Opinion
Civil No. 4:16-CV-2223
07-15-2019
PAUL NELSON HANSEN, Petitioner v. MICHAEL CLARK, et al., Respondents
(Judge Brann)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of The Case
This case arose out of a tragic, fatal shooting which took place on June 12, 2010. The background of the killing of Melissa Barnes at the hands of Paul Hansen was aptly described by the Pennsylvania Superior Court in its decision affirming Hansen's conviction, where the court explained that:
The shooting and killing of Melissa Barnes occurred at a party Barnes hosted at her home ... in York Haven, Pennsylvania on June 12, 2010. The property was in a wooded area, and the roughly twenty cars parked near the house had to drive down a makeshift dirt road in order to park. The road was muddy due to rain, and thus Hansen required the help of five people at the party to push his vehicle out of the mud before he could leave as he intended. One of the five partygoers that helped Hansen move his vehicle was Holly McMichael. During the attempts to push Hansen's vehicle out of the mud, Hansen and McMichael began to argue because McMichael attempted to tell Hansen how to drive. Hansen grabbed McMichael during the argument and told her that he would "break [her] fucking neck." N.T. Trial, 7/11/11, at 183. He then
twisted her around and put her in a hold so that she could not move. When a truck pulled in with its lights on, Hansen released McMichael.
Thereafter, Barnes quickly approached the scene of the altercation, swearing at Hansen and telling him, "you don't put your hands on one of my friends, my guest ... you don't touch a woman." Id. Barnes went over to Hansen, pushed him, and continued to scream profanities. Hansen pushed Barnes back, and the argument continued. According to the testimony of one witness, when Barnes pushed Hansen again:
He took a step back, took his right hand, put it in his right side, pulled out a pistol, aimed and the gun went off just that quick in one fluid motion without saying anything to her, without a warning, without saying ["]I'm gonna shoot you.["] Nothing. It was just step back, draw, point and the gun went off and the bullet entered the side of the head.
Id. at 111.
At the time that Hansen shot Barnes, she was angry and in a fighting stance. She was also little further than an arm's length from Barnes when he fired. After the gun went off, Hansen's arm remained up and he did not move for a moment. He then slowly put the gun back to his side, walked past Barnes, and continued up the road alongside the house until he was out of sight.
Witnesses testified that after Hansen shot Barnes, he made a call to his wife, and then to 911. He told his wife that he had shot Barnes, he was "pretty sure" he killed her, that he loved his wife and kids, and that he was going to jail. Witnesses testified that Hansen sounded calm on the phone.
Roughly thirty seconds to one minute after the shooting, a guest at the party sought the assistance of Barnes' neighbor, Officer Keith Farren, who was off duty. ... Officer Farren secured Hansen's gun and held him until police arrived. According to the testimony of Officer Farren, at this point Hansen's demeanor was "extremely calm. It was kind of eerie actually. He was very articulate. He spoke very clear[ly]." N.T.
Trial, 7/12/11, at 239. Officer Farren also testified that Hansen told him that:
Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her. And he said that she had touched him or slapped him I believe is what he said. He had pulled his gun out and pointed it at her and the gun accidentally went off. He said that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault.
(Doc. 21-1 at 337-41.)
Id. at 240.
Officer Briar of the Newberry Police Department was dispatched to the scene of the crime. When he arrived, he took possession of the gun, a .40 Smith and Wesson semi-automatic, capable of holding fourteen rounds when fully loaded. An examination of the gun after the shooting revealed that Hansen's gun had one round in the chamber and twelve in the magazine. As determined by the tool and mark examiner for the Pennsylvania State Police, Trooper Darren Mortoff, the trigger pull of the gun was a minimum of eleven pounds.
Following his arrest, Hansen was charged with criminal homicide, assault and terroristic threats for his role in the slaying of Barnes and the menacing of Holly McMichael. (Id., at 4.) As this case proceeded to trial, there was no dispute that Hansen had, in fact, killed Barnes since multiple witnesses described how Hansen shot Barnes in the head at near point-blank range with a .40 caliber handgun. Instead, as Hansen's defense counsel aptly observed, this case was not about what Hansen did on July 12, 20010; rather "[w]hat this case [wa]s about was what was going on inside his head." (Id., at 71.)
Moreover, with respect to this critical issue of intent, Hansen's trial counsel was hamstrung in mounting a defense due to the statements and actions of his client in the immediate aftermath of this killing. Thus, the fact that numerous witnesses described Hansen's calm demeanor following the killing hobbled any effort to argue that he had acted out of fear or the heat of a sudden passion. Hansen also made a statement to the police shortly after he killed Barnes, which further constrained defense counsel in fashioning any defense based upon his mental state when he killed Barnes, telling the arresting officer that:
At trial a number of witnesses described Hansen's actions and demeanor in terms that were inconsistent with any deep fear or sudden passion, characterizing him as "calm", (Id., at 100), and stating that Hansen was: "Extremely calm. It was kind of eerie actually. He was extremely articulate." (Id., 142.)
Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her. And he said that she had touched him or slapped him I believe is what he said. He had pulled his gun out and pointed it at her and the gun accidentally went off. He said that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault.(Id., at 143.)
In this immediate post-arrest statement, Hansen made admissions consistent with some level of premeditation, stating: "Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her." (Id.) Hansen also described the shooting as an accidental discharge of the gun, claiming that "the gun accidentally went off." (Id.) Notably absent from this statement made in the immediate wake of this killing was any statement by Hansen that he feared for his safety or acted in self-defense.
Despite the obstacles to any defense presented by Hansen's words and deeds, his defense counsel explored the question of Hansen's mental state, seeking out medical treatment records and retaining an expert to evaluate Hansen's mental state. (Id., at 416-17.) Counsel reported that these efforts were entirely unavailing in developing a line of defense for Hansen, whose post-arrest statements largely confined the defense to a claim that this was an accidental shooting. (Id.)
It further appears that Hansen and his trial counsel had discussions, debates, and some disagreements regarding the course of his defense at trial. On various occasions, Hansen voiced a preference for pursuing a claim of self-defense in this case. Hansen's trial attorney counselled against this particular defense, noting that there was no evidence that Barnes was armed; that Hanson had the opportunity to retreat and deescalate the confrontation by simply leaving Barnes' property; that it was Hansen who chose to use lethal force by discharging his firearm into Barnes' skull; and that Hansen never asserted any fear or claim of self-defense at the time of Barnes' death, insisting instead that the shooting was an accident and "that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault." (Id., at 143.) Ultimately, at trial, Hansen agreed to a defense that focused upon his claim that this was an accidental shooting, and in a colloquy with the trial court expressly disavowed any self-defense jury instruction. (Id., at 204-08.)
Hansen proceeded to trial on these charges on July 11-13, 2011. (Id., at 22-265.) In the course of the trial, the jury heard from numerous witnesses who identified Hansen as Barnes' killer. The jury also was presented with Hansen's admissions that he had shot and killed Barnes after he told her "that if she touched me again, then I'd shoot her." (Id., at 143.) Further, the jury learned that the firearm that Hansen used in this slaying, a .40 caliber handgun, had an 11-pound trigger pull, which meant that the firearm was not a hair-trigger weapon, but required some conscious effort to discharge.
With respect to the charges relating to the slaying of Barnes, the verdict form and jury instructions provided to the jury gave the jurors the option of acquittal or finding Hansen guilty of offenses ranging from involuntary manslaughter and voluntary manslaughter to first or third degree murder. Thus, the jury could conclude that this slaying was a non-culpable accident; a reckless but involuntary manslaughter; a voluntary manslaughter, that is, killing provoked by a sudden passion; an unpremeditated killing with malice, a third-degree murder; or first-degree murder, a killing with premeditation and malice aforethought. Having heard all of the evidence, including Hansen's statement that "Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her," the jury convicted Hansen of first-degree murder, as well as assault and terroristic threats for his assault upon Holly McMichael. (Id., at 259-61.)
On August 24, 2011 Hansen was sentenced to life imprisonment for the murder of Barnes, and to two consecutive 1-to-12 month terms of imprisonment for his assault and terroristic threats convictions. (Doc. 1, at 1.) Hansen appealed this conviction and sentence. On direct appeal, Hansen raised a single issue, challenging the sufficiency of the evidence regarding his intent to kill. (Id., at 265-292.) On August 24, 2012, the Pennsylvania Superior Court rejected this appeal and affirmed Hansen's conviction, concluding that there was ample evidence to support the jury's finding that Hansen was guilty of a premeditated murder in the killing of Melissa Barnes. (Id., at 337-345.) Hansen then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, but that court declined to further review this conviction. (Id., at 346-70.)
Having exhausted his direct appeals, Hansen then sought relief under the Pennsylvania Post Conviction Relief Act ("PCRA") on April 19, 2014. (Id., at 371-78.) Counsel was appointed to assist Hansen in these post-conviction proceedings, and a hearing was held on Hansen's post-conviction claims on August 8, 2014. (Id., at 380-430.) In this petition, at this hearing, and later on appeal, Hansen raised an array of issues in a somewhat haphazard fashion. For example, at his August 8, 2014 PCRA hearing, Hansen argued that his trial counsel was ineffective for: (1) failing to explore his mental health and diminished capacity; (2) not pursuing a self-defense theory; (3) failing to introduce evidence that he wore a left handed holster at the time of the killing, evidence Hansen suggested would rebut the claim that he used his right hand to shoot Barnes; (4) failing to call additional character witnesses beyond his wife; (5) advising him to refrain from testifying; (6) failing to more thoroughly cross examine one witness, Hudson Bethard; and (7) failing to call a defense ballistics expert. (Id., at 383-401.) Further, Hansen asserted that his appellate counsel was ineffective in that he failed to properly preserve issues for further review. (Id., at 401.)
While Hansen advanced these claims at his PCRA hearing, his testimony undermined many of the claims that he advanced. For example, Hansen conceded that he agreed at trial with his counsel's tactical decisions not to pursue a self-defense claim and agreed to refrain from testifying (Id., at 388-90, 393-95.) Hansen also admitted that some of the other claims, such as his claims relating to testimony concerning his left-handed holster, would not have altered the outcome of the case in any way since he fully admitted to shooting Barnes in the head. (Id., at 391.)
Hansen's trial and appellate counsel testified at this hearing as well. For his part, Hansen's trial counsel aptly described the defense dilemma in this case when he explained that Hansen's post-shooting admissions largely left the defense "locked in" to an accidental shooting defense. (Id., at 412-14) Counsel reaffirmed that Hansen agreed to this defense. (Id.) Trial counsel also explained that he had pursued mental health issues relating to Hansen, retaining an expert and seeking out Hansen's treatment records, but nothing from the retained expert or treatment providers provided information that was helpful to the defense. (Id., at 416-17.) Furthermore, trial counsel explained that the information provided by the defense ballistics expert was essentially consistent with the Commonwealth's expert, and counsel was able to elicit any helpful ballistics testimony from the Commonwealth's expert on cross examination, making the testimony of a defense expert unnecessary. (Id., at 415.) As for Hansen's complaint that his counsel failed to explore or call character witnesses, counsel noted that he called Hansen's wife as a character witness, and denied recalling that Hansen identified any other character witnesses. (Id., at 417-26.) Likewise, Hansen's appellate counsel testified that he pursued all issues on direct appeal that were meritorious and had been preserved at trial, and further explained that many of Hansen's complaints related to the effectiveness of his trial counsel were matters that were not cognizable on direct appeal. (Id., at 426-30.)
Following this hearing, Hansen's PCRA counsel moved to withdraw and filed a no-merit letter with the trial court. The trial court, in turn, considered but rejected Hansen's PCRA petition. Hansen then appealed this adverse ruling to the Pennsylvania Superior Court. On appeal, Hansen cast his claims in different terms than he had at his state PCRA hearing, and now argued nine issues, asserting that:
1. Trial counsel was ineffective for failing to present evidence of Appellant' s mental health diagnoses and diminished capacity; 2. Trial counsel was ineffective for not introducing testimony to establish the victim' s height and weight; 3. Trial counsel was ineffective for failing to object to statements regarding Appellant' s knowledge or experience in the martial arts; 4. Trial counsel was ineffective for failing to highlight on cross examination Hudson Bethard's statement that several individuals approached the scene of the altercation; 5. Trial counsel was ineffective for failing to present evidence that Appellant's pistol was carried in a left-handed holster, despite testimony indicating Appellant brandished and fired the weapon using his right hand; 6. Trial counsel was ineffective for failing to present character witnesses at trial; 7. Trial counsel was ineffective for advising Appellant not to testify at trial; 8. Trial counsel did not adequately prepare for the trial or explore various defenses; and 9. Appellate counsel was ineffective for failing to raise the above issues on direct appeal.(Id., at 434-35.)
On April 6, 2016, the Superior Court issued an opinion affirming the denial of the PCRA petition. (Id., at 431-40.) In reaching this result, the Superior Court concluded that none of the nine post-conviction claims advanced by Hansen had any merit. Treating Hansen's first four arguments as collectively alleging ineffectiveness by trial counsel in failing to pursue a self-defense claim, the Superior Court noted that counsel prudently avoided such a shift in defense strategy, since it would have been inconsistent with the eyewitness testimony, which uniformly stated that it was Hansen who escalated what was a shoving match to a lethal encounter when he shot Melissa Barnes in the head. The Court also noted that this shift in defense would have been impeached by Hansen's own post-arrest admissions, where he claimed that the shooting was an accident, not an act of self-defense. (Id., at 436.) The appellate court also agreed that counsel acted appropriately when he declined to highlight the fact that Hansen wore a left-handed holster in an effort to undermine the testimony of witnesses that he used his right hand to fire the fatal shot, agreeing that this tactic "would only insult" the jury given the undisputed evidence, which showed that Hansen killed Barnes. (Id., at 437.) The Superior Court also rejected Hansen's claim that counsel was ineffective in failing to call character witnesses, noting that counsel did call Hansen's spouse as a character witness, and observing that Hansen had failed to show that he requested such witnesses, that the witnesses were in fact available, and that their testimony would have materially benefited his defense. (Id., at 437-39.)
The Superior Court also discounted Hansen's claim that his trial counsel was ineffective in advising him to refrain from testifying. On this score, the court noted that Hansen testified that he concurred in this advice. Moreover, the court found that the advice was strategically sound since Hansen's prior statements to the police would have thoroughly impeached any self-defense claim he might have tried to pursue at trial, undermining his credibility. (Id., at 439.) The Superior Court also rejected Hansen's assertion that his trial counsel failed to prepare for trial, pointing out that counsel carefully explored Hansen's mental health issues, and retained ballistics and mental health experts, none of whom were able to provide information that materially advanced the defense of this case. (Id., at 439-40.) Finally, having found that all of Hansen's claims were without merit, the Court concluded that Hansen's appellate counsel could not be deemed ineffective for failing to raise these claims on appeal, since "none of the . . . issues would have entitled [Hansen] to relief." (Id., at 440.)
Hansen filed a petition for allowance of appeal from this adverse ruling with the Pennsylvania Supreme Court, but on October 19, 2016, the Supreme Court declined to further review this case. (Id., at 441.)
Hansen then filed this federal habeas corpus petition on November 3, 2016. (Doc. 1.) Like his state court post-conviction litigation, Hansen's presentation of claims in this federal proceeding has been erratic and marked by shifting claims that are often unexhausted. Thus, Hansen's initial petition presented five broadly framed claims alleging: (1) that the evidence was insufficient to convict him of murder; (2) that the state courts unreasonably applied clearly established law; (3) that Hansen was denied due process through cumulative errors by the courts, counsel and the Commonwealth; (4) that PCRA counsel was ineffective; and (5) that Hansen's trial and appellate counsel also rendered ineffective assistance to the petitioner. (Doc. 3.) Embedded within each of these broadly-framed claims were numerous sub-issues, many of which appeared to have never previously been presented to any court. (Id.)
For example, in these pleadings, Hansen complained about trial counsel failure to challenge one prospective juror for cause, an issue that was never litigated in state court.
In January of 2019, Hansen then filed an amended petition in this case. (Doc. 36.) That petition also appeared to advance a welter of distinct claims and arguments, many of which were both unexhausted and marked by multiple sub-issues. Thus, Hansen alleged that he suffered from major mental illness that was not acknowledged by the court, or effectively addressed by his counsel. In addition, Hansen challenged the sufficiency of the evidence, advancing various claims that essentially argued that he was actually innocent of the murder of Barnes. Hansen appeared to assert this claim of innocence both as a free-standing claim and as an excuse for his multiple procedural defaults.
Hansen then renewed claims that his trial counsel was ineffective, adding some previously unlitigated allegations of ineffectiveness to his contentions regarding the performance of his trial counsel. Specifically, Hansen now complained that trial counsel was ineffective in: (1) failing to object to the Commonwealth's opening statement; (2) failing to develop evidence relating to the victim's drinking on the date of her death; (3) failing to procure psychiatric evidence in support of a diminished capacity defense; (4) failing to investigate alternate defenses; (5) failing to identify criminal backgrounds on Commonwealth witnesses; (6) failing to present evidence that Hansen was justified in shooting Barnes because Barnes had "provoked" him; (7) failing to present death penalty mitigation witnesses; and (8) failing to further cross examine witnesses or lodge objections at trial. Hansen then alleged that both his appellate and PCRA counsel were also ineffective and failed to properly preserve meritorious legal issues.
We note that while Hansen included this issue in his amended petition, (Doc. 36, at 22), this was not a death penalty case. Therefore, this claim is a legal and factual non sequitur.
In addition, Hansen asserted an entirely new and previously unmentioned claim of prosecutorial misconduct, alleging that the prosecutor made improper statements in his opening statements. This claim had never before been presented at trial, on direct appeal, or in Hansen's PCRA litigation. Hansen coupled this prosecutorial misconduct claim with allegations of previously unidentified error by the court. Hansen's amended petition closed by asserting that clear and convincing evidence rebutted the factual findings made by the state courts throughout his state post-conviction litigation, and demanded a evidentiary hearing.
The Commonwealth has responded both to Hansen's original petition and to his amended petition, arguing that Hansen's latest claims are often unexhausted and are entirely without merit. Hansen, in turn, has submitted traverses in support of his contentions. Accordingly, this case is now ripe for resolution.
Finding that Hansen's claims are frequently unexhausted, and uniformly lack merit, for the reasons set forth below, it is recommended that this petition be denied.
III. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
(1)Substantive Standards
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a) and (b).
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State;
..........
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2)Deference Owed to State Courts
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) "contrary to" or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was "based upon an unreasonable determination of the facts," see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990). This principle applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Accordingly, in a case such as this, where a state court judgment rests upon factual findings, it is well-settled that:
A state court decision based on a factual determination, ..., will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000).Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003). Applying this standard of review, federal courts may only grant habeas relief whenever "[o]ur reading of the PCRA court records convinces us that the Superior Court made an unreasonable finding of fact." Rolan, 445 F.3d at 681.
(3) Ineffective Assistance of Counsel Claims
These general principles apply with particular force to habeas petitions that are grounded in claims of ineffective assistance of counsel. It is undisputed that the Sixth Amendment to the United States Constitution guarantees the right of every criminal defendant to effective assistance of counsel. Under federal law, a collateral attack of a sentence based upon a claim of ineffective assistance of counsel must meet a two-part test established by the Supreme Court in order to survive. Specifically, to prevail on a claim of ineffective assistance of counsel, a petitioner must establish that: (1) the performance of counsel fell below an objective standard of reasonableness; and (2) that, but for counsel's errors, the result of the underlying proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92 (1984). A petitioner must satisfy both of the Strickland prongs in order to maintain a claim of ineffective counsel. George v. Sively, 254 F.3d 438, 443 (3d Cir. 2001).
At the outset, Strickland requires a petitioner to "establish first that counsel's performance was deficient." Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001). This threshold showing requires a petitioner to demonstrate that counsel made errors "so serious" that counsel was not functioning as guaranteed under the Sixth Amendment. Id. Additionally, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. However, in making this assessment "[t]here is a 'strong presumption' that counsel's performance was reasonable." Id. (quoting Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)).
But a mere showing of deficiencies by counsel is not sufficient to secure habeas relief. Under the second Strickland prong, a petitioner also "must demonstrate that he was prejudiced by counsel's errors." Id. This prejudice requirement compels the petitioner to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id.
Thus, as set forth in Strickland, a petitioner claiming that his criminal defense counsel was constitutionally ineffective must show that his lawyer's "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Thomas v. Varner, 428 F.3d 491, 499 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). The petitioner must then prove prejudice arising from counsel's failings. "Furthermore, in considering whether a petitioner suffered prejudice, '[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted).
Although sometimes couched in different language, the standard for evaluating claims of ineffectiveness under Pennsylvania law is substantively consistent with the standard set forth in Strickland. See Commonwealth v. Pierce, 527 A.2d 973, 976-77 (Pa.1987); see also Werts v. Vaugh, 228 F.3d 178, 203 (3d Cir.2000) ("[A] state court decision that applied the Pennsylvania [ineffective assistance of counsel] test did not apply a rule of law that contradicted Strickland and thus was not 'contrary to' established Supreme Court precedent"). Accordingly, a federal court reviewing a claim of ineffectiveness of counsel brought in a petition under 28 U.S.C. § 2254 may grant federal habeas relief if the petitioner can show that the state court's adjudication of his claim was an "unreasonable application" of Strickland. Billinger v. Cameron, 2010 U.S. Dist. LEXIS 63759, at 2010 WL 2632286 (W.D. Pa. May 13, 2010). In order to prevail against this standard, a petitioner must show that the state court's decision "cannot reasonably be justified under existing Supreme Court precedent." Hackett v. Price, 381 F.3d 281, 287 (3d Cir. 2004); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009) (where the state court's application of federal law is challenged, "the state court's decision must be shown to be not only erroneous, but objectively unreasonable.") (internal citations and quotations omitted).
This additional hurdle is added to the petitioner's substantive burden under Strickland. As the Supreme Court has observed a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (noting that the review of ineffectiveness claims is "doubly deferential when it is conducted through the lens of federal habeas"). This doubly deferential standard of review applies with particular force to strategic judgment like those thrust upon counsel in the instant case. In this regard, the Court has held that:
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., at 688, 104 S. Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689, 104 S. Ct. 2052. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id., at 690, 104 S. Ct. 2052.Knowles v. Mirzayance, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009). The deference which is owed to these strategic choices by trial counsel is great.
Therefore, in evaluating the first prong of the Strickland test, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. The presumption can be rebutted by showing "that the conduct was not, in fact, part of a strategy or by showing that the
strategy employed was unsound." Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir.2005) (footnote omitted).Lewis v. Horn, 581 F.3d 92, 113 (3d Cir. 2009).
(4) Procedural Benchmarks - Exhaustion and Procedural Default
a. Exhaustion of State Remedies
State prisoners seeking relief under section 2254 must also satisfy specific procedural standards. Among these procedural prerequisites is a requirement that the petitioner "has exhausted the remedies available in the courts of the State" before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The Supreme Court has explained that "a rigorously enforced total exhaustion rule" is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid a federal court in its review of § 2254 petitions. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, and the claims brought in federal court must be the "substantial equivalent" of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in obtaining state relief, since it is well-settled that a claim of "likely futility on the merits does not excuse failure to exhaust a claim in state court." Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
Although this exhaustion requirement compels petitioners to have previously given the state courts a fair "opportunity to apply controlling legal principles to the facts bearing upon [the petitioner's] constitutional claim," Picard v. Connor, 404 U.S. 270, 276 (1971), this requirement is to be applied in a commonsense fashion. Thus, the exhaustion requirement is met when a petitioner submits the gist of his federal complaint to the state courts for consideration, without the necessity that the petitioner engage in some "talismanic" recitation of specific constitutional clams. Evans, 959 F.2d at 1230-33. Similarly, a petitioner meets his obligation by fairly presenting a claim to state courts, even if the state courts decline to address that claim. Dye v. Hofbauer, 546 U.S. 1 (2005) (per curiam); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir. 2004).
b. Procedural Default
A necessary corollary of this exhaustion requirement is the procedural default doctrine, which applies in habeas corpus cases. Certain habeas claims, while not exhausted in state court, may also be incapable of exhaustion in the state legal system by the time a petitioner files a federal habeas petition because state procedural rules bar further review of the claim. In such instances:
In order for a claim to be exhausted, it must be "fairly presented" to the state courts "by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999). If a claim has not been fairly presented to the state courts and it is still possible for the claim to be raised in the state courts, the claim is unexhausted . . . .Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002).
If a claim has not been fairly presented to the state courts but state law clearly forecloses review, exhaustion is excused, but the doctrine of procedural default may come into play. A procedural default occurs when a prisoner's federal claim is barred from consideration in the state courts by an "independent and adequate" state procedural rule. Federal courts may not consider the merits of a procedurally defaulted claim unless the default and actual "prejudice" as a result of the alleged violation of the federal law or unless the applicant demonstrates that failure to consider the claim will result in a fundamental "miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991).
"[A] federal court will ordinarily not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus '[o]ut of respect for finality, comity, and the orderly administration of justice.' This is a reflection of the rule that 'federal courts will not disturb state court judgments based on adequate and independent state law procedural ground.'" Hubbard v. Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (citations omitted). Given these concerns of comity, the exceptions to the procedural default rule, while well-recognized, are narrowly defined. Thus, for purposes of excusing a procedural default of a state prisoner seeking federal habeas relief, "[t]he Supreme Court has delineated what constitutes 'cause' for the procedural default: the petitioner must 'show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (citations omitted). Similarly, when examining the second component of this "cause and prejudice" exception to the procedural default rule, it is clear that:
With regard to the prejudice requirement, the habeas petitioner must prove "'not merely that the errors at ... trial created the possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" This standard essentially requires the petitioner to show he was denied "fundamental fairness" at trial. In the context of an ineffective assistance claim, we have stated that prejudice occurs where
"there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different."Id. at 193 (citations omitted).
Likewise, the "miscarriage of justice" exception to this procedural bar rule is also narrowly tailored, and requires a credible assertion of actual innocence to justify a petitioner's failure to comply with state procedural rules. Hubbard, 378 F.3d at 338.
Procedural bar claims typically arise in one of two factual contexts. First, in many instances, the procedural bar doctrine is asserted because an express state court ruling in prior litigation denying consideration of a habeas petitioner's state claims on some state procedural ground. In such a situation, courts have held that:
A habeas claim has been procedurally defaulted when "a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 730, 111 S. Ct. 2546, 115 L.Ed.2d 640 (1991). For a federal habeas claim to be barred by procedural default, however, the state rule must have been announced prior to its application in the petitioner's case and must have been "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24, 111 S. Ct. 850, 112 L.Ed.2d 935 (1991). Whether the rule was firmly established and regularly followed is determined as of the date the default occurred, not the date the state court relied on it, Doctor v. Walters, 96 F.3d 675, 684 (3d Cir. 1996), because a petitioner is entitled to notice of how to present a claim in state court, Ford, 498 U.S. at 423-424, 111 S. Ct. 850, 112 L.Ed.2d 935.Taylor v. Horn, 504 F.3d 416, 427-28 (3d Cir. 2007).
In other instances, the procedural default arises, not because of an express state court ruling, but as a consequence of a tactical choice by a habeas petitioner, who elects to waive or forego a claim in the course of his state proceedings, and thus fails to fully exhaust the claim within the time limits prescribed by state statute or procedural rules. In such instances the petitioner's tactical choices in state court litigation also yield procedural defaults and waivers of claims federally. See, e.g,, Johnson v. Pinchak, 392 F.3d 551 (3d Cir. 2004) (procedural default where petitioner failed to timely pursue state claim); Hull v. Freeman, 991 F.2d 86 (3d Cir. 1993) (same). Accordingly, a petitioner's strategic choices in state court waiving or abandoning state claims may act as a procedural bar to federal consideration of his claims, unless the petitioner can show either "cause and prejudice" or demonstrate a "fundamental miscarriage of justice."
Judged against these legal benchmarks, for the reasons set forth below, Hansen's various legal claims fail both procedurally since many claims were unexhausted, and substantively since none of these claims describe constitutional infractions which justify setting aside this conviction and sentence. Therefore, it is recommended that the court deny this petition.
B. Hansen's Petition Fails as a Matter of Law.
(1) Many of Hansen's Claims Are Unexhausted and Procedurally Defaulted.
While the frequently shifting nature of Hansen's claims throughout this post-conviction litigation presents certain challenges in ascertaining what claims have been fully and properly exhausted, it is evident that many of Hansen's claims run afoul of the exhaustion and procedural default requirements prescribed by federal law for state prisoner habeas corpus petitions. In this case, Hansen now advances a host of claims relating to the conduct of his 2011 trial. According to Hansen, the trial was infected by prosecutorial misconduct in the form of an improper opening statement, as well as various trial errors. These allegations are presented for the first time in this federal habeas corpus petition. Thus, no state court has ever considered these claims.
Hansen's haphazard approach to this litigation also means that many of this claims of ineffective assistance of counsel have never been fully and properly litigated. For example, in his federal habeas corpus petition, Hansen advances numerous claims of ineffective assistance of counsel that were never raised by the petitioner in the state courts, including Hansen's claims that his trial counsel was ineffective in: (1) failing to object to the Commonwealth's opening statement; (2) failing to develop evidence relating to the victim's drinking on the date of her death; (3) failing to identify criminal backgrounds on Commonwealth witnesses; (4) failing to present evidence that Hansen was justified in shooting Barnes because Barnes had "provoked" him; and (5) failing to present death penalty mitigation witnesses.
None of these legal claims have been subjected to a full round of state appellate court review. Therefore, none of these arguments have been fully and properly exhausted in the state courts as required by § 2254. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (finding that a petitioner properly exhausts claims in state court "by invoking one complete round of the State's established appellate review process"); Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000) ("Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims"); Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992) ("A claim must be presented not only to the trial court but also the state's intermediate court as well as to its supreme court"); Blasi v. Atty. Gen. of Pa., 30 F.Supp.2d 481, 486 (M.D. Pa. 1998) ("The exhaustion doctrine requires the defendant to present the issue to any intermediate state appellate court, if applicable, and to the state's supreme court"). Since the time for properly presenting and exhausting these claims has now long since passed, Hansen has also procedurally defaulted on these claims and has failed to show "cause" or "prejudice" that would excuse this procedural default.
In short, Hansen's approach to the litigation of these claims has, at times, been haphazard and incomplete. The failure to fully exhaust many of these legal claims now creates a bar to the belated assertion of these matters in this federal habeas corpus petition, and these unexhausted and procedurally defaulted claims should be dismissed.
(2) These Unexhausted Claims Are Also Meritless.
As to these unexhausted claims, Hansen faces a second substantive hurdle. These claims lack merit. For example, our independent review of the trial record discloses that Hansen's complaint about jury selection and the prosecutor's opening statement are not only procedurally barred but are also meritless. Fairly construed, the prosecutor's opening statement was an appropriate commentary on the anticipated evidence. While Hansen may disagree with the inferences the prosecutor invited the jury to draw from that evidence, those inferences reasonably flowed from that proof. There was no error here. Furthermore, the juror that Hassen alleges should have been stricken for cause stated during voir dire that she could reach a verdict based solely upon the evidence and setting aside any other matters. Given this testimony by the prospective juror, there were no grounds to strike the juror for cause.
Likewise, many of Hansen's unexhausted ineffectiveness claims, and assertions of trial error, relate to matters that were tangential to the central issues of innocence and guilt in this case, or were completely harmless given the overwhelming evidence of Hansen's guilt in the shooting death of Melissa Barnes. Therefore, none of these matters would entitle Hansen to federal habeas corpus relief.
(3) There Was Ample Evidence to Support the Jury's Verdict.
As for Hansen's claim that the evidence was insufficient to convict him, this claim is judged against a particularly exacting standard of proof. In Jackson v. Virginia, the United States Supreme Court held that "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. 307, 324 (1979). Furthermore, when a petitioner argues about the sufficiency of the evidence in the context of a federal habeas petition, the petitioner would only be entitled to relief if the state courts' decisions regarding the sufficiency of the evidence presented at trial was "an unreasonable application of . . . clearly established Federal law," 28 U.S.C. § 2254(d)(1), or if the state court's application of that law itself is "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000); see also McDaniel v. Brown, 558 U.S. 120, 132-33 (2010). Moreover, the rule announced in Jackson "requires a reviewing court to review the evidence 'in the light most favorable to the prosecution.'" Id. (quoting Jackson, 443 U.S. at 319). What this means is that a reviewing court "faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id. at 133 (quoting Jackson, 443 U.S. at 326). Thus, "[w]e must affirm the convictions if a rational trier of fact could have found [the] defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence." United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995).
Judged by this legal standard, Hansen's sufficiency of the evidence claims warrant only brief consideration. Simply put, the evidence of Hansen's guilt was clear and compelling. It is completely undisputed that Hansen was the engine of Barnes' destruction, having shot her in the head as she came to the aid of a female guest at her home. Thus, the only issue that could be contested in this case was Hansen's state of mind when he killed his victim.
On this score, based solely upon Hansen's own statements, the jury could have reasonably concluded that this was a premeditated killing. In the immediate aftermath of this shooting, an "extremely calm" Hansen whose displayed an "eerie" demeanor told police that:
Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her.(Id., at 143.) Hansen's post-arrest statements presented a stark binary choice for the jury between a premeditated killing, based upon Hansen's statement that "if she touched me again, then I'd shoot her" and Hansen's assertion that: "He had pulled his gun out and pointed it at her and the gun accidentally went off. He said that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault." (Id., at 143.)
On this score, in order to convict Hansen of premeditated murder, the jury need only have believed his statement that he planned to shoot Barnes if she touched him again. Hansen's announced intention to shoot Barnes if she touched him plainly evinced a degree of premeditation, and his shockingly calm demeanor after he executed Barnes thoroughly belied any claim that Hansen acted out of fear or in self-defense. Moreover, even as Hansen claimed that he killed Barnes accidentally, his statements to police reflected an indifference to the value of human life consistent with murder since, moments after he killed Barnes, he blamed his victim for her own demise, saying that "it was her fault" that she died. Given Hansen's cold-blooded statements and demeanor, it is hardly surprising that the jury chose not to blame his victim, but rather found that he was a premeditated killer.
At bottom, Hansen's sufficiency of the evidence argument ignores these stubborn facts and the legal benchmarks that govern such claims. Instead, Hansen invites us to cast this evidence in a light most favorable to him. This we may not do, since the rule announced by the Supreme Court in Jackson requires a reviewing court to review the evidence "in the light most favorable to the prosecution." Jackson, supra, 443 U.S. at 319. Viewed through this analytical lens, the evidence of Hansen's calculation, premeditation, and indifference to the life he had taken amply supported the jury's verdict. Therefore, Hansen's sufficiency of the evidence claims fail and "[w]e must affirm the convictions [given that] a rational trier of fact could have found [the] defendant guilty beyond a reasonable doubt, and the verdict is supported by substantial evidence." Coyle, 63 F.3d at 1243.
(4) Hansen's Attacks Upon the Performance of PCRA Counsel are Unavailing.
In this federal habeas corpus petition, Hansen also forays into an attack upon the effectiveness of his PCRA counsel. The argument fails as a free-standing legal claim for a single, simple reason. Section 2254 states that "[t]he 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." 28 U.S.C. § 2254(i). Further, the Supreme Court has stated that "[t]here is no constitutional right to an attorney in state post-conviction proceedings," and consequently "a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Coleman v. Thompson, 501 U.S. 722, 752 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551 (1987) and Wainwright v. Torna, 455 U.S. 586 (1982)); see also Holman v. Gillis, 58 F. Supp. 2d 587, 597 (E.D. Pa. 1999) (stating that "a claim of ineffective assistance of PCRA counsel is not cognizable in a federal habeas corpus petition because the right to effective assistance of PCRA counsel exists pursuant to state law, and is not mandated by the Constitution or laws or treaties of the United States"). Accordingly, this claim does not provide an independent basis warranting federal habeas relief.
Beyond asserting the ineffectiveness of his PCRA counsel as a freestanding claim, Hansen also appears to argue that this ineffectiveness serves to excuse his many procedural default. In Martinez v. Ryan, 566 U.S. 1 (2012) the Supreme Court held that "a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [state] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Martinez, 566 U.S. at 17. Under Martinez, the failure of a federal habeas petitioner's counsel to raise a claim in an initial-review collateral proceeding may constitute cause if (1) PCRA counsel's failure itself constituted ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), and (2) the underlying ineffective assistance of trial counsel claim is "a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Martinez, 566 U.S. at 14; Glenn v. Wynder, 743 F.3d 402, 410 (3d Cir. 2014). The Martinez framework applies only to "substantial claims" of trial counsel's own ineffectiveness. A claim that trial counsel was ineffective will be deemed to be substantial under this test if the petitioner shows that "the claim has some merit," as would be required for the issuance of a certificate of appealability from an unfavorable decision. Cox, 757 F.3d at 119. A substantial claim regarding trial counsel's ineffectiveness alone is not sufficient to excuse procedural default under Martinez. In addition, Martinez holds that post-conviction counsel must be ineffective under the standards of Strickland in order to excuse the procedural default of the underlying claim.
In the instant case, to the extent that Hansen is asserting ineffectiveness of PCRA counsel in order to excuse his procedural defaults, we find that he has not made the exacting showing required to obtain this relief. In particular, as we have discussed throughout this Report and Recommendation, Hansen's underlying, defaulted claims simply are not substantial. Rather they are entirely without merit. Since these underlying claims all plainly fail, PCRA counsel cannot be deemed ineffective in the presentation of these meritless claims, and the performance of PCRA counsel does not provide grounds for avoiding Hansen's procedural defaults.
(5). Hansen's Ineffective Assistance of Trial Counsel Claims Fail on their Merits.
Throughout these proceedings, Hansen has at various times presented a kaleidoscopic and shifting array of claims asserting ineffective assistance by his trial counsel. Many of these claims were presented in a halting or incomplete fashion in the state courts, and some of these claims are asserted for the first time in this federal proceeding. As a result, Hansen's specific complaints are frequently unexhausted and procedurally barred.
However, to the extent that some of Hansen's claims of ineffective assistance of counsel have been fully exhausted, when employing the "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard," Knowles v. Mirzayance, 556 U.S. 111, 123 (2009), we conclude that the state court findings rejecting these claims of ineffective assistance of counsel are amply supported by the record of Hansen's state proceedings. Therefore, these claims do not provide grounds for federal habeas corpus relief. At the outset, as we consider these claims of ineffective assistance of counsel we are mindful of the fact that in evaluating whether a petitioner suffered prejudice due to counsel's performance, " '[t]he effect of counsel's inadequate performance must be evaluated in light of the totality of the evidence at trial: a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.'" Rolan, 445 F.3d at 682 (quoting Strickland, 466 U.S. at 696) (internal quotations omitted). Here, the evidence of Hansen's guilt was overwhelming. Multiple witnesses directly tied him to this killing and assault, either through eyewitness testimony or by recounting admissions that Hansen made acknowledging his role in Barnes' death. The compelling quality of this evidence thus creates a particularly high hurdle for Hansen to surmount when advancing these ineffective assistance of counsel claims.
The state courts concluded that Hansen had not carried this exacting burden for proof and persuasion, and we agree under the doubly deferential standard of review that applies here that Hansen's properly exhausted ineffectiveness claims all fail. For example, the state courts have carefully considered, and rejected, Hansen's claims that trial counsel was ineffective in advising Hansen to refrain from testifying and in encouraging Hansen to pursue an accidental shooting line of defense rather than making a self-defense claim. We concur in these state court judgments. Hansen's post-arrest statements that he killed Barnes by accident left little room to credibly assert that Hansen had acted in self-defense. Moreover, since no other witness supported a self-defense claim, Hansen would have had to testify to advance such a claim, and would have been subjected to withering cross examination concerning the inconsistencies in his statements. In short, Hansen's own misdeeds and missteps had hobbled his defense, but the choices made by counsel and concurred in by Hansen at trial were reasonable, prudent tactical decisions given the compelling evidence arrayed against Hansen at trial.
Likewise, Hansen's claims that he was mentally impaired and that his mental state was not identified by the court or adequately investigated and addressed by defense counsel fail. While the precise tenor of this argument is not entirely clear, to the extent that Hansen alleges that he was not mentally competent to proceed in this case at the time of his trial:
In a federal habeas corpus proceeding attacking a state court conviction, the petitioner must prove that he "was incompetent in fact at the time of the p[roceeding]." Bouchillon, 907 F.2d at 592. The test of incompetency is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." Bouchillon, 907 F.2d at 592, quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 788, 4 L.Ed.2d 824 (1960).Theriot v. Whitley, 18 F.3d 311, 313 (5th Cir. 1994).
In this case, Hansen presents us with no evidence that suggests that his alleged mental impairments rendered him incompetent. Quite the contrary, the record of the state court proceedings reflect that Hansen was fully capable of making rational, informed decisions. Nor has Hansen shown that his counsel was ineffective in failing to explore this issue. Rather, the evidence reveals, and the state courts found, that trial counsel diligently pursued the question of Hansen's mental state, retaining an expert witness and seeking out treatment information. However, these efforts were unavailing and simply did not support any defense claims based upon Hansen's mental state.
Finally, Hansen contended that he received ineffective assistance of counsel due to a series of trial decisions by his attorney, including the failure to further cross examine some witnesses, the failure to object to certain arguments and testimony, and the failure to call additional character witnesses. Under the Strickland cause and prejudice test, Hansen faces a precise burden of proof in order to sustain these ineffective assistance of counsel claims. For example, where a petitioner like Hansen "claims his trial counsel failed to call a witness, he must make a specific showing as to what the evidence would have been, and prove that this witness's testimony would have produced a different result. Otherwise, the prejudice prong under Strickland is not satisfied." United States v. Mangiardi, 173 F. Supp. 2d 292, 315 (M.D. Pa. 2001). Thus,
[W]hile "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," his or her decision on whether to call a witness is an inherently strategic one. Counsel, therefore, is "not bound by an
inflexible constitutional command to interview every possible witness." Rather, he is "simply required to exercise reasonable professional judgment in deciding whether to interview" the witness.Sneed v. Beard, 328 F. Supp. 3d 412, 429 (E.D. Pa. 2018)
Similarly, "[b]ecause many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements by the prosecutor, the failure to object during closing argument and opening statement is within the 'wide range' of permissible professional legal conduct, and thus does not constitute ineffective assistance of counsel." United States v. Lively, 817 F. Supp. 453, 466 (D. Del.), aff'd, 14 F.3d 50 (3d Cir. 1993). Likewise, when considering habeas corpus petitions that are premised, in part, upon allegations of ineffective cross examination, we must remain mindful that "the Confrontation Clause does not guarantee 'cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)." Bass v. Clark, 340 F. Supp. 3d 463, 472 (E.D. Pa. 2018).
In this case, the state courts have already spoken to many of these trial decisions by counsel, and have found that these actions were reasonable choices based upon the information available to counsel. For example, the state courts have noted that trial counsel actually called a character witness for Hansen, his wife. Further, the PCRA hearing disclosed that counsel could not recall being notified of any other potential defense witnesses, and Hansen has provided no evidence to show what these witnesses might said or how this testimony might have led to a different outcome. Similarly, we have found nothing inappropriate about the prosecutor's opening statement and recognize that a decision regarding whether to interrupt an opening falls "within the 'wide range' of permissible professional legal conduct, and thus does not constitute ineffective assistance of counsel." Lively, 817 F. Supp. at 466. Further, given the evidence in this case, which conclusively showed that Hansen killed Barnes and strongly supported a finding that he premeditated this killing since he previously told the victim he would shoot her if she touched him, the additional cross examination or trial objections that Hansen asserts his counsel should have made would not have affected the outcome. Therefore, Hansen has not shown any prejudice stemming from these tactical choices, as he must do to sustain this claim on habeas corpus review. See Keller v. Larkins, 251 F.3d 408, 419 (3d Cir. 2001) (denying habeas petition based on alleged failure to object to evidence and allegedly inadequate cross examination where no prejudice was shown). Failing to show either a deficient performance by counsel or unfair prejudice, Hansen's ineffective assistance of counsel claims lack merit and should be rejected by this court.
(6) Hansen's Cannot Show that the State Court Findings Regarding the Performance of Counsel Were Erroneous.
Simply put, all of these unexhausted claims concerning the ineffectiveness of trial counsel fail given the factual findings made by the state courts in the course of these proceedings. Section 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings applies to state court factual findings made both by the trial court and state appellate courts. Rolan v. Vaughn, 445 F.3d 671 (3d Cir. 2006). Thus, we may not re-assess credibility determinations made by the state courts, and we must give equal deference to both the explicit and implicit factual findings made by the state courts. Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 2000). Moreover, when a state court judgment rests upon a factual finding, it is well-settled that this finding "will not be overturned on factual grounds unless it was objectively unreasonable in light of the evidence presented in the state proceeding. Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that the state court's determination of factual issues was correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Campbell v. Vaughn, 209 F.3d 280, 285 (3d Cir.2000)." Rico v. Leftridge-Byrd, 340 F.3d 178, 181 (3d Cir. 2003).
Recognizing that these state court findings typically guide us and compel denial of many of his claims, in his petition Hansen invites us to find by clear and convincing evidence that all of these factual findings were in error. We must decline this invitation because Hansen has made no such showing here. Nor can he. Rather, ample evidence supported each of these factual findings. Thus, it simply cannot be said that any of the state court factual findings that supported the denial of these unexhausted claims have been rebutted by clear and convincing evidence. Therefore, these factual findings must stand, and these factual findings defeat Hansen's unexhausted claims when those claims are considered on their merits.
(7) Hansen's Challenge to Appellate Counsel's Performance Fails.
Hansen has also challenged the effectiveness of his appellate counsel, alleging that appellate counsel failed to pursue some of the claims we have discussed, all of which we have found were wholly lacking in merit. This final ineffectiveness claim warrants only brief consideration since it is well-settled that "counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (finding that failure to pursue 'fruitless' claims 'may not later be challenged as unreasonable')." Holland v. Horn, 150 F. Supp. 2d 706, 770 (E.D. Pa. 2001), aff'd, 519 F.3d 107 (3d Cir. 2008). In this case, the state courts found that appellate counsel brought every claim which had been properly preserved for review on direct appeal, and further concluded that the other claims that Hansen wished to pursue on direct appeal were without merit.
We agree. Hansen's appellate counsel pursued the meritorious issues that could be raised on direct appeal. Furthermore, the complaints Hansen had regarding the performance of trial counsel were not cognizable on direct appeal and were in any event meritless. Therefore, appellate counsel cannot be faulted for failing to raise these procedurally inappropriate and meritless claims on direct appeal. Accordingly, this claim fails.
(8) Hansen Is Not Entitled to a Hearing in this Case.
Finally, Hansen urges us to conduct a further hearing in his case. This request, however, fundamentally misconstrues the scope of our review under § 2254. In this regard, we note that it is well-settled that "[t]he ability of a federal district court to hold an evidentiary hearing in habeas review is limited under [28 U.S.C. § 2254]." Rolan v. Vaughn 445 F.3d 671, 680 (3d. Cir. 2006). Thus, a district court should generally decline to hold an evidentiary hearing on a state prisoner habeas petition where the petitioner has had a full opportunity to develop a factual record in the course of state proceedings. Id. Instead, in such instances the district court should rely upon the factual record developed in the state proceedings since § 2254(e) expressly provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1).
Moreover, in those instances where a full record has not been developed by the petitioner in state criminal proceedings, we are also cautioned to conduct evidentiary hearings sparingly. The circumstances in which a hearing may be permitted under § 2254(e)(2) are defined narrowly. In fact, in this regard 28 U.S.C. § 2254(e)(2) only provides for an opportunity for a hearing, at the court's discretion, in the following, specifically enumerated situations:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-Rolan, 445 F.3d at 680, n.3.
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
In this case, a complete trial and post-conviction hearing record has been amassed. This record provides a full basis for assessing the state court rulings and the petitioner has not made a showing justifying an evidentiary on this habeas petition since he has failed to plead or prove any facts justifying a hearing under § 2254(e)(2). Therefore Hansen's request for a hearing on this petition should be denied.
In sum, notwithstanding the array of claims that he advances, Hansen is not the victim of an unfair trial or ineffective counsel, as he contends in this petition. Rather, his current situation is the result of the fatal choices he made in July of 2010, when he shot Melissa Barnes in the head, as he had previously threatened to do, after she came to the defense of a woman that Hansen assaulted at Barnes' property. Therefore, since Hansen has not provided grounds for setting aside this conviction, his petition for writ of habeas corpus should be denied and no certificate of appealability should issue in this case.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue.
The petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 15th day of July 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge