CLARITT v. MAHALLY et al

Filing 12

ORDER adopting Report and Recommendations 10 that the Petition for Writ of Habeas Corpus filed by GEORGE CLARITT be denied and that a certificate of appealability be denied on all claims. This case is Closed and the Clerk shall send copies of this Order to all parties. Signed by Judge Barbara Rothstein on 8/30/2017. (nk)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AT ERIE

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Petitioner,
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v.
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LAWRENCE P. MAHALLY, et al.,
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Respondents.
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____________________________________)
GEORGE CLARITT,

Civil Action No. 1:16-cv-15 Erie

ORDER

ORDER ADOPTING REPORT AND RECOMMENDATION AND DISMISSING CASE
The Court, having considered the Report and Recommendation of Magistrate Judge
Susan

Paradise

Baxter,

Petitioner’s

Objections

to

Magistrate

Judge’s

Report

and

Recommendation, and the balance of record, HEREBY ORDERS:
(1) The Court ADOPTS the Report and Recommendation.
(2) Petitioner’s request for a writ of habeas corpus is DENIED.
(3) Petitioner’s request for a certificate of appealability is DENIED.
The Court’s reasoning follows.
DISCUSSION
The factual and procedural background of this case is laid out in admirable detail in the
Magistrate Judge’s Report and Recommendation. (ECF No. 10 at 1-4; “R&R.”) The Court
adopts that account of the history of this litigation and incorporates it herein by reference. In
brief, Petitioner was convicted in the Court of Common Pleas of Warren County, Pennsylvania

on charges of aggravated assault, rape, involuntary deviate sexual intercourse by forcible
compulsion, terroristic threats, and indecent assault and sentenced to an aggregate term of 301602 months of incarceration. The conviction and sentence were affirmed by the Superior Court
of Pennsylvania. (ECF No. 8-6.) His request for post-conviction relief (“PCRA”) was denied
(ECF No. 8-3 at 22-30) and affirmed on appeal. (ECF No. 10, Ex. A.)

In January 2016

petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by
the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Petitioner raises three grounds for relief, none of which the Magistrate Judge found
meritorious. The findings of the R&R, Petitioner’s objections and the Court’s ruling on each
claim are discussed below.
Claim One: Petitioner’s PCRA counsel was ineffective
The R&R rejected this claim on the grounds that it is specifically prohibited by § 2254(i),
which provides that “[t]he ineffectiveness of counsel during Federal or State collateral postconviction proceedings shall not be ground for relief in a proceeding arising under section 2254.”
See Coleman v. Thompson, 501 U.S. 722, 752 (1991), holding that “[t]here is no constitutional
right to an attorney in state post-conviction proceedings.”
In his objections to this finding, Petitioner cites a number of cases which he argues stand
for the proposition that “a federal court can hear Petitioner’s ineffective assistance of counsel
claims.” (ECF No. 11, Objections at 4-7.) The cases he cites are all distinguishable, concerning
either direct appeals or proceedings other than writs of habeas corpus. He does not cite a single
case overturning 28 U.S.C. § 2254(i), which could not be clearer: in a 2254 proceeding such as
that which Petitioner has brought, he may not raise ineffectiveness of counsel in state post-

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conviction proceedings as a ground for relief. The Court affirms the Magistrate Judge’s finding
on this claim and agrees that it is without merit.
Claim Two: Petitioner’s trial counsel failed to provide effective assistance of counsel
Petitioner cites two grounds for this claim: first, his trial counsel’s failure to file a motion
requesting DNA testing of the victim and, second, his trial counsel’s failure to allow Petitioner to
participate in the jury selection process.
As the Magistrate Judge points out, Petitioner’s ineffective assistance claim is governed
by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court enunciated
two factors which a complaining party must establish to prevail on this claim. First, Petitioner
has the burden of establishing that trial “counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688. And, second, the Petitioner must prove that he was prejudiced by
the allegedly ineffective conduct of counsel, “that there is a reasonable probability that, but for
counsel’s unprofessional errors,” his trial outcome “would have been different.” Id. at 694. The
Strickland court made it clear that if judicial economy is promoted by disposing of the
ineffectiveness claim on the grounds of “lack of prejudice” first, it is permissible to analyze the
claim “out of order.” Id. at 697.
That is the approach adopted by the Magistrate Judge and endorsed by this Court.
Petitioner has failed to demonstrate in any way how he was prejudiced by the conduct of which
he complains. In the first place, he never denied that he had sexual contact with the victim (see
ECF No. 8-6, slip op. at 5) therefore there is no possibility that a DNA test would have enhanced
his defense. Regarding his allegations that he was excluded from the jury selection process, the
state reviewing court found his trial counsel’s account of that phase of the trial (that Petitioner
remained silent and made no attempt to participate in jury selection) more credible. (See ECF

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No. 8-3, slip op. at 7.) That finding “shall be presumed to be correct” under 28 U.S.C. §
2254(e)(1) and, in fact, Petitioner does not even challenge the finding in his objections.
This Court adopts the finding of the R&R that Claim Two is without merit.
Claim Three: The Superior Court of Pennsylvania erred in failing to inform Petitioner that
the PCRA appeal had concluded
Petitioner abandons this claim in his Objections: “At this juncture Petitioner does not and
will not dispute Magistrate Judge Baxter’s holding that claim three (sic) is not cognizable due to
the fact that even by the delay of the Pennsylvania Superior Court to notify Petitioner that his
PCRA appeal was completed his Writ of Habeas Corpus was timely filed in this matter.”
(Objections at 8.)
In any event, “the federal role in reviewing an application for habeas corpus is limited to
evaluating what occurred in the state or federal proceedings that actually led to the petitioner’s
conviction; what occurred in the petitioner’s collateral [PCRA] proceeding does not enter into
the habeas calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998)(internal
citations omitted).
This Court adopts the finding of the R&R that Claim Three is without merit.
Certificate of Appealability
“A certificate of appealability may issue… only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253. In the face of a substantive
rejection of a constitutional claim by a district court, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Utilizing that standard, this Court finds that reasonable jurists would not find the denial
of Petitioner’s claims debatable. On that basis, the Court will DENY Petitioner’s request for a
certificate of appealability.
CONCLUSION
(1) For the foregoing reasons, the Court ADOPTS the Report and Recommendation.
(2) Petitioner’s request for a writ of habeas corpus is DENIED.
(3) Petitioner’s request for a certificate of appealability is DENIED.
(4) This case is CLOSED.
(5) The Clerk shall send copies of this Order to the parties.

IT IS SO ORDERED.
DATED this 30th day of August, 2017.

A

Barbara Jacobs Rothstein
U.S. District Court Judge

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