UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

EDWARD H. SATERSTAD, : CIVIL NO: 4:13-CV-00847

 :

Petitioner, : (Judge Brann) 

 :

v. : (Magistrate Judge Schwab)

 :

TREVOR WINGARD, : 

 :

Respondent :

 

REPORT AND RECOMMENDATION

I. Introduction.

In 2003, the petitioner, Edward H. Saterstad, was convicted in the Court of 

Common Pleas of Dauphin County of attempted luring of a child into a motor 

vehicle, attempted kidnapping, and stalking. He was sentenced to an aggregate 

term of two to ten years in prison. In this habeas corpus case, Saterstad claims that 

his counsel provided ineffective assistance of counsel during his state criminal 

trial. He also claims that there was not sufficient evidence to convict him. For the 

reasons discussed below, we recommend that the petition for a writ of habeas 

corpus be denied. 

 

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II. Background and Procedural History.

A. The Trial.

Because we address some of Saterstad’s claims on the merits, including 

sufficiency-of-the-evidence and ineffective-assistance-of-counsel claims, we take 

the time at the outset to summarize the trial testimony in some detail. Although the 

events underlying the charges occurred in February of 2001, Saterstad was not 

tried until September of 2003. At trial, Saterstad was represented by Joshua Lock, 

Esquire. The Honorable Richard A. Lewis presided over the jury trial.

1. The Prosection’s Case-In-Chief.

Four witnesses testified during the prosecution’s case-in-chief. First, S.C.,

1

who was thirteen years old at the time of trial, testified that she lived with her 

grandmother on 6th and Maclay Streets in Harrisburg. Doc. 23-3 at 18. She 

testified that on February 1, 2001, when she was ten, nearly eleven, years old, she 

spoke to the police because a man was following her around. Id. at 19. She 

testified that the first time that she saw the man was when she was walking to the 

corner store to get a stamp for her grandmother and he pulled up beside her in his 

car and asked her where a certain street was. Id. at 19 & 33. According to S.C., 

 

1 At the time of trial in 2003, S.C. was a minor. Although she is no longer a minor 

and the record contains her full name, the parties in their briefs continue to refer to 

her by her initials, and we will do the same. 

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after she said that she did not know, the man said he would give her $200 if she 

would go across the river with him for 30 minutes to fool around. Id. at 20. S.C. 

ran to the store. Id. She testified that she then returned to her grandmother’s house, 

but did not tell her grandmother what had happened. Id.

S.C. testified that later that same day she went back outside, and she saw the

man again driving around in the parking lot of her apartment complex. Id. at 20-21. 

He did not say anything to her. Id. at 21-22. He was driving a gray Metro, the 

same car that he had been driving when he approached her earlier. Id. at 21. S.C.

described the man as white, with gray and black hair, and wearing round glasses 

with black frames. Id. 

S.C. testified that she saw the man again the next day when she was with her 

friend A.M.2Id. at 22. At that time, she and A.M. were walking to the Chinese 

restaurant near her home when they saw the man standing on the corner. Id. 

According to S.C., when the man saw them, he said wait a minute and ran toward 

his car, which was at the gas station. Id. S.C. and A.M. then ran to A.M.’s 

apartment building. Id. at 23. Later that same day, when S.C., her cousin, and 

A.M., were outside playing, the man was driving around the apartment complex 

parking lot again—in the same gray Metro. Id. at 23. 

 

2 As A.M. was also a minor at the time of trial, we will also use her initials, instead 

of her full name.

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S.C. testified that she saw the man again the following day in the gray car 

driving past her bus stop. Id. at 24. Later that day, she saw him again driving

around her house. Id. According to S.C., she was scared that he was going to get 

her, and so she told her grandmother. Id. at 25. S.C. testified that her grandmother 

called the police and then she and her grandmother went to look for the man. Id. at

25. He was in the plaza near the Chinese restaurant in the gray Metro. Id. at 26. 

S.C. testified that when her grandmother approached the man, he rolled up his 

window and sped off. Id. But her grandmother got his license plate number. Id. 

S.C. and her grandmother then went back to the house, and the police came. Id. 

S.C. testified that she spoke to a police officer that night, that she spoke with 

Investigator Shoeman about a week later at her house, and that later she went up to 

a taxi cab that Investigator Shoeman was in and told Shoeman that she had again 

seen the man driving around her house. Id. at 26-28. S.C. also testified that 

investigator Shoeman showed her some photos and she picked out the photo of the 

man that was following her around. Id. at 28. At trial, S.C. identified a photo of 

the gray car that the man had been driving as well as a photo of a red van that S.C. 

testified she had also seen the man driving. Id. at 32-33. When asked in court if 

she saw the man who had followed her around and had offered her $200 to go 

across the river and fool around, she pointed to Saterstad. Id. at 34.

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On cross-examination, S.C. testified that when she talked to the police on 

February 1, 2001, she truthfully told them everything she knew about the incident 

and that she told them about events that had happened that day. Id. at 35. 

According to S.C.’s testimony on cross-examination, she did not tell her 

grandmother on the day that the man approached her, but she told her grandmother 

on the second day—February 2, 2001. Id. at 37. S.C. testified that when she told 

her grandmother, she told her that some man was following her around and she 

told her what the man had said. Id. at 41-42. She further testified that she reported 

this to her grandmother on the day that the police came to her house, and she 

believed that to be the day after the man spoke to her. Id. Although the plaza near

S.C.’s home, which is where the Chinese restaurant was located, also contained a 

Harrisburg Police Department substation, S.C. did not go to the police station in 

the plaza when the man approached her or when she saw him driving around. Id. at

38.

S.C. testified that A.M. was not with her when the man approached her and 

that she did not tell the police that A.M. was with her. Id. at 35-36. S.C. also 

denied telling A.M. in December of 2000 that a man driving a gray car had 

approached her and offered her $200 to go across the river and fool around. Id. at

38-39.

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S.C. testified that she told the police that the man was wearing all black—

black boots, black jeans, a black leather jacket, and black-framed glasses. Id. at 39. 

When asked how she saw his boots, S.C. testified that she saw them when he was 

standing out of his car by the Chinese restaurant. Id. at 39-40. She testified that 

she gave the description of the man to the police on the day that the police came to 

her home and that when she talked to the police she described for them what had 

occurred the day before when the man approached her in the car, but she did not 

see his boots then. Id. at 40. She then testified that when she spoke to the police

for the first time, she also described for them another incident when the man was 

standing outside of his car. Id. at 41.

S.C. testified that she also saw the man when she was walking to the bus 

stop with A.M. and other kids, but, when she got on the school bus, she did not tell 

the school bus driver or her friends. Id. at 42-43. She also testified that she told her 

grandmother she saw the man driving past the bus stop, and that was the second 

time she told her grandmother about the man. Id. at 43.

S.C. responded affirmatively to defense counsel’s question about whether 

the events occurred on three successive days. Id. at 44. She also testified that when 

the man approached her and talked to her it was at night, but she could not 

remember telling anyone that it was either 4:00 p.m. or 5:30 p.m. Id. at 44-45. She 

further testified that she saw the red van driving past her house at about 4:00 p.m. 

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later in the same day that she had seen the man drive past her bus stop, which she 

agreed was the third day. Id. at 45. She said she saw the red van in the morning 

and then in the afternoon. Id. at 46. 

When asked if she had a good recollection of what happened, S.C. said 

“yes,” but after defense counsel noted that she hestitated a bit, Judge Lewis asked 

her if she had a good memory of what happened in February of 2001 and she said 

that that she remembers “some stuff.” Id. at 47. She also then responded in the 

negative to defense counsel’s question about whether there was anything that she 

testified to that she doesn’t have a clear memory of or that may be incorrect. Id. 

S.C. also testified that she remembered testifying at a preliminary hearing, 

and when shown the transcript from the preliminary hearing, she testified that at 

the preliminary hearing she was asked if she saw the car and the red van on the 

same day and that she had answered that she had not. Id. at 47-50.

The second witness to testify was S.C.’s friend, A.M., who at the time of 

trial was also 13 years old. Doc. 23-3 at 51. A.M. testified that in February of 

2001, she was riding her bike and saw someone in a gray Metro driving through 

the parking lot of her apartment complex, and when S.C. came out, A.M. told her 

that someone keeps driving around. Id. at 53. According to A.M., S.C. then told 

her that the man in the car had followed her when she was going to the store to get 

a stamp for her grandmother and had asked her if she wanted to go across the river 

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to make $200. Id. A.M. testified that S.C. did not tell her about the man on the day 

that the man approached her, but S.C. told her the next day. Id. at 52. A.M. 

identified a photo of a gray Metro that she saw driving around, and she described 

the person driving it as white with black-framed glasses and a black leather coat. 

Id. at 53-54.

A.M. further testified that on the same day that she saw the man driving 

through the parking lot, she saw him when she was going to the Chinese restaurant.

Id. at 54. According to A.M., he was standing, and when he saw her and S.C., he 

ran over to get his gray Metro, which was at the Exxon station. Id. A.M. testified 

that she and S.C. then ran back to the parking lot of her apartment complex and 

went into A.M.’s house. Id. at 54-55. According to A.M., when they came back 

out, they saw the man driving around the parking lot, they saw him on Peffer 

Street, and they saw him in the plaza. Id. at 55. 

A.M. testified that she was with S.C. when S.C. told her grandmother about 

the man, and she was there when the police came. Id. at 55-56. She also testified 

that she saw the man riding around in a red van. Id. at 56. More specifically, she 

said she saw him on a Saturday, two days after she spoke with the police, when she 

just happened to look out her window and saw him coming down Maclay Street in 

a red van. Id. She testified that she saw his black-framed glasses and leather coat.

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Id. When asked if she saw the man any other times, she testified that she does not 

remember much. Id. at 57.

On cross-examination, A.M. testified that on the day that she saw the red 

van, nobody was with her. Id. at 57. A.M. denied that it was around Christmas of 

2000 that S.C. told her that a man had approached her, offered her $200, and asked 

if she wanted to go across the river. Id. at 58.

A.M. further testified the she did not remember the first day that she saw the 

car driving around the neighborhood and that the only thing that she knows about 

dates and times when S.C. saw the car was what S.C. told her. Id. at 62. She also 

testified that she believed that S.C. told her about the man the second time that S.C. 

saw the car driving around and at that time, S.C. told her about what happened 

earlier when the man had spoken to her. Id. At one point, A.M. testified that she 

could not remember when that occurred. Id. Right after that, however, she testified 

that she had a specific recollection that it was February of 2001, and she knows 

that because they spoke to the police on February 1st. Id. at 63. When pressed 

about how she knows it was February 1st, A.M. gave confusing and conflicting 

answers. Id. at 63-65. She testified that she does not know how she knows, but she 

also testified that she knows it was February 1st because someone told her. Id. at

63. When asked if she was in the courtroom when S.C. testified that it was 

February 1st, she admitted that she was and that she had heard S.C. say that it was 

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February 1st. Id. at 63-64. But she testified that she did not say it was February 1st 

because S.C. said it was, and she knew it was February 1st before S.C. testified. Id. 

at 64. When pressed further, however, A.M. testified that she said it was February 

1st because she heard S.C. testify to that, but then she seemed to backtrack from 

that statement:

Q: The truth of the matter is you’re telling [us] it was 

February first because you heard your friend say it was 

February first, isn’t that right?

A: Yes.

Q: When you said that wasn’t the reason, you really 

weren’t telling us the truth, were you?

A: Yes.

Q: I beg your pardon?

A: Yes, I was telling you the truth.

Q: Well, you denied telling us because you heard your 

friend say it. You said that you remembered, you just didn’t 

know how. Now you are telling us you said it because your 

friend said it. Which is it?

A: Yes.

Q: Yes what? There is two choices, number one or 

number two?

A: Number one.

Q: What is number one?

A: I don’t remember.

Doc. 23-3 at 65. 

A.M. further testified that she saw the man standing outside his car when she 

was going to the plaza, that he was standing by the Chinese restaurant, and that 

when he saw her and S.C., he ran over to his car. Id. at 66. She testified that it was 

dark outside, but there were some street and store lights. Id. at 67. She also 

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testified that she suggested that they tell S.C.’s grandmother, but before going to 

tell S.C.’s grandmother, they went to S.C.’s cousin’s house for about five minutes.

Id. at 67-69. A.M. testified that she doesn’t remember how many times she saw 

the gray car, but it was a lot. Id. at 69. She also testified that she could not 

remember the dates that she saw the car. Id. at 70. She further testified that she 

saw the gray car, not the red van, on the way to the bus stop with S.C. Id. at 71.

Sharon Edwards, S.C.’s grandmother and legal guardian, also testified. Doc. 

23-3 at 73-74. She testified that she called the police on February 1, 2001 after 

S.C. told her that a man was following her. Id. at 74. When Edwards asked S.C. 

where the man was, S.C. said he keeps coming around the corner. Id. According to 

Edwards, she got a pencil and a pad, asked S.C. which way the man went, and after 

S.C. said he went around the corner and pointed to the plaza, she, S.C., and A.M. 

ran around the corner. Id. S.C. pointed out a car sitting in front of the Chinese 

restaurant, and Edwards approached the car and said “excuse me, sir, excuse me,” 

and “may I speak with you for minute?” Id. at 75. When the man noticed S.C., he 

turned the lights on in his car, pulled off, and sped past Edwards, S.C., and A.M.

Id. at 75. Edwards ran behind the car, and when the car had to stop at an 

intersection, she took down his license plate number. Id. The car then sped away, 

and Edward ran home and called the police. Id. 

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At trial, Edwards identified photographs of the car that she saw and from 

which she got the license plate number. Id. at 76-77. She further testified that 

Investigator Shoeman showed her a series of photographs, and she was able to pick 

out the person that she saw that night in front of the Chinese restaurant in the 

Metro. Id. at 78-79. When asked if she saw that man in court, she pointed to 

Saterstad. Id. at 79.

On cross-examination, Edwards testified that earlier in the day that S.C. told 

her that the man was following her, Edwards had sent S.C. to the store. Id. at 80. 

According to Edwards, she called the police the same day that S.C. reported the 

incident to her, and that day was February 1, 2001. Id. at 80-81. Edwards also 

testified that in addition to talking to the police on February 1, 2001, she talked to 

them on February 11, 2001, which was the day that S.C. told her that she had seen 

a red van. Id. at 81.

The final witness to testify in the prosecution’s case-in-chief, was Rodney 

Shoeman, an investigator with the Harrisburg Bureau of Police and the person who 

filed the charges against Saterstad. Doc. 23-3 at 82-83. Shoeman testified that 

after he reviewed the case and initiated a report on February 10, 2001, he contacted 

Sharon Edwards to set up an interview with her and S.C., and they came to his 

office the next day and gave statements. Id. at 90. On or about February 12, 2001, 

he and another investigator drove around the area in question looking for the 

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suspect vehicle. Id. at 83 & 90. Then, on February 13, 2001, Shoeman and the 

other investigator did some surveillance of Saterstad’s residence. Id. at 90. Later 

on the 13th, Shoeman was doing some surveillance from a taxi, when S.C. 

approached him and said that she had again seen the man in the gray car. Id. at 83-

84 & 91.

Shoeman testified that after the license plate number that Sharon Edwards 

provided came back as registered to Saterstad, he got Saterstad’s driver’s license 

photo from PennDOT. Id. at 85 & 91. He compiled a photo array by taking that 

photo to the forensics’ unit, which scanned it and provided computer-generated 

photos similar to Saterstad’s photo. Id. at 85. Shoeman then went to S.C.’s home 

on February 14, 2001, and showed her the photo array, while her grandmother was 

upstairs in a separate room. Id. at 85-86. S.C. immediately recognized Saterstad 

and said “that’s him.” Id. at 85. After she initialed and dated the photo, Shoeman 

put that photo array aside. Id. He then showed a similar photo array to S.C.’s 

grandmother, who also picked out a photo but said that when she saw the man he 

was wearing glasses. Id. at 85. Shoeman then spoke with the District Attorney’s 

Office regarding filing charges against Saterstad. Id. at 91.

Shoeman identified at trial a photograph taken on February 13, 2001, of a 

maroon Plymouth Voyager parked in front of Saterstad’s residence in Lykens and 

and a photograph taken on February 21, 2001, near Elizabethville of a gray Geo 

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Metro, showing the license plate. Id. at 87-88. Shoeman also identified a 

photograph of a jacket that Saterstad was wearing on February 21, 2001. Id. at 88. 

Based on information from the Department of Transportation, Shoeman testified 

that the Gray Geo Metro was registered to Saterstad and the van was registered to 

Mary A. Saterstad. Id. at 89.

2. The Defense Case.

After the prosecution’s case-in-chief, the defense began its case by calling

seven character witnesses. The first character witness was James Arnold 

Buffington, Jr., who knew Saterstad for at least 15 years primarily through the 

Lykens Chamber of Commerce and through contacts with the Upper Dauphin Area 

School District, and who testified that Saterstad has an excellent reputation in the 

community for being a nonviolent and peaceable person. Doc. 23-3 at 93-95. The 

second character witness was Richard Klinger, a retired physical education teacher 

and track coach with the Upper Dauphin Area School District, who testified that 

Saterstad has a reputation for being nonviolent. Id. at 97-99. The third character 

witness was Pastor Daniel Moyer Shutters, who knew Saterstad as a member of his 

congregation, and who testified that Saterstad has an excellent reputation as a 

nonviolent and peaceable person. Id. at 99-100 and Doc. 23-4 at 1. The fourth 

character witness was Colonel Joseph Gregory DePaul, a deputy chief of staff for 

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operations with the Pennsylvania National Guard, who also testified that Saterstad 

has an excellent reputation for being a nonviolent and peaceable person. Doc. 23-4

at 2-3. The fifth character witness was Donald Lee Kosier, a retired postal worker 

and retired National Guardsman, who testified that Saterstad’s reputation for being 

nonviolent and peaceable was great. Id. at 3-5. The sixth character witness was 

William White, a claims adjustor and a former member of the Pennsylvania Army 

National Guard, who testified that Saterstad’s reputation for being nonviolent and 

peaceable was among the highest. Id. at 5-7. The seventh character witness was 

George Pinchorski, retired from a cable company, who testified that Saterstad has a 

reputation for being a peaceable person. Id. at 7-9.

In addition to character witnesses, the defense presented fact witnesses, who 

testified about Saterstad’s whereabouts during certain times on February 1, 2001. 

First, Stanley Theodore Singer, the former president of the Pennsylvania Cable 

Television Association, testified that, on February 1, 2001, he and Saterstad 

attended a meeting of the Cable Television Association in Reading, Pennsylvania. 

Doc. 23-4 at 9-10. Singer testified that Saterstad left his car at Singer’s home in 

Camp Hill, that they travelled to the meeting and arrived in Reading at 

approximately 9:45 a.m., that Saterstad spoke at the meeting, and that they 

returned to Camp Hill shortly after 4:00 p.m. Id. at 10-11. Singer did not see 

Saterstad on February 1, 2001 after that. Id. at 11. Second, Charles A. Morrow, 

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who at the time was the interim executive director of the Pennsylvania Cable 

Television Association, testified that Saterstad came to the offices of the 

Pennsylvania Cable Television Association, located on State Street in Harrisburg, 

on February 1, 2001 at approximately 4:15 p.m. Doc. 23-4 at 12-14 & 16. 

According to Morrow, Saterstad, who was dressed in business attire, left the office 

at about 5:10 p.m., and Morrow did not see him again that day. Id. at 15. 

Saterstad also testified in his own defense. At the time of trial, Saterstad 

was 48 years old, married, and the father of five children. Doc. 23-4 at 17-18. He

testified that he was an active church member, a member of and the past president 

of the Chamber of Commerce, an active member of the YMCA, and active with his 

community’s high school—volunteering as an assistant track coach, serving as 

media liaison for publicity, conducting teacher workshops, and helping kids with a 

number of environmental projects. Id. at 41 & 43. 

Prior to September of 2000, Saterstad was the general manager of Century 

Communications, a cable television company that served 18 communities. Id. at 18

& 32-33. Saterstad testified that after he retired from the cable company, he was 

self-employed in two areas—real estate development and vending services. Id. at

18-19. According to Saterstad, he and his wife had renovated homes, and they 

were interested in doing so in the area in Harrisburg between the Capitol and the 

Governor’s Mansion, which he referred to as the Capitol Heights area. Id. at 19. 

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As to the vending services, he was looking for places in the same general area to 

install pay phones, and in pursuit of that venture, he conducted a site survey of the 

area. Id. at 19-20. 

Saterstad testified that after he retired, he remained active in the 

Pennsylvania Cable Television Association, and once or twice a week, he went to 

their offices, which were near Second and State Streets and eight or nine blocks 

from Maclay Street. Id. at 20-21 & 43. He testified about his regular route to and 

from Harrisburg: coming from Lykens, he generally went down 322 to Cameron 

and Maclay Streets and then, if he was heading downtown, he would take Front 

Street; and he would use the same route home coming up Front Street. Id. at 21. 

Generally, he would stop at the Sunoco station at the intersection of Second and 

Maclay Streets. Id. at 21-22. At trial, he identified copies of some Visa bills and 

some receipts showing purchases at that Sunoco station during the period of 

October of 2000 through February 1, 2001. Id. at 22-23. 

Saterstad testified that he dealt a little bit with a real estate company in 

connection with his real estate pursuits. Id. at 23. He also testified that the City of 

Harrisburg was actively promoting redevelopment in the Capitol Heights area, and 

after communicating with the City, he received a letter in December of 2000 noting 

about 40 different addresses that the City was trying to move. Id. at 24 & 26. 

Saterstad did not end up purchasing any property in the Capitol Heights area to 

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renovate, but he did purchase a property in Hershey and one in the Allison Hill 

area of Harrisburg. Id. at 25. Still, according to Saterstad, he spent a considerable 

amount of time—two to five visits a week—looking for properties in the Capitol 

Heights area. Id. at 25. More specifically, he testified that generally each time he 

went into Harrisburg, he would look around and look for opportunities. Id. at 25. 

At the same time, he was looking for places to place pay phones. Id. at 26. At trial, 

he identified a map of the area that borders Reily, Maclay, North 6th, and Third 

Streets. Id. at 127. On that map, he had marked the location of existing pay 

phones, locations for proposed pay phones, and properties he was interested in. Id.

at 26-27. This was part of the site survey he was conducting. Id. at 28. Further, 

Saterstad testified that as part of that site survey, he would sit in his car for maybe 

two hours and watch a site, watch people coming and going, and look at the level 

of foot traffic in an effort to determine locations for additional pay phones. Id. at

28-29. He would also photograph the locations. Id. at 29. 

Saterstad testified that he owns a gray Metro and that his wife owns a red 

van. Id. at 34. Although he primarily drove the Metro, he admitted that 

occasionally he would use the red van. Id. at 34. According to Saterstad, on 

February 1, 2001, he left the office of the Pennsylvania Cable Television 

Association at 5:15 p.m. and headed home using his usual route—Second Street to 

Maclay Street to Cameron Street to 322. Id. at 37. He also stopped at Chan’s 

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restaurant, which is located in a plaza on the corner of Maclay and 6th Streets Id. at

37-38. He testified that he was interested in about four locations to place phones in 

that particular area and that, in accordance with his usual practice to check on 

properties, he may have circled the block, but he could not recall whether he did 

so. Id. at 38-39. He also testified that he could not recall anything unusual 

happening on February 1, 2001 or the following day. Id. at 39. He denied ever 

stopping and attempting to lure a child into his car or ever stopping and offering a 

child $200 to accompany him across the river to fool around. Id. at 40. 

Saterstad was first contacted about the charges against him on February 21, 

2001, and he testified that had no recollection of ever seeing S.C., A.M., or Sharon 

Edwards before the criminal proceedings. Id. At trial, Saterstad identified a 

number of photographs including photos of his Geo Metro, of his wife’s minivan, 

and of a leather jacket that he was wearing on February 21, 2001, when he spoke to 

an investigator. Id. at 44. 

The defense also recalled Rodney Shoeman and asked him about his 

interview of S.C. on February 11, 2001. Doc. 23-4 at 45. More specifically, 

Shoeman was asked if during that interview, he had asked S.C. whether anyone 

was with her when she saw the red van, and Shoeman responded that he had and 

that S.C.’s answer was “no.” Id. On cross-examination, Shoeman testified that 

during the February 11, 2001 interview, S.C. indicated that the individual she saw 

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in the red van was the same individual she saw in the Gray Metro who had offered 

her $200 to go across the river and fool around. Id. at 46.

Finally, the defense called Stanley R. Gochenour, a private investigator, and 

questioned him about his interview of A.M. in November of 2001. Doc. 23-4 at 48-

49. Gochenour testified that with A.M. and her mother’s consent, he interviewed 

A.M. using conventional interview techniques. Id. at 50. He explained his practice 

with regard to such interview techniques. Id. First, he lets the person explain to 

him in his or her own words what they know about the subject matter. Id. He only 

interrupts the person when necessary to clarify the use of pronouns, for example to 

ask who the person means by “he” or “she.” Id. Second, he has the person go back 

and tell the story again, but at this point, he questions the person focusing on areas 

that he wants “to define exactly an understanding of how things happened in this 

incident that they are aware of.” Id. Third, he actually writes out each sentence of 

what the person says and makes sure that the person is comfortable with his

rendition of what the person said. Id. at 50-51. Fourth, he types up his notes into a 

report. Id. at 51. 

Gochenour testified that he used that process in interviewing A.M. and that 

at the third step of that process, he made sure that both A.M. and A.M’s mother 

were satisfied with what he understood A.M. was saying. Id. Gochenour testified 

that A.M. told him that she, in fact, had seen someone diving around the 

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21

neighborhood at 6th and Maclay Streets sometime in February of 2001 and that she 

was with S.C. at the time. Id. He further testified that A.M. said that S.C. pointed 

out the vehicle and the man in it and said that he had tried to speak with her on a 

prior occasion and had offered her money to go across the river. Id. at 52. 

According to Gochenour, A.M. said that S.C. told her that that conversation with 

the man took place in December. Id. He also testified that A.M. gave him that 

information during each of the interview segments including the third segment 

where she agreed to what he wrote down. Id. at 53. Gochenour further testified 

that A.M. told him that she saw the man driving a red van one morning when she 

was going to the bus stop and that she was with a Brenda Strawbridge at the time. 

Id. at 53-54. 

On cross-examination, Gochenour admitted that his report of his interview 

of A.M. provides that A.M. stated that S.C. did not make it clear that the offer of 

money to go across the river happened in December. Id. at 54-55. Further, he 

testified that A.M. reported that it was her impression that the man in the gray car 

was paying attention to the movements of S.C. Id. On redirect, Gochenour read a 

sentence from his report that stated that S.C. told A.M. that the man talked to her in 

December, and he testified that A.M. did not tell him that S.C. indicated that she 

had ever had another conversation with the man. Id. at 56. 

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3. The Prosecution’s Rebuttal.

The prosecution called five rebuttal witnesses. The first was Mark Amway, 

the owner of an athletic footwear apparel store geared toward the running 

community, who knew Saterstad for approximately three years. Doc. 23-4 at 57-

58. According to Amway, Saterstad’s reputation in the community for truthfulness 

is not very good. Id. at 59. On cross-examination, Amway testified that Henry 

Klugh, a friend and employee of his, wrote a letter to the Hershey High School 

accusing the Saterstads of moving from Upper Dauphin to Hershey for athletic 

purposes, which would make Saterstad’s daughter ineligible to participate in 

interscholastic sports at Hershey. Id. at 61-62. Amway sells athletic equipment to 

Hershey High School. Id. at 63. Amway denied that he was aware that Saterstad 

threatened to sue him, but he testified that he received emails from Saterstad and 

eventually Amway blocked those emails. Id. at 65-66.

The prosecution’s second rebuttal witness was Henry Klugh, the manager of

Inside Track in Harrisburg, who testified the he has known Saterstad for about four 

years, having first met him when he came into the store looking for some help with 

some issues for his daughter. Doc. 23-4 at 71-72. Klugh testified that Saterstaed’s 

reputation for peacefulness and law-abidingness is that he is generally not 

perceived to be very lawful or peaceful. Id. at 73-74. He also testified that 

Saterstad’s reputation for truthfulness is not very good. Id. at 74. On crossCase 4:13-cv-00847-MWB Document 60 Filed 11/25/15 Page 22 of 109
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examination, Klugh testified that he was aware of considerable conflicts between 

the Saterstad family and various members of the athletic department of the Derry 

Township School District. Id. at 76. He admitted that some of the people that he 

knows that also know Saterstad are from that athletic department and are people 

that he sells athletic equipment to. Id. at 76-77. 

The prosecution’s third rebuttal witness was Robert Shaffer, a retired athletic 

director with the Derry Township School District, who testified that he met 

Saterstad in February of 2001, and that Saterstad’s reputation for truthfulness is 

that he is not truthful. Doc. 23-4 at 78-80. On cross-examination, Shaffer testified 

that he was aware there were some issues between the Saterstad family and 

members of the Derry Township School District athletic department, that he was 

aware of an article on the front page of the sports section of the Philadelphia 

Inquirer called “Running into an Ugly Mess” describing events that were occurring 

in the Derry Township School District with respect to Saterstad’s daughter’s 

continued participation in cross country and track and field, and that he was aware 

of letters that Saterstad sent to members of the school district complaining about 

the treatment of his daughter. Id. at 81. Shaffer further testified that in April of 

2002, he challenged Saterstad’s daughter’s PIAA eligibility to continue to

participate in interscholastic athletics because of a question about her residence. Id. 

at 82. He later testified that the initial question as to her eligibility had nothing to 

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do with her residency; rather, it had to do with the reason she transferred school 

districts, and that under PIAA regulations, a student is not allowed to transfer from 

one school district to another for sports reasons. Id. at 84. He also testified that 

after that issue came up, the issue of residency also came up because Saterstad’s 

daughter told him that she was going home on weekends to her other home. Id. at 

86. According to Shaffer, many legal questions needed to be answered before the 

district could allow Saterstad’s daughter to participate. Id. He testified that to get a 

decision on the matter, the School District filed a petition with District III of the 

PIAA. Id. at 88. He also testified that Saterstad’s daughter was not allowed to 

wear her Hershey High School track uniform at a national tournament. Id. at 88-89. 

The PIAA eventually determined that Saterstad’s daugher was eligible to continue 

participating in the athletic program of the Derry Township School District. Id. at 

89. Shaffer denied that he had ill will toward Saterstad or his daughter. Id. at 90-

91.

The prosecution’s fourth rebuttal witness was Kevin Stover, a teacher and 

coach with the Derry Township School District, who testified that Saterstad’s 

reputation for peacefulness and law-abidingness is not good and that his reputation 

for truthfulness is that he is dishonest, manipulative, and deceitful. Doc. 23-4 at 92-

95. On cross-examination, Stover admitted that he harbors ill will toward 

Saterstad. Id. at 95. He also testified that he heard that Saterstad had filed a 

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25

complaint against him accusing him of accosting Saterstad’s daughter. Id. at 95-97. 

When asked on redirect examination why he has ill will toward Saterstad, Stover 

testified that Saterstad has scared his family, that his family has been watched and 

photographed, that they do not feel safe around Saterstad, and that they cannot 

sleep at night. Id. at 98-99. On recross, Stover testified that he is scared of 

Saterstad, that he has reported that to the police, and that he had an attorney write a 

letter telling Saterstad to leave his family alone. Id. at 99-100. 

The prosecution’s fifth and final rebuttal witness was Kellie Stover, who is 

Kevin Stover’s wife and a teacher and assistant coach with the Derry Township 

School District. Doc. 23-4 at 101. She testified that she knows Saterstad’s 

reputation for peacefulness and law-abidingness and that he is neither of those. Id. 

at 102. She also testified that she knows his reputation for truthfulness and that he 

is dishonest. Id. 

4. The Defense’s Surrebuttal.

On surrebuttal, five witnesses testified for the defense. First, the defense 

recalled Pastor Shutters, who when asked about Saterstad’s reputation for honesty, 

testified that Saterstad “struggles with issues and he tries to be as honest as he can. 

That’s how people know him both in the Lykens community and in the Grantville 

congregation where the people know him.” Doc. 23-4 at 103-105.

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Second, the defense called Meleah Yancey, a commander in the 4th 

Battalion, 166 Regiment Combat Arms, who testified that she knows Saterstad’s 

reputation in the community for truthfulness and that his reputation is “average, 

normal” and he is regarded as a truthful person. Doc. 23-4 at 105-107.

Third, the defense called William John Cologie, who is currently selfemployed but who was formerly the president of the Pennsylvania Cable and 

Telecommunications Association. Doc. 23-4 at 107-108. He testified that within 

the cable industry community, Saterstad he has a reputation as an honest person. 

Id. at 108-109. 

Fourth, the defense called Stanley Weaver, Jr., the athletic director and 

building and grounds supervisor for the Upper Dauphin School District, who when 

asked about Saterstad’s reputation within the community for being truthful testified 

that Saterstad “is a very interesting individual that works with his kids in athletics 

but he is truthful whenever I had to deal with him.” Doc. 23-4 at 109-111. Weaver 

also testified that the Derry Township School District contacted him and asked 

whether the Saterstad family moved from the Upper Dauphin School District to the 

Derry Township School District for athletic purposes. Id. at 111. It was his 

understanding that Saterstad’s job was no longer in Lykens, and Saterstad moved

to the Harrisburg area to be closer to his job site. Id.

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Fifth, the defense called Lee Wells, an electronics technician who owns his 

own business servicing televisions and electronic equipment, who when questioned

about Saterstad’s reputation for being a truthful person testified that he has never 

heard anything bad about him and “[i]t has all been good.” Doc. 23-4 at 113-115.

B. The Verdict, Sentence, Post-Sentence Motion, and Direct Appeal.

On September 11, 2003, the jury convicted Saterstad of attempted luring of a 

child into a motor vehicle, attempted kidnapping, and stalking. See Doc. 37-1 at 

20. Judge Lewis later sentenced Saterstad to a total term of imprisonment of two 

to ten years. See Doc. 23-5 at 7.

Following trial, Saterstad was represented by Courtney Kishel, Esquire, who 

filed a post-sentence motion arguing that the evidence was insufficient to convict 

Saterstad, that the trial court abused its discretion during sentencing, and that 

Saterstad’s trial counsel, Joshua Lock, Esquire, was constitutionally ineffective by 

(1) not impeaching S.C. with prior inconsistent statements; (2) not moving to 

sequester witnesses; and (3) not calling Saterstad’s wife, Mary, as a witness. See 

Doc. 23-6 & Doc. 23-8. After an evidentiary hearing during which Lock as well as 

Saterstad and his wife testified, Judge Lewis denied Saterstad’s post-sentence 

motion. See Doc. 23-7 and Doc. 23-5. Saterstad filed a notice of appeal, and Judge 

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Lewis issued an opinion pursuant to Pa.R.A.P. 19253explaining his decision on the

post-sentence motion. Doc. 23-9.

Thereafter, in November of 2005, the Superior Court of Pennsylvania 

affirmed Saterstad’s judgment of sentence, finding that the trial court thoroughly 

examined and properly disposed of Saterstad’s post-sentence claims. Doc. 23-12. 

On April 11, 2006, the Supreme Court of Pennsylvania denied Saterstad’s petition 

for allowance of appeal, Doc. 37-1 at 36, and Saterstad did not seek further review 

in the United States Supreme Court, Doc. 1 at 3.

C. State Collateral Proceedings.

On June 29, 2006, before the time expired to file a petition for certiorari in 

the United States Supreme Court with respect to his direct appeal, Saterstad filed a 

“Motion to Correct Factual Errors in the Sexual Offenders Assessment Board 

Assessment” (“PCRA I”)

4

See Doc. 23-5 at 15. After Judge Lewis denied PCRA 

I, “without the appointment of counsel, on the ground that the court no longer had 

 

3 According to the Superior Court of Pennsylvania, a Rule 1925 opinion provides 

a trial court with an opportunity to explain its trial and post-trial actions. See 

Commonwealth v. Clinton, 683 A.2d 1236, 1239 (Pa. Super. Ct. 1996); see also, 

Hull v. Kyler, 190 F.3d 88, 100-01, (3d Cir. 1999)(discussing Rule 1925). 

4

 Despite the document’s title and the subject-matter of the motion, the Superior 

Court of Pennsylvania eventually construed it as a PCRA petition. See Doc. 23-13

at 5. For ease of reference, we assign numerical values to the various collateral 

review filings made by Saterstad, i.e., PCRA I.

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jurisdiction to correct the report,” Saterstad filed an appeal to the Superior Court of 

Pennsylvania. Commonwealth v. Saterstad, No. 449 MDA 2007 & No. 2092 MDA 

2007, slip op. at 4 (Pa.Super.Ct. Sept. 9, 2008). 

On May 21, 2007, while the appeal of PCRA I was pending, Saterstad filed a 

pro se “Petition for Post-Conviction Collateral Relief and Request for Discovery” 

(“PCRA II”). Id. at 6; Doc. 37-1 at 37-83; and Doc. 37-2 at 1-23. In PCRA II, 

Saterstad raised numerous claims of ineffective assistance of counsel. Doc. 37-1 at 

37-83. Although Judge Lewis appointed Jeffrey Engle, Esquire to represent 

Saterstad, Engle eventually moved to withdraw asserting that PCRA II was 

untimely and that the grounds therein lacked merit. See Commonwealth v. 

Saterstad, No. 449 MDA 2007 & No. 2092 MDA 2007, slip op. at 6 (Pa.Super.Ct. 

Sept. 9, 2008). While Judge Lewis disagreed with Engle’s contention that PCRA 

II was untimely, he allowed Engle to withdraw and, without appointing new 

counsel for Saterstad, he addressed the merits of Saterstad’s claims and denied 

relief. Id.at 7 and Doc. 23-5 at 20. Subsequently, Saterstad filed a notice of appeal, 

and Judge Lewis issued an opinion on March 3, 2008 pursuant to Pa.R.A.P. 1925

explaining why Saterstad’s claims in PCRA II were denied. See Doc. 52-1.5 

Since Saterstad’s appeal on PCRA I had not yet been decided and because 

the appeal on PCRA II involved the same underlying criminal action, the Superior 

 

5

 This particular opinion, however, was not time-stamped, docketed, or distributed 

to the parties until March 25, 2011. See Doc. 52 at 45, n. 5 & Doc. 23-5 at 25. 

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Court of Pennsylvania consolidated those appeals. See Commonwealth v. 

Saterstad, No. 449 MDA 2007 & No. 2092 MDA 2007, slip op. at 1-2 

(Pa.Super.Ct. Sept. 9, 2008). With respect to PCRA I, the Superior Court 

construed the June 29, 2006 motion as a PCRA petition and because counsel was 

not appointed for Saterstad, the Superior Court reversed the order denying that 

petition. Id. at 5, 10. Regarding PCRA II, the Superior Court determined that 

Attorney Engle incorrectly concluded that the petition was untimely, that Engle 

had not independently reviewed the record to determine whether there were any 

meritorious issues, and that Judge Lewis, in turn, improperly permitted Engle to 

withdraw without appointing other counsel. Id. at 6-10. Accordingly, by a decision 

filed on September 9, 2008, the Superior Court reversed and remanded the two 

PCRA petitions to allow Saterstad’s new counsel, Norris E. Gelman, Esquire, to 

file an amended PCRA petition. Id. at 1, 8-10. 

On April 14, 2010, more than one year after the Superior Court remanded 

the case, Saterstad filed another PCRA petition (“PCRA III”) with the assistance of 

Attorney Gelman. Doc. 37-3 at 1-48. In PCRA III, Saterstad raised numerous 

claims of ineffective assistance of trial, appellate, and PCRA counsel as well as a 

claim that his sentence for attempted kidnapping was illegal. Id.

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On June 2, 2010, Judge Lewis issued a memorandum opinion notifying 

Saterstad of his intent to dismiss6PCRA III. Doc. 37-3. Two days later, Saterstad, 

through Attorney Gelman, filed a supplemental PCRA petition (“Supplement I”)

claiming that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), 

by failing to disclose that on August 28, 2003, which was shortly before 

Saterstad’s September 2003 trial, S.C. was convicted of Retail Theft. See Doc. 37-

3 at 61-66. 

The record also contains another PCRA petition filed by Saterstad pro se

claiming that: (1) trial counsel was ineffective for not investigating, discovering, 

and/or presenting impeachment evidence relating to S.C.’s criminal history, and 

that appellate counsel was ineffective for not raising the claim on direct appeal; 

 

6

Pa.R.Crim.P. Rule 907(1) provides:

[T]he judge shall promptly review the petition, any answer by 

the attorney for the Commonwealth, and other matters of record 

relating to the defendant’s claim(s). If the judge is satisfied from 

this review that there are no genuine issues concerning any 

material fact and that the defendant is not entitled to postconviction collateral relief, and no purpose would be served by 

any further proceedings, the judge shall give notice to the parties 

of the intention to dismiss the petition and shall state in the 

notice the reasons for the dismissal. The defendant may respond 

to the proposed dismissal within 20 days of the date of the 

notice. The judge thereafter shall order the petition dismissed, 

grant leave to file an amended petition, or direct that the 

proceedings continue.

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and (2) trial counsel was ineffective for not calling surrebuttal witnesses to 

impeach or rebut allegedly biased character testimony. Doc. 37-3 at 67-76.7

On August 31, 2010, Saterstad, through Attorney Gelman, filed another

supplemental PCRA petition, claiming that: (1) in an August 10, 2010 interview, 

S.C. changed her story, casting doubt on her testimony; and (2) trial counsel was 

ineffective for not discovering S.C.’s juvenile record to impeach her with at trial.

Doc. 37-4 at 3-17.

On December 8, 2010, Judge Lewis issued another memorandum opinion, 

putting Saterstad on notice of his intent to dismiss the PCRA petition. See Doc. 23-

16. The opinion, although recognizing that Saterstad raised other claims, primarily 

focused on the Brady claim. Id. Judge Lewis concluded (1) that the supplemental 

petition raising that claim was time-barred because the evidence offered as newly 

discovered did not fall within an exception to the PCRA’s statute of limitations; 

(2) that the claim failed on the merits; and (3) that Saterstad waived the claim 

given that he could have discovered S.C.’s criminal history as early as February 

19, 2008, when she turned 18. Id. 

 

7

 When he was still proceeding pro se in this habeas case, Staterstad asserted that 

this was only a draft document that he sent to his counsel and copied to the Court, 

see Doc. 37 at 5. Saterstad’s habeas counsel, however, does not refer to this 

document as merely a draft. See Doc. 52 at 42. Further, although Judge Lewis did 

not discuss the claims in this document in his memoranda, in his December 29, 

2010 Order, Judge Lewis referred to this pro se petition and stated that he was 

dismissing all of Saterstad’s claims for post-conviction relief. See Doc. 37-4. 

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On December 29, 2010, Judge Lewis issued an order dismissing each of 

Saterstad’s PCRA claims that had been filed since the case was remanded by the 

Superior Court, including those filed by Saterstad pro se. See Doc. 37-4 at 20. In 

addition, over Saterstad’s objection, he granted Attorney Gelman’s request to 

withdraw due to conflicts of interest and strained relations. Doc. 37-4 at 18-19, 21-

23. After Saterstad had filed a timely, pro se notice of appeal, Judge Lewis issued 

another Rule 1925 opinion. See Doc. 23-17. In that opinion, dated June 30, 2011,

Judge Lewis explained his decision regarding Saterstad’s Brady claim and 

ineffective-assistance-of-counsel claims. Doc. 23-17 at 2-4. He did not address 

S.C.’s August 2010 interview. See Doc. 23-17.

On appeal again to the Superior Court of Pennsylvania, Saterstad requested 

the appointment of new counsel, but the appellate court denied that request. Doc.

23-19 at 4. The Superior Court, though, granted Saterstad three extensions of time 

to file a brief, and the final deadline for him to file a brief was August 11, 2011. 

Doc. 37-4 at 42. After that deadline lapsed without receiving a timely brief from 

Saterstad, on October 3, 2011, the Superior Court dismissed the appeal based on

Saterstad’s failure to file a brief. Doc. 37-4 at 47. On October 13, 2011, Saterstad 

filed a petition for reargument/reconsideration in the Superior Court. Doc. 37-4 at 

48-50; Doc. 23-19 at 4. On November 1, 2011, the Superior Court denied that 

petition. Doc. 23-19 at 4. Thereafter, on November 29, 2011, Saterstad filed a 

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petition for allowance of appeal, which the Supreme Court of Pennsylvania denied 

on February 4, 2013. Doc. 37-4 at 75 & Doc. 23-19 at 4. Later, on March 12, 

2013, the Supreme Court of Pennsylvania denied Saterstad’s application for 

reconsideration. Doc. 23-5 at 26. There is no evidence demonstrating that 

Saterstad sought any further review in the United States Supreme Court.

D. The Habeas Petition and Proceedings.

On April 4, 2013, less than a month after the Supreme Court of Pennsylvania 

denied his application for reconsideration, Saterstad filed the federal habeas corpus 

petition under review here. Doc. 1.

8

 In his federal habeas corpus petition, Saterstad 

raises the following 14 claims:

Claim 1: Trial counsel rendered ineffective assistance by failing 

to adequately investigate and present impeachment evidence 

regarding S.C., i.e., S.C.’s criminal history and information 

contained within her school records.

Claim 2: S.C.’s post-trial statements demonstrate that Saterstad is 

actually innocent.

9

 

8

 The prisoner-mailbox rule “provides that a document is deemed filed on the date 

it is given to prison officials for mailing” Pabon v. Mahanoy, 654 F.3d 385, 391 

(3d Cir. 2011). Saterstad’s petition is dated March 29, 2013, and he asserts that he 

gave his petition to prison officials for mailing on that date. Because it does not 

make a difference in this case, we do not undertake to determine the exact date that 

Saterstad gave his petition to prison officials for mailing. 

9

 Although set forth as a claim in the habeas petition, Saterstad’s habeas counsel 

makes clear that Saterstad is not attempting to assert a free-standing claim of actual 

innocence, but rather he is asserting actual innocence in order to overcome any 

procedural default. See Doc. 52 at 59, n. 13. 

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Claim 3: Trial counsel rendered ineffective assistance by failing 

to cross-examine and impeach S.C. with her prior, inconsistent

statements.

Claim 4: Trial counsel rendered ineffective assistance by not 

requesting that witnesses be sequestered.

Claim 5: Trial counsel rendered ineffective assistance by failing 

to address the Commonwealth’s failure to disclose Brady

material relating to S.C.’s conviction for retail theft.

Claim 6: Trial counsel rendered ineffective assistance by failing 

to call Mary Saterstad as a witness.

Claim 7: Trial counsel rendered ineffective assistance by failing 

to address the prosecutor’s improper impeachment of character 

witness Stanley Weaver.

Claim 8: Trial counsel rendered ineffective assistance by failing 

to object to the prosecutor’s statements during closing argument 

about the prosecutor’s personal opinion regarding the veracity of

S.C.

Claim 9: Trial counsel rendered ineffective assistance by failing 

to call surrebuttal witnesses to impeach or rebut the 

prosecution’s character witnesses.

Claim 10: Trial counsel rendered ineffective assistance by failing 

to object to the trial court’s reasonable-doubt charge.

Claim 11: Trial counsel rendered ineffective assistance by failing 

to object to the trial court’s charge about the believability of 

witnesses.

Claim 12: Trial counsel rendered ineffective assistance by failing 

to file a motion for judgment of acquittal regarding the 

sufficiency of the evidence.

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Claim 13: Trial counsel rendered ineffective assistance by failing 

to address whether the general charge of attempted kidnapping 

was improper in light of the specific charge of attempted luring.

Claim 14: The evidence was insufficient to sustain a conviction 

on any of the charges.

Doc. 1.

10

 Saterstad seeks to have his conviction overturned. Id. 

After we conducted a preliminary review of the petition under Rule 4 of the 

Rules Governing Section 2254 Cases, we gave Saterstad the notice required by 

Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), regarding the effects of filing a 28 

U.S.C. ' 2254 petition in light of the Antiterrorism and Effective Death Penalty 

Act, and he elected to proceed with his petition as a § 2254 petition. Thereafter, 

we ordered the respondent to file an answer to the petition. 

On July 23, 2013, with leave of court, the respondent filed a partial answer 

to Saterstad’s habeas petition arguing that it is untimely under the one-year statute 

 

10 In his brief, Saterstad’s counsel asserts that Saterstad is also entitled to relief 

because of the cumulative prejudicial effect of the other errors. Doc. 52 at 121-123. 

“The cumulative error doctrine allows a petitioner to present a standalone claim 

asserting the cumulative effect of errors at trial that so undermined the verdict as to 

constitute a denial of his constitutional right to due process.” Collins v. Sec’y of 

Pennsylvania Dep’t of Corr., 742 F.3d 528, 542 (3d Cir. 2014). The cumulative 

error doctrine is not simply a method of conducting prejudice review. Id. Rather, 

cumulative error “constitutes a standalone constitutional claim” that “must be 

presented to the state courts before it may provide a basis for habeas relief.” Id. at 

541 & 543. Because Saterstad did not present a cumulative error claim in his 

habeas petition, we will not consider such a claim. 

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of limitations. After reviewing the documents presented by respondent and

Saterstad’s response, rather than immediately ruling on the statute-of-limitations 

issue, we ordered the respondent to file a full answer. The respondent complied

and filed an answer asserting that Saterstad’s petition is not only untimely, but that 

the grounds for relief either lack merit, have been procedurally defaulted, or both. 

Saterstad filed a reply raising numerous issues. We then exercised our discretion 

to appoint counsel for Saterstad. Through newly appointed counsel, Saterstad filed 

a detailed reply to the respondent’s answer. The respondent then wrote to the 

Court stating that he will not be filing a further response.

As we began to dive into Saterstad’s petition and the record, however, we 

soon realized that he had completed the maximum term of his prison sentence.

Consequently, we ordered the parties to file supplemental briefs addressing 

whether the petition had become moot by operation of Saterstad’s release from 

prison and the expiration of his maximum sentence. The parties filed their 

supplemental briefs, and the petition is ripe for review. 

III. Jurisdiction.

The writ of habeas corpus is “a fundamental guarantee of liberty,” standing

as a safeguard against imprisonment of those held in violation of the law, and 28 

U.S.C. § 2254 gives federal courts jurisdiction to entertain habeas corpus petitions 

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from individuals who are “in custody” pursuant to a state court judgment. 28 

U.S.C. § 2254(a); Rose v. Lundy, 455 U.S. 509, 547 (1982) (Stevens, J., 

dissenting). Here, Saterstad was “in custody” pursuant to a state court judgment at 

the time he filed his petition, cloaking this Court with jurisdiction to entertain the 

petition. Furthermore, Saterstad’s release from prison, and the expiration of his 

maximum sentence, does not divest this Court of said jurisdiction. See Carafas v. 

LaVallee, 391 U.S. 234, 238 (1968) (“[O]nce the federal jurisdiction has attached 

in the District Court, it is not defeated by the release of the petitioner prior to the 

completion of proceedings on such application.”); Spencer v. Kemna, 523 U.S. 1, 7 

(1998) (“The District Court’s conclusion that Spencer’s release from prison caused 

his petition to be moot because it no longer satisfied the ‘in custody’ requirement 

of the habeas statute was in error. Spencer was incarcerated . . . at the time the 

petition was filed, which is all the ‘in custody’ provision of 28 U.S.C. § 2254 

requires.”). 

“The more substantial question, however, is whether [Saterstad’s] 

subsequent release [and expiration of his maximum sentence] caused the petition to 

be moot because it no longer presented a case or controversy under Article III, § 2, 

of the Constitution.” Spencer, 523 U.S. at 7. This question is also a jurisdictional 

one. See North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam). While not 

initially raised by the parties, we required them to address this question in 

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39

supplemental briefs “since [it] goes to the very existence of a [case or] controversy 

for us to adjudicate . . . .” Sibron v. New York, 392 U.S. 40, 50 n.8 (1968).

In the habeas arena, “[a]n incarcerated convict’s (or parolee’s) challenge to 

the validity of his conviction always satisfies the case-or-controversy 

requirement.” Spencer, 523 U.S. at 7. Further, a habeas corpus petition 

challenging an underlying criminal conviction is not rendered moot by the 

petitioner’s release from custody after its filing so long as there are collateral 

consequences that flow from the criminal conviction. Id. at 12. And “[w]hen a . . .

petitioner challenges his underlying conviction, and he is released during the 

pendency of his habeas petition, federal courts presume that ‘a wrongful criminal 

conviction has continuing collateral consequences’ sufficient to satisfy the injury 

requirement.” Hailstock v. Martinez, No. 08-2029, 2009 WL 223855, at *1 (M.D. 

Pa. Jan. 27, 2009) (quoting Spencer, 523 U.S. at 8); see also, United States v. 

Juvenile Male, 131 S.Ct. 2680, 2864 (2011) (“When the defendant challenges his 

underlying conviction, this Court’s cases has long presumed the existence of 

collateral consequences.”). 

Here, in addition to the presumption of collateral consequences, Saterstad 

successfully demonstrates that continuing collateral consequences indeed flow 

from his convictions—a restriction on his Second Amendment right to bear arms 

and the requirement that he register as a sex offender—and respondent does not 

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40

provide any argument in opposition. See Doc. 57 at 3, 6 and Doc. 58. Accordingly, 

the petition is not moot.

IV. Timeliness.

The respondent contends that the petition should be dismissed as barred by 

the statute of limitations. A state prisoner seeking habeas corpus relief pursuant to 

28 U.S.C. § 2254 must comply with the statute of limitations, which provides, in 

relevant part:

(d)(1) A 1–year period of limitation shall apply to an application 

for a writ of habeas corpus by a person in custody pursuant to the 

judgment of a State court. The limitation period shall run from 

the latest of—

(A) the date on which the judgment became final by the 

conclusion of direct review or the expiration of the time for 

seeking such review[.]

. . . . .

(d)(2) The time during which a properly filed application for 

State post-conviction or other collateral review with respect to 

the pertinent judgment or claim is pending shall not be counted 

toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

For a state prisoner who, like Saterstad, did not seek certiorari in the United 

States Supreme Court, the judgment becomes final on the date that the time for 

seeking certiorari expired. Jenkins v. Superintendent of Laurel Highlands, 705 

F.3d 80, 84 (3d Cir. 2013). The limitations period is further subject to statutory 

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41

tolling during the time “a properly filed application for State post conviction or 

other collateral review with respect to the pertinent judgment or claim is pending 

. . . .” 28 U.S.C. § 2244(d)(2); Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). 

A properly filed state petition “is one submitted according to the state’s procedural 

requirements, such as the rules governing the time and place of filing.” Lovasz v. 

Vaughn, 134 F.3d 146, 148 (3d Cir. 1998). Conversely, a PCRA petition that is 

untimely filed is not “properly filed” and does not suspend the running of the 

limitations period. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). Statutory 

tolling applies to those periods when an application for discretionary review is 

pending in a state appellate court from the denial of post-conviction relief. See 

Kindler v. Horn, 542 F.3d 70, 77 n.5 (3d Cir. 2008) (noting that the petitioner’s 

PCRA petition was pending at least through the date the Pennsylvania Supreme 

Court denied his petition for review), rev'd on other grounds, Beard v. Kindler, 

558 U.S. 53 (2009). Statutory tolling also applies to the time period for seeking 

state court appellate review even if such review is not sought. Jenkins, 705 F.3d at 

85 n. 4. It does not, however, apply to the time the petitioner has for seeking 

certiorari review from the United States Supreme Court, id. n.5, or the time period 

during which such an application is pending. Lawrence v. Florida, 549 U.S. 327, 

329 (2007). 

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Here, Saterstad’s state-court judgment became final on or about July 10, 

2006, or 90 days after the Supreme Court of Pennsylvania denied Saterstad’s 

petition for allowance of appeal on direct review. Thus, the limitations period 

normally would have started to run on July 11, 2006, but here before the statute 

began to run, Saterstad, on June 29, 2006, filed PCRA I, which triggered the 

statutory tolling provision in § 2244(d)(2). Respondent does not dispute that 

Saterstad had a properly filed and pending application for post-conviction review 

in the Pennsylvania courts until, at least, October 3, 2011, when the Superior Court 

of Pennsylvania dismissed his post-conviction appeal for not filing a brief. From 

there, however, the parties’ points of view diverge as far as the statute of 

limitations is concerned.

According to the respondent, Saterstad’s act of filing a petition for

reconsideration in the Superior Court, after that court had dismissed his postconviction appeal for not filing a brief, did not operate to toll the limitations 

period. Doc. 23-1 at 5. As such, the respondent argues that Saterstad had until 

November 4, 2012, to timely file a federal habeas corpus petition. 

In support of this position, respondent relies on cases which cite Pa.R.A.P. 

1701, which provides in relevant part:

(b) Authority of a trial court or agency after appeal. After an 

appeal is taken or review of a quasijudicial order is sought, the 

trial court or other government unit may . . .

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(3) Grant reconsideration of the order which is the subject of the 

appeal or petition, if:

(i) an application for reconsideration of the order is filed in 

the trial court or other government unit within the time 

provided or prescribed by law; and

(ii) an order expressly granting reconsideration of such prior 

order is filed in the trial court or other government unit 

within the time prescribed by these rules for the filing of a 

notice of appeal or petition for review of a quasijudicial order 

with respect to such order, or within any shorter time 

provided or prescribed by law for the granting of 

reconsideration.

A timely order granting reconsideration under this paragraph 

shall render inoperative any such notice of appeal or petition for 

review of a quasijudicial order theretofore or thereafter filed or 

docketed with respect to the prior order. The petitioning party 

shall and any party may file a praecipe with the prothonotary of 

any court in which such an inoperative notice or petition is filed 

or docketed and the prothonotary shall note on the docket that 

such notice or petition has been stricken under this rule. Where a 

timely order of reconsideration is entered under this paragraph, 

the time for filing a notice of appeal or petition for review begins 

to run anew after the entry of the decision on reconsideration, 

whether or not that decision amounts to a reaffirmation of the 

prior determination of the trial court or other government unit. 

No additional fees shall be required for the filing of the new 

notice of appeal or petition for review.

Pa.R.A.P. 1701(b)(3).

While respondent is correct that a motion for reconsideration filed under this 

rule does not toll the time period during which an appeal must be filed, see Vietri v. 

Delaware Valley High School, 63 A.3d 1281, 1288 (Pa. Super. Ct. 2013) (“[H]ad 

the trial court treated Appellant’s post-trial motion as a motion for reconsideration, 

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that filing . . . would not have tolled the time for appeal.”) (citing Fingles v. Green, 

409 A.2d 99, 101 (1979)), the application of this rule to Saterstad’s motion for 

reconsideration in the Superior Court, on PCRA review, is improper. Rule 1701 

applies to appeals from orders originating in Pennsylvania’s trial courts, not 

motions for reconsideration (or reargument) of decisions rendered by the Superior 

Court of Pennsylvania. 

Indeed, an entirely separate rule of Pennsylvania appellate procedure applies 

to motions for reconsideration that are filed in the Superior Court, for review of an 

order entered in that court. Specifically, Rule 1113 provides in relevant part:

(a) General rule.--Except as otherwise prescribed by this rule, a 

petition for allowance of appeal shall be filed with the 

Prothonotary of the Supreme Court within 30 days after the entry 

of the order of the Superior Court or the Commonwealth Court 

sought to be reviewed.

(1) If a timely application for reargument is filed in the Superior 

Court or Commonwealth Court by any party, the time for filing a 

petition for allowance of appeal for all parties shall run from the 

entry of the order denying reargument or from the entry of the 

decision on reargument, whether or not that decision amounts to 

a reaffirmation of the prior decision.

(2) Unless the Superior Court or the Commonwealth Court acts 

on the application for reargument within 60 days after it is filed 

the court shall no longer consider the application, it shall be 

deemed to have been denied and the prothonotary of the 

appellate court shall forthwith enter an order denying the 

application and shall immediately give written notice in person 

or by first class mail of entry of the order denying the application 

to each party who has appeared in the appellate court. A petition 

for allowance of appeal filed before the disposition of such an 

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application for reargument shall have no effect. A new petition 

for allowance of appeal must be filed within the prescribed time 

measured from the entry of the order denying or otherwise 

disposing of such an application for reargument.

Pa.R.A.P. 1113(a)(1),(2). 

Not only does an entirely separate rule apply to a motion for reconsideration

filed in the Superior Court, but, under Rule 1113’s express terms, the filing of such 

a motion tolls the time period during which a petition for allowance of appeal must 

be filed in the Supreme Court of Pennsylvania. Furthermore, we are unaware of 

any Pennsylvania cases reaching a contrary interpretation. Thus, because

Saterstad’s motion for re-argument was timely filed in the Superior Court of 

Pennsylvania, the habeas corpus statute-of-limitations period did not start to run 

until, at the earliest, February 4, 2013, when the Supreme Court of Pennsylvania 

denied Saterstad’s petition for allowance of appeal. In short, Saterstad continued 

to have a properly filed PCRA petition pending review while his motion for reargument was pending in the Superior Court of Pennsylvania. Moreover, at the 

latest,11 Saterstad filed his federal habeas corpus petition on April 4, 2013, after a 

period of only 59 days had lapsed under the habeas corpus statute-of-limitations. 

As such, Saterstad’s petition was timely filed. 

 

11

 See n.8.

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V. Procedural Default—Claims 7-11 and 13.

The respondent contends that Staterstad procedurally defaulted Claims 7-11 

and 13 raised in his habeas petition.

12

 

“Federal habeas courts reviewing the constitutionality of a state prisoner’s 

conviction and sentence are guided by rules designed to ensure that state-court 

judgments are accorded the finality and respect necessary to preserve the integrity 

of legal proceedings within our system of federalism.” Martinez v. Ryan, 132 S.Ct. 

1309, 1316 (2012). One of these rules is that a state prisoner must exhaust 

available state remedies before filing a petition for habeas corpus in federal court. 

28 U.S.C. § 2254(b) and (c). The exhaustion requirement serves the interests of 

comity between the federal and state systems by allowing the state an initial 

opportunity to determine and correct any violations of a prisoner’s federal rights. 

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (“Comity . . . dictates that when 

a prisoner alleges that his continued confinement for a state court conviction 

violates federal law, the state courts should have the first opportunity to review this 

 

12 The respondent also contends that Saterstad procedurally defaulted Claim 2, but 

as noted before, Claim 2 is not a separate claim, rather it is an assertion of actual 

innocence in an attempt to overcome any procedural default. See n. 9. Further, 

although it appears that if Claims 7-11 and 13 are procedurally defaulted, Claims 1, 

5, & 12 would be procedurally defaulted for the same reasons. But the respondent 

does not specifically argue that Claims 1, 5, & 12 are procedurally defaulted. 

Thus, we do not consider procedural default as to those claims. The respondent 

also does not argue that Claims 3, 4, 6, & 14, which Saterstad raised on his direct 

appeal, are procedurally defaulted. 

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claim and provide any necessary relief.”). “The exhaustion rule also serves the 

secondary purpose of facilitating the creation of a complete factual record to aid 

the federal courts in their review.” Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 

1995). A habeas corpus petitioner bears the burden of demonstrating that he has 

exhausted state remedies. O’Halloran v Ryan, 835 F.2d 506, 508 (3d Cir. 1987). 

The petitioner “must give the state courts one full opportunity to resolve any 

constitutional issues by invoking one complete round of the State’s established 

appellate review process.” O’Sullivan, 526 U.S. at 845.13

In order to exhaust state remedies for federal habeas corpus purposes, a 

petitioner must show that he fairly presented his federal claim to the state courts. 

Picard v. Connor, 404 U.S. 270, 275-76 (1971). The fair-presentation requirement 

provides the State the opportunity to consider and correct an alleged violation of a 

prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). “If state 

courts are to be given the opportunity to correct alleged violations of prisoners’ 

federal rights, they must surely be alerted to the fact that the prisoners are asserting 

claims under the United States Constitution.” Id. at 365-66. “It is not enough that 

 

13

 In Pennsylvania, pursuant to Order 218 of the Pennsylvania Supreme Court, 

review of criminal convictions and post-conviction relief matters from the 

Pennsylvania Supreme Court is discretionary and “unavailable” for purposes of 

exhausting state court remedies under § 2254. Lambert v. Blackwell, 387 F.3d 210, 

233 (3d Cir. 2004). Thus, to exhaust state remedies, a Pennsylvania prisoner need 

appeal only to the Pennsylvania Superior Court.

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all the facts necessary to support the federal claim were before the state courts, or 

that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 

4, 6 (1982) (citations omitted). Rather, for a claim to have been fairly presented to 

the state courts, both the legal theory and the facts supporting the claim must have 

been presented to the state courts. O’Halloran, 835 F.2d at 508. 

If a claim has not been fairly presented to the state courts but state law 

clearly forecloses review, exhaustion is excused. Carpenter v. Vaughn, 296 F.3d 

138, 146 (3d Cir. 2002); See also McCandless v. Vaughn, 172 F.3d 255, 260 (3d 

Cir. 1999) (“When a claim is not exhausted because it has not been ‘fairly 

presented’ to the state courts, but state procedural rules bar the applicant from 

seeking further relief in state courts, the exhaustion requirement is satisfied

because there is ‘an absence of available State corrective process.’”). The issue 

then becomes one of procedural default. A procedural default occurs when a 

prisoner’s claim is barred from consideration in the state courts by an “independent 

and adequate” state procedural rule. Martinez, 132 S.Ct. at 1316. A procedural 

default generally bars a federal court from reviewing the merits of a habeas claim 

that the prisoner procedurally defaulted in state court. Id.; Munchinski v. Wilson, 

694 F.3d 308, 332 (3d Cir. 2012). “Grounded in principles of comity and 

federalism, the procedural default doctrine prevents a federal court sitting in 

habeas from reviewing a state court decision that rests on a state law ground ‘that 

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is sufficient to support the judgment,’ when that state law ground ‘is independent 

of the federal question and adequate to support the judgment.’” Munchinski, 694 

F.3d at 332-33 (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). “In 

such situations, ‘resolution of any independent federal ground for the decision 

could not affect the judgment and would therefore be advisory.’” Id. at 333.

There are, however, exceptions to the bar on consideration of procedurally 

defaulted claims. Martinez, 132 S.Ct. at 1316. A federal court may consider the 

merits of a procedurally defaulted habeas claim in two situations: (1) the petitioner 

establishes cause for the default and actual prejudice as a result of the alleged 

violation of federal law; or (2) the petitioner demonstrates that failure to consider 

the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 

750. “To show cause and prejudice, ‘a petitioner must demonstrate some objective 

factor external to the defense that prevented compliance with the state’s procedural 

requirements.’” Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002) (quoting 

Coleman, 501 U.S. at 753). “To show a fundamental miscarriage of justice, a 

petitioner must demonstrate that he is actually innocent of the crime by presenting 

new evidence of innocence.” Keller v. Larkins, 251 F.3d 408, 415B16 (3d Cir. 

2001) (citation omitted). 

Saterstad failed to present Claims 7-11 and 13 to the Pennsylvania courts in 

a procedurally correct manner. Specifically, he failed to file a brief in support of 

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his appeal of the denial of his PCRA III and subsequent petitions to the 

Pennsylvania Superior Court. Saterstad contends that the procedural-default 

doctrine should not, however, operate to bar those claims or, alternatively, any 

procedural default should be excused. 

A. Independent and Adequate State Rule.

For the procedural-default doctrine to bar review of Grounds 7-11 and 13 in 

Saterstad’s federal habeas petition, the procedural bar at issue must have been 

premised upon an “independent” and “adequate” state rule. See Albrecht v. Horn, 

485 F.3d 103, 115 (3d Cir. 2007) (citing Harris v. Reed, 489 U.S. 255, 260-61 

(1989)). Generally, a state rule is “independent” if it does not “depend[ ] on a 

federal constitutional ruling” Ake v. Oklahoma, 470 U.S. 68, 75 (1985). Here, 

while Saterstad points out that the Superior Court of Pennsylvania did not cite to a 

particular rule when dismissing his appeal for not filing a brief, he does not contest 

that the dismissal was premised upon an independent state rule. See Doc. 52 at 63. 

Furthermore, although we are not to presume that the state court relied upon an 

independent state rule, see Coleman, 501 U.S. at 735, we do not doubt that the 

Superior Court’s decision to dismiss Saterstad’s appeal for failing to file a brief 

was premised upon such a rule, rather than a federal one. The greater issue, 

however, is whether the rule applied is adequate.

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A state rule is “adequate” only if it is “firmly established and regularly 

followed” by the state courts at the time of the procedural bar. See Ford v. 

Georgia, 498 U.S. 411, 424 (1991). “To be considered firmly established and 

regularly followed, ‘(1) the state procedural rule [must] speak[ ] in unmistakable 

terms; (2) all state appellate courts [must have] refused to review the petitioner's 

claims on the merits; and (3) the state courts' refusal in this instance [must be] 

consistent with other decisions.’” Lewis v. Horn, 581 F.3d 92, 106-06 (3d Cir. 

2009)(quoting Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996)). This rule is 

intended to ensure that state courts do not insulate disfavored claims from federal 

review and to ensure that federal habeas review is not barred unless petitioners 

have fair notice of the steps they must take to avoid default. Bronshtein v. Horn, 

404 F.3d 700, 707-08 (3d Cir. 2005); Dugger v. Adams, 489 U.S. 401, 410 n. 6 

(1989); Hathorn v. Lovorn, 457 U.S. 255, 262-63 (1982) (“state courts may not 

avoid deciding federal issues by invoking procedural rules that they do not apply 

evenhandedly to all similar claims”). Importantly, however, “neither an occasional 

act of grace by a state court . . . nor a willingness in a few cases to overlook the 

rule and address the claim on the merits” renders a rule inadequate. Banks v. Horn, 

126 F.3d 206, 211 (3d Cir. 1997). A rule can be adequate if state courts faithfully 

apply it in “the vast majority” of cases. See Dugger, 489 U.S. at 410 n.6. 

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Here, Saterstad contends that the Superior Court did not rely on an adequate 

rule when dismissing his appeal for failure to file a brief. According to Saterstad, a

review of the rules of Pennsylvania appellate procedure does not reveal any rule 

requiring dismissal of an appeal for a litigant’s failure to file a brief. See Doc. 52 at 

63-64. In support thereof, Saterstad cites to Pennsylvania Rule of Appellate 

Procedure 2188, see Doc. 52 at 63, which provides in relevant part: “If an appellant 

fails to file his . . . brief . . . within the time prescribed by [the appellate procedure 

rules], or within the time as extended, an appellee may move for dismissal of the 

matter.” Pa.R.A.P. 2188. Here, the appellee (the Commonwealth) did not move for 

dismissal of the appeal. Instead, the Superior Court dismissed the appeal sua 

sponte after Saterstad failed to file his brief in support. 

Nonetheless, the note to Rule 2188 explicitly provides: “Each of the 

appellate courts has established a procedure for the non prossing of cases where 

there has been a failure to comply with the applicable rules. Accordingly, counsel 

are advised to prepare briefs . . . in accordance with all rules applicable thereto . . . 

and to comply strictly with Rule 2185 (time for serving and filing briefs).” 

Additionally, in 2003, the Supreme Court of Pennsylvania recognized that the 

Superior Court had maintained an administrative practice of dismissing appeals if 

an appellant’s brief had not been filed after a substantial delay; an administrative 

practice dating back to before the amendment of the PCRA in 1995. See 

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Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003). As well, Pa.R.A.P.

2101, not discussed by Saterstad, is explicit that the dismissal of an appeal is a 

possible sanction for not complying with the briefing requirements set forth in 

Pennsylvania’s rules of appellate procedure. Moreover, no state appellate court 

has considered Saterstad’s Claims 7-11 & 13 on the merits, and the Superior 

Court’s administrative practice indicates that the result in this case was consistent 

with other decisions of that court. Accordingly, Saterstad procedurally defaulted 

Claims 7-11 & 13. Thus, absent a showing of cause and prejudice, or a 

miscarriage of justice, Saterstad is barred from litigating those claims. 

B. Actual Innocence.

Saterstad seeks to avoid his procedural default by claiming that he is actually 

innocent and it would, therefore, amount to a miscarriage of justice not to consider 

his claims. “[A] claim of ‘actual innocence’ is not itself a constitutional claim, but 

instead a gateway through which a habeas petitioner must pass to have his 

otherwise barred constitutional claim considered on the merits.” Herrera v. 

Collins, 506 U.S. 390, 404 (1993). In order to demonstrate that he is actually 

innocent, a petitioner must present new evidence of his innocence. Schlup v. Delo, 

513 U.S. 298, 324 (1995). “To be credible, such a claim requires petitioner to 

support his allegations of constitutional error with new reliable evidence—whether 

it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 

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physical evidence—that was not presented at trial.” Id. A petitioner asserting 

actual innocence must show that it is more likely than not that no reasonable juror 

would have convicted him in light of the new evidence presented in his habeas 

petition. Hubbard v. Pinchak, 378 F.3d 333, 339 (3d Cir. 2004). “[C]laims of 

actual innocence are rarely successful because the necessary evidence is 

unavailable in the vast majority of cases.” Id. 

In considering a claim of actual innocence, the court “must consider ‘‘all the 

evidence,’’ old and new, incriminating and exculpatory, without regard to whether 

it would necessarily be admitted under ‘rules of admissibility that would govern at 

trial.’” House v. Bell, 547 U.S. 518, 538 (2006) (quoting Schulp, 513 U.S. at 327-

328, quoting in turn Friendly, Is Innocence Irrelevent? Collateral Attack on 

Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970)). “The court’s function is 

not to make an independent factual determination about what likely occurred, but 

rather to assess the likely impact of the evidence on reasonable jurors. Id. The 

petitioner’s burden “is to demonstrate that more likely than not, in light of the new 

evidence, no reasonable juror would find him guilty beyond a reasonable doubt—

or, to remove the double negative, that more likely than not any reasonable juror 

would have reasonable doubt.” Id. An actual innocence claim involves evidence 

that the trial jury did not have before it, and, therefore, the inquiry requires the 

court to assess how reasonable jurors would react to the overall, newly 

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supplemented record. Id. This inquiry may require the court to make assessments 

regarding the credibility of witnesses. Id. at 539.

Here, Saterstad’s claim of actual innocence is based on an August 10, 2010 

tape-recorded interview of S.C. by James Wagner.14 See Doc. 37-4 at 8-17. It 

appears that a recording of this interview was transcribed by Saterstad’s son. See 

Doc. 37-4 at 3. During this interview, S.C., among other things, stated that there 

were two men involved, that she actually got into the car on one occasion, and that 

the man in car that she got into was not Saterstad. Doc. 37-4 at 8-17. For 

numerous reasons, S.C.’s statement is not the type of new, reliable evidence that 

could possibly lead to a conclusion that this is an extraordinary case that meets the 

miscarriage-of-justice standard. See House, 547 U.S. at 537 (stating that actual 

innocence requires substantive review only in extraordinary cases).

First, while recantation evidence is ordinarily viewed with skepticism, see

Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988) (“Courts have historically 

viewed recantation testimony with great suspicion.”), here the method of 

conducting the interview and the how the questions were asked during that 

interview, make S.C. statements particularly unreliable. Because the transcript of 

 

14

 The only thing in the record regarding James Wagner is a statement in Attorney 

Gelman’s supplemental PCRA petition on behalf of Saterstad that Wagner works 

for a private investigator and was hired by Saterstad’s son, Chistopher. Doc. 37-4 

at 4. 

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the interview itself makes this clear, we set forth most of the transcript, omitting 

only small portions that are not particularly relevant:

JW: Ok [S.C.], could you please give me a quick statement on what 

happened the night with Ed Saterstad? The night he stalked you. 

When it...what had happened and all that. Because I have another 

gentleman saying that he did it. That’s what I need to know, see if 

he’s lying or not.

SC: Umm, he was stalking me.

JW: Ok.

SC: And, he asked me if I wanted to go across the river with him. 

And I think he said he would give me five hundred dollars.

. . . 

JW: . . .[C]ould you look at these photos here and tell me which one is 

the gentleman that tried to pick you up. Or if you see him at all in 

these photos? One of these photos is the gentleman that’s been 

arrested and charged with your case. And one of these photos is the 

gentleman that is admitting to the case. The one that said that he’s the 

one that talked to you. And again, you don’t mind the tape recorder, 

Right?

SC: No. 

***20 seconds of her friend talking in the background as SC looks at 

the photo line-up***

JW: So don’t make a mistake, ok. Just take your time, you know. I 

know it’s been ten years.

SC: ***Inaudible***

JW: Now, I want you to look real close. Like this one here, he’s 

wearing glasses but you can’t...it’s hard to see.

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***Tape turned off for a phone call***

JW: I said take your time, I know it’s been ten years.

***Tape turned off and on several times***

SC: None of these look like him.

JW: What’s that?

SC: I said, none of these look like him.

JW: Do any of them look close to him?

SC: I don’t know, maybe this one.

JW: Number 14? Your saying 14 is the one that looks closest to the 

gentleman that tried to...uhh...well I guess he tried to kidnap you or, 

uhh, solicit you. That’s what their saying he did, right?

SC: Yeah.

JW: Does he have glasses, or no? I’m sorry, that doesn’t matter. 

That’s why some of them have, or had glasses on. It just...

SC: That’s how they look now maybe?

JW: Yeah, that’s how they look now. Mr. Saterstad has not changed 

very much. He’s still in prison. And that’s what we don’t understand, 

is how somebody that doesn’t even know Mr. Saterstad would come 

up and say that he’s the one that had spoke to you. And the person 

that’s saying he spoke to you, is [sic] already been convicted of the 

same crime. He was a teacher at Bishop McDevitt High School. He 

was a band teacher there. You dropped your cigarette ma’am. 

***60 seconds of inaudible chatter and silence. The tape is turned 

of[f] several times for phone calls ***

SC: I can see him in my head, but I can’t see him on here.

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JW: Ok.

***Tape turned off***

JW: As far as you’re concerned right now, number 14 was the one 

that you thought. Without me trying to...uhh...say that I’m telling

you that’s what it is. I’m just saying, in your opinion, which one was 

it?

***Inaudible chatter***

SC: He’s older now, but he was not young.

JW: I just want you to understand that both of them are on there. The 

individual that said he talked to you, and Mr. Saterstad. I put both 

their pictures on there though. So yeah. I’m not allowed to tell you 

which one they are, because that would taint it. You know, but I have 

both their pictures there. Mr. Saterstad and the other guy, who is 

saying that he’s the guy who spoke to you.

. . .

SC: You actually say there’s two people?

JW: One of them is Mr. Saterstad in those pictures. The other one is 

the one who seems to try to say that he’s the one that talked to you. 

He was admitting to it. The point I’d like to bring out is that Mr. 

Saterstad was offered ARD. Which means he would have never spent 

any time in prison even if he was guilty. And he is still screaming that 

he’s innocent, and he has stated personally every time. I’ll tell you 

what, even a...A guilty person would have took the ARD.

Friend: ***inaudible

JW: I know.

SC: That’s ok, ‘cause, I’m thinking now....

JW: Because she physically seen him.

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Friend: ***Inaudible

JW: Well, see the courts say that would have been imbedded in her 

brain. What he...you know, him...she would have remembered what 

he said. That’s how she’s the best witness.

SC: Yeah, that’s what I’m saying, it’s different when you seeing 

faces.

JW: Um-huh.

SC: But to physically see him, I would know.

JW: What about the voice [SC]?

SC: It was a deep voice. But now I’m thinking it was two guys.

JW: Uh-huh, Is it a possibility that one of them could have been the 

one that talked to you, and the other one is the one that, that you seen?

SC: That was driving around following me.

JW: Yeah.

SC: Yes. 

JW: Is that a possibility?

SC: Yes, now that I’m thinking about it.

JW: And that’s why I’m getting one guy saying that it was him that 

talked to you. And the other one said that the grandma pointed 

out...uhh...his car.

SC: Yeah.

JW: The grandmother said the car was parked in front of the 

apartment, and then you went out and told her: Hey, he’s right 

outside.

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SC: Yeah.

JW: And then she...what was he doing outside?

SC: Circling around.

JW: Oh, he was circling. He wasn’t sitting in front of your place?

SC: No, he was circling around.

JW: Ok.

SC: And he was driving by my bus stop.

JW: The guy that, the person that is admitting to this...

SC: He was in a van.

JW: The van. He had a van. Did you see anything in the van?

SC: It was a van, there was a white, I mean, grey metro. I remember 

that.

JW: Ok. The one that admitted, he said he was driving a red van. 

And then he had to turn it in, and then the next day he got a grey Geo 

Metro as a rental. Until his van was done.

JW: So I just want to know from you. Is it possible that the one that’s 

admitting it was the one that talked to you. And the other one, was 

you know...as I understand, it was dark out. You know. Is there any 

possibility that it could be, one that talked to you and the other one 

just happened to be in that spot? Or either, you thought it was him?

SC: He looks like the detective.

JW: Huh?

SC: He looks like the detective.

JW: He looks like the detective. **Laughs**

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61

SC: He does, he looks like Detective Shoeman.

JW: I understand that you went to the detective yourself. That you 

said you had seen him again.

SC: Yeah, Detective Shoeman.

JW: What does it say about the guy that’s admitting to it, that was 

always circling the bus stops over by his house, but has had no kids 

that were in school? They couldn’t understand why he was circling 

the bus stops. Now, his house is right across the river.

SC: Yeah.

JW: Now ok, Mr. Saterstad lives way up in Lykens. He didn’t even 

know about anything about the West Shore. And I’ll tell you what. 

For a white man to try to take a good looking black girl on the West 

Shore, there would have been...somebody would have noticed it. 

You know, he would have had to have a place to take you. If he 

meant to take you anywhere.

***Tape stopped***

JW: This guy knows this trial’s coming up. If this information comes 

up, it is going to screw him real bad. Unless he tells the truth. He’s 

telling the truth, or we think he’s telling the truth.

Friend: Why don’t you give him a lie detector test?

JW: Well that’s...we’re...we’re trying to get anybody who’s willing 

to take it. Mr. Saterstad is. You know, the other guy is saying that, 

well he’ll take it only after...you know...she looks at her lineup and 

all that stuff. But he’s already in trouble.

Friend: Well that’s guilty.

JW: Yeah.

Friend: They got to, they got to....

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JW: We can’t force anybody to. The one thing is, is that if we ask 

them...ahh...to take one, and they refuse, that looks bad. But if....

Friend: It does

JW: But if somebody says: “hey, I’m going to take a lie detector”, to 

me that looks like...because who’s going to try to, try to fake one of 

them. It’s not easy to fake a lie detector, you know. One’s willing to 

take one, and offered to take on, but never will. And the other on[e] is 

plain out admitting everything that happened, so that’s what’s 

confusing. ‘Cause the one guy said that he even wrote down the 

grandmother’s apartment number. You know, I’ll show you the map. 

I want to show you something. This is a map of the area. And he color 

coded....

SC: He can remember that after....

JW: He remembered it. Ok, he remembered you, is what he 

remembers. Ok, He don’t remember, he knew exactly what apartment 

you went into and everything. That means he was watching you. Ok. 

That’s the point I...I mean, this guy even knew what apartment you 

went into. Oops, let me pull this back out. That’s what I’m saying.

SC: I’m looking at this one.

JW: Ok, number 12.

SC: He kind of looks like the tall guy.

JW: Number 12

SC: With the leather jacket on. He might be.

JW: Ok

SC: I think, but now I don’t know who to think.

JW: Ok, but you’re saying he looks like this right? With the leather 

jacket on an all that. Ok. I’m going to...

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***Friend answers phone***

JW: I’m going to turn this off.

***Tape recorder turned off for phone call***

JW: First how

SC: I was in the car, but I didn’t admit to it then, that I was in the car.

JW: You were in the car, Ok. Can you describe the inside of the car?

SC: Two doors...ahh...a regular car. It was a very regular car.

JW: You were in the Geo Metro the first day?

SC: Yeah

. . . 

JW: . . . Now, why didn’t you tell them you were in the car[] before? 

Were you afraid?

SC: Yeah, I was young and I was afraid.

JW: Why did you get in the car?

SC: I was young, kids don’t know.

JW: But then you just got right out of there right?

SC: Yeah.

JW: Yeah. So alright, well that’s cool, because that way we know 

exactly what’s going on here. About this...and the guy...now, the 

guy can’t be tried because its been too long. But I’m going to show in 

his next court date...look the guy’s telling the truth, he did talk to her. 

He’s admitting it, so he’s given some kind of credit for that. And then 

I have to find out about what happened with Ed. Because some how it 

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seems like one guy, the one you got in the car with, and the one just 

got picked out. The...ahh...I’m trying to see how, you know?

SC: It...It had to be two guys. Could not be just Edward.

JW: Ohh.

SC: The one I picked out was the on[e] that was in the grey Metro

JW: The one that you picked out was the one that was in the Metro

SC: Edward (??................grandma’s house??). That was the one I 

picked out. Me and my grandma picked out several times. ***[SC] 

continues talking, but is inaudible because her friend starts talking at 

the same time***

JW: So, was he also the guy when you got in the car?

SC: ***Inaudible***

JW: Ok, which on[e] was the one you got in the car? The one that 

your grandmother pointed out and stuff, and the other guy was the one 

you seen standing outside the restaurant? The one that you pointed 

out her[e]. And that was number 12.

SC: Yeah.

JW: That makes sense now. It’s making a lot of sense. You know, 

because he lives right across the river. You know...the one you 

picked out. He lives right across the river.

SC: That’s what I’m saying.

***recorder shut off for phone call***

JW: Do you feel that there was two people working together. One...

SC: Yes.

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JW: Ok, so one you got in the car with the you picked out...that was 

at the restaurant. The other one was Ed Saterstad, right?

SC: Yes.

JW: According to you is...if...if Mr. Saterstad is not the one that 

tried to pick you up, do you feel that the other man should be in jail? 

The one that tried...or not?

SC: Yes

JW: So you feel that the guy with the leather jacket, the big guy, that 

spoke to you in front of the...uhh...is the one that should be in jail?

SC: Yeah.

JW: Yeah, now the other guy didn’t do anything wrong to you...or 

anything like that?

SC: As of just following me, no. I mean, he needs help.

JW: He needs help, right. Ok, but other than that, he didn’t touch 

you...he didn’t...when you were in the car with him, he didn’t touch 

you...

SC: No.

JW: Nothing like that, right?

SC: No.

JW: So that I...see that’s a charge that still can be filed. Ok, so 

nothing happened in the car. Couple minutes you were in the car, you 

got out and said...you know.... This ain’t right. I have to get out of 

here.

Doc. 37-4 at 8-17.

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S.C.’s statements during this interview are simply not reliable enough to 

conclude that it is more likely than not that, in light of those statements, no 

reasonable juror would find Saterstad guilty. Consistent with her trial testimony, 

S.C. initially reiterated that Saterstad had stalked her and had offered her money to 

go across the river. Only after Wagner told her that someone other than Saterstad 

and confessed to the crime, did S.C. begin to waiver. Much of the interview 

consists of Wagner making factual statements, and we have no evidence in this 

record that he had a good faith basis for the statements of fact that he interjected 

into the interview.15 Further, given Wagner’s repeated suggestions that someone 

else confessed, given Wagner and S.C.’s friend’s interjection of their personal 

opinion that this other person was guilty, and given Wagner’s suggestion that 

Saterstad could not be guilty, S.C.’s responses cannot be considered reliable. 

Furthermore, the interview occurred more than nine years after the events in 

question, which had occurred when S.C. was a child. Moreover, S.C. did not 

swear or affirm that the statements that she made during the interview were true 

and correct. All of this leads to the conclusion that Saterstad has not met the 

demanding standard application to showing actual innocence. Accordingly, 

 

15 Although we do not consider this in making our recommendation, we note that 

in Saterstad’s supplemental PCRA petition, Attorney Gelman states that he was not 

consulted prior to this interview, but after the interview, he spoke with Wagner and 

learned that a third party (i.e. the band instructor at Bishop McDevitt) did not 

admit to this crime and that Saterstad’s photo was not in the array that Wagner 

showed S.C. Doc. 37-4 at 3-4.

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Saterstad’s procedural default of Claims 7-11 & 13 is not excused under the 

miscarriage-of-justice exception to the procedural-default doctrine.

C. Cause and Prejudice and Claim 9.

In Claim 9, Saterstad contends that Lock, his trial counsel, rendered 

ineffective assistance by failing to call surrebuttal witnesses to impeach or rebut 

the prosecution’s character witnesses. More specifically, he contends that he 

wanted Lock to call Ralph Duquette, a Hershey area coach, and Stephanie Bisor, a 

Hershey student, who both would testify to the personal bias of the prosecution’s 

rebuttal witnesses based on the “acrimonious high school sports situation involving 

the defendant’s daughter . . . .” Doc. 37-3 at 72 and Doc. 52 at 103-104. And 

while Lock tried to call Duquett and Bisor as witnesses at trial, during a sidebar,

which Saterstad contends Lock failed to preserve on the record, Judge Lewis 

refused to allow these witnesses to testify. Id. Although Saterstad raised this 

claim in his pro se PCRA petition, PCRA counsel Gelman failed to raise it in any 

of the petitions that Gelman filed. Saterstad asserts that when a litigant is 

represented by counsel, the Pennsylvania courts will not consider a pro se filing, 

and, thus, it was crucial for Gelman to raise Claim 9 in Saterstad’s counseled 

PCRA petition. And citing Martinez v. Ryan, 132 S.Ct. 1309 (2012), Saterstad 

contends that any procedural default of Claim 9 should be excused because 

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Attorney Gelman failed to raise this claim in the PCRA petition and supplements 

that he filed on behalf of Saterstad.

Here, although Judge Lewis did not specifically discuss Claim 9 in any of 

his opinions, in his order dismissing Saterstad’s PCRA claims, he referred to 

Saterestad’s pro se petition where this claim was raised. Thus, it does not appear 

that Gelman’s failure to raise this claim in a counseled PCRA petition resulted in a 

procedural default. Johnson v. Williams, 133 S.Ct. 1088, 1091 (2013) (holding that 

when a state court discusses some claims but does not specifically discuss a 

particular federal claim, there is a rebuttable presumption that the state court 

nevertheless adjudicated the federal claim on the merits). Rather, this claim, along 

with others, was procedurally defaulted when Saterstad failed to file a brief on 

appeal to the Superior Court. Moreover, even if this claim was procedurally 

defaulted by Gelman’s failure to raise it in a counseled PCRA petition, Saterstad 

cannot establish cause and prejudice to excuse that default.

To establish “cause” for a procedural default, a petitioner must “show that 

some objective factor external to the defense impeded counsel=s efforts to comply 

with the State’s procedural rule.” Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 

2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Mere “[a]ttorney 

ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s 

agent when acting, or failing to act, in furtherance of the litigation, and the 

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petitioner must ‘bear the risk of attorney error.’” Coleman v. Thompson, 501 U.S. 

722, 753 (1991) (quoting Murray, 477 U.S. at 488). Attorney error that rises to the 

level of a Sixth Amendment violation, however, does constitute cause. Id. at 753-

54. “Where a petitioner defaults a claim as a result of the denial of the right to 

effective assistance of counsel, the State, which is responsible for the denial as a 

constitutional matter, must bear the cost of any resulting default and the harm to 

state interests that federal habeas review entails.” Id. at 754. 

In Coleman, the Court held that ineffective assistance of counsel on appeal 

from a denial of state habeas review is not cause for a procedural default. 501 U.S. 

at 757. The Court in Coleman reasoned that because there is no constitutional right 

to counsel in state post-conviction proceedings, a petitioner cannot claim 

constitutionally ineffective assistance of counsel in such proceedings, and, 

therefore, attorney error on appeal of such proceedings does not constitute cause to 

excuse a procedural default. Id. at 752-754. Reiterating “that counsel’s 

ineffectiveness will constitute cause only if it is an independent constitutional 

violation,” the Court stated that “[i]n the absence of a constitutional violation, the 

petitioner bears the risk in federal habeas for all attorney errors made in the course 

of the representation.” Id. at 754-55. 

In Martinez, the United States Supreme Court created a narrow exception to 

the rule set forth in Coleman that an attorney’s errors in post-conviction collateral 

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proceedings do not constitute cause to excuse a procedural default. 132 S.Ct. at 

1315. The Court in Martinez held that a prisoner may establish cause for the 

procedural default of an ineffective-assistance-of-trial-counsel claim by 

demonstrating the ineffective assistance of his or her counsel in “initial-review 

collateral proceedings,” which the Court defined as collateral proceedings that 

“provide the first occasion to raise a claim of ineffective assistance at trial.” Id. 

The Court declined to hold, however, that there is a constitutional right to counsel 

in initial-review collateral proceedings. Id. The Court stressed that the rule of 

Coleman continues to apply “except as to initial-review collateral proceedings for 

claims of ineffective assistance of counsel at trial.” Id. at 1319.

Prior to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), under 

Pennsylvania law, when a defendant was represented by new counsel after the 

verdict, new counsel was required to raise any claims regarding prior counsel’s 

ineffectiveness in post-trial motions and on direct appeal. See Commonwealth v. 

Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977) (stating that “ineffectiveness of prior 

counsel must be raised as an issue at the earliest stage in the proceedings at which 

the counsel whose effectiveness is being challenged no longer represents the 

defendant. It follows then that when newly appointed post-trial counsel fails to 

assign the ineffectiveness of trial counsel as a ground for post-trial relief, the issue 

of trial counsel’s ineffectiveness is not properly preserved for appellate review”). 

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In Grant, however, the Pennsylvania Supreme Court overruled Hubbard “to the 

extent that it require[d] that trial counsel’s ineffectiveness be raised at that time 

when a petitioner obtains new counsel or those claims will be deemed waived” and 

held that “as a general rule, a petitioner should wait to raise claims of ineffective 

assistance of trial counsel until collateral review.” 813 A.2d at 738.

Although Saterstad was tried in September of 2003, after the Pennsylvania

Supreme Court’s decision in Grant, Saterstad’s post-trial counsel raised 

ineffective-assistance-of-trial-counsel claims in Saterstad’s post-trial motion, and

Judge Lewis, after holding a hearing on those claims, decided those claims. 

Counsel appealed and the Superior Court of Pennsylvania affirmed specifically 

stating that because the allegations of trial counsel’s ineffectiveness were explored 

at a hearing before the trial court, which addressed those claims, the claims were 

properly before the Court. Commonwealth v. Saterstad, No. 106 MDA 2005, slip 

op. at 2 (Pa.Super. Ct. Nov. 10, 2005). Thus, because Saterstad was able to raise 

ineffective-assistance-of-trial-counsel claims in post-trial motions and on direct 

appeal, Martinez is not applicable. 

Even if Martinez were applicable, however, Saterstad could not overcome 

his procedural default because to do so he must “demonstrate that the underlying 

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say 

that the prisoner must demonstrate that the claim has some merit[,]” Martinez, 132 

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S.Ct. at 1318, but here Saterstad’s claim is without merit. Lock did attempt to call 

Duquette and Bisor, but Judge Lewis did not allow him to do so. And although

Saterstad suggests that Lock was ineffective by failing to preserve on the record 

the sidebar where Judge Lewis so ruled, there is no reasonable basis to conclude 

that Saterstad was prejudiced by Lock’s failure to do so. During the crossexamination of the Commonwealth’s rebuttal witnesses it came across loud and 

clear that there was acrimony between Saterstad and some of the witnesses 

regarding Saterstad’s daughter’s PIAA elibibilty. Thus, the testimony of Duquette 

and Bisor was cumulative and there is not a reasonable probability that had Lock 

done anything differently regarding Duquette and Bisor the result of the trial would 

have been different. Accordingly, Saterstad does not have a substantial 

ineffectiveness claim against Lock in this regard, and so he cannot use Martinez to 

excuse his procedural default. 

VI. The Merits—Claims 3, 4, 6, and 14.

Saterstad raised Claims 3, 4, 6, & 14 on his direct appeal, and Judge Lewis 

and the Pennsylvania Superior Court addressed those claims. As discussed below, 

after reviewing those claims under the rubric of 28 U.S.C. § 2254(d), we conclude 

that Saterstad is not entitled to habeas relief with regard to those claims.

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A. The Standard for Addressing Habeas Claims on the Merits.

In addition to overcoming procedural hurdles, a state prisoner must meet 

exacting substantive standards in order to obtain habeas corpus relief. As amended 

by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. 

§ 2254 limits the power of a federal court to grant a state prisoner’s petition for a 

writ of habeas corpus. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). A 

federal court may not grant habeas corpus relief with respect to any claim that was 

adjudicated on the merits in state court unless the state court’s adjudication

(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).

The standard under Section 2254(d) is highly deferential and difficult to 

meet. Cullen, 131 S.Ct. at 1398. It “reflects the view that habeas corpus is a ‘guard 

against extreme malfunctions in the state criminal justice systems,’ not a substitute 

for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 

102-103 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)

(Stevens, J., concurring in judgment)). State courts are presumed to know and 

follow the law, Woods v. Donald, 135 S.Ct. 1372, 1376 (2015), and Section 

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2254(d) “‘demands that state-court decisions be given the benefit of the doubt.’” 

Cullen, 131 S.Ct. at 1398 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

Under Section 2254(d)(1), only the holdings, not the dicta, of the Supreme 

Court constitute “clearly established Federal law.” Howes v. Fields, 132 S.Ct. 

1181, 1187 (2012). “[R]eview under § 2254(d)(1) is limited to the record that was 

before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 

1398. Under the “contrary to” clause of § 2254(d)(1), a federal habeas court may 

grant the writ if the state court arrives at a conclusion opposite to that reached by 

the Supreme Court on a question of 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, 412 (2000). 

Under the “unreasonable application” clause of § 2254(d)(1), a federal 

habeas court may grant the writ if 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. at 413. But federal habeas relief 

may be granted only if the state court’s application of clearly established federal 

law was objectively unreasonable. Keller v. Larkins, 251 F.3d 408, 418 (3d Cir. 

2001). “[A]n incorrect application of federal law alone does not warrant relief.” Id. 

“[I]f the state-court decision was reasonable, it cannot be disturbed.” Hardy v. 

Cross, 132 S.Ct. 490, 495 (2011). “A state court’s determination that a claim lacks 

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merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 

on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting 

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “When assessing whether a 

state court’s application of federal law is unreasonable, ‘the range of reasonable 

judgment can depend in part on the nature of the relevant rule’ that the state court 

must apply.” Renico v. Lett, 559 U.S. 766, 776 (2010) (quoting Yarborough, 541 

U.S. at 664). “Because AEDPA authorizes federal courts to grant relief only when 

state courts act unreasonably, it follows that ‘[t]he more general the rule’ at 

issue—and thus the greater the potential for reasoned disagreement among fairminded judges—‘the more leeway [state] courts have in reaching outcomes in 

case-by-case determinations.’” Id. (emphasis in original). 

Under the “unreasonable determination of the facts” provision of 

§ 2254(d)(2), the test “is whether the petitioner has demonstrated by ‘clear and 

convincing evidence,’ § 2254(e)(1), that the state court’s determination of the facts 

was unreasonable in light of the record.” Roundtree v. Balicki, 640 F.3d 530, 537-

38 (3d Cir. 2011). “[T]he evidence against which a federal court measures the 

reasonableness of the state court’s factual findings is the record evidence at the 

time of the state court’s adjudication.” Id. at 538.

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B. Sufficiency of the Evidence—Claim 14.

Saterstad claims that the evidence was insufficient for the jury to convict 

him. Sufficiency-of-the-evidence claims are governed by the seminal case of 

Jackson v. Virginia, in which the Court held that “the relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” 443 U.S. 307, 319 (1979) (emphasis in original). This standard 

“gives full play to the responsibility of the trier of fact fairly to resolve conflicts in 

the testimony, to weigh the evidence, and to draw reasonable inferences from basic 

facts to ultimate facts,” and under this standard the court must presume that the 

trier of fact resolved any conflicts in favor of the prosecution. Id. at 319 & 326.

When raised in the context of a habeas case after a decision on the merits by 

a state court, a sufficiency-of-the-evidence claim is subject to two layers of judicial 

deference. Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012). First, “[a] reviewing 

court may set aside the jury’s verdict on the ground of insufficient evidence only if 

no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 132 

S.Ct. 2, 4 (2011). Second, a habeas court may overturn a state court decision 

rejecting a sufficiency-of-the-evidence claim “only if the state court decision was 

‘objectively unreasonable.’” Id. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)). 

“Because rational people can sometimes disagree, the inevitable consequence of 

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this settled law is that judges will sometimes encounter convictions that they 

believe to be mistaken, but that they must nonetheless uphold.” Id. 

In addressing Saterstad’s post-trial motion, Judge Lewis rejected Saterstad’s 

sufficiency-of-the-evidence claim, and on direct appeal, the Superior affirmed

based on the reasons set forth by Judge Lewis. See Commonwealth v. Saterstad, 

No. 106 MDA 2005, slip op. at 1-2 (Pa.Super.Ct. Nov. 10, 2005). Thus, we focus 

on Judge Lewis’s decision.

1. Attempted Kidnapping.

Judge Lewis first addressed the sufficiency-of-the-evidence claim with 

regard to the attempted kidnapping conviction. After setting forth the standard for 

reviewing sufficiency claims, Judge Lewis observed that a person is guilty of 

criminal attempt “when, with intent to commit a specific crime, he does any action 

which constitutes a substantial step toward the commission of that crime” Doc. 23-

9 at 4 (citing 18 Pa.C.S. §901). He then set forth the elements of kidnapping:

(a) A person is guilty of kidnapping if he unlawfully 

removes another a substantial distance under the circumstances 

from the place where he is found, or if he unlawfully confines 

another for a substantial period in a place of isolation, with any 

of the following intentions:

(1) To hold for ransom or reward, or as a shield of 

hostage.

(2) To facilitate commission of any felony or flight 

thereafter.

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(3) To inflict bodily injury on or to terrorize the victim or 

another.

(4) To interfere with the performance of public official of 

any governmental or political function. 

Id. (citing 18 Pa.C.S. §2901). Judge Lewis stated that the evidence at trial 

established that Staterstad approached S.C., at the time a ten-year-old girl, “and 

asked her if she wanted $200 to go across the river with him for thirty minutes and 

‘fool around.’” Id. at 5. He reasoned that this showed that Saterstad “had the intent 

to commit the act of kidnapping,” and by asking her to go across the river, 

Saterstad “took a substantial step towards unlawfully removing S.C. ‘a substantial 

distance under the circumstance from the place where she was found.’” Id. 

According to the judge, “[t]he fact finder could easily conclude that [Saterstad]’s

intent was to engage the child in some type of sexual activity, thus supporting an 

inference that he had the intent to facilitate the commission of a felony, or to inflict 

or terrorize the child.” Id. Thus, he concluded that the evidence was sufficient to 

sustain the conviction for attempted kidnapping. Id.

While Saterstad argues that there was no evidence that he took a substantial 

step toward kidnapping S.C., Judge Lewis reasoned that by asking S.C. to go 

across the river, Saterstad “took a substantial step towards unlawfully removing 

S.C. ‘a substantial distance under the circumstance from the place where she was 

found’” Doc. 23-9 at 5. Further, while Saterstad argues that without evidence 

regarding what he meant by “fool around” there was not sufficient evidence that he 

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intended to engage S.C. in some type of sexual activity and, thus, that he had the 

intent to facilitate the commission of a felony, to inflict injury, or to terrorize S.C. 

Given the deferential standard that we must apply under § 2254, we cannot say that 

Judge Lewis’s decision was contrary to, or an unreasonable application of, clearly 

established Supreme Court precedent. Further, it was not based on an 

unreasonable determination of the facts in light of the evidence. Thus, Saterstad’s 

sufficiency-of-the-evidence claim fails with respect to the attempted kidnapping 

conviction.

2. Attempted Luring.

We next turn to the attempted luring of a child conviction. Judge Lewis 

noted that “[a] person who lures a child into a motor vehicle without the consent, 

express or implied, of the child’s parent or guardian, unless the circumstances 

reasonably indicate that the child is in need of assistance, commits a misdemeanor 

of a the first degree.” Doc. 23-9 at 5 (citing 18 Pa.C.S. § 2910). He then reasoned 

that there was sufficient evidence for the jury to convict Saterstad of attempted 

luring since the evidence indicated that: (1) neither S.C. or her grandmother—Ms. 

Edwards—knew Sasterstad; (2) Edwards, who was also S.C.’s guardian, did not 

give Saterstad consent to take S.C. in his vehicle; and (3) there was no evidence 

that S.C. was in need of assistance. Id. 

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Saterstad contends that because Edwards was never specifically asked 

whether she gave him consent to take S.C. in his vehicle, there was insufficient 

evidence to convict him. But it is the responsibility of the jury “to draw reasonable 

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. And, here, 

it was within the province of the jury to conclude that Edwards had not given 

Saterstad consent since after S.C. pointed Saterstad out to Edwards, Edwards 

approached Saterstad to talk to him and after he drove away, she chased him, 

recorded his license plate number, and then called the police. Thus, Judge Lewis’s

decision was not contrary to, or an unreasonable application of, clearly established 

Supreme Court precedent, and it was not based on an unreasonable determination 

of the facts in light of the evidence. And so Saterstad’s sufficiency-of-theevidence claim fails with respect to the attempted luring conviction.

3. Stalking.

Finally, we turn to the stalking conviction. Judge Lewis noted that “[a] 

person commits the crime of stalking when he engages in a course of conduct or 

repeatedly communicates to another person under circumstances which 

demonstrate or communicate either an intent to place such other person in 

reasonable fear of bodily injury or to cause substantial emotional distress to such 

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other person.” Doc. 23-9 at 6 (quoting 18 Pa.C.S. §2709.1(a)(2)).16 The judge 

pointed out that the evidence showed that Staterstated, repeatedly and over the 

course of several days, drove around the parking lot of S.C.’s apartment complex 

and the area surrounding her apartment and that the he drove by her bus stop. Id. 

He reasoned that a ten-year-old child “would obviously be placed in fear and suffer 

from substantial emotional distress when [Saterstad], an adult male, repeatedly 

followed her around her neighborhood, including driving around her school bus 

stop and asking her if she wanted to ‘fool around.’” Id. And he concluded that the 

evidence was sufficient to convict Saterstad of stalking. Id.

Saterstad contends that the prosecution did not present any evidence that he 

had a specific intent to place S.C. in fear or bodily injury or to cause her substantial 

emotional distress and that, to the contrary, he had a legitimate reason for being in 

the area. While the evidence of intent was thin, it was within the jury’s province to 

reject Saterstad’s testimony regarding the reason for his being in the area 

repeatedly and to conclude that Saterstad’s actions would place a child in fear and 

that he intended the natural consequences of his actions. Given the “twicedeferential standard” that applies to habeas claims that the evidence was 

insufficient to convict, Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012), Judge 

 

16 While Judge Lewis referred to 18 Pa.C.S. §2901.1(a)(2), as there is no such 

statute and as 18 Pa.C.S. 2709.1 is the Pennsylvania stalking statute, it is clear that 

he meant to refer to 18 Pa.C.S. 2709.1(a)(2). 

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Lewis’s decision is entitled to deference under AEDPA. His decision was not 

contrary to, or an unreasonable application of, clearly established Supreme Court 

precedent, and it was not based on an unreasonable determination of the facts in 

light of the evidence. Thus, “[a]ffording due respect to the role of the jury and the 

state courts,” Coleman, 132 S.Ct. at 2065, Saterstad’s sufficiency-of-the-evidence 

claim fails with respect to the stalking conviction. 

C. Ineffective Assistance of Counsel—Claims 3, 4, and 6.

Saterstad raises three ineffective-assistance-of-counsel claims that he 

presented in post-trial motions and on direct appeal: (1) trial counsel was 

ineffective by failing to impeach S.C. with her multiple, prior inconsistent 

statements; (2) trial counsel was ineffective by failing to request that witnesses be 

sequestered; and (3) trail counsel was ineffective by failing to call Saterstad’s wife, 

Mary Saterstad, to impeach S.C.’s testimony. 

The Sixth Amendment provides that “ [i]n all criminal prosecutions, the 

accused shall enjoy the right . . . to have the assistance of counsel for his defence.” 

U.S. Const. amend VI. The purpose of the right to the assistance of counsel is to 

ensure a fair trial, and “the Court has recognized that ‘the right to counsel is the 

right to the effective assistance of counsel.’” Strickland v. Washington, 466 U.S. 

668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). 

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“The benchmark for judging any claim of ineffectiveness must be whether 

counsel’s conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just result.” Id. “The Sixth 

Amendment guarantees reasonable competence, not perfect advocacy judged with 

the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003). The clearly 

established federal law as to an ineffective-assistance claim is the standard set forth 

in Strickland, 466 U.S. at 687, which requires a two-part analysis. 

Under the first prong of Strickland, the petitioner must establish that 

counsel’s performance was deficient. Id. at 687. To do so, he must establish that 

“counsel’s representation fell below an objective standard of reasonableness.” Id. 

at 688. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. 

at 689. As such, the court “must apply a ‘strong presumption’ that counsel’s 

representation was within the ‘wide range’ of reasonable professional assistance,” 

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 

689), and “[t]o overcome that presumption, a defendant must show that counsel 

failed to act ‘reasonabl[y] considering all the circumstances.’” Cullen v. Pinholster, 

131 S.Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688). “The 

challenger’s burden is to show ‘that counsel made errors so serious that counsel 

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.’” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687). 

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Under the second prong of Strickland, the petitioner must establish 

prejudice. Strickland, 466 U.S. at 687. To do so, the petitioner must show a 

reasonable probability that, if not for counsel’s errors, the result of the proceeding 

would have been different. Id. at 694. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. “That requires a 

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Pinholster,

131 S.Ct. at 1403 (quoting Harrington, 131 S.Ct. at 791). 

To prevail on an ineffective-assistance claim, a petitioner must satisfy both 

prongs of Strickland. A court can choose which prong of the standard to apply 

first, and it may reject an ineffectiveness claim on the ground that the petitioner 

was not prejudiced without addressing whether counsel’s performance was 

deficient. Strickland, 466 U.S. at 697.

“Surmounting Strickland’s high bar is never an easy task,” Padilla v. 

Kentucky, 559 U.S. 356, 371 (2010), and “[e]stablishing that a state court’s 

application of Strickland was unreasonable under § 2254(d) is all the more 

difficult.” Richter, 562 U.S. at 105. When the state court has decided the claim on 

the merits, “[t]he question ‘is not whether a federal court believes the state court’s 

determination’ under the Strickland standard ‘was incorrect but whether that 

determination was unreasonable—a substantially higher threshold.’” Knowles v. 

Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 

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465, 473 (2007)). “And, because the Strickland standard is a general standard, a 

state court has even more latitude to reasonably determine that a defendant has not 

satisfied that standard.” Id. 

After holding a hearing, Judge Lewis rejected the three ineffectiveassistance claims that Saterstad raised in his post-trial motion, and on direct appeal, 

the Superior affirmed based on the reasons set forth by Judge Lewis. See 

Commonwealth v. Saterstad, No. 106 MDA 2005, slip op. at 1-2 (Pa.Super.Ct. 

Nov. 10, 2005). Thus, we focus on Judge Lewis’s decision.

Judge Lewis addressed Saterstad’s ineffective-assistance-of-counsel claims 

under the standard for deciding such claims under the PCRA. Although the 

Pennsylvania courts use slightly different language to articulate the ineffectiveness 

standard, the standard used by the Pennsylvania courts is consistent with the 

Strickland standard. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) 

(concluding that the Pennsylvania courts applying the standard from Pennsylvania 

cases did not apply a rule of law that contradicts Strickland and finding that the 

state court’s decision was not contrary to established Supreme Court precedent). 

Thus, Judge Lewis’s decision on Saterstad’s ineffective-assistance-of-counsel 

claims was not contrary to clearly established federal law. So we turn to whether 

his decision resulted in a decision that involved an unreasonable application of 

clearly established federal law, i.e., Strickland.

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1. Impeachment of S.C. with Prior Inconsistent Statements.

Saterstad claims that his trial counsel, Joshua Lock, was ineffective by 

failing to impeach S.C. with her multiple, prior inconsistent statements. In this 

regard, Saterstad points out that S.C. gave a statement on February 1, 2001, that 

she gave a statement on February 11, 2001, that she testified at the preliminary 

hearing on February 28, 2001, and that she testified at trial in September of 2003. 

He summarizes those statements and notes that “the details of the incident differ, 

e.g., who was with S.C., where and when the incidents occurred, the period of time 

during which they occurred, and the actual wording of the solicitation, e.g., 

whether a hotel was mentioned.” Doc. 54 at 77-81. Judge Lewis rejected 

Saterstad’s claim that Lock was ineffective by failing to impeach S.C. with prior 

inconsistent statements. Although Judge Lewis acknowledged that Saterstad 

pointed out several inconsistent statements made by S.C. including the number of 

days over which the incidents occurred and whether Saterstad approached her with 

his car window already down or whether she witnessed him roll the window down, 

he found that Lock was not ineffective by failing to impeach S.C. with her prior 

inconsistent statements. Doc. 23-9 at 7-8. First, he noted that Lock had a 

reasonable strategic basis for his decision:

At an evidentiay hearing before this court on October 28, 

2001, trial counsel explained his reasonable strategic basis for 

not attempting to impeach S.C. with prior inconsistent 

statements. Trial counsel pointed out that the child was simply 

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mistaken as to the exact days that she saw [Saterstad] in his car. 

Trial counsel further testified that in his opinion it would not be 

wise to “quibble with a child” about whether she was right or 

wrong about exactly when she saw [Saterstad]’s car. Trial 

counsel also testified that strategically, in his opinion, it is 

unwise to attack a child witness for every single inconsistency 

that the child might have made in various statements, due to an 

adverse affect that it may have on the jury. 

Doc. 23-9 at 7-8 (citations omitted). 

Second, he concluded that Saterstad was not prejudiced by counsel’s failure 

to impeach S.C. with all her inconsistent statements:

There is not a reasonable probability that the outcome of 

the proceeding would have been different but for the errors or 

omissions of counsel. The exact number of dates over which 

these events occurred, and whether or not S.C. actually watched 

[Saterstad] roll down his car window are not significant 

inconsistencies that would have led to a different outcome. 

These events happened repeatedly in the morning, afternoon 

and early evening hours over the course of several days. Ten 

year old S.C. was obviously confused as to the exact days and 

times that these numerous incidents occurred. Further, if trial 

counsel attacked S.C. on the stand with her prior inconsistent 

statements, the jury may have been repulsed by such strategy, 

and therefore impeaching S.C. may have had an adverse effect 

on [Saterstad]. This court finds that trial counsel was not 

ineffective when he failed to impeach the victim, S.C., with 

prior inconsistent statements.

Doc. 23-9 at 8.

While it may have been a sound trial strategy to impeach S.C. with every 

inconsistent statement that she made, we cannot say that Lock was ineffective by 

failing to do so. He pointed to a strategic reason for not doing so, he did impeach 

her one statement, and her testimony otherwise showed that she was unclear about 

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the precise sequences of events. Given these circumstances, under the “doubly 

deferential” standard that applies to a Strickland claim evaluated under 28 U.S.C. 

§ 2254(d)(1), Knowles, 556 U.S. at 123, Judge Lewis’s determination that Lock 

was not ineffective by failing to impeach S.C. with all her prior inconsistent 

statements was reasonable. Accordingly, Saterstad is not entitled to habeas relief 

on this claim of ineffective assistance of counsel.

2. Sequestration of Witnesses.

Saterstad claims that Lock was ineffective by failing to request that 

witnessed be sequestered and that as a result A.M. was able to align her testimony 

with the testimony of S.C.

Characterizing this claim as one of arguable merit, Judge Lewis noted that 

“[t]he purpose of sequestration is to prevent a witness from molding his testimony 

with that presented by other witnesses,” that by not requesting that the witnesses be 

sequestered, trial counsel gave A.M. the opportunity to hear S.C. testify,17 that 

counsel should have requested sequestration, and that there is no reasonable basis 

why he did not do so. Doc. 23-9 at 9. Although Lock had testified at the 

evidentiary hearing that he could not recall the reason why he did not request that 

the witnesses be sequestered, he also testified that his reasoning may have been to 

 

17 Although Judge Lewis also stated that A.M. also had the opportunity to hear 

Sharon Edwards testify, A.M. actually testified before Edwards. 

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allow A.M. to sit in the courtroom so that she would testify to the same facts as 

S.C. and then counsel could impeach her with prior inconsistent statements that she 

had given to defense counsel’s investigator. Id. Judge Lewis concluded, however,

that Lock did not appear to have a strategic reason for not requesting sequestration 

because Lock was unable to recall the exact reason for doing do and he was unsure 

whether he intentionally did so. Id. Nevertheless, Judge Lewis concluded that 

Saterstad was not prejudiced in this regard. Id. He reasoned:

A.M. testified at trial that she was present in the courtroom 

during testimony from S.C. Additionally, A.M. testified as to 

events that she had been told about during conversations with 

her friend, S.C. The jury was able to hear and see that A.M. 

was present during S.C.’s testimony, and that A.M. was 

testifying as to events that she had been told about, therefore 

allowing the jury to properly weigh A.M’s credibility. Because 

the jury was aware of, and able to take into consideration the 

fact that witnesses were not sequestered, [Saterstad] was not 

prejudiced. Additionally, because A.M’s testimony came 

solely from what she had been told by S.C., there is not a 

reasonable probability that the outcome of the proceeding 

would have been different had the witnesses been sequestered. 

Doc. 23-9 at 10 (citations omitted).18

 

18 Judge Lewis also states that “there is not a reasonable probability that [the] 

outcome of proceedings would have been different, especially considering that trial 

counsel referenced statements given to a defense investigator, which may have 

been available for impeachment.” Doc. 23-9 at 9-10. The import of this statement 

is not entirely clear, but we note that at trial Lock did call the defense investigator,

Stanley Gochenour. He questioned Gochenour about his interview of A.M. in 

November of 2001, and he used Gochenour’s testimony to impeach A.M.’s 

testimony that on the day she saw the red van, nobody was with her and that it was 

not around Christmas of 2000 that S.C. told her that a man had approached her, 

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Because A.M. testified about times when she herself saw the gray car, the 

man, and the red van, we do not agree with Judge Lewis’s statement that A.M.’s 

testimony came solely from what S.C. told her. Nevertheless, considering that 

A.M. was cross-examined rather extensively about the basis of her knowledge, she 

showed considerable confusion, and at one point she admitted that she had given 

an answer because she had heard S.C. testified to such, the jury was aware that 

A.M. may have attempted to mold her testimony to that of S.C. and was able to 

weigh that in their decision, and under the deferential standard of review, we 

cannot say that Judge’s Lewis’s conclusion was an unreasonable application of 

Strickland. Accordingly, Saterstad is not entitled to habeas relief on this claim of 

ineffective assistance of counsel.

3. Mary Saterstad.

Saterstad claims that Lock was ineffective by failing to call Saterstad’s wife, 

Mary, to testify that at the time that S.C. and A.M. said they saw the red van, the 

red van, which belonged to his wife, was in Maryland. At the evidentiary hearing 

on the post-trial motion, Mary Saterstad testified that she drove the red van to 

Maryland on January 26, 2011, for the birth of her grandchild, and that she 

remained in Maryland until February 7, 2001. Doc. 23-7 at 49. She also had credit 

 

offered her $200, and asked if she wanted to go across the river. Compare Doc. 23-

3 at 57-58 (A.M.’s testimony) with Doc. 23-4 at 52-54 (Gochenour’s testimony).

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card receipts for purchases made in Maryland during that time period. Id. at 52-53.

She further testified at the evidentiary hearing that during a break in the trial, she 

brought up the red van with Lock. Id. at 52. 

Lock also testified at the evidentiary hearing. He testified that he gave his 

file to Attorney Kishel after Kishel began representing Saterstad. Doc. 23-7 at 8-9. 

Lock testified that he did not recall a specific conversation with Saterstad about 

calling Mary Saterstad as a witness. Id. at 29-30. He also testified that he did not 

recall speaking to Mary about her testifying because he did not believe that she had 

anything relevant about which to testify. Id. at 30. The following exchange then 

took place at the evidentiary hearing between Kishel and Lock:

Q: [by Kishel] I am handing you a piece of paper that 

was found in your file and I have copied for the Court. Does 

this chart look familiar to you?

Well, let me say this. Would this have been a 

document that you would have drafted yourself in preparation 

for trial?

A: [by Lock] No.

Q: Would it be a document Mr. Saterstad prepared in 

preparation for trial for you?

A: That’s what I believe.

Q: This chart identifies inconsistencies but if you look at 

the third line from the bottom, the three rows across. The next 

day the man was at the bus stop and cites pages one and three 

under the victim’s statement. Next column reads, the car was 

parked at the bus stop at 7:45 and the question was, did you tell 

any of your other friends, the school bus driver, anybody at 

school. And that answer was no. That was page 48 and then 

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the notes in that column indicate can establish that wife and 

wife’s red van was out of the state during this period attending 

to our first grandchild. Do you see that?

A: Yes.

Q: Have you seen this paper before?

A: You showed it to me before the hearing and I know I 

saw it then. Whether I saw it before that or not, I can’t tell you 

with certainty. I mean if your telling me you got it from my 

file, then obviously I did. 

Q: I also am handing you a copy of a credit card 

statement and there were several in the file but this particular 

statement is from January through February of 2001, which 

would have been the time frame in which this incident allegedly 

occurred. Would you—have you seen this before?

A: Yes.

Q: This is—can you tell me where you obtained this?

A: From Mr. Saterstad.

Q: This was a credit card statement that I found in your 

file. Would you agree with me that the—let me ask this 

question first. Do you recall when Mr. Saterstad provided this 

to you?

A: No, but it was well in advance of the trial.

Q: The entries on this statement if you refer to, I 

apologize they are misstapled. They are out of order. First 

page that you have towards the bottom. The payments indicate 

transactions that would have occurred in Maryland, various 

transactions from January 26th through the 28th, correct?

A: Yes. I see transactions that occurred in Maryland.

Q: Then on the third page because they are out of order, 

the transactions continue from January 28th through February 

3rd in Maryland, correct?

A: That’s right.

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Q: Did you ever have a conversation with Mr. Saterstad 

about Mary taking the red van to Maryland during this time 

frame?

A: No.

Q: Did you ever have it during trial that Mary was to be 

called as a witness to establish that the red van was out of the 

state during this time frame?

A: No.

Q: Can you offer any explanation as to why these two 

pages were in the file other than what you have already 

identified?

A: Yes. A transaction—my recollection is that a 

transaction occurred at a Sunoco gas station at Second and 

Maclay Streets in Harrisburg on the day that the initial contact 

with [S.C.] allegedly occurred.

Q: I don’t recall that ever being testified to. Do you 

recall that specifically?

A: Yes or perhaps if you’re telling me you don’t 

remember it, perhaps it was to establish—I don’t know. I 

thought that was—that there was a transaction that day. I know 

Mr. Saterstad was seeking to demonstrate that his customary 

route for returning home from downtown Harrisburg was north 

on Second Street to Maclay, east on Maclay to Cameron, north 

on Cameron to the northern part of the county. And evidence 

of that was stop—he had a reason to be downtown in 

Harrisburg on various occasions, including the day on which 

the attempted luring allegedly occurred.

If he would have followed the route I just described to 

you, it would have put him in the area in which his car was seen 

at about the time that it was seen and I guess the stops if you’re 

telling me there wasn’t a transaction on the date of the 

attempted luring, then the credit cards would have been used to 

established that that was indeed the route that he would 

typically take because that was a gas station that he had 

patronized in the past.

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. . .

Q: Did you ever question Mr. Saterstad as to why there 

are other transactions on that credit card bill with respect to 

Baltimore when, in fact, there are also transaction in Harrisburg 

or the surrounding Harrisburg area, Lykens I believe?

A: I don’t have a recollection of doing it, no.

Q: Can you identify or shed some light as to why if this 

was in your file Mrs. Saterstad was not called to testify 

regarding the red van? Your recollection is you did not have 

that conversation?

A: I can tell you that I didn’t have that conversation, 

number one. And number two, if I had had that conversation, I 

would have been very skeptical about whether or not it was 

accurate or not because the child’s description of the vehicle 

owned by Mr. Saterstad if not personally observed by her 

would imply and perhaps do a lot more than imply that the 

police troubled themselves to go to PennDOT, identify every 

vehicle owned by the Saterstad family, having identified a red 

van as among those vehicles, provided that information to the 

child so that she in turn could provide it to the police, who then 

could include it in their report. That probably would have been 

imprudent.

Doc. 23-7 at 30-35.

Lock also testified that he had no reason to call Mary Saterstad and that only

shortly before the evidentiary hearing on the post-trial motion did he become 

aware of the suggestion that the van was in Maryland. Id. at 40. According to 

Lock, the defense was that Saterstad was routinely in S.C.’s neighborhood 

attempting to purchase homes to rehabilitate and looking for locations to place pay 

phones and thus “there was nothing remarkable about the presence of either his car 

or the van in that neighborhood.” Id. 

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On recross-examination, Lock was confronted with an email sent to his 

office by Saterstad asking whether Mary was going to be called as a witness. Id. at

41-42. Further, when asked if he could explain why the chart with the notation 

about Mary taking the van out of state was in his file, he testified:

A: I had no knowledge about it because I never heard it. 

If I read this, it was forgotten. If you’re asking me what I 

believe the reference in the E-mail was. It was to establish the 

time that Mr. Saterstad returned home on the night of the 

attempted—of the alleged lurring to once again place him the 

neighborhood at or about the time in the car described by the 

children at or about the time the events that they testified to 

allegedly occurred.

Q: Well, if, in fact, Mary Saterstad’s testimony was that 

she was in Maryland, she couldn’t very well testify to that, 

could she?

A: Mary Saterstad never told me she was in Maryland. 

Mr. Saterstad never told me she was in Maryland.

Q: Well, I understand that. That wasn’t necessarily my 

question. My question was if, in fact, Mary was in Maryland, 

she would not have been able to testify as to what time the 

defendant got home the evening of the alleged incident? Would 

you agree with that?

A: I would agree with that as a metaphysical proposition. 

I was told, however, as a practical matter that she was home 

when Mr. Saterstad arrived.

Q: Do you specifically recall those conversations?

A: Yes.

Q: When and where?

A: In my office in a conference room referred to as the 

oak room probably no less than 20 times.

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Id. at 42-43. When asked what his trial strategy was, Lock testified that it was to 

prove that Saterstad was in the area when this happened but that he had an 

explanation for being there, to show that S.C.’s testimony was not credible, and to 

present character evidence, which would suggest that it was improbable that 

Saterstad committed the alleged crimes. Id. at 43-44.19

During the evidentiary hearing on his post-trial motion, Saterstad also 

testified. He testified that prior to trial he talked to Lock several times about 

calling Mary to testify about her driving the red van out of state at the time it was 

allegedly seen in Harrisburg. Id. at 55. He also testified that prior to trial he 

prepared and sent to Lock the chart previously shown to Lock. Id. at 54-56. He 

testified that he sent the chart by email through Lock’s secretary as well as an 

email asking if Mary was going to testify. Id. at 55-56. According to Saterstad, he 

initially provided Lock credit card statements to show that he made purchases at 

the Sunoco on Second and Maclay Streets, but after his wife brought up the fact 

that she was out of state, he brought that up to Lock. Id. at 56-57. He also testified 

that during a break at trial, among other things, he asked Lock if Mary was going 

to testify. Id. at 57. He testified that he did not recall Lock’s answer, that the 

answer was neither affirmative nor negative, but that they just went on to discuss 

 

19 There is also an affidavit from Lock in the record. Doc. 37-2 at 9. It is not clear, 

however, whether this affidavit was accepted as part of the record at the 

evidentiary hearing, and Judge Lewis does not refer to it in his opinion. As such, 

we do not consider it. 

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something else. Id. Although Saterstad testified that he provided a lot of input to 

Lock, he does not recall discussing the chart that he made with Lock. Id. at 58. 

Judge Lewis concluded that Lock was not ineffective for failing to call Mary 

Saterstad at trial. Doc. 23-9 at 11. First, he acknowledged that Mary testified at the 

hearing that she was available to testify and was willing to cooperate and that 

Saterstad contends that if Mary had been called to testify was trial, she would have 

testified and shown receipts to prove that she had the red van in Maryland during 

the time that Saterstad was purportedly seen driving it. Doc. 23-9 at 11. Second, 

Judge Lewis stated that Lock testified that he was not made aware, either prior to 

or at trial, that Mary Saterstad had the red van in Maryland, and, according to 

Lock, he did not become aware of that until the day of the evidentiary hearing. Id. 

Then, the judge stated and concluded:

Trial counsel also testified that the defense strategy at 

trial was never to deny the fact that [Saterstad] was in the area 

of the alleged incident while driving either a gray Metro or a 

red van, but rather to show that he had a legitimate, workrelated purpose for being in the area. Additionally, any credit 

card receipts that Mary Saterstad may have produced would 

simply prove that purchases were made in Maryland. The 

credit card receipts did not indicate what vehicle she was 

driving when such purchases were made. After review of the 

record, this court is satisfied that trial counsel was not 

ineffective when he failed to call Mary Saterstad as a witness. 

Id.

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Saterstad argues that Judge Lewis’s decision was based on an unreasonable 

determination of the facts in light of the evidence presented because he credited 

Lock’s testimony that Lock did not know prior to or during trial that Mary 

Saterstad had taken the van to Maryland during the relevant time, but given the 

chart and credit card statements, Lock should have known. While Judge Lewis’s 

opinion is not entirely clear, we, however, do not read his opinion as basing his 

conclusion on a finding that Lock did not know about the assertion that the van 

was in Maryland. Judge Lewis set forth the summary of Lock’s testimony in that 

regard in the same paragraph that he set forth that Mary was available at trial to 

testify and what she would have testified to if called. Then, in a separate 

paragraph, Judge Lewis talks about Lock’s trial strategy and that the credit card 

receipts would not prove what vehicle Mary Saterstad was driving when the 

purchases were made in Maryland. From this, we think that Judge Lewis was 

concluding that Lock was not ineffective because his trial strategy was reasonable 

and because Saterstad was not prejudiced by Lock’s failure to call Mary Saterstad 

as a witness at trial.20 

 

20 Even if Judge Lewis’s decision is construed as based on a finding that Lock did 

not know of the contention that Mary Saterstad had the van out of state and 

assuming that that finding was unreasonable in light of the evidence presented, for 

the reasons discussed below, we would not conclude, even under a de novo

standard of review, that Lock was ineffective by failing to call Mary Saterstad as a 

witness at trial.

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Moreover, a reasonable attorney could decide to forgo calling Mary 

Saterstad to challenge S.C. and A.M.’s testimony about the red van and to 

concentrate on the chosen defense, which included showing that although Saterstad 

was in the area, he was there for a legitimate reason. This is especially so since it 

could not reasonably be disputed that Saterstad was in the area since S.C.’s 

grandmother recorded Saterstad’s license plate after S.C. pointed out Saterstad’s

car and Saterstad as the man that attempted to solicit her. While S.C. and A.M. 

testified that they saw Saterstad in the red van a couple of days after the initial 

solicitation attempt, Mary Saterstad’s testimony, if accepted by the jury, would 

only have shown that the van was in Maryland until February 7, 2001, less than a 

week after the dates S.C. and A.M. testified they saw the van. In sum, while 

hindsight shows that Lock’s strategy may not have been the best strategy, “[t]here 

is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion 

of other reflects trial tactics rather than ‘sheer neglect,’” Harrington v. Richter, 562 

U.S. 86, 109 (2011) (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003)), and it

is at least arguable that a reasonable attorney could pursue the trial strategy that 

Lock did. 

Further, considering all the testimony, both at trial and at the evidentiary 

hearing, there is not a reasonable probability that if Mary Saterstad had testified at 

trial, the result of the trial would have been different. While her testimony would 

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have contradicted that of S.C. and A.M. as to when they purportedly saw Saterstad 

in the red van, it would most likely only have caused the jury to believe that the 

girls were mistaken as to dates, given that Saterstad was in the area frequently, that 

he sometimes drove the van, and that Mary Saterstad contends that the van was in 

Maryland only to February 7, 2001. In sum, Saterstad was not prejudiced by 

Lock’s failure to call Mary Saterstad as a witness.

Under the “doubly deferential” standard that applies to a Strickland claim 

evaluated under 28 U.S.C. § 2254(d)(1), Knowles, 556 U.S. at 123, Judge Lewis’s 

decision was not unreasonable.21 Accordingly, Saterstad is not entitled to habeas 

relief on this claim of ineffective assistance of counsel.

VII. The Merits—Claims 1, 5, and 12.

For the same reasons, discussed previously, that Saterstad procedurally 

defaulted Claims 7-11 & 13, it appears that he procedurally defaulted Claims 1, 5, 

& 12. But the respondent does not specifically argue that Claims 1, 5, & 12 are 

procedurally defaulted. Accordingly, rather than recommending that those claims 

be denied as procedurally barred, we address the claims on the merits. And we do 

so using a de novo standard of review since the Pennsylvania Superior Court, 

which dismissed Saterstad’s appeal on collateral review for failure to file a brief, 

 

21 See n. 19.

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did not adjudicate the claims on the merits. See Cone v. Bell, 556 U.S. 449, 472 

(2009) (reviewing claim de novo where the deferential standard that applies under 

28 U.S.C. § 2254(d) to claims that were adjudicated on the merits in state court 

proceedings is inapplicable).

Claims 1, 5, and 12 are ineffective-assistance-of-trial-counsel claims, and to 

briefly recap, under Strickland, Saterstad must establish that counsel’s performance 

was deficient and that there is a reasonable probability that, if not for counsel’s 

errors, the result of the proceeding would have been different. Strickland, 466 U.S.

at 687 & 694. “Even under de novo review, the standard for judging counsel’s 

representation is a most deferential one.” Premo v. Moore, 562 U.S. 115, 122 

(2011).

A. Claims 1 & 5.

In Claim 1, Saterstad claims that Lock was ineffective by failing to 

investigate and present evidence to impeach S.C. More specifically, he contends 

that Lock should have discovered and impeached S.C. with her 8/28/03 retail theft 

conviction and with her school records. In Claim 5, Saterstad claims that Lock 

was ineffective by failing to address the Commonwealth’s failure to disclose in 

violation of Brady v. Maryland,373 U.S. 83 (1963), material relating to S.C.’s 

conviction for retail theft.

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1. S.C.’s Retail Theft Conviction.

Prior to trial Lock requested from the prosecution, among other things, the 

criminal records and records regarding “criminal activity, arrest, and/or conviction 

of any and all witnesses whom the Government intend[s] to call during the course 

of this case.” See Doc. 42 at 75-76. The prosecution did not, however, turn over 

S.C.’s arrest record. While Saterstad claims that Lock was ineffective by failing to 

investigate and present evidence regarding S.C.’s retail theft conviction and by 

failing to address the Commonwealth’s failure to disclose S.C.’s arrest record, he 

has not pointed to or suggested that there is any evidence from which it can 

reasonably be inferred that Lock could have discovered the retail theft conviction 

given that S.C. was a juvenile at the time and juvenile records are generally sealed. 

See Doc. 52 at 87 (acknowledging that “at the time of trial and for some years 

thereafter, until 2007, such record was not publicly available”) and at 89 (“There is 

not an obligation on the defense to discover a criminal history, particularly where it 

is unavailable until many years after the trial.”). Accordingly, there is no basis to 

conclude that Lock rendered ineffective assistance of counsel with respect to S.C.’s 

retail theft conviction.22

 

22 While Lock presented a claim based on Brady to the state court and while 

Saterstad’s counsel in his reply brief frames Claim 5 as a Brady claim, Saterstad’s 

habeas petition in this case does not contain a Brady claim. Rather, in his habeas 

petition, Saterstad frames Claim 5 as an ineffective-assistance-of-trial-counsel 

claim. See Doc. 1 at 15. Thus, that is how we will consider the claim. We note, 

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2. S.C.’s School Records.

After serving a subpoena on the Harrisburg School District for S.C.’s school 

records and being told by the School District that due to privacy concerns it would 

not produce the records voluntarily, Lock filed a motion to compel the disclosure 

of S.C.’s school records to the trial court for an in camera review. Doc. 42 at 78.

In response, Judge Lewis ordered the Harrisburg School District to produce S.C.’s 

school records for an in camera review by the Court to determine whether the 

records contain any exculpatory evidence that should be disclosed to the defense, 

and he ordered that the records be delivered to his chambers in a sealed envelope. 

Id. After the Harrisburg School District informed Judge Lewis that S.C.’s school 

records were with the Ronald Brown Charter School, rather than the Harrisburg 

School District, Judge Lewis, on October 18, 2001, ordered that the Ronald Brown 

Charter School provide him with S.C.’s records within 10 days for an in camera

review. Id. at 78-79. There is nothing further in the record about the in camera

review of S.C.’s school records.

There is no basis in the record to conclude that Lock was ineffective with 

respect to S.C.’s school records. Saterstad asserts that there is no indication that 

the in camera review ever occurred, and he suggests that Lock should have 

 

however, that if framed as a Brady claim, Claim 5 is procedurally defaulted for the 

same reasons as Claims 7-11 and 13 are procedurally defaulted.

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followed up. But there is no basis to conclude that Judge Lewis did not conduct 

the in camera review that he ordered. Further, there is no evidence in the record as 

to whether S.C.’s school records contain any exculpatory material. While Saterstad 

concedes that the record does not contain any indication of what information is 

contained in S.C.’s school records. He, nevertheless, requests an evidentiary 

hearing with regard to S.C.’s records. 

When reviewing a claim under §2254(d)(1), the habeas court is limited to 

the record that was before the state court that adjudicated the claim on the merits. 

Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). But where, as here, the state 

court has not adjudicated the claim on the merits, that limitation does not apply, 

and 28 U.S.C. § 2254(e)(2) must be considered. Han Tak Lee v. Glunt, 667 F.3d 

397, 405 (3d Cir. 2012). Section 2254(e)(2) provides: 

If the applicant has failed to develop the factual basis of a 

claim in State court proceedings, the court shall not hold an 

evidentiary hearing on the claim unless the applicant shows 

that—

(A) the claim relies on—

 (i) a new rule of constitutional law, made retroactive to cases 

on collateral review by the Supreme Court, that was previously 

unavailable; or 

 (ii) a factual predicate that could not have been previously 

discovered through the exercise of due diligence; and 

(B) the facts underlying the claim would be sufficient to 

establish by clear and convincing evidence that but for the 

constitutional error, no reasonable factfinder would have found 

the applicant guilty of the underlying offense.

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“Section 2254(e)(2) begins with a conditional clause, ‘[i]f the applicant has 

failed to develop the factual basis of a claim in State court proceedings,’ which 

directs attention to the prisoner’s efforts in state court.” Williams v. Taylor, 529 

U.S. 420, 431 (2000). The first question is “whether the factual basis was indeed 

developed in state court, a question susceptible, in the normal course, of a simple 

yes or no answer.” Id. If the answer to that first question is no, the next question is 

whether the prisoner “failed” to develop the factual basis for his claim. The term 

“failed” as used in Section 2254(e)(2) connotes some omission, fault or negligence 

on the part of the prisoner. Id. at 431-32. “Under the opening clause of 

§ 2254(e)(2), a failure to develop the factual basis of a claim is not established 

unless there is lack of diligence, or some greater fault, attributable to the prisoner 

or the prisoner’s counsel.” Id. at 432. “The purpose of the fault component of 

“failed” is to ensure the prisoner undertakes his own diligent search for evidence.” 

Id. at 435. Whether the prisoner was diligent in this context depends upon whether 

the prisoner made a reasonable attempt, in light of the information available at the 

time, to investigate and pursue his claims in state court. Id. “Diligence will require 

in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in 

state court in the manner prescribed by state law.” Id. at 437. If the prisoner was 

diligent in attempting to develop the factual basis of his claims at the relevant 

stages in the state proceedings, the prisoner has not “failed to develop” the facts 

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under § 2254(e)(2)’s opening clause. Id. “In that circumstance, an evidentiary 

hearing is not barred by § 2254(e)(2).” Id. On the other hand, if the prisoner was 

not diligent in attempting to develop the factual basis of his claims at the relevant 

stages in the state proceeding, “an evidentiary hearing cannot be granted unless the 

prisoner’s case meets the other conditions of § 2254(e)(2). Id. at 430.

Here, Saterstad asserts that he requested a hearing in the state court, but his 

request was denied. Doc. 52 at 76. Based on that assertion, we will assume that 

Saterstad was diligent in attempting to develop the factual basis of his claim in the 

state proceedings, and, thus, he did not fail to develop the facts under 

§ 2254(e)(2)’s opening clause. As such, an evidentiary hearing is not barred by 

§ 2254(e)(2). But the fact that § 2254(e)(2) does not bar an evidentiary hearing, 

does not establish that Saterstad is entitled to an evidentiary hearing. Glunt, 667 

F.3d at 406. Rather, “the decision to grant such a hearing rests in the discretion of 

the district court.” Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010). And in 

exercising that discretion, the court must consider: “(i) ‘whether the petition 

presents a prima facie showing which, if proven, would enable the petitioner to 

prevail on the merits of the asserted claim,’ and (ii) whether the relevant factual 

allegations to be proven at the evidentiary hearing are ‘contravened by the existing 

record’ or the record ‘otherwise precludes habeas relief.’” Glunt, 667 F.3d at 406-

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407 (quoting Palmer, 592 F.3d at 393 (internal quotation marks and citations 

omitted)). 

Here, Saterstad has not presented a prima facie showing, which, if proven, 

would entitle him to relief on the merits. He has not alleged that he has any facts 

to present at a hearing as to the contents of S.C.’s school records or as to whether 

Judge Lewis received and reviewed those records. It appears, instead, that he 

wants an evidentiary hearing to discover whether there are any facts supporting his 

claim. But that is not the purpose of an evidentiary hearing. “[A]n evidentiary 

hearing is not a fishing expedition.” Banks v. Workman, 692 F.3d 1133, 1144 n.4 

(10th Cir. 2012). “Instead, its function is to resolve disputed facts.” Id.; see also 

Lenz v. Washington, 444 F.3d 295, 304 (4th Cir. 2006) (“An evidentiary hearing is 

not a fishing expedition for facts as yet unsuspected, but is instead an instrument to 

test the truth of facts already alleged in the habeas petition.”) (internal quotation 

marks and citation omitted). As Saterstad has not suggested that he has any facts 

to present at an evidentiary hearing, he is not entitled to such a hearing. And he 

has not shown that Lock was ineffective with respect to S.C.’s school records. 

B. Claim 12. 

In Claim 12, Saterstad contends that because the evidence was insufficient to 

sustain a conviction, Lock was ineffective by failing to file a motion for judgment 

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of acquittal. Judge Lewis did, however, consider the sufficiency of the evidence 

and concluded that there was sufficient evidence to convict Saterstad. And, as 

discussed above, Judge’s Lewis’s decision in that regard was reasonable. Given 

that, we cannot say that Lock was ineffective by failing to file a motion for 

judgment of acquittal based on the sufficiency of the evidence. 

VIII. Recommendation.

For the foregoing reasons, IT IS RECOMMENDED that Saterstad’s 

petition for a writ of habeas corpus be DENIED. 

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to 

which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A judge 

shall make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which objection 

is made and may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge. The 

judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive 

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further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

Submitted this 25th day of November, 2015.

S/ Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

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