Grego v. Kerestes
| Decision Date | 15 January 2016 |
| Docket Number | CIVIL NO. 1:CV-13-2675 |
| Parties | MICHAEL GREGO, Petitioner v. JOHN KERESTES, et al., Respondents |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Caldwell)
Petitioner, Michael Grego, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his November 2008 convictions in the Court of Common Pleas of Monroe County, Pennsylvania. The documents setting forth the claims for habeas relief are Docs. 27 and 28. See Doc. 29.
The convictions arose from incidents at Petitioner's house involving three minors, S.Z., A.G., and B.C., that occurred from about October 2006 through December 2006. In a November 2008 jury trial, Petitioner was found guilty of the following offenses: (1) one count of indecent assault of a person less than thirteen years of age, a violation of 18 Pa. Cons. Stat. Ann. § 3126(a)(7); (2) one count of attempted rape of a child, a violation of 18 Pa. Cons. Stat. Ann. § 901(a); (3) two counts of corruption of minors, violations of 18 Pa. Cons. Stat. Ann. § 6301(a)(1); (4) two counts of indecent exposure, violations of 18 Pa. Cons. Stat. Ann. § 3127(a); (5) three counts of open lewdness, violations of 18 Pa. Cons. Stat. Ann. § 5901; (6) three counts of unlawful contact with a minor, violations of 18 Pa. Cons. Stat. Ann. § 6318(a)(1); and (7) two counts of dissemination of explicit sexual materials to a minor, violations of 18 Pa. Cons. Stat. Ann. § 5903(c)(1).1 In March 2009, he was sentenced to an aggregate term of 135 months to 288 months.
Petitioner took a direct appeal which was unsuccessful. Commonwealth v. Grego, No. 3742 EDA 2009 (Pa. Super. Ct. Mar. 17, 2011). He also filed a petition under the Pennsylvania Post Conviction Relief Act (PCRA), see 42 Pa. Cons. Stat. Ann. § 9541-9546, which the trial court denied on February 24, 2012. (Doc. 21-3, ECF p. 33). The trial court's denial of PCRA relief was upheld on appeal. (Doc. 21-3, ECF p. 80, Commonwealth v. Grego, No. 843 EDA 2012 (Pa. Super. Ct. Nov. 1, 2012).
Under 28 U.S.C. § 2254, a state prisoner can seek federal habeas relief from his conviction only for violations of federal law, not state law. Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011). In pertinent part, as stated in 28 U.S.C. § 2254(a), the petitioner can seek relief "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
When a petitioner's federal claims have been adjudicated against him by the state courts, habeas review of the state courts' resolution of the claims is governed by28 U.S.C. § 2254(d)(1) and (d)(2). Under subsection (d)(1), we may grant the writ if the state courts' adjudication of the claims was contrary to clearly established Supreme Court precedent or an unreasonable application of that precedent. "[A] state court ruling is considered an 'unreasonable application' if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply." McMullen v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009) (cited cases omitted). "The unreasonable application test is an objective one - a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005)(cited cases omitted). If "'fairminded jurists could disagree' on the correctness of the state court's decision," habeas relief cannot be granted. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)(quoted case omitted).
Under subsection (d)(2), we may grant the writ if the state courts' adjudication of the claims "resulted in a decision that was based on a unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). "A state court decision is based on 'an unreasonable determination of the facts' only if the state court's factual findings are 'objectively unreasonable in light of the evidence presented in the state-court proceeding.'" Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013)(quoted case omitted). State-court fact finding "is presumed to be correct." 28 U.S.C. § 2254(e)(1). Thepetitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
Additionally, a federal court cannot grant habeas relief to a section 2254 petitioner unless the petitioner has exhausted the remedies "available" in state court on his federal claims. See 28 U.S.C. § 2254(b)(1)(A); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004)(citing section 2254(b)(1)(A)). Exhaustion is accomplished "by fairly presenting each claim at each stage of the state's established appellate review process." Villot v. Varner, 373 F.3d 327, 337 (3d Cir. 2004). On a Pennsylvania conviction, a petitioner must present his claims as far as the Pennsylvania Superior Court because Order 218, an administrative order from the Pennsylvania Supreme Court, has made review in the state supreme court "unavailable for purposes of exhausting state court remedies . . . ." Boyd v. Waymart, 579 F.3d 330, 368 (3d Cir. 2009)(quoted case and internal quotation marks omitted).
Petitioner claims that the trial court violated his right to due process by allowing Dr. Andrea Taroli, the Commonwealth's medical expert, to testify about certain matters. In relevant part, Petitioner contends that the trial court abused its discretion byallowing Dr. Taroli to give hearsay testimony from the victims under Pa. R. Evid. 803(4). Rule 803(4) permits hearsay statements made for medical diagnosis or treatment.2
The background to this claim is as follows. At trial, Dr. Taroli was qualified as an expert in forensic pediatrics. (Doc. 21-7, ECF p. 31). She is the medical director of the Pegasus Child Advocacy Center, a "child friendly" place where children can be more relaxed than at a hospital or police station when the child is interviewed about an allegation of abuse or neglect. (Id., ECF pp. 31-32). As part of the process, Dr. Taroli gathers background information from the family -- past medical history, family and social history. (Id., ECF p. 33). She also obtains the child's medical and surgical history. (Id.).
A forensic interviewer, who does not know what the allegations are, interviews the child. (Id., ECF p. 34). So that the child does not have to speak to a number of people at one time, the interview is observed over closed-circuit television by interested parties. These parties would include child-protective-services persons, law-enforcement personnel, and Dr. Taroli. (Id.). The forensic interviewer also knows the medical information Dr. Taroli needs and the information child-protective services and law enforcement need. Nonetheless, she will check with the observers for anything she forgot to ask because the purpose of the interview is to gather information for all the professionals so that the child does not have to be re-interviewed. (Id., ECF p. 35).
After the interview, Dr. Taroli performs a physical examination of the child. After the examination, she discusses the results with child-protective services and law enforcement and they will "formulate a plan as to what they're going to do next." (Id., ECF pp. 35-36).
Dr. Taroli testified that she followed this basic procedure on March 15, 2007, with S.Z., one of the minor victims. (Id., ECF p. 36). She was then asked what medical history she had obtained about S.Z. Dr. Taroli started her response by stating that B.C. had made certain comments to B.C.'s grandmother. Over defense counsel's objection that this was not "medical history" but a "history of accusations made by someone else," (id., ECF p. 37), Dr. Taroli continued with her testimony, testifying not to S.Z.'s medical history but to how the allegations against Petitioner surfaced, that one of the other minor victims, B.C., had given information to her grandmother. Specifically, Dr. Taroli testified:
THE WITNESS: The allegations came forward by [B.C.] telling her grandmother that at the home of the Defendant he had provided the two girls . . . with alcohol and cigarettes, and the grandmother said there was some concern about a picture of him naked on a cell phone he had given [S.Z.]
Petitioner asserts that this testimony was improperly admitted in violation of the hearsay rule and could not be admitted under the Rule 803(4) exception for statements made for medical diagnosis or treatment as the statements were not made by S.Z. or her parents and did not relate to S.Z.'s medical history.
In response to a question about whether she was "aware of the general allegations or the general nature of the allegations," Dr. Taroli testified:
(Id., ECF p. 38). Petitioner argues this testimony was improperly admitted because it was not responsive to the question and that testimony about "other associated symptoms" was not relevant to the case. Petitioner also asserts that the crimes were alleged to have occurred between October and December 2006, so that testimony about a symptom going back more than two years before the examination is not relevant as he did not know S.Z. or her...
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