LISA PUPO LENIHAN, Magistrate Judge.
Petitioner, Virgil Londy Greer (hereinafter referred to as "Greer" or "Petitioner"), a state prisoner, has petitioned the Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). For the reasons that follow, the Petition will be denied.
The following recitation is taken from the Opinion of the PCRA court dated December 27, 2010, which was adopted by the Pennsylvania Superior Court on appeal from the denial of PCRA relief.
(Opinion of PCRA court dated Dec. 27, 2010, ECF No. 10-3 at pp.3-8.)
Petitioner was charged by Information filed November 19, 2004, in the Court of Common Pleas of Allegheny County at CC No. 200414970 with one count of Criminal Homicide, 18 Pa. C.S.A. § 2504, arising from the death of Charlene Washington on or about April 18, 1995. (Resp't Ex. 1, Docket, ECF No. 10-1 at pp.1-12.)
Petitioner proceeded to trial by jury before Judge Cashman on November 14, 2007. He was represented at trial by Attorney John Elash and Attorney Phillip P. DiLucente. Assistant District Attorney (ADA) Laurel Brandstetter appeared for the Commonwealth.
On November 19, 2007, the jury returned its verdict, finding Petitioner guilty of First Degree Murder. Petitioner was sentenced on February 13, 2008 to a mandatory term of life imprisonment.
On March 14, 2008, Attorney Kirk Henderson, with the Office of the Public Defender of Allegheny County, filed a Notice of Appeal to the Superior Court, which was docketed at 508 WDA 2008. (Resp't Ex. 2, Docket, ECF No. 10-1 at pp.13-15.) Subsequently, however, on June 9, 2008, Attorney Henderson filed a Pracecipe to discontinue the appeal.
Petitioner filed a pro se Post-Conviction Collateral Relief Act ("PCRA") Petition on July 30, 2008. (Resp't Ex. 3, pro se PCRA Petition, ECF No. 10-1 at pp.16-39.) Attorney Patrick K. Nightingale was appointed to assist him in connection with post-conviction proceedings.
Attorney Nightingale filed an Amended PCRA Petition on February 4, 2009, and raised the following claims:
(Resp't Ex. 4, Amended PCRA Petition, ECF No. 10-2 at pp.1-20.)
The Commonwealth, through ADA Ronald M. Wabby, Jr., filed an Answer to the Amended PCRA Petition on March 9, 2009. (Resp't Ex. 5, Commonwealth's Answer, ECF No. 10-2 at pp.20-41.) With Judge Cashman presiding, a PCRA hearing was held on the petition on July 20, 2009. Subsequently, Judge Cashman issued an Order denying relief on July 28, 2009. (Resp't Ex. 6, Order dated July 28, 2009, ECF No. 10-2 at p.42.)
Attorney Nightingale filed a timely Notice of Appeal to the Pennsylvania Superior Court, which was docketed at 1320 WDA 2009. (Resp't Ex. 7, Docket Sheet, ECF No. 10-2 at pp.43-46; Ex. 8, Notice of Appeal, ECF No. 10-3 at p.1.) Judge Cashman issued his Opinion on December 27, 2010. (Resp't Ex. 9, Opinion dated Dec. 27, 2010, ECF No. 10-3 at pp.2-17.)
On March 21, 2011, Petitioner submitted a brief to the Pennsylvania Superior Court raising the following issues:
(Resp't Ex. 10, Appellant's Brief, ECF No. 10-3 at pp.18-42.)
On April 5, 2011, the Commonwealth, through ADA Sandra Preuhs, filed a brief in response to Petitioner's appellate arguments. (Resp't Ex. 11, Appellee's Brief, ECF No. 10-4 at pp.1-35.)
On June 22, 2011, the Pennsylvania Superior Court issued a Judgment Order addressing Petitioner's appeal from the PCRA court's Order dated July 28, 2009. (Resp't Ex. 12, J. Order dated July 28, 2009, ECF No. 10-4 at pp.36-37.) The Pennsylvania Superior Court in its Judgment Order stated that the trial court's December 27, 2010 Opinion "ably sets forth the factual history of this case, and sufficiently addresses each of Appellant's claims. Accordingly, we adopt Judge Cashman's Opinion as our own."
On July 8, 2011, Petitioner, through Attorney Nightingale, filed a Petition for Allowance of Appeal ("PAA") to the Pennsylvania Supreme Court, docketed at 350 WAL 2011. (Resp't Ex. 13, Docket, ECF No. 10-4 at pp.38-40; Resp't Ex. 14, PAA, ECF No. 10-5 at pp.1-40.) In his Petition, Petitioner, through Attorney Nightingale raised the following issue:
By Order dated October 17, 2011, the Pennsylvania Supreme Court denied Petitioner's PAA. (Resp't Ex. 13, Order dated Oct. 17, 2011, ECF No. 10-5 at p.41.)
On August 27, 2012,
Where the state courts have reviewed a federal issue presented to them and disposed of the issue on the merits, AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: (1) where the State court decision was "contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States" or (2) where the State court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05. The Court explained the two situations in the following terms:
Williams, 529 U.S. at 412-13. The Court of Appeals for the Third Circuit has also elucidated the "contrary to" clause by noting that "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (quoting Matteo v. Superintendent, SCI-Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc)). Moreover, the "unreasonable application" test is an objective one; "a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 392 F.3d 92, 100 (3d Cir. 2005) (citation omitted). It is Petitioner's burden to prove the State court decision is either contrary to or an unreasonable application of clearly established federal law. See Matteo, 171 F.3d at 888; Werts, 228 F.3d at 197.
AEDPA also permits federal habeas relief where the State court's adjudication of the claim "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)(2). Section 2254(d)(2) mandates the federal habeas court to assess whether the state court's determination was reasonable or unreasonable given that evidence. If the state court's decision based on such a determination is unreasonable in light of the evidence presented in the state court proceeding, habeas relief is warranted. Within this overarching standard, of course, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, section 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence.
With these principles in mind, the Court turns to the facts of this case. In his Petition, Petitioner raises three claims of ineffective assistance of counsel.
Ineffective assistance of counsel claims are "governed by the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984)." Shelton v. Carroll, 464 F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). For AEDPA purposes, the
In assessing an ineffective assistance of counsel claim, "the ultimate focus of inquiry must be on the fundamental fairness of the proceeding . . . . In every case the court should be concerned with whether . . . the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results." Id. at 696.
In his first claim, Petitioner alleges that his trial counsel were ineffective for failing to present evidence in a motion to suppress indicating that Petitioner's statement to Det. Logan was given after he invoked his right to counsel. Specifically, Petitioner states the following in his Petition:
(ECF No. 3 at p.5.) Petitioner presented this claim in his Amended PCRA Petition, and, after raising the claim, the court determined that an evidentiary hearing was necessary in order to determine whether Petitioner was entitled to relief on any of his ineffectiveness claims. As such, on July 20, 2009, Petitioner, Attorney Nightingale, and ADA Wabby appeared before Judge Cashman for an evidentiary hearing.
The following background is relevant with respect to this claim.
Det. Smith testified at trial that Petitioner was located on October 22, 2004, for the execution of a search warrant for a blood sample. (TT at p.136.) Petitioner was taken for the blood draw and then taken to the homicide office, where he was read the Pittsburgh Police Pre-Interrogation Warning form. (TT at p.137.) According to Det. Smith, Petitioner was cooperative with the blood draw, and cooperative through the reading of the rights form, stating that he understood, and he initialed the form (TT at p.138), which was signed by Det. Smith and his partner Det. Rush (TT at p.139). He noted that Petitioner did not indicate any reluctance in speaking to the police. (TT at p.139.)
On cross-examination, when asked if he spoke to Petitioner about whether he wanted a lawyer, Det. Smith indicated that this was covered by the warning form. (TT at pp.143-144.) He explained that the form was read to Petitioner immediately before he was questioned, which questioning, he had stated, was done by Det. Logan. (TT at p.141, 144.) Asked how long Petitioner had been in custody before the form was read to him, he stated that it was as long as it took for the blood draw, perhaps an hour. (TT at p.144.) While he agreed that his name appeared on a report concerning Petitioner's questioning, he stated that Det. Logan did the interview after he and Det. Rush had read Petitioner his rights. (TT at pp.146-151.)
Det. Logan testified that he had contact with Petitioner at approximately 4:00 p.m. on October 22, 2004, when he was asked to interview him; he was aware that Petitioner had been brought to the office by Dets. Rush and Smith. (TT at pp.173-174.) He stated that he explained to Petitioner that he had already been read his rights by these detectives, and that he was making sure that Petitioner still understood those rights and what he was being questioned about. (TT at p.176.) Petitioner stated that he understood his rights, he was willing to waive them, and he was willing to talk to Det. Logan. (TT at p.176.)
Det. Logan testified that Petitioner had agreed to place a statement on tape, but, when the equipment was brought into the room he had second thoughts. (TT at p.190.) He then gave Petitioner his notes to read and to make corrections to if he wished; Petitioner made several corrections and then told the detective the notes were a correct reflection of his statement. (TT at p.191.) Petitioner signed each panel of the notes, which were admitted into evidence. (TT at pp.191-192.)
On cross-examination, Det. Logan stated that his understanding was that Petitioner had been brought to the homicide office from the jail by Dets. Rush and Smith, but he did not know how Petitioner got to the jail or how long he had been there. (TT at pp.205-206.) He believed that those detectives had been with Petitioner for about an hour. (TT at p.208.) While Attorney Elash asked if it was not true that there were no reports reflecting an interview between those detectives and Petitioner, Det. Logan was not willing to say whether there was such a report in the file. (TT at pp.208-209.) Det. Logan was extensively questioned about the methods he utilizes in speaking with a suspect, and in speaking with Petitioner in particular. (TT at pp.209-233.)
Det. Rush also testified that from the time Petitioner was picked up at the jail until he was taken to the homicide office after the blood draw was perhaps an hour. (TT at p.250.) He agreed that once Petitioner was at the office, he and his partner executed a rights warning form with him; he stated that this would have happened immediately. (TT at p.250.) Det. Rush stated that he and his partner did not interview Petitioner, and therefore did not prepare a report. (TT at p.251.)
Det. Rush believed that the interview with Det. Logan lasted an hour or two, and stated that as soon as the statement was completed, they transported Petitioner back to the county jail. (TT at p.251.) He agreed that, in the car on the return to jail, they had a conversation with Petitioner about his teeth, and agreed that he did not document this conversation. (TT at p.252.) Det. Rush was unaware of any interview of Petitioner other than that conducted by Det. Logan. (TT at p.252.)
At the evidentiary hearing on July 20, 2009, Petitioner indicated that he wrote a letter to Attorney Elash asking him to file a suppression motion. (HT at pp.22-23.) Asked what the basis was for such a motion, Petitioner stated:
(HT at p.23.) Petitioner also stated that he had been threatened by Detective Rush and Detective Smith, and that he made Attorney Elash aware of that as well. (HT at p.24.) He stated that those detectives arrested him the day before Det. Logan "came to speak with him" (counsel's words), and that he could not recall if Det. Logan re-Mirandized him. (HT at pp.24-25.)
Asked if he thought that he didn't have to speak to Det. Logan because he previously had invoked his right to counsel, Petitioner stated:
(HT at p.25.)
Petitioner stated that he had been told by Attorney DiLucente and Attorney Elash right up to the time of trial that they could have a suppression hearing right before the trial. (HT at p.25.) He stated that when Attorney Elash attempted to explain to him that he didn't want to have a suppression hearing "he wasn't making no sense" and that he thought that "the legal aspect of the interrogation was more important than giving [Det. Logan] a chance to rehearse [his testimony]." (HT at pp.26-27.)
On cross-examination, Petitioner stated that he believed that what the detectives had said to him was a threat. (HT at p.29.) He stated that he did not confess to Det. Logan (HT at p.29), and that the detective had lied in court when he said that he had done so (HT at pp.29-30).
Attorney Elash also was questioned on this point. Asked if he had received a letter from Petitioner dated October 3, 2007, in which Petitioner requested that a suppression motion be filed and suggested the basis for such a filing, Attorney Elash could not recall, but he stated that "[a]fter talking to Mr. Greer, I wasn't going to take my legal advice from him." (HT at p.11.) In particular, he stated that he had considerable experience in cross-examining Det. Logan, and believed that a suppression motion would provide the detective with "a dress rehearsal for trial" without providing any chance at success. (HT at p.12.)
On cross-examination, Attorney Elash stated that he had cross-examined Det. Logan many times and had transcripts containing information that he would try to bring out. (HT at p.15.) He stated, "he knows what I'm going to bring out, and I know basically what he's going to say I hope sometimes, and hopefully he says something that makes it even more helpful for the defense." (HT at pp.15-16.) He agreed that part of his strategy was to attack Det. Logan's credibility concerning the confession, noting that "after talking to Mr. Greer, there's no way he gave any type of logical confession to anybody." (HT at p.16.)
Asked what basis Petitioner had suggested for the motion to suppress, Attorney Elash stated that he thought it might have been that "his capacity was diminished" either due to the length of the questioning or his state of mind at the time, but was not sure that was the basis. (HT at p.18.) Again he emphasized that if he thought he could have filed a successful suppression motion he would have, but in this case he "thought it was nothing more than a dress rehearsal for the Commonwealth." (HT at p.18.)
Following the evidentiary hearing, the court denied this claim. In his Opinion on appeal, Judge Cashman addressed this claim as follows:
(ECF No. 10-3 at p.17.) The Superior Court adopted Judge Cashman's Opinion as its own when it affirmed the denial of PCRA relief on appeal. (ECF No. 10-4 at pp.36-37.)
In order to be entitled to relief on this claim, Petitioner has to show that the state court's decision was either "contrary to" or "involved an unreasonable application of" clearly established Federal law as determined by the Supreme Court of the United States, or "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)(1)-(2).
First, in determining whether the state court's decision is "contrary to" Federal law under § 2254(d)(1), this Court notes that the Third Circuit Court of Appeals has held that Pennsylvania's three-part standard for judging ineffectiveness claims does not contradict the Supreme Court's holding in
Next, the Court must determine whether the state court's application of
In examining the deficient performance prong of an ineffective assistance of counsel claim, it is generally presumed that an attorney acted in an objectively reasonable manner and that an attorney's challenged conduct might have been part of a sound trial strategy. See Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Where it is shown that a particular decision was, in fact, an adequately informed strategic choice, the presumption that the attorney's decision was objectively reasonable becomes "virtually unchallengeable." Id. at 690-91. These presumptions, however, should not obscure the overriding, and ultimate determinative, inquiry courts must make under
As explained by Attorney Elash at the PCRA hearing, counsel's failure to file a motion to suppress was based on his extensive experience in examining Det. Logan in court and his belief that there was not only no reasonable basis to file a motion to suppress but it would be nothing more than a dress rehearsal for Det. Logan's testimony at the time of trial. Counsel electing a different course in the exercise of his experienced legal judgment (a strategic choice), or recognition of the non-maintainability of Petitioner's desired challenges or assertions, is not the ineffectiveness in representation that Petitioner purports. In this situation, trial counsel's failure to file a motion to suppress was not objectively unreasonable and therefore his performance was not deficient in this regard.
Furthermore, Petitioner has not shown that there is a reasonable probability that, but for trial counsel failing to file the motion to suppress, the result of his trial would have been different. See Strickland, 466 U.S. at 694; see also Jacobs v. Horn, 395 F.3d 92, 105 (2005) (He "need not show that counsel's deficient performance `more likely than not altered the outcome in the case' — rather, he must show only `a probability sufficient to undermine confidence in the outcome.") (quoting Strickland, 466 U.S. at 693-94). Petitioner must show that he would have likely prevailed on the suppression motion and that, having prevailed, there is a reasonable likelihood that he would not have been convicted. Assuming the motion would have been granted, and Petitioner's statements to Det. Logan suppressed, the Court cannot say that such reasonable likelihood existed especially given the inculpatory DNA evidence presented at trial; that Petitioner's blood matched that found on the victim's bedsheet.
Finally, the state court's rejection of this claim was not premised on an "unreasonable determination of the facts" within the meaning of § 2254(d)(2). In this case, there was evidence presented at the PCRA hearing that Attorney Elash's decision to forgo filing a motion to suppress was strategic based on his belief that it would serve no purpose other than to provide Det. Logan with a dress rehearsal for his testimony at trial. There was also evidence presented at the hearing which demonstrated that there was no reasonable basis for the filing of that motion because Det. Logan interviewed Petitioner shortly after Petitioner waived his Miranda rights and he even reviewed, corrected and signed Det. Logan's notes at the end of the interview. In light of the evidence presented, the state court's conclusion that counsel was not ineffective for failing to file a motion to suppress was not based on an "unreasonable determination of the facts."
Petitioner has not shown that he is entitled to habeas relief on this claim and it is therefore denied.
Petitioner's second claim is that Attorney Elash interfered with his right to testify at trial. See U.S. v. Teague, 953 F.2d 1525, 1535 (11th Cir. 1992) (Where a defendant claims that his right to testify was violated by defense counsel, the claim is properly framed as a claim of ineffective assistance of counsel.) Specifically, he claims that Attorney Elash threatened to quit if he chose to testify.
At trial, Petitioner participated in a colloquy with the court concerning his right to testify at trial. Initially, against the advice of his attorneys, Petitioner expressed an interest in testifying on his own behalf at trial; however, Petitioner ultimately made a voluntary, and informed, decision not to testify.
After the Commonwealth had completed its case, but before the Commonwealth formally rested, a morning break was taken. (TT at p.305.) Judge Cashman then engaged in a colloquy with Petitioner concerning his right to testify and his right to present character witnesses, and Petitioner indicated that he intended to testify. (TT at p.307.)
Attorney DiLucente then indicated for the record that he had advised Petitioner not to take the stand, but that, after the colloquy, Petitioner had decided, against his advice, to testify; Attorney Elash concurred in this remark. (TT at p.310.) This exchange then followed:
(TT at pp.310-311.)
At the PCRA hearing held on July 20, 2009, Petitioner testified that he wanted to testify but that Attorney Elash told him that he would quit if he did. (HT at pp.19-20.) He agreed that he had engaged in a colloquy with the court concerning his right to testify, but stated that he "was told to just say yes to all the questions." (HT at p.21.) Petitioner then reiterated that the only reason he did not take the stand was because of Attorney Elash's threat to quit mid-trial. (HT at p.22.) When asked if he at all times wanted to testify, Petitioner stated:
(HT at p.22.) Petitioner agreed that it was his belief that his testimony was the only defense he had available. (HT at p.22.)
On cross-examination, Petitioner reiterated that his answers during his colloquy were what he had been instructed to say by his attorney. (HT at pp.27-29.) He also agreed that he did not tell the court that Attorney Elash had threatened him. (HT at p.29.)
At the PCRA hearing, however, Attorney Elash explained that he spoke with Petitioner about testifying on his own behalf, that Petitioner would be committing "suicide" if he took the stand, that the jury would convict Petitioner in their minds before he even finished his testimony, that Petitioner had many different version of what actually occurred the night of the murder, and that Petitioner, while initially expressing a desire to testify, ultimately voluntarily concluded (after speaking with his attorneys) that it was not in his best interest to testify.
Specifically, at the PCRA hearing, Attorney Elash explained that it was "absolutely" his opinion that Petitioner should not testify, agreed that at some point Petitioner wanted to testify, and stated that he "didn't physically restrain him to stop him from testifying." (HT at p.7.) He agreed that after several extended conversations, he had written a note that said, "If you want to be a fucking idiot don't do it while I represent you. If you will not listen to me I will quit." (HT at pp.7-8.) He also verified a handwritten statement that read, "I John Elash talked Virgil Greer from testifying in his case. I believed it was in his best interest," signed John Elash and Phil DiLucente. (HT at p.8.)
Attorney Elash explained that Petitioner's "story" was the most incredible he had heard in thirty-four years of practice, and that his basis for advising Petitioner not to testify was that he thought he would not be credible. (HT at p.8.) On cross-examination he elaborated:
(HT at pp.13-14.) Attorney Elash stated that he believed that if Petitioner gave this account to the jury "the jury would want to execute him at that point instead of listening to the rest of his testimony." (HT at p.14.) Attorney Elash agreed that he didn't "restrain" Petitioner or "prevent him" from making his own decision whether to testify, but stated that he "used vulgar language to explain to him the strength of my idea that, you know, he's committing legal suicide by trying to take the stand and who knows what he was going to say." (HT at p.14.) He reiterated that he believed it would have been "sheer disaster" for Petitioner to testify. (HT at p.15.)
Following the PCRA hearing, the court denied this claim. On appeal, the Pennsylvania Superior Court affirmed the denial of PCRA relief, adopting Judge Cashman's December 27, 2010 Opinion as its own. In his Opinion, Judge Cashman addressed this claim as follows:
(ECF No. 10-3 at pp.15-16.)
As previously stated with respect to Petitioner's first claim, the state court's determination that counsel was not ineffective with respect to Petitioner testifying was not "contrary to" established Supreme Court precedent. See Werts, 228 F.3d at 203. Additionally, the state court did not unreasonably apply the ineffectiveness standard when it determined that counsel was not ineffective.
Petitioner's claim of ineffective assistance of counsel boils down to a disagreement with his counsel's trial strategy. It is not uncommon for trial counsel and a defendant to disagree as to whether the defendant should testify. "The decision whether a criminal defendant should take the witness stand in his own trial unquestionably has tremendous strategic importance. . . . . If counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify." Teague, 953 F.2d at 1533. However, "if defense counsel refused to accept the defendant's decision to testify and would not call him to the stand, counsel would have acted unethically to prevent the defendant from exercising his fundamental constitutional right to testify." Id. at 1534. In such a situation, "defense counsel has not acted within the range of competence demanded of attorneys in criminal cases and the defendant clearly has not received reasonably effective assistance of counsel." Id. (internal quotations and citations omitted).
The state court's rejection of Petitioner's ineffective assistance claim was not an unreasonable application of the
Petitioner's third claim of ineffective assistance is that Attorney Elash failed to challenge the prosecution's case. Specifically, Petitioner maintains that, at trial, Attorney Elash failed to challenge Petitioner's confession given to Det. Logan, as well as the DNA evidence submitted by the prosecution.
Petitioner failed to raise this claim in his PCRA appeal to the Pennsylvania Superior Court and, as such, it is unexhausted. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999) (a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court and highest court before exhaustion will be considered satisfied). Furthermore, any attempt to go back and raise the claim in a subsequent PCRA Petition would be futile because such petition would be time-barred by the statute of limitations contained in the current version of Pennsylvania's PCRA statute, 42 Pa.C.S.A. § 9545(b). Thus, the claim is procedurally defaulted and barred from habeas review unless Petitioner can establish "cause" for the default and "prejudice" attributable thereto, or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). In this matter, Petitioner has failed to plead, let alone prove, "cause" and "prejudice" to overcome the procedural default.
However, notwithstanding the aforementioned procedural default, this claim is without merit even if the Court were to review it de novo. Based on the following summary of trial testimony, Petitioner's counsel were not ineffective in the manner alleged.
At trial, Det. Foley testified that he reported to Apartment 612 Village Road, the victim's apartment, to process the crime scene. (TT at pp.48-52.) Det. Foley stated that the victim was found in a pool of blood in a bed in the front bedroom. (TT at pp.70-71.) He also testified that blood samples were recovered from the kitchen, bedroom wall, front wall, bedding, and pillow case. (TT at p.75.)
On cross-examination, Attorney DiLucente questioned Det. Foley regarding, among other issues, possible suspects involved in the case, the samples taken, and the search warrant executed for certain evidence. (TT at pp.81-96, 98.)
At trial, Dr. Shakir, forensic pathologist for the Allegheny County Medical Examiner's Office, testified that the victim's body showed the early signs of decomposition when Dr. Rozin conducted the autopsy. (TT at p.105.) Dr. Shakir testified that there was evidence of stab wounds on the victim's neck, chest, and upper and lower extremities. (TT at p.105.) Dr. Shakir also testified that there was evidence of blunt force trauma on the victim's face. (TT at p.105.) The wounds in the victim's chest were the most severe and the cause of the victim's death. (TT at pp.108-09, 117.) There was a stipulation that the blood found on the victim's bed sheet matched Petitioner's blood. (TT at p.130.)
On cross-examination, Attorney DiLucente questioned Dr. Shakir about the victim's stab wounds, how those wounds were inflicted, and with what instrument those wounds were inflicted. (TT at pp.118-19.) Attorney DiLucente also extensively questioned Dr. Shakir regarding DNA found on the victim and at the crime scene. For example, Attorney DiLucente cross-examined Dr. Shakir about (1) the hair samples retrieved from the victim's hands, (2) the blood types found at the crime scene and how many of those samples were brought in for testing, (3) the blood transfer capability from the victim's body to the assailant, and (4) the bite marks found on the victim. (TT at pp.119-121, 123-124, 126-128.)
Mr. Meyers, manager of the DNA and Serology Units of the Allegheny County Office of Medical Examiners, Forensic Lab Division, testified on direct examination regarding the DNA test results placing Petitioner as a source of the blood in the victim's bedroom. (TT at pp.277-280.) On cross-examination, Attorney DiLucente questioned Mr. Meyers extensively about the DNA evidence presented to the jury. (TT at pp.293-303.) The trial transcript reveals that Attorney DiLucente's questions included, but were not limited to, inquiry into specific blood samples tested and the procedure for that testing, as well as the statistics process when determining whether Petitioner's DNA matched that found at the crime scene. Id.
Det. Smith of the City of Pittsburgh Police Department, Homicide Unit, testified that he received notification of this match in October, 2004. (TT at p.134.) Det. Smith obtained a search warrant for Petitioner and his DNA and located him on October 22, 2004. (TT at p.136.) Petitioner was taken for a blood draw and then to the City of Pittsburgh Homicide Unit. (TT at p.137.) Petitioner was cooperative with the blood draw, and cooperative through the reading of the rights form, stating that he understood, and he initialed the form, which was then signed by Det. Smith and his partner Det. Rush. Det. Smith noted that Petitioner did not indicate any reluctance in speaking to the police. (TT at pp.137-138, 141, 143-144.)
In twenty pages of cross-examination testimony and six pages of re-cross examination testimony, the record reveals that Attorney DiLucene extensively questioned Det. Smith about the procedures regarding securing a search warrant for Petitioner's DNA, the reading of the Pittsburgh Police Pre-Interrogation Warning Form, Petitioner's cooperation through the reading of the Miranda Warning Form (or pre-interrogation warning form) and through the blood draw, Petitioner's confession after the interview by Det. Logan, and other possible suspects in the case, including fingerprint evidence lifted at the crime scene. (TT at pp.140-160, 164-170.)
Det. Logan interviewed Petitioner on October 22, 2004. (TT at pp.172-173.) Det. Logan testified that he identified himself to Petitioner and Petitioner understood his rights. (TT at p.176.) Det. Logan testified to Petitioner's final statement, in pertinent part, as follows:
(TT at pp.186-189.) Detective Logan testified that Petitioner stated that he cut his hand on the knife. (TT at p.189.) Petitioner initially consented to recording his statement, but later refused. (TT at pp.190-191.) At the conclusion of the interview, Petitioner signed the notes that the detective had taken and made corrections. (TT at pp.191-194.)
On cross-examination, Attorney Elash thoroughly questioned Det. Logan concerning multiple issues in the case, including concerns by the defense regarding Det. Logan's interview with Petitioner and the procedures for having Petitioner transported from one location to another for interviewing purposes, Petitioner's relationship with the victim, how the victim was murdered, and the DNA recovered from the crime scene and from Petitioner. For example, on cross-examination, Det. Logan stated that his understanding was that Petitioner had been brought to the homicide office from the jail by Dets. Rush and Smith, but he did not know how Petitioner got to the jail or how long he had been there. (TT at pp.205-206.) He believed that those detectives had been with Petitioner for about an hour. (TT at p.208.) While Attorney Elash asked if it was not true that there were no reports reflecting an interview between those detectives and Petitioner, Det. Logan was not willing to say whether there was such a report in the file. (TT at pp.208-209.) Det. Logan was extensively questioned about the methods he utilizes in speaking with a suspect, and in speaking with Petitioner in particular. (TT at pp.209-233.) Further, Det. Logan stated that he and Petitioner talked about blood and hair samples, specifically, Det. Logan informed Petitioner that based on the information he received the blood that was found at the crime scene matched that of Petitioner's. (TT at p.217.)
Based on the above, Petitioner's trial counsel extensively cross-examined several Commonwealth witnesses about the DNA evidence found at the crime scene. Trial counsel also thoroughly cross-examined detectives about the confession Petitioner gave to Det. Logan. Petitioner may believe that his attorneys should have done a better job questioning certain witnesses, but the record does not demonstrate that his attorneys failed to challenge the DNA evidence and his confession, or that they were not functioning as the "counsel" guaranteed by the Sixth Amendment. Accordingly, Petitioner would not be entitled to habeas relief on this claim even if it was not procedurally defaulted.
Section 102 of the AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court will not grant a certificate of appealability. A separate Order will issue.
