Richard Ratushny v. Superintendent Huntingdon SCI ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 17-2026
__________
RICHARD ALLEN RATUSHNY,
Appellant
v.
SUPERINTENDENT HUNTINGDON SCI;
ATTORNEY GENERAL PENNSYLVANIA;
DISTRICT ATTORNEY NORTHAMPTON COUNTY
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court Civil No. 5-14-cv-01324)
District Judge: Honorable Cynthia M. Rufe
Submitted Under Third Circuit L.A.R. 34.1(a)
May 25, 2018
BEFORE: MCKEE, SHWARTZ, and NYGAARD, Circuit Judges
(Filed June 26, 2018)
__________
OPINION*
__________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.
I.
Before proceeding to the merits of this habeas appeal, we first must determine the
scope of the District Court’s certificate of appealability (COA).1 Petitioner Richard
Ratushny argues for an expansive reading of the certificate to encompass all of the issues
he now raises on appeal. The Commonwealth, on the other hand, argues that the District
Court limited its grant to a single issue: the Petitioner’s Brady claim.2 We may not
consider issues on appeal that are not within the scope of the COA.3 However, we may,
in our discretion, expand the scope of the certificate beyond that announced by the
District Court.4
The District Court’s order denying habeas relief contains a general statement that
“the Court issues a certificate of appealability.” The Petitioner points to this sentence as
evidence that the COA is expansive, encompassing all the claims he raised in the District
1
See 28 U.S.C. § 2253(c)(2). We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We will dispense with the usual recitation of the factual background and
procedural history of this matter, as both are well-known to the parties and
comprehensively set forth in the District Court’s memorandum and the U.S. Magistrate
Judge’s Report and Recommendation. For this same reason, we will also dispense with
citations to the record. We need only relate that a Pennsylvania jury convicted the
Petitioner of aggravated indecent assault, indecent assault, endangering the welfare of
children, corruption of minors, and unlawful contact with a minor, crimes which
stemmed from his sexual abuse of his girlfriend’s daughters. He was sentenced to six to
nineteen years in prison.
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
28 U.S.C. § 2253(c)(3); Third Circuit Local Appellate Rule 22.1(b); Miller v.
Dragovich, 311 F.3d 574, 577 (3d Cir. 2002).
4
See 3d Cir. LAR 22.1(b).
2
Court. But, the District Court’s memorandum opinion explains otherwise. The Petitioner
raised these habeas claims in the District Court: an ineffective assistance of counsel claim
arising from trial counsel’s alleged conflict of interest, an ineffective assistance of
counsel claim stemming from trial counsel’s failure to uncover a prior criminal
conviction of his victim’s mother, and a Brady violation claim. Ratushny’s petition was
referred to a U.S. Magistrate Judge, who recommended that relief be denied on all claims.
We read the COA as limited solely to the Brady violation. The structure of the
District Court’s opinion adopting the Magistrate Judge’s Report and Recommendation is
obvious, using Roman numerals and capital letters to demarcate its discussion and
analysis. Relevant here, the District Court’s opinion deals with the Petitioner’s claims in
separate, delineated sections: Part III, section “A.” dealt with the Petitioner’s
ineffectiveness claims while Part III, section “B.” dealt with the purported Brady
violations. In Section A., the District Court specifically held that Ratushny was “not
entitled to relief” on the ineffectiveness claims.5 Compare this with section B, wherein
the District Court specifically noted that “although the Court will deny relief, a certificate
of appealability will issue.” Because the sections of the District Court’s opinion are
clearly delineated with headings and subheadings, and because its grant of a COA is
5
The Magistrate Judge’s Report and Recommendation rolled both ineffective assistance
of counsel claims into one discussion and analysis. The District Court did not identify
the ineffectiveness claim focusing on the victim’s mother’s prior conviction for specific
discussion, adopting the Magistrate Judge’s recommendation without analysis. No COA
was, therefore, given by the District Court on this claim, and despite the District Court’s
lack of specific discussion of this issue, the Petitioner has not sought one on appeal.
3
found only in Part III, Section B., it is just as clearly limited to the Brady claim. We,
therefore, lack jurisdiction to review the ineffective assistance of counsel claim.6
II.
We turn now to the claim on which the Petitioner was granted a COA, the alleged
Brady violation.7 Brady teaches that a state bears an “affirmative duty to disclose
[material] evidence favorable to a defendant.”8 “Material” evidence is that in which there
is “a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”9 The Supreme Court clarified that
“[t]here are three components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is impeaching; that
6
While we have the authority to expand the scope of the certificate of appealability sua
sponte, we decline to do so here because reasonable jurists could not debate the District
Court's conclusion that state court’s application of the Strickland standard was
unreasonable. See Strickland v. Washington, 466 U.S. 668, 694 (1984); 28 U.S.C.
§2254(d)(1). The state court held a post-conviction relief hearing and determined that
counsel had not violated the Commonwealth’s conflict of interest prescriptions. Further,
the state court concluded that Ratushny’s interests did not diverge from those of the
subject of the conflict of interest, a witness. The Pennsylvania Superior Court affirmed
with a comprehensive discussion of this issue, holding that the situation was not likely to
be a conflict of interest. Given the wide deference afforded to the state court’s
determinations, we agree with the District Court that Ratushny should not be accorded
relief on this claim and that reasonable jurists would not disagree.
7
The Petitioner raises the second claim of ineffective assistance of counsel on appeal, but
given our holding that the District Court’s COA is limited to the Brady violation, we lack
jurisdiction to review this claim as well and decline to use our discretionary authority to
review it.
8
Kyles v. Whitley, 514 U.S. 419, 432 (1995) (citing Brady, 373 U.S. 83).
9
United States v. Bagley, 473 U.S. 667, 682 (1985).
4
evidence must have been suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.”10
The Petitioner asserts the Commonwealth violated Brady by failing to divulge the
fact that the victim’s mother—his former girlfriend and a witness for the prosecution—
had a fraud conviction on her resume that could have been used for impeachment
purposes. The Pennsylvania PCRA court determined that while this evidence fell under
Brady’s purview, there was no violation because there was no support on the record for a
finding that the Commonwealth “possessed or controlled that information” and then
either intentionally or inadvertently failed to disclose it to the defense. The state court
based its conclusion on the fact that public record of the conviction was available to the
defense and because there was no evidence that the prosecution had a record of this
conviction and withheld it from the defense. We agree with the District Court that the
criminal record was suppressed under Brady, as we have specifically explained.11 The
state courts reliance on the fact that the criminal records were publicly accessible is of no
moment since public availability does not absolve a prosecutor from the responsibility to
provide such records to the defense.12 Nor is the prosecution relieved of its
responsibilities under Brady where defense counsel fails to ask for such records. A
10
Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
11
See Wilson v. Beard, 589 F.3d 651, 663 (3d Cir. 2009) (citing United States v.
Perdomo, 929 F.2d 967, 973 (3d Cir. 1991)).
12
Id. at 663-664.
5
prosecutor’s duties are clear under Brady and an analysis of whether defense counsel
could have or should have discovered the records is “beside the point.”13
But, the fact Brady material was suppressed does not necessarily mean the state
court unreasonably applied federal law. To reiterate, the failure to disclose Brady
evidence only mandates a new trial if such evidence is “material,” that is, if there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.”14 Here, the state courts made the
determination that the reliability and credibility of the victim’s mother were not “critical
or essential” to the conviction. Several other witnesses, including another sister of the
victim, testified to the fact that she had misrepresented herself on numerous occasions.
Furthermore, various friends had testified that the victim confided in them about the
abuse. Based on this, the state court determined that the Brady material was not
favorable enough to overcome other evidence and affect the verdict, and, therefore, “did
not undermine the fairness of the proceeding.” This conclusion is consistent with our
standard for determining whether Brady evidence was material. Hence, we agree with
the District Court that the state courts did not unreasonably apply federal law in
concluding that the Brady evidence was not material, especially given the corroborating
testimony of the victim and others. The victim’s mother was thoroughly cross-examined,
during which Petitioner’s counsel elicited from her information about her long history of
drug use (including her use of illegal drugs with her minor daughter), her difficult
13
Dennis v. Sec’y, Pa. Dept. Corrections, 834 F.3d 263, 291 (3d Cir. 2016).
14
Bagley, 473 U.S. at 682.
6
relationship with her daughter, and her belief that she was competing with her daughter
for Petitioner’s attention and affections. Cross-examination also revealed her two-year
delay in reporting the sexual abuse, as well as her prior threats to report the Petitioner to
the police, and her repeated threats to report him to the authorities in order to exact some
revenge on him for leaving her. Defense counsel’s closing argument specifically focused
on the victim’s mother’s lack of credibility and veracity.
Given this, the fact that the victim’s mother had been convicted of a fraud offense
was not significant. We have stated that “[t]he materiality of Brady material depends
almost entirely on the value of the evidence relative to the other evidence mustered by the
state.”15 The Brady evidence that she had been convicted of fraud does nothing to “put
the whole case in a different light as to undermine [] confidence in the verdict.” 16
Therefore, this Brady evidence was not material, and, for the foregoing reasons,
we will affirm.
15
Johnson v. Folino, 705 F.3d 117, 129 (3d Cir. 2013) (citing Rocha v. Thaler, 619 F.3d
387, 396 (5th Cir. 2010)).
16
Hollman v. Wilson, 158 F.3d 177, 182 (3d Cir. 1998).
7