LIPINSKI v. FISHER et al
Filing
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MEMORANDUM OPINION & ORDER denying 1 Petition for Writ of Habeas Corpus filed by JON FISHER, et al. Further, because there has been no substantial showing of the denial of a constitutional right, a certificate of appealability is denied. Signed by Magistrate Judge Cynthia Reed Eddy on 03/06/2017. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL R. LIPINSKI,
Petitioner,
v.
JON FISHER, THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA, and THE DISTRICT
ATTORNEY OF THE COUNTY OF
ALLEGHENY,
Respondents.
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Civil Action No. 2: 14-cv-0813
United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION1
Petitioner, Michael R. Lipinski, is a state prisoner currently confined at the State
Correctional Institution at Huntingdon, Pennsylvania. He seeks a writ of habeas corpus, pro se,
pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition will be denied.
I.
Procedural History
On May 15, 2008, Lipinski appeared before the Honorable Jeffrey A. Manning, Court of
Common Pleas of Allegheny County, Criminal Division, waived his right to a jury trial, and
immediately proceeded to a bench trial. At the conclusion of the bench trial, Lipinski was
convicted of one count of Unlawful Restraint and sexual assault. Lipinski was sentenced to not
less than forty-eight (48) months nor more than one hundred and twenty (120) months at the
sexual assault count and no further penalty at the Unlawful Restraint count. The Superior Court
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a
final judgment. See ECF Nos. 4 and 7.
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of Pennsylvania affirmed the judgment of sentence on March 30, 2010. The Supreme Court of
Pennsylvania denied further review on January 15, 2011.
On April 18, 2011, Lipinski filed, pro se, a request for post-conviction relief pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 – 9546. On July 13, 2013,
appointed counsel filed a No Merit Letter and a Motion to Withdraw. On August 26, 2013, the
PCRA court, again Judge Manning, issued a Notice of Intention to Dismiss and granted
counsel’s motion to withdraw. In response, Lipinski filed a pro se Response Pursuant to
Pa.R.Crim. 907. On September 24, 2013, Judge Manning dismissed the petition.
On October 23, 2013, Lipinski filed pro se a Notice of Appeal. Although ordered to do
so by the PCRA court, Lipinski did not file a Concise Statement of Matters Complained of an
Appeal (“Concise Statement”). On February 10, 2014, the PRCA court entered an Order to
transmit the record to the Superior Court and found that Petitioner’s claims were waived on
appeal for failure to file a Concise Statement. Lipinski’s appeal was docketed in the Superior
Court and dismissed on May 8, 2014, for his failure to file a brief. Thereafter, Lipinski filed the
present timely petition for writ of habeas corpus.
In the instant petition, Lipinski raises one claim for relief:
THE TRIAL COURT ERRED IN REFUSING TO CONSIDER FOR
SUBSTANTIVE PURPOSES TESTIMONY BY THE SOLE DEFENSE
WITNESS AND THE SUPERIOR COURT AND SUPREME COURTS
DECISION IS INCONSISTENT WITH STATE AND FEDERAL LAW
GOVERNING THIS ISSUE.
Petition, at ¶ 12 (ECF No. 1). It appears that Lipinski is reasserting the constitutional arguments
made on his behalf on direct appeal:
In not considering the sum and substance of Johnson’s testimony for its truth and
substantive value, the Trial Court committed prejudicial error. Mr. Lipinski’s
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fundamental constitutional rights to defend himself and remain silent were
violated.
***
Even assuming arguendo that the sum and substance of Johnson’s testimony was
not within the state-of-mind hearsay exception, the Fourteenth Amendment Due
Process Clause requires that such testimony still be considered for its truth and
substantive value.
Appellant’s Superior Court Brief at 11-12 (ECF No. 5-3).
II.
Standard of Review
A state prisoner is entitled to federal habeas relief only if he is held “in custody in
violation of the Constitution, or laws, or treaties of the United States.” 28 U.S.C. § 2254(a).
Insofar as a petitioner simply challenges the correctness of the conviction under Pennsylvania
law, however, he alleges no deprivation of federal rights and may not obtain habeas relief. Pulley
v. Harris, 465 U.S. 37, 41 (1984). It has long been understood that a state may violate its own
law without violating the Constitution. Garner v. Louisiana, 368 U.S. 157, 166 (1961). “This
court will not treat a mere error of state law, if one occurred, as a denial of due process;
otherwise, every erroneous decision by a state court on state law would come here as a federal
constitutional question.” Gryger v. Burke, 334 U.S. 728, 731 (1948). To receive review of what
otherwise amounts to nothing more than an error of state law, a petitioner must argue not that it
is wrong, but that it is so wrong, so surprising, that the error violates principles of due process.
The finding of a constitutional error on habeas review, however, does not require the
granting of a habeas petition. Rather, before granting habeas relief, the court must conduct a
harmless error analysis to determine if the constitutional violation had a “substantial and
injurious effect” on the fairness of the trial. Fry v. Pliler, 551 U.S. 112, 121 (2007) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). This requires the petitioner to establish that
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the constitutional error resulted in actual prejudice. Brecht, 507 U.S. at 637 (citing United States
v. Lane, 474 U.S. 438, 449 (1986)). A finding of actual prejudice is appropriate when there is
“grave doubt” about whether the error influenced the jury’s decision, or where the evidence as to
whether the constitutional error is harmless is in “virtual equipoise.” See Bond v. Beard, 539
F.3d 256, 276 (3d Cir. 2008) (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). “If,
when all is said and done, the court’s conviction is sure that the error did not influence the jury,
or had but very slight effect, the verdict and the judgment should stand.” Adamson v. Cathel,
633 F.3d 248, 260 (3d Cir. 2011) (quoting O’Neal, 513 U.S. at 437-38).
Unlike the
determination of a constitutional violation, the harmless error analysis is performed de novo by
the federal courts. Bond, 539 F.3d at 275-7 (“Fry instructs us to perform our own harmless error
analysis under Brecht . . . , rather than review the state court’s harmless error analysis under the
AEDPA standard.”) (citing Fry, 551 U.S. at 121).
With this rationale in mind, the Court turns to the issue currently before it.
III.
Discussion
The facts of this case are fairly straight forward:
According to the victim, the defendant picked her up and offered her a
ride. He took her to a secluded area, forced her to strip and to engage in sexual
acts. The victim managed to run away from the area and police were summoned
by other witnesses who encountered the victim, who was still naked. The
defendant claimed that the sexual acts were consensual.
Commonwealth v. Lipinski, CC No.: 200613965, slip opinion (CCP Feb. 9, 2009) (ECF No. 52). The issue before the Court is fairly straight forward as well. Resolution of this claim turns on
whether the ruling to allow the defense’s sole witness’s testimony as admissible only for
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impeachment purposes, and not for its sum and substance, was a violation of Lipinski’s
constitutional rights.2
On cross examination, the following exchange occurred between defense counsel and the
victim:
DEFENSE COUNSEL: Okay. At any time up to the point you were at the apartment
complex, was there any discussion between you and Mr. Lipinski about you perhaps
dancing for money?
WITNESS: At work?
DEFENSE COUNSEL: For him?
WITNESS: No, sir.
DEFENSE COUNSEL: You didn’t have that conversation at all?
WITNESS: No, sir. We talked about him coming down to the club where I was going
and coming in there. That’s it.
***
DEFENSE COUNSEL: So you’re telling me you don’t remember any conversation at
this time, but that you - - you’re telling the court you don’t remember any specific
discussion about him paying you money for you to dance for him or maybe have sex with
him?
WITNESS: I’m telling the Court we never talked about his paying for sex at all or
paying me for dancing, unless he was at the club where I was going.
N.T., 5/15/2008, at 42-43, 44.
The defense called one witness, Lance Johnson, a friend of Lipinski’s who was in the car
with Lipinski and the victim for about fifteen to twenty minutes.
Lipinski contends that the
In rejecting the claim on direct review, the Superior Court stated it had “thoroughly
considered Lipinski’s allegations of error and reviewed the cases cited in the brief; none of these
cases / allegations cause us to find a clear abuse of error of discretion by the trial court.
Accordingly, we conclude that Lipinski’s issue lacks merit.” Superior Court Memorandum,
March 30, 2010, at 9 (ECF No. 5-7). The Superior Court’s decision fairly appears to rest
primarily on state law, although federal constitutional law arguments were raised by counsel for
Lipinski. Therefore, in an abundance of caution and giving Petitioner the benefit of any doubt,
this Court will proceed to review de novo his constitutional claims.
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trial court erred when he failed to consider for substantive purposes the testimony by Johnson
regarding a conversation he overheard between the victim and Petitioner in which the two
discussed the victim dancing or performing sex for money. The relevant testimony and ruling is
set out below:
DEFENSE COUNSEL: Do you recall hearing any discussion between Mr.
Lipinski and [the victim] regarding the payment of money to dance privately or to
perform sex?
WITNESS: Yes, sir.
DEFENSE COUNSEL: Now, you were taken to your car, right?
WITNESS: Yes.
DEFENSE COUNSEL: So in other words, if you overheard this discussion, were
you going to be a participant in any of this?
WITNESS: No, sir.
DEFENSE COUNSEL: If you recall, why was it that you were taken to your car?
Why didn’t you stay and participate?
WITNESS: She didn’t want two people for what they were about to do to. Just
her and him.
DEFENSE COUNSEL: So basically you were the odd man out; right?
WITNESS: Yes.
DEFENSE COUNSEL: Do you remember specifically the conversation and who
said what?
THE COURT: How does this get into evidence?
DEFENSE COUNSEL: Your Honor, this is the conversation that took
place.
***
DEFENSE COUNSEL: The conversation goes to her [victim’s] state of
mind.
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THE COURT: No. What you’re doing is attempting to put your client’s
own statement out of hearsay.
DEFENSE COUNSEL: It goes to her credibility. She denied [that] any of
these conversations took place. I have a witness here who can testify.
THE COURT: Then it’s admitted for the sole and limited purpose that it
may impeach something she may or may not have said. It’s not
admissible for substantive purposes because it’s not reported verbatim or
otherwise.
DEFENSE COUNSEL: I understand.
DEFENSE COUNSEL: Sir, you do recall a specific conversation on this issue,
right?
WITNESS: Yes.
DEFENSE COUNSEL: Did you hear [the victim] earlier testify there was no
conversation regarding this issue.
WITNESS: Yes.
DEFENSE COUNSEL: Is that wrong?
WITNESS: That is.
DEFENSE COUNSEL: Yes?
WITNESS: That is wrong.
N.T., 5/15/08, at 71-73.
In essence, defense counsel argued that this testimony was within the state-of-mind
hearsay exception. The trial court rejected this argument reasoning that the sum and substance of
Johnson’s testimony was only admissible for impeachment purposes and not admissible for its
truth and substantive value due to the Pennsylvania Rape Shield Law, 18 Pa.C.S.A. § 3104(a).
Opinion of the Court, Feb. 9, 2009. Lipinski challenges this evidentiary ruling arguing that it
was “inconsistent with federal law.”
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An evidentiary error in a state trial justifies federal habeas corpus relief only if the
constitutional violation had a “substantial and injurious effect” on the fairness of the trial. Fry,
551 U.S at 121 (quoting Brecht, 507 U.S. at 637). As previously discussed, the harmless error
analysis is performed de novo by the federal courts. Bond, 53 F.3d at 275-76.
The Court has carefully reviewed the trial testimony in this case and finds that nothing in
the record raises to the level as to violate fundamental fairness. In fact, nothing in the record
suggests this evidentiary error, if indeed it is error, rises to that level.
However, assuming the evidentiary ruling was error, the Court finds that the omission of
Johnson’s testimony for substantive purposes was harmless in light of his testimony being
admitted for impeachment purposes.
A review of the trial transcript reflects that the trial judge allowed admission of Johnson’s
acknowledgement that he did in fact recall hearing a conversation between the victim and
Lipinski regarding the payment of money to dance privately or perform sex. The trial court also
permitted Lipinski’s defense counsel to question Johnson as to why he did not stay in the car
with the victim and Lipinski. The trial court heard the divergent testimony of both Johnson and
the victim, and as the sole judge of credibility in this bench trial, assessed the weight to be given
to the testimony of both witnesses, and found that the victim to be more credible.
Further, although not binding on this Court, the following excerpts from the opinions
issued by the trial judge and Superior Court, are illustrative and found to be persuasive. The trial
judge explained his decision as follows:
Evidence that prior to this alleged sexual assault, the victim was willing to
strip for the defendant and/or another person was not relevant or probative of the
issues presented at the trial. The fact that the victim had engaged in this type of
conduct in the past and, according to the defendant’s evidence, may have agreed
to do so with regard to this defendant, was not relevant to whether the victim
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consented to sexual relations with the defendant. . . . Similarly, the defendant’s
allegation that this victim was willing to strip for hire was not probative of her
willingness to then engage in consensual sexual acts with the defendant.
Opinion of the Court, Feb. 9, 2009, at 4 (ECF No. 5-2). Thus, the record is abundantly clear that
the trial judge was aware that Lipinski’s defense was that the victim had consented to the sexual
act. Accordingly, the Court finds that Lipinski’s constitutional rights to defend himself and
remain silent were not violated when Johnson’s testimony was admitted only for impeachment
purposes.
Further, the Court finds that the admission of Johnson’s testimony for impeachment
purposes did not negatively affect Lipinski’s Fourteenth Amendment Due Process rights. As the
Superior Court found:
the substantive relevance of Johnson’s testimony would have been so
small as to make it de minimus. Johnson admittedly only spent 15 or 20 minutes
in the company of [Lipinski] and [the victim]. This represents a tiny fraction of
the overall period that [the victim] had [Lipinski] spent together and, within that
framework, is very remote to the actual events taking place. . . .
Consequently, the substance of the purported “agreement” would be of
highly questionable relevance on the issue of [the victim’s] consent as it does not
speak to what transpired during the ensuring two hours and forty-five minutes.
Superior Court Memorandum, March 30, 2010, at 9 (ECF No. 5-7) (quoting from Brief for the
Commonwealth at 12-13 (citations to record omitted in original)..
For these reasons, the Court concludes that there was no constitutional violation.
However, assuming that there was a constitutional violation, the Court concludes that Lipinski
has failed to show that such violation had a “substantial and injurious effect” on the fairness of
his trial. Finding no merit to Lipinski’s claim, his petition for writ of habeas corpus will be
denied.
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D.
Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a
certificate of appealability for appellate review of a district court's disposition of a habeas
petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” “When the district court
denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court's assessment of the constitutional
claims debatable or wrong.” Id. Applying those standards here, the Court concludes that jurists
of reason would not find it debatable that Lipinski’s claim should be dismissed. Accordingly, a
certificate of appealability will be denied.
E.
Conclusion
For all of the above reasons, the petition for a writ of habeas corpus will be denied. There
has been no substantial showing of the denial of a constitutional right requiring the issuance of a
certificate of appealability.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
Dated: March 6, 2017
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cc:
MICHAEL R. LIPINSKI
HS-4216
S.C.I. Huntingdon
P.O. Box 9999
Huntingdon, PA 16652
(via U.S. First Class Mail)
Ronald M. Wabby , Jr.
Office of the District Attorney
(via ECF electronic notification)
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