SKIBA v. WINGARD et al

Filing 18

MEMORANDUM OPINION denying 3 Petition for Writ of Habeas Corpus filed by MICHAEL SKIBA. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Signed by Magistrate Judge Cynthia Reed Eddy on 03/24/2017. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL SKIBA,
Petitioner,
v.
TREVOR WINGARD, the ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA, and BEAVER
COUNTY DISTRICT ATTORNEY’S
OFFICE,
Respondents.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 2: 14-cv-1012
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM OPINION1
Petitioner, Michael Skiba, is a state prisoner incarcerated at the State Correctional
Institution at Somerset, 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
The Superior Court of Pennsylvania, quoting the opinion of the suppression court,

summarized the relevant factual and procedural background as follows:
On September 26, 2004, at around 12:19 a.m., Hopewell Twp. Police
Department received a call from 911 center reporting a stabbing at 2429 Mill
Street, Aliquippa, PA. When police officers arrived at the address, they found
Tom Cassidy holding a towel over a wound on the side of his body. Tom Cassidy
explained to police that he heard a knocking on his door and upon opening the
door, a white male, middle aged, approximately 5’10” tall with a stocky build and
short wavy dark hair stabbed and attacked him. A struggle ensued in where the
attacker was on top of Thomas Cassidy beating him with his fists. Thomas
Cassidy was able to kick his attacker off of him and into the victim’s musical
organ. When victim ran to the bedroom to get his gun the attacker fled. . . .
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. 14 and 17.
1

1

At 1:40 a.m., Officer Lemon of the Aliquippa Police Department arrived
on the scene and informed Hopewell Police Officers that the victim of a
carjacking, Albin Abramovich, gave a description of his attacker similar to the
description given by Thomas Cassidy. . . [T]he Aliquippa Police recovered the
stolen vehicle. While waiting for the two truck, police were informed by Joseph
Claypoole that he saw Michael Skiba running from the area of the stolen car.
Based on the comparisons of the descriptions offered by both victims, the
Hopewell and Aliquippa Police went to the residence of Michael Skiba . . . After
knocking on the door of the apartment and receiving no answer, Officer Price
went to the back of the apartment building where he was informed by a tenant that
he heard a loud noise from Skiba’s apartment. The Hopewell Police contacted the
landlord to gain access to Skiba’s apartment and found him sleeping in bed.
Officers Price and Durkos observed that Skiba had blood on his chest, arms and
one of his knees was skinned. Skiba was taken in hand cuffs without struggle to
the police station to discuss the carjacking and stabbing.
Commonwealth of Pennsylvania v. Skiba, No. 425 WDA 2008 (Pa. Super. Ct. Feb. 9, 2009) (slip
opinion) at 12 (quoting Suppression Court Opinion, 8/15/2005, at 1-4) (ECF No. 7-22).
Petitioner, Michael Skiba (“Petitioner” or “Skiba”), was convicted by a jury on February
6, 2006, of attempted homicide, aggravated assault, and lesser offenses. He was sentenced by
the Court of Commons of Beaver County on March 22, 2006. An amended sentence order was
entered on March 29, 2006. The aggregate sentence for all counts of conviction was a term of
imprisonment of not less than 25 years nor more than 50 years.
Following his conviction, Skiba, filed a counseled post-sentence motion for relief in
which he alleged seventeen (17) trial errors upon which he should be granted a new trial and/or
an arrest of judgment. Skiba’s post-sentence motion was denied on June 4, 2007. No appeal was
filed from the judgment of sentence.
On January 29, 2008, Skiba timely filed his first PCRA petition, the sole basis of which
was failure of post-sentence counsel to file an appeal. The court granted the motion, reinstated
Skiba’s appellate rights, and appointed appellate counsel.
2

A timely notice of appeal was filed on March 3, 2008. On appeal, counsel limited his
argument to failure of the trial court to grant defendant’s motion to suppress. The Superior Court
affirmed the judgment of sentence upholding the denial of the motion to suppress evidence. The
Pennsylvania Supreme Court denied further review on July 22, 2009.
Skiba filed a second timely PCRA petition on August 12, 2009, in which his claim was
limited solely to the failure of appellate counsel to adequate pursue the suppression issues on
appeal. Counsel was appointed and on January 24, 2011, filed an amended second PCRA
petition in which he raised three constitutional violations and a number of ineffective assistance
of trial and appellate counsel claims. On June 15, 2011, PCRA counsel filed a supplement to the
petition adding additional grounds of ineffective assistance of trial counsel. In total, Skiba raised
12 issues, three of which consisted of alleged constitutional violations and nine of which alleged
ineffective assistance of trial, post-sentence, and appellate counsel.
A PCRA hearing was conducted on June 23 and 24, 2011, at which time both parties
appeared and presented evidence and arguments in support of their respective positions. Both
Skiba and his trial counsel, attorney Gerald Benyo, testified.

In an eighty-eight (88) page

Memorandum Opinion and Order dated June 1, 2012, the PCRA court denied Skiba’s petition
holding that the three constitutional claims were waived and that the nine ineffective assistance
of counsel claims were without merit. Skiba appealed, and the Superior Court affirmed “on the
basis of the sound reasoning of the PCRA judge.” Superior Court Memorandum, 995 WDA
2012, Sept. 19, 2013 (ECF No. 7-18).
In the instant petition, Skiba raises the following claims for habeas relief:
I.
WHETHER PRIOR LEGAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF LEGAL COUNSEL IN FAILING TO FILE A TIMELY
NOTICE OF ALIBI?
3

III.
WHETHER PRIOR LEGAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF LEGAL COUNSEL IN FAILING TO CHALLENGE THE
POLICE ENTRY INTO DEFENDANT’S HOME, AND SEEK SUPPRESSION
OF ALL FRUIT OF SAID [SEARCH], INCLUDING THE SEIZURE OF
DEFENDANT AND HIS PHOTOGRAPH AND THE VICTIM
IDENTIFICATIONS OF DEFENDANT IN A PHOTOGRAPHIC AND
PHYSICAL LINEUPS AND TO INTRODUCE ALL AVAILABLE EVIDENCE
IN SUPPORT OF THE CHALLENGE?
III.
WHETHER PRIOR LEGAL COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF LEGAL COUNSEL IN FAILING TO REQUEST THE
TRIAL COURT TO PROPERLY AND ADEQUATELY CHARGE THE JURY
AND/OR FAILING TO OBJECT TO THE TRIAL COURT IMPROPERLY
AND INADEQUATELY CHARGING THE JURY REGARDING:
(A)

IDENTIFICATION EVIDENCE – ACCURACY IN DOUBT;

(B)

CONSCIOUSNESS
OF
INNOCENCE
EVIDENCE–
COOPERATION OF DEFENDANT WITH POLICE; AND

(C)

EVIDENCE OF DEFENDANT’S INCARCERATION?

Supplement to Pro Se Habeas Corpus Petition and Memorandum of Law (ECF No. 10).
II.

Standard of Review
A. 28 U.S.C. § 2254
This case is governed by the federal habeas statute applicable to state prisoners. 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 110 Stat. 1214, enacted on April 24, 1996 (“AEDPA”). Under this statute,
habeas relief is only available on the grounds that Skiba’s convictions were obtained in violation
of his federal constitutional rights. 28 U.S.C. § 2254(a).
As codified at 28 U.S.C. § 2254(d), AEDPA provides as follows:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim –
4

(1) resulted in a decision that was contrary to or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was 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).
Our Court of Appeals has made clear that “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 proceeding
does not enter into the habeas calculation.” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.
1998). Put simply, “habeas proceedings are not the appropriate forum for [a prisoner] to pursue
claims of error at the PCRA proceeding . . . . It is the original trial that is the ‘main event’ for
habeas purposes.” Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir. 2004).
“A state-court decision is ‘contrary to’ clearly established federal law if the state court (1)
‘contradicts the governing law set forth in [the Supreme] Court's cases or (2) ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a [different] result.’ ” Lambert, 387 F.3d at 234 (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)). Few state court decisions will be “contrary to” Supreme
Court precedent. “Clearly established Federal law” should be determined as of the date of the
relevant state-court decision. Greene v. Palakovich, 606 F.3d 85, 95 (3d Cir. 2010), aff'd, Greene
v. Fisher,565 U.S. 34 (2011).
The federal habeas court more often must determine whether the state court adjudication
was an “unreasonable application” of Supreme Court precedent. “A state-court decision
‘involve[s] an unreasonable application’ of clearly established federal law if the state court (1)
5

‘identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably
applies it to the facts of the particular . . . case’; or (2) ‘unreasonably extends a legal principle
from [Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.’ “ Id. (quoting Williams,
529 U.S. at 407).
Moreover, a federal court must accord a presumption of correctness to a state court's
factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. §
2254(e)(1); Nara v. Frank, 488 F.3d 187, 201 (3d Cir. 2007). “Where the state court fails to
adjudicate or address the merits of a petitioner's claims, unless procedurally defaulted, the federal
habeas court must conduct a de novo review over pure legal questions and mixed questions of
law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). Petitioner's claims will be
reviewed in accordance with the standards set forth above.
B.

AEDPA’s Threshold Requirements

Before the Court can address the merits of Skiba’s claims, it is necessary to examine
whether the petition fulfills the applicable procedural requirements as set forth in AEDPA. The
first consideration in reviewing a federal habeas corpus petition is whether the petition was
timely filed under AEDPA's one-year limitations period. 28 U.S.C. § 2244(d). Respondents do
not dispute that Skiba’s petition was timely filed. The Court agrees that Skiba’s claims are
timely.
Next, the Court must address whether Skiba exhausted the “remedies available [to him]
in the courts of the State.” 28 U.S.C. § 2254(c). Respondents do not dispute that Skiba’s claims
have been exhausted. The Court agrees that the claims have been exhausted and will proceed to
review the claims on their merits under the AEDPA standards set forth above.
6

III.

Review of Petitioner’s Claims
A.

Fourth Amendment Claim

Based on Plaintiff’s filings, it appears that, in addition to his ineffective assistance of
counsel claims, Skiba also may be claiming a “Fourth Amendment violation of a warrantless
entry into his home without exigent circumstances.” Supp. at 1 (ECF No. 10). In support of his
argument, Skiba cites a number of cases, all of which have no application in a habeas case.
Pursuant to Stone v. Powell, 428 U.S. 465, 494 (1976), a federal court cannot provide
habeas review of a Fourth Amendment claim if the petitioner had a full and fair opportunity to
litigate the claim in the state courts. See also Wright v. West, 505 U.S. 277, 293 (1992). A
petitioner is considered to have had a full and fair opportunity to litigate such claims if the state
has an available mechanism for suppressing evidence seized in or tainted by an illegal search or
seizure, irrespective of whether the petitioner actually availed himself of that mechanism. See
U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978); Boyd v. Mintz, 631 F.2d 247, 250
(3d Cir.1980). Conversely, a petitioner has not had a full and fair opportunity to litigate a Fourth
Amendment claim, and therefore, avoids the Stone bar, if the state system contains a structural
defect that prevents petitioner’s claim from being heard. Marshall v. Hendricks, 307 F.3d 36, 82
(3d Cir. 2002).
Here, the record is clear that Skiba had a full and fair opportunity to litigate his Fourth
Amendment claim. He challenged the legality of the warrantless entry in a pre-trial suppression
motion and on direct appeal to the Superior Court. To the extent that Skiba contends that the
Superior Court erred in its decision, the issue as to whether a state court correctly denied a
suppression motion is irrelevant when determining if the petitioner had a “full and fair
opportunity” to litigate the claim. See Marshall, 307 F.3d at 82 (“an erroneous or summary
7

resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar.”).
Under Stone, federal habeas review is unavailable. Id. at 81. Accordingly, to the extent that
Skiba is raising a Fourth Amendment claim, such claim will be denied as barred from federal
habeas review.
B.

Ineffective Assistance of Counsel Claims

Skiba has raised three ineffective assistance of counsel claims, which were presented and
rejected on the merits by both the PCRA court and the Superior Court.

Because they were

adjudicated on the merits in state court, this Court’s review is governed by AEDPA’s standard of
review. Specifically, in order to be entitled to relief, Skiba must show that the Pennsylvania
Superior Court’s decision rejecting these claims was contrary to, or an unreasonable application
of clearly established federal law as determined by the Supreme Court of the United States.
The clearly established federal law with respect to a claim of ineffective assistance of
counsel is set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires (a) that
counsel's performance fall below an objective standard of reasonableness, and also (b) that the
petitioner suffer prejudice as a result of counsel's error. The Pennsylvania standard for ineffective
assistance of counsel is identical to the federal standard. Boyd v. Waymart, 579 F.3d 330, 334 (3d
Cir. 2009).
In analyzing Skiba’s claims under the two-part test announced in Strickland, this Court
must apply the standards set forth in section 2254(e) concerning the presumption of correctness
applicable to state court factual findings. The question of effectiveness of counsel under
Strickland is a mixed question of law and fact; it requires the application of a legal standard to
the historical, fact determinations. Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996).

8

Skiba first argues that his trial counsel was ineffective for failing to pursue an alibi
defense.2 Trial counsel testified at the PCRA hearing that although Skiba desired to present alibi
witnesses, counsel determined that the testimony of these witnesses would not be relevant. N.T.,
6/23/2011 at 98. The PCRA court found the claim had no merit.
Next, Skiba argues that trial counsel was ineffective for failing to properly investigate
and litigate a challenge to the legality of the warrantless entry into his residence and to introduce
all available evidence in support of the challenge. Specifically he contends that trial counsel
should have called Steven Mozes as a witness and introduced photographs of Skiba’s apartment
building during the suppression hearing in order to contradict the testimony of Officer Price. 3 At
the PCRA hearing, trial counsel testified and explained that (1) the name of the individual with
whom Officer Price spoke was never divulged (N.T., 6/23/2011 at 77); and (2) that he believed
the argument on the suppression of evidence was meritorious, notwithstanding the officer’s
testimony on a collateral issue (whether he spoke with someone at the rear of the apartment
building), as the police had no justification for entering Skiba’s residence. N.T., 6/23/2011 at 79,
82. The PCRA court found that counsel had a reasonable basis for not calling Mr. Mozes as a
witness at the suppression hearing and that Skiba had failed to demonstrate that the outcome of

The Court notes that Claim I in the instant petition is presented as an ineffective
assistance of counsel claim for “failure to file a timely notice of alibi,” while in the PCRA
proceedings, the claim was presented as an ineffective assistance of counsel for failing to present
“corroborative” alibi evidence. No matter how the claim is framed, the substance remains the
same for exhaustion purposes.
2

During the suppression hearing, Officer Price testified that he knocked on Skiba’s door
and when he received no response, he proceeded to the rear of the apartment where an individual
reported that he had heard a loud noise in Skiba’s apartment and confirmed that Skiba was his
neighbor. At the PCRA hearing, Mozes testified that he did not recall the police being at the
apartment building or him speaking with police on the night in question.
3

9

the suppression hearing would have been different had Mr. Mozes been called as a witness or
had photographs of Skiba’s apartment building been presented.
Skiba’s third and final ineffective claim is that trial counsel failed to request certain jury
instructions and/or failed to object to the trial court charging the jury regarding (i) identification
evidence – accuracy in doubt; (i) consciousness of innocence evidence – cooperation of
defendant with police; and (iii) evidence of Skiba’s incarceration. The PCRA court examined
each of these claims and found each to be without merit. As to the identification issue, the
PCRA court determined that a Kloiber4 instruction was not warranted as Skiba had altered his
appearance (shaved his head) between the event and the time of the physical lineup. Further, the
victim had offered unwavering testimony at various stages of proceedings that Skiba was his
assailant.
Next, the PCRA court determined that Skiba’s claim that he was entitled to a
“consciousness of innocence” instruction was without merit as Skiba had been unable to locate
any authority for his argument that he was entitled to such an instruction. To that end, trial
counsel testified that he also was not aware such an instruction existed. N.T., 6/23/2011 at 135.
The record reflects that Skiba was permitted to introduce evidence of his cooperation with the
police and trial counsel argued to the jury that the cooperation indicated that Skiba had nothing
to hide.
And to the third subpart of this claim, that counsel was ineffective in failing to request a
cautionary instruction as to Skiba’s incarceration, the PCRA court found this claim to be without
merit. The record reflects that it was trial counsel who related to the jury in his opening that
Skiba was in jail and referred to the identification made by the victim of Skiba at the preliminary
4

Commonwealth v. Koiber, 106 A.2d 820 (1954).
10

hearing while Skiba was wearing prison clothing. At no time during any of the testimony or
openings or closings of counsel was there an indication or reference that Skiba was incarcerated
for any offense other than the crimes for which he was being tried.
At the PCRA hearing, trial counsel testified that he did not seek a cautionary instruction
regarding Skiba’s incarceration as a matter of trial strategy. Among other things, he indicated
that the information regarding Skiba’s incarceration furthered Skiba’s interest, and he preferred
to argue those facts in a positive manner rather than have the court provide a negative cautionary
instruction. The PCRA court found that because trial counsel provided a rational basis for not
requesting a jury instruction, the claim lacked arguable merit. N.T., 6/23/2011 at 135-140.
In its memorandum affirming the decision of the PCRA Court, the Superior Court
commented on the “sound reasoning of the PCRA judge” and the “able discussion and analysis
provided by the PCRA court” and stated that it was affirming “the denial of relief on that basis.”
The appellate court further “directed the parties to attach a copy of the PCRA opinion in the
event of further proceedings.” Superior Court Memorandum, (Pa. Super. Ct. 9/18/2013) (ECF
No. 7-18).
It is clear that the state courts applied the correct standard for ineffective assistance of
counsel. The PCRA court issued an eighty-eight page decision thoroughly analyzing each of
Skiba’s claims and the Superior Court affirmed the denial of relief on the basis of that opinion.
This Court finds that the state courts’ determination was neither an unreasonable application of
Strickland nor did it “result[] in a decision that was 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)(1)-(2).

11

IV.

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 whether each of Clark’s claims should be dismissed.
Accordingly, a certificate of appealability should be denied.
IV.

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. An appropriate Order follows.
Dated: March 24, 2017

s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

12

cc:

MICHAEL SKIBA
GP1158
1600 Walters Mill Road
Somerset, PA 15510
(via U.S. First Class Mail)
Ahmed T. Aziz
Jennifer M. Popovich
Office of the District Attorney of Beaver County
(via ECF electronic notification)

13