Wesling v. Tice

• Decision Date: 13 September 2022
• Docket Number: Civil Action 3:18-CV-02405
• Parties: DANIEL WESLING, Petitioner, v. WARDEN ERIC TICE, et al., Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

DANIEL WESLING, Petitioner,
v.
WARDEN ERIC TICE, et al., Respondents.

Civil Action No. 3:18-CV-02405

United States District Court, M.D. Pennsylvania

September 13, 2022

MANNION, JUDGE

REPORT AND RECOMMENDATION

KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE

This is a pro se habeas corpus action arising under 28 U.S.C. 2254 initiated upon the filing of the original petition in this matter by Petitioner Daniel Wesling (“Wesling”) on November 26, 2018. (Doc. 2). On November 30, 2020, Wesling filed an amended petition (the “Petition”) which serves as the controlling petition in this case. (Doc. 22). In his Petition, Wesling challenges his October 2013 conviction and March 2014 sentence in the Monroe County Court of Common Pleas, Pennsylvania. (Doc. 1, at 1); (Doc. 22, at 11); see also Commonwealth v. Wesling, Docket No. CP-43-CR-0001697-2012 (Monroe County C.C.P.). Wesling is currently incarcerated at State Correctional Institution at Somerset (“SCI-Somerset”) located in Somerset County, Pennsylvania. (Doc. 2, at 1). Respondents Warden Eric Tice, the Attorney General of the State of Pennsylvania (hereinafter collectively known as “Respondents”), and Monroe County District Attorney's Office responded to the Petition on June 25, 2021. (Doc. 26). Accordingly, Davis's Petition is ripe for review and disposition. For the following reasons, Wesling's Petition shall be denied and DISMISSED WITH PREJUDICE. (Doc. 22).

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I. Background and Procedural History

On March 28, 2014, Wesling was sentenced in the Monroe County Court of Common Pleas, Pennsylvania, to 180 to 360 months of incarceration and to undergo a sexual offender evaluation, comply with all treatment recommendations, and pay costs for rape, attempted rape, aggravated indecent assault, sexual assault, statutory sexual assault, indecent assault, and unlawful contact with a minor. Commonwealth v. Wesling, Docket No. CP-43-CR-0001697-2012 (Monroe County C.C.P.). Wesling is currently serving his sentence at SCI-Somerset. (Doc. 2, at 1). Wesling initiated the present action by filing his original Petition and a Motion for Stay and Abeyance on November 26, 2018 in the United States District Court for the Western District of Pennsylvania. (Doc. 2). On December 20, 2018, the United States District Court for the Western District of Pennsylvania transferred this case to the United States District Court for the Middle District of Pennsylvania. (Doc. 6). On March 11, 2020, the Court ordered Wesling to show cause as to why a stay and abeyance should be granted and why any procedurally defaulted claims should be excused. (Doc. 10, at 6). On August 17, 2020, the Court granted Wesling's motion for a stay on condition that he inform the Court within 30 days of the disposition of his second PCRA petition and granted his motion to proceed in forma pauperis. (Doc. 16); (Doc. 15 at 29-30). On September 24, 2020, Wesling filed a Motion to Amend/Correct his original petition. (Doc. 20). The Court granted Wesling's Motion to Amend/Correct on November 3, 2020, and Wesling filed an Amended Petition on November 30, 2020. (Doc. 21); (Doc. 22). On March 16, 2021, the Court the Clerk to serve a copy of the Petition on Respondents. (Doc. 23). On June 25, 2021, Respondents filed their response to Wesling's Petition. (Doc. 26). On July 9, 2021, Wesling filed a motion to grant writ unconditionally due to non-compliance by respondent which the Court denied

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on October 5, 2021. (Doc. 27; Doc. 28).

On April 13, 2022, the Court ordered that Wesling show cause as to why the Petition should not be dismissed without prejudice and noted that, in its current form, the Petition was considered a “mixed” petition. (Doc. 29, at 10-11). On May 2, 2022, Wesling elected to remove his fifth claim so that the Court may proceed on the current Petition. (Doc. 30, at 1).

In his Petition, Wesling alleges that (1) he was convicted upon insufficient evidence; (2) his pre-trial counsel was ineffective for failing to file any pre-trial motions and failing to communicate with his subsequent counsel; (3) the trial court violated his Constitutional rights under the Sixth Amendment by denying his motion for a bill of particulars and (4) by allowing his alleged deficient indictment to proceed to trial and; (5) the Commonwealth of Pennsylvania violated the due process clause of the Fifth Amendment by failing to conduct a fair trial including freedom from prosecutorial misconduct. (Doc. 22, at 16). Respondents argue that Wesling's sufficiency of the evidence claim fails because the testimony from the witness is sufficient to convict Wesling due to the nature of the case and that Wesling conceded to the filing of supplemental pretrial motions and thus there was no prejudice of reasonable probability that the outcome of the proceedings would have been different . (Doc. 26, at 1). Respondents also contend that Wesling failed to raise his Constitutional claims through state court remedies and has thus failed to exhaust his state court remedies. (Doc. 26, at 1-2). Finally, Respondents urge the Court to deny Wesling's Habeas Petition because it “contains previously litigated as well as unexhausted claims” and such “mixed petitions” are precluded from review by the district court. (Doc. 26, at 2); see alsoRose v. Lundy, 455 U.S. 509, 522 (1982).

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I. Habeas Claims Presented

Wesling presents the following grounds for relief in his federal habeas Petition:

1) The evidence does not sufficiently support his conviction;

2) His pre-trial counsel was ineffective in failing to file any pre-trial motions and for failing to communicate with Wesling's subsequently appointed counsel;

3) The trial court violated his Sixth Amendment rights in denying him the opportunity to file a motion for a bill of particulars;

4) The trial court violated his Sixth Amendment rights by permitting his alleged deficient indictment to proceed to trial; and

II. Legal Standard

Wesling brings his Petition pursuant to 28 U.S.C. § 2254, which permits federal courts to issue habeas corpus relief for persons in state custody. While a prisoner may properly challenge the “fact or duration” of his confinement through a § 2254 petition, the statute sets “several limits on the power of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see also Preiser v. Rodriguez, 411 U.S. 475 498-99 (1973). Further, “it 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 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a perceived error of state law.”); Engle v. Isaac, 456 U.S. 107, 120 n.19 (1982) (“If a state prisoner alleges no deprivation of a federal right, § 2254 is simply inapplicable.”). Rather, federal habeas review is limited 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. As such, a writ of habeas corpus is an “ ‘extraordinary remedy' reserved for defendants who were ‘grievously wronged' by the

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criminal proceedings.” See Dunn v. Colleran, 247 F.3d 450, 468 (3d Cir. 2001) (quoting Calderon v. Coleman, 525 U.S. 141, 146 (1998)).

The statutory text of § 2254 additionally requires that federal courts give the appropriate deference to the legal rulings and factual findings of state courts made during criminal proceedings, and provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that 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) resulted in a decision that 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).

Thus, given these deferential standards of review, federal courts frequently decline invitations by habeas petitioners to disturb the considered views of state courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).

With respect to § 2254(d)(1), the Supreme Court defines “clearly established federal law” as “holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). Further, to warrant relief under § 2254(d)(1), a state court's “unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.” White v. Woodall, 134 S.Ct. 1697, 1702 (2014). Regarding 28 U.S.C. § 2254(d)(2), “a determination of a factual issue made by a State court shall be presumed to be correct” unless a petitioner

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can show, by clear and convincing evidence, that the finding was erroneous. 28 U.S.C. § 2254(e)(1); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Moreover, habeas relief will not be granted pursuant to § 2254(d)(2) if a reasonable basis existed for the state court to make its factual finding. See Burt v. Titlow, 571 U.S. 12, 18 (2013). In the instant petition, Wesling challenges his October 2013 conviction based on the sufficiency of...