Bodle v. Smith

• Decision Date: 01 February 2021
• Docket Number: Civil No. 3:17-CV-2265
• Parties: LEON D. BODLE, Petitioner, v. BARRY SMITH, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

LEON D. BODLE, Petitioner, v. BARRY SMITH, et al., Respondents.

Civil No. 3:17-CV-2265

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 1, 2021

Judge Jennifer P. Wilson

MEMORANDUM

Petitioner Leon D. Bodle ("Bodle" or "Petitioner") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his Court of Common Pleas of Lycoming County, Pennsylvania state-court convictions and sentence for multiple sex offenses involving minors and his designation as a sexually violent predator.¹ (Doc. 1.) Respondents argue that most of Bodle's claims are procedurally defaulted without excuse, fail to state a cognizable habeas claim, or are meritless. (Doc. 17.) For the reasons that follow, the court will deny the petition and a certificate of appealability will not issue.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Bodle's Trial²

The facts underlying Bodle's conviction are set forth in the Pennsylvania Superior Court's July 29, 2011 Memorandum Opinion affirming his judgment of conviction:

The police began investigating [Bodle] when the parents of an eleven year old girl informed them that [Bodle], who had been the girl's substitute teacher in the past, began sending her instant messages that the parents believed were inappropriate. No charges were filed against [Bodle] stemming from his contact with this eleven year old girl, however, the police spoke to other female students and former students of [Bodle] about his interactions with them. The police also interviewed [Bodle] and seized two computers that he used. On the computers, the police discovered numerous images of child pornography. As a result of the investigation by the police, the Commonwealth filed an Information charging [Bodle] with solicitation of involuntary deviate sexual intercourse with a child less than 16 years old, unlawful communication with a minor, two counts of disseminating explicit sexual materials to a minor, twenty seven counts of sexual abuse of children related to possession of child pornography, four counts of criminal use ofcommunications facility, and six counts of corruption of a minor.

Commonwealth v. Bodle, 32 A.3d 286 (Pa. Super. 2011), appeal denied, 65 A.3d 412 (Pa. 2013); see also Doc. 17-2, pp. 1-24.³

A jury trial was held from March 2 to 4, 2010, at which time Attorney James R. Protasio represented Bodle. (Doc. 1, p. 12.) During the trial, the Commonwealth called Pennsylvania State Police ("PSP") Trooper Thomas Trusal ("Tpr. Trusal"), of the PSP's Bureau of Criminal Investigations Computer Crime Unit, as an expert in computer forensics. (Doc. 17-3, p. 19.) His direct testimony explained the processes he used to clone Bodle's hard drive and then extract pictures, and remnants of deleted or hidden filed from Bodle's personal computer. (Id., p. 20.) He also testified as to the three instant messaging programs discovered on the hard drive: MySpace, Instant Messenger, and Yahoo Messenger. (Id., p. 21.) At least one of these programs, Yahoo Messenger, was set to automatically run when the computer was turned on. (Id., p. 22.) Evidence revealed during his testimony included that someone using the computer's MySpace platform searched for two user names: J.P. and P.A., two of the minors involved in the criminal investigation. A file sharing program, LimeWire, and associated file names,labeled in a manner "consistent on how child pornography files" are often found, were also discovered on the hard drive. (Id., p. 24.) Tpr. Trusal managed to pull "out the list of users and user profiles ... on the computer and some information about when the software was installed, what the log in were and the type of information." (Id., p. 25.) Tens of thousands of pictures were found on Bodle's hard drive. (Id., p. 27.)

Attorney Protasio's cross examination of Tpr. Trusal highlighted his inability to "tell [the jury] who did [what] search" on Bodle's computer or confirm "who actually would have tried to download" files from LimeWire or other websites. (Id.) Tpr. Trusal admitted he was unable to determine "how many people had access" to the computer, or whether a virus or malware had infected or "hijacked" Bodle's computer. (Id., pp. 26-27.) Tpr. Trusal acknowledged that "Trojan Horse" malware could allow others to "take control of [a] computer" without the user's knowledge. (Id., p. 27.) Tpr. Trusal testified he had no data associated with the pictures uncovered on Bodle's hard drive relating to who placed the file on the drive, or the date the files were downloaded. (Id., pp. 27-28.) Likewise, Tpr. Trusal was unable to identify who searched the MySpace site for J.P. or P.A., or when the search was performed. (Id.)

On the third and final day of trial, a court administrator advised the court that First Assistant District Attorney ("DA") Kenneth Osokow, who had observed portions of Bodle's trial, was now sitting as a juror in a civil matter and would be in "the same room as the jurors in this case." (Doc. 17-4, pp. 1-2.) The trial judge discussed the issue with the parties outside the presence of the jury. The court noted that "Mr. Osokow was not identified as a member of the District Attorney's Office, nor was he identified through any other method, nor was there any conversation or contact while the Jury was in the courtroom between Mr. Osokow and Ms. Kilgus," the prosecutor in Bodle's case. (Id., p. 3.)

After discussion with Bodle, Attorney Protasio declined the trial court's invitation to voir dire the jury on the issue of Mr. Osokow's possible influence on the jury due to concerns that it would perhaps "highlight" the matter. He did, however, request a mistrial due to "the potential of prejudice." (Id., pp. 4-5.) Attorney Protasio noted "[a]ll of this could have been avoided," because DA Osokow should not have entered Bodle's trial in the presence of the jury when he knew he would be appearing as a juror in a civil matter, and thus sharing the jury lounge with jurors in Bodle's trial. (Id., pp. 5-6.) The Commonwealth countered that unless Attorney Protasio "has some other evidence that any Jury member was even spoken to, we don't think it rises to a level of a mistrial." (Id., p. 7.) Afterthe court took a recess to research the issue, the court returned and denied Bodle's request for a mistrial without prejudice. (Id., p. 8.)

The trial court stated:

While I'm not at all happy as to what happened, and I agree that it can and should have been avoided, I don't see anything on the Jury's part that shows that they're not diligently and properly abiding by their civic duty and oath that they took. Nothing has been reported that they behaved in any improper contact of any kind. It's my understanding this morning when the second Jury came in that Mr. Osokow was seated in the back, had no contact with any of the jurors. That was reported to me by the [tipstaff].

Mr. Protasio, having said that, if you wish to voir dire or, for lack of a better word, call any of the [tipstaff] to testify and cross-examine them with respect to that, you certainly have the right to do so.

But in general there's nothing that appears to me to show that they've been improperly influenced or that there has been any prejudice. Mr. Osokow did come in on a few occasions during the trial. He had no contact with the District Attorney, Ms. Kilgus, who is trying the case. While there may have been contact at some point outside of the courtroom, or outside the presence of the Jury it was in the courtroom from what [ ] I observed.

...

[Mr. Osokow] was never identified as a member or the District Attorney's Office when he came into the courtroom.

(Id., pp. 8-11.)

Attorney Protasio noted for the record that "it would be very difficult to prove that there was any actual harm done, it's always the appearance of impropriety." (Id., p. 10.) He also noted that DA Osokow may have been in the same jury pool as members of Bodle's jury. The court noted that DA Osokow was selected on the first day of jury selection, before Bodle's jury panel came in. (Id., p. 11.) Additionally, during jury selection in Bodle's trial, potential jurors were asked if they knew DA Osokow, and no one indicated they knew him. (Id.) The court found Bodle's right to a fair trial had not been compromised by DA Osokow's presence in the courtroom or Jury lounge. (Id.)

At the end of trial, the jury found Bodle guilty of criminal solicitation to commit involuntary deviate sexual intercourse, unlawful communication with a minor, two counts of disseminating explicit sexual materials to a minor, twenty-four counts of sexual abuse of children related to the possession of child pornography, four counts of criminal use of communications facility, and five counts of corruption of a minor. (Doc. 17-1, pp. 32-37; Doc. 17-3, p. 32.) The trial court ordered an assessment of Bodle in accordance with Megan's Law by Pennsylvania Sexual Offenders Assessment Board ("SOAB") at the conclusion of trial. (Doc. 17-3, p. 32.) After receiving SOAB's assessment, the DistrictAttorney's Office, filed a praecipe seeking a hearing to determine whether Bodle was a Sexually Violent Predator ("SVP").

On June 29, 2010, the trial court held a hearing to determine whether Bodle should be deemed an SVP as defined by Pennsylvania's Megan's Law, 42 PA. CONS. STAT. ANN. § 9795.1, et seq. The Commonwealth offered the testimony of C. Townsend Velkoff, a licensed psychologist and SOAB member since 1996, who was qualified without objection, as an expert in assessing SVPs. (Doc. 17-3, pp. 33-35.) Velkoff defined an SVP as an individual who has a mental abnormality or personality disorder that would make him more likely to engage in sexually aggressive or predatory behavior. He testified that his SVP assessment included an interview of Bodle, police reports, and review of all the various file materials provided by the Board. (Id., p. 35.) Based on this information Velkoff opined Bodle met SOAB's characteristics of an SVP. He...