IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE GARAY : CIVIL ACTION

 : 

 v. :

 :

GEORGE PATRICK, et al. : NO. 05-CV-5669

MEMORANDUM AND ORDER

Ditter, J. February 5, 2010

This case comes before me on a habeas corpus petitioner’s objections to the proposed

findings, recommendations, and report of the magistrate judge. Concluding that those proposed

findings are amply supported by the record and that the learned magistrate judge carefully and

accurately applied the law, I will adopt and approve his report and recommendations, overrule

the petitioner’s objections, and deny his petition. FACTUAL AND PROCEDURAL

BACKGROUND

On March 20, 2003, the petitioner, Jose Garay, was convicted of possession of a

controlled substance and possession with intent to deliver a controlled substance following a

non-jury trial in the Court of Common Pleas of Philadelphia County. The trial consisted of the

testimony of the arresting officer and the testimony of Garay. The arresting officer testified that

he had observed a drug transaction on a known drug street corner between Garay and two other

individuals. The officer testified further that Garay was the individual who sold the drugs and 

when the officer approached, the buyers dropped ten packets of heroine (valued at $100) that

were recovered at the scene. Garay was arrested with $100 in his possession. Garay testified that

he was not a drug dealer but merely an addict purchasing heroine for his personal use. 
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 Trial counsel sought to cast doubt on the testimony of the arresting officer by

challenging his testimony in two ways: 1) the frequency of police officer testimony that drugs are

dropped at the time of arrest; and 2) potential bias of the officer due to overtime income earned

for testifying at trial. On cross-examination, the officer testified that this arrest took place in a

high drug area, and that he had made approximately 150 arrests in a one block radius of the

location of thiis arrest in the previous four and one-half years. He testified further that those

arrests resulted in overtime pay for appearing in court at trial and acknowledged that he made out

well financially because of the overtime. Trial counsel sought to elicit testimony about the

specific amount of overtime pay received by the officer to establish bias but the trial court did not

permit further cross-examination this issue. 

On July 21, 2003, the trial court found Garay guilty and sentenced him to 21 to 42

months’ imprisonment. Garay filed a timely direct appeal to the Superior Court of Pennsylvania. 

On appeal, Garay argued that his federal and state constitutional rights to confrontation, due

process, effective assistance of counsel and to present a defense were denied by the trial court’s

limitation on the cross-examination of the arresting officer. The Superior Court affirmed the

judgment of sentence on October 27, 2004, concluding that the admission of evidence, including

the scope and manner of cross-examination, was within the sound discretion of the trial court and

would be reversed only upon a showing that the trial court clearly abused its discretion. The

Superior Court found no abuse of discretion where the essential fact upon which Garay based his

claim of bias - the officer’s overtime pay resulting from coming to court - was placed on the

record. See Commonwealth v. Garay, No. 2392 EDA 2003 (Pa. Super. Oct. 27, 2004) slip. op. at

5-7. Garay did not seek allocatur or collateral review in the state court.
 This case was transferred to my docket on April 28, 2009. 1

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On October 26, 2005, Garay filed this counseled application for federal habeas corpus

relief. After considering the Commonwealth’s response, Magistrate Judge Arnold Rapoport filed

a report and recommendation denying relief. Judge Rapoport concluded that the state court had

decided the federal constitutional claim, its decision was entitled to deference, and that Garay had

failed to identify Supreme Court precedent that would require a different result. The same day

the report and recommendation was filed, Garay filed a reply to the Commonwealth’ arguments. 

The reply was not addressed by the Magistrate Judge. These objections followed. 

1

DISCUSSION

At issue, is Garay’s claim that neither the state courts, nor the Magistrate Judge ever 

considered his claim under federal constitutional law, instead rejecting the claim on state

evidentiary grounds. As a result, he contends that this court is required to conduct a de novo

review without deference to the state court decision. Further, he contends that even if the state

court decision had addressed his federal constitutional argument, the decision is an unreasonable

application of established United States Supreme Court precedent. I disagree.

Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2241, et seq., federal habeas corpus relief cannot be granted on a claim that was

“adjudicated on the merits” in state court unless the adjudication “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 “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). A claim has been adjudicated on the merits “when the state court has made a
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decision that finally resolves the claim based on its substance, not on a procedural, or other,

ground.” Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009). If the state court did not reach the

merits of the claim, this deferential standard does not apply and the habeas court must conduct a

de novo review. Id. The habeas court must afford the factual findings of the state trial and

appellate courts a presumption of correctness unless rebutted by clear and convincing evidence. 

28 U.S.C. § 2254(e)(1). 

It is uncontested that Garay raised his claim that cross-examination was improperly

limited as a federal constitutional claim in the state courts. Without any discussion of the merits

of Garay’s constitutional challenge or reference to federal law, the Superior Court considered

Garay’s claim and determined that the trial court acted within its discretion. Garay contends this

evidences the state court’s failure to consider his federal constitutional challenge. 

On the contrary, as suggested by the Commonwealth, the Superior Court’s determination

that the trial court did not err should be treated as a sub silentio rejection of the federal law

claims and the AEDPA’s deferential standard applies. See Thomas v. Carroll, 581 F.3d 118, 124

(3d Cir. 2009) (quoting Early v. Packer, 537 U.S. 3, 8 (2002) (AEDPA deference “does not

require citation of [Supreme Court] cases - indeed, it does not even require awareness of [such]

cases, so long as neither the reasoning nor result of the state court decision contradicts them.”))

Where the issue is plainly before the Superior Court, and the state court decision is consistent

with applicable Supreme Court precedent, the decision is entitled to deference and de novo

review is prohibited. Id. Thus, Garay is entitled to federal habeas relief only if the Superior

Court’s determination was contrary to, or an unreasonable application of, clearly established

Supreme Court precedent. 28 U.S.C. § 2254(d). 
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Garay does not contend that the issue of bias or motivation of the police officer was not

before the trial court, but that the trial court was required to permit further cross-examination to

elicit the amount of overtime earned by the officer. In other words, he wanted to “develop[]

‘how well’ the officer made out with overtime.” Pet. Obj. 12. Garay has not provided any

Supreme Court precedent that addresses this precise issue nor have I found any such precedent,

therefore, I must conclude that the Superior Court’s determination that the trial judge did not

abuse its discretion by limiting cross-examination was not “contrary to” Supreme Court

precedent. Thomas, 581 F.3d at 124.

Next, I consider whether the Superior Court's decision was an “unreasonable application

of” clearly established federal law. 

“[A]n unreasonable application of Supreme Court precedent occurs

when a state court applies the correct rule to specific facts in an

objectively unreasonable way.” Fischetti v. Johnson, 384 F.3d 140,

148 (3d Cir. 2004). Importantly, a “court that unreasonably

extends a rule in a new context or, in the alternative, unreasonably

fails to extend a rule may also be deemed to unreasonably apply the

correct rule.” Id. “In reviewing the reasonableness of the state

courts’ application of Supreme Court precedent, we must use as

our point of departure the specific holdings of the Court's

decisions.” Id. at 151.

Thomas, 581 F.3d at 124-25.

Garay cites two Supreme Court cases, Davis v. Alaska, 415 U.S. 302 (1974), and

Delaware v. Van Arsdall, 475 U.S. 673 (1986) to support his claim that the Superior Court was

unreasonable in its application of Supreme Court precedent. Davis and Van Arsdall recognize

that “the exposure of a witness’ motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316-17; Van Arsdall,

415 U.S. at 678-79. However, this general rule is qualified by recognition of the fact that “trial

judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable

limitations on [] cross-examination . . ..” Van Arsdall , 415 U.S. at 479. “The Confrontation

Clause guarantees an opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.” Id. (quoting

Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original)). 

In a non-jury trial, where the trial court permitted testimony that the police officer “made

out well” with overtime earned from court appearances, but did not allow further crossexamination as to the amount earned, the witnesses’ motivation was sufficiently exposed to

satisfy the Confrontation Clause. Thus, the Superior Court’s decision is not an unreasonable

application of federal law. 

Garay’s objections are overruled. An appropriate order follows.