 2510 et seq.

53

ECF Doc. No. 1-1, at p. 19.

54

ECF Doc. No. 7-6, at p. 98-99. Section 5704(14) permits officials from county correctional
facilities to intercept phone calls from and to inmates. Id. at 99.
55

ECF Doc. No. 7-5, at pp. 78-81; ECF Doc. No. 7-6, at pp. 44-46.

56

ECF Doc. No. 7-5, at pp. 78-81; ECF Doc. No. 7-6, at pp. 44-46.

57

Ozoroski, 2004 WL 1446046 at *12. See also Romansky v. Blaine, No. 00-1520, 2008 WL
857757 at *5 (M.D. Pa. Mar. 27, 2008).
58

Parker v. Kerestes, 2011 WL 7444026 at *6 (E.D. Pa Sep. 30, 2011) (citing O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1990)).
59

Id.

60

Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012).

61

Parker, 2011 WL 7444026 at *6.

62

Mr. Uryc had one year from the date the judgment becomes final to file a petition for postconviction relief. 42 Pa. C.S.A. § 9545(b)(l). Mr. Uryc's sentence became final on May 29,
2014. ECF Doc. No. 7, at p. 11, no. 8. Mr. Uryc had until May 29, 2015 to file a petition for
post-conviction relief. He can no longer file a post-conviction relief petition on this claim.
63

Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (internal citations omitted).

64

Smith v. Murray, 477 U.S. 527, 533 (1986).

65

Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004).

66

Id. at 340 (internal citations omitted).

67

ECF Doc. No. 1-1, at p. 27.

68

ECF Doc. No. 7-5, at p. 78.
18

69

ECF Doc. No. 7-6, at p. 44.

70

Id.

71

ECF Doc. No. 1-1, at p. 27.

72

Id.

73

ECF. Doc. No. 1-1, at p. 27.

74

Strickland v. Washington, 466 U.S. 668, 690 (1984).

75

Lewis v. Horn, 581 F.3d 92, 106-107 (3d Cir. 2009).

76

Singletary v. Blaine, 89 F. App'x 790, 794 (3d Cir. 2004).

77

ECF Doc. No. 7-6, at pp. 98-99.

78

ECF Doc. No. 7-5, at p. 131.

79

Id.

80

ECF Doc. No. 7-6, at pp. 98-99.

81

Id. at p. 100, n. 6.

82

Id. at p. 99.

83

Weeks, 219 F.3d at 257; 28 U.S.C. § 2254(e)(l).

84

Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000).

85

18 Pa.C.S. § 5704(14).

86

Id. at§ 5704(14)(i)(C).

87

ECF Doc. No. 7-5, at p. 131.

88

28 U.S.C. § 2254(i) states "[t]he ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254." 28 U.S.C. § 2254(i). In Coleman v. Thompson, the United States
Supreme Court held "[t]here is no constitutional right to an attorney in state post-conviction
proceedings." 111 S. Ct. 2546, 2566 (1991). Because Mr. Uryc had no constitutional right to
counsel in the initial-review collateral proceeding, he cannot claim ineffective assistance of his
post-conviction relief counsel on federal habeas review.
19

89

Martinez v. Ryan, 566 U.S. 1, 8-12 (2012).

90

ECF Doc. No. 1-1, at p. 30.

91

ECF Doc. No. 7-5, at pp. 85-87.

92

ECF Doc. No. 7-6, at pp. 46-47.

93

Id. at 47.

94

ECF Doc. No. 1-1, at p. 30.

95

Strickland, 466 U.S. at 690.

96

Lewis, 581 F.3d at 106-107.

97

Weeks, 219 F.3d at 257; 28 U.S.C. § 2254(e)(l).

98

Werts, 228 F.3d at 203.

99

ECF Doc. No. 7-5, at p. 132.

100

Id.

101

Id.

102

ECF Doc. No. 7-6, at pp. 101-102.

103

Id. at p. 102.

104

Id.

105

Id.

106

ECF Doc. No. 7-5, at p. 107.

107

ECF Doc. No. 7-2, at pp. 35-36.

108

Parker, 2011 WL 7444026 at *6 (citing 0 'Sullivan, 526 U.S. at 845).

109

Id.

110

Rolan, 680 F.3d at 317.

20

111

Parker, 2011 WL 7444026 at *6.

112

ECF Doc. No. 1-1, at p. 40.

113

Id. at p. 9.

114

ECF Doc. No. 7-4, at p. 88.

115

Id. at p. 95.

116

Id. at p. 125.

117

ECF Doc. No. 7-5, at pp. 91-92.

118

Id.

119

Id. at p. 94.

120

Id. at p. 133.

121

ECF Doc. No. 7-6, at pp. 57-60.

122

Id. at p. 106.

123

ECF Doc. No. 1-1, at p. 9.

124 Iid.

at p. 4 7.

125

Strickland, 466 U.S. at 690.

126

Lewis, 581 F.3d at 106-107.

127

Singletary, 89 F. App'x at 794.

128

Weeks, 219 F.3d at 257; 28 U.S.C. § 2254(e)(l).

129

Werts, 228 F.3d at 203.

130

ECF Doc. No. 7-5, at p. 133.

131

Id.

132

"Requests for relief with respect to the discretionary aspects of sentence are not cognizable in
PCRA proceedings." ECF Doc. No. 7-6, at p. 106.

21

133

/,d . at n. 8.

134

ECF Doc. No. 7-5, at p. 133, 92.

135

ECF Doc. No. 7-6, at p. 106, n. 8.

136

Ryals v. Pa., No. 14-2467, 2015 WL 2446638 at *8 (E.D. Pa. May 15, 2015).

137

138

139

EcF Doc. No. 1-1, at p. 40.
/,d . at p. 44 .

Rivera v. Goode, 540 F. Supp. 2d 582, 601 (E.D. Pa. 2008). See also Ryals, 2015 WL

2446638 at *8.
140

Even if this claim were cognizable, it is meritless. The Superior Court already heard and
rejected this claim. We find the Superior Court's determination is correct.

22