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explaining that "a claim that a verdict is against the weight of the evidence is not cognizable on habeas review because it requires an assessment of the credibility of the evidence presented at trial, and a state court's credibility determinations are binding on a federal habeas court."
Summary of this case from Ferguson v. TiceOpinion
Civil Action No. 04-456.
September 23, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a Petition for Writ of Habeas Corpus filed by Mark Davis pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Dallas, Pennsylvania. For the reasons which follow, the habeas petition should be denied and dismissed.
Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Philadelphia, and the state court record forwarded by the Office of the Clerk of Quarter Sessions of the Philadelphia Court of Common Pleas.
In its memorandum opinion affirming the denial of petitioner's post conviction petition, the Superior Court set forth the relevant facts of this case:
On the evening of November 10, 1995, Kenneth Robbins was with his sister, Glenda Robbins, and her boyfriend, Paul White, at Mr. White's house, located at Airdrie Street in the City and County of Philadelphia. The three decided to party and were drinking and doing crack cocaine. Early the next morning, they returned to Ms. Robbins' house and decided to take Mr. White's car to Monmouth and Amber Streets in Philadelphia, to purchase more drugs. Glenda Robbins was driving, Paul White was in the passenger's seat, and Kenneth Robbins was lying down in the back seat. When they arrived, Mr. White exited the car to buy the drugs from two dealers who were approximately sixteen or seventeen years of age. As he was returning to the car, he looked in his hand and saw that he had mistak[enly] been given fifteen dollars worth of crack, when he only paid ten dollars. Simultaneously, Paul heard two male voices yelling "Yo, Homes, Yo Homes!" at which time Mr. White, believing he would be shot, jumped through the passenger-side window of the car and told Ms. Robbins to "get out of here." Before leaving the vicinity, Kenneth Robbins observed a female standing on the corner of Monmouth and Amber Streets. After Glenda Robbins had driven approximately a half a block, several shots were fired at the car, as it came to a halt. Kenneth Robbins yelled from the back seat of the car for his sister to get out because glass was flying everywhere, as several shots were fired. Glenda Robbins did not respond and her head was slumped forward. Mr. Robbins jumped into the front seat and pushed his sister aside so that he could drive her to the hospital. As they were en route to Northeastern Hospital, Mr. Robbins noticed that blood was dripping from his sister's mouth. Upon arrival at Northeastern at approximately six o'clock in the morning, Ms. Glenda Robbins was pronounced dead.
* * *
The medical examiner determined that the cause of Ms. Robbins' death was a bullet wound to the base of her skull, which caused an immediate and fatal injury to her brain stem and spinal cord.
On April 17, 1996, approximately five months after the incident[,] . . . eyewitness Lenate Peterson ["Peterson"] gave police investigators a statement which implicated [Davis] as the person who shot Ms. Robbins. [Peterson] told the police that he had known [Davis] his entire life, and that he observed [Davis] fire the shots which killed the victim. The police subsequently arrested [Davis] and charged him with criminal homicide and possession of an instrument of crime.See Commonwealth v. Davis, No. 765 EDA 2002, Mem. Op. at 1-2 (Pa.Super. filed Sep. 22, 2003) (quoting Commonwealth v. Davis, No. 1174 Phila. 1998, Mem. Op. at 1-2 (Pa.Super. filed Aug. 25, 1999)) (brackets and ellipses in original).
Following a jury trial in the Philadelphia Court of Common Pleas, petitioner was convicted of third degree murder and possession of an instrument of crime ("PIC"). See Pa. Super. Ct. Op. filed 9/22/03, at 3. Petitioner was sentenced to ten to twenty (10-20) years for the murder conviction, plus a consecutive prison term of two and one-half (2½) to five (5) years for the PIC conviction. Id.
Following the denial of post-sentence motions, petitioner filed a timely appeal to the Superior Court of Pennsylvania. See Pa. Super. Ct. Op. filed 8/25/99, at 5. In his appeal, petitioner raised the following issues:
(1) Was the evidence presented sufficient to sustain a conviction for third degree murder and possession of an instrument of crime[?]
(2) Was trial counsel ineffective in not interviewing or subpoenaing witnesses made known to him by the Appellant[?]
(3) Was trial counsel ineffective in failing to investigate the competency of the main Commonwealth witness, Lenate Peterson[?]Id. (quoting Appellant's Br. at 4) (brackets in original). On August 25, 1999, the Superior Court affirmed the judgment of sentence. See Pa. Super. Ct. Op. filed 8/25/99, at 11.
On August 15, 2000, petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46, and counsel was then appointed. See Pa. Super. Ct. Op. filed 9/22/03, at 3. Following the filing of an Amended PCRA Petition and supplemental petitions, the PCRA Court dismissed the petition on February 22, 2002. Id.
On appeal to the Superior Court, petitioner "present[ed] the following claims for [the Court's] review:"
(1) Was not [Davis] denied his right to effective assistance of counsel where prior counsel failed to seek a new trial on the ground that the verdict was against the weight of the evidence and failed to raise and preserve this issue for appellate review?
(2) Was not [Davis] denied his right to effective assistance of counsel where prior counsel: failed to move in limine to prevent reference to Tina Grimaldi's statement; failed to request a mistrial when Grimaldi did not testify; failed to seek redaction of Grimaldi's statement to exclude bad character evidence; and requested a missing witness instruction that led to the erroneous introduction of "efforts to locate" evidence; and failed to raise and preserve this issue for appellate review?
(3) Was not [Davis] denied his right to effective assistance of counsel where prior counsel: failed to seek redaction of Peterson's statement to exclude bad character; failed to object to evidence that Peterson had been in a fight, failed to object to the prosecutor's closing argument; and failed to raise and preserve these issues for appellate review?
(4) Was not trial and appellate counsel ineffective for failing to investigate and subpoena two eyewitnesses who would have testified that they saw the shooting and that [Davis] was not present, and for failing to properly raise this issue for appellate review?
(5) Was not [Davis] denied his right to effective assistance of counsel where prior counsel failed to request an alibi jury instruction and failed to investigate and call witness[es] to establish [Davis's] alibi defense?
(6) Was not [Davis] denied his right to effective assistance of counsel where prior counsel failed to seek redaction of [Davis's] own statement[`]s reference to bad character evidence, as well as those from Grimaldi and Peterson?
(7) Was not prior counsel ineffective for failing to investigate and call witnesses to establish that Peterson's statement was a fabrication?See Pa. Super. Ct. Op. filed 9/22/03, at 3-4 (quoting Br. for Appellant at 2-3) (brackets in original). The Superior Court affirmed the denial of PCRA relief on September 22, 2003. See Pa. Super. Ct. Op. filed 9/22/03, at 11. The Supreme Court of Pennsylvania denied allowance of appeal on December 29, 2003.See Commonwealth v. Davis, 835 A.2d 829 (Pa.Super. Sep. 22, 2003) (table), allocatur denied, 841 A.2d 529 (Pa. Dec. 29, 2003) (table).
Petitioner thereafter filed the present petition for writ of habeas corpus in this Court. In his petition, he alleges the following grounds for relief:
(1) ineffective assistance of counsel due to counsel's "fail[ure] to seek a new trial . . . on the ground that the verdict was against the weight of the evidence and [in] fail[ing] to raise and preserve this issue for appellate review;"
(2) ineffective assistance of trial and appellate counsel "for failing to investigate and subpoena two eyewitnesses who would have testified that they saw the shooting and that petitioner was not present and [in] failing to properly preserve [this] issue for review on appeal;"
(3) the denial of due process and "the right to present a defense" due to the trial judge's "exclu[sion] [of] relevant admissible evidence proffered by the defense, that an eyewitness stated that petitioner was not the shooter;"
(4) ineffective assistance of counsel in "failing to investigate and call [a] witness to establish that [the] Peterson statement was a fabrication;"
(5) ineffective assistance of counsel in "fail[ing] to request an alibi jury instruction and fail[ing] to investigate and call [a] witness to establish petitioner's alibi defense."See Hab. Pet. ¶ 12 (capitalization omitted). In her Response to the habeas petition, respondent requests that the Court deny and dismiss the petition on the grounds that petitioner's claims are "defaulted and/or without merit." See Resp. to Hab. Pet. at 6.
II. DISCUSSION
(A) Exhaustion and Procedural Default
"It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus filed by a person incarcerated from a judgment of a state court unless the petitioner has first exhausted the remedies available in the state courts." Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1998) (as amended) (citing 28 U.S.C. § 2254(b)(1)(A)), cert. denied, 532 U.S. 919 (2001); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Specifically, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
Requiring exhaustion of state remedies "addresses federalism and comity concerns by `afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'" Lambert, 134 F.3d at 513 n. 18 (citing Toulson, 987 F.2d at 986). Although the exhaustion rule is a matter of comity and not jurisdiction, it "should be strictly adhered to because it expresses respect for our dual judicial system." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990)); see Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996) ("Pursuing state remedies is not a mere formality").
The petitioner bears the burden of proving all facts entitling him to a discharge from custody as well as demonstrating that he has met all procedural requisites entitling him to relief. Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). Thus, the habeas petitioner carries the burden of proving, among other things, exhaustion of available state remedies. Lambert, 134 F.3d at 513; Toulson, 987 F.2d at 987.
In the present case, petitioner properly raised the first two claims of his present petition in his PCRA appeal, and the state court addressed the merits of these claims. See, e.g., Pa. Super. Ct. Op. filed 9/22/03, at 3-4 (claim nos. 1 and 4), 6, 9-10. Since petitioner has given the Pennsylvania courts "one full opportunity" to address his first two claims, petitioner has properly exhausted those claims, and this Court may address their merits. See O'Sullivan, 526 U.S. at 844-45.
Although petitioner's first two claims were properly exhausted, it appears that petitioner failed to fairly present his remaining claims to the Pennsylvania courts on direct appeal or in his PCRA appeal. See, e.g., Pa. Super. Ct. Op. filed 9/22/03, at 3-4 (citing Br. for Appellant at 2-3); Pa. Super. Ct. Op. filed 8/25/99, at 5 (citing Br. for Appellant at 4). Thus, the Pennsylvania courts did not have "one full opportunity to resolve" these claims during "one complete round of the State's established appellate review process." See O'Sullivan, 526 U.S. at 844-45; see Wenger, 266 F.3d at 223.
Petitioner's third claim alleges that the trial judge erred in "exclud[ing] relevant admissible evidence proffered by the defense, that an eyewitness stated that petitioner was not the shooter." See Hab. Pet. ¶ 12(D) (capitalization omitted). Petitioner failed to properly raise this claim of trial court error to the Pennsylvania courts on direct appeal or in his PCRA appeal. See Pa. Super. Ct. Op. filed 9/22/03, at 3-4 (citing Br. for Appellant at 2-3); Pa. Super. Ct. Op. filed 8/25/99, at 5 (citing Br. for Appellant at 4). Therefore, petitioner's third claim was not properly exhausted.
Furthermore, on petitioner's PCRA appeal, the Superior Court of Pennsylvania found that, under Pennsylvania law, petitioner waived the fourth and fifth claims raised in the present petition, since petitioner failed to present these claims in his counseled PCRA petition and supplemental petitions. See Pa. Super. Ct. Op. filed 9/22/03, at 10-11. Thus, petitioner failed to fairly present these claims in the state courts, and the Pennsylvania courts did not have "one full opportunity to resolve" these claims during "one complete round of the State's established appellate review process." See O'Sullivan, 526 U.S. at 844-45; Wenger, 266 F.3d at 223.
"The failure to `fairly present' federal claims in state court bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted."Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (citingColeman v. Thompson, 501 U.S. 722, 731 (1991)), cert. denied, 123 S. Ct. 195 (2002). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quoting Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). In addition, the doctrine "facilitates the proper review of the federal claims, for those claims `that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review.'" Cristin, 281 F.3d at 410 (quoting Lundy, 455 U.S. at 519).
In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court[,] . . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice.See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S. at 753); see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), cert. denied, 532 U.S. 980 (2001).
In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts, 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"Id. (quoting Murray, 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin, 281 F.3d at 412 (quoting Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)); see Schlup v. Delo, 513 U.S. 298, 316 (1995).
Here, it appears that petitioner no longer has a remedy by which the state courts could consider his third through fifth claims because he is now barred from raising them in a PCRA Petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, petitioner's judgment of conviction became final several years ago, and a PCRA petition would now be time-barred under the PCRA's one-year time limit on filing petitions, including second or subsequent petitions. See Walker, 56 Fed. Appx. at 578 n. 1; see also Lines v. Larkins, 208 F.3d 153, 164-66 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001).
42 Pa. C.S.A. § 9545(b)(1) states: "Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ." Walker v. Frank, 56 Fed. Appx. 577, 578 n. 1 (3d Cir. Jan. 14, 2003) (emphasis added), cert. denied, 124 S. Ct. 91 (2003); see also Hendel v. Vaughn, 1998 WL 470159, at *5 n. 8 (E.D. Pa. Aug. 10, 1998).
Thus, other than petitioner's first two claims, his claims are procedurally defaulted in the Pennsylvania courts. To the extent that petitioner claims ineffective assistance of counsel as "cause" for his default, that claim must fail. The conduct of counsel on collateral appeal cannot amount to cause that would excuse a failure to properly litigate a claim in state courts.See Caswell, 953 F.2d at 862 ("Ineffectiveness of counsel does not provide sufficient cause to excuse procedural default when counsel is not constitutionally mandated."); Cristin, 281 F.3d at 420 (citing Coleman, 501 U.S. at 752) (there is no constitutional right to counsel at the PCRA level of appeal);see also 28 U.S.C. § 2254(i) (Supp. 2002) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Therefore, ineffective assistance of PCRA counsel cannot amount to cause that would excuse petitioner's default in failing to properly litigate his claims in his PCRA appeal. Since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his default on PCRA appeal, the Court may not consider the merits of petitioner's defaulted claims. See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750); see also Werts, 228 F.3d at 194. (B) Legal Standard Under 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132 (Apr. 26, 1996), precludes federal habeas relief unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or
(2) 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) (footnote added) (emphasis added); see Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S. Ct. 269 (2001). In Williams v. Taylor, the Supreme Court interpreted the standard under § 2254(d)(1) as follows:
"Clearly established Federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta" of the Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ross v. Vaughn, 2001 WL 818359, at *3 (E.D. Pa. Jan. 16, 2001); see Lockyer v. Andrade, 123 S. Ct. 1166, 1172 (2003).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412-13 (footnote added).
Thus, a "decision is `contrary to' a Supreme Court holding if the state court `contradicts the governing law set forth in [the Supreme Court's] cases.'" Rompilla v. Horn, 355 F.3d 233, 250 (3d Cir. 2004) (quoting Williams, 529 U.S. at 405-06);see Early v. Packer, 123 S. Ct. 362, 365 (2002).
The Court of Appeals for the Third Circuit observed in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999), that to prove entitlement to habeas relief under the "contrary to" provision of § 2254(d)(1), "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedentrequires the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. "This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id. at 197 (quoting Matteo, 171 F.3d at 888).
Prior to the Supreme Court's decision in Williams v. Taylor, the Court of Appeals for the Third Circuit construed the standard of review under § 2254(d)(1) in Matteo. The Third Circuit has since stated that its opinion in Matteo is in accord with the Supreme Court's decision in Williams. See Werts, 228 F.3d at 197.
When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable."Williams, 529 U.S. at 409 (emphasis added); see Chadwick v. Janecka, 312 F.3d 597, 607 (3d Cir. 2002) (citing Williams, 529 U.S. at 409, and Matteo, 171 F.3d at 891). In applying the "unreasonable application" provision of § 2254, "[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted inan outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 891 (emphasis added); see Chadwick, 312 F.3d at 607 (citing Matteo, 171 F.3d at 891); Werts, 228 F.3d at 197.
The Supreme Court stressed that an application of federal law may be incorrect but still not unreasonable. Williams, 529 U.S. at 411; see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Thus, mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411;Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of federal courts of appeals and district courts. Id. at 890; Ross, 2001 WL 818359, at *4.
With regard to findings of fact, § 2254(e)(1) provides that a state court's determination of a factual issue is "presumed to be correct" and further provides that a habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added); see Chadwick, 312 F.3d at 607;Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. "This presumption applies to the factual determinations of both state trial and appellate courts." Duncan, 256 F.3d at 196; see Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Furthermore, under Supreme Court and Third Circuit precedent, the presumption of correctness under the habeas statute applies toimplicit factual findings as well as the express findings of the state courts. See Campbell v. Vaughn, 209 F.3d 280, 285-86, 290 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001).
Factual issues are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Townsend v. Sain, 372 U.S. 293 (1963)).
(C) Ineffective Assistance of Counsel Standard
Petitioner's claims allege that his counsel rendered ineffective assistance. See Hab Pet. ¶ 12. The merits of ineffective assistance claims are governed by the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 390. InStrickland, the Supreme Court set forth the now-familiar standard for reviewing a claim of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland, 466 U.S. at 687; see Williams, 529 U.S. at 390.
An inquiry into effective assistance of counsel is a mixed question of law and fact. Berryman, 100 F.3d at 1094. Therefore, an ineffective assistance claim "require[s] the application of a legal standard to the historical-fact determinations." Id. (quoting Townsend, 372 U.S. at 310 n. 6).
To establish ineffective assistance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.
In meeting the prejudice prong of an ineffective assistance claim: "Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see Williams, 529 U.S. at 391.
Although Strickland discussed a two-prong test in evaluating claims of ineffective assistance, it is unnecessary for a court to address both components of the inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 694. Therefore, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.
In addressing petitioner's ineffective assistance claims on petitioner's direct appeal and again on his PCRA appeal, the Superior Court of Pennsylvania applied the legal standard under Pennsylvania law and cited Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987), and Commonwealth v. Kimball, 724 A.2d 326, 332 (Pa. 1999), respectively. See Pa. Super. Ct. Op. filed 8/25/99, at 14; Pa. Super. Ct. Op. filed 9/22/03, at 5. Both federal and Pennsylvania courts have acknowledged that Pennsylvania's standard for ineffective assistance claims is consistent with theStrickland standard. See, e.g., Rompilla, 355 F.3d at 248 (observing that application of Pennsylvania standard of ineffective assistance to petitioner's federal claim was merely an "essentially stylistic choice on the part of the state supreme court and had no effect on its decision"); Brand v. Gillis, 210 F. Supp.2d 677, 684 (E.D. Pa. 2002) (citing Werts, 228 F.3d at 203) (Pennsylvania standard governing ineffective assistance claims "has been found to be materially identical" to theStrickland test), aff'd, 82 Fed. Appx. 278 (3d Cir. Dec. 2, 2003); Kimball, 724 A.2d at 332 (quoting Pierce, 527 A.2d at 977) ("Pennsylvania's standard [for ineffective assistance of counsel claims] and Strickland `constitute the identical rule of law.'"). Thus, the standard applied by the state court in addressing the merits of petitioner's ineffective assistance claims did not "contradict the governing law set forth in the [Supreme Court's] cases," see Rompilla, 355 F.3d at 250 (quoting Williams, 529 U.S. at 405-06), and the Pennsylvania court's decisions were in accord with Strickland, in that regard. See Williams, 529 U.S. at 405-06; Werts, 228 F.3d at 204 (finding that application of Pennsylvania's standard governing ineffective assistance claims was not contrary to established Supreme Court precedent).
Furthermore, petitioner has failed to show that "the state court [was] confronted [with] a set of facts that [were] materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrive[d] at a result different from [the Supreme Court's] precedent." See Williams, 529 U.S. at 406. Consequently, the standard applied by the state court was not "contrary to" the Supreme Court's well-established rule governing ineffective assistance of counsel. See Williams, 529 U.S. at 405-06; Werts, 228 F.3d at 204; Brand, 210 F. Supp.2d at 684 ("The Third Circuit has ruled that [the Pennsylvania] standard is not `contrary to' Strickland"); see also Early, 123 S. Ct. at 365 (complying with AEDPA does not require state-court decision to cite relevant Supreme Court cases — "indeed it does not even require awareness of the [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.") (emphasis in original).
(D) Weight of the Evidence Claim
In his first claim, petitioner alleges ineffective assistance of counsel in "fail[ing] to seek a new trial on petitioner's behalf, on the ground that the verdict was against the weight of the evidence and [in] fail[ing] to raise and preserve this issue for appellate review." See Hab. Pet. ¶ 12 (capitalization omitted). In addressing this issue, the PCRA Court, upon reviewing the record, concluded that: "Inasmuch as this Court ultimately found that the verdict was not against the weight of the evidence, all prior counsel cannot be deemed ineffective for failing to previously raise the issue." See Commonwealth v. Davis, No. 0330 May Term 1996, Mem. Op. at 6 (C.P. Phila. filed Mar. 15, 2002). In affirming the denial of PCRA relief, the Superior Court "agree[d] with the sound reasoning of the PCRA Court." See Pa. Super. Ct. Op. filed 9/22/03, at 6.
State court credibility findings may not be redetermined on habeas review. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983); Lusk v. Dugger, 890 F.2d 332, 341 (11th Cir. 1989) (where district court "improperly engaged in reweighing the evidence"), cert. denied, 497 U.S. 1032 (1990). Therefore, a claim that a verdict is against the weight of the evidence is not cognizable on habeas review because it requires an assessment of the credibility of the evidence presented at trial, and a state court's credibility determinations are binding on a federal habeas court. Willis v. Varner, 2004 WL 1109780, at *1, *10 (E.D. Pa. May 13, 2004) (approving and adopting Report and Recommendation ("RR") filed Apr. 27, 2004); Ortiz-Santiago v. Stickman, 2003 WL 22331750, at *6 (E.D. Pa. Oct. 9, 2003) (citing Tibbs v. Florida, 457 U.S. 31, 42-45 (1982)) (claim that conviction is contrary to the weight of the evidence is not cognizable in § 2254 petition), RR adopted by, 2004 WL 1119930 (E.D. Pa. May 19, 2004); Harmon v. McCullough, 2000 WL 804431, at *3 (E.D. Pa. June 22, 2000) (citing Tibbs) ("[Petitioner's] claim that the trial court decision was against the weight of the evidence is not a cognizable basis for habeas relief."). Thus, "[a] federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence." See Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir.), cert. denied, 476 U.S. 1123 (1985); Willis, 2004 WL 1109780, at *1, *10; Ortiz-Santiago, 2003 WL 22331750, at *6 (citing Tibbs, 457 U.S. at 42-45); Harmon, 2000 WL 804431, at *3.
Of course, a claim that the verdict was against the weight of the evidence is different from a claim that the evidence was insufficient to support the conviction. See Tibbs v. Florida, 457 U.S. 31, 42-45 (1982).
Moreover, under § 2254(e)(1), this Court must presume that the state court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. In light of the factual determinations made by the state court with regard to the evidence at trial, see, e.g., Common Pleas Ct. Op. filed 3/15/02, at 5-6; see also Pa. Super. Ct. Op. filed 9/22/03, at 6, the state court's denial of petitioner's ineffective assistance of counsel claim was consistent with federal constitutional requirements. Since petitioner's underlying claim that the verdict was against the weight of the evidence was without merit, it cannot be said that counsel rendered ineffective assistance in failing to raise such a claim. See Strickland, 466 U.S. at 691 (failure of counsel to pursue fruitless claims "may not later be challenged as unreasonable");United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999) (under Strickland, "[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument"); Reinert v. Larkin, 211 F. Supp.2d 589, 595 (E.D. Pa. 2002) (habeas relief unavailable where counsel fails to raise a meritless claim); Fahy v. Horn, 2003 WL 22017231, at *50 (E.D. Pa. Aug. 26, 2003) (same). Therefore, the Superior Court reasonably found that counsel's conduct did not constitute ineffective assistance. See Strickland, 466 U.S. at 691; Sanders, 165 F.3d at 253; Reinert, 211 F. Supp.2d at 595; Fahy, 2003 WL 22017231, at *50.
Under the circumstances in this case, petitioner fails to "demonstrate that Supreme Court precedent requires the contrary outcome." See Matteo, 171 F.3d at 888 (emphasis added). Nor does petitioner show that "the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 890 (emphasis added); see Werts, 228 F.3d at 197. Thus, the state court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d).
(E) Failure to Subpoena Witnesses
Petitioner's second claim alleges ineffective assistance of trial and appellate counsel "for failing to investigate and subpoena two eyewitnesses who would have testified that they saw the shooting and that petitioner was not present." See Hab. Pet. ¶ 12(C) (capitalization omitted). Petitioner further alleges ineffective assistance of counsel in "failing to properly preserve [the] issue for review on appeal." Id.
A claim of ineffective assistance of counsel for failure to call witnesses at trial must fail where a habeas petitioner fails to identify possible witnesses or demonstrate what those witnesses might have said. See United States v. Thomas, 221 F.3d 430, 437-38 (3d Cir. 2000) (noting that claim alleging that counsel failed to call certain witnesses was "conclusory and too vague to warrant further investigation" where no potential witnesses were identified); United States v. Pressley, 1997 WL 550287, at *7 (E.D. Pa. Aug. 21, 1997) (where "Defendant [gave] no indication as to whom such witnesses might have been or what they might have said"); United States v. Moscony, 1996 WL 411275, at *3 (E.D. Pa. July 12, 1996) (petitioner "failed to make even a colorable claim" where he "failed . . . to identify who his trial counsel could have called as defense witnesses"). Here, the present petition fails to identify specific potential witnesses. See Hab. Pet. ¶ 12. Therefore, arguably the claim as alleged in the present petition must fail on that basis. See Thomas, 221 F.3d at 437-38; see also Pressley, 1997 WL 550287, at *7;Moscony, 1996 WL 411275, at *3.
In his PCRA appeal, petitioner identified two witnesses, Jacqueline Ann Perdunn and Debbie Palmeroy, who he claimed would have testified that petitioner was not present at the shooting. See Pa. Super. Ct. Op. filed 9/22/03, at 9; Common Pleas Ct. Op. filed 3/15/02, at 11-12. Furthermore, on direct appeal, petitioner claimed that trial counsel rendered ineffective assistance in failing to call "Jackie Palmeroy, Debbie Palmeroy, Raheem Hall and Michael Slocum" to testify at his trial. See Pa. Super. Ct. Op. 8/25/99, at 15. However, even assuming that the "two eyewitnesses" referred to in the present petition, see Hab. Pet. ¶ 12(C), are two of these alleged witnesses identified by petitioner in state court, petitioner's present claim warrants no habeas relief.
Although the Superior Court spelled the witness's name as "Debbie Pomroy" during petitioner's PCRA appeal, see Pa. Super. Ct. Op. filed 9/22/03, at 9, the Superior Court spelled the witness's name as "Debbie Palmeroy" on petitioner's direct appeal, see Pa. Super. Ct. Op. filed 8/25/99, at 15, as did the Court of Common Pleas on petitioner's PCRA appeal, see Common Pleas Ct. Op. filed 3/15/02, at 11.
Where a petitioner contends that counsel was ineffective for failing to call a witness, he must establish that the witness was willing and available to testify. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (counsel's assistance not ineffective for failing to call a witness where petitioner failed to show that such witness was available and that the testimony was forthcoming), cert. denied, 502 U.S. 902 (1991); United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988) (relief unavailable where defendant failed to establish that witnesses were ready to volunteer testimony or that if called they would testify). On petitioner's direct appeal, the Superior Court found that petitioner failed to demonstrate that the purported witnesses "were available and willing to testify on [petitioner's] behalf."See Pa. Super. Ct. Op. filed 8/25/99, at 16.
In addition, on petitioner's PCRA appeal the state court found that petitioner "has failed to positively demonstrate that [Ms. Perdunn's] testimony would have been helpful to [petitioner's] case." See Common Pleas Ct. Op. filed 3/15/02, at 11. The Court further found that petitioner failed to demonstrate Ms. Perdunn "was available to testify at trial or that she was willing to testify at trial." Id. at 12. Moreover, the PCRA Court found that petitioner failed to show that his trial counsel was even "made aware of any such exculpatory evidence." Id.
As explained above, this Court must presume that the state court's determinations of the factual issues are correct since petitioner has not rebutted the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Furthermore, this presumption of correctness applies to the factual determinations of both state trial and appellate courts, see Duncan, 256 F.3d at 196; Dickerson, 90 F.3d at 90, and implicit factual findings as well as the express findings of the state courts, see Campbell, 209 F.3d at 285-86, 290. Moreover, courts reviewing claims of ineffective assistance of counsel "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See Senk v. Zimmerman, 886 F.2d 611, 615 (3d Cir. 1989), cert. denied, 493 U.S. 1035 (1990); see also Strickland, 466 U.S. at 690.
Here, in light of the factual findings of the state courts and the presumption that counsel's conduct constituted reasonable professional assistance, it cannot be said that the Superior Court decision "resulted in an outcome that cannot reasonably be justified." See Matteo, 171 F.3d at 891. Nor can it be said that "Supreme Court precedent requires an outcome contrary to that reached by" the state court. See id. Therefore, the state court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 404-05; Matteo, 171 F.3d at 891. Accordingly, the present petition should be denied and dismissed.
Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2)); see Miller-EL v. Cockrell, 123 S. Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To establish this, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. at 484;see Miller-EL, 123 S. Ct. at 1040.
Furthermore, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; see Miller-El, 123 S. Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484.
Here, since a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's aforementioned procedurally defaulted claims, see Slack, 529 U.S. at 484; see, e.g., Swisher v. True, 325 F.3d 225, 231 (4th Cir.) (finding that COA should not issue where habeas claim was barred by the procedural default doctrine), cert. denied, 123 S. Ct. 2668 (2003), and since petitioner has not made the requisite showing of the denial of a constitutional right with regard to petitioner's remaining claims, a certificate of appealability is not warranted. See Slack, 529 U.S. at 484. Accordingly, the habeas petition should be denied and dismissed, and a COA should not issue.
My Recommendation follows.
RECOMMENDATION
AND NOW, this day of September 2004, upon consideration of the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and the Response thereto, for the reasons provided in the accompanying Report, it is hereby RECOMMENDED that the habeas petition be DENIED and DISMISSED and that a certificate of appealability should not issue.
ORDER
AND NOW, this day of, 2004, upon consideration of the Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 and the Response thereto, and after review of the Report and Recommendation of United States Magistrate Judge Diane M. Welsh, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus is DENIED and DISMISSED;
3. A certificate of appealability shall not issue since, for the reasons set forth in the Report and Recommendation, a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's procedurally defaulted habeas claim, and petitioner has not made a substantial showing of the denial of a constitutional right with regard to his remaining claims.