Baldwin v. Superintendent, SCI Albion

Full title: JAMES BALDWIN, Petitioner, v. SUPERINTENDENT, SCI ALBION, THE ATTORNEY…

Court: UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Date published: Feb 6, 2020

Civil Action No. 17-540 (W.D. Pa. Feb. 6, 2020)

Opinion

Civil Action No. 17-540

02-06-2020

JAMES BALDWIN, Petitioner, v. SUPERINTENDENT, SCI ALBION, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, Respondents.

MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE

District Judge Arthur J. Schwab/Magistrate Judge Maureen P. Kelly REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the counseled Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), ECF No. 1, be denied and that a certificate of appealability likewise be denied.

II. REPORT

A. Factual History

The Pennsylvania Superior Court in a Memorandum, dated June 14, 2016, set forth the factual history of the underlying crimes as follows:

On January 25, 2006, [Baldwin] and his roommate, Brendan Martin, had an altercation when [Baldwin] served Martin with a notice to vacate the premises due to Martin's drug use. Martin attempted to hit [Baldwin] with a hammer, and [Baldwin] attacked Martin with a large knife, fatally stabbing him in the neck and heart. [Baldwin] dismembered the body, placed the parts in five plastic bags, and buried the remains in a shallow, makeshift grave. The next day, a road department employee discovered the grave and alerted police, who found the plastic bags containing the victim's remains, along with a backpack containing a piece of paper with [Baldwin's] name on it. Police interviewed [Baldwin], who admitted he attacked the victim and killed him.

[Baldwin] was charged with homicide and abuse of a corpse, and proceeded to a jury trial, at which he asserted an insanity defense.

Com. v. Baldwin, 1240 WDA 2015, 2016 WL 3268835, at *1 (Pa. Super. June 14, 2016); ECF No. 12-15 at 19 - 20 (quoting Com. v. Baldwin, 58 A.3d 754, 756 (Pa. 2012)).

B. Procedural History

1. State Court

The Superior Court recounted the procedural history of the conviction and direct appeal as follows:

Baldwin's trial counsel conceded the basic facts of the case in his opening statement, and focused his case on the insanity defense.

....

The Commonwealth presented fact witnesses who testified to the circumstances of the crime and a recording of Baldwin's confession to investigators. Baldwin presented the testimony of a single witness, Laszlo Petras, M.D., a psychiatrist who treated Baldwin while he was involuntarily committed after his arrest. Dr. Petras opined that Baldwin was incapable of distinguishing right from wrong when he committed the homicide. In rebuttal, the Commonwealth called Bruce Wright, M.D., a forensic psychiatrist who interviewed Baldwin prior to trial and opined that Baldwin was not legally insane at the time he committed the homicide.

After deliberation, the jury returned a verdict of guilty on the charges of first degree murder and abuse of a corpse. The trial court sentenced Baldwin to life in prison without possibility of parole plus a consecutive term of one to two years' imprisonment. The trial court subsequently denied Baldwin's post-sentence motions.

On appeal, this Court affirmed the judgment of sentence in a published decision. The Supreme Court of Pennsylvania granted Baldwin's petition for allowance of appeal, and affirmed this Court's decision in an opinion dated December 28, 2012.

Baldwin filed a timely pro se PCRA petition. Counsel was appointed to represent Baldwin, and counsel filed an amended PCRA petition. The PCRA court denied the amended petition on August 3, 2015, and Baldwin filed this timely appeal.

On appeal, Baldwin raises ten separate allegations of trial counsel ineffectiveness.

Id. at 12-15 at 20 - 22.

On June 14, 2016, the Superior Court affirmed the denial of relief by the PCRA trial court. Id. at 15.

Petitioner then filed a Petition for Allowance of Appeal in the Pennsylvania Supreme Court, raising the same claims as he had raised in the Superior Court. Id. at 46. The Pennsylvania Supreme Court denied the Petition for Allowance of Appeal on December 6, 2016. ECF No. 12-17 at 7.

2. Federal Court

On April 26, 2017, Petitioner filed this counseled Petition, seeking to attack his convictions for first-degree murder and abuse of a corpse. ECF No. 1. In the Petition, the following grounds for relief are asserted.

GROUND ONE: Denial of the right to effective assistance of trial counsel in violation of the Sixth Amendment[.]

GROUND TWO: Conviction was obtained[,] and sentence imposed in violation of the right to testify in violation of the 5^th, 6^th and 14^th Amendments[.]

Id. at 5 and 7.

In the Petition, Petitioner lists the following supporting facts as to Ground One.

Trial counsel's performance was deficient (IATC) for (1) making inflammatory and prejudicial remarks and arguments for no reason and which conferred no benefit on the client; (2) failing to investigate and prepare the insanity defense[;] (3) failing to present a claim of self defense even though the Medical Examiner (ME) testified that the first blows with the survival knife hit the jugular vein and one of them was the fatal wound and this wound was inflicted during the course of a struggle instigated by the decedent to stop the decedent from killing the defendant/petitioner; (4) failing to insist on compliance with Rule 569(A)(2); (5) failing to make an argument that the record should be reopened once the defendant/petitioner decided he wanted to testify; (6) failing to object to the

prosecution's closing argument stating that the attempt to to [sic] conceal the crime was evidence of malice; (7) failing to object to the prosecution's characterization of the crime as an "execution" where the evidence showed that the first blow with the knife was lethal; (8) failing to call character witnesses; (9) failing to cross-examine a witness to show that the decedent was taller than the defendant/petitioner.

Id. at 5.

Petitioner also lists the following supporting facts as to Ground Two.

Petitioner could not make up his mind whether he wanted to testify or not. The Court asked him whether he wanted to testify or not. The defense attorney intervened and twisted Petitioner [sic] arm so Petitioner decided not to testify. The very next day, Petitioner counsel told the Court that Petitioner wanted to testify. The judge denied the request for no good reason and without making a record for appellate review. There was no reason not to allow the Petitioner to testify. Nevertheless, the Court refused on application of mechanistic rules. If Petitioner had testified, he would have been able to explain to the jury that the first knife wound was to Martin's neck and it was the lethal blow, as confirmed by the Medical Examiner's testimony. He would have been able to clarify that the first blow was in self-defense and there was no possible avenue of retreat. The later blows were non-lethal wounds. The lethal wound to the jugular vein was inflicted in self-defense, but the later wounds and the abuse of the corpse were symptomatic of panic at the outcome of the fight.

Id. at 7.

Petitioner also filed a "Memorandum of Law Supporting Petition for Habeas Corpus Under 28 U.S.C. 2254" [sic]. ECF No. 2. Respondents filed an Answer, with attached copies of much of the state court record, denying that Petitioner was entitled to any relief. ECF No. 12. Respondents also caused the original state court record to be transmitted to this Court. Petitioner then filed a "Response to State's Answer Opposing Petition for Habeas Corpus" (the "Traverse"). ECF No. 16.

C. Applicable Legal Principles

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, tit. I, §101 (1996) (the "AEDPA") which amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because Petitioner's habeas Petition was filed after its effective date, the AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000).

Where the state court has reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e).

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded upon the standard found in 28 U.S.C. § 2254(d). In Williams, the Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was "contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States" or 2) where that state court decision "involved an unreasonable application of[] clearly established Federal law as determined by the Supreme Court of the United States." Id. at 404-05 (emphasis deleted). A state court decision can be contrary to clearly established federal law in one of two ways. First, the state courts could apply a wrong rule of law that is different from the rule of law required by the United States Supreme Court. Second, the state courts can apply the correct rule of law but reach an outcome that is different from a case decided by the United States Supreme Court where the facts are indistinguishable between the state court case and the United States Supreme Court case.

In addition, we look to the United States Supreme Court holdings under the AEDPA analysis as "[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief." Rodriguez v. Miller, 537 F.3d 102, 106-07 (2d Cir. 2008) (citing Carey v. Musladin, 549 U.S. 70 (2006)). The United States Court of Appeals for the Third Circuit has explained that "Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal courts 'may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.'" Dennis v. Sec., Pa. Dept. of Corrections, 834 F.3d 263, 368 (3d Cir. 2016) (en banc) (quoting, Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As the United States Supreme Court has further explained: "[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White v. Woodall, 572 U.S. 415, 428 (2014).

The AEDPA also permits federal habeas relief where the state court's adjudication of the claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).

Finally, it is a habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. Moreno v. Ferguson, Civ.A. No. 17-1412, 2019 WL 4192459, at *3 (W.D. Pa. Sept. 4, 2019), appeal filed, 19-3777 (3d Cir. Dec. 6, 2019). This burden means that when Petitioner is claiming an error of law, he must point to specific caselaw decided by the United States Supreme Court and show how the state court decision was contrary to or an unreasonable application of such United States Supreme Court decisions. Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) ("To obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he has not met this burden in this appeal. Mr. Owsley's claims must be rejected because he cannot provide us with any Supreme Court opinion justifying his position."); West v. Foster, 2:07-CV-00021, 2010 WL 3636164, at *10 (D. Nev. Sept. 9, 2010) ("petitioner's burden under the AEDPA is to demonstrate that the decision of the Supreme Court of Nevada rejecting her claim '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) (emphasis added). Petitioner has not even begun to shoulder this burden with citation to apposite United States Supreme Court authority."), aff'd, 454 F. App'x 630 (9th Cir. 2011).

This burden further means that where Petitioner is claiming an error of fact, he must point to specific factual findings by the state courts that he claims are unreasonable determinations of the facts. Davis v. Jones, 506 F.3d 1325, 1330 n. 8 (11^th Cir. 2007) (declining to consider "argument that the state court made an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2)," where the petitioner did "not challeng[e] any specific factual finding"); Lane v. Posey, 213CV01255, 2016 WL 5110538, at *2 (N.D. Ala. Sept. 21, 2016); Petrick v. Thornton, 1:09CV551, 2014 WL 6626838, at *3 (M.D.N.C. Nov. 21, 2014); Oliver v. Wengler, No. 1:12CV96, 2013 WL 5707342, at *3 (D. Idaho Oct. 21, 2013).

The United States Court of Appeals for the Third Circuit has recognized the significance of the deference under AEDPA that federal habeas courts owe to state courts' decisions on the merits of federal legal claims raised by state prisoners in federal habeas proceedings and the Third Circuit emphasized how heavy is the burden that petitioners bear in federal habeas proceedings. The Third Circuit explained that: "[w]e also defer to state courts on issues of law: We must uphold their decisions of law unless they are 'contrary to, or involve[ ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.' So on federal habeas, 'even 'clear error' will not suffice.' Instead, the state court must be wrong 'beyond any possibility for fairminded disagreement.'" Orie v. Sec. Pa. Dept. of Corrections, 940 F. 3d 845, 850 (3d Cir. 2019) (citations and some internal quotations omitted).

D. Discussion

1. Ground Two does not merit relief.

Because in Ground One, Petitioner raises a claim of ineffective assistance of counsel based on Ground Two, we will first address the alleged constitutional claims asserted in Ground Two.

In Ground Two, Petitioner argues that his "[c]onviction was obtained and sentence imposed in violation of the right to testify in violation of the 5th, 6th and 14th Amendments." ECF No. 1 at 7. However, in the Memorandum of Law, Petitioner argues that the ruling of the trial court denying him the opportunity to testify on his own behalf violated his Sixth Amendment right to take the stand and testify on his own behalf and violated his Fourteenth Amendment right to due process. Petitioner does not, however, reference the Fifth Amendment in the Memorandum of Law. ECF No. 2 at 32.

a. Petitioner does not carry his burden under AEDPA.

The state courts addressed this claim on the merits and they uniformly rejected this argument by Petitioner. In the direct appeal proceedings, the Pennsylvania Supreme Court granted the Petition for Allowance of Appeal limited to the following issue:

Whether the test employed in United States v. Peterson, 233 F.3d 101 (1^st Cir. 2000) adopted by the Superior Court in this case, to be utilized when a criminal defendant seeks to testify after the close of evidence, is an unconstitutional burden on a citizen's fundamental right to testify in his own defense.

ECF No. 12-9 at 5 - 6. The test employed by the United States Court of Appeals for the First Circuit in Peterson acknowledged that "the choice whether to reopen is left to the court's sound discretion[,]" id., at 106, and held that a trial court should consider the following factors in determining whether to reopen a case to allow a defendant to testify:

In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for failure to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not imbue the evidence with distorted importance, prejudice the opposing party's case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.

Peterson, 233 F.3d at 106 (quoting United States v. Walker, 772 F.2d 1172, 1177 (5th Cir. 1985)). The Pennsylvania Supreme Court affirmed the denial of relief to Petitioner, rejecting this claim on the merits. The Pennsylvania Supreme Court's decision consisted of a majority opinion and a concurring opinion. The majority concluded that the test announced in Peterson was an appropriate test. The majority then applied that test to the facts of Petitioner's case and found that the trial court had not abused its discretion in declining Petitioner's request to reopen the case to allow Petitioner to testify.

Upon review, Petitioner has not carried his burden to show that the disposition by the Pennsylvania Supreme Court is either contrary to or an unreasonable application of United States Supreme Court precedent. While he argues that the state courts' disposition of this claim is contrary to Rock v. Arkansas, 483 U.S. 44 (1987), for reasons we explain immediately below, Petitioner is simply wrong on the law. Accordingly, Ground Two does not afford a basis for federal habeas relief.

b. Even under de novo review, Petitioner would not succeed.

The concurring opinion of the Pennsylvania Supreme Court, authored by Justice Saylor and joined by Justice Todd, agreed with the majority opinion that the Peterson test was a useful guide in assessing whether to reopen an evidentiary record after the close of the evidence. ECF No. 12-9 at 14. The concurring opinion concluded however that the majority opinion went "too far into an unnecessary and unwarranted factfinding venture." Id. The concurring opinion conducted the following analysis:

In this regard, Appellant's counsel presented his client's wish to testify after the close of the evidentiary record as an informational matter only. Counsel did not move to reopen the evidentiary record—indeed, when asked by the trial court to state his position on the matter, counsel declined, as follows:

THE COURT: ... And his request to testify, did you want to put it [in the record] if you were in agreement or disagreement with that at all? I don't know if you actually indicated your position or if you want to.

[COUNSEL]: No, Your Honor.

Id. at 362. As there is no right to hybrid representation at trial, see, e.g., Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d 1137, 1139 (1993), the trial court was not duty-bound to explore Appellant's request, relayed without counsel's support. Moreover, in my view at least, a litigant who wishes to invoke some extraordinary procedure (such as reopening the record effectively to retract a previous waiver), should carry the burden of making an adequate, supportive proffer and, if factual matters are in controversy, to request an evidentiary determination or colloquy, as appropriate. Here, however, there was no proffer and no request for a hearing or colloquy.

In the absence of a motion, proffer, and request for a hearing or colloquy, I conclude that the trial court did not err in its response upon hearing of Appellant's wishes. I also believe that any fact-finding is best left to the post-conviction stage, at which Appellant may elect to challenge the manner in which his request was presented to the court.

Com. v. Baldwin, 58 A.3d at 766-67; ECF No. 12-9 at 15 - 16.

Providing de novo review of Ground Two, we agree with the foregoing analysis of the concurring opinion and adopt it as our own with the following clarification.

Petitioner improperly frames the question as one of violating his right to testify in his own defense in violation of Rock v. Arkansas. Rock involved the "constitutionality of Arkansas' per se rule excluding a criminal defendant's hypnotically refreshed testimony." Rock, 483 U.S. at 49. In Rock, a criminal defendant who took the stand was barred from recounting any facts that were hypnotically refreshed due to a state law rule of evidence. The United States Supreme Court held that the Arkansas' per se rule of exclusion violated the criminal defendant's right to due process under the Fourteenth Amendment, compulsory process under the Sixth Amendment and the Fifth Amendment right against self-incrimination.

The facts and holding of Rock have nothing to do with Petitioner's case. Because Petitioner waived his right to testify after an extensive colloquy, Petitioner's argument regarding Rock misses the point. The proper analysis of Petitioner's case must begin with the acknowledgement that Petitioner voluntarily, knowingly and intelligently waived his constitutional right (irrespective of which Amendment(s) the right stems from) to testify at trial as was made clear in the colloquy conducted by the trial court when Petitioner was asked about his desire to take the stand and testify. See, e.g., ECF No. 12-8 at 45 - 50. The trial court specifically concluded at the end of the colloquy:

THE COURT: I accept your waiver then. [Defense Counsel], is there anything else you wanted to add to or clarify regarding the decision not to testify or anything?

DEFENSE COUNSEL: No, Your Honor. Thank you.

Id. at 50.

Hence, from the moment that Petitioner knowingly, intelligently and voluntarily waived his right to testify, he relinquished any and all rights to testify under the Constitution. As such, anything that occurred after Petitioner's waiver could not have violated his then non-existent/waived "right" to testify, including the trial court's refusal to reopen the evidentiary record in order to permit Petitioner to take the stand and testify.¹

1 Petitioner seemingly suggests that his waiver of the right to testify was not voluntary. ECF No. 2 at 37 ("In the case at hand, the trial court had no good reason for denying Baldwin the right to take the stand and testify. Less than a day had gone by since the colloquy where Baldwin stated that he was not sure whether he wanted to testify or not. He only agreed not to testify when his lawyer twisted his arm."). To the extent that he suggests his trial counsel twisted his arm, no such claim appears to have been made before the state courts and Petitioner points to no evidence in the state court record to support such a claim or to carry his burden to rebut the presumptively correct implicit finding of the trial court that Petitioner's waiver was intelligent, knowing and voluntary.

Thereafter, when Petitioner expressed his desire to take the stand and testify notwithstanding his prior waiver of his right to do so, the proper way to analyze such a request is to analyze the request as one seeking to withdraw his waiver of his right to testify. In this regard, we agree with the Pennsylvania Supreme Court about the utility of the test announced in Peterson, albeit for determining whether the trial court's decision regarding whether to permit a criminal defendant to withdraw his waiver of his right to testify after the close of the evidentiary record constituted an abuse of discretion as opposed to determining directly whether the right to testify was violated by not permitting the criminal defendant to testify after the close of evidence. Accordingly, we reject Petitioner's contention that the Peterson test is somehow a violation of his right to testify.

Moreover, we agree with the concurring opinion that it is entirely proper to place the burden on the moving party, i.e., the criminal defendant, Petitioner herein, who seeks to withdraw his waiver, to come forward with some reason/evidence that supports or persuades the trial court to exercise its discretion to grant such a request to withdraw the waiver of the right to testify. ECF No. 12-9 at 16 ("in my view at least, a litigant who wishes to invoke some extraordinary procedure (such as reopening the record effectively to retract a previous waiver), should carry the burden of making an adequate, supportive proffer and, if factual matters are in controversy, to request an evidentiary determination or colloquy, as appropriate. Here, however, there was no proffer and no request for a hearing or colloquy."). Petitioner having made no such offer or having failed to provide any such reason for withdrawing the waiver, simply failed to carry his burden of proof and persuasion to withdraw his waiver of his right to testify. See, e.g., U.S. v. Hushman, 156 F. App'x 865, 866 (8th Cir. 2005) ("Even if Hushman had not waived his right to withdraw his guilty plea, he did not meet his burden of establishing a fair and just reason to withdraw."); U.S. v. Battle, 2:15-CR-524, 2016 WL 10678414, at *2 (M.D. Ala. Nov. 2, 2016) ("the undersigned determines that Defendant has not met his burden of showing a fair and just reason to withdraw his guilty plea based upon the argument that he did not knowingly and intelligently waive his right to trial"); U.S. v. Modafferi, 112 F. Supp. 2d 1192, 1201 (D. Haw. 2000) ("Modaferri has not met her burden of showing that this court should reject the Plea Agreement, allow her to withdraw from her Plea Agreement, or void her waiver of appellate rights."). Having failed to carry his burden of proof and persuasion, the trial court did not abuse its discretion in denying Petitioner's request to testify after his waiver and the close of the evidence.

In light of the foregoing, we specifically reject Petitioner's argument that "the trial court had no good reason for denying Baldwin the right to take the stand and testify." ECF No. 2 at 37. Petitioner's argument reverses the burden. It is Petitioner who failed to offer the trial court any reason, yet alone a good reason, for withdrawing the waiver of his right to testify. Having failed to do so, Petitioner fails to carry his burden to show why or how the state courts unreasonably applied United States Supreme Court precedent in determining that Petitioner failed to show the trial court abused its discretion by, in effect, refusing Petitioner's request to withdraw his waiver of his right to testify.

Accordingly, for the foregoing reasons, Ground Two does not serve as a basis for federal habeas relief.

2. Ground One - Ineffective Assistance of Counsel

Petitioner raises nine "supporting facts" in support of his claim of ineffective assistance of trial counsel in Ground One. We will address each alleged supporting fact individually after addressing Petitioner's one overarching argument that appears to apply to all nine grounds.

a. The Pierce standard is not contrary to Strickland standard.

At the outset, we address Petitioner's argument that the Pennsylvania state law standard for ineffectiveness claims is somehow contrary to the Strickland standard and a closely related claim that Petitioner's PCRA counsel, Attorney Christy Foreman, was ineffective for asserting the ineffectiveness of prior counsel by relying on the state law standard of ineffectiveness set forth in Com. v. Pierce, 527 A.2d 973 (Pa. 1987) ("the Pierce standard"), rather than the standard set forth in Strickland. ECF No. 2 at 24 - 25. We address this argument first because Petitioner asserts that there is a difference in the Pierce standard and the Strickland standard. Petitioner asserts that the state courts' application of the Pierce standard is "contrary to Strickland which requires the reviewing court to consider the totality of the evidence, and not merely the snippets of evidence favorable to the State." Id. at 22. Petitioner makes this assertion even though he acknowledges, as he must that the United States Court of Appeals for the Third Circuit has held that the Pierce standard is not contrary to the Strickland standard. Id. at 24. Specifically, Petitioner argues that the "Third Circuit Court has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strikland. Jacobs v. Horn , 395 F3d 92, 107 n.9 (3d Cir. 2005), Werts v. Vaughn , 228 F3d 178 204 (3d Cir. 2000). Nevertheless, Strickland requires the reviewing court to consider the totality of the evidence where Pierce does not." Id. There are at least three flaws to this argument.

First, Petitioner's argument that there is a divergence between the Pierce standard and the Strickland standard is foreclosed by the Third Circuit case law cited by Petitioner that holds the Pierce standard is not contrary to the Strickland standard. If the Pierce standard did not require an assessment of the totality of the evidence whereas Strickland does, then the Pierce standard would indeed be contrary to the Strickland standard.

Secondly, Petitioner's characterization of what the Pierce standard requires is simply inaccurate as a matter of Pennsylvania law. Contrary to Petitioner's assertion, the Pierce standard does indeed require an assessment of the totality of the evidence. Com. v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010) ("The Pierce court also noted Strickland eschewed the application of mechanical rules for determining ineffective assistance and used a totality of the circumstances test. Pierce at 157, 527 A.2d at 975. . . . Rather than apply a mechanical rule, Padilla harkens back to the original Strickland concept, adopted by our Supreme Court in Pierce, of examining the totality of the circumstances to determine what advice must be given to have a fully informed guilty plea."), rev'd on other grounds by, 62 A.3d 343 (Pa. 2012). Accord Com. v. Garcia, 23 A.3d 1059, 1065 (Pa. Super. 2011).

Third, to the extent that Petitioner is arguing that the Superior Court only considered the evidence favorable to the Commonwealth in its opinion disposing of the PCRA appeal, and that such constitutes error under Strickland because the Superior Court did not consider all of the evidence, we are unpersuaded. ECF No. 2 at 22 ("the State Court's decision is contrary to Strickland which requires the reviewing court to consider the totality of the evidence, and not merely the snippets of evidence favorable to the State."). Id. at 22. The mere fact that the Superior Court did not recite every relevant piece of evidence or fact or, in Petitioner's words did not recite the "totality of the evidence," does not mean that it did not consider the totality of the evidence. Henry v. Trim, 1:11CV301, 2014 WL 763234, at *3 (N.D. Ohio Feb. 21, 2014) ("At best, petitioner is arguing that there was competing evidence not included in the state court's recitation of the facts. She does not argue that the state court failed to consider the additional facts, nor does she state how failing to recite (or consider) the additional facts might be significant in a habeas context, where constitutional violations are the issue."). In fact, federal habeas courts "presume 'that state courts know and follow the law,' and we give state-court decisions 'the benefit of the doubt.'" Ontiveros v. Pacheco, 760 F. App'x. 601, 604 (10th Cir. 2019) cert. denied, 139 S. Ct. 2032 (2019), reh'g denied, 140 S. Ct. 21 (2019) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). Accord Clark v. Arnold, 769 F.3d 711, 724 (9th Cir. 2014) ("Under this 'highly deferential standard [of AEDPA,' we 'presume that 'state courts know and follow the law.'") (quoting Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003)). And this is so even if it does not affirmatively appear in the state court record that the state courts followed the law. Poland v. Stewart, 169 F.3d 573, 589-90 (9th Cir. 1999) (we "presume[ ] that state courts follow the law, even when they fail to so indicate."). Hence, we presume that the Superior Court considered the totality of the evidence and circumstances, as is required under both Pierce and Strickland, even if the Superior Court did not recount all of the evidence and facts in its opinion. Petitioner fails to rebut this presumption, and indeed, it would seemingly be quite difficult to do so.

For these reasons, Petitioner fails to show that the state courts' use of the Pierce standard was contrary to Strickland. Furthermore, because there is no difference between the Pierce standard and the Strickland standard, there can be no valid claim that Petitioner's PCRA counsel was ineffective for utilizing the Pierce standard in the course of the PCRA proceedings.

b. Alleged ineffectiveness for making inflammatory and prejudicial remarks (Nos. 1 and 3).

Petitioner claims that his trial counsel was ineffective for making allegedly inflammatory remarks about Petitioner. ECF No. 1 at 5. Petitioner complains of his trial counsel's actions in recounting Petitioner being abused as a child by his father, trial counsel's characterization of the murder as brutal, sadistic and terrible and trial counsel's referring to the victim, Martin as "this poor boy." ECF No. 2 at 26. In addition, Petitioner complains about trial counsel's comparing him to the fictional Hannibal Lector and the real life serial killer Jeffrey Dahmer. Id.

i. Petitioner fails to show an unreasonable application of law.

The Superior Court addressed this claim as follows:

Baldwin highlights counsel's allegations of child abuse at the hands of his father, counsel's characterization of the homicide as "brutal, sadistic, and terrible," and counsel's characterization of Martin as "this poor boy," despite Baldwin's statement that Martin had instigated the fight by attacking him with a claw hammer. Furthermore, Baldwin identifies instances where trial counsel likened him to fictional murderer Hannibal Lecter and infamous serial killer Jeffrey Dahmer.

While we agree that this was an unusual defense strategy, it is equally clear that this was an unusual case that included an undisputedly shocking treatment of the victim's body. The evidence linking Baldwin to the crime included Baldwin's recorded confession to the police, which painted a very complex collage of legal issues. Baldwin's confession indicated that the altercation between Baldwin and Martin was initiated by Martin attacking Baldwin with a claw hammer. During the fight, the two men fell to the floor, knocking over a nearby workbench. Baldwin grabbed a survival style knife from the floor and stabbed Martin.

While these facts could form the basis of a claim of self-defense, the remaining portions of Baldwin's recorded confession created significant obstacles. First, self-defense does not negate criminal liability for homicide where "the accused had a duty to retreat and the retreat was possible with complete safety." Commonwealth v. McClendon, 874 A.2d 1223, 1230 (Pa. Super. 2005) (citation omitted). Baldwin stated that after the initial stab, he stopped stabbing Martin because Martin was saying "stop, stop [.]" Furthermore, Baldwin admitted that he "tried to kill [Martin] because he just kept coughing and gurgling on it by sticking him in the heart with the knife.... I tried to kill him because he was dying. I just wanted it to end." N.T., Trial, 2/20-25/08, at 190-191. Thus, Baldwin's recorded confession also established that 1) Baldwin had ended the altercation at the victim's insistence, 2) then resumed stabbing the victim, and 3) intended to kill the victim when he resumed stabbing him.

This evidence was followed by evidence, including both Baldwin's recorded confession and forensic evidence, that Baldwin then proceeded to dismember Martin's corpse and bury it on the side of a road. Furthermore, Baldwin admitted in his recorded confession that he cleaned up the crime scene.

Faced with this record, we cannot conclude that Baldwin has established that counsel's decision to pursue the defense of legal insanity to the detriment of a possible self-defense argument prejudiced Baldwin. Trial counsel's presentation of the defense of criminal insanity, while arguably inartful, was not prejudicial to Baldwin. Indeed, it appears to have been the least problematic option out of a range of bad options.

ECF No. 12-15 at 6 - 8.

Because the state courts addressed Petitioner's claims of ineffectiveness on the merits, this Court must apply the deferential standards of the AEDPA as to those claims, which results in a doubly deferential standard as explained by the United States Supreme Court:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both 'highly deferential,' id., at 689 ; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is 'doubly' so, Knowles, 556 U.S., at —, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at — [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Premo v. Moore, 562 U.S. 115, 122 - 123 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). Accord Grant v. Lockett, 709 F.3d 224, 232 (3d Cir. 2013) ("'A state court must be granted a deference and latitude that are not in operation when the case involves [direct] review under the Strickland standard itself.' Id. Federal habeas review of ineffective assistance of counsel claims is thus 'doubly deferential.' Pinholster, 131 S.Ct. at 1403. Federal habeas courts must 'take a highly deferential look at counsel's performance' under Strickland, 'through the deferential lens of § 2254(d).'"), rejected on other grounds by, Dennis, 834 F.3d at 293.

Petitioner fails to carry his burden under AEDPA. Petitioner asserts without citation to any particular Supreme Court precedent that the Superior Court's disposition of this claim is "contrary to clearly established federal law, contrary to the trial record, and it could easily be regarded as indefensible." ECF No. 2 at 28. Having cited no particular United States Supreme Court authority, which he asserts the Superior Court's opinion is contrary to or has unreasonably applied, Petitioner fails to carry his requisite burden under AEDPA.

ii. Superior Court did not unreasonably determine facts.

As noted, Petitioner also asserts that the Superior Court's disposition is "contrary to the trial record." Id. If, by this, he means the Superior Court engaged in an unreasonable determination of the facts, we are unpersuaded. Petitioner points to the "fact" that the medical examiner allegedly testified that the fatal wound was the first stab to the neck. As we explain below, the medical examiner did not so testify as to the order of the stab wounds. From this alleged "fact", Petitioner argues that given that the fatal wound was the first wound, Petitioner had no duty to retreat thereafter, as death was assured, and, therefore, Petitioner's trial counsel was ineffective for not presenting a defense of self-defense (since he did not violate the duty to retreat before the allegedly fatal blow) rather than one of insanity or at least presenting both defenses in the alternative. Id. at 29.

Petitioner's entire argument in this regard relies upon his view that "Superior Court's opinion totally ignored ... the M.E.'s testimony that the first stab wound hit the jugular vein and was the fatal blow struck while retreat was not an option. It also fails to state that the wounds to the vicinity of the heart were not deep enough to be fatal. Essentially the Superior Court's testimony ignores the M.E.'s testimony and all of the scientific evidence that does not fit its theory of the case." Id. at 27.

It is in fact, Petitioner's characterization of the medical examiner's testimony that is inaccurate and ignores testimony that does not agree with his theory of the case. The Court attaches hereto as an Appendix, the entire testimony, both direct and cross, of the medical examiner at Petitioner's trial. That testimony reveals that there were at least two stab wounds to the neck area. See Appendix at p. 102 (as originally paginated) lines 11 - 13 ("The main fatal wound, in fact more than one, but the main wound is a stab wound to the lower neck and upper trunk. This stab wound went through the skin and the soft tissue of the back and neck."). The medical examiner testified to at least a second wound to the neck area. Id. at p. 104, lines 13 - 22 ("There was a stab wound of the left lateral and lower neck. Another stab wound on the left lateral and lower neck, and this penetrated the soft tissues of the neck only. So in between these wounds, the main wound is the stab wound to the right side of the upper and - - of the upper part of the back and neck itself. This wound inflict [sic] injuries to vital organs, which are the neuromuscular bundle from the neck and the spinal cord itself, and it inflict [sic] partial injury or partial transection of the spinal cord.").

The medical examiner also testified to the existence of 14 defensive wounds, i.e., wounds that demonstrate the victim was attempting to shield himself from blows with the knife.² Id. at 106, lines 19 - p. 107, lines 5. In addition, the medical examiner testified to 12 blunt force injuries to the upper extremities of the victim. Id. at p. 107, lines 1 - 10. The medical examiner further testified to two penetrating stab wounds to the face of the victim. Id. at p. 109, lines 12 - 22.

2 The medical examiner testified as follows regarding the 14 defensive wounds:

Q. Is there a particular description for the injuries to the hands, the wounds?

A. Injuries to the hand and upper extremities sometimes referred to as consistent with defensive wounds.

Q. What does that mean?

A. That's in assumption that's when - - if the victim is alive and conscious while he's attacked usually he will try to defend himself and also attract blows or the blows of the knife of the assailant. In doing that he will incur injuries to his hands and to his upper extremities.

Q. You found 14 of them.

A. Yes. There were about 14 of them.

Appendix at p. 106, line 17 - p. 107, line 5.

Petitioner contends that the "Superior Court's opinion failed to account for the M.E.'s testimony that the first stab wound hit the jugular vein and was fatal." ECF No. 2 at 27. Petitioner also asserts that the "Superior Court's Opinion totally ignored ... the M.E's testimony that the first stab wound hit the jugular vein and was the fatal blow struck while retreat was not an option." Id. Petitioner's contentions are not supported by the state court record because there was absolutely no testimony from the medical examiner as to which of the two stab wounds to the neck was the "first" stab wound or any testimony from the medical examiner as to the order of the stab wounds. Petitioner implicitly concedes this when he writes that the "testimony of the M.E. and the testimony of Baldwin [i.e., his recorded confession not subject to cross examination] woven together indicates that the 'neck wound was the main fatal wound.' This wound was the initial wound." ECF No. 16 at 13. In fact, it is only Petitioner's recorded confession that Petitioner can point to which states anything about the order of stab wounds. Trial Transcript ("T.T.") at 189, lines 14 - 23 (wherein Petitioner claims that the first blow of the knife either stuck the victim in the neck or in the face).

To the extent that Petitioner's claim is that his recorded confession, which fails to account for any of the 14 defensive wounds or the 12 blunt force injuries or the two stab wounds to the victim's face, which the medical examiner testified to, is inconsistent with the Superior Court's holding that Petitioner had a duty to retreat and that he had such an opportunity to do so and that such facts provided a sound reason for Petitioner's trial counsel to not have pursued a self-defense theory, we are unpersuaded. The conclusion to be drawn from this apparent inconsistency is not the conclusion that Petitioner would have us draw, i.e., the Superior Court's decision rests on an unreasonable determination of the facts. Rather, the conclusion to be drawn from this situation is that the state courts found Petitioner's confession as to some of the facts not credible, including Petitioner's statements regarding the order of the stab wounds.

As explained by the United States District Judge Kim R. Gibson of this Court:

a federal habeas court's "duty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). See also Townsend v. Sain, 372 U.S. 293, 314, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) ("if no express findings of fact have been made by the state court, the District Court must initially determine whether the state court has impliedly found material facts."), overruled on other grounds by, Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1963). In determining what implicit

factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Campbell v. Vaughn, 209 F.3d at 289 (citing Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 74 L.Ed.2d 646 (1982)). Implicit findings of fact are tantamount to express ones, Parke v. Raley, 506 U.S. 20, 35, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); Marshall v. Lonberger, 459 U.S. 422, 432-33, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); LaVallee v. Delle Rose, 410 U.S. 690, 692, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (per curiam), and are entitled to the presumption of correctness of 42 U.S.C. 2254(e)(1). Lafferty v. Cook, 949 F.2d 1546, 1558 (10^th Cir. 1991) ("explicit and implicit fact findings by state trial and appellate courts [are] entitled to presumption of correctness").

Tokarcik v. Burns, CIV.A. 12-253J, 2015 WL 3480333, at *7 (W.D. Pa. May 29, 2015). Hence, confronted with a choice of finding that the Superior Court's disposition of this claim constituted an unreasonable determination of the facts because its disposition was (according to Petitioner) inconsistent with Petitioner's version of the events as stated in his recorded confession, or the choice of finding that the Superior Court implicitly rejected as incredible Petitioner's version of the events, AEDPA requires this Court to conclude that the Superior Court implicitly rejected Petitioner's version of the events as incredible. Hence, Petitioner seemingly cannot carry his burden before this Court to rebut the Superior Court's presumptively correct implicit credibility determination by pointing to evidence solely in the state court record as is required.

Furthermore, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner as our standard of review requires,³ leads this Court to conclude that Petitioner has failed to establish by evidence from the state court record, that the first stab attack by Petitioner was the fatal stab wound to the neck of the victim given that the medical examiner testified to at least two stab wounds occurring to the neck and neck/upper trunk in addition to testifying to the 14 defensive stab wounds and the two stab wounds to the victim's face. The medical examiner never was asked and never testified as to the order of the stab wounds. Moreover, given the medical examiner's testimony about multiple stab wounds and injuries to the victim, including the 14 defensive wounds and two stab wounds to the victim's face, such testimony would seemingly be inconsistent with Petitioner's version of the events where "Baldwin states that after the initial stab, he stopped stabbing Martin because Martin was saying 'stop, stop[.]'" ECF No. 12-15 at 26. There is no testimony from the state court record that Petitioner points to that establishes which of the two neck stab wounds testified to by the medical examiner was, in fact, the first stab wound inflicted by Petitioner on the victim, if indeed, either stab wound was the first or even among the first, other than perhaps Petitioner's own recorded confession, which was transcribed into the trial record, and which we have already concluded that the state courts must have implicitly rejected as incredible to the extent Petitioner claims the very first stab wound was the fatal one. In this regard, we note that the trial court even gave an instruction to the jury concerning Petitioner's confession as follows: "There was evidence tending to show that the defendant made false and contradictory statements when questioned by the police and did acts to conceal the killing and destroy evidence." T.T. at 449 lines 7 - 11.

3 As this Court has previously explained:

To the extent that there is any gap in the record, it must be noted that Petitioner's conviction is presumed constitutional in these federal habeas proceedings. Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996) ("On collateral attack .... the state receives the presumption of regularity and all reasonable inferences.") (quoting Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993); see also Schlette v. California, 284 F.2d 827, 833-34 (9th Cir. 1960) ("A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences, that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused."); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) ("On a petition for a writ of federal habeas corpus, the petitioner bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated,") Given this presumption, these gaps in the record demonstrate that Petitioner has failed to carry his burden to affirmatively show that his federal rights have been violated. Higgason v. Clark, 984 F.2d 203, 208 (7th Cir. 1993) ("On collateral attack, a silent record supports the judgment; the state receives the benefit of a presumption of regularity and all reasonable inferences. Parke, 506 U.S. at —, 113 S.Ct. at 520; Henderson, 426 U.S. at 647, 96 S.Ct. at 2258.... His [i.e., the habeas petitioner's] entire position depends on persuading us that all gaps and ambiguities in the record count against the state. Judgments are presumed valid, however, and Parke emphasizes that one who seeks collateral relief bears a heavy burden."); Robinson v. Smith, 451 F. Supp. 1278, 1284 n. 6 (W.D.N.Y. 1978) ("In my own independent review of the record, I have resolved ambiguities against petitioner"); Patrick v. Johnson, No. CIV.A. 3:98-CV-2291-P, 2000 WL 1400684, at *9 (N.D. Tex. Aug. 23, 2000) ("whatever ambiguity exists in the record must be resolved in favor of the trial court's finding.").

Tokarcik v. Burns, CIV.A. 12-253J, 2015 WL 3457927, at *7 (W.D. Pa. Apr. 14, 2015), report and recommendation adopted, CIV.A. 12-253J, 2015 WL 3480333 (W.D. Pa. May 29, 2015). Accord Darr v. Burford, 339 U.S. 200, 218 (1950) ("A conviction after public trial in a state court by verdict or plea of guilty places the burden on the accused to allege and prove primary facts, not inferences that show, notwithstanding the strong presumption of constitutional regularity in state judicial proceedings, that in his prosecution the state so departed from constitutional requirements as to justify a federal court's intervention to protect the rights of the accused."), overruled on other grounds in part by, Fay v. Noia, 372 U.S. 391 (1963).

Moreover, contrary to Petitioner's claim that the Commonwealth could not sustain its burden to disprove self-defense, ECF No. 2 at 38, we find that the medical examiner's testimony, which seemingly contradicts Petitioner's version of the events, taken in a light most favorable to the Commonwealth could well have sustained its burden to disprove self-defense.

Notwithstanding all of the foregoing, it is Petitioner's burden, at this stage of the proceedings, to establish that the Superior Court's disposition was unreasonable as a matter of law or a matter of fact. Petitioner simply fails to carry that burden herein.

What the foregoing review of the medical examiner's testimony reveals is that, at the most, Petitioner establishes that the trial record is ambiguous with respect to whether Petitioner's very first blow with the knife was the fatal blow or not and, consequently, that Petitioner thereafter had no duty to retreat because he allegedly had no opportunity to retreat after the allegedly first and fatal blow. These are the alleged "facts" that support Petitioner's theory that he engaged in self-defense and had no duty to retreat at the time he allegedly inflicted the fatal wound. As a consequence, under Petitioner's theory of the case, Petitioner contends his counsel was ineffective for not presenting a self-defense theory to the jury and, furthermore, that the Superior Court's decision, finding Petitioner failed to show ineffectiveness on the part of trial counsel was an unreasonable application of United States Supreme Court precedent on ineffectiveness. However, Petitioner's establishing that the record is, at best, ambiguous in regard to which was the very first stab wound and whether that first stab wound was the fatal one, and the timing of the other wounds, such as the 14 defensive wounds and the two wounds to the victim's face, is insufficient for Petitioner to carry his heavy burden to show under the AEDPA that the Superior Court's disposition is unreasonable as a matter of law or as a matter of fact. As this Court has previously explained:

establishing that the record is ambiguous is insufficient for Petitioner to carry his burden in this habeas proceeding. See, e.g., Fuller v. Wenerowicz, No. CIV.A. 13-535, 2014 WL 904297, at *10 (W.D. Pa. March 7, 2014) ("While Higgason v. Clark and Robinson v. Smith were decided prior to AEDPA's enactment, AEDPA increased the amount of deference federal habeas courts must give to state court adjudications. Hence, post-AEDPA, the courts' statements with regard to a silent or ambiguous record redounding to the detriment of the habeas petitioner apply even more forcefully now. See, e.g., Fields v. Thaler, 588 F.3d 270, 278 (5th Cir. 2009) ('Although a lack of fair support in the record was sufficient to rebut a presumptively correct factual finding under pre-AEDPA law, the AEDPA increased the level of deference due to a state court's factual findings.'); Dorchy v. Jones, 398 F.3d 783, 787 (6^th Cir. 2005) ('The present case is governed by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA), which has increased the deference that federal courts must give to state-court decisions.')").

Hagan v. Fisher, CIV.A. 13-1566, 2016 WL 3645202, at *10 (W.D. Pa. June 30, 2016). Petitioner simply has failed to persuade this Court, under the doubly deferential standard, that there does not exist "any reasonable argument that counsel satisfied Strickland's deferential standard." Premo v. Moore, 562 U.S. at 123. Accordingly, for the foregoing reasons, this claim of trial counsel's alleged ineffectiveness fails to provide a ground for federal habeas relief.

Lastly, in connection with this claim, Petitioner argues that the Superior Court unreasonably determined the fact that Petitioner stabbed the victim in the heart. The Superior Court did state that Petitioner "attacked Martin with a large knife, fatally stabbing him in the neck and heart." ECF No. 12-15 at 20. In his Traverse, Petitioner asserts that this is an unreasonable determination of the facts. ECF No. 16 at 4 - 7. Petitioner, in effect, contends that there was only one fatal stab wound and that stab wound was to the neck area and not to the heart. See id. at 7. We note that Petitioner himself stated that he thinks he stabbed the victim in the heart area. T.T. at 191, lines 13 - 25. Nevertheless, even conceding that the Superior Court may have unreasonably determined the fact that Petitioner fatally stabbed the victim in the heart, Petitioner would only succeed in having this Court apply a de novo standard of review to this claim. Price v. Warren, 726 F. App'x. 877, 884 n.48 (3d Cir. 2018) ("If we determine, considering only the evidence before the state court, that ... the state court's decision was based on an unreasonable determination of the facts, we evaluate the claim de novo....") (quoting Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014)).

In applying such a de novo standard of review, we would find, just as the Superior Court did, i.e., there were significant problems with a self-defense theory and Petitioner's trial counsel could reasonably have concluded that a self-defense theory was too problematic for the evidence to sustain, and therefore, reasonably decided to forego such a theory and engage in the tactics that he did, i.e., making the allegedly "inflammatory remarks" as part of his strategy to advance an insanity defense.

For all of the foregoing reasons, Petitioner fails to show entitlement to federal habeas relief on this claim.

c. Alleged ineffectiveness for failing to properly investigate and present insanity defense (No. 2).

Petitioner argues that his trial counsel was ineffective because the insanity defense was "'incomplete' and 'poorly researched[.]'" ECF No. 2 at 28.

The Superior Court rejected this claim on the merits as follows:

In a related argument, Baldwin contends that trial counsel was ineffective because his criminal insanity defense was "incomplete," and "poorly researched [.]" Baldwin succinctly identifies the legal boundaries of such a defense, and argues that trial counsel did not present the defense effectively.

In Pennsylvania, a defendant may be found not guilty due to legal insanity if he establishes, by the preponderance of the evidence, that while committing the criminal act, the defendant was suffering under such a defect of reason or disease of the mind, as not to know the nature of what he was doing, or that he did not know what he was doing was wrong. See Commonwealth v. Roberts, 437 A.2d 948, 951 (Pa. 1981); 18 Pa.C.S.A. § 315(a). While trial counsel's tactics may have been unusual, in that he compared his client to fictional and real life individuals who are universally reviled, we cannot conclude that he failed to present a legally sufficient case capable of supporting a not guilty verdict.

Trial counsel highlighted the highly illogical nature of Baldwin's actions on the night of the homicide. Furthermore, he presented the opinion of psychiatrist Laszlo Petras, M.D., who opined that Baldwin, at the time of the murder, was suffering from a "mental disease that would make it impossible for him to know what he did was wrong[.]" N.T., Trial, 2/20-25/08, at 272-273. If the jury had found Dr. Laszlo's [sic] testimony credible, it could have returned a verdict of not guilty. Thus, Baldwin's second argument merits no relief.

ECF No. 12-15 at 27 - 28.

While Petitioner, in a conclusory fashion, asserts that the "Superior Court's decision is contrary to clearly established federal law, contrary to the trial record, and it could be easily regarded as indefensible," ECF No. 2 at 28, Petitioner fails to cite any specific Supreme Court case on ineffectiveness which renders the Superior Court's disposition contrary to or an unreasonable application of, as is his burden. Petitioner does argue that "[t]he first stab wound or one of the first stab wounds [this is an example where Petitioner himself recognizes the ambiguity of the record in regards to the order of the knife blows/wounds] hit the jugular vein and was fatal. Baldwin may have struck the victim too many times but (1) one of the first blows to the neck was fatal, (2) subsequent blows to the vicinity of the heart were not fatal (3) a person attacked in his own home has no duty to retreat when attacked by an intruder." Id. at 29.

We have adequately addressed Petitioner's points one and two above concerning the alleged order of the blows and the significance of such to a self-defense theory. As to point three, Petitioner's citation of the law that a person has no duty to retreat when attacked in their home by an intruder simply has no applicability to the facts of this case given that Martin, the victim was not an intruder but a fellow occupant of the dwelling with Petitioner. See, e.g., Com. v. Walker, 288 A.2d 741, 743 (Pa. 1972) ("There is no doubt that both Lucas and appellant were permanent residents of the house and that status remained unchanged up to the time of the shooting. It is well established that a 'man . . . dangerously assaulted or feloniously attacked in his own dwelling house . . . need not retreat, but may stand his ground' only if the attacker is 'not a member of the household. . . .' Because both men were residents of the house, both had a duty to retreat and cease the fight.") (citations omitted).

Petitioner's arguments simply fail to persuade this Court that the Superior Court's disposition of this claim of ineffective assistance of counsel was contrary to or an unreasonable application of Supreme Court precedent or was an unreasonable determination of the facts. Petitioner has failed to show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

In light of the bizarre circumstances following the killing, and the fact that Petitioner was involuntarily committed to a psychiatric hospital shortly after the killing, and in light of psychiatric evidence from Dr. Petras, the defense psychiatrist, as quoted by the Superior Court opinion, trial counsel's strategy in relying upon an insanity defense cannot be deemed unreasonable performance. Nor can his decision to not present a self-defense theory be considered unreasonable given the significant problems with the presentation of such a self-defense theory as recounted above. To the extent that Petitioner's trial counsel declined to present an unreasonable self-defense theory, and Petitioner complains of this herein, ECF No. 2 at 29 (referring to "unreasonable self defense"), we find that a claim of ineffectiveness, based on failing to present an unreasonable self-defense theory was procedurally defaulted because it was never raised in state court.

d. Alleged ineffectiveness for failing to object to the prosecution's argument that dismemberment was evidence of malice and that the murder was an execution (Nos 6 and 7).

We next address two of Petitioner's closely related claims. First, in what Petitioner numbers as supporting fact No. 6, Petitioner asserts that Petitioner's trial counsel was ineffective for failing to object to the prosecution's assertion that Petitioner's actions taken after the killing, i.e., his dismemberment of the victim's body, and attempt to conceal the crime was evidence of malice so as to satisfy a necessary element of first-degree murder. ECF No. 2 at 30 - 31; ECF No. 16 at 23. Secondly, in what Petitioner numbers as supporting fact No. 7, Petitioner complains that his trial counsel was ineffective for failing to object to the prosecution's characterization of the killing as an execution. ECF No. 1 at 5.

The Superior Court rejected these related claims as follows:

In his next argument, Baldwin contends that trial counsel was ineffective for failing to object to the prosecutor's closing remarks where she described the homicide as an "execution," and argued that Baldwin's actions to conceal or destroy evidence of the homicide constituted evidence of both consciousness of guilt and evidence of malice.

We have previously recognized that

"[n]ot every unwise remark made by an attorney amounts to misconduct or warrants the grant of a new trial." Commonwealth v. Carson, 913 A.2d 220, 242 (Pa. 2006). "Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Stokes, 839 A.2d 226, 230 (Pa. 2003), quoting Commonwealth v. Fisher, 813 A.2d 761, 768 (Pa. 2002).

Furthermore, according to the Pennsylvania Supreme Court in Commonwealth v. Chmiel [, 889 A.2d 501, 543-44 (Pa. 2005)]:

In determining whether the prosecutor engaged in misconduct, courts must keep in mind that comments made by a prosecutor must be examined within the context of defense counsel's conduct. It is well settled that the prosecutor may fairly respond to points made in the defense closing. A remark by a prosecutor, otherwise improper, may be appropriate if it is in [fair] response to the argument and comment of defense counsel. Moreover, prosecutorial misconduct will not be found where comments were based on the evidence or proper inferences therefrom or were only oratorical flair.

Commonwealth v. Collins, 70 A.3d 1245, 1252-53 (Pa. Super. 2013).

Pursuant to these standards, we conclude that neither of the statements identified by Baldwin were objectionable. As described above, Baldwin admitted, in his recorded confession, that he stabbed Martin because he wanted "it to end." The "it" in question being Martin's life. Thus, the prosecutor's use of "execution" was based upon evidence at trial, and did not form the basis for a valid objection. Baldwin failed to establish the arguable merit prong for this claim, and therefore no relief is due on appeal.

Turning to Baldwin's claim that trial counsel should have objected to the prosecutor's statement that Baldwin's attempt to conceal the crime after the fact

constituted evidence of malice. Once again, Baldwin has failed to establish arguable merit to this claim, as "[a]ctions of the accused that occur before, during, and after [the crime] are admissible as evidence to show malice." Commonwealth v. Gonzalez, 858 A.2d 1219, 1223 (Pa. Super. 2004). The prosecutor's argument was therefore appropriate under the law, and therefore could not form the basis of a valid argument. No relief is due on this claim.

Com. v. Baldwin, 1240 WDA 2015, 2016 WL 3268835, at *5 - 6 (Pa. Super. June 14, 2016); ECF No. 12-15 at 29 - 31. Petitioner fails to show that the foregoing ruling by the Superior Court is a disposition that is contrary to or an unreasonable application of United States Supreme Court precedent or is an unreasonable determination of the facts.

i. Actions taken after the murder may be considered in establishing the mens rea.

To the extent that Petitioner argues that the Superior Court's disposition is inconsistent with the decision by the United States Court of Appeals for the Third Circuit in Kamienski v. Hendricks, 332 F. App'x 740 (3d Cir. 2009), ECF No. 2 at 30 - 32, such an argument is of no significance because AEDPA limits our inquiry as to whether the state courts applied holdings as opposed to dicta from the United States Supreme Court, that state courts refused to apply lower federal court decisions is of no legal significance to the AEDPA analysis. Gipson v. Sheldon, 659 F. App'x. 871, 886 (6th Cir. 2016) ("Kamienski is of course not binding because it is not clearly established Supreme Court precedent."). See also Renico v. Lett, 559 U.S. 766, 779 (2010) ("The Fulton decision [of the United States Court of Appeals for the Sixth Circuit], however, does not constitute 'clearly established Federal law, as determined by the Supreme Court,' § 2254(d)(1), so any failure to apply that decision cannot independently authorize habeas relief under AEDPA."); Parker v. Matthews, 567 U.S. 37, 48-49 (2012) ("circuit precedent does not constitute "clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth Circuit's reliance on its own precedents be defended in this case on the ground that they merely reflect what has been 'clearly established' by our cases. The highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden bears scant resemblance to the elaborate, multistep test employed by the Sixth Circuit here.").

Moreover, the Superior Court's decision is not contrary to the holding in Kamienski because the statement quoted from Kamienski by Petitioner is pure dicta. The Third Circuit in Kamienski stated: "the state's murder theory against Kamienski had been based on some abstract notion that the crime of murder is a continuing offense that includes attempts to dispose of the victim's body. That is a theory that is as unique as it is baseless and the state has not pursued it on appeal." Id. at 749. The very statement itself demonstrates that it is dicta since the question was not pursued on appeal.

Lastly, even if the statement quoted from Kamienski was not dicta, the statement should be understood to address the issue of the actus reus of the crime of murder, i.e., murder is not an ongoing act that includes the disposal of the body of the murdered victim. The Third Circuit in Kamienski did not address nor did it purport to address the question at issue herein, whether actions taken after the murder is accomplished may form the basis for an inference regarding whether the person at the time of the killing possessed the necessary mens rea for the murder. Because Kamienski did not address the pertinent question, it is of no relevance herein.

In fact, contrary to Petitioner's contentions, it is well settled law that acts by a criminal defendant taken after a crime has been completed may be utilized to satisfy the element of proof for inferring the necessary mens rea required in order to commit the crime. U.S. v. Ayers, 924 F.2d 1468, 1473 (9th Cir. 1991) ("We have previously held that 'acts both prior and subsequent to the indictment period may be probative of the defendant's state of mind.'") (citing United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981)); Caldwell v. Miles, 17-CV-1971, 2018 WL 7203983, at *18 (D. Minn. Apr. 9, 2018) ("Intent can be inferred from a person's conduct as well as 'events occurring before and after the crime.' Davis, 595 N.W.2d at 525-26."), report and recommendation adopted, 17-CV-1971, 2019 WL 456171 (D. Minn. Feb. 5, 2019), certificate of appealability denied, 19-1544, 2019 WL 4318592 (8th Cir. Aug. 5, 2019); Govt. of the Virgin Islands v. Davis, CR 01/2002, 2002 WL 35631589, at *2 (Terr. V.I. Aug. 14, 2002) ("First, since the defendant's state of mind may not be directly observed, intent is a question of fact, to be determined after consideration of the surrounding circumstances. It is inferred from the facts and circumstances surrounding the act, the situation of the parties, the nature and extent of the violence, the acts and declarations of the parties at the time, and the objects to be accomplished.... see also Davis v. State, 595 N.W.2d 520, 525-26 (Minn. 1999) (noting that intent may be proved by circumstantial evidence, including drawing inferences from the defendant's conduct, the character of the assault, and the events occurring before and after the crime)").

Hence, we reject out of hand Petitioner's assertion that the prosecution's use in the closing argument of Petitioner's acts immediately after the murder to support a finding of malice for murder constituted a denial of due process as he contends, ECF No. 2 at 31, an independent claim never made in the state courts but merely raised in the state courts as an ineffective assistance of counsel claim for failing to object to the prosecution's doing so. The Superior Court found no deficient performance by counsel because the prosecution's arguments were not objectionable. Petitioner fails to carry his burden to show that there was error by the state courts, yet alone an unreasonable or contrary application of United States Supreme Court precedent under AEDPA. Accordingly, this claim does not afford Petitioner federal habeas relief.

ii. Use of the word "execution" was not objectionable.

Lastly, to the extent Petitioner complains about the prosecution's characterization of the murder as an execution, we note that his argument depends in part on accepting the "fact" that the first blow with the knife was the fatal blow, which, as we noted above was apparently rejected by the state courts. Absent establishing the fact that the first blow was the fatal blow, Petitioner cannot establish that the prosecution's comment about the murder being an execution was objectionable. Petitioner utterly fails to argue that the Superior Court's disposition of this particular claim was contrary to or an unreasonable application of Supreme Court precedent. Accordingly, neither of these claims of ineffectiveness merit the grant of habeas relief.

e. Alleged ineffectiveness for failing to call character witnesses (No. 8).

Petitioner next contends that his trial counsel was ineffective for failing to call a character witness where the evidence was sufficient to establish self-defense. ECF No. 2 at 31 - 32. Of course, this claim is based upon Petitioner first establishing that his counsel was ineffective for not raising a self-defense theory in place of, or in addition to an insanity defense. Id. As we have already held that Petitioner failed to establish deficient performance of his trial counsel in not raising a self-defense claim in addition to the insanity defense, that his trial counsel failed to call a character witness that would have no relevance to the insanity defense chosen by counsel, cannot amount to ineffectiveness as the Superior Court found. ECF No. 12-15 at 32 - 33 ("In his ninth issue on appeal, Baldwin contends that trial counsel was ineffective in failing to call character witnesses to testify to his reputation for non-violence in the community. However, since we have already held that trial counsel was not ineffective for conceding that Baldwin killed Martin and pursuing an insanity defense, Baldwin's character was not relevant. See Commonwealth v. Morley, 681 A.2d 1254, 1260 (Pa.1996). This claim therefore merits no relief.").

f. Alleged ineffectiveness for failing to insist on compliance with Pa. R. Crim. P. 569 (A)(2) - (No. 4).

Petitioner also asserts that his trial counsel was ineffective for failing to insist on compliance with Pennsylvania Rule of Criminal Procedure 569(A)(2).⁴ ECF No. 1 at 5. Petitioner complains that Pa. R. Crim. P. 569(a)(2) was not complied with and that his trial counsel was, therefore, ineffective for not assuring compliance with Rule 569(a)(2).

4 Pa. R. Crim. P. 569(A)(2) provides as follows:

(2) By Court Order.

(a) Upon motion of the attorney for the Commonwealth, if the court determines the defendant has provided notice of an intent to assert a defense of insanity or mental infirmity or notice of the intention to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant pursuant to Rule 568, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion by the Commonwealth for the purpose of determining the mental condition put in issue by the defendant.

(b) When the court orders an examination pursuant to this paragraph, the court on the record shall advise the defendant in person and in the presence of defendant's counsel:

(i) of the purpose of the examination and the contents of the court's order;
(ii) that the information obtained from the examination may be used at trial; and
(iii) the potential consequences of the defendant's refusal to cooperate with the Commonwealth's mental health expert(s). (c) The court's order shall:
(i) specify who may be present at the examination; and
(ii) specify the time within which the mental health expert(s) must submit the written report of the examination.

(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(ii), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert's opinions and the grounds for each opinion.

Pa. R. Crim. P. 569

The Superior Court addressed this issue as follows:

Next, Baldwin argues that trial counsel was ineffective in permitting the Commonwealth to perform an independent mental health examination without following the proper process set forth in the Rules of Criminal Procedure. Specifically, Baldwin notes that there is no indication in the record, written or transcribed, that Baldwin agreed to the examination. See Pa.R.Crim.P., Rule 569(A)(1)(b). Furthermore, he asserts that there is no indication in the record that the trial court ordered the examination, nor that the trial court provided the required colloquy if it did order the examination. See Pa.R.Crim.P., Rule 569(A)(2). The Commonwealth concedes that the record does not document compliance with Rule 569. See Appellee's Brief, at 35.

However, once again, Baldwin has failed to establish that he suffered prejudice from this action. He does not identify any testimony or other evidence that would have been impacted if Rule 569 had been complied with. While it is an open question whether this would qualify as a harmless error on direct appeal, in a collateral action it is the petitioner's burden to establish prejudice. Since Baldwin has not met this burden, we conclude that this issue merits no relief.

ECF No. 12-15 at 28 -29.

In his Memorandum of Law, Petitioner does not specifically argue that the Superior Court's disposition of this claim was contrary to or an unreasonable application of United States Supreme Court precedent or an unreasonable determination of the facts. As such, Petitioner fails to carry his burden under AEDPA to merit federal habeas relief on this ground.

g. Alleged ineffectiveness for failing to move to request to reopen the record when Petitioner indicated his desire to testify on his own behalf (No. 5).

Petitioner complains that his trial counsel was ineffective for failing to formally request the trial court to reopen the record. ECF No. 1 at 5.

The Superior Court addressed this issue on the merits as follows:

Baldwin next argues that trial counsel was ineffective for failing to request to reopen the record when Baldwin indicated his desire to testify on his own behalf after the close of evidence. Baldwin's argument relies heavily upon the concurring opinion of Justice, now Chief Justice, Saylor, in addressing Baldwin's direct appeal. The concurrence noted that trial counsel did not explicitly request to reopen the record to allow Baldwin to testify. See Baldwin, 58 A.3d at 766-767. In contrast, the majority opinion concluded with the statement that it held that "there was no abuse of discretion in the trial court's denial of [Baldwin's] request to reopen the record to permit his testimony." Id., at 765-766. Therefore, it is clear that the majority addressed the issue on the merits and held that the trial court had properly refused a request to reopen. Thus, even assuming that trial counsel did not request to reopen the record, it is clear that it would not have impacted the ultimate outcome. This claim merits no relief.

ECF No. 12-15 at 29.

In his Memorandum of Law, Petitioner does not specifically argue that the Superior Court's disposition of this particular claim was contrary to or an unreasonable application of United States Supreme Court precedent or an unreasonable determination of the facts. As such, Petitioner fails to carry his burden under AEDPA to merit federal habeas relief on this ground.

Even if we were to review this issue de novo, we would find that Petitioner fails to establish ineffectiveness of trial counsel.

Petitioner fails to establish that counsel possessed no reasonable basis for not making a formal request for reopening the evidentiary record. In fact, the only argument Petitioner makes for asserting that the evidentiary record should have been reopened is that to not do so, violated Petitioner's fundamental right to take the stand in his own defense. As we noted above, this argument is illogical because once a defendant waives a right, that right cannot then thereafter be violated unless and until the waiver of that right is permitted to be withdrawn and the right is then restored to the defendant. Since this is the only argument offered, Petitioner fails to show that his trial counsel had no reasonable basis for acting as he did. As Petitioner offers no other argument as to why trial counsel's actions amounted to deficient performance, Petitioner fails to establish deficient performance on the part of trial counsel.

Petitioner also fails to establish prejudice stemming from counsel's actions or inactions. In fact, counsel's merely relaying to the trial court Petitioner's request to reopen was treated by the state courts as if a formal request from counsel had been made to reopen the evidentiary record and the state courts thereafter accordingly conducted the legal analysis to determine if the trial court had abused its discretion in deciding to not reopen the evidentiary record. On the record before this Court, Petitioner simply cannot prove prejudice from counsel's failure to formally move to reopen the evidentiary record where the state courts acted as if such a formal request had, in fact, been made. Nor does he point to any persuasive argument that trial counsel might have made which would have moved the trial court to reopen the evidentiary record.

h. Alleged ineffectiveness for trial counsel failing to cross examine a witness to show that the victim was taller than Petitioner (No. 9).

Petitioner contends that his trial counsel was ineffective for failing to cross examine a witness, i.e., Detective Siemianowski, who indicated in his testimony that Petitioner had told him that the victim was smaller in stature than Petitioner which is exactly the opposite of the case. T.T. at 152, lines 15- 16. ECF No. 1 at 5.

The Superior Court addressed this claim on the merits as follows:

In his final claim of ineffective assistance of counsel on appeal, Baldwin argues that trial counsel was ineffective for failing to further cross-examine a Commonwealth witness. Specifically, Baldwin faults trial counsel for failing to clarify the height differential between Baldwin and Martin, and to question the witness about Baldwin's post-arrest statements to police. Once again, Baldwin makes only a passing reference to the standards for ineffectiveness of counsel, but no citation to authority supporting the arguable merit of his claim. Nor has he managed to establish that these alleged failures prejudiced him. As such, we conclude that no relief is due.

ECF No. 12-15 at 33.

Again, Petitioner fails to cite to any United States Supreme Court precedent which the Superior Court acted contrary to or unreasonably applied. Hence, Petitioner fails to carry his burden under AEDPA to merit federal habeas relief.

Thus, for the reasons stated herein, Ground One does not serve as a basis for federal habeas relief.

E. Certificate of Appealability

It is recommended that a certificate of appealability be denied because jurists of reason would not find the foregoing debatable.

III. CONCLUSION

For the reasons set forth herein, it is respectfully recommended that the Petition be dismissed and that a certificate of appealability should be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. ' 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.

Respectfully submitted: Date: February 6, 2020

/s/_________

MAUREEN P. KELLY

UNITED STATES MAGISTRATE JUDGE cc: The Honorable Arthur J. Schwab

United States District Judge

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