Opinion
Civil Action No. 03-5412.
July 13, 2004
MEMORANDUM AND ORDER
I. PROCEDURAL HISTORY
This is a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by a state prisoner currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania.
On March 4, 1994, following a jury trial presided over by the Honorable Jane Cutler Greenspan of the Philadelphia Court of Common Pleas, petitioner and his co-defendant, Alan Presbury, were convicted of first-degree murder, criminal conspiracy, possession of an instrument of crime, and violation of the Uniform Firearms Act. Judge Greenspan sentenced petitioner to life imprisonment on the murder charge, with consecutive terms of five to ten years for aggravated assault and eighteen months to five years for violation of the Uniform Firearms Act. No penalty was imposed for the remaining conviction.
After his post-sentence motions were denied, petitioner filed a direct appeal with the Pennsylvania Superior Court. In his appeal, petitioner claimed that: 1) the trial court erred in admitting the prior inconsistent statement of Leatrice Jones for impeachment purposes; 2) the trial court erred in admitting the prior inconsistent statement of Leatrice Jones as substantive evidence; and 3) the trial court erred in refusing to admit the testimony of Deborah Griffin, the attorney for an unavailable witness whose preliminary hearing testimony was introduced at trial. The Superior Court affirmed the judgment of sentence on July 12, 1995, finding that petitioner's claims lacked merit.Commonwealth v. Revels, 667 A.2d 423 (Pa.Super. 1995) (Table). Subsequently, the Pennsylvania Supreme Court denied petitioner's request for allocatur on March 12, 1996. Commonwealth v. Revels, 674 A.2d 1069 (Pa. 1996) (Table).
On December 16, 1996, petitioner sought collateral relief by filing a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. The PCRA court appointed counsel to argue on petitioner's behalf and ultimately dismissed the petition on November 13, 1997. Thereafter, petitioner filed a timely notice of appeal. However, on September 30, 1998, the Pennsylvania Superior Court dismissed the appeal without prejudice because petitioner's court-appointed counsel failed to file an appellate brief.
Petitioner filed a second pro se PCRA petition on October 14, 1998. The court appointed new counsel, but petitioner chose not to file an amended PCRA petition. Rather, petitioner sought nunc pro tunc relief, filing a "Petition for Reinstatement of Appellate Rights." The PCRA court denied this petition on March 12, 1999. However, the Pennsylvania Superior Court reversed and remanded the PCRA court order, reinstating petitioner's right to appeal his first PCRA petition. Commonwealth v. Revels, 758 A.2d 724 (Pa.Super. 2000) (Table).
Accordingly, the Pennsylvania Superior Court reviewed petitioner's appeal of the first PCRA decision. Specifically, the court reviewed two claims raised by petitioner's counsel: 1) that trial counsel was ineffective for failure to call, at an unavailability hearing, counsel of a deceased witness in order to impeach that witness; and 2) that trial counsel was ineffective for failure to cross-examine a Commonwealth witness about a criminal case in which she was involved. The court also addressed four claims raised by petitioner in his pro se brief, which alleged that 1) the Commonwealth committed prosecutorial misconduct in its opening statement by referring to a pretrial newspaper article; 2) the trial court improperly failed to charge the jury on accomplice liability; 3) the trial court improperly failed to charge the jury on involuntary manslaughter; and 4) the trial court improperly charged the jury on the degrees of murder with which petitioner was charged, thus leading to an impermissible verdict. The Superior Court affirmed the order of the PCRA court on February 4, 2003, finding that petitioner's claims lacked merit. Commonwealth v. Revels, 821 A.2d 136 (Pa.Super. 2003) (Table). On September 5, 2003, the Pennsylvania Supreme Court denied petitioner's request for allocatur. Commonwealth v. Revels, 834 A.2d 1142 (Pa. 2003) (Table).
Petitioner filed the current petition seeking a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania on September 26, 2003, setting forth the following claims: 1) counsel was ineffective for failure to object to the jury instruction on the degrees of murder; 2) counsel was ineffective for failure to request a jury instruction on accomplice liability; 3) counsel was ineffective for failure to seek a cautionary instruction; 4) counsel was ineffective for failure to preserve the issue of petitioner's allegedly coerced confession and other suppression issues; 5) counsel was ineffective for failure to object to the prosecutor's use of a pretrial newspaper article in her opening statement; 6) the trial court erred in admitting the prior inconsistent statements of Leatrice Jones for impeachment purposes; 7) the trial court erred in admitting the prior inconsistent statements of Leatrice Jones for substantive purposes; 8) the erroneous admission of Leatrice Jones' statements warrants a new trial; and 9) the trial court erred in denying the defense's request to admit the testimony of Deborah Griffin for impeachment of an unavailable witness. Of particular interest to this Court is petitioner's last claim — that the trial court erred in refusing to admit the testimony of Ms. Griffin.
II. FACTUAL BACKGROUND
The facts of the case, as found by the trial court, are as follows:
On the morning of January 17, 1993, at around 9:00 a.m., the decedent, Brian Moore, walked down the 2200 block of Sergeant Street in North Philadelphia with a fifteen-year old girlfriend. Unbeknownst to Moore, defendant Presbury and defendant Revels — disguised in black ski masks and armed with semi-automatic firearms — waited nearby in a stolen van for Moore to leave his home. Upon seeing Moore, defendants immediately rode along-side the couple, stopped the van, and emerged with their guns drawn. Moore, believing that he was the intended victim of a robbery, offered defendants his gold chain. Instead of accepting the chain, defendants told Moore that they wanted him.
Defendants pushed the girl aside and pursued Moore as he fled the scene. Although defendants shot Moore in the back, Moore continued running toward the neighborhood community center. Upon reaching the community center, Moore broke the center's door off its hinges and bolted up a flight of stairs to the second floor. Defendants tracked the terrified Moore to the second-floor front room of the community center and shot at Moore when they found him. With nowhere else to run, Moore jumped from the second floor window. As Moore lay immobile on the ground, defendant Presbury came to the second floor window that Moore had just leapt from and proceeded to shoot down at Moore. Meanwhile, having seen Moore jump, defendant Revels ran down the stairs and also fired at the prone Moore. Defendant Presbury soon joined defendant Revels at street-level in shooting Moore.
Trial Court Opinion (1994), at p. 3-4 (emphasis in original).
Christopher Perrin testified at a preliminary hearing as a witness for the Commonwealth. In his preliminary hearing testimony, Mr. Perrin stated that both petitioner and co-defendant Presbury admitted to him that they had shot and killed Brian Moore. Mr. Perrin testified that petitioner and co-defendant Presbury told him of the circumstances surrounding Moore's death, as described in the trial court's findings of fact above. Ms. Deborah Griffin was appointed as Mr. Perrin's attorney in this matter, after the testimony he offered at the preliminary hearing tended to implicate him in Moore's murder.
At trial, the Commonwealth introduced the preliminary hearing testimony of Christopher Perrin, then deceased, by reading into the record the portion of that testimony that implicated petitioner and co-defendant Presbury in Moore's murder. Petitioner then sought to introduce the testimony of Mr. Perrin's attorney, Ms. Griffin, regarding a subsequent conversation between Mr. Perrin and Ms. Griffin. According to petitioner, Ms. Griffin was prepared to testify that Mr. Perrin contradicted his preliminary hearing statement and admitted to her that he had murdered Moore. Ms. Griffin also was prepared to testify that Mr. Perrin admitted stealing the gun used to murder Moore from petitioner's girlfriend. Trial Court Opinion (1994) at p. 13. The trial court would not allow petitioner to admit Ms. Griffin's testimony for purposes of impeaching and/or contradicting Mr. Perrin's preliminary hearing testimony.
III. DISCUSSION
Petitioner claims that the trial court error of refusing to admit the testimony of Ms. Griffin, attorney for the deceased witness Christopher Perrin, for purposes of impeaching Mr. Perrin's testimony was a violation of his right to a "fair trial and due process." According to petitioner, Ms. Griffin was prepared to testify that Mr. Perrin informed her, while giving his preliminary hearing testimony, that he had in fact stolen the gun from petitioner's girlfriend and was himself involved in Moore's murder.
Respondents contend that petitioner's original claim, filed on September 26, 2003, did not allege a constitutional violation. They argue that petitioner alleges a new claim in his Traverse, filed on July 2, 2004, in which petitioner does allege a constitutional violation, but that this new claim is procedurally barred. However, this Court has an obligation to liberally construe a pro se petitioner's pleadings. See Lewis v. Attorney Gen. of the United States, 878 F.2d 714, 722 (3d Cir. 1989) ("[A] pro se prisoner's pleadings should be . . . construed liberally."). It was not clear in his original claim whether petitoner was alleging a violation of state or federal law. As such, we liberally interpreted petitioner's original claim as a federal claim. It is noteworthy that petitioner's Traverse alleged the exact same claim as that in his original petition — "[t]he trial court erred in prohibiting the testimony of Deborah Griffin, Esquire to impeach Christopher Perrin's preliminary hearing testimony offered at trial." While his original petition merely stated this claim, his Traverse explained and supported his claim based on a theory of federal law. Thus, this Court was correct in its determination that petitioner meant for his original claim to invoke federal law.
The trial court found that Ms. Griffin's testimony was not legally admissible, based on Commonwealth v. Sandutch, 449 A.2d 566 (Pa. 1982), a Pennsylvania Supreme Court case, which held that subsequent recorded statements by an unavailable witness were inadmissible to repudiate previous statements incriminating the defendant. Trial Court Opinion (1994) at p. 13-15. The state court also stated in a footnote that it did not find Ms. Griffin to be a credible witness, given the conflict of interest that arose from her representation of petitioner's girlfriend. Trial Court Opinion (1994) at p. 14. While we defer to the trial court's interpretation of state law, the decision to exclude Ms. Griffin's testimony was contrary to and an unreasonable application of federal law, as follows.
State court evidentiary decisions are usually not cognizable on federal habeas review. However, when the state court error rises to a level of constitutional proportion it is proper for a federal court to review the evidentiary decision. Biasaccia v. The Attorney General of the State of N.J., 623 F.2d 307 (3d Cir. 1980). For example, in Biasaccia, the Third Circuit found that the prosecution's improper use of a co-conspirator's guilty plea rises to a level of constitutional proportion, such that the claim of trial court error was federally cognizable. Id. Biasaccia based its conclusion on "the concept of fundamental fairness inherently required in every criminal trial." Id. at 312 (citing U.S. v. Toner, 173 F.2d 140, 142 (3d Cir. 1949)). In applying the fundamental fairness standard, the Third Circuit explained, "a reviewing court must examine the relative probative and prejudicial value of evidence to determine whether its admission violated defendant's right to a fair trial." Lesko v. Owens, 881 F.2d 44, 51 (3d Cir. 1989), reh'g denied (1989).
In this case, the Court must decide whether the exclusion of Ms. Griffin's testimony was fundamentally unfair, such that it violated petitioner's due process rights. In a factually similar case, Wallace v. Price held that a state court decision to prohibit the testimony of a co-defendant's girlfriend was a violation of due process under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038 (1973), stating that "the Chambers court held that state evidentiary law did not trump the dictates of due process." Wallace v. Price, 265 F. Supp.2d 545, 553 (W.D. Pa. 2003). Wallace stated, "[w]hen a court excludes `competent,' `reliable' evidence, that is `critical to [the defendant's] defense,' it runs a grave risk of violating the guarantee of fundamental fairness implicit in the due process clause." Wallace, 265 F. Supp.2d at 553 (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142 and Chambers, 410 U.S. at 302, 93 S.Ct. 1038). While we do not yet conclude that petitioner's due process rights were violated, the state court's decision to exclude Ms. Griffin's testimony without ever conducting an evidentiary hearing to make a determination regarding the reliability of the proffered evidence as required by Chambers, warrants further inquiry and justifies this Court's order for an evidentiary hearing. Even if the circumstances surrounding Ms. Griffin's testimony did not meet the requirements of competence and reliability required byChambers, the Sixth Amendment to the United States Constitution provides an accused criminal defendant the right "to have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI. At a minimum, it guarantees that "criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt." Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 1000 (1987). This constitutional right is, "in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923 (1967). The right of the accused to present witnesses in his defense is a fundamental element of due process of law. Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653 (1988),reh'g denied, 485 U.S. 983, 108 S.Ct. 1283 (1988).
Repeatedly, the Compulsory Process clause has been found violated when the government arbitrarily interfered with the defendant's presentation of his case. In Taylor v. Illinois, supra, the Supreme Court held that the Sixth Amendment may be violated by imposition of a discovery sanction that entirely excludes testimony of a material defense witness. See, e.g., Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920 (1967) (Texas statute rendering principals, accomplices, or accessories in the same crime incompetent to testify as witnesses for each other violated Compulsory Process clause); Anderson v. Groose, 106 F.3d 242 (8th Cir. 1997), cert. denied, 521 U.S. 1108, 117 So. Ct. 2488 (1997) (preclusion of alibi witness' testimony as discovery sanction violated Sixth Amendment's compulsory process clause); Government of the Virgin Islands v. Mills, 956 F.2d 443 (3d Cir. 1992) (defendant's Sixth Amendment right to Compulsory Process was violated when the district court refused to allow a material witness to testify at trial); Dickerson v. State of Alabama, 667 F.2d 1364 (11th Cir. 1982), cert. denied, 459 U.S. 878, 103 S.Ct. 173 (1982) (failure by trial court to grant a continuance to allow defendant the opportunity to compel the presence of a credible alibi witness violated Sixth Amendment rights to compulsory process).
The Third Circuit, in Government of the Virgin Islands v. Mills, 956 F.2d 443 (3d Cir. 1992), set forth three elements required to establish a violation of Sixth Amendment compulsory process rights. First, the defendant must prove that he was deprived of the opportunity to present evidence in his favor.Id. at 446. Second, he must demonstrate that the excluded testimony would have been material and favorable to his defense. Under the standard promulgated by the Supreme Court, evidence is material "only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." United States v. Valenzuela-Bernal, 458 U.S. 858, 874, 102 S.Ct. 3440, 3450 (1982). Finally, the defendant must show that "the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose." Mills, 956 F.2d 443, 446.
A "reasonable likelihood" or "reasonable probability" is "a probability sufficient to undermine confidence in the outcome."United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383 (1985).
The record clearly demonstrates that petitioner satisfies the first element, as he was denied the opportunity to present Ms. Griffin's testimony as evidence in his favor at trial. As the trial court noted, petitioner raised several objections and issues during trial that were preserved for appeal, including the trial court's refusal to permit Ms. Griffin's testimony. Trial Court Opinion (1994) at p. 3. Furthermore, petitioner appealed this decision in a post-trial motion, on direct appeal, and on collateral review. In each instance, the state court denied petitioner's attempt to present Ms. Griffin's testimony as evidence in his favor. Trial Court Opinion (1994) at p. 14-15; Commonwealth v. Revels, 667 A.2d 423 (Pa.Super. 1995) (Table);Commonwealth v. Revels, 758 A.2d 724 (Pa.Super. 2000) (Table).
Under the second element, petitioner must show that the excluded evidence was material and favorable to his defense. Ms. Griffin's proffered testimony, if true and credible, not only serves to impeach Mr. Perrin's preliminary hearing testimony, but also serves as exculpatory evidence in petitioner's favor. If admitted, the jury may have discredited Mr. Perrin's preliminary hearing testimony and determined that Ms. Griffin's testimony was highly credible. Regardless of the jury's credibility determinations, the excluded testimony reasonably could have affected the judgment of the trier of fact had petitioner been given the opportunity to present it.
Petitioner also satisfies the third element — whether the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose. As the state court's decision to exclude Ms. Griffin's testimony was based on its interpretation of Pennsylvania Supreme Court precedent, it cannot be deemed an arbitrary decision. Trial Court Opinion (1994) at p. 13. The trial court's decision was based on Commonwealth v. Sandutch, 449 A.2d 566 (Pa. 1982), which sought to avoid turning the trial into "a contest of hearsay tapes, memoranda, and legal pleadings, none of which were ever subject to cross-examination."Sandutch, 449 A.2d at 568. The trial court concluded that Ms. Griffin's testimony "is comparable to the created inadmissible tapes and pretrial applications in Sandutch since Perrin allegedly uttered his statements to Ms. Griffin after his preliminary hearing testimony against defendants." Trial Court Opinion (1994) at p. 14. Notwithstanding our traditional deference accorded to state court interpretations of state law, this Court questions the trial court's reliance on Commonwealth v. Sandutch given the important factual distinction betweenSandutch and the present case. Rather than seeking to admit recorded statements by Mr. Perrin, as was the case in Sandutch, petitioner sought to admit the testimony of Ms. Griffin. As such, Ms. Griffin's testimony would be subject to cross-examination, alleviating the primary concern of theSandutch court. Furthermore, under the Pennsylvania Rules of Evidence, Ms. Griffin's testimony is admissible as an exception to the hearsay rule because Mr. Perrin's statements are against his interest. Pa.R.E. 804(b)(3). Moreover, the probative value of Ms. Griffin's testimony to petitioner's case is great and the exclusion of Ms. Griffin's testimony deprives petitioner of a fair opportunity to present a complete defense. While credibility concerns may be a legitimate purpose for excluding Ms. Griffin's testimony, the trial court's failure to hold an evidentiary hearing on the matter to make an adequate factual finding negates our traditional deference to the trial court's credibility determination. In addition, the court failed to take into consideration the countervailing benefit of Ms. Griffin's testimony to petitioner's case. Further, the trial court ignored the fact that Ms. Griffin's testimony would be subject to cross-examination, allowing the jury to make their own decision about the reliability of this evidence. As such, the deprivation of petitioner's right to present Ms. Griffin's testimony was disproportionate to the trial court's reason for excluding it. Given that the refusal to admit Ms. Griffin's testimony was a violation of petitioner's right to compulsory process, the state court decision was fundamentally unfair. As such, it is federally cognizable on habeas review as an error that rises to a level of constitutional proportion. Having found the state court error to rise to a level of constitutional proportion, we must now subject it to harmless error analysis. "An error is harmless if it is highly probable that the error did not contribute to the judgment." United States v. Saada, 212 F.3d 210, 222 (3d Cir. 2000) (quotingUnited States v. Gibbs, 190 F.3d 188 (3d. Cir. 1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 969 (2000)). As stated by the Third Circuit, "in the case of a federal judge in a habeas proceeding, `a constitutional trial error is not harmless if the court is in `grave doubt' as to whether the error had a substantial and injurious effect or influence in determining the jury's verdict.'" Porter v. Horn, 276 F. Supp.2d 278, 345 (E.D. Pa. 2003) (quoting Hassine v. Zimmerman, 160 F.3d 941, 955 (3d Cir. 1998), cert. denied, 526 U.S. 1065, 119 S.Ct. 1456 (1999)).
Respondents point out that the trial court found that Mr. Perrin's statements could not be characterized as against his interest, given that Mr. Perrin was aware of attorney-client privilege. However, respondents cite no authority for this proposition. Respondents further contend that Ms. Griffin's proffered testimony would violate Mr. Perrin's attorney-client privilege. Contrary to that assertion, Pennsylvania case law states that attorney-client privilege is qualified after death of the client, such that privileged communications may be used in "criminal proceedings where the relative importance of the communications is substantial because the statements bear on a significant aspect of the crimes at issue and about which there is a scarcity of reliable evidence." In re Subpoena No. 22, 709 A.2d 385, 390 (Pa.Super. 1998) (citing In re Sealed Case, 124 F.3d 230 (D.C. Cir. 1997), reh'g en banc denied, 129 F.3d 637 (D.C. Cir. 1997)).
We acknow ledge our obligation under 28 U.S.C § 2254(e)(1) to defer to state court findings of fact. Nonetheless, the trial court's determination that Ms. Griffin's testimony was not credible without ever hearing from the witness provides it with no greater basis for making a credibility determination than that of this Court. See e.g., Commonwealth v. Gaddy, 424 A .2d 1268, 1270 (Pa. 1981) (appellate court will not disturb trial court's credibility finding where lower court had ample opportunity to observe his manner and demeanor during a full evidentiary hearing); Commonwealth v. Bernstein, 455 A.2d 1232, 1234 (Pa.Super. 1981) "([t]he issue of credibility can be better resolved, however, when the trial court conducts a full evidentiary hearing and is thereby able to observe the manner and demeanor of the witness as he delivers his recantation testimony in an adversary proceeding."). In light of this jurisprudence, we simply cannot defer to a finding made by the state court when it stood in no greater vantage point as to Ms. Griffin's credibility than this Court.
We recognize the standard of Smith v. Zimmerman, 768 F.2d 69 (3d Cir. 1985), cited by respondents, which requires an arbitrary action by the state before a state court error can constitute a violation of due process. However, this Court has not concluded that the state court's decision to prohibit Ms. Griffin's testimony constituted a violation of due process sufficient to grant petitioner's habeas petition. Nevertheless, the claim remains federally cognizable as a violation that rises to a level of constitutional proportion, authorizing this Court to hold an evidentiary hearing on the matter.
Even in light of the evidence presented against petitioner at trial, there is a reasonable probability that the refusal to admit Ms. Griffin's testimony contributed to petitioner's conviction. As noted previously, if admitted, Ms. Griffin's testimony could serve, not only to impeach Mr. Perrin's testimony incriminating petitioner, but also as substantive evidence that exculpates petitioner of Moore's murder. Consequently, it was not merely cumulative of other testimony offered at trial. Moreover, some of the other evidence presented against petitioner was contested. For example, petitioner claimed that his confession to police was coerced. Further, he claimed that Leatrice Jones, whose prior police statement was admitted to implicate petitioner in Moore's murder, did not make or adopt as her own some of the statements in her prior police statement. Therefore, if petitioner had successfully impeached Mr. Perrin's preliminary hearing testimony with Ms. Griffin's testimony, the jury could have judged the credibility of the remaining evidence and found that the weight of evidence was not enough to find against petitioner. Therefore, there is grave doubt as to whether the state court's error in refusing to admit Ms. Griffin's testimony had a substantial and injurious effect or influence in determining the jury's verdict. As such, we cannot deem the trial court decision to be harmless error.
Given the constitutional proportion of the trial court's error and the inability of this court to determine that the decision constituted harmless error, the state court's decision to deny this claim without ever hearing the testimony of Attorney Griffin was contrary to and an unreasonable application of federal law.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA) and case law interpreting it, a habeas court is not precluded from granting an evidentiary hearing to a petitioner who has "diligently sought to develop the factual basis of a claim for habeas relief but has been denied the opportunity to do so by the state court." Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000), cert. denied, 531 U.S. 1084, 121 S.Ct. 789 (2001) (quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998),cert. denied, 525 U.S. 1037, 119 S.Ct. 587 (1998)) (internal quotations omitted). Rather, federal courts have discretion in granting an evidentiary hearing, and should focus on whether "a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim." Campbell, 209 F.3d at 287.
In the present case, petitioner repeatedly sought to admit Ms. Griffin's testimony and the state courts never conducted an evidentiary hearing on this matter. Therefore, this Court is not precluded from granting an evidentiary hearing to make findings of fact regarding Ms. Griffin's proffered testimony. For all of the above reasons, this Court believes that an evidentiary hearing is warranted on the claim that the trial court erred in refusing to admit the testimony of Deborah Griffin.
ORDER
AND NOW, this day of July, 2004, upon consideration of the Petition for Writ of Habeas and the Response thereto, it is hereby ORDERED that an Evidentiary Hearing on petitioner's claim that the trial court erred in refusing to admit the testimony of Deborah Griffin shall be held on August 5th, 2004 at 1:30 p.m., in a courtroom to be announced.It is so ORDERED.