Opinion
Civil Action No. 03-168J.
May 18, 2006
Report and Recommendation
Recommendation
Petitioner, serving a 7-20 year sentence imposed on February 1, 1999, by the Court of Common Pleas of Elk County, has filed a petition for a writ of habeas corpus. I recommend that the petition and a certificate of appealability be denied.
Report
I.
The relevant parts of the state court record were filed by respondent at docket no. 6. Petitioner was tried before an Elk County jury on December 22 and 23, 1998, on charges of murder (third degree), voluntary manslaughter, involuntary manslaughter, and aggravated assault. The Honorable Vernon D. Roof presided; District Attorney Bradley Kraus, Esquire, prosecuted petitioner; the Public Defender, James L. Martin, Esquire, represented petitioner. The charges were filed because petitioner had shot and killed Bruce Moewe in the late evening of May 1, 1998. Petitioner and Moewe were acquainted: petitioner had lived for more than two decades at a small hunting camp residence on Pig's Ear Road in Highland Township, Elk County, and Moewe, who lived nearby, was purchasing a used International Harvester Scout from petitioner, paying petitioner with the proceeds of odd jobs such as cutting grass. Moewe also used petitioner's telephone, and it was a dispute over payment of the petitioner's phone bill that led to the fatal confrontation. Petitioner asserted that he had been napping on the evening of May 1, 1998, and had come downstairs to find Moewe using his telephone. Petitioner permitted Moewe to use his telephone to make collect calls or calling card calls to his mother (who lived in Ohio) and friends, but had been upset to discover earlier that day that Moewe had made approximately $150 dollars worth of long distance calls that were charged to petitioner's phone bill. Petitioner claimed that he told Moewe to leave his residence and that he fired his rifle at Moewe because Moewe, twenty years his junior and intoxicated, was advancing toward him to assault him after petitioner told him he could not use the telephone until the previously accrued charges were paid.The only living eyewitness to the homicide was the petitioner. The lack of any other plausible motive for murder, the evidence that both Moewe and petitioner were intoxicated, and the simple nature of the forensic evidence made the focus of the trial the petitioner's state of mind. Petitioner's position was that the single shot he fired was in self defense; the Commonwealth alleged that petitioner, angered by the phone bill, fired with malice (in which case he was guilty of murder), or that petitioner's alleged belief he was in danger was unreasonable (in which case he was guilty of voluntary manslaughter).
The Commonwealth's first witness was John Parker, who owned a camp near petitioner's cabin. Parker and his nephew, Brad Kettering, saw Moewe in their driveway when they arrived at their camp in the evening of May 1, 1998, and Moewe was "highly intoxicated" at the time. Trial Transcript 12/22/1998 at 31. Parker and Kettering left for the nearby town of Marienville, returning shortly after midnight to find petitioner on the telephone to 911 and Moewe dead on the floor of petitioner's cabin. Parker testified that petitioner stated, "I shot the S.O.B.," id. at 34, that he and Moewe had been arguing about a phone bill, and that Moewe "had come at him and told him he was going to gouge his eyeballs out." id. at 35. Parker recalled no other statements by petitioner about Moewe's actions. id. at 36.
Pennsylvania State Police trooper Curtis Wise was dispatched by 911 and arrived at petitioner's cabin just before 1:00 a.m. on May 2, 1998. He observed Moewe's body with no weapon near it.id. at 50-51. Wise remained with petitioner, Parker, and Kettering on the porch, and heard petitioner repeat his statements that he had killed Moewe after an argument about a phone bill, that he had told Moewe to leave several times, that Moewe had threatened to gouge petitioner's eyes out, and that Moewe had come at him. id. at 53-54.
Trooper Stephen Willets, arriving with his partner Wise, testified to hearing petitioner explain his actions:
I heard Mr. Lundquest over and over — he was telling Mr. Parker and Kettering that he was upstairs sleeping. He came downstairs and found Mr. Moewe standing near the doorway. They got into an argument over a phone bill of Mr. Lundquest's and that Mr. Moewe said he was going to gouge Mr. Lundquest's eyes out; that he stated he had that look in his eye. He lunged at him and he pulled the trigger — well, he also stated he had a — his rifle was around the corner into the room just behind the living room.
That's where Mr. Lundquest was standing, evidently in that doorway, reached around, grabbed the rifle, told Mr. Moewe, "No, you're not going to gouge my eyes out." And when Mr. Moewe lunged at him, he shot him. id. at 58-59.
After brief testimony from a paramedic that Moewe had died, the playing of the petitioner's call to 911, and the introduction of physical evidence, Trooper William Brown testified that he arrived at the cabin and interviewed petitioner. Brown read into the record the petitioner's written statement about the shooting:
I Jack Lundquest a guy at my door and got into a (sic) argument over bills and then he threatened me and came at me and I told him too (sic) leave and he refused too and came at me so I grabbed the rifle to scare him he didn't stop so I shot. id. at 90 [gaps and sic)s in original, probably added by the court reporter)].
Brown stated that "over and over again he kept repeating what had happened," and that he heard petitioner tell the paramedic, Wise, Parker, and Kettering that Moewe threatened to gouge his eyes out and came at him, and that is when he shot Moewe. id. at 93. Brown conducted a formal interview at the police barracks at about 3:30 a.m. id. at 91. Petitioner informed Brown that Moewe had slept at petitioner's cabin the night before, and that the two had breakfast and dinner together on May 1, 1998, that Moewe left after dinner, and that petitioner had taken a nap at about 6:00 p.m. Petitioner had earlier received a telephone bill in the amount of $158, which was mostly due to calls made by Moewe. At about midnight, petitioner heard someone on the phone, and got out of bed. He came downstairs, saw Moewe on the phone and told him to stop using the phone until the bill was paid. Moewe and Lundquest argued, and Moewe eventually said that he would do what he wanted, and that he would gouge Lundquest's eyes out as he had to Ray Clark earlier. Moewe came toward Lundquest. Lundquest grabbed his rifle, told Moewe to stop, and pulled the trigger when Moewe did not stop. id. at 95-98.
Trooper Brown confirmed that Moewe had been in altercation with Ray Clark. id. at 109. He also obtained telephone records for May 1, 1998, for petitioner's address, and determined that 14 calls had been made between 8:00 p.m. and 11:31 p.m., all to family or friends of Moewe. id. at 100-102.
Eric Vey, M.D., the pathologist who performed the autopsy of Moewe's body, testified that Moewe died from a single .30/30 rifle bullet which struck Moewe in the abdomen and fragmented, perforating his intestines and the inferior vena cava before striking the spinal column. Vey reported that Moewe's blood alcohol content at the time of death was .392%, a toxic level capable of killing a non-alcoholic, and that Moewe's ability to visit the Parker camp and to make more than 10 phone calls on the evening he was shot indicated that Moewe was likely a chronic drinker. Vey also opined that intoxication results in "impaired inhibition," which might result in a person becoming angrier sooner than normal. id. at 130-140. The Commonwealth rested its case at this point.
The defense began with establishing the credibility of petitioner's fear of Moewe by calling Ray Clark, who owned the hunting camp about 60 yards from petitioner's cabin. id. at 143. Clark testified that he and Moewe had been drinking at petitioner's cabin the week before the shooting, and when Clark told Moewe he believed Moewe was drinking too much, Moewe "stood up and he said something about gouging my eyes out, and then he sucker-punched me." Clark testified that he suffered a cut on his ear, a cracked dental plate, and some lumps on the back of his head. id. at 145.
After Clark, the defense presented a private investigator who took still pictures and a video of the petitioner's cabin, id. at 153-160, apparently for the purpose of showing the close quarters at which Moewe allegedly had threatened petitioner. Petitioner then testified, id. at 161-205, that had he lived at his cabin for 21 years, that he had met Moewe about three months before the shooting, and that by doing odd jobs Moewe was paying him $500 for the used automobile he had purchased from petitioner. Moewe and petitioner had eaten breakfast together that morning, and had planned to have dinner that night. Moewe owed petitioner money for using his phone. Petitioner testified that Moewe was supposed to use the phone only for collect calls, but petitioner had received a bill the day of the shooting showing that Moewe had made about $150 in calls in the previous month. This was a significant expense to petitioner, who lived on food stamps and money from occasional jobs.
Petitioner described the fight between Moewe and Clark somewhat differently from Clark, adding that after Moewe punched Clark he began kicking him, and also noting that this had occurred in March, not the week before the shooting as Clark recalled. Petitioner testified that he had pushed Moewe out the door to end Moewe's assault on Clark.
Petitioner testified that on the night of shooting he was taking a nap and woke when he heard someone on the phone downstairs. Petitioner went downstairs and told Moewe to get off the phone until he paid the outstanding bill. When Moewe said that his mother would pay the bill, petitioner told him he couldn't use the phone until the bill was paid. At this, petitioner stated, Moewe (who was intoxicated) "got crazy" and said "I'm going to take care of you like I took care of Ray [Clark]," and that he told petitioner "I'm going to gouge your eyes out as I was going to do to Ray." id. at 172-73. Petitioner reached for his rifle at this point "just . . . to more or less scare him." Moewe started towards petitioner, who brought the rifle up with one hand and warned Moewe to stop. Moewe kept coming, "and the rifle went off." id. at 174. Petitioner testified that Moewe appeared to be reaching toward a fillet knife lying on the nearby bar at the time petitioner fired the shot. id. at 175.
To defuse the cross-examination, trial counsel explored the discrepancies between petitioner's trial testimony and the statements he made on the night of the shooting, specifically the statement to the 911 operator that the person he shot had broken in to his cabin and the absence of any statement that Moewe was reaching for a knife. Petitioner testified that he was "shook up, big time" at the time he spoke to the 911 operator and "too shook up" during his interview with police to tell them about Moewe trying to reach for the knife. id. at 177-78. Counsel also had petitioner explain that he had chambered a second round after firing at Moewe, id., and petitioner explained on cross examination that was simply by reflex. id. at 196.
On cross examination, Moewe also testified that he knew that Moewe was intoxicated and that he had taken only a couple of small steps toward petitioner when he fired his rifle.
The next morning, the defense called its last witness, a neighbor who testified that there had been a fillet knife on the bar in petitioner's cabin when he was there several days after the shooting. During in camera proceedings on the relevancy of this testimony, counsel also reviewed the charge and petitioner's trial counsel indicated that he did not want the jury given a charge on involuntary manslaughter. Counsel explained he believed it would be inconsistent with petitioner's defense of an intentional shooting done in self-defense. Trial Transcript of December 23, 1998 at 6. Counsel acknowledged he was aware he could have the court charge on involuntary manslaughter. The court explained this issue to petitioner, and also called a recess so that petitioner could further discuss the matter with counsel. After a five minute break, petitioner stated his agreement with this course of action. id. at 6-11. The court charged the jury accordingly.
After several questions, the jury acquitted petitioner of murder, and found him guilty of manslaughter and aggravated assault. A mandatory five year minimum applied to the aggravated assault conviction because of the use of a firearm. After considering a number of factors, including petitioner's criminal record (convictions for DUI and theft fairly remote in time), Judge Roof imposed sentence on February 1, 1999.
After filing unsuccessful post-sentence motions, see docket no. 6, Exhibit 10, petitioner filed an appeal in the Superior Court of Pennsylvania in which he raised four claims: 1) the evidence was insufficient to support the conviction; 2) the conviction was against the weight of the evidence; 3) the sentence was an abuse of discretion; and 4) the imposition of a fine without inquiry into petitioner's ability to pay was improper. See docket no. 6, Exhibit 9, Commonwealth v. Lundquest, No. 514 WDA 1999, slip op. at 1 (Pa.Super. July 25, 2000). The Superior Court vacated the fine, but otherwise affirmed the conviction and judgment of sentence. Petitioner's petition for allowance of appeal was denied without explanation by the Supreme Court of Pennsylvania. docket no. 6, Exhibit 8, Commonwealth v. Lundquest, No. 491 WD Alloc. Dkt. 2000 (Pa. July 25, 2001).
On November 7, 2001, petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. docket no. 6, Exhibit 6, Amended Petition, Exhibit A. George Daghir, Esquire, was appointed counsel and filed an amended petition on January 8, 2002. The petition and amended petition made these claims: 1) trial counsel was ineffective for requesting that the court not instruct the jury on Involuntary Manslaughter; 2) trial counsel was ineffective for failing to "paint a picture" of Moewe's character through evidence of prior hospitalizations and drunk driving convictions; and 3) the District Attorney had a duty not to prosecute defendant. id., Amended Petition at 5.
Judge Roof held a hearing on February 28, 2002, at which petitioner and trial counsel Martin testified. docket no. 6, Exhibit 7, Transcript of February 28, 2002 PCRA Hearing. Martin explained that he asked the court not to give the involuntary manslaughter charge because he did not want to present inconsistent defenses:
The reason being that the central defense in this matter — defense to Mr. Lundquest was self-defense, basically that — admitting that he did intentionally shoot Mr. Moewe, but it was done in self-defense. Whereas the involuntary manslaughter was a doing of a lawful act in a recklessly or grossly negligent manner or an unlawful act in a grossly negligent manner.id. at 7. At the close of the hearing Judge Roof denied the petition, finding that trial counsel had made a reasonable tactical decision in asking that the court not instruct the jury on involuntary manslaughter. id. at 25-30. After a notice of appeal was filed, Judge Roof supplemented his ruling with an opinion. docket no. 6, Exhibit 3, Commonwealth v. Lundquest, Criminal No. 1998-116 (C.P. Elk March 27, 2002).
On appeal, the sole issue raised by Daghir was trial counsel Martin's effectiveness in rejecting the charge on involuntary manslaughter. The Superior Court affirmed, finding that counsel's strategy was reasonable. docket no. 6, Exhibit 2, Commonwealth v. Lundquest, No. 523 WDA 2002, slip op. at 1-4 (Pa.Super. September 16, 2002). Petitioner's petition for allowance of appeal was denied without explanation by the Supreme Court of Pennsylvania. docket no. 6, Exhibit 1, Commonwealth v. Lundquest, No. 527 WD Alloc. Dkt. 2002 (Pa. April 23, 2003).
II.
The petition for writ of habeas corpus asserts that trial counsel was ineffective in two ways: 1) by rejecting the charge on involuntary manslaughter; and 2) by failing to present to the jury the details of Moewe's prior history of violence and alcohol abuse. Petitioner's first claim was exhausted in the state courts. The second claim was procedurally defaulted. I discuss the latter claim first.
A.
Petitioner's second claim was presented to the trial court in the pro se PCRA petition. In fact, the habeas corpus petition duplicates the pro se PCRA petition's allegations of Moewe's history of automobile accidents and hospitalizations caused by abuse of alcohol: that in 1989, Moewe had killed a former girlfriend in an accident while driving under the influence; that on two occasions in 1993, Moewe had been hospitalized, once for punching an automobile window and once for a suicide attempt; that in 1996 or 1997, Moewe was convicted again of driving under the influence; that in 1997 Moewe was accused of theft, threw a telephone at the floor when his mother refused to give him money, and was involved in a fight (in which neither participant was charged); and that Moewe that had applied for disability benefits based Moewe's claim to be suicidal. However, petitioner did not present any testimony on this second claim at the PCRA hearing, it was not ruled on by the trial court, and it was neither presented to nor ruled on by the Superior Court during the counseled appeal from the denial of PCRA relief. This second claim must be considered procedurally defaulted, since it was not properly exhausted and petitioner is now barred from exhausting it in state court both by the PCRA's statute of limitations and bar on relitigation of claims that were or could have been presented at an earlier stage of the proceedings. See 42 Pa.C.S. §§ 9544-45.
Procedural default bars petitioner from raising the defaulted claim in federal court unless petitioner can demonstrate either: 1) that his failure to exhaust the claim was due to some cause attributable to the Commonwealth (such as ineffective assistance of trial counsel, see Edwards v. Carpenter, 529 U.S. 446, 451 (2000)), and he suffered prejudice as a result of the alleged violation of federal law; or 2) that he is actually innocent.See Schlup v. Delo, 513 U.S. 298 (1995).
Petitioner cannot establish cause for his default of the second claim because any failure to develop or preserve the claim was due either to petitioner or to his PCRA counsel. It appears from the transcript of the PCRA hearing that Daghir made a conscious decision to concentrate only on the jury instruction claim and to forego the "failure to paint a picture" claim. It is legally irrelevant whether this was because Daghir discovered that petitioner could not establish a foundation for admission of any of the alleged evidence about Moewe, namely that petitioner had known of this evidence of Moewe's history on the evening of May 1, 1998, because of the doubtful prospects that any of the alleged evidence of Moewe's character would be admissible, or even because Daghir abandoned the claim for no reason: any failure to preserve the claim in collateral proceedings is not cause attributable to the state. See Coleman v. Thompson, 501 U.S. 722, 750-52 (1991); 28 U.S.C. § 2254(i).
Petitioner does not attempt to excuse his default of the second claim by asserting he is actually innocent, and it is clear that he could not make such a claim. The actual innocence exception to procedural default ordinarily requires new and reliable physical, scientific, or eyewitness evidence that would persuade any rational juror that a petitioner could not have committed the crime for which he was convicted. See Hubbard v. Pinchak, 378 F.3d 333, 339-40 (3d Cir. 2004), cert. denied, 543 U.S. 1070 (2005). Because there never was a dispute that petitioner fatally shot Moewe and was the only surviving witness to the alleged antecedent argument, the only relevant evidence — that of the effect of the knowledge of Moewe's history on petitioner's state of mind — cannot be new.
Even if that evidentiary shortcoming was ignored, the evidence petitioner alleges in his second claim could not show that no rational jury would have convicted petitioner, and it is not sufficient to show that a jury given the alleged new evidence might have decided differently.
The actual innocence exception is reserved for the "rarest of cases." Hubbard, 378 F.3d at 338. The Court of Appeals for the Third Circuit illustrated how narrow this exception is in Glass v. Vaughn, 65 F.3d 13 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996). Glass, a combat veteran convicted of first degree murder despite his alibi defense, attempted to excuse a defaulted claim that his trial counsel should have investigated and presented a diminished capacity defense based on post-traumatic stress disorder, on the grounds that Glass's PTSD (which was acknowledged by the respondent's expert, and evidence of which respondent conceded could have been introduced at trial, id. at 65 F.3d 15-16), showed that he was actually innocent because he could not have had a specific intent to kill. The panel rejected that claim of actual innocence, noting that because there was evidence that Glass had gone to the murder scene armed and earlier behaved violently toward the victim, a rational juror could have found Glass guilty. If the evidence in Glass could not meet the actual innocence exception, nothing offered by petitioner in this matter can. I therefore cannot reach petitioner's second ineffectiveness claim.
B.
Addressing the first ineffectiveness claim, I am commanded by 28 U.S.C. § 2254(d) (1) to defer to the legal conclusions of the state courts unless they are "contrary to" or an "unreasonable application" of federal law. In Williams v. Taylor, 529 U.S. 362, 411-13 (2000), the United States Supreme Court discussed the meanings of the "contrary to" and "unreasonable application" clauses of Section 2254(d) (1):
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
The state courts applied the proper standards in making the finding that Martin was not ineffective. Under Pennsylvania law, counsel is ineffective if counsel's conduct had no "rational, strategic or tactical basis," and "in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa. C.S. § 9543(a). Pennsylvania's law of ineffective assistance of counsel is substantially identical to Strickland v. Washington. Werts v. Vaughn, 228 F.3d at 203-04. The state courts' rejection of petitioner's claim was therefore not "contrary to" federal law.
A federal court making the "unreasonable application" inquiry must ask whether the state court's application of clearly established federal law was objectively unreasonable: "Under § 2254(d) (1)'s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that 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." Williams v. Taylor, 529 U.S. at 411. This standard applies to the state court's ruling on the claim that trial counsel did not provide effective assistance of counsel. Werts v. Vaughn, 228 F.3d 178, 196-97 (3d Cir. 2000), cert. denied, 532 U.S. 980 (2001).
The Supreme Court requires a petitioner to prove two elements to show a former counsel rendered constitutionally ineffective assistance: 1) counsel's performance was unreasonable; and 2) counsel's unreasonable performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).Strickland v. Washington, 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. Strickland v. Washington, 466 U.S. at 690. The first prong of the Strickland test requires a defendant to establish that counsel'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. Strickland v. Washington, 466 U.S. 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."Strickland v. Washington, 466 U.S. at 689. The question is not whether the defense was free from errors of judgement, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place. id.
The second prong requires a defendant to demonstrate that counsel's errors deprived him of a fair trial and the result was unfair or unreliable. id. To prove prejudice, a 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. Strickland v. Washington, 466 U.S. at 694 (emphasis added). A "reasonable probability" is one that is sufficient to undermine confidence in the outcome. Id. In other words, a petitioner must show a "reasonable likelihood that . . . information [not presented] would have dictated a different trial strategy or led to a different result at trial," Lewis v. Mazurkiewicz, 915 F.2d 106, 115 (3d Cir. 1990). A different outcome must be not merely possible, but probable. McNeil v. Cuyler, 782 F.2d 443, 451 (3d Cir. 1986). In the context of this petition, the probable alternative outcome is not acquittal, but a finding of involuntary manslaughter.
If petitioner's evidence fails to prove both elements required by Strickland v. Washington, his claim fails. It is therefore necessary to deny habeas relief if the state court's rejection of either element was reasonable, because "[t]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697.
Judge Roof stated that state law permitted counsel to argue both that the shooting was intentional (a requirement of both third degree murder and voluntary manslaughter) but done in self-defense, and, in the alternative, that the shooting was at most reckless (the state of mind necessary for involuntary manslaughter). However, he concluded:
Even though, as we earlier indicated, the law would have allowed it, that does not take away from trial counsel's tactics to seek a full acquittal on all of the charges by making a decision not to argue or present an involuntary manslaughter claim when counsel is proceeding on the basis that self-defense is a viable defense which, if accepted by the jury, would serve as a full acquittal on all the charges. Because we concluded that counsel had a reasonable basis for the tactical decision not to instruct the jury on involuntary manslaughter, we need not address the further issue of whether prejudice existed or did not exist and the probability of a different outcome.
We're also satisfied from the record that this matter was clearly discussed with the defendant. This was not a decision that was made in — on a whim or in a vacuum by Mr. Martin. It was presented to the Court. The Court had an in-camera proceeding, as the record reflects, with Mr. Lundquest present. The Court provided ample opportunity — I believe a five-minute time frame the record reflects — for Mr. Martin to discuss with Mr. Lundquest again whether or not there would be a request for an involuntary manslaughter charge.
docket no. 6, Exhibit 7, PCRA Hearing Transcript at 27-28. Thus, the state court made a factual finding that counsel decided to forego the possibility of a compromise verdict in order to seek a full acquittal on the basis of self-defense. The state court then determined that, as a matter of law, this decision was within the bounds of reasonableness required of counsel during trial. That decision is a reasonable application of Strickland v. Washington.
Trial counsel was faced with a decision which offered competing advantages to his client. Including a charge on involuntary manslaughter would give the jury the opportunity to convict petitioner of a lesser offense, with less harsh punishment, if they concluded that Lundquest acted recklessly as opposed to intentionally. On the other hand, counsel's decision focused the jury solely upon the claim of self-defense, and would not require counsel to argue inconsistent theories.
Federal law recognizes that trial counsel need not present every possible defense in every case. Indeed, one of counsel's greatest responsibilities at trial is to choose from among possible defenses the defense or defenses most likely to benefit his client. In Bell v. Cone, 535 U.S. 685 (2002), for instance, the Supreme Court decided, 8-1, that an attorney who declined to call any witnesses or make any closing argument on behalf of his client at the penalty phase of a capital trial was not ineffective because, under Tennessee law, by doing so he prevented the prosecution, which had delivered a "low-key" statement calling for the death penalty, from having a second and more dramatic opportunity to argue in rebuttal. In Florida v. Nixon, 543 U.S. 175 (2004), the Court held that it is reasonable for defense counsel to enter a guilty plea in capital case to concentrate on penalty phase, thereby avoiding jury credibility problems which might result from presenting inconsistent defenses).
Here, a claim that the gun was employed recklessly as opposed to intentionally could be seen as being inconsistent, and may well have confused the jury or made the jury disbelieve one or both versions of events, much as a jury faced with a defense of "I didn't do it" in the guilt phase of a capital case may disbelieve evidence of mitigation at sentencing which presents the implicit claim "I have a partial excuse for what I did."See Florida v. Nixon, 543 U.S. at 191-92. Martin was well within the bounds of reasonable trial strategy in determining that it was better to present a single, consistent defense of intentional use of the weapon in self-defense rather than to argue in the alternative that it was either intentional and in self-defense or unintentional and merely reckless.
I add a second point, which the state court did not need to reach in this case, but which I make because petitioner's claim presents a recurring theme in habeas petitions: "my attorney asked for the wrong instruction." Under the second prong ofStrickland v. Washington, a petitioner must prove that counsel's actions caused prejudice. Claims such as the petitioner's in this matter can almost never prove prejudice. To say that a jury which had more than enough evidence to find petitioner guilty of voluntary manslaughter — petitioner, though he sought to avoid using the word intent, clearly testified that he intentionally shot Moewe after an argument, gave a false account of the shooting to the 911 operator, never said anything at the scene about a fear Moewe would use a knife, and had previously handled violence by Moewe simply by pushing him out the door — might have found that petitioner shot Moewe accidentally if counsel had asked for that instruction, is to engage in pure speculation. One might speculate that the jury might have as easily decided to find petitioner guilty of third degree murder. Unless a conviction is not supported by sufficient evidence (in which case the writ would issue for reasons other than the Sixth Amendment), a decision not to request a lesser or lesser included offense instruction cannot as a matter of law be prejudicial to the petitioner. For a Strickland v. Washington claim based on an alleged failure to ask for the "correct" instruction logically requires that the instruction actually given to have been somehow wrong. However:
[A] habeas corpus petitioner faces a heavy burden in challenging allegedly defective jury instructions. The petitioner must show that the offending instruction is so oppressive as to render a trial fundamentally unfair.
Government of the Virgin Islands v. Smith, 949 F.2d 677, 684 n. 7 (3d Cir. 1991) (internal citations and quotations omitted).See also Smith v. Horn, 120 F.3d 400, 411 (3d Cir. 1997),cert. denied, 522 U.S. 1109 (1998) ("The proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution," citing Estelle v. McGuire, 502 U.S. 62, 72 (1991) (other citations omitted).) In general, challenges to the correctness of jury instructions raise purely state law issues, see Engle v. Isaac, 456 U.S. 107, 119 (1982), unless the jury instructions are so defective that they violate the defendant's fundamental due process rights. Geschwendt v. Ryan, 967 F.2d 877, 883 (3d Cir.) (in banc), cert. denied, 506 U.S. 977 (1992). The two types of instructional error that have been held to violate due process are instructions lessening the state's burden to prove the elements of the offense charged beyond a reasonable doubt,see e.g. Gilmore v. Taylor, 508 U.S. 333 (1993); Cupp v. Naughten, 414 U.S. 141 (1973), and instructions incorrectly stating substantive law, see Smith v. Horn, 120 F.3d at 415,Hicks v. Oklahoma, 447 U.S. 343 (1980); see also cases cited in Kontakis v. Beyer, 19 F.3d 110, 115-16 n. 7 (3d Cir.),cert. denied, 513 U.S. 881 (1994). Since the alleged failure of trial counsel involved neither kind of error, even if as a matter of Pennsylvania law the state court might entertain an ineffectiveness claim such as petitioner's, he could not prove a violation of Strickland v. Washington even if federal review were de novo.
The petition should be denied. Although reasonable defense counsel might have taken different approaches to petitioner's defense, no reasonable jurist could find that Martin's performance was ineffective assistance of counsel. No certificate of appealability should be issued.
Pursuant to 28 U.S.C. § 636(b) (1), the parties are given notice that they have ten days to serve and file written objections to this Report and Recommendation.