                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                                   NOT PRECEDENTIAL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



                                              3
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



                                             5
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



                                              6
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



                                              7
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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