Lippert v. Glunt, Civil Action No. 11-131 Erie

• Decision Date: 15 January 2013
• Docket Number: Civil Action No. 11-131 Erie
• Parties: BRYAN A. LIPPERT, Petitioner, v. S.R. GLUNT, et al., Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

BRYAN A. LIPPERT, Petitioner,

v.S.R. GLUNT, et al., Respondents.

Civil Action No. 11-131 Erie

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Dated: January 15, 2013

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 Bryan A. Lippert. [ECF No. 5]. He is challenging the judgment of sentence imposed upon him by the Court of Common Pleas of Erie County at Criminal Docket No. CP-25-CR-1665-2005. For the reasons set forth below, his petition is denied and a certificate of appealability is denied.

I.

A. Relevant Background²

On February 14, 2006, an Erie County jury convicted Petitioner of three counts of attempted unlawful contact with a minor (sometimes referred to herein as "attempted UCM"), and one count each of attempted corruption of minors, attempted involuntary deviate sexual intercourse ("IDSI"), and attempted indecent assault. The Superior Court of Pennsylvania summarized the evidence introduced at Petitioner's trial as follows:

[Petitioner's] convictions were based on [his] sexually explicit communications to a law enforcement officer posing as a 13-year-old girl in an Internet chat room sting operation targeting sexual offenders..... On November 24, 2004, [Petitioner] initiated contact via his home computer in an Internet chat room with a person using the screen name "CutiePA13." CutiePA13 purported to be a 13-year-old girl, but was really Detective Lisa M. Carroll. (Notes of testimony, 2/13/06 at 24-26, 31, 41). Detective Carroll was assigned to a task force focused on Internet crimes against children ("ICAC"). (Id. at 24). During their initial conversation, [Petitioner], who was using the screen name "ScriptKitty," indicated that he was a 29-year-old single male from Pennsylvania. He described himself as being 6'1", 200 pounds, with brown hair and brown eyes. (Id. at 32-33).

At trial, Detective Carroll read the transcripts of each Internet conversation into evidence. During the first conversation, [Petitioner] questioned CutiePA13 about her sexual experience and indicated that he was interested in pursuing a sexual liaison with her. He asked intimate questions regarding whether she was a virgin, whether she like older men, and if she was waiting for the right man to make love to her. (Id. at 32-35). [Petitioner] asked CutiePA13 whether she would be willing to perform specific sexual acts with him, including oral and vaginal intercourse. [Petitioner] assured her that she would take great pleasure in these activities and that he would be very "gentle." (Id. at 37-39).

During the initial conversation, [Petitioner] also asked CutiePA13 if she would meet him during the weekend and inquired where she lived in relation to Erie; CutiePA13 responded that she lived in Philadelphia. [Petitioner] stated that he would drive "about seven hours" to Philadelphia to meet with her. (Id. at 35-36). [Petitioner] instructed CutiePA13 not to tell anyone about what would happen between them as he could go to jail. (Id. at 36-37). [Petitioner] also assured her that he would use a condom so she would not get pregnant. (Id. at 38-39).

Approximately six days later on November 30, 2004, Detective Carroll went undercover online using the same screen name; the detective initiated contact with [Petitioner]. (Id. at 42, 64, 66). [Petitioner] again asked "if [he] can come down yet?" During this conversation, [Petitioner] inquired when he could telephone her and also requested an email from her describing all of the things she wanted to try when they met. (Id. at 44-47).

The third time they talked online, on December 6, 2004, [Petitioner] changed his screen name to Belip97, explaining that he just felt like changing his name. (Id. at 48, 49, 64). [Petitioner] wanted to know when they could meet, stating that he could take off work anytime to drive to Philadelphia. (Id. at 49-51). [Petitioner] expressed that he wanted to make love to CutiePA13 and "taste her." (Id. at 50). Before the conversation ended, [Petitioner] again asked when they could meet.

In the fourth conversation, on December 18, 2004, [Petitioner] again pressed CutiePA13 to meet.

[Petitioner]: And I'll come down when you say so. I told you that before.

- - -

Any time. I can always take off of work.

- - -

I can't wait to hold you in my arms and then make love to you.

- - -

CutiePA13: So if I said tomorrow, ... that's cool?

[Petitioner]: Yes.

- - -

So tell me what days.

CutiePA13: Monday, Tuesday, have to check about Wednesday.

[Petitioner]: Okay. I'll plan on coming down Monday. I need a number to call.

CutiePA13: Like what time around?

[Petitioner]: Probably around 3PM.

- - -

CutiePA13: Okay. I'll talk to you about it tomorrow.

[Petitioner]: Okay.

CutiePA13: See you.

[Petitioner]: I love you.

Id. at 54-59.

However, [Petitioner] did not contact CutiePA13 the following day as discussed. Six weeks later, on January 29, 2005, CutiePA13 initiated contact with [Petitioner]. The conversation was very brief, consisting of three lines, as [Petitioner] indicated he was working. (Id. at 60, 65). Thereafter, Detective Carroll referred the case to Detective Jessica Lynn ("Detective Lynn") in Erie County. Detective Lynn obtained a search warrant and an arrest warrant. (Id. at 88-89). [Petitioner's] home computer was seized.

[Petitioner] testified at trial that he remembered talking to CutiePA13 but maintained that he was role-playing. (Id. at 111, 113). He explained that he did not think he was talking to a 13-year-old girl in the chat room, but rather an adult who was fantasizing with him. (Id. at 110-111). [Petitioner] stated that he never made an attempt to contact CutiePA13 by phone nor did he attempt to travel or get a hotel room with this "fantasy person." (Id. at 113).

(CP Dkt. No. 75, Commonwealth v. Lippert, No. 116 WDA 2007, slip op. at 2-8 (Pa.Super. Nov. 19, 2008) ("Lippert 1") (footnotes omitted)).

After Petitioner was arrested, the Erie County Public Defender's Office was appointed as his counsel. The Commonwealth initially charged him with, inter alia, three counts of unlawful contact with a minor, not with attempted unlawful contact with a minor. Christine Fuhrman Konzel, the Chief Public Defender at the time, filed an omnibus pre-trial motion (CP Dkt. No. 17) and argued that: "The Commonwealth's case does not have a prima facie case against the defendant regarding the charges of Unlawful Contact with Minor and Corrupting the Morals of a Minor because at no time was the alleged victim(s) in this case a minor." (CP Dkt. No. 17) (emphasis added). The motion was discussed at a pretrial hearing conducted on November 30, 2005, in which the Assistant District Attorney indicated that the Commonwealth would file a motion to amend the Information to charge Petitioner with attempt at unlawful contact with a minor. (11/30/05 Hr'g Tr. at 15-23). The next day, the Commonwealth filed the motion and the court granted it. (CP Dkt. Nos. 26-27).

Petitioner's jury trial commenced on February 13, 2006. Assistant Public Defenders Anthony Logue and James Pitonyak represented him. At the trial's conclusion, the jury found him guilty of all counts. On September 7, 2006, the court sentenced him to an aggregate term of incarceration of 129-258 months. Petitioner filed an appeal with the Superior Court. He raised ten claims, of which the following two are relevant to this proceeding:

(1) The evidence was insufficient to support his convictions; and,

(2) "Did the Court fail to merge charges and violate Double Jeopardy?"

(CP Dkt. No. 75, Lippert 1, No. 116 WDA 2007, slip op. at 10 (quoting Appellant's brief at 4)).

On November 19, 2008, the Superior Court of Pennsylvania issued a Memorandum in which it affirmed in part and vacated in part Petitioner's judgment of sentence. It agreed with him "that mere conversation of a desire to become sexually active with a 13-year-old girl, unaccompanied by any other corroborative action, is insufficient to demonstrate a substantial step for the crimes of IDSI and indecentassault[.]" It further held: "however, we find that [Petitioner's] actions were sufficient to support the convictions of attempt to commit unlawful contact of a minor and attempt to commit corruption of minors." (CP Dkt. No. 75, Lippert 1, No. 116 WDA 2007, slip op. at 10-11). The Superior Court vacated Petitioner's judgment of sentence with respect to the attempted IDSI and attempted indecent assault convictions and remanded for resentencing. The Superior Court also denied Petitioner's double jeopardy claim on the merits. (Id. at 27-28).

On remand, the trial court entered a new order in which it sentenced Petitioner to an aggregate term of incarceration of 96-204 months. On July 2, 2010, Petitioner filed a pro se motion under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq. (CP Dkt. No. 98). The court appointed William J. Hathaway, Esquire, to represent him. 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. 100).

In August of 2010, the PCRA Court granted Hathaway's petition for leave to withdraw (CP Dkt. No. 103), and issued an Opinion and Notice of Intent to Dismiss PCRA Without a Hearing Pursuant to Pa.R.Crim.P. 907(1). (CP Dkt. No. 101). On September 22, 2010, after considering Petitioner's response to the Notice of Intent to Dismiss (CP Dkt. No. 104), the court issued a Final Order denying the PCRA motion. (CP Dkt. No. 105).

In his subsequent pro se appeal to the Superior Court, Petitioner raised, inter alia, the following two claims, which he now raises in the habeas petition that he has filed with this Court:

(1) His trial counsel were ineffective for "failing to call the character witness, Norman Loesch"; and,

(2) His "pretrial counsel was ineffective for filing issues in a pretrial motion

...