CRESPO v. KERESTES et al
Filing
38
MEMORANDUM OPINION AND ORDER - it is hereby Ordered that the Petition for Writ of Habeas Corpus (ECF No. 1 ) is DENIED. It is further Ordered that a certificate of appealability is DENIED. It is further Ordered that the Report and Recommendation ( ECF No. 36 ), as supplemented by the Memorandum Opinion filed contemporaneously herewith, is ADOPTED as the Opinion of the Court. It is further Ordered that the Clerk of Court mark this case CLOSED. And it is further Ordered that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure, and as more fully stated in said Memorandum Opinion. Signed by Judge Kim R. Gibson on 2/28/2017. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARRY CRESPO,
)
)
Petitioner,
)
Civil Action No. 3:14-cv-0239
)
)
V.
WILLIAM J. HIGGINS, JR., District
Attorney of Bedford County; JOHN
KERESTAS, Superintendent; and JOHN
E. WETZEL, Secretary, Pennsylvania
Department of Corrections,
Respondents.
Judge Kim R. Gibson
)
)
)
)
)
)
)
)
MEMORANDUM OPINION
Kim R. Gibson, United States District Judge
Barry Crespo ("Crespo" or "Petitioner") filed a counseled Petition for Writ of Habeas
Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254, challenging
his March 13, 2009, convictions for six counts each of corruption of minor and indecent assault,
five counts of aggravated indecent assault, and one count each of involuntary deviate sexual
intercourse ("IDSI"), unlawful contact with a minor, and statutory sexual assault. On June 18,
2009, Crespo was sentenced to an aggregate sentence of 20 - 40 years of imprisonment. Crespo
raises six claims in his habeas petition. The case was referred to United States Magistrate Judge
Cynthia Reed Eddy for a report and recommendation in accordance with 28 U.S.C. § 636(b)(l)
and the Local Rules for Magistrate Judges.
The Report and Recommendation ("R&R") filed on December 12, 2016, recommended
that the Petition be dismissed because Crespo does not assert any meritorious claims for habeas
1
relief and that a certificate of appealability be denied. (ECF No. 36.) On December 18, 2016,
Petitioner, through counsel, filed his twenty-page Objections to the R&R. (ECF No. 37.) Where,
as here, objections have been filed, the court is required to make a de nova determination about
those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(l);
Fed.R.Civ.P. 72(b). The district court may accept, reject, or modify the recommended
disposition, as well as receive further evidence or return the matter to the magistrate judge with
instructions.
In essence, Crespo objects to the R&R in its entirety. The Court has engaged in a de nova
review of all pleadings and documents, together with the R&R and the Objections thereto. Only
certain objections merit discussion above and beyond that which is included in the R&R. See
US. v. Raddatz, 447 U.S. 667, 676 (1980) ("The court may also, in the exercise of sound judicial
discretion, rely on the Magistrate Judge's proposed findings and recommendations.") All
objections - whether expounded upon in this Memorandum Opinion or not - received a de nova
review by the Court. The Court finds, for the following reasons, no reason to disturb the
magistrate judge's recommendation. Indeed, the record shows that Crespo's claims fail for both
the procedural and substantive reasons explained in the R&R.
Initially, Petitioner raises three "factual errors not in the form of objections." Obj. at 2.
Each of these "factual errors" can be summarily dismissed. First, Petitioner objects to the
magistrate judge sua sponte naming "District Attorney William Higgins" as a respondent.
Pursuant to Local Rule 2254(B), the District Attorney of the county in which the petitioner was
convicted and sentenced must be named as a respondent. Next, Crespo argues that the magistrate
judge erred in not finding that Petitioner's trial co-counsel, Philip Masorti, also labored under a
2
conflict of interest. However, because it was recommended that counsel Lance Marshall was not
operating under a conflict of interest, there was no need to address the argument that Marshall's
conflict of interest was imputed to his co-counsel. Crespo' s third and final "factual error" is that
the Magistrate Judge mischaracterized his argument by stating that he was arguing that the
"Bedford County District Attorney's Office" concealed the facts of Marshall's conflict of
interest. Crespo argues that he never argued that the Bedford County District Attorney's office
"concealed" the facts. However, the Court notes that Crespo does argue that the knowledge of
the State Attorney General's office should be imputed to the Commonwealth's "representative in
this case," (Pet. at 58, ECF No. 1), which is the Bedford County District Attorney's office. 1 The
R&R noted that Petitioner failed to provide any legal support as to how knowledge possessed by
the Centre County District Attorney's Office or the Attorney General's Office, neither of which
were involved in the prosecution of Crespo in Bedford County, must be imputed to the Bedford
County District Attorney. Therefore, the report correctly analyzed the claim only as to any
knowledge that the Bedford County District Attorney's Office would possess.
Turning to the merits of the objections, the Court will consider each in tum.
First, Crespo objects to the recommendation that his conflict claims (Claim I) be
dismissed for failure to overcome the procedural default. Crespo raised this claim for the first
time in his second PCRA petition. Both the PCRA trial court and appellate court refused to
address the conflict claims on the merits, finding that the claims were untimely and without
1
Petitioner also argued that while he "presently has no basis to allege that the Bedford
County District Attorney's Office had actual notice that Marshall was being investigated for
serious crimes at the same time he was representing petitioner, that does not mean that it did not
have actual notice." Reply at 8 (ECF No. 18).
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exception to be heard in a second PCRA petition. Thus the claims are procedurally defaulted.
Crespo relying on Martinez v. Ryan, - U.S.---, 132 S.Ct. 1309 (2012), argues that he can
overcome the procedural default.
A petitioner cannot be excused from default if the underlying ineffectiveness claim is
insubstantial, lacks merit or factual support, or the attorney on collateral review did not perform
below constitutional standards. Martinez, 132 S.Ct. at 1319. After thoroughly canvassing the
record and the case law, the magistrate judge recommended that the claim be dismissed as
Crespo had not shown that his counsel's performance was unreasonable or that his counsel acted
under a conflict of interest. 2 After de nova review, the Court agrees with this recommendation.
Next, Crespo objects to the recommendation that Claim II be dismissed. In Claim II,
Crespo contends that the state Attorney General's Office was duty bound to disclose to the
Bedford County District Attorney's office that Marshall was operating under a conflict of
interest. And that the failure to disclose this information deprived Crespo of his right to counsel
and due process of law. Again, the Court finds no reason to disturb the recommendation of the
magistrate judge. First, the Court agrees with the magistrate judge's recommendation that
Marshall was not operating under a conflict of interest. Next, Crespo has provided no persuasive
authority to support his argument that under the circumstances of this case the Attorney
General's office was duty bound to disclose information to the Bedford County District Attorney.
Finally, the Court finds unpersuasive Crespo's argument that the knowledge of the state Attorney
2
During the time of Crespo's prosecution, his counsel was being investigated by the state
Attorney General's Office and the Centre County District Attorney's Office for possible criminal
violations. However, key to this Court's decision, is that at no time was Marshall being
prosecuted or investigated by the Bedford County District Attorney, the office that was
prosecuting his client.
4
General's office, or the Centre County District Attorney's office, should be imputed to the
Bedford County District Attorney, because they all are representatives of the Commonwealth of
Pennsylvania. Similarly, under the circumstances of this case, the Bedford County District
Attorney had no duty to learn of any possible conflict or potential conflict Marshall had. It is
fundamental that in order to comply with Brady and its progeny,3 "the individual prosecutor has a
duty to learn of any favorable evidence known to others acting on the government's behalf in this
case, including the police." Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Kyles v.
Whitley, 514 U.S. 419, 437 (1995) (emphasis added)). See also Dennis v. Sec'y, Department of
Corrections, 834 F.3d 263, 284 (3d Cir. 2016) (en bane). The record before the Court is clear
that neither the Attorney General nor the Centre County District Attorney's office was acting on
behalf of the government in Crespo' s Bedford County criminal case. Because this claim has no
merit, the Court concludes that Crespo has failed to meet the requirements of Martinez and
Strickland needed to overcome the procedural default.
Third, Crespo objects to the recommendation that Claim III, his claim pertaining to
spousal privileges, be dismissed. This claim is procedurally defaulted as it was not properly
preserved in state court. Crespo, relying on Martinez, attempts to overcome the default. He
argues that the magistrate judge erred in finding that Petitioner failed to establish prejudice.
The Court agrees with the recommendation that the first prong of Strickland has been met
as counsel's performance was deficient in not advising either Petitioner or his wife of their
absolute right under state law to refuse to reveal confidential communications between them.
The Court also agrees, however, with the recommendation that Petitioner has not demonstrated
3
Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 786 (1972); and
s
the second prong of Strickland- the prejudice prong. To establish prejudice, the petitioner "must
show that there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Stricklandv. Washington, 466 U.S. 668, 694 (1984).
The magistrate judge reviewed the trial transcript and concluded that Crespo's conviction was
well-supported by the record. The Court agrees with this conclusion. Petitioner has put forth no
credible evidence which leads this Court to determine that there is a reasonable probability that,
but for counsel's deficient performance, the result of the proceeding would have been different.
Ultimately, this Court concludes that Crespo has failed to establish the "prejudice" in "cause and
prejudice" needed to overcome the procedural default of Claim III. Coleman v. Thompson, 501
U.S. 722, 750 (1991); Strickland, 466 U.S. at 668.
Fourth, Crespo objects to the recommendation that Claim IV, a stand-alone ineffective
assistance of counsel claim regarding counsel's failure to object to the trial court's sentencing
scheme, be dismissed. There is no dispute that the claim is procedurally defaulted. Crespo,
relying on Martinez, attempts to overcome the default. The R&R details the sentencing court's
calculations. For example, the R&R highlights that the sentencing court acknowledged the
guideline calculation for a IDSI conviction, as well as Crespo's other convictions, but, as
required by law, was mandated to impose the statutory mandatory minimum sentence of 10 years
on the IDSI conviction. The sentencing transcript clearly reflects that the judge was familiar with
both the mandatory aspect of the sentence as well as the discretionary aspects of the sentence.
Because the sentencing court complied with both statutory law, i.e., imposing a mandatory
United States v. Bagley, 473 U.S. 667 (1985).
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minimum sentence on the IDSI conviction, and imposing a guideline sentence on Petitioner's
remaining convictions, in fashioning its sentence, Petitioner's objection does not warrant
rejection of the report and recommendation on this issue.
Crespo's fifth objection relates to the recommendation that Claim V, counsel's failure to
deliver promises made in his opening statement, be dismissed. Respondent argues that this claim
was already litigated in state court. Crespo argues that this is a new claim which was not raised
by counsel and invokes Martinez to excuse the default. The magistrate judge agreed with
Crespo that this was a new claim and reviewed it de nova in light of Martinez and Strickland.
Crespo argues that the magistrate judge misapplied the Strickland prejudice prong when
she found no prejudice from counsel's decision to forego presenting the testimony of several
defense witnesses, contrary to the promises he had made during his opening statement. While
the decision of the Pennsylvania Superior Court on counsel's failure to call these character
witnesses is not binding on this Court, the Court finds this state court appellate decision to be
persuasive and eliminates the need for this Court to separately consider each piece of proffered
testimony. The Superior Court went into great detail addressing why counsel failed to call
certain character witnesses and explaining why Crespo could not establish prejudice:
Preliminarily, we find that Appellant cannot establish prejudice due to trial
counsel's failure to call the employees ofNulton Diagnostics. This is because the
testimony they would have offered was introduced via the investigating officer.
Thus, the jury was aware that the victim had told others that she intended to get
Appellant.
We also find that Appellant cannot establish actual prejudice relative to
trial counsel's decision not to present the Hoffmans and Mrs. Crespo. While the
Hoffman testimony would have called into question Mrs. Caro's self-serving
testimony that she did not want to assign Appellant to the victim, it would not
have impeached the critical testimony of the victim. Additionally, the Hoffman
testimony could not have overcome the damaging circumstantial evidence that
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corroborated the victim's testimony about the second motel incident. Specifically,
there was no dispute that Appellant spent several days alone with the victim in a
motel room. Additionally, Appellant attempted to cover up his actions by
falsifying work documents prior to being accused of the crime. Appellant also
provided police with a false alibi and turned over forged telephone records in
support thereof. Neither the Hoffmans nor Mrs. Crespo could have offered
testimony to lessen the impact of this harmful circumstantial evidence.
Memorandum of Superior Court, No. 788 WDA 2012, slip op. at 14 (Pa. Super. Ct. August 28,
2013) (ECF No. 17-3). Trial counsel's testimony before the PCRA court also credibly explains
why trial counsel elected not to present promised evidence but rather rely on the presumption of
innocence. Additionally, the trial transcript reflects that counsel explicitly explained to the jury
during his closing why he changed strategies. For these reasons, the Court agrees with the
finding that Crespo was not prejudiced by trial counsel's decision to change strategies mid-trial.
Crespo has failed to meet the requirements of Martinez and Strickland needed to overcome the
procedural default.
Last, Crespo objects to the recommendation that Claim VI, an ineffective of assistance of
counsel claim based on trial counsel's failure to object to a jury instruction, be dismissed. This
claim also was procedurally defaulted as it was not properly preserved in the Pennsylvania state
courts. The magistrate judge found that Crespo had failed to overcome the procedural default as
the claim lacks merits. Crespo objects arguing that the magistrate judge "misapprehended" the
objectionable portion of the trial court's instruction on the lack of a prompt complaint. Crespo
objects to one line in the instruction and argues that the instruction is objectionable because it
prevented any one juror from using the lack of a prompt complaint as the sole factor in finding
him not guilty and that his trial counsel was ineffective for failing to object.
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A reviewing court considering alleged improper jury instructions must not consider "what
effect the constitutional error might generally be expected to have upon a reasonable jury, but
rather what effect it had upon the guilty verdict in the case at hand." Sullivan v. Louisiana, 508
U.S. 275, 279 (1993). "The inquiry, in other words, is not whether, in a trial that occurred
without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable to the error." Id.
A review of the complete instruction at issue reflects that it firmly captured the essence of
the law. Viewing the totality of the instruction, the Court finds that the instruction properly set
forth the correct standard and the appropriate burdens of proof. The Court agrees with the
recommendation that this claim lacks merit and, thus, concludes that Crespo has failed to meet
the requirements of Martinez and Strickland needed to overcome the procedural default.
In sum, the Court is in agreement with the conclusion of the Report and Recommendation
as supplemented herein and concludes that the Petition should be denied in its entirety and a
certificate of appealability should be denied.
An appropriate Order will issue.
Kim R. Gibson
United States District Judge
Dated: February 28, 2017
cc:
Daniel Silverman
Silverman & Associates, P.C.
(via ECF electronic notification)
William J. Higgins
Bedford County District Attorney's Office
(via ECF electronic notification)
9
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARRY CRESPO,
)
)
Petitioner,
)
Civil Action No. 3:14-cv-0239
)
v.
)
)
WILLIAM J. HIGGINS, JR., District
Attorney of Bedford County; JOHN
KERESTAS, Superintendent; and JOHN
E. WETZEL, Secretary, Pennsylvania
Department of Corrections,
)
)
)
)
)
)
)
Respondents.
Judge Kim R. Gibson
ORDER
AND NOW, this
28~ay of February, 2017, it is hereby ORDERED, ADJUDGED AND
DECREED that for the reasons set forth in the accompanying Memorandum Opinion, it is hereby
ORDERED, ADJUDGED AND DECREED as follows:
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 36), as
supplemented by the Memorandum Opinion filed contemporaneously herewith, is ADOPTED as the
Opinion of the Court.
1
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by Rule 3 of
the Federal Rules of Appellate Procedure.
\£fP~
Kim R. Gibson
United States District Judge
Dated: February
cc:
28, 2017
Daniel Silverman
Silverman & Associates, P.C.
(via ECF electronic notification)
William J. Higgins
Bedford County District Attorney's Office
(via ECF electronic notification)
2
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