BERLE M. SCHILLER, District Judge.
AND NOW, this 22nd day of June, 2010, upon consideration of the Petition for Writ of Habeas Corpus, Petitioner's Initial and Supplemental Briefs in Support of his Petition, the Commonwealth's Response to the Petition and Response to the Supplemental Brief, inclusive of all exhibits thereto, the transcript of the evidentiary hearing conducted on April 29, 2009, Petitioner's trial brief, the Commonwealth's Post-Hearing Response, Petitioner's Reply thereto, the Commonwealth's Supplemental Post-Argument Brief, Petitioner's Response and Supplemental Post-Hearing Submission, the Commonwealth's Response thereto, Petitioner's Second Supplemental Post-Hearing Submission, The Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells, the Commonwealth's Objections to the Report and Recommendation, Petitioner's Objections to the Report and Recommendation, the Commonwealth's Response thereto, and the state court record, it is hereby ORDERED that:
IT IS SO ORDERED.
CAROL SANDRA MOORE WELLS, United States Magistrate Judge.
On August 6, 1996, when Terrance Lewis ("Petitioner") was only seventeen years old, Hulon Bernard Howard was shot once in the back and died. The police, based on information provided by Lena Laws, a crack-addicted witness who had smoked crack shortly before the shooting, identified Petitioner as a participant in the robbery that preceded Mr. Howard's senseless death. More than one year after the crime had occurred, the police arrested Petitioner, who along with his two codefendants, Jimel Lawson and Jehmar Gladden, was tried jointly in May 1999. Petitioner was convicted of second degree murder and given the mandatory sentence in Pennsylvania of life imprisonment.
Over the eleven years that have passed since his trial, evidence has gradually surfaced to demonstrate that Petitioner was not present at and did not participate in the robbery and death of Mr. Howard. This court conducted an evidentiary hearing on April 29, 2009; Kizzi Baker, a new witness, Tanisha Thorton, Petitioner's sister, Jehmar Gladden and Petitioner testified. Based upon credible testimony, the court believes that Petitioner may not have been present at or participated in the tragic events of August 6, 1996; he may be actually innocent. However, as the court will explain, because of the process by which Petitioner sought relief in the state courts, the stringent requirements for relief imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEPA"), and the Supreme Court's failure to hold that habeas relief can be granted to one who is actually innocent based solely upon his non-guilt, Petitioner cannot obtain relief based upon any claim herein presented. Reluctantly, this court recommends that Petitioner be denied relief, without further hearings.
The facts leading to Petitioner's arrest and conviction, as summarized by the Pennsylvania Superior Court,
Commonwealth v. Lewis, No. 1842 EDA 1999, slip op. at 1-2 (Pa.Super.Ct. Nov. 15, 2000) ("Super. Ct. Dir. App. op.").
Petitioner was convicted of second degree murder, robbery and criminal conspiracy on May 24, 1999; he was sentenced to a life term of incarceration. Commonwealth v. Lewis, January Term 1998 No. 869, slip op. at 1 (Phila.Co. Dec. 22, 2006) ("Tr. Ct. PCRA op. II"). Represented by new counsel, see Pet. at 10, Petitioner appealed to the Pennsylvania Superior Court and his conviction and sentence were affirmed on November 15, 2000.
Next, on January 30, 2002, Petitioner sought relief under Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa. Cons.Stat. Ann. §§ 9541-46. Tr. Ct. PCRA op. II at 1. Court-appointed counsel filed an amended petition on March 18, 2002. Id. The PCRA court dismissed the entire petition on February 13, 2003 for lacking in merit. Id. at 1-2. The Superior Court affirmed on December 8, 2004, finding that none of Petitioner's claims had merit.
On September 2, 2005, Petitioner filed his second PCRA petition. Tr. Ct. PCRA op. II at 2. Counsel was appointed and filed an amended petition on May 23, 2006. Id. On August 18, 2006, the PCRA court gave Petitioner notice of its intent to dismiss the PCRA petition on the ground that it was untimely. Id. Petitioner, through counsel, timely objected on August 25, 2006 but the court dismissed the PCRA petition on September 21, 2006. Id. Petitioner, through counsel, then appealed to the Superior Court. Id. On November 10, 2006, the PCRA court ordered Petitioner to file a statement of matters complained of on appeal pursuant to Pa. R.App. P.1925(b). Commonwealth v. Lewis, No. 3020 EDA 2006, slip op. at 3 (Pa.Super.Ct. Nov. 14, 2007) ("Super. Ct. PCRA. op. II"). On November 14, 2007, the Superior Court concluded that Petitioner had failed to file the required statement of matters, id. at 3-4, and, as a result, had waived all appellate issues.
The instant petition for federal habeas corpus relief was filed on September 12, 2005 and the brief in support hereof on October 13, 2005. In the petition and brief, Petitioner raised claims that: (1) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to subpoena Police Sergeant Mariano Maddela to testify for the defense; (2) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to call Detectives Kane and Hughes to testify that Ms. Laws had not, in fact, given them an additional statement which was consistent with her trial testimony concerning how many times she had seen Petitioner prior to the day of the crime; (3) direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to seek removal of a juror who fell asleep during the trial; and (4) newly discovered evidence, an affidavit from co-defendant Gladden, exonerates Petitioner. Pet. at 9, 1-7 (reverse); Pet'r's Br. at 5, 7-28. In his May 19, 2008 Supplemental Brief, Petitioner claims that: (5) new evidence (the affidavits of Gladden and Kizzi Baker) establishes his actual innocence, thereby excusing the procedural default of his habeas claims; (6) the state courts erred in determining that his actual innocence claim had been untimely presented in his second PCRA petition; and (7) trial counsel rendered ineffective assistance by failing to conduct any pre-trial investigation, which would have uncovered the exonerating testimony of Kizzi Baker. Pet'r's Supplemental Brief ("Pet'r's Supp. Br.") at iii, 5-17.
Habeas relief is only available for violations of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Consequently, claims based upon state law are not cognizable. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Further, habeas review concerns only proceedings that resulted in the petitioner's conviction, not errors that arose during state collateral proceedings. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998). For this reason, claims premised upon delay, or other problems encountered obtaining state collateral relief, are inappropriate grounds for granting habeas relief. See id. Inasmuch as Ground Six is based on alleged state courts error in applying the PCRA timeliness requirement, it is not cognizable and should be dismissed without review. See Hassine, 160 F.3d at 954.
A habeas petitioner must exhaust state court remedies before obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). The traditional way to exhaust state court remedies in Pennsylvania was to fairly present a claim to the trial court, the Pennsylvania Superior Court and the Pennsylvania Supreme Court. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230 (3d Cir.1992). However, in light of a May 9, 2000 order of the Pennsylvania Supreme Court, it is no longer necessary for Pennsylvania inmates to seek allowance of appeal from the Pennsylvania Supreme Court in order to exhaust
If a habeas petitioner has presented his claim to the state courts but the state courts have declined to review the claim on its merits because the petitioner failed to comply with a state rule of procedure when presenting the claim, the claim is procedurally defaulted. See Harris v. Reed, 489 U.S. 255, 262-63, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). When a state court has declined to review a claim based on a procedural default and the claim is not later addressed on the merits by a higher court, the habeas court must presume that the higher state court's decision rests on the procedural default identified by the lower state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Finally, when a habeas petitioner has failed to exhaust a claim and it is clear that the state courts would not consider the claim because of a state procedural rule, the claim is procedurally defaulted.
Procedurally defaulted claims cannot be reviewed unless "the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. 2546. In order to demonstrate cause, the petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the state's procedural rule." Id. at 753, 111 S.Ct. 2546 (citation omitted). Examples of cause include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) a showing that some interference by state officials made compliance with the state procedural rule impracticable; (3) attorney error that constitutes ineffective assistance of counsel. Id. at 753-54, 111 S.Ct. 2546.
The fundamental miscarriage of justice exception is limited to cases of "actual innocence." Schlup v. Delo, 513 U.S. 298, 321-22, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In order to demonstrate that he is "actually innocent," the petitioner must present new, reliable evidence of his innocence that was not presented at trial.
Petitioner failed to present Ground Seven on direct appeal or in his first PCRA petition. See supra 3 & nn. 4-5. He did raise it in the May 23, 2006 memorandum of law PCRA counsel filed in support of the amended, second PCRA
Petitioner maintains that the proposed testimony of Ms. Baker and Mr. Gladden (as reflected in their affidavits) demonstrates that he did not enter the victim's home on August 6, 1996 and, therefore, could not have participated in the events which caused the victim's death. Co-defendant Gladden admitted that he was
Kizzi Baker lived near the victim's home on August 6, 1996; she was standing on the corner of 61st and Samson Streets and could see the victim's house at the time of the crime. See Affidavit of Kizzi Baker at 1.
These affidavits, if true, certainly would exculpate Petitioner because they indicate that he did not participate in the charged offenses. Specifically, they contradict the testimony of Lena Laws—the only eyewitness to the crime who testified at trial— who had identified Petitioner as the man who had entered the victim's house armed with a shotgun and directed co-defendant Gladden to search her, Omar, and Denise for money, before co-defendant Lawson shot the victim. (N.T. 5/17/99 at 64-73). The affidavits constitute new evidence because they were not available at the time of trial.
To assess the reliability of these affidavits, the court conducted an evidentiary hearing on April 29, 2009.
On November 30, 2009, Petitioner's habeas counsel submitted a one-page statement from Jimel Lawson. Supplemental Post-Hearing Submission in Support of Terrance Lewis' Petition for Writ of Habeas Corpus ("Pet'r's First Supp. Sub."), Exhibit E. In this statement, Mr. Lawson said he does not know Petitioner and Petitioner did not sell drugs with him; he first met Petitioner at approximately the time of their joint trial for Mr. Howard's death, and he has not had contact with Petitioner or Mr. Gladden since they were incarcerated in 1997. Id. Mr. Lawson's statement is clearly exculpatory as it refutes Ms. Laws' trial testimony that Petitioner had sold drugs with Messrs. Lawson and Gladden out of Mr. Howard's home on 50 occasions prior to Mr. Howard's death, (N.T. 5/17/99 at 52, 139), and that Petitioner was present at the shooting. Id. at 46. Were Mr. Lawson to testify at a future hearing in a manner consistent with his recent statement, the court's conclusion that Petitioner is innocent would be reinforced and Petitioner's ability to satisfy the Schlup standard would increase. However, as will be explained infra Section II(B)(3), Petitioner is barred from having a hearing concerning the merits of this ineffective assistance of counsel claim, thus, it would be futile to conduct further hearings concerning his actual innocence.
Ground Seven alleges that trial counsel rendered ineffective assistance for failing to find Ms. Baker prior to trial and present her testimony at trial. Pet'r's Supp. Br. at iii, 8-9. Claims of ineffective assistance of counsel must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. In making this determination, the court's scrutiny of counsel's performance must be "highly deferential." Id. at 689, 104 S.Ct. 2052. The court should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. In short, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id.
Second, the petitioner must show that counsel's deficient performance "prejudiced the defense" by "depriv[ing] the [petitioner] of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. That is, the petitioner must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome," id. at 694, 104 S.Ct. 2052, but it is less than a preponderance of the evidence. Id. at 693, 694, 104 S.Ct. 2052.
If the petitioner fails to satisfy either prong of the Strickland test, there is no need to evaluate the other part, as his claim will fail. Id. at 697, 104 S.Ct. 2052. Further, counsel will not deemed to be ineffective for failing to present an unmeritorious claim or objection. Parrish v. Fulcomer, 150 F.3d 326, 328-29 (3d Cir.1998); Moore v. Deputy Commrs. of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir.1991).
Because trial counsel's performance is entitled to a presumption of effectiveness, and since trial counsel is available to testify, Petitioner cannot carry his burden to rebut the presumption of effectiveness based on the alleged lack of investigation without an evidentiary hearing. See Thomas v. Horn, 570 F.3d 105, 125 (3d Cir.2009). Under the AEDPA, Petitioner may not have an evidentiary hearing concerning the merits of his claim if he failed to develop the factual basis for his claim in prior state court proceedings.
While Petitioner's second PCRA petition was pending, he discovered part of the factual basis for Ground Seven on March 24, 2006, when his sister, Tanisha Thornton, had a chance encounter with Ms. Baker. (N.T. 4/29/09 at 68-69). Ms. Baker executed an affidavit concerning the favorable evidence she could provide on May 4, 2006. Affidavit of Kizzi Baker at 1-2. PCRA counsel filed an amended PCRA petition along with Ms. Baker's affidavit on May 23, 2006. See Respondent's Motion to Supplement Record, Exhibit A. In his memorandum of law, PCRA counsel requested an evidentiary hearing at which Ms. Baker, Ms. Thornton and Mr. Gladden could testify. See id., Memorandum of Law at 15. However, PCRA. counsel did not request that trial counsel testify at the hearing. No hearing was in fact held because the PCRA court dismissed the PCRA petition as untimely. Tr. Ct. PCRA op. IT at 2. Petitioner appealed, without raising Ground Seven, and his appeal was deemed waived because counsel had failed to properly file the statement of matters complained of on appeal. Super. Ct. PCRA. op. II at 2-7.
Petitioner, through his counsel, exhibited a lack of diligence in several regards, First, PCRA counsel failed to request that trial counsel testify at a PCRA hearing. This was fatal because, although Ms. Baker could provide evidence concerning Strickland prejudice, she could not provide any evidence concerning whether trial counsel's performance was deficient. Instead, trial counsel had the crucial evidence concerning that component of Strickland. See Thomas v. Horn, 570 F.3d at 125. Although present counsel has obtained an unsworn statement from trial counsel which addresses the performance prong of Strickland, see Pet'r's First Supp. Sub., Exhibit C, PCRA counsel did not. PCRA counsel's failure to do so—no doubt stemming from his complete failure to request trial counsel's testimony at a PCRA hearing—also demonstrates a lack of diligence. See Lewis v. Horn, 581 F.3d at 104 n. 7. Further, although not directly related to the failure to obtain a hearing, PCRA counsel's subsequent failure to include Ground Seven in the Superior Court appeal and his failure to file the required statement of matters complained of on appeal further demonstrate a lack of diligence.
Because Petitioner is barred by § 2254(e)(2) from having an evidentiary hearing on the merits of Ground Seven, it would be futile to explore further the question of his actual innocence because his innocence, under current Supreme Court precedent, is merely a gateway to consider the merits of his defaulted constitutional claim. See Schlup v. Delo, 513 U.S. at 314-15, 115 S.Ct. 851; Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The Supreme Court has noted that a claim of innocence based on newly discovered evidence is not a ground for habeas relief. Herrera, 506 U.S. at 400, 113 S.Ct. 853 (citing Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)); see also Fielder v. Varner, 379 F.3d 113, 122 (3d Cir.2004) (Alito, J.) (citing Herrera, 506 U.S. at 400, 113 S.Ct. 853). This reluctance to allow
This court's inability to grant Petitioner habeas relief based upon his compelling showing of innocence is frustrating. However, that is the import of Herrera and, given the hierarchical structure of the federal court system, this court is required to follow Herrera and decline any direct habeas relief based upon Petitioner's showing of innocence.
Petitioner cannot appeal the court's resolution of Ground Seven unless he is granted a certificate of appealability ("COA"). See 28 U.S.C. § 2253(c). In order to obtain a COA, Petitioner must make a substantial showing of the denial of a constitutional right. § 2253(c)(2). Where a claim is dismissed on procedural grounds, the petitioner must demonstrate that reasonable jurists would debate both the court's procedural Ruling and whether the underlying claim has merit. Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). This court concludes that a COA should issue.
As to the procedural question of whether Petitioner is entitled to a hearing, the court finds that reasonable jurists might debate whether Petitioner was sufficiently diligent in pursuing a hearing in the state court. First, there is no Supreme Court or Third Circuit precedent which addresses the precise circumstances here. Second, Petitioner did request a PCRA hearing on May 23, 2006 when he presented Ground Seven to the state court and the state court declined to provide him a hearing. There is some basis to conclude that this constitutes the requisite level of diligence. See Thomas v. Varner, 428 F.3d at 498. However, PCRA counsel failed to request testimony from trial counsel and abandoned Ground Seven on appeal. Although this court believes that these acts constitute a lack of the requisite diligence, reasonable jurists might disagree. Hence, a COA could be granted on the procedural question of Petitioner's entitlement to a hearing on the merits of Ground Seven.
Since Petitioner has not been afforded an evidentiary hearing on the merits of Ground Seven, he has difficulty in making a substantial showing that his ineffective assistance claim has merit. In light of the presumption that trial counsel's performance was reasonable, see Strickland, 466 U.S. at 689, 104 S.Ct. 2052, the fact that Ms. Baker was discovered in 2006 completely by chance, Ms. Baker's admission that at the time of the crime, she was reluctant to speak to the police about the crime, Affidavit of Kizzi Baker at 2, and the unlikelihood that trial counsel could have located Ms. Baker prior to trial
As to the prejudice component, the court believes that Ms. Baker's testimony, without the corroboration provided by Petitioner's and Mr. Gladden's testimony, does not establish prejudice. On her own, Ms. Baker can only state that, at the time she was looking in the direction of Mr. Howard's home on August 6, 1996, she did not see Petitioner enter or leave the home. Since she was not inside Mr. Howard's home at the relevant time and may have failed to observe other people enter and leave Mr. Howard's home prior to the shooting, she cannot alone definitively establish that Petitioner was not present at the shooting. Of course, that is not what prejudice requires. See Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052 (requiring only a reasonable probability, which is less than a preponderance of the evidence, of a different outcome). Bearing this proper standard in mind, the court cannot ignore the fact that Ms. Laws was a crack addict
The Commonwealth does not dispute that grounds one through three are exhausted since their substance was raised in Petitioner's first PCRA petition and appeal. See supra 3 & n. 5. Any claims adjudicated by the state court must be considered under the standard of review established by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEPA"), which provides that this court cannot grant habeas relief on a claim unless the state court's adjudication of it:
28 U.S.C. § 2254(d). The habeas statute also provides that any findings of fact made by the state court must be presumed to be correct; Petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A state court's adjudication of a claim is contrary to United States Supreme Court precedent if the state court has applied a rule that contradicts the governing law set forth in Supreme Court precedent or if the state court confronts a set of facts which are materially indistinguishable from a decision of the Supreme Court and the state court arrives at a different result from the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In determining whether a state court's decision was contrary to Supreme Court precedent, the habeas court should not be quick to attribute error. See Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). Instead, state court decisions should be "given the benefit of the doubt." Id. In this regard, it is not necessary that the state court cite the governing Supreme Court precedent or even be aware of the governing Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). All that is required is that "neither the reasoning nor the result of the state-court decision contradicts" Supreme Court precedent. Id.
If, however, the State court does correctly identify the governing United States Supreme Court precedent, unreasonable application analysis, rather than contrary analysis, is appropriate. Williams v. Taylor, 529 U.S. at 406, 120 S.Ct. 1495. A state court decision constitutes an unreasonable application of Supreme Court precedent if the state court correctly identifies the governing legal rule but applies it unreasonably to the facts of the petitioner's case. Id. at 407-08, 120 S.Ct. 1495. In making the unreasonable application determination, the habeas court must ask whether the state court's application of Supreme Court precedent was objectively unreasonable. Id. at 409, 120 S.Ct. 1495. The habeas court may not grant relief simply because it believes the state court's adjudication of the petitioner's
The Supreme Court, addressing the AEDPA's factual review provisions in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), interpreted § 2254(d)(2) to mean that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Id. at 340, 123 S.Ct. 1029. Yet, the habeas court can "disagree with a state court's credibility determination." Id.; see also Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (rejecting state court's factual determination under § 2254(e)(1) and § 2254(d)(2)). If the state court's decision based on a factual determination is unreasonable in light of the evidence presented in the state court proceeding, habeas relief is warranted under § 2254(d)(2).
Petitioner maintains that direct appellate counsel
The Superior Court adjudicated this claim as follows. First, it found that, if
Under habeas review, this court must accept the Superior Court's conclusion that Ms. Laws's omission does not qualify as an inconsistency under Pennsylvania evidentiary law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (per curiam) (habeas court is bound by a state court determination of a state law question). For this reason, any effort to call Sergeant Maddela to testify concerning this omission would have been futile. The Supreme Court has never held that an attorney could be ineffective for failing to pursue a futile course; therefore, this aspect of the Superior Court's adjudication was not contrary to Supreme Court precedent. Further, the Third Circuit has held that an attorney is not ineffective for failing to pursue futile arguments. See Parrish, 150 F.3d at 328-29; Moore v. Deputy Commrs. of SCI-Huntingdon, 946 F.2d at 245. Therefore, this aspect of the Superior Court's adjudication was a reasonable application of Supreme Court precedent. See Marshall, 307 F.3d at 71 n. 24; Moore v. Morton, 255 F.3d at 104 n. 8.
The Superior Court found that the only inconsistent statement that Sergeant Maddela could recount was that the person who fired the shot into the ceiling was the same person who shot the victim and that this minor discrepancy was not prejudicial. This characterization of the inconsistency is factually inaccurate; Ms. Laws' statement to Sergeant Maddela differed from her trial testimony in two regards. First, Ms. Laws herself testified at trial that the shotgun was "racked," but not fired. (N.T. 5/17/99 at 69, 88, 116-18). Second, Ms. Laws testified that two weapons were used—one defendant (who she identified as Petitioner) had a shotgun, (N.T. 5/17/99 at 66-67). and another (co-defendant Lawson) had the nine millimeter handgun which was used to kill the victim. Id. at 66, 72. Further, there was no evidence that a shotgun was fired in the victim's home, (N.T. 5/19/99 at 34-35), and the medical examiner testified that the victim was killed by a single bullet, not shotgun projectiles. (N.T. 5/19/99 at 59-65). Thus, if Sergeant Maddela had testified concerning what Ms. Laws told him, the jury would have learned over the course of the trial that what she told Sergeant Maddela was quite inconsistent with her trial testimony and with what other witnesses had independently determined. However, the question is whether the additional doubt that could be cast on the accuracy of Ms. Laws' trial testimony raised the reasonable probability of an acquittal. Since the Superior Court did not appreciate the fullness of the harm to Ms. Laws's credibility that Sergeant Maddela could have provided, this court finds that the Superior Court did not actually analyze and adjudicate the claim, so that de novo review, not the deferential review provided by 28 U.S.C. § 2254(d), is appropriate. Cf. Thomas v.
Nonetheless, the court believes that Petitioner was not prejudiced by the additional inconsistencies Sergeant Maddela could have revealed. It is unlikely that the jury would have been swayed by Sergeant Maddela informing them that Ms. Laws had told him the shotgun was fired into the ceiling and then used to kill the victim because other evidence demonstrated that this was simply not true. That is, the jury would learn that Ms. Laws inaccurately stated that the shotgun was fired into the ceiling
Petitioner maintains that direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective for failing to call Detectives Kane and Hughes to testify that Ms. Laws had not, in fact, given them an additional statement which was consistent with her trial testimony concerning how many times she had seen Petitioner prior to the day of the crime. Pet. at 9, 4-5 (reverse); Pet'r's Br. at 17-23. Ms. Laws's initial police statement only mentioned having seen Petitioner sell drugs from the victim's home once, Pet'r's Br. at 18; (N.T. 5/17/99 at 140, 141). Yet, at trial, she said she had seen Petitioner selling drugs from the victim's home on 50 prior occasions. Pet'r's Br. at 18; (N.T. 5/17/99 at 139). When confronted with this inconsistency at trial, Ms. Laws claimed that she had subsequently given Detectives Kane and Hughes an additional written statement, which corrected this error. Pet'r's Br. at 18; (N.T. 5/17/99 at 140, 143-47). Trial counsel. during a sidebar conference, was advised by the Commonwealth that Ms. Laws submitted no such subsequent statement; the trial court accepted that representation. Pet'r's Br. at 19; (N.T. 5/17/99 at 147-50).
Petitioner argues that trial counsel should have called Detectives Kane and Hughes so that they could testify that Ms. Laws did not, in fact, provide them with any statement wherein she said that Petitioner sold drugs from the victim's house on 50 prior occasions. Pet'r's Br. at 19-20. He believes that then testimony would have shown Ms. Laws barely knew Petitioner
The Superior Court resolved Petitioner's claim by finding that, since Ms. Laws had not made the alleged statement of correction, trial counsel was not ineffective for failing to call Detectives Kane and Hughes to testify whether Ms. Laws had made the statement. See Super. Ct. PCRA op. I at 5. The Superior Court failed to mention that Petitioner did not want the detectives to testify concerning whether Ms. Laws had given the statement of correction but, instead, to confirm that she had not. As Petitioner notes, once the detectives confirmed this point, the jury would have had an additional basis to discount Ms. Laws's identification of Petitioner as a participant in the crime. Again, the Superior Court failed to appreciate the substance of Petitioner's claim and, in fact, deemed it insignificant. Thus, this court finds the Superior Court did not actually adjudicate Petitioner's claim and will review it de novo. See Thomas, 570 F.3d at 124.
In order to determine whether direct appellate counsel was ineffective, it is appropriate to, first, consider whether or not trial counsel was ineffective. See Wright v. Vaughn, 473 F.3d 85, 90 (3d Cir.2006). The court concludes that Petitioner cannot show he suffered prejudice as a result of trial counsel's failure to call Detectives Kane and Hughes, hence, trial counsel was not ineffective.
If Ms. Laws had insisted at trial that she had given an additional statement in which she told the police that Petitioner had sold drugs from the victim's home on 50 prior occasions, then there would have been some value in calling Detectives Kane and Hughes to testify that, in fact, she had not. However, Ms. Laws admitted on redirect and re-cross examination that the only supplemental statement she gave to police corrected her error concerning which part of the victim's body had been shot. (N.T. 5/17/98 at 186-87, 188-89). Thus, the testimony Petitioner faults trial counsel for omitting was merely cumulative and, hence, not prejudicial. See Marshall, 307 F.3d at 88 (finding no prejudice from trial counsel's failure to present evidence that, nonetheless, had been presented by co-defendant's counsel and other witnesses); cf. Lusick, 270 Fed.Appx. at 111 (declining to fault trial counsel for failing to impeach a witness with a particular piece of evidence when the jury was already aware of the inconsistencies in that witness's testimony); United States v. Smith, 104 Fed.Appx. at 271 (finding that defense counsel were not ineffective for failing to present an additional witness to testify concerning evidence that was presented to the jury through a different witness). Therefore, this claim does not meet Strickland standards and should be denied.
Petitioner maintains that direct appellate counsel was ineffective for failing to argue that trial counsel had been ineffective
The Superior Court resolved this claim by adopting the PGRA court's finding that Petitioner had failed to: (1) identify the juror who allegedly fell asleep, and (2) demonstrate any prejudice from the alleged lapse of attention. See Super. Ct. PCRA op. I at 4-5. The Superior Court went on to summarize its conclusion as follows: "Without pleading `who' fell asleep, `when' in the trial, this supposedly occurred, or `what' that juror missed during trial, [Petitioner] has failed to satisfy his burden [to demonstrate prejudice]." Id. at 5.
The Superior Court resolved Petitioner's claim based on his failure to prove the factual basis for it. Since Petitioner's affidavits do not actually reveal which juror allegedly fell asleep during the trial, see supra n. 29, the state court's finding that he did not identify the juror is reasonable in light of the evidence that was presented to the state court; hence, Petitioner cannot be afforded relief under 28 U.S.C. § 2254(d)(2). In addition, this finding of fact must be presumed correct and Petitioner bears a heavy burden to rebut it. See 28 U.S.C. § 2254(e)(1). Petitioner has not done so because the affidavits he submits fail to identify the juror who allegedly fell asleep and he provides no other evidence.
Ground Six is non-cognizable and must be dismissed. Although Ground Seven is procedurally defaulted, the default could be excused. The court has concluded that, nonetheless, no relief can be granted on the claim and but that a certificate of appealability ("COA") should be issued for this claim. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The remaining substantive claims—Grounds One, Two and Three-lack merit. The court finds that Third Circuit precedent forecloses relief on Grounds One and Two, hence, a COA should not issue for those claims. Petitioner has not provided proper factual support for Ground Three, hence, a COA should not issue for that claim either. Accordingly, I make the following:
AND NOW, this 30th day of March, 2010, for the reasons contained in the preceding report, it is hereby RECOMENDED that all of Petitioner's claims be DISMISSED or DENIED, without any further evidentiary hearing. Petitioner has demonstrated that reasonable jurists could find this court's procedural ruling concerning Ground Seven debatable, and made a substantial showing that Ground Seven has merit; hence, a certificate of appealability should be issued for Ground Seven. Petitioner has not made a substantial showing of the denial of his Constitutional rights concerning Grounds One, Two and Three; hence, there is no probable cause to issue a certificate of appealability for those claims.
It be so
