Opinion
Civil Action 21-CV-92
06-10-2024
JAMES EDWARD HUSOK, Petitioner, v. MARK CAPOZZA, Superintendent, SCI Fayette', THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA; and DISTRICT ATTORNEY OF ALLEGHENY COUNTY, PENNSYLVANIA, Respondents.
Re: ECF No. 1
William S. Stickman, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 1, be denied. It is further recommended that a certificate of appealability be denied.
II. REPORT
James Edward Husok (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Fayette (“SCI-Fayette”) in LaBelle, Pennsylvania.
Petitioner initiated this action by submitting a counseled federal habeas Petition, ECF No. 1, which was received by this Court on January 22, 2021. Petitioner's supporting brief was received on January 25, 2021. ECF No. 2.
In the Petition, Petitioner attacks his 2017 convictions in the Court of Common Pleas of Allegheny County, Pennsylvania, for Murder of the Third Degree, in violation of 18 Pa. C.S. A. § 2502(c), Possession Instruments of a Crime (Possession of Weapon), in violation of 18 Pa. C.S. A. § 907(b), and Tampering with Evidence, in violation of 18 Pa. C.S.A. § 4910(1). See Com, v. Husok, Docket No. CP-02-CR-12327-2015 (C.C.P. Allegheny Cnty.) (docket available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0012327-2015&dnh=B5MQmUwl46Z21Z0zouv7Cw%3D%3D (last visited June 10, 2024)). Petitioner currently is serving an aggregate sentence of 20-40 years of imprisonment. ECF No. 9-2 at 47-48.
A. Factual History and Procedural Background
The following is a recitation of relevant factual history from the trial court's opinion on direct appeal.
The evidence presented at trial established that in the early morning hours of September 19, 2015, the defendant James Husok shot and killed the victim Michael Welsh, the boyfriend of his estranged wife in Baker Alley in McKeesport, Allegheny County. Earlier in the evening of September 18, and into the morning hours of September 19, the victim and the defendant's estranged wife, Heather Guerra, were drinking at the Cherry Lane Bar in McKeesport. After leaving the bar around 1:45 a.m., they returned to the home of the victim's mother, Winnie Gricar, where they were residing together. At 4:49 a.m., Guerra called the defendant and asked him to pick her up at the Cherry Lane Bar. Guerra was crying and claimed that Michael Welsh had beaten her but spent most of the trip back to the defendant's home talking on her cell phone. The defendant and Guerra went to his residence at 323 28th Street Rear, where they had sex and fell asleep. Around 5:30 a.m., Winnie Gricar arrived at her residence and woke her son to ask if he knew where her cigarettes were. When he told her to ask Heather, he seemed surprised to learn that Heather was not there and walked around looking for her. The victim then tried to contact Heather. After repeated calls to Guerra's phone went unanswered he sent a series of text messages between 6:28 a.m. and 6:55 a.m., "Really?"; "You with James"; "You're fucking James right now huh?"; "omw"; "Really"; "Where are you I'm at James crib"; "knock knock".
The defendant's home at 323 28th Street Rear was equipped with a video security system, a series of cameras that recorded the area outside his home and some areas of 28th Street and Rockwood Street. Video from that security system from September 19, 2015 was admitted at trial. In that video from September 19, 2015, at approximately 6:35:56 a.m., the defendant can be seen across the street from his house. The defendant is shirtless and has a firearm in
a holster on his hip. He has a claw hammer, the head of the hammer in his hand with the handle of the hammer extending up' his inner forearm. He is standing between two buildings across from his home and remains there for ten minutes before he returns to his residence.
The defendant returns to his residence, only to reemerge again at 6:51:48 when he can be seen exiting the walkway of his home looking down the street. He still has the hammer and the firearm and he walks down the street out of the view of the cameras.
At 6:55 a.m. Lissa [Luginich] was in bed with her boyfriend Michael Needham when she heard a gunshot in the alley behind her home. She ran out to the alley and saw the victim's body on the ground. She called out to him to see if he would respond. When he didn't, she ran back to her home and called 911 at 6:58:35.
At 6:58 a.m., the defendant can be seen on his security camera running back to his residence from Rockwood Street still wearing the bolstered firearm and carrying the hammer. At 6:59:24 the defendant exits his residence and walks North on 28th Street while talking on his cell phone. The holster and firearm are gone from his hip and he no longer has the claw hammer. The video of the defendant on his cell phone is consistent with a 911 call that he placed at 6:59:28 reporting that he "had heard gunshots" a few blocks over from 28th Street and had gone to the scene to find the victim lying on the ground in the alley. He told the 911 dispatcher that he was in the alley and to let the police know that he was armed. Police arrived at the scene and the defendant was interviewed.
The defendant first denied any knowledge of the incident and told detectives that he heard a gunshot and then found the body of the victim. He later admitted that he shot the victim. He thought the victim was going to come down to fight, so he went outside and waited for him. He later walked a couple of blocks and saw the victim who was turning into the alley. The victim was walking away from him, talking to someone on his phone. He heard the victim say "kill them", so he yelled "what did you say". The victim turned toward him and he shot him because he thought he was reaching for something. He then ran back to his home and placed that weapon on a shelf in his room and left the hammer in the kitchen. He grabbed a different firearm and returned to the scene, calling 911 on the way.ECF No. 9-3 at 26-28.
The Pennsylvania Superior Court summarized additional relevant factual and procedural history as follows in its opinion relative to Petitioner's appeal from the denial of post-conviction relief pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. § 9541 et seq.
On the night of September 18, 2015, and into the early morning hours of September 19, 2015, Heather Guerra (Guerra), Husok's estranged wife, was at a bar with her boyfriend, Michael Welsh (Welsh). Guerra and Welsh left around 1:45 a.m. and went back to his mother's home where the two were living. After returning, Guerra and Welsh got into a fight. Once Welsh fell asleep, Guerra called Husok to come and get her. Husok, who lived not far away, picked up Guerra and took her back to his home.
At about 5:30 a.m., Welsh woke up and discovered Guerra was gone. About an hour later, Welsh began to call and text Guerra. Suspecting that she was with Husok, Welsh texted her that he was on his way to Husok's home. When Guerra told this to Husok, he armed himself with a handgun and hammer and went outside to look for Welsh. A little before 7:00 a.m., Husok came upon Welsh in a nearby alley and shot him in the chest. Husok then ran back to his home and discarded the handgun and hammer. After grabbing a different handgun, he returned to the alley and called 911. Husok told the dispatcher that he went outside after hearing a gunshot and found Welsh's body in the alley. The police soon arrived and took Husok into custody for questioning. Welsh, meanwhile, was pronounced dead at the scene.
After initially denying involvement, Husok admitted that he shot Welsh. According to his statement, Welsh was in the alley talking on his cell phone and said “I'm going to kill them.” Husok then yelled out, “What the f- did you say?” Welsh turned around and began walking toward Husok. Welsh then made a move to his left side. Afraid that Welsh was reaching for a gun, Husok fired one shot into his chest. The police, however, did not find a gun near Welsh. Instead, the police found only a cell phone in Welsh's left back pocket. Additionally, cell phone records showed that Welsh was not talking to anyone just before being shot by Husok.
On October 3, 2016, Husok proceeded to a jury trial on charges of criminal homicide, possessing instruments of crime (PIC) and tampering with evidence. At trial, defense counsel pursued a selfdefense theory. As part of this theory, counsel promised the jury that he would call Guerra as a witness:
Now, ladies and gentlemen, what [the Commonwealth] did not tell you was this, leading up to this, Heather Guerra, the wife of my client who,
they were separated, but amicably separated, was getting beaten by Michael Welsh. She had to remove herself from the home that they were staying in. She had nowhere to go. So what does she do? She calls her husband, because they have an agreement with one another that they will remain friends, they will remain close, because the relationship just came to an end, they couldn't work it out anymore, but they still loved one another.
She calls him at four in the morning waking [Husok] out of his sleep. He is minding his own business.
[Husok] and [Guerra] make the wise decision he is not going to pick her up at the house. [Husok] is not looking for trouble. He picks her up down the street, a couple doors down, at the same bar she left at.
And she'll come here and tell you that. And you will see the marks on her arms of her getting thrown around, thrown into walls. You'll see those marks. And the prosecutor didn't tell you about those marks.
And the police, they didn't want to hear it, either. But our private investigator took the pictures a day after this happened. And she will come here and testify to all of this.N.T., Vol. 1,10/3/16, at 36-38.
In its case in chief, the Commonwealth presented evidence that Husok tested positive for gunshot residue (GSR). Despite committing to a self-defense theory in his opening, defense counsel's cross-examination implied that Husok did not shoot Welsh.
Q. Sir, you said that you asked [Husok] what his occupation was; is that correct?
A. That's correct.
Q. Did he tell you that he's an industrial painter; is that correct?
A. Yes, he did.
Q. And did he tell you that he works with lead and other chemicals?
A. No, just that he was a painter.
Q. Did you inquire?
A. No.
Q. Okay. And you said that certain occupational tasks could cause one to have these elements present on their hands; correct?
A. Some of them, yes.N.T., Vol. 1, 10/4/16, at 257-58.
After resting its case, the Commonwealth argued that defense counsel had forfeited his self-defense theory. Rather than preventing Husok from presenting any evidence in his case, the trial court deferred ruling on the issue until the end of the case. Despite the trial court's ruling, defense counsel decided not to call Guerra, even though she was subpoenaed and available to testify. Instead, defense counsel called his investigator and showed the jury the photographs that he took of Guerra's bruising on her arms, legs and chest. Ultimately, even though Husok did not testify, the trial court found that enough evidence was presented for the jury to be given a selfdefense instruction. Because Guerra never testified, the trial court also instructed the jury to disregard what defense counsel said during his opening statement about what she would testify to.
Husok was found guilty of third-degree murder and sentenced to 20 to 40 years' imprisonment.Com, v. Husok, No. 129 WDA 2020, 2020 WL 5960064 (Pa. Super. Ct. Oct. 8, 2020). See also Docket, Husok, 129 WDA 2020 (available at https://ujsportal.pacourts.us/Report/PacDocketShee t?docketNumber=129%20WDA%202020&dnh=p6fHZ%2FqZYKaCGSOcdVGeHw%3D%3D (last visited June 10, 2024)).
Petitioner was sentenced on January 5, 2017. ECF No. 9-2 at 47-48. Petitioner filed a motion to reconsider his sentence on January 17, 2017. ECF No. 9-3 at 1. This was denied the same day by the trial court without opinion. Id. at 7. Petitioner timely filed a Notice of Appeal on January 31, 2017. Id. at 8. Petitioner's claims on direct appeal ultimately were limited to his sentence, id. at 132, which the Pennsylvania Superior Court affirmed on September 7, 2018. Com. v. Husok, No. 201 WDA 2017, 2018 WL 4272442 at *2-3 (Pa. Super Ct. Sept. 7, 2018). The record does not indicate that Petitioner sought leave to appeal from the Pennsylvania Supreme Court, or certiorari from the United States Supreme Court. Therefore, his conviction and sentence became final on October 9, 2018 - the first day that was not a Saturday, Sunday, or legal holiday after the period of time for Petitioner to seek leave to appeal from the Pennsylvania Supreme Court. Pa.R.A.P. 1113.
Petitioner's current counsel filed a PCRA petition on August 23, 2019. ECF No. 10-1 at 1. Petitioner raised the following claims.
5. Defendant was denied his constitutionally guaranteed right to effective representation after trial counsel promised the jury in his opening statement that they would hear from Heather Guerra counsel failed to call her to testify on behalf of Defendant. Counsel had no reasonable basis for failing to call Heather Guerra to testify after promising the jury in his opening that she would testify.
and
11. At a minimum, trial counsel was ineffective for failing to call Heather Guerra at sentencing to mitigate the sentence. Failing to present mitigating evidence at sentencing constitutes ineffective assistance of counsel.Id. at 2 and 7. While the PCRA petition was not a model of clarity, as best as the undersigned can tell, the prejudice that Petitioner asserted that he suffered was (1) unspecified prejudice inherent to failing to call Guerra after stating in his opening that he would do so, id. at 6; (2) prejudice arising from the trial court's instruction to the jury to disregard counsel's statement that he would call Guerra, id.; (3) prejudice from the prosecution's reference in closing arguments to Petitioner failing to call Guerra, id. at 6-7; and (4) prejudice arising from the counsel's failure to call Guerra to testify during Petitioner's sentencing hearing, which Petitioner asserted would have resulted in a mitigated sentence, id. at 7. In a footnote, Petitioner further argued:
At the preliminary hearing, Detective Langdan testified that Heather Guerra told the decedent that she believed she was pregnant and that the decedent thought she was pregnant with the Defendant's baby. That was the reason behind the decedent beating up Heather on the day in question. (Preliminary Hearing Testimony, PHT, 23-24). Had Heather Guerra taken the witness stand at trial or sentencing, such testimony would have had a powerful impact, which would have led to a lesser conviction or sentence.Id. at 6.
Petitioner included a virtually identical footnote in his Brief in Support of Habeas Petition. ECF No. 2 at 8 n. 1. A review of the transcript of Petitioner's preliminary hearing reveals that Detective Langdon testified that he recalled that, during her interrogation on the day of shooting, Guerra “stated Michael [Welsh] was getting out of hand and she had to leave the house. He was upset. I believe she (sic) was upset, as I recall, because she told Michael that she's possibly pregnant.” Prelim. Hr'g Tr. dated Oct. 2, 2015, at 23-24. However this Court cannot find any discussion in the preliminary hearing transcript of whether Petitioner was, or believed that he was, responsible for Guerra's possible pregnancy. It also is unclear to what “lesser conviction” Petitioner referred in the footnote, or the asserted basis for the same. To be sure, “voluntary manslaughter” is not mentioned in the PCRA petition, nor does Petitioner cite to the applicable statute - 18 Pa. C.S.A § 2503. It also is noteworthy that voluntary manslaughter exists under Pennsylvania law both (a) for the killing of an individual if at the time of the killing, the killer is acting under a sudden and intense passion resulting from serious provocation by the victim; or (b) for the intentional killing of another if at the time of the killing the killer unreasonably believes the circumstances to be such that, if they existed, would justify the killing. Id. § 2503(a)(1) and (b). In addition to being instructed on self-defense, Trial Tr. dated Oct. 6-7,2016, at 773-78, the jury at Petitioner's trial also was instructed on both of these forms of voluntary manslaughter. Id. at 768-70 (serious provocation); id. at 770-73 (unreasonable belief of justification). It simply is unclear from the PCRA petition which “lesser conviction” Petitioner, at the time, meant for the PCRA trial court to consider.
Attached to Petitioner's PCRA petition was an affidavit from Guerra herself, in which she averred, in pertinent part:
2. I would have testified that in the early morning hours of September 19, 2015,1 remember being beaten by Michael Welsh at his mother's boyfriend's house, and after the beating I called James Husok to pick me up. Mr. Husok picked me up in front of the Cherry Lane bar and we proceeded to his house. We were at James' house about 2 hours when we started to get threatening phone calls and text messages from Michael Welsh. James Husok and I were worried that Welsh would come over to James' house and hurt us, so James went outside to see if we were safe. An altercation occurred in which Michael Welsh was killed. I did not witness the incident.
3. A short time after the incident, I was questioned by the police and/or the DA. I repeatedly asked for a lawyer before and during the questioning. The police never read me my rights, nor did they photograph the bruises I received from Michael Welsh on the day of the killing. Finally, after a day and a half of questioning, they let me go but not before they took my DNA and did a gunshot residue test.Id. at 9.
On October 3, 2019, the PCRA trial court issued notice of its intent to dismiss the PCRA petition without a hearing. ECF No. 10-2 at 1. Petitioner responded in opposition on October 23, 2019. Id. at 3. In his opposition brief, Petitioner reiterated that he suffered prejudice “by defense counsel's unfulfilled promise because the prosecutor commented on defense counsel's unfulfilled promise and the Court gave an adverse jury instruction which undermined defense counsel's credibility and the defense.” Id. at 4. Petitioner further asserted that he was prejudiced at sentencing because:
[t]he affidavit [of Guerra] attached to the PCRA petition shows that the decedent threatened her and the Defendant prior to the incident in question and they were justifiably concerned for their safety. Also, Guerra would have confirmed that she was injured by the decedent prior to the shooting and had bruises on her body. (See Defendant's Exhibit A, PCRA petition). The decedent's assault on Guerra prior to the shooting clearly affected Defendant's state of mind. Indeed, the above-mentioned evidence would have constituted mitigating evidence that would have reduced the sentence had it been introduced at sentencing.Id. The trial court denied the PCRA petition on December 30, 2019. Id. at 8.
Petitioner timely appealed to the Superior Court on January 24, 2020. Id. at 9. The trial court issued its opinion on February 12, 2020, in which it parsed the claims raised by Petitioner as follows.
1. Trial counsel was ineffective for promising to call a critical witness in his opening and then reneging on said promise. There was no reason to promise such testimony in counsel's opening if there was a chance that she was not going to be called to testify. In fact,
there was no change of circumstances that justified counsel's actions not to call Guerra to testify at trial. The defense was prejudiced by defense counsel's unfulfilled promise and the court gave an adverse jury instruction which undermined defense counsel's credibility and the defense.
2. Counsel was ineffective for failing to call Guerra at sentencing. The affidavit attached to the PCRA petition shows that the decedent threatened her and the petitioner prior to the incident in question and they were justifiably concerned for their safety. Also, Guerra would have confirmed that she was injured by the decedent prior to the shooting and had bruises on her body. The decedent's assault on Guerra prior to the shooting clearly affected the petitioner's state of mind. Indeed, the above-mentioned evidence would have constituted mitigating evidence that would have reduced the the [szc] sentence had it been introduced at sentencing.ECF No. 10-3 at 21-22. This seems to be a faithful - if not word-for-word - recitation of the matters raised by Petitioner in his Concise Statement of Errors Complained of on Appeal. Id. at 18.
Petitioner raised the following issues in his PCRA appeal brief before the Superior Court:
(A) The lower court erred by dismissing Appellant's PCRA petition without a hearing; and, (B) trial counsel was ineffective for promising to call a critical witness, Heather Guerra, in his opening statement and then reneging on said promise at the trial.Id. at 5. It is difficult to determine from the appeal brief what the scope of Petitioner's prejudice argument was with respect to the ineffectiveness of counsel claim. However, the brief explicitly stated the following:
Moreover, Guerra's proposed testimony to being beaten and having been bruised by the decedent-just prior to the shooting incident In question (see Appellant's PCRA petition, Exhibit A)-would have provided a basis for justification or, at a minimum, a verdict of voluntary manslaughter. Without such testimony, the Commonwealth's suggestion that Guerra was avoiding appearing in court-prevailed. (T.T., 101-102, 542). In addition, the Commonwealth vigorously contested the fact that Guerra was bruised by decedent's actions on the day in question. (T.T. 532). Because defense counsel did not call Guerra, the defense failed to provide a causal link between Guerra's bruises and decedent's
actions on the day in question. Also, defense counsel was unsuccessful on cross-examination of the investigating detective in establishing the decedent's abuse of Guerra[.]Id. at 13-14. Petitioner also included a footnote regarding Defective Langdon's testimony at the preliminary hearing that was almost identical to the one in his PCRA petition, the substance of which was discussed above. Id. at 15 n. 1.
On October 8, 2020, the Superior Court issued a decision affirming the PCRA trial court. Husok, 2020 WL 5960064, at *1. The issue addressed on appeal was whether trial counsel was ineffective for failing to call Guerra as a witness. Id. at *2. The Superior Court found that, while the record indicated that trial counsel had a strategy for not calling Guerra - he., in response to the trial court's deferred ruling on whether Petitioner had waived self-defense for his questions to the prosecution's gunshot residue expert on cross examination - a genuine issue of material fact existed as to whether or not that strategy was reasonable. Id. at *4-5.
The Superior Court found that Petitioner had suffered at least some prejudice from counsel's failure to call Guerra after promising to do so. Id. at *5. However, it determined that that prejudice was insufficient to warrant relief, in light of the record evidence. Id. at *6-7. It is noteworthy that the Superior Court's analysis explicitly excluded any argument that Guerra's testimony would have resulted in a conviction of voluntary manslaughter as waived because it was not raised in the PCRA petition, and not developed on appeal. Id. at n.8 (citing Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”)).
Petitioner applied for reargument before the Superior Court, ECF No. 10-4 at 27, but the same was denied on December 17, 2020. Id. at 58. There is no indication on the record that Petitioner sought leave to appeal from the Pennsylvania Supreme Court.
B. Federal Habeas Petition
Petitioner initiated this counseled federal habeas action January 22, 2021, as stated above. In the pending Petition, ECF No. 1, Petitioner asserts the following ground for relief.
Ground One: Petitioner was denied his federal constitutional right to effective assistance of counsel after trial counsel promised the jury in his opening statement that they would hear from Heather Guerra counsel failed to call her to testify on behalf of Appellant.
(a) Supporting facts[:] Petitioner was denied his constitutionally guaranteed right to effective representation after trial counsel promised the jury in his opening statement that they would hear from Heather Guerra and then failed to call her to testify on behalf of Appellant at trial. (T.T., 37-38). Defense counsel stated on the record that this witness testimony “will be needed” and then unreasonably failed to call her. (T.T., 356).
Counsel had no reasonable basis for failing to call Heather Guerra to testify after promising the jury in his opening that she would testify. Moreover, the Appellant was prejudiced by counsel's failure. Compounding the prejudice, before defense counsel's closing argument, the trial court instructed the jury to disregard defense counsel's opening statement to the effect that he would call Heather Guerra as a witness at trial. (T.T., 663). Finally, the Petitioner was further prejudiced when the prosecutor highlighted defense counsel's broken promise in his closing. (T.T., 727).Id. at 5. Petitioner submitted a supporting brief on January 25, 2021. ECF No. 2.
Respondents answered the Petition on March 23, 2021. ECF No. 8. Petitioner failed to submit a traverse. LCvR 2254.E.2.
The Petition is ripe for consideration.
C. Procedural Issues
Before this Court addresses the merits of Petitioner's federal habeas claims, it will address whether the Petition fulfills the applicable procedural requirements, as set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
1. The AEDPA statute of limitations
The first consideration in reviewing a federal habeas corpus petition is whether the petition was timely filed within the applicable statute of limitations. In 1996, Congress enacted the AEDPA, which generally established a strict one-year statute of limitations for the filing habeas petitions pursuant to 28 U.S.C. § 2254. The applicable portion of the statute is as follows:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The United States Court of Appeals for the Third Circuit has held that the statute of limitations set out in Section 2244(d) must be applied on a claim-by-claim basis. Fielder v. Varner, 379 F.3d 113, 122 (3d Cir. 2004), cert, denied sub nom. Fielder v. Lavan, 543 U.S. 1067 (2005).
Thus, in analyzing whether a petition for writ habeas corpus has been timely filed under the one-year limitations period, a federal court must undertake a three-part inquiry. First, the court must determine the “trigger” date for the individual claims raised in the petition. Typically, this is the date that the petitioner's direct review concluded and the judgment became “final” for purposes of triggering the one-year period under Section 2244(d)(1)(A). Second, the court must determine whether any “properly filed” applications for post-conviction or collateral relief were pending during the limitations period that would toll the statute pursuant to Section 2244(d)(2). Third, the court must determine whether any of the other statutory exceptions or equitable tolling should be applied on the facts presented. See, e.g., Munchinski v. Wilson, 807 F.Supp.2d 242, 263 (W.D. Pa. 2011), affd, 694 F.3d 308 (3d Cir. 2012) (citing Nara v. Frank, No 99-5, 2004 WL 825858, at *3 (W.D. Pa., Mar. 10, 2004)).
In the instant case, Respondents concede that the Petition is timely filed. ECF No. 8 at 13. A review of the record, as set forth above, supports this conclusion. Therefore, Petitioner's claim is timely.
2. Exhaustion and procedural default
The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. In order to exhaust a claim, “a petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 260-61 (3d Cir. 1999).
A federal court may be precluded from reviewing habeas claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S. 152,162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996) (abrogated on other grounds by Beard v. Kindler, 558 U.S. 53, 60-61 (2009)); Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996). This doctrine is applicable where, inter alia, a petitioner's claims are “deemed exhausted because of a state procedural bar[.]” Lines v. Larkin, 208 F.3d 153, 160 (3d Cir. 2000). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based upon the “independent and adequate state law grounds” doctrine, which dictates that federal courts will not review a state court decision involving a question of federal law if the state court decision is based on state law that is “independent” of the federal question and “adequate” to support the judgment. Coleman, 501 U.S. at 750. The PCRA's one-year statute of limitations has been held to be an “independent and adequate” state law ground for denying habeas relief. Whitney v. Hom, 280 F.3d 240, 251 (3d Cir. 2002).
Petitioner asserts that he exhausted his sole ground for relief before the Superior Court. ECF No. 1 at 5. Respondents agree. ECF No. 8 at 16. But, the parties' briefing does not address the Superior Court's refusal to consider Petitioner's argument that he was prejudiced because Guerra's testimony would have led to a conviction for a lesser charge of voluntary manslaughter.
The Superior Court's reasoning for its refusal was that Petitioner had waived that argument under Pa.R.A.P. 302(a) because he failed to raise it in his PCRA petition, as well as because Petitioner had failed to develop it in his appeal brief. Husok, 2020 WL 5960064, at *7 n.8. See also Com, v. Prioleau, No. 2901 EDA 2015,2018 WL 494436, at *6 (Pa. Super. Ct. Jan. 22,2018) (“Lastly, we note that, in a footnote, Prioleau comments upon the impropriety of relying upon ‘a defendant's silence at sentencing to infer a lack of remorse and justify a harsher sentence, as Judge Anhalt did, here.' Piroleau's Brief at 23 n 3. Because this footnote is the only place wherein this argument was presented, this claim is waived. See Pa.R.A.P. 302(a).”).
The requirement under Pa.R.A.P 302(a) that “[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal” has been held to be an independent and adequate state law to support procedural default. McLaughlin v. D.A. Philadelphia, No. 21-2775, 2023 WL 7001836, at *3-4 (3d Cir. Oct. 24, 2023). The same is true of Pa.R.A.P. 2119(a), which requires that a litigant adequately brief his claims. Ryan v. Adams, No. 19-CV-0542, 2021 WL 3272033, at *10 (W.D. Pa. June 3,2021), report and recommendation adopted, 2021 WL 3269649 (W.D. Pa. July 30, 2021). But see Xavier v. Sup't Albion SCI, 689 Fed.Appx. 686, 688-90 (3d Cir. 2017) (recognizing that Pa.R.A.P. 2119 is an independent and adequate state law basis for default, but setting aside default where the petitioner substantially complied therewith.).
It is not appropriate for this Court to second-guess the correctness of a state court's application of its own rules. Brian R. Means, Federal Habeas Manual § 9B: 12, Westlaw (database updated May, 2023). But in the alternative, and out of an abundance of caution, the undersigned will assume, without deciding, that Petitioner's prejudice argument with respect to voluntary manslaughter has been exhausted, and will address the merits of the entirety of Petitioner's arguments in support of relief, which this Court is authorized to do by statute. 28 U.S.C. § 2254(b)(3).
D. Analysis of the Merits of Petitioner's Claim
1. Standard of review
Where the state court has reviewed a federal issue presented to them and disposed of the issue on the merits, and that issue is also raised in a federal habeas petition, the AEDPA provides the applicable deferential standards by which the federal habeas court is to review the state court's disposition of that issue. See 28 U.S.C. § 2254(d) and (e).
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court expounded upon the standard found in 28 U.S.C. § 2254(d). The Supreme Court explained that Congress intended that habeas relief for errors of law may only be granted in two situations: 1) where the state court decision was “contrary to . . . clearly established Federal law as determined by the Supreme Court of the United States” or 2) where that state court decision “involved an unreasonable application off] clearly established Federal law as determined by the Supreme Court of the United States.” Id. at 404-05 (emphasis deleted).
A state court decision can be contrary to clearly established federal law in one of two ways. First, the state courts could apply a wrong rule of law that is different from the rule of law required by the United States Supreme Court. Second, the state courts can apply the correct rule of law but reach an outcome that is different from a case decided by the United States Supreme Court where the facts are indistinguishable between the state court case and the United States Supreme Court case. Lambert v. Blackwell, 387 F.3d 210,234 (3d Cir 2004) (quoting Williams, 529 U.S. at 40506).
In addition, the United States Court of Appeals for the Third Circuit has explained that “Circuit precedent cannot create or refine clearly established Supreme Court law, and lower federal courts ‘may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.'” Dennis v. Sec., Pa. Dep't of Corrs., 834 F.3d 263, 368 (3d Cir. 2016) (quoting Marshall v, Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). As the Supreme Court has further explained: “[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.” White v. Woodall, 572 U.S. 415, 428 (2014).
The AEDPA also permits federal habeas relief where the state court's adjudication of the claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Specific factual determinations by the state court that are subsidiary to the ultimate decision to grant post-conviction relief are subject to the presumption of correctness, and must be overcome by a petitioner by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). See also Lambert, 387 F.3d at 235-236. The Third Circuit has declined to adopt a “rigid approach to habeas review of state fact-finding.” Id., at 236 n. 19. If a state trial court and appellate court make conflicting factual findings, the habeas court must defer to the findings of the higher court - regardless of the propriety of those findings under state law - unless they are rebutted by clear and convincing evidence. See Rolan v. Vaughn, 445 F.3d 671, 680 (3d Cir. 2006).
It is a habeas petitioner's burden to show that the state court's decision was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. Ross v. Atty. Gen, of State of Pennsylvania, No. 07-97, 2008 WL 203361, at *5 (W.D. Pa. Jan. 23, 2008). This burden means that Petitioner must point to specific caselaw decided by the United States Supreme Court and show how the state court decision was contrary to or an unreasonable application of such United States Supreme Court decisions. Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th Cir. 2000) (“To obtain habeas relief, Mr. Owsley must therefore be able to point to a Supreme Court precedent that he thinks the Missouri state courts acted contrary to or unreasonably applied. We find that he has not met this burden in this appeal. Mr. Owsley's claims must be rejected because he cannot provide us with any Supreme Court opinion justifying his position.”); West v. Foster, No. 07-CV-00021, 2010 WL 3636164, at *10 n.20 (D. Nev. Sept. 9, 2010) (“petitioner's burden under the AEDPA is to demonstrate that the decision of the Supreme Court of Nevada rejecting her claim ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' 28 U.S.C. § 2254(d)(1) (emphasis added). Petitioner has not even begun to shoulder this burden with citation to apposite United States Supreme Court authority.”), affd, 454 Fed.Appx. 630 (9th Cir. 2011).
To the extent that a claim was fairly presented to the state courts but was not addressed on the merits, de novo review applies. Cone v. Bell, 556 U.S. 449, 472 (2009). The same review applies to a claim that resulted from a state court decision that was contrary to or an unreasonable application of United States Supreme Court precedent and/or an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1) and (2).
Here, it appears that both parties agree that AEDPA deference applies. ECF No. 2 at 2; ECF No. 8 at 24. Accordingly, this Court will address Petitioner's claim through the lens of AEDPA deference to the extent that it was adjudicated on the merits by the Superior Court. Additionally, for the reasons stated above, and out of an abundance of caution, this Court also alternatively will apply de novo review to Petitioner's ineffective assistance of counsel claim including his additional prejudice argument that he would have been convicted of voluntary manslaughter had Guerra testified.
2. The right to effective assistance of counsel
Petitioner's sole ground for relief is that his trial counsel was ineffective for failing to call Guerra as a witness after having promised to do so in his opening statement. ECF No. 1 at 5. ECF No. 2 at 2. As Petitioner correctly asserts in his brief, the failure of counsel to produce evidence promised to a jury can support a claim of ineffective assistance of counsel. Elias v. Sup't Fayette SCI, 774 Fed.Appx. 745, 751 (3d Cir. 2019) (citing McAleese v. Mazurkiewicz, 1 F.3d 159, 166 (3d Cir. 1993)). See also ECF No. 2 at 4. Petitioner goes on to cite multiple cases from the federal courts of appeals that further support his position. ECF No. 2 at 2-6.
That said, Petitioner has not identified, and this Court has not located in its independent research, an opinion issued by the United States Supreme Court that specifically addresses the issue of an attorney's failure to present an anticipated witness identified in an opening statement. Accordingly, the “clearly established Federal law” at issue in this habeas proceeding is the effective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The Sixth Amendment right to counsel exists “in order to protect the fundamental right to a fair trial.” Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland, 466 U.S. at 684). The Supreme Court has formulated a two-part test for determining whether counsel rendered constitutionally ineffective assistance: (1) counsel's performance was unreasonable; and (2) counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To determine whether counsel performed below the level expected from a reasonably competent attorney, it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Id. at 690.
The first prong of the Strickland test requires a petitioner to establish that his or her attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the “counsel” guaranteed by the Sixth Amendment. Id., at 688. A court 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 totality of the circumstances, the challenged action “might be considered sound trial strategy.” Id. at 689. The question is not whether the defense was free from errors of judgment, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id. Instead, Petitioner is required to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2001) (quoting Strickland, 466 U.S. at 687).
The second prong of Strickland requires a petitioner to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.
In considering a claim of ineffectiveness of counsel, Pennsylvania uses a three-part effectiveness test.
To plead and prove ineffective assistance of counsel a petitioner must establish: “(1) that the underlying issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) actual prejudice resulted from counsel's act or failure to act.” Commonwealth v. Stewart, 84 A.3d 701, 706 (Pa. Super. 2013) (en banc). The failure to meet any of these aspects of the ineffectiveness test results in the claim failing. Id. Future v. Ferguson, No. 16-2346, 2022 WL 2307095, at *8 (M.D. Pa. June 27, 2022), certificate of appealability denied sub nom. Future v. Sup't Benner Twp. SCI, No. 22-2419, 2022 WL 18536146, at *1 (3d Cir. Dec. 6, 2022). The United States Court of Appeals for the Third Circuit has found this test not to be contrary to Strickland. Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).
Here, the Superior Court applied Pennsylvania's three-part test to Petitioner's claim of ineffective assistance of counsel in his PCRA appeal. Husok, 2020 WL 5960064, at *3. Because the prosecution did not dispute that Petitioner's claim had arguable merit, id., the Superior Court's application of the Pennsylvania standard focused entirely on the second two prongs - whether counsel's actions had a reasonable basis, and whether Petitioner was prejudiced by them. Id., at *4-8. These factors are virtually identical to the Strickland test. Accordingly, the Superior Court's analysis was not contrary to Strickland.
a. The Superior Court's finding of deficient performance was not an unreasonable application of the law, or an unreasonable determination of facts.
Petitioner argues that counsel had no reasonable basis for not calling Guerra after promising the jury that he would do so. ECF No. 2 at 2. Petitioner does not provide a great detail of argument as to why the decision was unreasonable, relying instead on the content of Guerra's affidavit, the relevant potion of which is recited above, as being self-evident. Id. at 3.
Respondents hint in their Answer, without committing, that Petitioner's trial counsel strategically chose not to call Guerra in order to deny the prosecution the opportunity to cross examine her about her prior statements to the police which allegedly were damaging to Petitioner's defense, thereby “playing” the prosecution. ECF No. 8 at 19 (citing Trial Tr. dated Oct. 6-7,2016, at 572). But this argument was soundly rejected by the Superior Court in its PCRA opinion - both as failing to “reveal a reasonable strategy for promising to call Guerra and then reneging on that promise[,]” and for relying on alleged damaging statements to the police that were not in the record. Husok, 2020 WL 5960064, at *6. The Superior Court's analysis of this argument is as follows.
The Commonwealth suggests an alternative strategy for why defense counsel did not call Guerra. After the defense rested, the
Commonwealth intended to call Guerra as a rebuttal witness. While explaining that Guerra could not testify about how she got the bruises, the trial court implied that defense counsel promised to call Guerra with no intention of ever calling her.
THE COURT: What we have in front of them is a rebuttal of the testimony [the investigator], whose testimony was on Monday after the incident, or Tuesday, he went over and took pictures of [Guerra], and that these were the photographs. That was the testimony.
[COMMONWEALTH]: Uh-huh.
THE COURT: That's it.
[COMMONWEALTH]: Well, I'm entitled to explore through rebuttal witnesses how [Guerra] got [the bruises]. The witness was clearly called-or the photographs were clearly introduced-
THE COURT: What happened was [defense counsel] played you. He assured you he was going to call her, and he didn't. That's what he did. Now, you can call her on rebuttal. But it can only be related to the photographs.
[Trial Tr. dated Oct. 6-7, 2016] at 572 (emphasis added). The Commonwealth believes this exchange shows that defense counsel had a reasonable basis for not calling Guerra, since he was able to admit the photographs of her bruising but avoided her from being cross-examined about her prior statements to the police after the shooting. See Commonwealth's Brief at 15.
To the extent that Guerra gave any statements to the police damaging to Husok's defense, they are not in the record and we will not speculate about their substance. Moreover, the above exchange does not reveal a reasonable strategy for promising to call Guerra and then reneging on that promise. The trial court's comment that defense counsel “played” the Commonwealth suggests that counsel promised to call Guerra to forestall the Commonwealth from having her testify in its own case in chief. Whether this was defense counsel's strategy is not clear on the record, nor would we infer that counsel intended such a strategy.Id. at *5-6.
As with the Superior Court, even if the alleged statements made by Guerra and referenced by Respondents do exist, this Court may not consider them at this stage. This Court's analysis under 28 U.S.C. §§ 2254(d)(1) and (d)(2) of a claim that was addressed on the merits is limited to the state court record. 28 U.S.C § 2254(d)(2) (inquiry into whether a state court decision on the merits was based on an unreasonable determination of the facts is made “in light of the evidence presented in the State court proceeding.”). See also Cullen v. Pinholster, 563 U.S. 170,181 (2011) (“We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”). Id. at 185 n.7 (“The additional clarity of § 2254(d)(2) on this point, however, does not detract from our view that § 2254(d)(1) also is plainly limited to the state-court record.”) (emphasis added). Id. at 206 (Breyer, J., concurring in part and dissenting in part) (“There is no role in (d) analysis for a habeas petitioner to introduce evidence that was not first presented to the state courts.”). Grant v. Lockett, 709 F.3d 224, 231 (3d Cir. 2013) (“In addition, review of a claim under § 2254(d)(2) is specifically limited to ‘evidence presented in the State court proceeding.' 28 U.S.C. § 2254(d)(2). We have recently held that, as a general rule, ‘district courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d).'”), rejected on other grounds by Dennis, 834 F.3d at 292; Fears v. Bagley, 462 Fed.Appx. 565, 568 (6th Cir. 2012) (Federal courts must rely “on only the record that was before the state court in overcoming AEDPA's deference requirements.”) (citing Pinholster, 131 S.Ct. at 1400). See also Federal Habeas Manual § 3.64. But see Fooks v, Sup't Smithfield SCI, 96 F.4th 595, 597-98 (3d Cir. 2024) (ordering a district court to hold a hearing on a claim of ineffective assistance of counsel, solely relative to advice as to a guilty plea and eligibility for parole, where the claim was denied by the state courts on the merits without a hearing, even though the state court's decision survived analysis under 28 U.S.C. § 2254(d)(1), and with no explicit holding as to § 2254(d)(2)).
The Third Circuit's holding in Fooks is premised on a construed exception to Pinholster, where “the state court has denied the petitioner a hearing because it thought that he would lose even if his allegations were presumed true.” Id. at 598. In Fooks, the Third Circuit relied, in large part, on the Seventh Circuit's opinion in Jordan v. Hepp, for the proposition that such an exception actually exists. Id. (citing Jordan, 831 F.3d 837, 849-50 (7th Cir. 2016)). But unlike Fooks, the Court of Appeals for the Seventh Circuit in Jordan explicitly held that the petitioner in that case overcame the burden imposed on him by § 2241(d)(1) and, as a result, it had to review the claim de novo. Jordan, 831 F.3d at 849 (“This procedure does not run afoul of Cullen v. Pinholster. 563 U.S. 170 (2011). In fPinholster], the Supreme Court held that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Id. at 181. We already have gone through the (d)(1) process, which led us to conclude that in the absence of evidence to support Warden Hepp's counterargument, the Wisconsin Court of Appeals unreasonably applied Strickland when it held that Bohach's performance did not fall below an objective standard of performance.”). See also id. at 850 (“Because the petitioner has alleged facts that would make Bohach's conduct objectively unreasonable under Strickland and the state's contrary ruling unreasonable under section 2254(d)(1), the district court must conduct a hearing under section 2254(e) to determine if these facts are true.”). See also Federal Habeas Manual § 3.64 (discussing Pinholster and Jordan). Thus, the case upon which Fooks primarily relies does not appear to support its holding. Fooks currently is the law within the Third Circuit. But this Court also is bound by the Supreme Court's holding in Pinholster, which appears to be at odds with certain reasoning in Fooks. In order to square Fooks with Pinholster (and, indeed, with Jordan as well), one must read into Fooks an implicit finding that the petitioner overcame his burden under the AEDPA's standard of review at § 2254(d)(2) by showing that the state court's decision “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Be that as it may, for the reasons set forth herein, the Superior Court's decision in the present case was neither contrary to, nor an unreasonable application of Strickland, nor did it stem from an unreasonable determination of the facts on the state court record. Thus, to the extent that it is proper to read Fooks in a way that it is not invalid under Pinholster, Fooks simply does not apply to this federal habeas case. Further, to the extent that Fooks supports de novo review - which this Court also applies for reasons independent of Fooks, as more thoroughly discussed below - Petitioner still has failed to establish prejudice under Strickland even if Guerra had presented at trial the testimony proffered in her affidavit. Cf. Schriro v. Landrigan, 550 U.S. 465,474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief).
The cases cited by Petitioner in his brief do not indicate that failing to call an anticipated witness identified in an opening statement is per se deficient performance. See, e.g., McAleese, 1 F.3d at 167 (“We do not intimate ... that a lawyer of normal competence could not promise to produce evidence in his opening statement and then change his mind during the course of the trial and not produce the promised evidence.”) (internal citation omitted). Indeed, “unexpected developments sometimes may warrant changes in previously announced trial strategies.” Ouber v. Guarino, 293 F.3d 19, 29 (1st Cir. 2002). But the Superior Court thoroughly explained why no such changed circumstances existed in Petitioner's trial.
We can discern from the record that defense counsel did not call Guerra in response to the Commonwealth's argument that he had forfeited his self-defense theory because of his cross-examination of the GSR expert. Just after his investigator testified, defense counsel told the trial court that he was not going to call any more witnesses “depending on the way that you rule on this motion that [the Commonwealth] raised[.]” N.T., Vol. II, 10/6/16, at 543. He made a similar statement after the trial court deferred its ruling and asked if there would be any more witnesses. Confirming there would not, defense counsel stated that he had “made some decisions based on what we talked about before lunch,” referring to the Commonwealth's motion. Id. at 568. Finally, defense counsel clarified his strategy one more time in response to criticism for promising to call Guerra but failing to do so.
THE COURT: I'm just saying, and I'm not faulting you for doing it. Don't question [the prosecutor] as to why he didn't do things. You know exactly why.
[DEFENSE COUNSEL]: But the whole thing that happened before lunch when [the prosecutor] raised these issues changed my entire strategy. I have to go with my strategy.Id. at 582.
While the trial court stated that it would reserve ruling on the selfdefense instruction until the end of trial, the trial court made clear that its ruling was not intended “to prevent any kind of testimony coming in[.]” N.T., Vol. II, 10/6/16, at 560. Observing that Husok's statement to the police and the photographs of Guerra potentially supported a self-defense theory, the trial court stated:
So I would rather just wait and see how that develops and address it as an issue in the jury instructions as opposed to preventing testimony that the defendant would seek to present in his own defense.Id. at 561.
Consequently, defense counsel's self-defense theory remained intact despite the Commonwealth's argument to preclude it and nothing precluded Guerra from being called as a witness.
***
Aside from the Commonwealth's motion, it does not appear that there was any unforeseen testimony that would warrant defense counsel to alter his trial strategy and decide not to call a witness who he had expressly promised in the opening statement would be called.
This being the case, based on the record before us, we conclude that the PCRA court erred in finding that there was no issue of material fact as to the reasonableness of defense counsel's decision not to call Guerra, especially given the obvious damage to his credibility that would result from him failing to call a witness that he represented as being essential to his case.Husok, 2020 WL 5960064, at *4 and 5.
Additionally, as discussed above, the Superior Court soundly rejected any argument that an alternative, reasonable strategy existed on the record before it for counsel otherwise not to call Guerra. Id. at *5-6. In light of the record, the Superior Court found that a “genuine issue of material fact” existed as to whether Petitioner's trial counsel's performance was deficient. Id. at *6. This Court interprets the Superior Court's conclusion to be a finding that counsel's performance was deficient. Based on the record before this Court, such a conclusion is not an unreasonable application of Strickland, nor was it an unreasonable determination of the facts in light of the state court record.
b. The Superior Court's finding of insufficient prejudice for relief was not an unreasonable application of the law, or an unreasonable determination of facts.
In his Petition, Petitioner asserts that he was prejudiced by counsel's failure to call Guerra for the following reasons:
Moreover, the Appellant was prejudiced by counsel's failure. Compounding the prejudice, before defense counsel's closing argument, the trial court instructed the jury to disregard defense counsel's opening statement to the effect that he would call Heather Guerra as a witness at trial. (T.T., 663). Finally, the Petitioner was further prejudiced when the prosecutor highlighted defense counsel's broken promise in his closing. (T.T., 727).ECF No. 1 at 5.
In his Brief, Petitioner's specific bases for prejudice are not clearly articulated. As best as this Court can tell, Petitioner asserts the following:
• Counsel's failure to call Guerra was inherently prejudicial. ECF No. 5 at 6.
• Guerra's proposed testimony would have correlated Petitioner's statement provided topolice. Id.
• Guerra proposed testimony of having been beaten and bruised by Welsh would have “provided a basis for justification or, at a minimum, a verdict of voluntary manslaughter.” Id. at 6 and 7. This argument also includes a footnote indicating that Detective Langdon allegedly testified at Petitioner's preliminary hearing that Guerra told Welsh that she was pregnant with Petitioner's baby which, as discussed above, is not supported by the testimony cited by Petitioner. Id. at 8 and n. 1.
• Guerra's lack of testimony made it appear that she was avoiding appearing in Court. Id. at 6.
• Without Guerra's testimony, counsel was unable to provide a causal link between her bruises and Welsh's actions, and counsel was otherwise unsuccessful in establishing such a link during cross-examination of the investigating detective. Id. at 6-7.
• Petitioner was further prejudiced when the prosecution refenced in closing arguments Portioner's failure to fulfill his promise to have Guerra testify. Id. at 8.
In their Answer, Respondents argue that “it strains credulity to believe that the jury would have found petitioner guilty of a lesser offense, much less that that justification existed because of the testimony of Heather Guerra, who of course would have been subject to cross-examination on statements inconsistent with petitioner's theory of the case.” ECF No. 8 at 20. Respondents focus on Guerra's affidavit, and assert that nothing therein would have led to a probability of a different outcome in light of the other evidence presented at trial. Specifically:
[P]etitioner carefully armed himself with two deadly weapons and then set out to and killed the unarmed victim. After doing so, petitioner kicked the victim in the head to make sure he was deceased and then calmly set about to manipulate the evidence by discarding the murder weapon, re-arming him with a different weapon to suit his defense narrative, and making a fictitious 911 call. All of this - along with his subsequent statement about knowing that he was going away for a long time - show his clear consciousness of guilt. The evidence overwhelmingly established that petitioner clearly acted maliciously out of a desire to kill the victim and not out of any legitimate fear for his own safety or any other person. Petitioner then attempted to mislead authorities and conceal his guilt in a callous and methodical manner.Id. at 20-21.
In its opinion affirming the denial of relief under the PCRA, the Superior Court initially acknowledged that Petitioner suffered “obvious damage to his credibility” due his counsel's failure to call Guerra after promising the jury to do so, although it steps back somewhat a bit later in its opinion, stating that it “credit[ed] [Petitioner's] argument that defense counsel damaged his case by breaking his promise to the jury that Guerra would testify.” Husok, 2020 WL 5960064, at *5-6. The Superior Court then recognized that “[a]bsent an unforeseen event warranting reversing course, an unfulfilled promise to present evidence is unquestionably detrimental to a defendant's case.” Id. at *6. The Superior Court further rejected the prosecution's argument that the trial court's jury instruction to disregard trial counsel's reference to Guerra in his opening statement cured any potential prejudice. Id. and n.6.
But despite these findings, the Superior Court held that Petitioner had failed to establish a reasonable probability of a different outcome at trial had Guerra been called. Id. at *6. See also Strickland, 466 U.S. at 694 (“The 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.”)
The Superior Court opined that the testimony proffered by Guerra in her affidavit - that she had been beaten by Welsh at Welsh's mother's boyfriend's house hours before the shooting, ECF No. 10-1 at 9 - did not support a finding that Petitioner was justified in killing Welsh under Pennsylvania law, either under a theory of self-defense, or under a theory of defense of others, in light of the evidence presented at trial. Husok, 2020 WL 5960064, at *6-7.
Although it was discussed above, the pertinent part of Guerra's affidavit is reproduced here.
2. I would have testified that in the early morning hours of September 19, 2015,1 remember being beaten by Michael Welsh at his mother's boyfriend's house, and after the beating I called James Husok to pick me up. Mr. Husok picked me up in front of the Cherry Lane bar and we proceeded to his house. We were at James' house about 2 hours when we started to get threatening phone calls and text messages from Michael Welsh. James Husok and I were worried that Welsh would come over to James' house and hurt us, so James went outside to see if we were safe. An altercation occurred in which Michael Welsh was killed. I did not witness the incident.
3. A short time after the incident, I was questioned by the police and/or the DA. I repeatedly asked for a lawyer before and during the questioning. The police never read me my rights, nor did they photograph the bruises I received from Michael Welsh on the day of the killing. Finally, after a day and a half of questioning, they let me go but not before they took my DNA and did a gunshot residue test.ECF No. 10-1 at 9.
The Superior Court stated:
Significantly, whether Welsh actually physically assaulted Guerra earlier in the morning was a collateral issue to the main factual dispute: whether Husok was justified in shooting Welsh in the alley. The use of force against a person is justified “when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force” by the other person. See 18 Pa.C.S.A. § 505(a). A self-defense claim entails three elements: (1) the defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was necessary to use deadly force against the victim to prevent such harm; (2) the defendant was free from fault in provoking the difficulty which culminated in his use of deadly force; and (3) the defendant did not violate any duty to retreat. See Commonwealth v. Patterson, 180 A.3d 1217, 1231 (Pa. Super. 2018) (citing Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012)).
Here, the primary evidence for Husok's self-defense theory was his statement to the police later that morning. In that statement, Husok claimed that he heard Welsh on his cell phone say something to the effect of “I'm going to kill them” just before turning around and walking toward Husok and making a move to his left side. N.T., Vol. I, 10/5/16, at 416. However, there was no evidence corroborating Husok's version of events. Importantly, in contrast to Husok's claim that Welsh was on his cell phone in the alley, the police found Welsh's cell phone in his back left pocket. N.T., Vol. I, 10/3/16, at 77. Cell phone records also showed that Welsh neither received nor made any connecting phone calls just before being shot by Husok. Finally, Husok's post-shooting actions demonstrated his consciousness of guilt as he rushed back to his home to hide the firearm. He lied to the 911 dispatcher about finding Welsh's body and then lied again in his statement to the police later that morning before finally admitting to shooting Husok.
Husok ignores these facts in his brief, opting instead to argue that Guerra's testimony that she was beaten by Welsh “would have provided arguable justification for [Husok's] actions-to protect Guerra from further abuse.” Husok's Brief at 11. This argument posits that Husok had a viable defense of others defense. However, the use of force in such a situation is justifiable only if such force would be justifiable for the actor to protect himself, that is, selfdefense pursuant to 18 Pa.C.S. § 505. See 18 Pa.C.S. § 506(a)(1).Id. at *6-7 (footnotes omitted).
The Superior Court further found that evidence that Guerra had been beaten had been presented at trial via the photographs entered during the testimony by Petitioner's private investigator, and that Petitioner was able to argue that Welsh had beaten Guerra without objection by the prosecution.
Additionally, even without Guerra's testimony, defense counsel still argued to the jury that Welsh beat Guerra earlier in the morning. As noted above, the jury was shown multiple photographs of Guerra showing that she had bruising on her arms, legs and chest. N.T., Vol IL, 10/6/16, at 526-532. Despite no testimony from Guerra about how she got the bruises, defense counsel still argued throughout his closing statement that the bruising was caused by Welsh, with the Commonwealth never objecting. See, e.g., id. at 667 (“These bruises ... corroborate my client's confession as to what happened this night. She was being beaten up by Mr. Welsh, and she had to get out of there.”). Moreover, while pointing out that there was not any evidence to prove that the bruises were caused by Welsh, the Commonwealth argued that Husok's use of deadly force would not be excused even if Welsh actually assaulted or grabbed Guerra earlier in the morning. Id. at 732-33. Thus, while Guerra's testimony may have made it more believable that Welsh assaulted her, defense counsel was ultimately still able to present that argument to the jury.Id.
Nothing in the record, or in the parties' briefing, indicates that this conclusion by the Superior Court is an unreasonable application of the prejudice prong of the Strickland test, or an unreasonable factual determination based on the state court record. Indeed, the alleged assault to which Guerra would have testified occurred hours before Petitioner shot Welsh. Trial Tr. dated Oct. 3-5, 2016, at 414-16; ECF No. 10-1 at 9. Additionally, Guerra's proffered testimony does not contradict - or even call into question - the evidence that Petitioner armed himself, Trial Tr. dated Oct. 3-5, 2016, at 373, left his home to seek out Welsh, id. at 373-78, shot Welsh when Petitioner found him two streets away from his home, Id. at 79, or that Welsh was unarmed when Petitioner shot him. Id. at 77-78.
Additionally, the cell phone records, which showed (a) the timing calls and (b) the timing and content of text messages between (i) Welsh and Guerra, and (ii) Guerra and Petitioner, were part of the record at trial. Id. at 212-28.
It also is worth reiterating that, while the affidavit indicates that Guerra would have testified that Petitioner and Guerra “were worried that Welsh would come over to [Petitioner's] house and hurt us, so [Petitioner] went outside to see if we were safe[,]” ECF No. 10-1 at 9, it explicitly indicates that Guerra did not witness the shooting. Id.
Here, the evidence of record strongly supports the Superior Court's conclusion that Guerra's testimony, as proffered in her affidavit, did not create “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. To the contrary, the evidence heavily weighs against a finding that the killing was justified under Pennsylvania law, even considering Guerra's proffered testimony. Buehl v. Vaughn. 166 F.3d 163, 172 (3d Cir.1999), cert, dismissed, 527 U.S. 1050 (1999) (when undertaking a prejudice analysis, a Court properly considers the strength of the evidence against the defendant because “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.”)
Petitioner has not met his burden under §§ 2254(d)(1) or (d)(2), and thus is not entitled to federal habeas relief.
c. Petitioner fails to establish prejudice under de novo review.
Moreover, even under a de novo review that includes Petitioner's arguments regarding the possibility of conviction of voluntary manslaughter had Guerra testified according to her affidavit, see ECF No. 2 at 8 n. 1, which the Superior Court refused to consider as waived under Pennsylvania law, Husok, 2020 WL 5960064, at *7 n.8, this Court still finds that Petitioner has not met his burden to show prejudice.
First, the Superior Court's conclusions with respect to the prejudice arguments that it addressed survive de novo review for the same reasons articulated above.
Second, also as stated above, Guerra concedes in her affidavit that she did not witness the altercation during which Petitioner shot Welsh. ECF No. 10-1 at 9. Accordingly, the testimony proffered in her affidavit offers nothing additional to the record evidence to support a verdict of voluntary manslaughter due to an unreasonable belief that the killing was justified. 18 Pa. C.S. A. § 2503(a). See also Trial Tr. dated Oct. 6-7,2016, at 737-38 (jury instructions regarding the same).
Third, despite Petitioner's argument to the contrary, Guerra's proffered testimony adds nothing new to support voluntary manslaughter due to a sudden and intense provocation. 18 Pa. C.S.A. § 2503(a). Indeed, Guerra proffers in her affidavit that she would testify that Petitioner left the home looking for Welsh “to see if we were safe[,]” and not because he was angry, provoked, or incensed. ECF No. 10-1 at 9. This is consistent with the defense that was presented at trial - that Petitioner was making decisions with a cool head, and that the killing was done in self-defense. See, e.g, Trial Tr. dated Oct. 3-5, at 37 (“She calls him at four in the morning waking [Petitioner] from sleep. He is minding his own business. [Petitioner ant Guerra] make the wise decision he is not going to pick her up at the house. [Petitioner] is not looking for trouble.”) See also id. at 40 (“[Petitioner], believing that [Welsh] was armed and capable of doing violence, he shoots him. One shot. One shot to the chest. Because he was under a reasonable belief that Michael Welsh was there to do him harm. There was no other reason for him to be in that neighborhood.”) See also id. at 43 (“And let me just tell you this, if [Petitioner] wanted to kill [Welsh], if he wanted to hurt him, don't you think that night he would have gone to his house to do this deed? He had the opportunity to. He didn't. [....] The evidence is not consistent with murder. The evidence is consistent with self-defense, a defense of another person, and the lack of mens rea, which is required.”). Trial Tr. dated Oct. 6-7, 2016, at 675 (“[Petitioner] is the only person that's levelheaded at this point. But he certainly was not lying in wait, not to murder this man.”).
To the extent that Petitioner might have been provoked after he encountered Welsh, the affidavit indicates that Guerra did not observe the altercation, and thus would have nothing to add.
Further, as described in detail above by the Superior Court and in this Report and Recommendation, the evidence and arguments that counsel asserts would have been provided by Guerra's testimony already were presented to the jury even though she did not testify. This includes the following text exchange between Guerra and Welsh, which was read to the jury, and which is relevant to the footnote regarding Guerra's suspected pregnancy, upon which Petitioner has based his voluntary manslaughter argument throughout his collateral proceedings.
Welsh, at 6:40 AM: You are fucking James right now, huh?
Guerra, at 6:46 AM: No, I am not. I'm not going to have my baby in this environment. You made your choice when you were pushing me around and didn't give a fuck. Now you want to sit there and act like you care when we both know you think the baby isn't yours. That you fucked up. It wouldn't be anyone else's. But for you to sit there and push me around, fuck that. I'm not dealing with that shit. That's mine. I [szc] be damned if you sit there and think stupid shit when we both know it's mine and yours. End of story.Trial Tr. dated Oct. 3-5, 2016, at 217-18 (cleaned up).
Moreover, photographs of her bruises were presented to the jury through the testimony of Petitioner's private investigator. Trial Tr. dated Oct. 6-7, 2016, at 523, 525-32.
And, lest it be ignored, counsel's arguments at trial indicated that, whatever beating Guerra suffered at the hands of Welsh was separated from the shooting by hours, during which Petitioner and Guerra had sex, and then fell asleep. Trial Tr. dated Oct. 3-5, 2016 at 38 and 414; Trial Tr. dated Oct. 6-7, 2016, at 671. All of this cuts against the conclusion that a reasonable probability existed that Guerra's proffered testimony, had it been presented, would have led the jury to convict Petitioner of voluntary manslaughter based on sudden and intense passion resulting from serious provocation from Welsh. See Com, v. Dews, 239 A.2d 382, 385 (Pa. 1968) ([I]f the accused has had time to ‘cool,' the alleged provocation is not sufficient to generate that degree of passion necessary to form the basis of a voluntary manslaughter verdict.”)
In light of the significant weight of the evidence of Petitioner's guilt of the crimes of which he was convicted, and in consideration of the entirety of the state court record - including the proffered testimony in Guerra's affidavit - Petitioner has not demonstrated that counsel's failure to present Guerra's proffered testimony had a reasonable probability of resulting in a different outcome, even under de novo review.
The Petition, ECF No. 1, should be denied.
E. Certificate of Appealability
A certificate of appealability should be denied, as jurists of reason would not debate that Petitioner has failed to show entitlement to relief. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
III. CONCLUSION
For the reasons set forth above, it is respectfully recommended that the Petition, ECF No. 1, be denied. It is further recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.