Opinion
Civil Action No. 98-6257.
September 24, 1999
MEMORANDUM
Petitioner, Thornton Savage, a state prisoner at the State Correctional Institute at Dallas, Pennsylvania, filed a Petition for a Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C.A. § 2254 (West 1994). In accordance with 28 U.S.C.A. § 636(b)(1)(B) (West 1993) and Local Rule of Civil Procedure 72.1, this Court referred the Petition to United States Magistrate Judge James R. Melinson for a Report and Recommendation ("Report"). Chief Magistrate Judge Melinson recommended that the Court dismiss the Petition, and Petitioner filed objections. For the following reasons, I will overrule Petitioner's objections, adopt the Chief Magistrate Judge's Report, and dismiss the Petition for a writ of habeas corpus.
I. FACTUAL BACKGROUND
On April 13, 1986, a jury convicted Petitioner of first degree murder in the Court of Common Pleas of Philadelphia County. Subsequently, the court sentenced him to life imprisonment. The Pennsylvania Superior Court then dismissed Petitioner's direct appeal when appellate counsel failed to file a brief. On direct appeal nunc pro tunc under Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa. Con. Stat. Ann. § 9541 et seq. (Purdon's 1987) (since replaced by the Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541 et seq. (West 1998)), both the Superior Court and then the Pennsylvania Supreme Court affirmed the trial court's judgment.
Petitioner next filed a PCRA petition which the PCRA court denied. After withdrawal of PCRA counsel, Petitioner's new counsel asserted a "layered" ineffectiveness of counsel claim as the basis for appeal. This claim alleged three "layers" of ineffectiveness of counsel involving Petitioner's three previous counsel: trial counsel, appellate counsel, and counsel who represented petitioner in the PCRA challenge at the trial level. According to the Petitioner, trial counsel was deficient for not objecting to the trial court's charges defining malice and reasonable doubt, and subsequent counsel was in turn ineffective for not raising the ineffectiveness of trial counsel on appeal. Petitioner claimed that the malice charge precluded the jury from returning a verdict of voluntary manslaughter. He further claimed that the charge on reasonable doubt distorted the modicum of doubt needed for acquittal. The Superior Court, however, affirmed the denial of PCRA relief, and the Pennsylvania Supreme Court denied allocatur.
On December 1, 1998, Petitioner filed this petition for a writ of habeas corpus. The petition reasserts the above layered ineffectiveness of counsel claim. Specifically, Petitioner claims that:
1. His Sixth Amendment right to counsel was abridged by trial counsel's ineffectiveness for failing to object to the malice charge.
a. Subsequent counsel was also ineffective for failing to raise this ineffectiveness of trial counsel on appeal.
b. The malice charge itself violates Petitioner's Fourteenth Amendment due process rights by presuming an element of the crime charged.
2. His Sixth Amendment right to counsel was abridged by trial counsel's ineffectiveness for failing to object to the charge on reasonable doubt.
a. Subsequent counsel was also ineffective for failing to raise this ineffectiveness of trial counsel on appeal.
b. The reasonable doubt charge itself violates Petitioner's Fourteenth Amendment due process rights by diluting the State's constitutionally required burden of proof.
3. His Sixth Amendment rights were violated by trial counsel's ineffectiveness in eliciting Petitioner's past criminal record at trial. Subsequent counsel was also ineffective for failing to raise this ineffectiveness of trial counsel on appeal.
4. His Fourteenth Amendment due process right to a fair trial was abridged when his motion for a mistrial was denied, despite the jury having overheard the victim's mother attribute another homicide to the accused.
Upon this Court's request, Chief Magistrate Judge Melinson issued a Report and Recommendation on May 10, 1999. The Magistrate Judge recommends dismissing the claims and denying the petition. Petitioner objects to these recommendations.
II. STANDARD OF REVIEW
"[A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a). Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, 110 Stat. 1214, made numerous changes to Title 28, Chapter 153 of the United States Code, 28 U.S.C. §§ 2241- 2255, the chapter governing federal habeas petitions. Section 2254(d)(1), as amended by AEDPA, provides:
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.A. § 2254(d)(1) (West 1996). A habeas writ should not be granted "unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo v. Superintendent Scialbion, 171 F.3d 877, 890 (3d Cir. 1999). Federal courts may also consider the decisions of inferior federal courts when evaluating whether the state court's application of the law was reasonable. Id. III. DISCUSSION
Petitioner's objections controvert the Magistrate's conclusions regarding the layered ineffectiveness of counsel claim. Because this claim was adjudicated in state court, Petitioner acknowledges that the AEDPA as construed by Matteo provides the appropriate legal standard for review. Petitioner claims that he is entitled to relief under Matteo because the state court decision that his prior counsel was not ineffective is contrary to Supreme Court precedent. The Court disagrees, for the reasons elaborated in this discussion.
A. Ineffective Assistance of Counsel
The Matteo Court squarely addressed the issue of how to assess whether a state court decision is "contrary to" Supreme Court precedent:
[I]t is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible that the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome. This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent.Matteo, 171 F.3d at 888.
Chief Magistrate Judge Melinson correctly states that the applicable precedent regarding constitutionally ineffective assistance of counsel is the Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 466 U.S. at 687, 104 S.Ct. at 2064. Strickland further specifies that "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. 466 U.S. at 694, 104 S.Ct. at 2068.
1. The Malice Charge
Petitioner argues that his counsel was constitutionally ineffective for failing to object to the malice charge because the malice charge itself violated his due process rights. Considering this issue on appeal from the PCRA court's denial of relief, the Pennsylvania Superior Court, however, found no such due process infringement. Rather, the Superior Court reviewed the entire jury instruction and found that it was appropriate.Commonwealth v. Savage, No. 02225 Phila. 1996, slip op. at 2 (Pa.Super.Ct. May 27, 1997). The court elaborated that Petitioner's argument hinged on an inconsequential segment of the instruction, and thus did not preclude a manslaughter verdict. Id. Therefore, the court concluded that counsel could not be constitutionally ineffective for failing to pursue an issue without arguable merit. Id. Nothing about the Superior Court's determination can be termed an "unreasonable application of federal law, as determined by the Supreme Court of the United States." 28 U.S.C.A. § 2254(d)(1). The Petitioner disagrees, of course, with the state court's findings, but cannot show that a reasonable application of theStrickland standard to counsel's conduct "requires" a contrary outcome. Matteo, 171 F.3d at 888. The Court, therefore, will overrule Petitioner's objection to Chief Magistrate Judge Melinson's finding that counsel was not constitutionally ineffective for failing to object to the malice charge.
2. The Reasonable Doubt Charge
Petitioner similarly objects to the state court's finding that counsel was not constitutionally ineffective for failing to object to the reasonable doubt charge. Once again, however, Petitioner cannot show that the Superior Court's application of the Strickland test to counsel's conduct was unreasonable. Applying Strickland, the state court concluded that counsel was not deficient for failing to object to the reasonable doubt charge, because the charge itself acceptably followed the Pennsylvania Suggested Standard Jury Instruction, section 7.01.Savage, No. 02225 Phila. 1996, slip op. at 2-3. Thus this claim of ineffective assistance fails the first prong of Strickland and therefore does not rise to the level of a Sixth Amendment violation of the right to counsel. This Court finds nothing unreasonable about the state court's application of Strickland to counsel's conduct, and accordingly will overrule Petitioner's objection to Chief Magistrate Judge Melinson's finding that counsel was not constitutionally ineffective for failing to object to the instruction on reasonable doubt.
3. Counsel's Elicitation of Petitioner's Past Criminal Record at Trial
Petitioner does not raise specific objections to Chief Magistrate Judge Melinson's resolution of this claim. The Report and Recommendation states that this ineffectiveness of counsel claim fails because the Pennsylvania Supreme Court's finding on direct appeal that counsel's conduct was not ineffective is consonant with the Strickland standard for determining constitutional ineffectiveness of counsel. (Report at 10). The Court agrees. The Pennsylvania Supreme Court reasonably concluded that counsel's strategy of not hiding Petitioner's past convictions from the jury was sound. Given that counsel was arguing that the shooting was an act of self-defense, and given the difference in seriousness between the prior offenses (attempted burglary, firearms violation, sale of drugs) and the pending murder charge, counsel's decision to fully disclose Petitioner's past "was not only reasonable, but contains an old wisdom that full disclosure hides no liars." Commonwealth v. Savage, 602 A.2d 309, 311 (Pa. 1992). Clearly, counsel was not constitutionally ineffective for taking this approach.
B. Due Process Right to a Fair Trial
Petitioner also does not raise specific objections to Chief Magistrate Judge Melinson's resolution of this claim. The Pennsylvania Supreme Court held that the trial court properly exercised its discretion in denying the motion for mistrial after a witness spontaneously accused the Petitioner of an unrelated murder. Savage, 602 A.2d at 312-13. The trial court did give the jury an explicit instruction to entirely disregard the witness' emotional outburst. Id. As the Chief Magistrate Judge notes, Petitioner does not argue that the Pennsylvania Supreme Court ruling is contrary to United States Supreme Court precedent. (Report at 11). Rather, Petitioner cites Judge Learned Hand in a 1956 United States Court of Appeals for the Second Circuit opinion in support of the proposition that curative instructions are ineffective.United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956),aff'd, 352 U.S. 232, 77 S.Ct. 294 (1957). However, Petitioner quotes Judge Hand out of context. Judge Hand did not find that the trial court's decision to admit the evidence in question after giving a curative instruction to the jury violated due process. Indeed, the Delli Paoli decision is about abuse of discretion, an issue of state law and not constitutional law.Id. Moreover, Judge Hand affirmed the trial court's decision, concluding with respect to the difficult dilemma about curative instructions, "[a]t best the solution is especially a matter for the exercise of discretion by the trial judge." Id. In the instant case, the Pennsylvania Supreme Court's holding that whether to grant a mistrial was a matter "within the trial court's discretion" is thus entirely consistent with Judge Hand's earlier ruling. Savage, 602 A.2d at 312. The case cited by Petitioner fails to meet his burden under Matteo to show that the Pennsylvania Supreme Court's adjudication of this claim is contrary to United States Supreme Court precedent. Matteo, 171 F.3d at 888. The Court therefore agrees with Magistrate Judge Melinson's conclusion that Petitioner's claim of a due process violation for failure to declare a mistrial is without merit.
In addition, Petitioner's due process claim is waived because it was not raised in state court as a due process claim. Duncan v. Henry, 513 U.S. 364, 366, 115 S.Ct. 887, 888 (1995) (holding Petitioner's failure to raise due process objection to witness' testimony in state court rendered him unable to seek habeas corpus relief on due process grounds).
For the foregoing reasons, the Court adopts Chief Magistrate Judge Melinson's Report and Recommendation. Accordingly, the Court will deny the instant petition for writ of habeas corpus.
An appropriate order follows.
ORDER
AND NOW, this day of SEPTEMBER, 1999, it is hereby ORDERED as follows:1. Petitioner's objections to the Report and Recommendation of United States Magistrate Judge James Melinson are OVERRULED.
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The Petition for Writ of Habeas Corpus is DISMISSED.
4. A certificate of appealability is DENIED.