Moyer v. Ferguson

• Decision Date: 06 May 2019
• Docket Number: CIVIL NO. 1:17-CV-1379
• Parties: BRYAN JOHN MOYER, Petitioner v. TAMMY FERGUSON, PA STATE ATTORNEY GENERAL, Respondents
• Court: U.S. District Court — Middle District of Pennsylvania

BRYAN JOHN MOYER, Petitioner v. TAMMY FERGUSON, PA STATE ATTORNEY GENERAL, Respondents

CIVIL NO. 1:17-CV-1379

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

May 6, 2019

(Chief Judge Conner)

MEMORANDUM

Petitioner Bryan Moyer ("Moyer") filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment and conviction imposed in the Court of Common Pleas of Potter County, Pennsylvania. (Doc. 1). For the reasons set forth below, the court will deny the habeas petition.

I. Background¹

In 2005, Moyer was charged in three separate criminal informations with numerous counts of endangering the welfare of children, indecent assault, corruption of minors, rape, and involuntary deviate sexual intercourse. (Docs. 12-1, 12-2, 12-3, Commonwealth v. Moyer, Nos. CP-53-CR-57-2005, CP-53-CR-58-2005, CP-53-CR-138-2005 (Pa. Ct. Com. Pl. Potter Cty.)). The charges relate to Moyer's repeated molestation of five boys who attended the same daycare center as Moyer's son. (Doc. 12-22, Commonwealth v. Moyer, No. 309 WDA 2007, at 1-2 (Pa. Super. Jan. 3, 2008)). The abuse primarily occurred at Moyer's home while the victims were visiting his son. (Id.) All of the boys were between three and six years old when they were assaulted. (Id.)

A jury trial was held in the Court of Common Pleas of Potter County from April 4, 2006 through April 7, 2006. (Docs. 12-1, 12-2, 12-3). At the conclusion of the trial, the jury convicted Moyer of 10 counts of endangering the welfare of children, 19 counts of indecent assault, 9 counts of corruption of minors, 4 counts of rape, and 5 counts of involuntary deviate sexual intercourse. (Id.) Moyer filed post-sentence motions raising several allegations of error. (Id.) The trial court granted partial relief and found that the rape convictions should have merged with the involuntary deviate sexual intercourse convictions for sentencing purposes. (Doc. 12-22, Commonwealth v. Moyer, No. 309 WDA 2007, at 3). On September 8, 2006, following a sentencing reduction, Moyer was sentenced to a period of incarceration of 19 years, 3 months to 46 years. (Id.)

Moyer pursued direct appeal proceedings. See electronic docket sheet for Commonwealth v. Moyer, Superior Court of Pennsylvania, 309 WDA 2007, found at http://ujsportal.pacourts.us. On January 3, 2008, the Pennsylvania Superior Court affirmed the judgment of sentence. (Id.; see also Doc. 12-22, Commonwealth v. Moyer, No. 309 WDA 2007). Moyer filed a petition for allowance of appeal to the Pennsylvania Supreme Court. Commonwealth v. Moyer, 198 WAL 2008 (Pa.). OnNovember 17, 2008, the Pennsylvania Supreme Court denied the petition for allowance of appeal. Id. Moyer did not file a petition for writ of certiorari to the United States Supreme Court, therefore his judgment of sentence became final ninety days later on February 16, 2009. See 42 PA. CONS. STAT. § 9545.

On October 21, 2009, Moyer filed a timely petition for post-conviction collateral relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-46. (See Docs. 12-1, 12-2, 12-3). On October 28, 2009, counsel was appointed, however counsel failed to act on behalf of Moyer. (See Doc. 12-32, Commonwealth v. Moyer, Nos. 57, 58, and 138 of 2005, at 2-3, PCRA Court Opinion). On September 12, 2014, a judge became aware of the pending matter when Moyer filed a pro se amended PCRA petition. (Id.) New counsel was subsequently appointed to represent Moyer. (Id.) On February 5, 2015, Moyer filed a second, counseled, amended PCRA petition. (Id.) On July 10, 2015, a hearing was held on Moyer's second amended PCRA petition. (Doc. 12-13, PCRA Hearing Transcript). On November 13, 2015, the PCRA court denied the petition. (Doc. 12-32, Commonwealth v. Moyer, Nos. 57, 58, and 138 of 2005, PCRA Court Opinion, Nov. 13, 2005).

On November 30, 2015, Moyer filed a timely notice of appeal to the Pennsylvania Superior Court. Commonwealth v. Moyer, 1947 WDA 2015, 1948 WDA 2015, 1949 WDA 2015 (Pa. Super.). On December 9, 2016, the Pennsylvania Superior Court affirmed the denial of the second amended PCRA petition. Commonwealth v. Moyer, 2016 WL 7190063 (Pa. Super. Dec. 9, 2016). Moyer filed a petition for allowance of appeal to the Pennsylvania Supreme Court.Commonwealth v. Moyer, 60 WAL 2017, 61 WAL 2017, 62 WAL 2017 (Pa.). On July 17, 2017, the Pennsylvania Supreme Court denied the petition for allowance of appeal. Commonwealth v. Moyer, 642 Pa. 71, 169 A.3d 1049 (Table) (Pa. 2017).

II. Standards of Review

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.

A. Exhaustion

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To "fairly present" a claim, a petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite "book and verse" of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must "give the State 'the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore, that review on the merits of the issues presented in a habeas petition is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). Section 2254(d) provides, in pertinent part, that an application for a writ of habeas corpuspremised on a claim previously adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) [the decision] was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). To establish that the decision was contrary to federal law "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id.

Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner "mustclear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).

Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (...