Lusick v. Palakovich , 270 F. App'x 108 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-19-2008
Lusick v. Palakovich
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3408
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-3408 / 05-4203
DAVID LUSICK,
Appellant
v.
JOHN PALAKOVICH, WARDEN;
THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 04-cv-01322)
District Judge: Honorable Berle M. Schiller
Argued February 5, 2008
Before: MCKEE and AMBRO, Circuit Judges,
and IRENAS,* District Judge
(filed: March 19, 2008)
*
Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
Clayton A. Sweeney, Jr., Esquire (Argued)
P.O. Box 55441
Philadelphia, PA 19127-0000
Counsel for Appellant
Robert M. Falin (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney, Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynn Abraham
District Attorney
J. Hunter Bennett, Esquire
3 South Penn Square
Philadelphia, PA 19107-3499
Counsel for Appellees
OPINION
AMBRO, Circuit Judge
David Lusick filed a petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Pennsylvania. There the Magistrate Judge issued
a Report and Recommendation stating that Lusick’s petition should be denied. The
District Court approved, adopted the Report and Recommendation, and denied the
petition with prejudice.
Lusick requested a certificate of appealability from our Court pursuant to 28
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U.S.C. § 2253(c)(1). We granted that request for the following three issues: whether trial
counsel was ineffective for failing adequately to impeach the victims’ testimony with
their prior inconsistent statements; whether trial counsel was ineffective for failing to
object to hearsay testimony from witnesses Officer Joseph Szott and Rosemary
Rodriguez; and whether appellate counsel was ineffective for failing to pursue both
issues. For the following reasons, we affirm the District Court’s denial of Lusick’s
petition.
I. Background
Because we write primarily for the parties, we briefly recite the facts underlying
this appeal. In 1994 Lusick and G.K., the mother of the victims, were tried together for
sexually assaulting two minors, five-year-old H.K. and her six-year-old sister S.K. The
jury found that Lusick committed assaults on both victims, and convicted him on two
counts of involuntary deviate sexual intercourse, two counts of indecent assault, two
counts of corrupting the morals of a minor, and criminal conspiracy. Lusick was
sentenced to an aggregate term of 12 to 35 years’ imprisonment.
After the assault, a neighbor, Ms. Rodriguez, saw H.K., and moments later S.K.,
wandering down the street. After questioning the victims and speaking with a relative
employed by the Philadelphia Department of Human Services, Rodriguez called the
police. Officer Szott was the first officer to arrive at Rodriguez’s house. The police
interviewed all parties on location, arrested Lusick and G.K., and took Rodriguez and the
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victims to the police station. An Officer Ratka (whose first name is not in the record)
interviewed both victims and Rodriguez individually, recording the interviews in a formal
police report. Also on the day of the assault, the victims underwent a medical evaluation
at the Children’s Hospital of Pennsylvania. The results of the evaluation were normal,
although evidence was presented at trial that they were consistent with the type of assault
reported. Because the medical evaluation did not indicate any trauma, the victims’
testimony constituted the primary evidence of Lusick’s guilt.
Lusick argues that his trial counsel was ineffective for failing to impeach H.K. at
trial with her prior inconsistent statements in Officer Ratka’s report and for failing to
object to alleged hearsay testimony of Officer Szott and Rodriguez. Lusick also argues
that his appellate counsel was ineffective for failing to raise these issues on appeal.
Following his conviction, Lusick appealed his sentence to the Pennsylvania
Superior Court, which denied his appeal and affirmed the sentence. Commonwealth v.
Lusick, 679 A.2d 848 (Pa. Super. Ct. 1996). Lusick attempted to appeal further to the
Pennsylvania Supreme Court, but was denied allocatur. Commonwealth v. Lusick, 685
A.2d 544 (Pa. 1996). Lusick then filed a pro se application for relief under
Pennsylvania’s Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541, et seq.
Counsel was appointed, and after three days of oral argument, the PCRA Court dismissed
Lusick’s petition for relief. On appeal, the Superior Court affirmed the PCRA Court.
Commonwealth v. Lusick, 832 A.2d 539 (Pa. Super. Ct. 2003). Once again the
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Pennsylvania Supreme Court denied allocatur. Commonwealth v. Lusick, 841 A.2d 530
(Pa. 2003).
II. Jurisdiction and Standard of Review
We have appellate jurisdiction under 28 U.S.C. § 2253. Because the District Court
denied Lusick’s habeas petition based solely on the state court record, our review is
plenary. Marshall v. Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). The standard of review
of the state courts’ decisions are governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). In pertinent part, the AEDPA states that
[a]n 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).
Here, the PCRA Court and the Superior Court considered the merits of the
ineffectiveness of counsel claims under the applicable federal standards. Accordingly, we
review Lusick’s claims under the deferential AEDPA standard of review.
III. Analysis
For a decision to be contrary to Supreme Court precedent, a state court must have
reached a “conclusion opposite to that reached by the [Supreme] Court on a question of
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law or if the state court decides a case differently than the [Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). An
unreasonable application of precedent occurs where “the state court identifies the correct
governing legal principle from the [Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner's case.” Id. The state court’s decision must not
merely be incorrect or erroneous, but “objectively unreasonable.” Rompilla v. Beard, 545
U.S. 374, 380 (2005).
The standard used to assess whether trial counsel was constitutionally defective is
stated in Strickland v. Washington, 466 U.S. 668 (1984). Claims of ineffective assistance
of appellate counsel are also governed by the Strickland standard. United States v.
Mannino, 212 F.3d 835, 840 (3d Cir. 2000). In order to claim ineffective assistance of
counsel, Lusick must show that his “counsel’s performance was deficient” and that “the
deficient performance prejudiced [his] defense.” Strickland, 466 U.S. at 687. Here, the
Pennsylvania courts properly analyzed whether Lusick’s trial and appellate counsels’
performances were deficient and if any such deficiencies were prejudicial, answering no
for both issues for both counsel.
The Pennsylvania courts held that Lusick’s trial counsel was not deficient for
failing to impeach the victims with Officer Ratka’s report because tactically trial counsel
did not want to harass the children before the jury. Furthermore, the jury already knew of
inconsistencies in the victims’ mutually corroborating story, so failing to impeach them
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did not prejudice Lusick’s defense. With respect to the argument that Lusick’s trial
counsel was ineffective for failing to object to alleged hearsay testimony by Officer Szott
and Rodriguez, the Pennsylvania courts held that under state law the testimony was
admissible, and Lusick’s counsel was not ineffective for failing to object to admissible
evidence. Finally, the Pennsylvania courts held that Lusick’s appellate counsel was not
ineffective for failing to raise ultimately unsuccessful claims.
“Judicial scrutiny of counsel’s performance must be highly deferential . . . [and] a
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. We cannot fault Lusick’s trial
counsel for failing to impeach H.K. with Officer Ratka’s report when the jury was already
aware of inconsistencies in H.K.’s testimony. It was neither deficient nor prejudicial for
his trial counsel to try to avoid appearing to bully her. With respect to the alleged hearsay
testimony, on habeas review we will not “reexamine state-court determinations on state-
law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). Despite aggressive
assertions to the contrary, Lusick has failed to show that the decisions of the Pennsylvania
courts were “objectively unreasonable.” Rompilla, 545 U.S. at 380.
After oral argument, Lusick submitted a letter pursuant to Federal Rule of
Appellate Procedure 28(j), requesting that we expand the certificate of appealability and
consider the uncertified issue of whether his trial counsel was ineffective for failing to
attack the competency of H.K. and S.K. The Pennsylvania courts and the District Court
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reasonably addressed this issue when it was before them. Moreover, we typically do not
consider uncertified issues unless the petitioner first seeks, and we grant, certification on
additional issues. Third Circuit LAR 22.1(b).
In this context, we affirm.
By the Court,
/s/ Thomas L. Ambro, Circuit Judge
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