Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2009

Kim McMullen v. Franklin Tennis
Precedential or Non-Precedential: Precedential

Docket No. 06-5064




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                                     PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 06-5064


                 KIM MCMULLEN,

                                            Appellant

                          v.

 FRANKLIN TENNIS; ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA; ROBERT B. STEWART, III


    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
             (D.C. Civil No. 06-cv-00183)
      District Judge: Hon. Christopher C. Conner


               Argued January 27, 2009

    BEFORE: SMITH and COWEN , Circuit Judges
              and THOMPSON*, District Judge

                    (Filed: April 1, 2009)

Matthew J. Zeigler, Esq. (Argued)
1525 Washington Boulevard
Williamsport, PA 17701

Counsel for Appellant

Gregory A. Jackson, Esq. (Argued)
504 Penn Street
Huntingdon, PA 16652

Robert B. Stewart, III, Esq.
Office of District Attorney
300 Penn Street
Huntingdon, PA 16652

George N. Zanic, Esq.
Huntingdon County Office of District Attorney
207 Washington Street
Huntingdon, PA 16652

Counsel for Appellee Franklin Tennis


*Honorable Anne E. Thompson, Senior United States District
Judge for the District of New Jersey, sitting by designation



                               2
                           OPINION



COWEN, Circuit Judge.
      Appellant Kim McMullen appeals from the order of the
United States District Court for the Middle District of
Pennsylvania denying his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. We will affirm.
I. FACTUAL        BACKGROUND           AND     PROCEDURAL
HISTORY
       A burglary occurred at a food store in Orbisonia,
Pennsylvania in the late evening or early morning hours of
February 23-24, 1985. On March 4, 1985, the body of Dominic
Barcelona was recovered from a nearby creek. The body was
about 300 yards downstream from a railroad bridge and
approximately 400 to 500 yards downstream from a highway
bridge.     Barcelona, a 30-year old man suffering from
schizophrenia, was well known throughout the community for
his habit of taking extensive walks. At the time, the police made
no connection between the burglary and Barcelona’s death, and
the death was ruled an accidental drowning following an
autopsy.
       Rumors surfaced in the community that the incidents
were in fact related, and the Pennsylvania State Police reopened
both investigations in 1989. McMullen, who was then
incarcerated on other charges, gave a statement to the police.

                               3
He admitted that he committed the burglary with another man
named Adam Wiser. According to McMullen, the two men fled
from the scene and then encountered Barcelona on a nearby
bridge. McMullen stated that it was Wiser who actually threw
Barcelona into the creek after knocking him to the ground. The
investigators ultimately cleared Wiser of any involvement in
either the burglary or Barcelona’s death, and the Commonwealth
of Pennsylvania charged McMullen with burglary and criminal
homicide.
        Barcelona’s mother testified at trial that her son would
not have voluntarily walked on either the railroad or highway
bridge because he was afraid of both heights and water. On
cross-examination, she acknowledged that it was possible that
Barcelona might cross a bridge under certain circumstances and
that she was uncertain as to what her son actually did during his
walks. Barcelona’s psychiatrist told the jury that his patient
heard voices and suffered from delusions. Refusing both
medication and hospitalization, Barcelona occasionally walked
into roadways without regard to traffic. He also walked with a
limp as a result of being hit by a car during one of his walks in
1983. Witnesses interviewed at the time of his death stated that
they saw Barcelona in the vicinity of the town bridge on the
night of his disappearance. Finally, a witness testified that she
saw an unidentified male carrying a box away from the site of
the burglary and toward the railroad bridge at approximately 5
a.m. on February 24.
        McMullen objected to the admission of his police
statement on corpus delicti grounds. The trial court denied his
objections and allowed the statement into evidence. However,
the jury also heard testimony from the pathologist who autopsied
Barcelona in 1985. The pathologist reiterated his finding of
accidental drowning based on the condition of the body and the
fact that neither the body nor the location of the drowning
showed signs of a struggle. He acknowledged the existence of


                               4
bruising and lacerations on Barcelona’s forehead, adding that
such injuries could not have been caused by the impact of falling
from the bridge. Nevertheless, he stated that the head injuries
could have occurred after the fall and prior to drowning. He
finally commented that no additional evidence had come to light
since 1985 that would have a bearing on his original autopsy
report.
        In December 1990, the jury found McMullen guilty of
both burglary and second degree murder. The trial court
sentenced him to life imprisonment for the murder conviction
and eleven months to five years of imprisonment for the
burglary conviction. On appeal, the Pennsylvania Superior
Court vacated both convictions and remanded for a new trial
(“McMullen I”). Commonwealth v. McMullen, 

, 17
(Pa. Super. Ct. 1992).         It specifically held that the
Commonwealth failed to establish the requisite corpus delicti for
the homicide charge and that the trial court accordingly
committed reversible error by admitting McMullen’s statement
to the police into evidence. 

appealed.              According to the
Pennsylvania Supreme Court (“McMullen II”), the Pennsylvania
Superior Court properly applied the corpus delicti rule with
respect to the homicide charge. Commonwealth v. McMullen,

, 720-23 (Pa. 1996). On the other hand, the
McMullen II court found that “the Superior Court offered no
explanation as to why it also vacated Appellee’s burglary
conviction,” even though the Commonwealth clearly established
the corpus delicti for this charge. 

The Pennsylvania
Supreme Court ultimately “affirm[ed] that portion of the
Superior Court’s Order vacating Appellee’s conviction for
second degree murder, but reverse[d] that portion of the
Superior Court’s Order vacating Appellee’s conviction for
burglary.” 

then received permission to exhume

                               5
Barcelona’s body and conduct a second autopsy. Following the
second autopsy, the cause of death was ruled to be homicide.
McMullen filed a motion to dismiss the homicide charge on
double jeopardy grounds. The trial court denied this motion,
and the Pennsylvania Superior Court affirmed its ruling on
interlocutory appeal (“McMullen III”). Commonwealth v.
McMullen, 

, 372 (Pa. Super. Ct. 1998). The
Pennsylvania Superior Court held that a retrial was permissible
because the evidence admitted at the first trial, including
McMullen’s statement to the police, was sufficient to sustain a
murder conviction. 

It further determined that the
Commonwealth should be given an opportunity to present its
entire case before a ruling on the corpus delicti issue. 

Judge Tamilia dissented, concluding that the double jeopardy
doctrine barred a retrial. 

(Tamilia, J., dissenting).
McMullen, however, did not seek review of the McMullen III
decision in the Pennsylvania Supreme Court.
       The Commonwealth then retried McMullen. Over his
objections, it used the second autopsy as well as the testimony
of the forensic pathologist who conducted this autopsy to
demonstrate the requisite corpus delicti for the admission of his
statement to the police. In February 1999, a jury again found
McMullen guilty of second degree murder, and the trial court
sentenced him to life in prison.
       On direct appeal, McMullen argued, inter alia, that the
admission of the second autopsy evidence violated his double
jeopardy rights. The Pennsylvania Superior Court affirmed the
second degree murder conviction (“McMullen IV”).
Commonwealth v. McMullen, 

, 685, 689 (Pa.
Super. Ct. 2000). It held that this matter did not fall under the
Double Jeopardy Clause’s “evidentiary insufficiency exception”
barring retrial and that the Commonwealth was also allowed to
gather and present additional evidence at the second trial to
establish the requisite corpus delicti for the admission of


                                 6
McMullen’s statement to the police. 

The
Pennsylvania Supreme Court denied McMullen’s request for
allocatur. He then filed a petition under the Pennsylvania Post
Conviction Relief Act, raising, among other things, the double
jeopardy issue. The trial court denied his petition, the
Pennsylvania Superior Court affirmed in an unpublished opinion
finding that the double jeopardy issue had already been litigated,
and the Pennsylvania Supreme Court denied McMullen’s
application for allowance of appeal.
        McMullen filed the current 28 U.S.C. § 2254 petition
with the District Court. Acting pro se, he claimed, inter alia, that
the Double Jeopardy Clause barred both his retrial as well as the
admission of evidence from the second autopsy. The District
Court denied McMullen’s double jeopardy claims because he
failed to establish that the respective state court rulings were
contrary to, or an unreasonable application of, clearly
established federal law as determined by the United States
Supreme Court. McMullen filed a timely notice of appeal, and
this Court granted a certificate of appealability with respect to
the claim that his retrial was barred by the Double Jeopardy
Clause.
II. JURISDICTION AND STANDARDS OF REVIEW
       The District Court had jurisdiction over the habeas
petition pursuant to 28 U.S.C. §§ 2241 and 2254, and we
possess appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253. Because the District Court ruled on the petition without
conducting an evidentiary hearing, this Court conducts a plenary
review. See, e.g., Jacobs v. Horn, 

, 99 (3d Cir.
2005).
       In order to obtain habeas relief from his state court
conviction and sentence, McMullen must satisfy the standards
established by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). AEDPA provides that:


                                 7
       (d) An application for a writ of habeas corpus on
       behalf of a person in custody pursuant to the
       judgment of a State court shall not be granted
       with respect to any claim that was adjudicated on
       the merits in State Court proceedings unless the
       adjudication of the claim–
               (1) resulted in a decision that was contrary
       to, or involved an unreasonable application of,
       clearly established Federal law, as determined by
       the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1).
       The “clearly established” language “‘refers to the
holdings, as opposed to the dicta, of [United States Supreme]
Court’s decisions as of the time of the relevant state-court
decision.’” Lockyer v. Andrade, 

, 71 (2003)
(quoting Williams v. Taylor, 

, 412 (2000)). A state
court decision then fails the “contrary to” prong of AEDPA if
the state court reaches a conclusion opposite to the Supreme
Court’s own conclusion on a question of law or decides the case
differently where the Supreme Court was confronted by a set of
materially indistinguishable facts. See, e.g., 

.     Similarly, a state court ruling is considered an
“unreasonable application” if the state court unreasonably
applies the correct legal rule to the particular facts, unreasonably
extends a legal principle to a new context, or unreasonably
refuses to extend the principle to a new context where it should
apply. See, e.g., Jamison v. Klem, 

, 275 (3d Cir.
2008); 

. A state court determination may
constitute an unreasonable application even if the Supreme
Court has not yet addressed the identical legal issue or fact
pattern. 

. Nevertheless, “[t]he
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.”

                                 8


(citing Wiggins v. Smith, 

,
520-21 (2003); Gattis v. Snyder, 

, 228 (3d Cir.
2002)).
        The District Court denied McMullen’s double jeopardy
claims based on the AEDPA standards. The Commonwealth
likewise argues on appeal that McMullen fails to overcome the
statutory presumption of deference. For his part, McMullen
claims that the violation of his double jeopardy rights resulted
in a grave miscarriage of justice. We acknowledge that this case
presents a highly unusual and troubling set of circumstances.
Nevertheless, this Court is constrained by the standards
established by Congress. As explained below, we ultimately
conclude that the District Court was correct to find that the
Pennsylvania Superior Court’s double jeopardy rulings were
neither contrary to, nor an unreasonable application of, clearly
established federal law as determined by the United States
Supreme Court.1
III. DISCUSSION
       A.Double Jeopardy
        The Fifth Amendment to the United States Constitution
states that no person shall “be subject for the same offense to be
twice put in jeopardy of life or limb.” The Double Jeopardy
Clause is applicable to the states through the Fourteenth
Amendment. See, e.g., Benton v. Maryland, 

, 787
(1969). It is also well established that the Clause’s “general


       1
        At oral argument, the Commonwealth asserts that
McMullen is precluded from raising his double jeopardy claims
at this time because he did not seek review from the
Pennsylvania Supreme Court after McMullen III and because
the Pennsylvania Supreme Court denied his request for allocatur
with respect to McMullen IV. We, however, reject the
Commonwealth’s last-minute and unsupported contention.

                                9
prohibition against successive prosecutions does not prevent the
government from retrying a defendant who succeeds in getting
his first conviction set aside, through direct appeal or collateral
attack, because of some error in the proceedings leading to
conviction.” Lockhart v. Nelson, 

, 38 (1988) (citing
United States v. Ball, 

(1896); United States v.
Tateo, 

(1964)). The prosecution therefore is free
to retry a defendant where the conviction is reversed due to
“trial error” such as “incorrect receipt or rejection of evidence,
incorrect instructions, or prosecutorial misconduct.” Burks v.
United States, 

, 15 (1978).
       In Burks v. United States, 

(1978), and Greene
v. Massey, 

9 (1978), the United States Supreme Court
expressly recognized an exception to this “trial error” rule in
cases where the reviewing court overturned the conviction
because the evidence was insufficient to sustain a guilty verdict.

, 24; 

, 5-18. This
exception rests on two closely related considerations. See, e.g.,
Tibbs v. Florida, 

, 40-41 (1982) (discussing Burks
and Greene).
       First, a reversal for evidentiary insufficiency is
considered to be the equivalent of an acquittal. See, e.g., 

. Insofar as the Double Jeopardy Clause
absolutely bars retrial following an acquittal, the Clause ought
to have the same effect where the trial court should have entered
an acquittal because of insufficient evidence. See, e.g., 

; 

. In other words, an
evidentiary insufficiency determination effectively constitutes
a finding that the government failed to prove its case and that
the case should never have been submitted to the jury in the first
place. See, e.g., 

; 

-
16.
       “Second, Burks and Greene implement the principle that
‘[t]he Double Jeopardy Clause forbids a second trial for the

                                10
purpose of affording the prosecution another opportunity to
supply evidence which it failed to muster in the first
proceeding.’” 

(quoting 

). This principle rests at the core of the Double Jeopardy
Clause, and it prevents the government from perfecting its
strategies and its evidence through repeated prosecutions. See,
e.g., 

would also unfairly burden the
defendant and create the risk of conviction by means of “sheer
governmental perseverance.” 

In
addition, “the prosecution cannot complain of prejudice, for it
has been given one fair opportunity to offer whatever proof it
could assemble.” 

. In the end, the Double
Jeopardy Clause bars the prosecution from taking “the
proverbial ‘second bite at the apple.’” 

        The Supreme Court in Burks specifically distinguished a
reversal on account of evidentiary insufficiency from a “reversal
for trial error,” explaining that:
       In short, reversal for trial error, as distinguished
       from evidentiary insufficiency, does not constitute
       a decision to the effect that the government has
       failed to prove its case. As such, it implies
       nothing with respect to the guilt or innocence of
       the defendant. Rather, it is a determination that a
       defendant has been convicted through a judicial
       process which is defective in some fundamental
       respect, e. g., incorrect receipt or rejection of
       evidence, incorrect instructions, or prosecutorial
       misconduct. When this occurs the accused has a
       strong interest in obtaining a fair readjudication of
       his guilt free from error, just as society maintains
       a valid concern for insuring that the guilty are
       punished.




                                11


(citation omitted); see also, e.g., 

(noting that rule permitting retrial after reversal for trial
error ensures sound administration of justice); 

(stating that trial error rule not only promotes proper
administration of justice but that retrial in such circumstances
does not implicate type of governmental oppression prohibited
by Double Jeopardy Clause).
        The Pennsylvania Superior Court expressly recognized
these fundamental principles in its two double jeopardy rulings.
In both decisions, it acknowledged the fundamental distinction
between a reversal for insufficiency of the evidence and reversal
on account of trial error. McMullen 

;
McMullen 

. The McMullen IV court
actually considered the Supreme Court precedent interpreting
the Double Jeopardy Clause in some detail. Quoting Burks, the
Pennsylvania Superior Court stated that “‘[t]he Double Jeopardy
Clause forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which it
failed to muster in the first proceeding.’” McMullen 

(quoting 

). It noted that the
Double Jeopardy Clause clearly prevents a retrial where there is
an acquittal or a reversal based on the insufficiency of the
evidence, pointing out that the government could not claim
prejudice on account of such a prohibition and, on the contrary,
should be prevented from taking the proverbial second bite at
the apple. Id. (quoting 

-17). It even
quoted in full Burks’s explanation for the distinction between
reversal for evidentiary insufficiency and reversal because of
trial error. Id. (quoting 

). Because the
Pennsylvania Superior Court properly stated the legal principles
established by the United States Supreme Court, the primary
question before this Court is whether the rulings nevertheless
contradicted or unreasonably applied these governing principles.
We conclude that the decisions of the Pennsylvania Superior
Court at issue here did not contradict or otherwise apply the

                                12
governing principles in an unreasonable fashion.
      B. The Evidentiary Insufficiency Exception And The
Corpus Delicti Rule
        McMullen contends that the Pennsylvania Superior and
Supreme Courts made an evidentiary insufficiency
determination when they vacated his initial conviction for
second degree murder. We reject his characterization because
the state courts clearly overturned his first conviction based on
the evidentiary corpus delicti doctrine.
        It is well established that “a conviction rests upon
insufficient evidence when, even after viewing the evidence in
the light most favorable to the prosecution, no rational factfinder
could have found the defendant guilty beyond a reasonable
doubt.” 

; see also, e.g., Commonwealth v.
Reyes, 

, 725-27 (Pa. 1996). In contrast, the corpus
delicti rule generally “governs the admissibility” of a
defendant’s inculpatory out-of-court statements and “not the
sufficiency of evidence to convict.” Gov’t of V.I. v. Harris, 

, 409 n.6 (3d Cir. 1991) (citations omitted) (discussing
Virgin Islands corpus delicti rule). The purpose of such a rule
is “to guard against ‘the hasty and unguarded character which is
often attached to confessions and admissions and the consequent
danger of a conviction where no crime has in fact been
committed.’”      McMullen 

(quoting
Commonwealth v. Turza, 

, 404 (Pa. 1940)); see
also, e.g., 

(same). The rule is “‘rooted
in our hesitancy to convict one of [a] crime on the basis of his
own statements only.’” McMullen 

(quoting
Commonwealth v. Ware, 

, 274 (Pa. 1974)).
       Pennsylvania’s corpus delicti rule implicates a “‘two-
tiered approach’” with a “‘dual level of proof.’” 

(quoting 

); see also 

n.6 (“Therefore, if we determine that the


                                13
admission is not clearly erroneous, we next decide whether a
rational trier of fact could have found the defendant guilty based
on the confession and the corroborating evidence.” (citation
omitted)); Commonwealth v. Persichini, 

, 1210-
12 (Pa. 1999) (Castille, J., opinion in support of affirmance)
(criticizing Pennsylvania’s two-tiered rule). “The first tier
pertains solely to the admissibility of the defendant’s
[inculpatory] out-of-court [statement].” 

(citing 

). In a homicide prosecution, this
“admissibility tier” requires the Commonwealth to show by a
preponderance of other evidence that an individual was dead
and that the death resulted from criminal means. See, e.g., 

The second tier then provides that “the jury may not
consider the [statement] unless the Commonwealth proves the
corpus delicti beyond a reasonable doubt.” 

(emphasis
omitted) (citing 

; Commonwealth v.
Tallon, 

, 81 (Pa. 1978)).
         In McMullen I and McMullen II, the Pennsylvania
Superior and Supreme Courts applied the “admissibility tier” of
the state corpus delicti rule to vacate the second degree murder
conviction. Neither court addressed the issue of whether the
evidence, viewed in the light most favorable to the
Commonwealth, was insufficient to support the jury’s initial
guilty verdict. On the contrary, they consistently and correctly
characterized the corpus delicti issue before them as one that
concerned the admissibility of evidence. For instance, the
Pennsylvania Supreme Court stated that “the Superior Court
properly found that the trial court erred in admitting Appellee’s
statement regarding the homicide into evidence.” 2 McMullen II,


       2
         See also, e.g., McMullen 

(noting
that McMullen “objected to the admission of the statement” and
that “[u]nder the corpus delicti rule, extrajudicial inculpatory
statements of the accused may not be admitted into evidence

                               

(emphasis added). The Pennsylvania Superior
Court also expressly remanded the matter for a new trial after
making its corpus delicti ruling. McMullen 

.
It presumably would not have ordered a retrial if it had rejected
the guilty verdict pursuant to the well-established evidentiary
insufficiency rule.
       According to McMullen, the Pennsylvania Supreme
Court barred a retrial. But the Pennsylvania Supreme Court
never expressed any disagreement with the remand order. It
instead referred to the remand order in its summary of the case’s
factual and procedural history. McMullen 

.
Accordingly, the Pennsylvania Superior Court reasonably
determined in McMullen IV that “the Supreme Court affirmed
that portion of the Superior Court Order vacating Appellant’s
murder conviction, and, by implication, affirmed the grant of a
new trial.” See McMullen 

(citing
McMullen 

).
       In the end, it is clear that neither the Pennsylvania
Superior Court nor the Pennsylvania Supreme Court made an
evidentiary insufficiency ruling in overturning the first
conviction on corpus delicti grounds. But this conclusion does
not end our double jeopardy inquiry.
      C. Corpus Delicti As Functional Equivalent Of
Evidentiary Insufficiency Ruling




unless it is corroborated by independent evidence that a crime
actually occurred” (emphasis added)); McMullen 

(framing McMullen’s argument as claim that “the court
erred by admitting [his] inculpatory statements into evidence”
and subsequently holding that “the court erred by admitting
[McMullen’s] statement into evidence” (emphasis added)).

                               15
        Alternatively, a corpus delicti determination could be
considered as the “functional equivalent” of a reversal of a
conviction for insufficiency of the evidence. We acknowledge
that such a characterization is not without some merit. The
McMullen IV court acknowledged that a corpus delicti
determination “does not fall squarely into either [the evidentiary
insufficiency or the trial error] category.” McMullen 

. McMullen also emphasizes the strong language
used by the Pennsylvania Supreme Court in its corpus delicti
ruling:
       In the present matter, we have no difficulty
       concluding that the evidence independent of
       Appellee’s statement was insufficient to establish
       the corpus delicti for the homicide charge. The
       only evidence pointing to foul play were the
       bruises and lacerations on the decedent’s face,
       and the pathologist could not conclude that these
       blows were more likely caused by an assailant
       than they were by decedent’s striking objects after
       falling into the water. On the other hand, much
       evidence pointed to the decedent’s death being an
       accident, including the lack of signs of a struggle
       and decedent’s own behavior. Most notably, no
       new evidence other than Appellee’s statement
       surfaced between the time of the original findings
       of accidental death and the reopening of the
       burglary and death investigations.
McMullen 

(footnote omitted). In addition,
the Commonwealth’s conduct here following the reversal of the
initial conviction on appeal was arguably inconsistent with the
underlying purposes of the double jeopardy doctrine. It
exhumed Barcelona’s body, conducted a second autopsy, and
then retried and convicted McMullen based on its new evidence.
As McMullen points out, the Commonwealth evidently could


                               16
have obtained the second autopsy to use in the first trial, but it
chose not to do so. The Commonwealth instead waited and
arguably received what the Double Jeopardy Clause was meant
to prohibit, namely “another opportunity to supply evidence
which [it] failed to muster in the first proceedings.” 

(quoting 

). In other words, the
Commonwealth apparently got a second bite of the apple.
       If this Court were considering a challenge to a federal
conviction, we may be inclined to find a violation of the Double
Jeopardy Clause. However, we are currently confronted with a
habeas challenge to a state court conviction and therefore bound
by the deferential standards established by Congress. Based on
these standards, we have no choice but to reject the double
jeopardy claims.
       McMullen has failed to cite any United States Supreme
Court case addressing the specific question of how a previous
corpus delicti determination should be treated for purposes of
the Double Jeopardy Clause. It appears that no such ruling
exists. McMullen turns to the United States Supreme Court’s
decision in Tibbs v. Florida, 

(1982). But the
Supreme Court in Tibbs actually held that a reversal based on
the weight of the evidence falls under the general trial error rule
and therefore does not preclude a retrial. 

39-47.
       The Supreme Court’s Tibbs ruling further highlights the
narrow scope of the evidentiary insufficiency exception. Like
a reversal based on the weight of the evidence, a determination
concerning the erroneous admission of an inculpatory statement
appears to be nothing more than a “trial error” for purposes of
the Double Jeopardy Clause. See, e.g., 

(distinguishing between evidentiary insufficiency determination
and trial errors such as “incorrect receipt or rejection of
evidence”); Evans v. Ct. of Comm. Pl., 

, 1235 (3d
Cir. 1992) (“The Supreme Court has declined to apply Burks in
the absence of an appellate finding of insufficiency of the

                                17
evidence.”). The Tibbs decision also indicates that the
Pennsylvania Superior Court’s decision to allow the
Commonwealth to obtain and then use a second autopsy at the
retrial was neither contrary to, nor an unreasonable application
of, United States Supreme Court precedent. In fact, the
Pennsylvania Superior Court expressly quoted Tibbs itself,
noting that “‘[a] second chance for the defendant, of course,
inevitably affords the prosecutor a second try as well.’”
McMullen 

(quoting 

n.19).
       We recognize that a state court’s decision may constitute
an “unreasonable application” under AEDPA even if the United
States Supreme Court has never addressed the identical legal
issue or fact pattern. See, e.g., 

. But
there is more here than either the absence of Supreme Court
precedent addressing the corpus delicti rule in the double
jeopardy context or the Supreme Court’s own decision in Tibbs.
On the contrary, the Supreme Court’s ruling in Lockhart v.
Nelson, 

(1988), represents an insurmountable
obstacle for McMullen’s claims.
        In Lockhart, a sentencing hearing was conducted before
a jury to determine whether the defendant had the requisite four
prior felony convictions for an enhanced sentence under
Arkansas’s habitual offender statute. 

The
prosecution presented, without objection from defense counsel,
certified copies of four prior felony convictions. 

Unbeknownst to the prosecutor, the defense attorney, and the
sentencing judge, one of the convictions had been pardoned by
the governor. 

himself tried to raise the
pardon issue on cross-examination, but he eventually agreed that
his conviction had been commuted after further questioning by
the judge. 

eventually found that the prosecution
established the requisite number of convictions and imposed an
enhanced sentence. 

courts repeatedly upheld the


                              18
sentence despite the defendants’s protestations of a pardon. 

subsequent habeas proceeding, the federal circuit court set
aside the defendant’s enhanced sentence as a habitual offender
because of the erroneous admission of evidence in the form of
the pardoned conviction. 

Most importantly, the
federal court barred any retrial on the ground that the remaining
admissible evidence adduced at the first trial was legally
insufficient to support a habitual offender sentence. 

37.
        The Supreme Court in Greene previously reserved the
question of “whether the Double Jeopardy Clause allows retrial
when a reviewing court determines that a defendant’s conviction
must be reversed because evidence was erroneously admitted
against him, and also concludes that without the inadmissible
evidence there was insufficient evidence to support a
conviction.” 

(citing 

& n.9). In
Lockhart, the Supreme Court clearly answered this question in
the affirmative. It observed that the enhanced sentence
conviction had been overturned on account of a trial error
regarding the admission of evidence of a pardoned conviction
and pointed out the lack of prosecutorial misconduct with
respect to this evidentiary error. 

38-42. The Supreme
Court held that “in cases such as this, where the evidence
offered by the State and admitted by the trial court-whether
erroneously or not-would have been sufficient to sustain a guilty
verdict, the Double Jeopardy Clause does not preclude retrial.”

Just like a trial court ascertaining whether to grant a
judgment of acquittal, “a reviewing court must consider all the
evidence admitted by the trial court in deciding whether retrial
is permissible under the Double Jeopardy Clause.” 

Returning to the specific circumstances presented by the
sentencing hearing, the Supreme Court observed that the
sentencing judge presumably would have allowed the
prosecution the opportunity to present evidence of another prior
conviction if the defendant had offered evidence at the

                               19
sentencing hearing proving the existence of a pardon. 

The Supreme Court’s “holding today thus merely recreates the
situation that would have been obtained if the trial court had
excluded the evidence of the conviction because of the showing
of the pardon.” 

case implicates the same kind of situation
addressed in Lockhart. Specifically, the trial court erroneously
allowed McMullen’s statement to the police into evidence, and,
without this statement, there would have been insufficient
evidence to support the guilty verdict for second degree murder.
As in Lockhart, there does not appear to be any allegation of
misconduct on the part of the Commonwealth with respect to the
admission of the police statement. The Pennsylvania Superior
Court then reasonably concluded that the Double Jeopardy
Clause did not bar a retrial and the introduction of additional
evidence because “the evidence presented during the first trial
was legally sufficient to sustain the verdict, albeit strengthened
by Appellant’s inadmissible statement.” McMullen 

(emphasis added); see also McMullen 

-72 (“Since the record from the first trial contained
sufficient evidence to support the conviction, we are only able
to find the evidence is insufficient if we ignore the improperly
admitted inculpatory statement of appellant, an action which we
are not permitted to undertake at this point in the proceedings.”).
        In her dissenting opinion, Judge Thompson questions the
value of McMullen’s statement, concluding that the
Pennsylvania Supreme Court necessarily implied that there was
insufficient evidence to support the conviction even including
the statement itself. Nevertheless, the statement still constituted
powerful evidence of McMullen’s guilt. In McMullen II, the
Pennsylvania Supreme Court expressly characterized
McMullen’s statement as inculpatory because “it places him at
the scene of the alleged murder and reveals a motive for the
alleged murder, namely, to kill the witness to [the burglary].”


                                20
McMullen 

. In fact, it otherwise would have
been unnecessary for the Pennsylvania Supreme Court to
conduct a corpus delicti analysis in the absence of an inculpatory
statement because “the corpus delicti rule attaches to inculpatory
statements only.” 

concerned a sentencing hearing and
not a trial determining a person’s guilt. 

. But the Supreme Court’s own language indicates that its
holding and reasoning applies to trials as well. See, e.g., 

(framing issue on appeal as whether Double Jeopardy Clause
allows “retrial” and referring to reversal for “trial error” and
insufficient evidence to support “judgment of conviction”), 41
(stating that reviewing court must consider all evidence admitted
by trial court in deciding whether retrial is permissible). The
sentencing hearing at issue in Lockhart, at which the prosecution
had to prove to a jury beyond a reasonable doubt that the
defendant had four prior felony convictions, also closely
resembled a trial. 

         Likewise, McMullen’s suggestion that his inculpatory
police statement constituted the only evidence of homicide
presented at his first trial must be rejected as inconsistent with
the record. While the other evidence may have been insufficient
to satisfy the corpus delicti rule or to prove the elements of
second degree murder beyond a reasonable doubt, it remains
clear that other evidence in addition to the police statement was
still introduced in the first trial. Initially, there was no dispute
that a person had died. The Commonwealth thereby clearly
established that an individual was dead, satisfying one vital (and
often contested) component of the corpus delicti rule. See, e.g.,

-10. The Pennsylvania Supreme Court
further acknowledged that “the bruises and lacerations on the
decedent’s face” constituted “evidence pointing to foul play.”
McMullen 

. In addition to other pieces of
evidence, the Commonwealth presented the testimony of a


                                21
woman who saw a male carrying a box away from the nearby
burglary site and toward the railroad bridge. 

n.5.
While the Pennsylvania Supreme Court considered such
evidence irrelevant to the corpus delicti inquiry, see 

&
n.5, the woman’s testimony apparently was relevant to
establishing the overall elements of second degree murder (as
well as a motive for the crime itself).
        Finally, Judge Tamilia addressed Lockhart in some detail
in his opinion dissenting from the Pennsylvania Superior Court’s
corpus delicti ruling in McMullen III. The dissenting Judge
attempted to distinguish Lockhart based on an apparent theory
of “substitution.” 3 McMullen 

(Tamilia,
J., dissenting) (citing Hull v. State, 

, 378-79 (Ala.
Crim. App. 1992)).          According to Judge Tamilia, the
prosecution in Lockhart merely substituted an already available
prior conviction for the conviction that had been pardoned. 

(Tamilia, J., dissenting). On the other hand, the
Commonwealth here attempted “to circumvent the corpus delicti
rule by reviving the appellant’s inculpatory statement found to
be inadmissible by offering proof of the corpus delicti not
available at the time of the first trial.” 

,
dissenting).
        Like Judge Tamilia, we are troubled by the highly
unusual manner in which the Commonwealth and its courts
handled McMullen’s prosecution. Nevertheless, the Court need
not reject (or accept) his “substitution” theory at this time.4 We


       3
         McMullen likewise raised this theory of substitution at
oral argument.
       4
         At the same time, we must point out that this whole
theory of substitution appears to have its own deficiencies. As
explained by McMullen’s counsel at oral argument, the entire
notion appears based on a distinction between cases, such as in

                                22
reiterate that our current role is limited to deciding whether the
double jeopardy rulings by the Pennsylvania Superior Court
violated AEDPA. The fact that Judge Tamilia, in dissent,
believed it was necessary to distinguish a prior Supreme Court
decision further shows that the rulings in question here were
neither contrary to, nor an unreasonable application of, Supreme
Court precedent. In fact, Judge Tamilia recognized that the
interpretation of Lockhart as requiring a court to “consider both
admissible and inadmissible evidence in determining whether
the prosecution presented sufficient evidence to sustain a guilty
verdict” was “not necessarily incorrect.” 

(Tamilia,


Lockhart, where the prosecution had evidence in its file at the
time of the first trial but chose not to present it, and
proceedings, like the current matter, where the prosecution
evidently chose not to obtain the evidence until after the first
conviction was overturned. But the fact remains that the
prosecution in Lockhart never introduced the available evidence
into the record when it had the opportunity to do so at the first
sentencing hearing. See, e.g., 

(stating that
Double Jeopardy Clause precludes prosecution from receiving
“‘another opportunity to supply evidence which it failed to
muster in the first proceeding’” (quoting 

)). At the very least, it would have been reasonable to expect
the prosecution in Lockhart to present all of the habitual
offender evidence in its file at the initial hearing, especially
after the defendant himself attempted to raise the issue of a
pardon on cross-examination. 

. As
Justice Marshall noted in his Lockhart dissent, “one might
inquire into whether prosecutors tend in close cases to hold
back probative evidence of a defendant’s guilt; if they do not,
there would be scant societal interest in permitting retrial given
that the State’s remaining evidence is, by definition,
insufficient.” 

(Marshall, J.,
dissenting).

                               23
J., dissenting) (emphasis added).
        Lockhart accordingly demonstrates that the Pennsylvania
Superior Court’s double jeopardy rulings did not infringe the
deferential standards governing this habeas matter. In other
words, the Pennsylvania Superior Court did not reach a legal
conclusion contrary to the United States Supreme Court’s own
conclusion on a question of law, did not reach a different result
where the Supreme Court was confronted by a set of materially
indistinguishable facts, and did not unreasonably extend or
refuse to extend a legal principle identified by the Supreme
Court. Like the District Court, we therefore must reject
McMullen’s double jeopardy claims.
IV. CONCLUSION
      For the foregoing reasons, we will affirm the District
Court’s order denying the petition for a writ of habeas corpus.




Thompson, District Judge


       While I respect the thoughtful, careful majority opinion,
I respectfully dissent and would reverse the District Court’s
denial of Appellant’s petition for habeas corpus because the
Pennsylvania Superior Court, in McMullen III and IV,
unreasonably applied the rule in Burks v. U.S., 

(1978). The Double Jeopardy Clause forbids a retrial for the
purpose of affording the prosecution a second opportunity to
provide evidence it failed to muster in the first trial, including
where the first conviction was reversed for insufficiency of the
evidence. 

The second McMullen trial is a classic
example of such a prohibited proceeding: the Pennsylvania
Supreme Court’s reversal of Petitioner’s first conviction for


                               24
violation of the corpus delicti rule was the functional equivalent
of a reversal for insufficiency of the evidence. Therefore, by
affording the prosecution the opportunity to collect and then
present further evidence at the second trial, the Pennsylvania
courts failed to reasonably apply clearly established federal law
as determined by the Burks Court.


        At McMullen’s first trial, aside from McMullen’s
statement to the police, the prosecution presented only the
following evidence purporting to establish McMullen’s guilt: (1)
an autopsy report, noting bruises and lacerations on the victim’s
face, (2) the victim’s mother’s testimony that her son would not
have voluntarily walked onto the bridge, given his psychological
state, and (3) the testimony of a witness who saw an unidentified
male carrying a box away from the site of the burglary and
toward the bridge. The pathologist who performed the autopsy,
however, testified at trial that he had concluded that the victim
had accidentally drowned, based on the condition of the body and
the lack of signs of a struggle. The county coroner concurred in
this conclusion. Considering this paucity of evidence of
McMullen’s guilt, independent of McMullen’s statement, the
Pennsylvania Superior Court, and then the Pennsylvania Supreme
Court, reversed the murder conviction, finding that the
prosecution had even failed to show that the victim’s death was
more likely caused by criminal means than it was by an accident.


       This reversal was undoubtedly the equivalent of one for
insufficient evidence, even though cast as one for erroneously
admitted evidence. Given that the Pennsylvania Supreme Court
found that the evidence presented independent of McMullen’s
statement did not even suffice to show that the victim was killed
by another person, let alone by McMullen, the prosecution’s only
evidence of McMullen’s guilt was his statement. But, as the


                               25
Court in McMullen II recognized, McMullen’s statement was
only inculpatory in part. McMullen 

.
McMullen told police that he witnessed Wiser, McMullen’s
alleged accomplice in the burglary, throw the victim into the
water – a statement that only placed McMullen at the scene but
admitted no liability. Therefore, in reversing the conviction for
lack of any evidence of a crime independent of the statement, the
Supreme Court necessarily implied, if not directly found, that
there was insufficient evidence to support the conviction even
including the statement.5
        Once the Pennsylvania court in McMullen II determined
that there was insufficient evidence to support the initial
conviction and reversed that conviction, the court violated the
Double Jeopardy clause by allowing the prosecution another
opportunity to collect and present additional evidence at a second
trial. Thus, by failing to recognize this most apparent reversal for
insufficiency of the evidence and to forbid the prosecution to
proceed with the second trial, the court in McMullen III and
McMullen IV failed to reasonably apply the clearly established
rule under Burks.


       The Lockhart opinion relied upon by the majority is
inapposite. Lockhart dictates that the Double Jeopardy Clause
does not bar re-trial “where the evidence offered by the State and
admitted by the trial court-whether erroneously or not-would
have been sufficient to sustain a guilty verdict.” 

. Here, the sum of the evidence admitted at the first


        5
        Of note, the court in McMullen II did not explicitly
discuss whether, including the statement, there was sufficient
evidence to support the conviction and only reached that
question when faced with the Double Jeopardy issue in
McMullen III.

                                26
trial was not sufficient to sustain a guilty verdict, and, as
discussed above, the McMullen II court found as much in
reversing the conviction. As the Lockhart Court noted in
summarizing its conclusion: “Had the defendant offered evidence
at the sentencing hearing to prove that the conviction had become
a nullity by reason of the pardon, the trial judge would
presumably have allowed the prosecutor an opportunity to offer
evidence of another prior conviction to support the habitual
offender charge. Our holding today thus merely recreates the
situation that would have been obtained if the trial court had
[properly] excluded the evidence of the conviction because of the
showing of a pardon.” 

In contrast, the prosecution here
did not have sufficient evidence to convict at the time of the first
trial and was reversed for that reason. Had the trial court
properly excluded McMullen’s statement, the prosecution would
not have been able to present any additional evidence in order to
carry its burden and the court would have had no choice but to
direct a verdict of not guilty.


        In sum, by focusing on what the Pennsylvania courts call
a rule of admissibility instead of on the prosecution’s initial
failure to present sufficient evidence to support a conviction and
subsequent second bite at the apple in this present case, the
Pennsylvania courts have allowed a classic double jeopardy
prosecution to occur.




                                27