Opinion
Civil Action No. 04-CV-2720.
July 27, 2005
REPORT AND RECOMMENDATION
This is a pro se petition for the writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Mahanoy, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY:
On September 17, 1997, after a bench trial, the Honorable James A. Lineberger, convicted Talmadge of first-degree murder, carrying a firearm on a public street, and possessing an instrument of crime. The charges stemmed from the February 26, 1994 shooting death of Demetrius Shelley at 60th and Locust Streets, following a street fight. Although Talmadge admitted shooting the victim, (N.T. 9/17/97, 41), he claimed that he acted in self-defense. (N.T. 9/17/97, 53-54). Judge Lineberger sentenced Talmadge to life imprisonment with concurrent sentences of six months to a year for possessing an instrument of crime, and one to two years for carrying a firearm on public streets or public property.
Petitioner filed timely post-sentence motions, claiming the Honorable Carolyn Engle Temin, who presided at a suppression hearing, erred in failing to suppress evidence regarding the petitioner's possession of two guns when he was brought into custody. Petitioner also claims the trial court failed to address the prosecutor's violation of the in limine ruling pertaining to his arrest in North Carolina. These post-sentence motions were denied on January 26, 1998. See Commonwealth v. Talmadge, No. 0778, 1/1 at 1 (Ct. Com. Pl. August 18, 1998).
Prior to the hearing, the judge granted a motion in limine pertaining to the incident in North Carolina but denied a motion in limine pertaining to the two handguns found while authorities were taking the petitioner into custody. During trial, the prosecutor asked a question about the incident in North Carolina. The judge sustained trial counsel's objection; however, he did not grant a mistrial.
The petitioner then filed a notice of direct appeal; however, counsel failed to file a brief, and the Superior Court dismissed the appeal on December 9, 1998. Subsequently, counsel filed a motion for reinstatement of the petitioner's rights nunc pro tunc. The motion was granted on February 5, 1999. Notice of appeal was filed. The petitioner raised the following issues: 1) the evidence was insufficient to sustain the conviction; 2) the verdict was against the weight of the evidence; 3) the court erred in allowing the admission of two weapons seized when he was arrested; and 4) the court's error in denying a mistrial when the prosecutor violated an in limine ruling prevented a fair trial. The Superior Court affirmed the judgment of the sentence on March 28, 2000. Commonwealth v. Talmadge, 713 EDA 1999. Petitioner filed a petition for allocatur, and it was denied by the Supreme Court of Pennsylvania on August 22, 2000. Commonwealth v. Talmadge, 564 Pa. 731 (2000).
On December 28, 2000, the petitioner filed a pro se petition pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A. §§ 9541-9551. Counsel was appointed and the petition was amended. Counsel raised new issues including: 1) a prosecutorial misconduct claim based on the prosecutor's violation of an in limine ruling; and 2) a claim of appellate counsel ineffectiveness for failing to raise prosecutorial misconduct issues. The PCRA Court dismissed the petition on July 11, 2002.
The PCRA court issued the opinion on March 3, 2003.
Talmadge appealed with counsel to the Superior Court claiming: 1) prosecutorial misconduct occurred when he asked the petitioner about the high-speed chases in North Carolina; 2) the trial court failed to grant a mistrial for the prosecutorial misconduct; 3) the Calendar Judge violated the law when she allowed evidence about the discovery of two .380 guns; and 4) appellate counsel was ineffective for failing to raise these new issues. The Superior Court affirmed the PCRA Court decision on October 20, 2003. Commonwealth v. Talmadge, 839 A.2d 1164 (Pa.Super. 2003).
Subsequently, the petitioner filed a petition for allowance of appeal, which was denied on April 7, 2004. Commonwealth v. Talmadge, 847 A.2d 1284 (Pa. 2004). The current habeas petition was filed on June 21, 2004. The petitioner raises two claims: 1) prosecutorial misconduct for violating an in limine ruling by questioning petitioner about an unrelated crime in North Carolina and 2) violation of the Fourteenth Amendment when evidence relating to the seizure of two guns was permitted to be introduced in trial.
DISCUSSION:
To be eligible for habeas corpus relief, the petitioner must be "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). When a federal habeas court is reviewing state court decisions, the federal court will find the state court judgment to be contrary to federal law if "the state court arrives at a conclusion opposite to that reached by the Court on a question of law, or if the state court decides a case differently than the Court has on a set of materially indistinguishable facts." Williams v Taylor, 529 U.S. 362, 412-13 (2000); 28 U.S.C. § 2254(d). Hence, the state court is found to have made an unreasonable decision if they fail to apply the facts correctly to the appropriate law.Id at 413. The relationship between the law and facts is determined using objective standards. Wertz v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000). Such guideposts can be found either from past United States Supreme Court precedent, or from federal courts opinions, which have also dealt with the issue. Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).
Procedural Misconduct
The petitioner's first issue is that the prosecutor violated an in limine ruling by referring to a crime allegedly committed in North Carolina. In response, the District Attorney argues that the claim is procedurally defaulted and meritless. On collateral appeal, the Superior Court found that the claim was waived because Talmadge had not presented the claim on direct appeal.Commonwealth v. Talmadge, 839 A.2d 1164 (Pa.Super. 2003). Thus, the claim is technically procedurally defaulted. See Sistrunk v. Vaughn, 96 F.3d 666, 673 (3d Cir. 1996) (a procedural default occurs when "the final state court presented with a federal claim refuses to decide its merits based on an established state rule of law independent of the federal claim and adequate to support the refusal."). However, Talmadge did present a similar issue on direct appeal. Although Talmadge did not frame the issue in terms of prosecutorial misconduct on direct appeal, he did argue that the trial court impermissibly considered evidence of other criminal conduct, specifically, his arrest in North Carolina and the surrounding circumstances. Thus, we will proceed to address the merits of the prosecutorial misconduct claim.
We note that Talmadge also exhausted a claim that his direct appellate counsel was ineffective for failing to present the prosecutorial misconduct claim. The Superior Court addressed the ineffective counsel claim on its merits. Such a claim, if meritorious, can provide cause to excuse a procedural default. Thus, even if we concluded that the underlying prosecutorial misconduct claim were defaulted, we would be required to address the merits of the prosecutorial misconduct claim in evaluating counsel's effectiveness to determine if Talmadge had established cause for his procedural default.
Claims of prosecutorial misconduct are governed by Darden v. Wainwright, 477 U.S. 168, 181 (1986), in which the Supreme Court held,
[I]t is not enough that the prosecutors' remarks were undesirable or even universally condemned. `The relevant question is whether the prosecutors' comments [are] `so infected a trial with unfairness as to make the resulting conviction a denial of due process.'Darden, at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). Therefore, the evidence at trial must be examined to determine if the prosecutor's actions were detrimental enough to affect the outcome of the case.
Here, prior to trial, the court ruled that counsel was not permitted to discuss the reason why the petitioner was contacted by the police in North Carolina (or any other evidence regarding that case) during the trial. (N.T. 9/17/97, 11). Nevertheless, the prosecutor asked the petitioner during trial:
Q: Sir, when you were down in North Carolina, you actually, in an effort to elude law enforcement, actually had two high-speed car chases?
Trial counsel immediately objected, and the objection was sustained; however, a mistrial was not granted.
Applying Darden, we would ordinarily begin to review such a claim by reviewing the evidence presented at trial and determining if the prosecutor's remarks unfairly affected the factfinder. However, in this case, we first note that defense counsel immediately objected and no response was given to the question. Thus, no evidence of the chase was before the factfinder. In fact, Judge Lineberger, made this point in dismissing Talmadge's PCRA petition.
In his amended PCRA petition, the defendant asserts prosecutorial misconduct for introducing evidence of a high speed chase in North Carolina prior to his arrest. However, this court sustained the objection to the question. Since it is the answer not the question which constitutes evidence, there was no evidence of a high speed chase. This claim lacks merit.Commonwealth v. Talmadge, 0778, Mar. Term, 1996 (PCRA Decision, Mar. 3, 2003) (Lineberger, J.).
We also note that this one reference to the high speed chase in North Carolina did not render the trial unfair. As previously mentioned, Talmadge admitted shooting the victim, he claimed that he acted in self-defense, fearing that the victim was reaching for a weapon in his waistband. (N.T. 9/17/97, 53-54). However, the testimony of two eyewitnesses did not support Talmadge's account.
Randy Nowell, the victim's nephew, who witnessed the shooting, stated that he saw the petitioner shoot the victim three times after a street fight. (N.T. 9/16/97, 37). According to Nowell, Talmadge pulled a handgun on the victim during a street fight. At the time, the victim was lying face down in the street and Talmadge aimed the gun at the victim's back. (N.T. 9/16/97, 32-33). Mr. Nowell told Talmadge to put the gun away and he put the gun back in his pocket. (N.T. 9/16/97, 33). Unfortunately, when Mr. Nowell told his uncle, Demetrius Shelley, that Talmadge had pulled a gun on him, Mr. Shelley approached Talmadge and began yelling at him. (N.T. 9/16/97, 34-35). When they were face-to-face, Talmadge pulled the handgun from his pocket and shot the victim three times at point blank range. (N.T. 9/16/97, 37-38). Mr. Nowell testified that he did not see any weapon in his uncle's hands and, in fact, neither he nor his uncle had a gun at the time. (N.T. 9/16/97, 42). When Nowell started chasing Talmadge, Talmadge turned and aimed the gun at Nowell, (N.T. 9/16/97, 39), at which point, Nowell ducked behind a phone booth and returned to help his uncle. (N.T. 9/16/97, 39-40).
Mr. Nowell's testimony was consistent with that of another witness to the shooting, Richard Allen. Mr. Allen described the scene much like Mr. Nowell. However, he added that when the victim approached Talmadge and the two were arguing, Mr. Shelley was making "a lot of hand motions." (N.T. 9/16/97, 83). Mr. Allen also noted that the victim did not have anything in his hands. (N.T. 9/16/97, 83). "They was [sic] in each other face and Avery [Talmadge] pulled out the gun and shot him." (N.T. 9/16/97, 84).
The court was also faced with inconsistencies in Talmadge's own testimony. First, Talmadge claimed the victim was five feet away from him when he shot. (N.T. 9/17/97, 67-68). Then, Talmadge claimed they were only six inches apart. (N.T. 9/17/97, 67). Talmadge also claimed that he saw the victim was reaching for his weapon, yet also stated that he was waving his arms around or, alternatively, that the victim pushed him in the back. (N.T. 9/17/97, 63-66). Talmadge was also unsure of how long he had owned the weapon with which he shot Mr. Shelley — at one point stating he had it only three days, yet, at another, stating that he had the gun for two to four weeks. (N.T. 9/17/97, 73-74).
In order to be eligible for habeas relief, as previously stated, the petitioner must establish that the state court's decision was contrary to or involved an unreasonable application of federal law or was based on an unreasonable determination of the facts. Here, as the trial court noted, there was no evidence of the high speed chases because Talmadge never responded to the question. Moreover, considering the evidence before the court, including the testimony of the two eyewitnesses, introduction of the chases would not have infected the trial with unfairness as required by Darden. Admission of Evidence of Firearms violated Due Process
The petitioner's final issue is that his due process rights were violated because the trial court permitted the admission of evidence regarding the seizure of two handguns when he was taken into custody in North Carolina. In response, the District Attorney argues that the claim is defaulted because Talmadge never presented this claim in terms of a violation of federal law in the state courts. In the alternative, the District Attorney asserts that the claim is meritless. We agree with both arguments.
In order to comply with the exhaustion requirement of § 2254(b)(1)(A), both the legal theory and the facts supporting a federal claim must be fairly presented to the state courts before bringing a habeas corpus petition. Landano v. Rafferty, 897 F.2d 661, 669-670 (3d Cir.), cert. denied, 498 U.S. 811 (1990). This ensures "that the same method of legal analysis that is used by the federal court in resolving the petitioner's claim was also readily available to the state court when it adjudicated the claim." Id. To decide whether a claim has been fairly presented to the state court, the federal court should examine both the state court decisions, as well as the briefs submitted to the state courts. Gonce v. Redman, 780 F.2d 333, 336 (3d Cir. 1985).
With respect to due process claims, the Supreme Court held inDuncan v. Henry, 513 U.S. 364, 365 (1995), that "it is not necessary to invoke the talismanic phrase due process of law or cite book and verse on the federal constitution" in order to state a due process claim under the Fourteenth Amendment. Id. However, "[i]f state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution." Id.
Like Henry, the petitioner in Duncan, Talmadge only claimed that an evidentiary ruling violated state law. Specifically, in Talmadge's case, he claimed that the evidence — the two handguns — was irrelevant, prejudicial, that the Commonwealth failed to lay any foundation for the evidence, and the court abused its discretion in allowing the admission of the guns. See Appellant's Brief, 713 EDA 1999, at 23-27. In Duncan, the Court concluded that the petitioner's arguments were insufficient to "apprise the state court of his claim that the evidentiary ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment." Id., at 366. Based on Talmadge's arguments, like those made by Henry, the state courts addressed the issue only in terms of state law.Commonwealth v. Talmadge, 778 March Term, 1996 (Opinion, 8/18/98) (Lineberger, J.), at 2; Commonwealth v. Talmadge, 713 EDA 1999, at 2. Thus, we believe the District Attorney is correct in her assertion that Talmadge never fairly presented his due process argument to the state courts.
Although Talmadge does mention the denial of a "fair trial" in his Superior Court brief, see Appellant's Brief, 713 ED A 19 99, at 23, the Third Circuit has held that such a "passing reference" to the concept of a fair trial is insufficient to fairly present a due process claim. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
In any event, the claim is also patently meritless. Prior to any mention of the guns found when Talmadge was arrested, Judge Temin ruled that such evidence was admissible. Talmadge cannot establish that this evidentiary ruling rises to the level of a due process violation. The essence of due process is fundamental fairness. Estelle v. Williams, 425 U.S. 501 (1976). The Constitution guarantees a fair trial, not a perfect one. United States v. Nobel, 696 F.2d 231, 237 (3d Cir. 1984). A trial is fundamentally fair if it results in a verdict reached through consideration of evidence properly admitted. If the total effect of the errors does not render the verdict unreliable, fundamental fairness has been achieved. Daniels v. Wood, 819 F.2d 195, 197 (8th Cir. 1987), cert. denied, 484 U.S. 861, 108 S.Ct. 177 (1988); Johnson v. United States, 805 F.2d 1284 1289 (7th Cir. 1986); Crist v. Lane, 745 F.2d 476, 482 (7th Cir. 1984) cert. denied, 471 U.S. 1068 (1985).
During the trial testimony before Judge Lineberger, Detective Brad Stanley, the officer who arrested Talmadge in North Carolina, identified two automatic .38 caliber guns that were recovered when Talmadge was arrested. (N.T. 9/17/97, 29-30). There was no question that the guns recovered were not involved with the shooting of Demetrius Shelley. When ruling on Talmadge's post-verdict motions, Judge Lineberger found that the guns were admissible under Pennsylvania law "to show that the defendant was at some time in possession of a weapon similar to the one used to commit the crime." Commonwealth v. Talmadge, 778 March Term, 1996 (Opinion, 8/18/98) (Lineberger, J.), at 2.
Assuming for the sake of argument that the guns were improperly admitted into evidence, Talmadge has still failed to establish a due process violation. As previously discussed, Talmadge admitted shooting the victim and the issue before the trial court was Talmadge's claim of self-defense. The testimony of two eyewitnesses belied Talmadge's account of the incident and the inconsistencies in his own testimony undermined his credibility. Considering these facts, the mention of the weapons found when Talmadge was arrested did not render the verdict unreliable.
Motion for Appointment of Counsel
Finally, after filing his habeas petition, Talmadge filed a motion requesting the appointment of counsel, which the Honorable William Yohn denied without prejudice to Talmadge's rights to make such a request after the District Attorney had responded to the petition. After the response to the petition was filed, Talmadge again requested the appointment of counsel. Because we found that Talmadge's petition, brief, and state court filings adequately presented the issues of which he complains, and based on recommendation contained in this Report, we will also recommend that the motion for appointment of counsel be denied. Therefore, I make the following:
RECOMMENDATION
AND NOW, this 27th day of July ___, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. IT IS FURTHER RECOMMENDED that the Motion for Appointment of Counsel be DENIED.
ORDER
AND NOW, this ____ day of ____, 2005, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. The motion for appointment of counsel is DENIED.
4. There is no basis for the issuance of a certificate of appealability.