Houser v. Zaken, Civil Action 2: 20-cv-1936

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
Docket NumberCivil Action 2: 20-cv-1936
Decision Date30 June 2022



Civil Action No. 2: 20-cv-1936

United States District Court, W.D. Pennsylvania

June 30, 2022

William S. Stickman, United States District Judge




Petitioner, Alan Troy Houser (“Houser”), a state prisoner currently confined at the State Correctional Institution at Mercer, in Mercer, Pennsylvania, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 5). He is challenging the judgment of sentence imposed on him by the Court of Common Pleas of Westmoreland County, Pennsylvania, on August 28, 2015, in criminal case CP-65-CR-4317-2014. For the reasons outlined below, it is recommended that the Petition be denied and a certificate of appealability as to each claim be denied.


A. Jurisdiction

This Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to prisoners in custody pursuant to a state court judgment. It permits a federal court to grant a state


prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution . . . of the United States.” 28 U.S.C. § 2254(a). It is Houser's burden to prove that he is entitled to the writ. 28 U.S.C. § 2254(a); see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017). There are other prerequisites that he must satisfy before he can receive habeas relief on his claims. For example, the burden imposed on him by the standard of review enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (which is discussed below). But, ultimately, Houser cannot receive federal habeas relief unless he establishes that he is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a); see, e.g., Vickers, 858 F.3d at 849.[2]

B. Relevant and Procedural Background[3]

On November 12, 2014, Houser was charged by Criminal Information with one count of Criminal Conspiracy to Hindering Apprehension or Prosecution and one count of Hindering


Apprehension or Prosecution as a principal or accomplice.[4] Houser entered a general guilty plea to both counts. The Superior Court of Pennsylvania recounted the background of this case in its decision affirming the denial of state post-conviction relief for Houser, as follows:

The instant case arises out of an investigation of [Houser] for attempting to coerce a witness not to testify during at least one three-way call with [Houser] and another individual while he was incarcerated at the Westmoreland County Prison. As a result, [Houser] was charged on September 1, 2014, with [criminal] conspiracy to hinder apprehension or prosecution by destroying evidence or tampering with a witness, in violation of 18 Pa.C.S.A. § 903[,] and hindering apprehension or prosecution by [concealing or] destroying evidence or tampering with a witness, in violation of 18 Pa.C.S.A. § 5105(a)(3). A preliminary hearing was scheduled before Magisterial District Judge Frank J. Pallone, Jr. on September 25, 2014, and all charges were waived for court.

On June 2, 2015, [Houser], represented by [] Emily Smarto, [Esq. (“Attorney Smarto”)] proceeded to a jury trial before [the trial] court. Prior to the trial beginning, [Houser] entered a general guilty plea to the above-referenced charges, and sentencing was deferred pending a pre-sentence investigation [report]. On August 28, 2015, [Houser] was sentenced as follows: At count one, [Houser] was sentenced to 21 to 42 months['] incarceration. At count two, [Houser] was sentenced to 21 to 42 months['] incarceration consecutive to count one. This sentence was also to run consecutively to the sentence imposed at case number 3802 C 2013.[[5]]

[1]The record indicates [Houser was sentenced to 11 to 22 years' incarceration after a jury convicted him of aggravated assault, 18 Pa C.S.A. § 2701(a)(1), at docket number 3802 C 2013

Superior Court Memo., 4/28/2020 (quoting PCRA Court Opinion, 7/3/2019, pp. 1-2 (extraneous capitalization, footnote, and some record citations omitted)) (ECF No. 22-11, pp. 25-26). Houser did not file a direct appeal from his conviction and sentence.

Houser filed a timely pro se petition for post-conviction collateral relief under Pennsylvania's Post-Conviction Relief Act (“PCRA”) and a Petition to Request an Evidentiary Hearing, in which he raised additional issues. Attorney Brian Aston was appointed to represent


Houser during the PCRA proceedings. On July 28, 2016, Attorney Aston filed a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 213 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), to which Houser filed a pro se a response in opposition.

On April 26, 2017, Attorney Aston filed a supplemental Turner-Finley no-merit letter, to which Houser filed a pro se response. On May 9, 2017, the PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, and directed Houser to file a written response to the defects enumerated in that notice. After Houser filed his response, the PCRA court scheduled an evidentiary hearing. Prior to the evidentiary hearing, Attorney Aston was permitted to withdraw as PCRA counsel, and Houser was informed that he could retain private counsel or proceed pro se. Houser elected to proceed pro se.

An evidentiary hearing was held on September 20, 2018, at which Attorney Smarto, Attorney Patricia Elliott-Rentler,[5]and Donald Thomas Pynos, Jr., a corrections counselor at the Westmoreland County Prison, testified. N.T., 9/20/2018. (Evidentiary Transcript, 240-15). At the conclusion of the hearing, the PCRA court ordered the parties to submit additional briefing on the legality of the process by which the Commonwealth obtained Houser's phone records from the Westmoreland County Prison.

The PCRA court denied Houser's PCRA petition on July 3, 2019. Commonwealth v. Houser, No. 4317 C 2014, Opinion and Order of Court, 7/3/2019 (unpublished) (ECF No. 22-11, pp. 9-17). Houser appealed to the Superior Court of Pennsylvania and on April 28, 2020, the Superior Court affirmed the denial of the PCRA petition. Commonwealth v. Houser, No. 1122 WDA 2019 (Pa. Super. Ct. 2020) (unpublished) (Id., at pp. 25-35). The Supreme Court of


Pennsylvania denied Houser's petition for allowance of appeal on November 19, 2020. Commonwealth v. Houser, No. 180 WAL 2020 (Pa. 2020). (Id., p. 24).

Having been denied relief in state court, Houser filed the instant federal habeas petition in which he raises seven issues. (ECF No. 5). Respondents filed an Answer (ECF No. 22), to which Houser filed a Reply. (ECF No. 24). The undersigned has reviewed the filings of the parties, as well as the original state court record, including the Guilty Plea Petition signed by Houser and his attorney on June 2, 2015; the transcripts from Houser's plea, sentencing, and PCRA proceedings, the appellate briefs filed by the parties with the Superior Court of Pennsylvania, and the Memorandum of the Superior Court of Pennsylvania filed April 28, 2020. The matter is fully briefed and ripe for disposition.

C. The Standard for Habeas Relief Under 28 U.S.C. § 2254

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.” Harrington v. Richter, 562 U.S. 86, 91 (2011). Federal courts reviewing habeas corpus petitions “must be vigilant and independent . . . a commitment that entails substantial judicial resources.” Id. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, as amended by the AEDPA, “which imposes significant procedural and substantive limitations on the scope” of the Court's review.[6] Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 227 (3d Cir. 2017).

A finding of fact made by a state court, including credibility determinations, always has been afforded considerable deference in a federal habeas proceeding. Vickers, 858 F.3d at 850


(even in pre-AEDPA cases, “ ‘federal habeas courts [had] no license to redetermine credibility of witnesses who demeanor ha[d] been observed by the state trial court, but not by them' ”) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). AEDPA continued that deference and mandates that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Petitioner has the “burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.

AEDPA also put into place a new standard of review, which is codified at 28 U.S.C. § 2254(d):

AEDPA requires federal courts to give due regard to state court rulings. Where the state court has adjudicated the merits of a petitioner's habeas claims, federal habeas relief is available only if the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Becker v. Sec'y Pennsylvania Dep't of Corr., 28 F.4th 459, 460 (3d Cir. 2022) (quoting 28 U.S.C. § 2254(d)). For the purposes of § 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when the state court made a decision that finally resolves the claim based on its substance, not on a procedural, or other, ground. See, e.g., Richter, 562 U.S. at 98-100; Robinson v. Beard, 762 F.3d 316, 324 (3d Cir. 2014).

Section 2254(d)(1) applies to questions of law and mixed questions of law and fact. In applying it, this Court's first task is to determine what law falls within the...

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