Demerecz v. McGrady

• Decision Date: 05 December 2014
• Docket Number: Civil Action No. 13-194 Erie
• Parties: JONATHAN PAUL DEMERECZ, Petitioner, v. SUPERINTENDENT McGRADY, et al., Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

JONATHAN PAUL DEMERECZ, Petitioner, v. SUPERINTENDENT McGRADY, et al., Respondents.

Civil Action No. 13-194 Erie

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

December 5, 2014

Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER¹

Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Jonathan Paul Demerecz pursuant to 28 U.S.C. § 2254. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Erie County on January 31, 2008. For the reasons set forth below, Petitioner's claims are dismissed with prejudice because they are untimely and a certificate of appealability is denied.

I.

A. Relevant Background²

In 2007, Demerecz was convicted in a non-jury trial of 21 counts of possession of child pornography and one count of possession of instruments of crime. In his direct appeal, Demerecz argued, inter alia, that there was insufficient evidence to support his convictions because the Commonwealth failed to prove: (1) that he had knowledge of the images of child pornography on hiscomputer; and, (2) that no one else accessed the computer. The Superior Court of Pennsylvania rejected Demerecz's argument and in doing so set forth the evidence introduced at his trial. It explained:

An anonymous caller notified the Wesleyville Borough Police Department to the possibility that Demerecz's computer may contain images of child pornography. The anonymous caller indicated that he discovered the images when he was checking the Internet connection. The Erie County District Attorney's Office obtained a search warrant and executed it at Demerecz's apartment. When they arrived, the door to Demerecz's room was locked. After the landlord unlocked the door they entered and observed a computer that was operating Bitlord, a peer-to-peer file sharing program. They seized two computers, numerous computer compact discs, and a USB flash drive. The computer that contained the alleged child pornographic movies was registered to "DEM" and had an account named "Earthquake." Following examin[ation] using forensic software, the police's forensic examiner discovered twenty-two movies depicting alleged child pornography that had been saved to the computer's hard drive over a period of several months in the early hours of the morning. The movies were saved under the "Guest Login" account in the "My Documents" folder. The examiner also reviewed the Bitlord and the Morpheus peer-to-peer programs. She determined that the "Guest" user conducted searches through Morpheus that included terms associated with child pornography. She also discovered that searches in Morpheus in which terms associated with child pornography were used were conducted by "Earthquake." The trial court examined twenty-one movies; one movie failed to play, and the count associated with that movie was withdrawn. Demerecz's computer forensic expert testified that multiple persons could have had accessed the "Guest" account on Demerecz's computer. He also indicated that someone else could have placed the movies onto Demerecz's computer.

Following review, we find that the evidence sets forth the elements of possession of child pornography and possession [of] instruments of crime. The facts show that twenty-one movies of child pornography were downloaded onto Demerecz's computer during the early morning hours over a four-month period. The downloaded movies used two different peer-to-peer software programs. In fact, the Bitlord program was operating in Demerecz's locked room when the police executed the search warrant. The number of movies coupled with the time at which they were downloaded, both the four-month period and the late hour, lead to the conclusion that Demerecz, and not some other person, downloaded the movies onto his computer located in his room and, thus, satisfied the scienter requirement of the statute. Accordingly, Demerecz knowingly possessed the twenty-one movies of child pornography and his computer was an instrument of crime.

(CP Dkt. No. 38, Commonwealth v. Demerecz, No. 388 WDA 2008, slip op. at 3-5 (Pa.Super. Dec. 1, 2008)).

The Supreme Court of Pennsylvania denied a petition for allowance of appeal ("PAA") on June 18, 2009. (CP Dkt. No. 36). Demerecz's judgment of sentence became final on or aroundSeptember 16, 2009, upon expiration of the 90-day time period to file a petition for writ of certiorari with the U.S. Supreme Court. Gonzalez v. Thaler, — U.S. — , 132 S.Ct. 641, 653-56 (2012) (a judgment becomes final at the conclusion of direct review or the expiration of time for seeking such review); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000) (same).

On or around June 29, 2009, before his judgment of sentence became final, Demerecz filed in the Court of Common Pleas a pro se petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (CP Dkt. No. 35). The PCRA court appointed William J. Hathaway, Esq., to represent him. (CP Dkt. No. 37). Hathaway subsequently filed a petition for leave to withdraw as counsel and an accompanying "no-merit" letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.1988). (CP Dkt. No. 39). He wrote:

The Petitioner asserts that he was misinformed during the recitation of the rights at time of sentencing as to the necessity for filing a post-sentence motion prior to taking an appeal. The Petitioner avers that the trial court recalled the Commonwealth expert testifying as to a specific matter in contravention of her actual testimony and defense counsel failed to pursue this disparity. The Petitioner argues that the apartment number was incorrectly recited in the search warrant and that defense counsel never pursued this issue. The Petitioner avers that a conflict of interest arose in that the Court signed the warrant upon the assumption that the supporting statements therein were true and accurate, but then ruled at trial that the statements given by witnesses could not be presented into evidence as truthful. The Petitioner sets forth a general averment of ineffective assistance of counsel and seeks the provision of a new trial predicated on the collective assertions.

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The Petitioner's challenge to the recitation of post-sentencing rights is without arguable merit in that the Commonwealth's statement is accurate. The Petitioner pursued a direct appeal and exhausted his assertions on appeal in challenging the sufficiency and weight of the evidence. In that context, the appellate court has reviewed the evidentiary record before the trial court and held that the verdicts are supported by sufficient evidence and otherwise not against the weight of the evidence. The Superior Court reviewed and considered the evidence, which was found to be significant and compelling relative to whether a sufficient nexus and exercise of control and dominion was established between the Petitioner and the content of his computer in regard to the child pornography. The sufficiency of the evidence has been finally litigated pursuant to the exhaustion of state court review. A component of the trial court verdicts and the appellate review related to the determinative issue of nexus and control and exercise of dominionincluding the competing expert testimony. The Petitioner now seeks to further challenge the efficacy of the trial process by asserting that the trial court misstated the evidence cited by Detective Lynn in her expert testimony based upon the Court's error and defense counsel's failure to pursue that point. The Petitioner further argues that a conflict of interest arose in that the Court approved the warrant based upon a finding of the truthfulness of the supporting averments, but then ruled for purposes of trial that the statements were not admissible. The averments fail to state a colorable claim for relief in terms of challenging the integrity of the trial process. As the Superior Court of Pennsylvania has set forth in its opinion, the evidence relating to the child pornography including specifically the circumstances providing a nexus between the content of the computer and the Petitioner were substantial and compelling with no credible basis to impute the conduct to any other person. The instant averments fail to challenge this finding or otherwise provide any sound basis to challenge the integrity of the trial process and the reliability of the truth-determining process.

The Petitioner further avers that the search warrant was in error given the incorrect recitation of the apartment number of the space in which he resided. This averment amounted to a harmless error and would not have impacted on the legality of the issuance or execution of the search warrant in this instance. The fruits of the execution of the search warrant ultimately provided a sufficient link and nexus between the Petitioner and the computer content and the issuance of the search warrant was predicated on factual averments relating to the person subject to the computer usage and not a specific residence. Hence, the facts now asserted by the Petitioner would not have provided any credible basis to challenge the legality of the search or seek to suppress the fruits of that search and seizure.

Therefore, I am compelled to find that the Petitioner has failed to state any colorable claims for PCRA relief. I have failed to find any arguable basis to assert any claims of ineffective assistance of counsel whereby the truth-determining process was so undermined as to question the reliability of the adjudication of the guilt or innocence of the Petitioner. Therefore, I am submitting the enclosed Petition for Leave to Withdraw as Counsel in the instant case thereby leaving the Petitioner with the option of proceeding pro se or with privately retained counsel or not at all pursuant to Commonwealth v. Turner, 944 A.2d 927 (Pa. 1988).

(CP Dkt. No. 39).

The Court of Common Pleas granted Attorney...