Opinion
Civil Action No. 03-5398.
September 13, 2004
REPORT AND RECOMMENDATION
Currently pending before this Court is a counseled Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner incarcerated in the State Correctional Institute at Graterford, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
On March 3, 1988, following a jury trial before the Honorable Michael R. Stiles of the Philadelphia Court of Common Pleas, petitioner was found guilty of three counts of first degree murder, three counts of robbery, three counts of possessing an instrument of crime, one count of terroristic threats, and one count of carrying firearms on a public street. The convictions arose out of four separate robberies and/or murders committed by petitioner in a three-week period. As the jury was unable to reach a unanimous verdict regarding the death penalty, the judge imposed three sentences of life imprisonment. On February 9, 1989, Judge Stiles ordered the life sentences to be served consecutively and imposed concurrent sentences on the remaining bills.
As set forth by the PCR A court:
On August 26, 1986, at approximately 11:00 p.m., at Progress Plaza in North Philadelphia, Janet Ford was parked at a banking machine. A car approached with the defendant sitting in the rear passenger seat. The defendant reached out of the window, put a gun to Ms. Ford's head and demanded her pocketbook. . . .
The second incident occurred on Septem ber 5, 1986 at 3:30 a.m., as the defendant and Howard Riley sat in a car parked at the corner of 12th Street and Columbia Avenue in North Philadelphia. Witnesses heard a gunshot and saw Riley stagger out of the car and fall to the ground. The defendant then exited from the car with a silver gun in his hand, walked over to Riley and searched through his pockets. . . .
The third incident occurred near 24th and Jefferson Streets in North Philadelphia at approximately 10:00 p.m. on September 12, 1986. Larry Lesesne, sat in his car, behind the parked car of eyewitness Dana Lomax. The defendant walked over to Mr. Lesesne's car, pulled a silver gun on Lesesne and demanded money. When Lesesne refused the demand, the defendant shot him. . . .
The fourth attack occurred at 2:30 a.m. on September 14, 1986. James McNeil and his nephew, Karl Grubbs, were stopped at a red light at 6th and Berks Streets in North Philadelphia, when the defendant approached McNeil on the driver's side of the car and another man approached Grubbs on the passenger side. The defendant pointed a silver gun at McNeil and demanded money. When McNeil attempted to put the car in reverse in an effort to escape, the defendant shot him . McNeil managed to move the car aw ay from the defendant, but soon lost consciousness and crashed. . . . Riley, Lesesne, and McN eil all died from their wounds.
Response, Exh. C, at pp. 3-4.
On appeal, petitioner retained new counsel, Robert E. Miller, Esquire, and filed a timely appeal to the Pennsylvania Superior Court alleging five claims: (1) whether there was probable cause for a warrantless arrest and whether petitioner was under arrest before he was frisked; (2) whether reasonable suspicion existed to allow police to immediately stop petitioner upon sight and frisk him; (3) whether all the evidence obtained by the police, after the stop and frisk, was tainted by an illegal stop and frisk; (4) whether the trial court erred in obtaining biographical information from petitioner while in custody, to disprove petitioner's common law marriage without giving him the appropriate warning and informing him of his rights, and whether a common law marriage existed between petitioner and one of the Commonwealth's witnesses; and (5) whether the trial court erred in consolidating all of petitioner's cases due to the Commonwealth's common plan, scheme and design theory. Relying on Judge Stiles's memorandum, the Superior Court affirmed the judgment of sentence on February 1, 1990. On October 10, 1990, the Pennsylvania Supreme Court denied petitioner's request for allocatur. Commonwealth v. Jackson, 588 A.2d 508, (Pa. 1990).
On January 20, 1995, petitioner filed a pro se petition for state collateral review pursuant to the Post Conviction Relief Act ("PCRA") 42 Pa. C.S.A. § 9541 et seq. Paul Hetznecker, Esquire entered his appearance on behalf of petitioner and filed an amended petition on January 24, 1997. Petitioner alleged five claims challenging the effectiveness of his trial counsel: (1) failure to request petitioner's FBI extract before presenting a character witness at trial, and failing to request a mistrial; (2) failure to request a Kloiber charge; (3) failure to object to the introduction of composite drawings of the petitioner; (4) failure to cross-examine August Bailey on the grant of immunity she received for her testimony in petitioner's case; and (5) failure to request an alibi charge with respect to the murder of Mr. Lesesne. Petitioner also alleged ineffective assistance of appellate counsel for failing to raise the aforementioned claims on direct appeal. On April 24, 2001, the PCRA court dismissed the petition. Notwithstanding the PCRA court's ruling that petitioner's ineffective assistance of trial counsel claims had been waived, it also determined that all of petitioner's claims lacked merit, which consequently resulted in the court dismissing the ineffective assistance of appellate counsel claims. Petitioner appealed to the Superior Court of Pennsylvania. On April 4, 2002, the Superior Court affirmed the decision of the PCRA court. Commonwealth v. Jackson, 803 A.2d 793 (Pa.Super. 2002). Subsequently, on September 26, 2002, the Pennsylvania Supreme Court denied his petition for allocatur. Commonwealth v. Jackson, 809 A.2d 902 (Pa. 2002).
On September 25, 2003, petitioner's counsel, Patrick J. Egan, Esquire, filed the instant Petition for Writ of Habeas Corpus. In this document, petitioner sets out the following claims:
1. Petitioner was stopped without probable cause and searched without reasonable suspicion;
2. The prosecution failed to advise petitioner's trial counsel that August Bailey received a grant of immunity for her testimony at petitioner's trial (Brady claim);
3. Unlawfully seized evidence (the gun) was used to obtain a search warrant;
4. The search conducted pursuant to the search warrant was based on a tainted search warrant and the scope of the search exceeded the warrant;
5. An actual conflict of interest existed with petitioner's direct appeal counsel, in that, he represented August Bailey at petitioner's trial and he was ineffective for failing to raise the aforementioned Brady claim on appeal;
6. The trial court erred in consolidating petitioner's three cases at trial;
7. Ineffective assistance of trial counsel for failing to adequately present character testimony at trial and ineffective assistance of appellate counsel for failing to raise this issue on appeal;
8. Ineffective assistance of trial counsel for failing to object to an inadequate jury instruction on identification testimony and ineffective assistance of appellate counsel for failing to raise this issue on appeal;
9. Ineffective assistance of trial counsel for failing to object to the introduction of composite drawings at trial and ineffective assistance of appellate counsel for failing to raise this issue on appeal;
10. Ineffective assistance of trial counsel for failing to present an alibi witness and ineffective assistance of appellate counsel for failing to raise this issue on appeal; and
11. Ineffective assistance of trial counsel for failing to seek an alibi instruction pertaining to the Lesesne murder and ineffective assistance of appellate counsel for failing to raise this issue on appeal.
On June 4, 2004, petitioner's counsel filed a supplemental habeas corpus petition, making the following claims:
1. Ineffective assistance of trial counsel for failing to object to hearsay statements of the arresting police officer;
2. Ineffective assistance of trial counsel for failing to cross-examine August Bailey regarding the immunity deal and for failing to adequately investigate;
3. Ineffective assistance of appellate counsel due to an actual conflict of interest;
4. Petitioner's due process rights were violated due to a Brady violation;
5. Petitioner's layered claims of ineffective assistance of trial and appellate counsel are not waived;
6. Trial counsel was ineffective for failing to investigate and adequately present character testimony;
7. Trial counsel was ineffective for failing to object to the court's identification charge;
8. Trial counsel was ineffective for failing to object to the introduction of composite drawings.
II. PROCEDURAL DEFAULT
Several of petitioner's claims suffer from procedural default, which prevents our consideration of their merits. The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted.Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).
In the case at bar, several of petitioner's claims are either not exhausted in state court and could not be so now, or waived. As such, they suffer from the taint of procedural default and may not be considered by this Court.
A. Failure to Exhaust State Court Remedies
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). Generally, in the case of an unexhausted petition, the federal courts should dismiss it without prejudice, otherwise, they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman, 501 U.S. at 735 n. 1;McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The logic underlying this rule is that "[i]n the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court." Coleman, 501 U.S. at 732.
In the case at bar, petitioner's following allegations were never presented to the state courts: (1) the prosecution failed to advise petitioner's trial counsel that August Bailey received a grant of immunity for her testimony at petitioner's trial (Brady claim); (2) an actual conflict of interest existed with petitioner's direct appeal counsel in that he represented August Bailey at petitioner's trial and he was ineffective for failing to raise the aforementioned Brady claim on appeal; (3) the trial court erred in consolidating petitioner's three cases at trial; (4) ineffective assistance of trial counsel for failing to present an alibi witness and ineffective assistance of appellate counsel for failing to raise this issue on appeal; and (5) ineffective assistance of trial counsel for failing to object to hearsay statements of the arresting police officer. These claims respectively correspond to petitioner's habeas claims nos. 2, 5, 6, and 10 and supplemental habeas claim no. 1.
With respect to claims 2, 5, 10 and supplemental claim 1, the court finds that no such claims, or any claims similar thereto, were ever raised on direct appeal. While petitioner did raise issues regarding the grant of immunity to Commonwealth's witness August Bailey, he did not couch them on the same legal theory as he does in the current petition. Accordingly, we decline to find these claims exhausted.
Respondents argue that petitioner's supplemental claim 1 is time-barred because petitioner's supplemental habeas petition, in which the claim was alleged for the first time, was filed after the expiration of the AEDPA one year statute of limitations. We decline to reach this issue, however, since we find the claim to be procedurally defaulted. Although respondents fail to raise the defense of procedural default for this claim, this Court cansua sponte dismiss this claim on the grounds of procedural default. Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) ("A district court also has the discretion to raise the issue [of procedural default] sua sponte."). With respect to sua sponte consideration of a nonexhausted claim, in determining whether to consider the default we must weigh the values of comity, federalism, judicial efficiency, and the "ends of justice". Id at 521. The record before this court regarding procedural default is well developed. It is evident that neither this claim, nor any variation of this claim, was ever presented to the state courts. In the interest of comity and federalism this court will not allow petitioner to deprive the state courts' of their role in the enforcem ent of federal law.
In his Traverse, petitioner argues that he did, in fact, raise, in his PCRA, claim no. 5 (actual conflict of interest with direct appeal counsel in that he represented August Baily at petitioner's trial). This Court's review of the record, how ever, reveals that, in his PC RA petition, petitioner alleged only ineffective assistance of trial counsel for failure to cross-examine August Bailey regarding her grant of immunity and ineffective assistance of appellate counsel for failure to raise that claim on direct appeal. At no point did he claim actual conflict of interest with direct appeal counsel.
With respect to claim number 2, petitioner effectively concedes, in his Traverse, that the issue was not fully presented to the state court, but asserts that it was "part and parcel" of the conflict of interest issue and that the interests of justice require that it be heard. This Court disagrees, as the state was never given the opportunity to consider the claim.
Although petitioner's habeas claim no. 6 was raised on direct appeal, it was not presented to the state court as a federal claim in a manner that would put the state court on notice that a federal claim was being alleged. In petitioner's brief to the Pennsylvania Superior Court, he argued the claim was a violation of state law. All the cases petitioner cited to were Pennsylvania cases dealing with Pennsylvania law. Further, contrary to his allegation in his Traverse, he gave no indication that any federal constitutional right was being implicated. Although it is not required that the petitioner cite "book and verse on the federal constitution" in order to raise a federal due process claim, Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995), federal claims must be fairly presented to state court so that the State has the "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971). The Pennsylvania Superior Court was never, at any point, fairly made aware that petitioner was alleging a federal claim. This is evident in light of the state court's dismissal of the issue pursuant to the Pennsylvania Rules of Civil Procedure. Since petitioner never alleged his habeas claim no. 6 as a federal claim in state court, such claim is unexhausted.
The trial court erred in consolidating petitioner's three cases at trial.
A petitioner can indicate the federal nature of his claim by citing a case deciding a similar claim on federal law grounds.See Baldwin v. Reese, 124 S. Ct. 1347, 1357 (2004). The cases cited by petitioner, however, all rely strictly on Pennsylvania law. See Commonw ealth v. Beckman, 450 A .2d 660 (Pa.Super. 1982); Commonwealth v. Rose, 401 A .2d 1148 (Pa.Super. 1979);Commonw ealth v. Larkins, 449 A .2d 42 (Pa.Super. 1982).
The Court of Comm on Pleas based its decision on statute Pa. R. Crim. P. 1127A(1) (a).
The Pennsylvania Supreme Court has conclusively established that the one-year statute of limitations acts as a jurisdictional bar and is not subject to equitable tolling. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Accordingly, any current attempt by petitioner to file a second PCRA petition raising these claims would certainly be deemed untimely. Because petitioner cannot now return to the Pennsylvania courts, the five aforementioned unexhausted claims become procedurally defaulted for purposes of federal habeas review.
B. Waived Claims
A claim may likewise suffer from procedural default if it is found to have been waived. "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b). A claim of ineffectiveness of counsel "must be raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer representing the claimant." Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa.Super. 1994). If a state court finds a claim waived, it becomes procedurally defaulted, thereby barring federal habeas review. See Werts v. Vaughn, 228 F.3d 178, 192 n. 9 (3d Cir.), cert. denied, 532 U.S. 980, 121 S. Ct. 1621 (2001).
Several of petitioner's ineffective assistance of trial counsel allegations are clearly waived: (1) failing to adequately present character testimony at trial; (2) failing to object to an inadequate jury instruction on identification testimony; (3) failing to object to the introduction of composite drawing at trial; (4) failing to seek an alibi instruction pertaining to the Lessene murder; and (5) failing to cross-examine August Bailey regarding the immunity grant she received for her testimony. The PCRA court expressly found all these claims waived since petitioner failed to raise such claims in post-trial motions or on direct appeal, which was when petitioner retained new counsel. The PCRA state court rule requiring issues to be presented in post-trial motions or on direct appeal is an independent and adequate state procedural ground for default. Thus, such claims are procedurally defaulted for the purposes of federal review.
Notably, respondents failed to allege that these claims are procedurally defaulted. Nonetheless, the Court can sua sponte find them to be so. See supra note 1.
Respondents do allege that petitioner's supplemental claim 2 (ineffective assistance of trial counsel for failing to cross-examine August Bailey regarding the immunity grant she received for her testimony) is time-barred because petitioner's supplemental habeas petition was filed after the AEDPA statute of limitations. However, as we have already deemed the claim procedurally defaulted, we do not address this argum ent See supra note 1.
The fact that the PCRA court addressed the merits of these claims does not affect the analysis of whether the state procedural grounds upon which the waiver was based were "independent and adequate." Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 1044 n. 10 (1989).
While petitioner alleges that his claims were properly brought before the PCR A court according to Commonw ealth v. McGill, 832 A .2d 1014 (Pa. 2003), McGill is not applicable to the instant case because it was decided a year after petitioner's PCRA case became final and McGill cautions courts not to apply this case retroactively. Id. at 1024. Furthermore, this Court is obliged to defer to the state court's interpretation of its own state laws regarding waiver.
C. Exceptions to Procedural Default
These findings of procedural default, however, do not automatically foreclose all further federal review. To survive procedural default in the federal courts, the petitioner must either "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
While petitioner does not allege fundamental miscarriage of justice, he does put forth an argument for the cause and prejudice exception. The cause and prejudice analysis embraces two separate elements. A demonstration of cause sufficient to survive dismissal "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283 (1992) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986)); see also Jones v. Frank, 28 F. Supp.2d 956, 963 (E.D. Pa. 1998),aff'd, 202 F.3d 254 (3d Cir. 1999), cert. denied, 529 U.S. 1088, 120 S. Ct. 1720 (2000). Once cause is shown, petitioner bears the additional burden of proving some resulting prejudice, i.e. that errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Murray, 477 U.S. at 494 (quotingUnited States v. Frady, 456 U.S. 1001, 102 S. Ct 2287 (1982)).
In the case at bar, petitioner puts forth four ineffective assistance of appellate counsel allegations which could constitute cause sufficient to excuse some procedurally defaulted claims. A claim of ineffective assistance of counsel can constitute sufficient cause to excuse procedural default under the cause and prejudice exception as long as it "rise[s] to the level of a Sixth Amendment violation." Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir. 2002). However, the ineffective assistance claim cannot itself be procedurally defaulted.Edwards v. Carpenter, 529 U.S. 446, 451-454, 120 S. Ct. 1587, 1591-1592 (2000); Werts, 228 F.3d at 193. All of petitioner's ineffective assistance of appellate counsel claims have been exhausted in the state courts and, as such, could constitute cause for the corresponding, but procedurally defaulted, ineffective assistance of trial counsel claims. For ease of discussion, the Court will address these claims in the "Merits" section of this opinion.
III. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
The United States Supreme Court interpreted this statute and more clearly defined the two-part standard of review in Williams v. Taylor, 529 U.S. 362, 404-405, 120 S. Ct. 1495 (2000). Under the first prong of the review, a state court decision is "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States," (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Pursuant to the second prong, a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply." Williams, 529 U.S. at 407-408. Under this clause, however, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly-established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
IV. MERITS
A. Fourth Amendment Claims
Petitioner first alleges three Fourth Amendment claims as follows: (1) petitioner was stopped without probable cause and searched without reasonable suspicion; (2) unlawfully seized evidence (the gun) was used to obtain a search warrant; and (3) the subsequent search, based on the search warrant, was based on a tainted warrant and the scope of the search exceeded the warrant. Well-established jurisprudence precludes our consideration of these claims.
The second and third Fourth Amendment claims are found in ground three of petitioner's original habeas petition.
In Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976), the Supreme Court held that, "where the State has provided an opportunity for a full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Id. at 494 (footnotes omitted). "Even otherwise potentially meritorious Fourth Amendment claims are barred on habeas [review] when the petitioner had a full and fair opportunity to litigate them." Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994);see also U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762, 766 (3d Cir. 1978) ("Stone v. Powell . . . is an insurmountable obstacle to habeas corpus relief."). Where petitioner has had a pre-trial suppression hearing and the claim is considered on appeal the "full and fair hearing" requirement is satisfied.Jeffes, 571 F.2d at 766; Reinert v. Larkin, 211 F. Supp.2d 589, 597-598 (E.D. Pa. 2002).
In the case at bar, petitioner was afforded a full suppression hearing, on February 17, 1988, in connection with the three aforementioned Fourth Amendment allegations. At the close of that hearing, the trial court concluded that the stop and frisk was lawful, there was probable cause for the September 24th search warrant, and the execution of that warrant was lawful. Petitioner then renewed his suppression claims on direct appeal. The Pennsylvania Superior Court upheld the trial court's decision. In light of the record, this Court finds that petitioner was granted a full and fair opportunity to litigate the merits of his Fourth Amendment claims. As such, federal habeas review of these claims is foreclosed.
The first Fourth A mendment claim was clearly raised on direct appeal. How ever, we are unable to discern whether the other two claims were raised on direct appeal. We will assume (as respondents do in their Response) that the claims were raised on direct appeal. If this Court were to take the position that the claims were not raised on direct appeal, such claims would be barred from review by this Court on the grounds of procedural default.
In his Traverse, petitioner contends that he was not given a full and fair hearing due to counsel's deficient performance in prosecuting the suppression issue and, thus, is entitled to have his Fourth Amendment issues heard in this Court. As discussed above, however, this ineffectiveness claim itself was procedurally defaulted, since it was never raised in state court, and thus it cannot be considered here.
B. Ineffective Assistance of Counsel Claims
Petitioner's four remaining claims allege ineffective assistance of appellate counsel for: (1) failing to raise on appeal trial counsel ineffectiveness for failing to adequately present character testimony; (2) failing to raise on appeal trial counsel ineffectiveness for failing to object to the jury instruction on identification testimony; (3) failing to raise on appeal trial counsel ineffectiveness for failing to object to the introduction of composite drawings at trial; and (4) failing to raise on appeal trial counsel ineffectiveness for failing to seek an alibi instruction pertaining to the Lesesne murder.
The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case ofStrickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984), the Supreme Court set forth a two-prong test by which claims alleging counsel's ineffectiveness are adjudged. Id. at 687. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. The Supreme Court has explained that:
This standard applies to both trial counsel and appellate counsel ineffectiveness. Smith v. Reed, 528 U.S. 259, 285, 120 S. Ct. 746 (2000).
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, 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 circumstances, the challenged action "might be considered sound trial strategy."Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 163-164 (1955)). It is well-established that appellate counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. at 691; Holland v. Horn, 150 F. Supp.2d 706, 731 (E.D. Pa. 2001).
Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. It requires a demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable possibility 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." Id. at 694. In Strickland, the Supreme Court emphasized that "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury."Strickland, 466 U.S. at 695. See also Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999). Notably, Strickland allows a reviewing court to dismiss an ineffectiveness claim under the prejudice prong without addressing the first prong of the test.Id. At 697.
1. Ineffective Assistance of Appellate Counsel for Failing to Raise on Appeal Trial Counsel Ineffectiveness for Failing to Adequately Present Character Testimony.
Petitioner's first ineffectiveness claim turns on the character testimony of his aunt, Willie Thomas, who testified that petitioner was well-behaved and had a good reputation in his hometown of Georgetown, South Carolina. She also stated that petitioner was never in trouble and she was sure that if he had ever gotten in trouble, while he was living in Georgetown, she would have known about it. On cross-examination, the Commonwealth presented an FBI abstract of crimes for which petitioner was arrested, while living in Georgetown. Petitioner now asserts his trial counsel was ineffective for failing to obtain the FBI abstract in preparation for presenting Thomas' testimony. He claims that had his attorney obtained the FBI abstract, he could have prevented the information about petitioner's arrests in Georgetown from being presented to the jury and prejudicing his defense.
Respondents interpret this claim as also encompassing a claim for ineffective assistance of trial counsel for failing to move for a mistrial. This Court declines such an interpretation. In petitioner's original and supplemental habeas petitions, he never mentions a failure to move for mistrial. Although petitioner made such a claim in his PCRA petition, the claim does not transfer over to his habeas petition without explicitly stating it.
The Pennsylvania Superior Court reviewed this claim on appeal from the denial of the PCRA petition. The court declined to reach a conclusion as to the merit of this claim given the overwhelming amount of evidence proving petitioner's guilt. Rather, it held that any prejudice resulting from the Commonwealth's impeachment of Mrs. Thomas would not overcome the other evidence pertaining to petitioner's guilt. It concluded that regardless of Mrs. Thomas's character testimony or the Commonwealth's impeachment of the testimony, petitioner would not have been acquitted due to the other evidence against him.
The other evidence against petitioner included several eyewitnesses, who identified petitioner without hesitation. One is a women, Janet Ford, who looked directly at petitioner's face as he held a gun to her head and attempted to rob her. Another eyewitness, Dana Lomax, watched as petitioner approached Larry Lesense with a gun and attempted to rob him and then killed him. A nother witness, Alfred Griffith, heard a gunshot and then saw the victim stagger from his car. Soon after that, Griffith watched petitioner, who had a silver gun in his hand, come around from the other side of the car and take the victim's personal belongings from his pockets. Another witness, Grubbs, attested to the murder of his uncle. Grubbs testified that he was in the car with his uncle when petitioner and a cohort approach their car and attempted to rob them. When Grubbs' uncle attempted to reverse the car and escape, petitioner shot him, and then fled. Furthermore, there was additional evidence such as several of the victims' personal belongings were found in petitioner's hom e. Finally, a ballistics test confirmed that all the shootings were committed with the same gun, a nickle plated revolver, silver in color, as testified to by one of the eyew itnesses. And, the same type of gun was stolen from petitioner's cousin just weeks before the murders.
This Court is inclined to uphold the ruling of the Superior Court. Although trial counsel should have perhaps obtained the FBI abstract in preparation for Mrs. Thomas' testimony, a failure by appellate counsel to flag this issue on appeal does not rise to the level of a Sixth Amendment violation. Under prong two of the Strickland test, petitioner is unable to show the level of prejudice where, but for counsel's error, there is a reasonable possibility that his conviction would be vacated. Given the substantial amount of evidence proving petitioner's guilt, it is virtually inconceivable that petitioner was prejudiced by the information concerning his arrests on undisclosed charges in Georgetown. Moreover, it is notable that the jury was instructed that there was "no evidence . . . that these arrests actually occurred." (N.T. 3/1/88, pp. 1325-1326). Appellate counsel cannot be ineffective for failing to raise an issue that would not have resulted in the reversal of his client's conviction.
2. Ineffective Assistance of Appellate Counsel for Not Raising on Appeal Trial Counsel Ineffectiveness for Failing to Object to the Jury Instruction on Identification Testimony.
Petitioner's next ineffectiveness claim evolves from identification testimony allegedly including several misidentifications and a failure to identify petitioner from a line-up. Specifically, there were two identification witnesses presented at trial, Janet Ford and Dana Lomax, who both selected petitioner's photo from a photo array, picked him from a line-up and identified him at trial without hesitation. Ms. Ford identified petitioner as the man who robbed her at gunpoint in a well-lit parking lot, while she was approximately two feet away from him and had the opportunity to observe his face for approximately two minutes. Ms. Lomax identified Petitioner as the man who shot Larry Lesesne to death. She watched the incident unravel as she sat in a parked car nearby and the entire time she was able to clearly observe the petitioner. A third witness, Mr. Grubbs, testified about the shooting of his uncle, but was not an identification witness. Rather, he described the appearance of the shooter, but not for the purpose of identifying the defendant as the shooter at trial. Petitioner now claims that his trial counsel should have objected to the jury charge on identification testimony and requested a Kloiber charge, requiring the jury to consider the testimony of these three witnesses with caution.
According to the trial judge's opinion, it seems Grubbs may have been asked to identify petitioner from a line-up but was unable to identify anybody as the assailant.
As petitioner fails to indicate which of these witnesses he believes merited a Kloiber charge, the Court considers all three.
Upon review of the denial of the PCRA petition, the Pennsylvania Superior Court held that there was no basis on which Petitioner's attorney could request a Kloiber charge. The Superior Court found there were only two identification witnesses and petitioner failed to raise to the court's attention any point in the record where either witness wavered in her identification of petitioner. The court went on to find that the Commonwealth's witness, Grubbs, was not an identification witness. Although Grubbs described the appearance of the shooter, he never identified petitioner nor was he ever asked to identify him. Accordingly, since both identification witnesses were positive in their identification and Grubbs was not presented to the jury as an identification witness, these circumstances did not warrant a Kloiber charge.
In the instant case, this Court finds no basis to reject the state court's rulings. The seminal case ofCommonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348 U.S. 875, 72 S. Ct. 112 (1954), set forth the appropriate standard for instructing the jury about identification evidence, as follows:
Respondents attempt to put forth an alternative defense that the instant claim is not cognizable in federal habeas because a Kloiber charge is not a federal constitutional requirem ent. Although an allegation of incorrect jury instruction under state law is not a basis for habeas relief, such claim is not now before the court. The case at bar concerns whether counsel was constitutionally ineffective for failing to request Kloiber instructions, which differs from whether the jury instructions themselves are correct under state law. See Swainson v. Varner, Civ. A. No. 99-6480, 2002 W L 241024 (E.D. Pa. Feb. 19, 2002). Furthermore, the case respondents cite to for support, McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999), concerns the issue of exhaustion, whereas the case at bar, has, exhausted the instant claim as a federal issue before state court.
where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross examination, positive and unqualified, the testimony as to identification need not be received with caution — indeed the cases say that `his positive testimony as to identity may be treated as the statement of fact.'Id. at 826 (citing Commonwealth v. Ricci, 54 A.2d 51,52 (Pa.Super. 1947)). The court, however, also provided for a cautionary warning:
where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the court should warn the jury that the testimony as to identity should be received with caution. Id. at 826-827. Thus "[a] Kloiber charge instructs the jury that an eyewitness' identification should be viewed with caution where the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past." Commonwealth v. Rollins, 738 A.2d 435, 448 n. 14 (Pa. 1999), reargument denied, (Pa. Nov. 12, 1999).
As to Ms. Ford and Ms. Lomax, both women made positive identifications on several occasions and both had a clear view of petitioner as he committed the crimes. Petitioner fails to specifically identify any point in the record where either witness wavered in their identification of him. Thus, petitioner's counsel had no basis for requesting a Kloiber charge with respect to these witnesses.
In the event that petitioner is referring to the testimony of Grubbs, petitioner misunderstands the purpose of the Kloiber charge. A Kloiber provides a cautionary warning to the jury with respect to identification testimony that is given without complete certainty. Given that neither the Commonwealth nor the defense asked Grubbs to identify the man who shot his uncle during his testimony, Grubbs was not an identification witness. Since the Kloiber charge is only used in regards to identification witnesses, petitioner's counsel had no grounds to claim that the jury instruction on identification testimony was inadequate based on Grubbs' testimony. As there has been no showing that trial counsel's performance fell below an objective standard of reasonableness, appellate counsel can not be ineffective for failing to preserve the instant claim.
3. Ineffective Assistance of Appellate Counsel for Not Raising on Appeal Trial Counsel Ineffectiveness for Failing to Object to the Introduction of Composite Drawings at Trial.
Petitioner's next ineffectiveness claim is founded on the admission of two composite sketches at trial, which he claims were highly prejudicial. One of the composites was of the other, unidentified, perpetrator in the McNeil murder. This composite was prepared via the description of Ms. Lomax and was introduced during her direct examination. The second was a sketch prepared via the description of Mr. Grubbs, which was admitted during his testimony. Mr. Grubbs testified that the sketch was prepared the same day he witnessed his uncle's murder. Petitioner claims that these sketches were hearsay as they were rendered from statements made by witnesses not subject to cross-examination.
On appeal from dismissal of the PCRA court, the Pennsylvania Superior Court held that regardless of the admission or exclusion of the composite sketches, the remaining evidence against petitioner was so compellingly persuasive and overwhelming that it undermined any potential for acquittal. The court declined to otherwise address the merits of this claim in light of the fact that petitioner suffered no prejudice from the admission of the composite sketches.
As our review compels the same conclusion, this Court finds that the state court decision was not contrary to, or an unreasonable application of, clearly established federal law. Evident from the facts found by the PCRA court, petitioner did not suffer prejudice as a result of the admission of the sketches into evidence. The first sketch that depicted the other perpetrator in one of the robbery-murders in no way prejudiced petitioner. The man depicted in the sketch was never identified and there was never a connection made between the man in the sketch and petitioner. The second sketch also did not prejudice petitioner as this sketch added nothing to the Commonwealth's case. Grubbs, himself, testified that the sketch looked nothing like the shooter. Moreover, regardless of whether the composite sketches were admitted or were not admitted into evidence, the remaining evidence was so compelling that the jury would not have acquitted petitioner. Petitioner cannot show that there is a reasonable possibility that, but for trial counsel's failure to object to the admission of the sketches, he would have been acquitted. Therefore, appellate counsel cannot be ineffective for failing to raise an issue that would not have resulted in the reversal of his client's conviction.
Respondents again put forth an alternative argument that this is a state law issue that the federal Court cannot second-guess. How ever, this Court is not being asked to consider the application of a state law. This Court is only concerned with the performance of petitioner's counsel, which is clearly a federal issue. See supra note 20.
See supra note 13.
4. Ineffective Assistance of Appellate Counsel for Failing to Raise on Appeal Trial Counsel Ineffectiveness for Failing to Seek an Alibi Instruction Pertaining to the Lesesne Murder.
Petitioner's final ineffectiveness claim stems from testimony concerning his whereabouts when Mr. Lesesne was killed. Petitioner asserts that the testimony given by August Bailey, Dorothy Bailey, and Retus Bryant provided him with an alibi for the Lesesne killing and, thus, his trial counsel was ineffective for failing to ask the court that an alibi instruction be given to the jury. According to the record before this Court, Mr. Lesesne was shot to death near 24th and Jefferson Streets between 10:00 and 10:30 p.m. on September 12, 1986. All three of the witnesses testified that, on the relevant evening, petitioner was at Dorothy Bailey's house at 2437 Jefferson Street, which is four blocks from the location where Mr. Lesesne was killed. When August Bailey was asked what time she saw petitioner she responded, "I guess about ten, something like that" and "I think about ten." (N.T. 2/19/88, p. 237). She was unable to specify exactly when she saw him and for how long. Dorothy Bailey, mother of August Bailey, was hosting a Tupperware party at her home that evening from approximately 8:00 p.m. to midnight. After being interviewed by police subsequent to petitioner's's arrest, she told them she saw him pass by the window at "about 11:00 p.m., maybe a little later." (N.T. 2/24/88, p. 786). At trial, she testified to seeing petitioner two other times that night but could not testify to a definite time because she was busy tending to her guests. (N.T. 2/24/88, p. 787). Retus Bryant, August's grandmother, also testified to seeing petitioner that night but could not state what time she saw him. (N.T. 2/24/88, pp. 807-808).
Although petitioner only refers to the testimony of August Bailey in his petition, this Court will address the testimony of Dorothy Bailey and Retus Bryant as well, since they provided testimony as to Petitioner's whereabouts the evening Lesesne was killed.
Upon review from a dismissal by the PCRA court, the Superior Court found petitioner's claim had no merit. The court cited to the state supreme court's definition of an alibi as "a defense that places the defendant at the relevant time in a different place than the scene involved and so far removed therefrom to render it impossible for him to be the guilty party."Commonwealth v. Poindexter, 646 A.2d 1211, 1218 (Pa.Super. 1994) (quoting Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992). The Superior Court held that the evidence did not support an alibi defense, since the testimony given did not establish that petitioner was "so far removed [from the crime scene] as to render it impossible for him to be the guilty party." Since no alibi defense was established trial counsel could not be ineffective for failing to request an alibi charge.
This Court declines to reverse the Pennsylvania Superior Court's holding. Petitioner did not establish an alibi defense at trial. Although petitioner was seen several different times on the relevant night by three different people all at the same location, none of the witnesses were able to specify exactly what time they saw him. Moreover, there was no testimony at trial that rendered it impossible for petitioner to be at the scene of the crime at the relevant time. August Bailey's estimate that she saw petitioner at about 10 p.m. did not make it impossible for him to have been at the scene of the murder, which was only four blocks away, and commit the crime by 10:30 p.m. Thus, an alibi defense was not established and petitioner was not entitled to an alibi charge. Given this claim has no merit, appellate counsel cannot be deemed ineffective for failing to raise the issue on appeal.
V. CONCLUSION
Having thoroughly considered both parties' pleadings together with attached exhibits, this Court finds petitioner has not put forth a valid claim for ineffective assistance of appellate counsel. Consequently, there is no valid cause and prejudice exception for any such claims that were found procedurally defaulted. In conclusion, this Court finds no basis on which to grant the writ of habeas corpus, and, thus, makes the following:
RECOMMENDATION
AND NOW, this ____, day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.