Opinion
CIVIL ACTION NO. 03-795.
April 25, 2007
MEMORANDUM
This is a death penalty case. Petitioner Jerry Marshall, Jr. ("Marshall" or "Petitioner"), a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that he is entitled to a new trial because of numerous violations of his constitutional rights.
I.
The grisly crimes for which Marshall was prosecuted are described in detail by the Pennsylvania Supreme Court in its opinion in Commonwealth v. Marshall, 633 A.2d 1100, 1102-03 (Pa. 1993) ("Marshall I"). On the morning of May 20, 1987, Marshall and his wife, Donna, had an argument when she awoke in their apartment to find him pilfering money from her purse so that he could purchase drugs. Shanisha Dunbar, Donna's nine-year-old daughter overheard the dispute, woke her seven-year-old younger sister, Ayesha, and sent her to see what was happening. Standing in the hallway and looking through the open bedroom door into her mother's bedroom, Ayesha saw her mother tied to the bedpost with a telephone cord and being strangled by her stepfather, Marshall. When Ayesha returned to Shanisha in their bedroom and reported what she saw, Shanisha retrieved a knife from the kitchen, returned to their bedroom, and placed the knife under her pillow. Unfortunately, Marshall saw Shanisha retrieve the knife and called out to her. Shanisha thereupon ran out of the bedroom and fled into the kitchen where Marshall caught her after giving chase. He picked her up and, despite her pleas, brought her back to her mother's bedroom and closed the door. Lying in her bed in another room, Ayesha described the sounds that followed as "heads" or "weights" that were "hitting the floor" "real hard" and "a spit-up sound." Ayesha saw Marshall wash blood from his hands after he had emerged from the bedroom. Marshall told Ayesha that her mother was ill and that Shanisha was helping her. He then left the apartment with Ayesha and his two children, Jerry and Jenieda.
Marshall's drug addiction had been a source of ongoing disputes with his wife. She had threatened to leave him on many occasions including one month before her death if he did not break his habit. Marshall had stated several times to Donna in the presences of others that he would kill her if she ever tried to leave him. N.T. 10/4/89, 33-38, 94-95, 102, 155
Shanisha and Ayesha were the biological daughters of Donna Marshall and stepdaughters of Marshall. The Marshalls had two children together, Jerry and Jenieda. At the time of the murders, the four children shared one room with two beds. Shanisha and Ayesha slept in one bed; Jerry and Jenieda slept in the other.
Presumably, Marshall was unaware that Ayesha had seen him in the act of murdering her mother.
Marshall drove the children to the home of Lyla Jenkins, a female friend, where he left them at sometime between 10:00 a.m. and noon. He did not return to pick them up until the following day. Ayesha testified that Marshall stopped the car on at least two separate occasions to stick a needle in his arm.
Upon leaving the children, Marshall met with Scotty Brecher ("Brecher"), a long-time friend with whom he regularly injected cocaine. That afternoon, while taking drugs with Brecher, Marshall revealed that he had killed his wife when she caught him stealing money from her purse and that because his stepdaughter had witnessed the event he had been forced to kill her to "shut her the f**k up." Id. at 1103. He explained that he used a hammer which he had thoroughly sanitized when he had finished so as to remove any gore and fingerprints.
Later that evening, after injecting more cocaine, Brecher accompanied Marshall to the latter's apartment. Marshall braced Brecher for the gruesome site before entering Donna's bedroom. Then Marshall opened the door, revealing the bodies of Donna and Shanisha. The pair stepped over the bodies to steal Donna's television so that they could sell it and purchase more drugs. The next day Marshall and Brecher sold Donna's car for money to purchase cocaine. Shortly thereafter, on Friday, May 22, Marshall fled to South Carolina.
That same morning police found the bodies of Donna Marshall and Shanisha Dunbar. Autopsies revealed that the former had been strangled and the latter had died due to a fractured skull, brain hemorrhage, cerebral swelling, and a laceration to her heart. Shanisha also had a puncture wound in her right cheek and had suffered several injuries to her neck. An arrest warrant was issued for Marshall the following day.
It was not until February, 1988 that authorities located Marshall in Charleston, South Carolina. He was returned to Philadelphia on April 12, 1988. Marshall was tried by jury in October, 1989 before the Honorable Albert F. Sabo in the Court of Common Pleas of Philadelphia County. On October 10, 1989, the jury found Marshall guilty of two counts of first-degree murder in the killing of his wife and stepdaughter. The next day, after a sentencing hearing, the jury found two aggravating and no mitigating circumstances and sentenced the defendant to death.
After his conviction, Marshall filed post-verdict motions in the Court of Common Pleas. Before Judge Sabo ruled on the motions, Marshall fired his trial counsel, Daniel Connor, Esquire, and filed a pro se motion arguing that he had been ineffective. The court appointed Marshall new counsel, William James, Esquire, who filed supplemental post-verdict motions. He also filed a motion labeled as one for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46. Judge Sabo subsequently denied all relief. Marshall appealed to the Pennsylvania Supreme Court, which unanimously affirmed both the conviction and sentence of death in a unanimous opinion authored by Justice Frank J. Montemuro. Commonwealth v. Marshall, 633 A.2d 1100 (Pa. 1993).
Justice Rolf Larsen did not participate in the decision, nor did newly-elected Justice Ronald D. Castille.
On July 30, 1997, Marshall filed a petition for relief under the PCRA. On December 3, 1997, Judge Sabo issued notice of his intent to dismiss Marshall's petition in twenty days pursuant to Rule 1507 of the Pennsylvania Rules of Criminal Procedure. Without conducting a hearing, Judge Sabo summarily dismissed the petition without an opinion as stated in his notice of intent. Marshall again appealed. The Pennsylvania Supreme Court remanded the case to the Court of Common Pleas with directions for it to set forth its reasons for denying the petition. On remand, the case was reassigned to the Honorable Gary S. Glazer. Judge Glazer denied the PCRA petition without a hearing on April 20, 2000. He accompanied his Order with a written opinion.
Rule 1507 is now Rule 902. Rule 902(A)(12)(b) requires a PCRA petitioner to attach "affidavits, documents, and other evidence" to support grounds of relief for which there is insufficient support in the record. As stated by the Pennsylvania Supreme Court, "the purpose of the notice rules is to alert counsel to deficiencies in the pleadings, so that counsel may amend the petition to cure them." Commonwealth v. Clayton, 816 A.2d 217, 220 n. 3 (Pa. 2002) (citation omitted).
Marshall appealed Judge Glazer's PCRA order to the Pennsylvania Supreme Court. See 42 Pa. Cons. Stat. Ann. § 722(4). The Court handed down its decision on November 22, 2002. Five justices voted to deny relief but offered different reasons for doing so. Commonwealth v. Marshall, 810 A.2d 1211 (Pa. 2002) ("Marshall II"). Chief Justice Stephen A. Zappala announced the judgment of the Court and authored an opinion that was joined in part by Justices Ralph Cappy, Ronald D. Castille and J. Michael Eakin. These four justices, however, agreed only that the PCRA petition before the court was Marshall's first, that three guilt phase claims had been "previously litigated" on direct appeal in Marshall I and were not therefore cognizable under the PCRA, and that Marshall was not entitled to any PCRA relief. See id. at 1229-30. Aside from these narrow areas of agreement, no reasoning commanded a majority of the seven-member Court.
Chief Justice Zappala's opinion stated the following claims in Marshall's PCRA appeal had been "fully and fairly" litigated inMarshall I: (1) the trial court erred in failing to dismiss for cause prospective juror Karen Edith Poles; (2) Juror John M. Knauf should have been stricken for cause or peremptorily stricken by counsel; and (3) the prosecutor committed misconduct during his closing argument when he asked the jurors to close the eyes of the dead. The opinion also referenced other claims arising out of the sentencing proceeding which are not relevant for present purposes.
Justice Cappy filed a concurring opinion. Id. at 1229. Justice Castille wrote an opinion concurring in part and dissenting in part in which Justice Eakin joined. Id. at 1229-33. Justice Russell M. Nigro concurred in the result but neither wrote nor joined in any opinion. Id. at 1229. Finally, Justices Thomas Saylor and Sandra Schultz Newman dissented on the ground that Marshall should be awarded an evidentiary hearing on his claims. Id. at 1233.
Represented by new counsel, Marshall filed a timely petition for a writ of certiorari in the United States Supreme Court that focused on two issues under Brady v. Maryland, 373 U.S. 83 (1963) and Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court denied the petition on October 6, 2003. See Marshall v. Pennsylvania, 540 U.S. 833 (2003).
Marshall filed the present petition under 28 U.S.C. § 2254 for a writ of habeas corpus on April 30, 2003 based on alleged constitutional violations at both the guilt phase and penalty phase of his trial. After several rounds of voluminous briefing as well as numerous stipulated extensions of time, we held oral argument on the claims discussed in Sections IV-VI below. Thereafter, on January 11, 2007, the Commonwealth agreed to a new penalty phase hearing for Marshall in the state court. Therefore, we address only those claims in the petition that pertain to the guilt phase of his trial.
II.
Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which placed new restrictions on the power of federal courts to grant habeas corpus relief to state prisoners such as Marshall. See 28 U.S.C. § 2254. The law took effect on April 24, 1996 and governs all petitions filed thereafter. Wertz v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2001); 28 U.S.C. § 2254(d). Marshall filed his habeas petition in this court on April 30, 2003. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997).
We are empowered to entertain petitions for the Great Writ from those persons in "custody pursuant to the judgment of a State court and to grant relief only on the ground that they are in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wertz, 228 F.3d at 195-96. This power, however, is not without certain limits.
A federal court is prohibited from granting a writ of habeas corpus in favor of a state prisoner unless he or she has exhausted available state remedies. See 28 U.S.C. §§ 2254(b)(1)(A), (c); Ex Parte Royall, 117 U.S. 241 (1886). Our Court of Appeals has cautioned that the exhaustion requirement "is not one to be overlooked lightly." Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005) (citation omitted). The requirement was designed to address concerns of comity and federalism by "affording the state courts a meaningful opportunity to consider allegations of and correct any legal error without interference from the federal judiciary." Parker v. Kelchner, 429 F.3d 58, 61 (3d Cir. 2005) (citation omitted). If a petitioner has the right under applicable state law to raise a federal claim at the time his § 2254 petition is pending, he has not exhausted that claim.Id. § 2254(c). In essence, exhaustion requires a petitioner to "fairly present" all federal claims through one complete round of the state appellate review process before seeking relief in the federal courts. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999); Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). To "fairly present" 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" of the federal claim that is being asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982)). The petitioner must do this in each appropriate state court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citation omitted). While the petition need not have raised the federal claim "book and verse" in the state courts, it is insufficient to offer a "somewhat similar" claim. Harless, 459 U.S. at 6, 7. Likewise, if a habeas petitioner supplements an exhausted claim with new evidence that materially alters the substance or strengthens the merit of a claim that was put before the state courts, it is not a "substantially similar claim" and is not exhausted. See id. at 6; Demarest v. Price, 130 F.3d 922, 935-36 (10th Cir. 1997) (citation omitted). Nevertheless, a federal court may deny a habeas petition or claim on the merits even if the petitioner has failed to exhaust state remedies. See 28 U.S.C. § 2254(b)(2);Bronshtein v. Horn, 404 F.3d 700, 726 (3d Cir. 2005); Lambert v. Blackwell, 387 F.3d 210, 260 n. 42 (3d Cir. 2004).
Petitioner argues that several of the claims he raises in this court but did not in the state courts were nevertheless exhausted by virtue of the "automatic" review procedures of the Pennsylvania Supreme Court in capital cases. See 42 Pa. Cons. Stat. Ann. § 9711(h)(1). Marshall asserts that § 9711(h) commanded the Pennsylvania Supreme Court to review every conceivable error, whether or not it had been asserted or argued. Therefore, according to petitioner, all claims he makes today were "automatically" exhausted even if he did not present them to the state courts. This position has been expressly rejected by our Court of Appeals. See Bronshtein, 404 F.3d at 726.
At the time his case was pending on direct review, § 9711(h) provided:
(1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings as provided in paragraph (4).
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive of disproportionate to the penalty imposed in similar cases, considering both the circumstances of the criminal and the character and record of the defendant.
(4) If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances [is] supported by sufficient evidence or because the sentence of death is disproportionate to the penalty imposed in similar cases, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing pursuant to subsections (a) through (g).
The failure to exhaust federal claims in the state courts is only excused under narrow circumstances. See 28 U.S.C. § 2254(b)(1)(B). If "state corrective process" is unavailable or "circumstances exist that render such process ineffective to protect the rights" of a petitioner, exhaustion is excused. Id. § 2254(b). In addition, a petitioner's attempt to exhaust his federal claims is unnecessary where such an attempt would be futile. To establish futility, the petitioner must show that state court review is "clearly foreclosed" by state procedure.Whitney, 280 F.3d at 250 (citing Lines v. Larkins, 208 F.3d 153, 162-63 (3d Cir. 2000)). Merely because such review is "unlikely" is not adequate to establish futility and excuse exhaustion. Id.
In addition to the bar on federal habeas relief where petitioner has failed to meet the exhaustion requirement, a federal court is also precluded from reviewing a claim on the merits if petitioner has failed to comply with a state procedural rule that is "independent of the federal question and adequate to support to the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991); Bronshtein, 404 F.3d at 707. Our Court of Appeals has explained that a state procedural rule is inadequate when it is not "firmly established and regularly followed" or is "novel and unforeseeable." Bronshtein, 404 F.3d at 707 (citations omitted). State courts must "consistently and regularly" apply their procedural rules for procedural default to bar a habeas claim in federal court. Doctor, 96 F.3d at 684 (citation omitted).
The PCRA contains three major procedural bars relevant to Marshall's petition. A Pennsylvania court may not grant relief to a defendant under the PCRA unless a defendant files a PCRA petition within one year of the date his or her conviction became final. See 42 Pa. Cons. Stat. Ann. § 9545(b)(1). The state courts also may not grant post-conviction relief on any claim that was previously litigated on direct appeal or waived. 42 Pa. Cons. Stat. Ann. § 9543(a)(3). A claim is previously litigated if "the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue" or "it has been raised and decided in a proceeding collaterally attacking the conviction or sentence." Id. §§ 9544(a)(2), (3). An issue is deemed 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 postconviction proceeding."Id. § 9544(b). We discuss the PCRA time limit and waiver in greater detail below.
A habeas petitioner also can overcome a procedural default by establishing that (1) cause existed for his failure to comply with state procedural rule and actual, substantial prejudice resulted therefrom; or (2) a fundamental miscarriage of justice will occur if his petition is not considered. Whitney, 280 F.3d at 252; see also Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986));Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)); Wertz v. Vaughn, 228 F.3d 178 (3d Cir. 2000) (citation omitted).
The "fundamental miscarriage of justice" category encompasses only those cases in which the petitioner claims he is "actually innocent." See generally Bousley v. United States, 523 U.S. 614, 622 (1998); Wright v. Vaughn, 473 F.3d 85, 92 (3d Cir. 2006). Marshall does not assert that he is actually innocent.
Where a claim has not been exhausted because it was not "fairly presented" to the state courts, but a state procedural rule precludes returning to exhaust in the state courts, "the exhaustion requirement is deemed satisfied because there is an absence of state corrective process." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (internal quotation omitted); 28 U.S.C. § 2254(b). Our Court of Appeals has explained, however, that in such cases, the petitioner is "considered to have procedurally defaulted [his or her unexhausted] claims and federal courts may not consider the merits of such claims unless the [petitioner] establishes cause and prejudice or a fundamental miscarriage of justice to excuse his or her default." Whitney, 280 F.3d at 252 n. 15 (internal punctuation and citation omitted).
Finally, even if any claim is adjudicated on the merits in a state court proceeding, federal habeas relief is barred unless that adjudication:
(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). Our Court of Appeals has explained that "`adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004) (citing Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)), rev'd on other grounds, Rompilla v. Beard, 545 U.S. 374 (2005). If the state court decided the federal claim on the merits, § 2254(d) applies "regardless of the length, comprehensiveness, or quality of the state court's discussion." Rompilla, 355 F.3d at 247 (citations omitted); see also Weeks v. Angelone, 528 U.S. 225 (2000);Chadwick v. Janecka, 312 F.3d 597, 605-07 (3d Cir. 2002).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained the standard of review under § 2254(d)(1) in the context of a claim of ineffective assistance of counsel. See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (en banc). The "contrary to" and "unreasonable application" clauses have independent meaning. Williams, 529 U.S. at 405. "Clearly established Federal law" covers the holdings, not the dicta, of the Supreme Court at the time of the challenged state court determination. Id. at 412. A federal habeas court must first identify the applicable "clearly established" law and determine whether it resolves the petitioner's claim. Outten v. Kearney, 464 F.3d 401, 413 (3d Cir. 2006); Matteo, 171 F.3d at 888. Then, it must determine whether the state court's decision was either contrary to or involved an unreasonable application of that law.
When analyzing a claim under the "contrary to" provision, a federal habeas court may grant relief if the state court decision is "diametrically different," "opposite in character or nature," or "mutually opposed" to a decision of the United States Supreme Court on a question of law. Williams, 529 U.S. at 405, 413. Federal habeas relief is proper if the state court "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. The petitioner must demonstrate that Supreme Court precedent requires an outcome "substantially different" from that reached by the state court, not simply "more plausible". Outten, 464 F.3d at 413. Under the "unreasonable application" standard, we may grant habeas relief "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." Williams, 529 U.S. at 413. A federal habeas court may not grant relief "unless the state court decision . . . cannot reasonably be justified under existing Supreme Court precedent." Outten, 464 F.3d at 414 (citation omitted).
Congress, in enacting the AEDPA, also sought to protect state court factual determinations. It provided:
(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on — (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e). "A state court's factual findings are presumed to be correct, and the habeas petitioner carries the burden of rebutting the presumption of correctness by clear and convincing evidence." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Chadwick, 312 F.3d at 607 (internal citation and punctuation omitted). The Supreme Court has yet to analyze comprehensively the relationship between § 2254(e) and § 2254(d)(2), and Marshall suggests we read the provisions together. We decline to do so in light of the AEDPA's language and guidance from our Court of Appeals.
As noted above, we must apply the deferential standards of § 2254(d) only where the state court adjudicated petitioner's claim on the merits. If, however, the state court failed to decide the claim on the merits or misunderstood the claim and so decided some other claim, the federal habeas court must apply pre-AEDPA standards, that is, de novo, plenary review. As our Court of Appeals has explained, speaking through then-Judge, now-Justice Alito, "if an examination of the opinions of the state courts shows that they misunderstood the nature of a properly exhausted claim and thus failed to adjudicate that claim on the merits, the deferential standards of review in AEDPA do not apply." See Bronshtein, 404 F.3d at 726; Chadwick, 312 F.3d at 606. Under the pre-AEDPA standards a federal habeas court owes no deference to a state court's conclusions of law or its resolution of mixed questions of constitutional law and fact. The state court's factual findings are presumed to be correct unless they are not "fairly" supported by the record." Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002).
It is important to emphasize that a state court need neither cite the decisions of the Supreme Court nor even be aware of its cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004).
The Court of Appeals was referencing its prior decisions inHameen v. Delaware, 212 F.3d 226 (3d Cir. 2000), Appel v. Horn, 250 F.3d 203 (3d Cir. 2001), and Everett v. Beard, 290 F.3d 500 (3d Cir. 2002).
III.
Most of Marshall's present claims were not raised on direct appeal and, therefore, were not adjudicated by the Pennsylvania Supreme Court in Marshall I. These claims were first brought before the state court during the collateral PCRA proceedings. Judge Glazer found that they were waived under state law because they were not raised on direct appeal and therefore not cognizable under the PCRA. See 42 Pa. Cons. Stat. Ann. §§ 9543(a)(3), 9544(b). Marshall appealed Judge Glazer's decision to the Pennsylvania Supreme Court. The parties dispute the proper standard of review we should apply to Marshall II, the final state appellate review of Marshall's PCRA claims by the Pennsylvania Supreme Court.
While the decision of the five justice majority in Marshall II denied all PCRA relief, it is not an "adjudication on the merits" within the meaning of § 2254(d), and we will not defer to it. See 28 U.S.C. § 2254(d). Four justices merely agreed that the petition was Marshall's second, that several of the claims had been "previously litigated" and were therefore not cognizable under the PCRA, and that relief was not warranted. A majority of the Court did not agree on the reasons supporting the Court's decision to deny relief. Only Chief Justice Zappala and Justice Cappy rejected any claims on the merits. Justices Castille and Eakin agreed with the PCRA court that the claims were waived. Justice Nigro simply concurred in the result, that is, that all PCRA relief should be denied. The remaining two justices dissented.
Marshall II cannot be deemed an unexplained disposition on the merits under Weeks v. Angelone, 528 U.S. 225 (2000). In Weeks, the Supreme Court of Virginia had rejected on direct appeal several of the defendant's assignments of error. It declared the alleged errors were "without merit," but it offered no additional explanation for its decision. Weeks v. Commonwealth, 450 S.E.2d 379, 383 (Va. 1994). Under these circumstances, the United States Supreme Court has held that the state court adjudication on direct appeal was on the merits and that the federal habeas court in its analysis of that adjudication must apply AEDPA standards of review. See Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999),aff'd, 528 U.S. at 237 (2000). In contrast, Marshall II does not adjudicate any of petitioner's claims on the merits. As noted above, the Pennsylvania Supreme Court's five-justice majority simply denied relief with two justices doing so on the merits, two on procedural grounds, and one declined to provide any reasoning.
The Commonwealth next urges us to consider Marshall II a "silent affirmance." It asserts that we should "look through" that decision to the "last reasoned" state court opinion on the merits, that is, the PCRA opinion of Judge Glazer, and defer to it. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). We decline to do so.
In Ylst, the Supreme Court established a rebuttable presumption that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 803. Unless rebutted, a federal habeas court confronted with "one reasoned state judgment rejecting a federal claim" affirmed on appeal by one or more unexplained, formulary orders should "look through" those appellate orders and assess the decision of the last reasoned state court as if it were that of the appellate court. Id. at 802. Marshall II does not fit this category of cases. As noted above, the Pennsylvania Supreme Court did not simply enter an unexplained, formulaic order such as "affirmed." Its order was not "silent." Instead, the members of the Court spoke with various voices, none of which commanded a majority on the merits. The circumstances here rebut any presumption under Ylst that any four justices of the Pennsylvania Supreme Court agreed with any holding or reasoning in Judge Glazer's opinion.
Even if we were to look through Marshall II to the PCRA opinion of Judge Glazer, the AEDPA does not apply because Judge Glazer dismissed the petition on procedural grounds that are sufficient as a matter of state law to sustain the judgment. Judge Glazer's discussion on the merits was in the alternative. Therefore, it could hardly be said that the PCRA opinion is an adjudication "on the merits" to which we must defer under § 2254.See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Dugger v. Adams, 489 U.S. 401, 410 n. 6 (1989); see also Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2000) (citing Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999)).
Judge Glazer found that the petition was time-barred. Alternatively, he concluded that all the grounds for relief raised in the petition had been either previously litigated on direct appeal or waived due to the Marshall's failure to raise issues that he could have raised on direct appeal. See 42 Pa. Cons. Stat. Ann. § 9543.
The Commonwealth's reliance on Fahy v. Horn, 2003 WL 22017231 (E.D. Pa. 2003), is inapposite. In Fahy, Judge Shapiro looked through a decision of the Pennsylvania Supreme Court that dismissed a PCRA petition on procedural grounds and afforded § 2254 deference to the last reasoned state court decision that addressed the merits. See Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999). That "reasoned" adjudication was a 1995 decision authored by Judge Sabo containing findings of fact and conclusions of law that dismissed one of Fahy's prior PCRA petitions. Judge Sabo had held the petition was time-barred but, as was the practice in Pennsylvania before Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998), he also passed upon the merits because of the doctrine of "relaxed waiver" promulgated by the Pennsylvania Supreme Court. Under that doctrine, courts were required to review the merits of PCRA claims in capital cases even though waived for failure to have been raised on direct appeal. See 42 Pa. Cons. Stat. Ann. § 9544(b); see also Fahy, 2003 WL 22017231 at *34. In 1995, before Albrecht, the doctrine of relaxed waiver effectively made Judge Sabo's application of the state procedural bar insufficient to support his decision to dismiss.
In Albrecht, decided on November 23, 1998, the Pennsylvania Supreme Court abandoned its prior practice to apply the doctrine of "relaxed waiver" in PCRA capital cases. To be entitled to relief under the PCRA, a petitioner must plead and prove that any allegation of error has not been "previously litigated or waived." 42 Pa. Cons. Stat. Ann. § 9543(a)(3). An issue is deemed waived if "the petitioner could have raised it but failed to do so before trial, at trial, on appeal or in a prior state court proceeding." Id. § 9544(b). Despite this language, it was the practice of the Pennsylvania Supreme Court beginning in the late 1970's not to apply ordinary waiver principles in capital cases. Rather, the Supreme Court considered issues arising in a PCRA death penalty appeal that could have been litigated in prior proceedings. See Commonwealth v. Morris, 684 A.2d 1037, 1042 n. 11 (Pa. 1996); Albrecht, 720 A.2d at 700. The Court reversed course in Albrecht and held that it would no longer apply relaxed waiver in capital cases. See 720 A.2d at 700. The Court concluded its prior approach had significantly undermined the finality of judgments and had strained its resources. Id. It further explained that because adequate procedures and remedies were in place to prevent an unconstitutional execution, the change of course would not be detrimental to PCRA petitioners. Id.
That is not the situation before us. The Supreme Court of Pennsylvania rejected relaxed waiver in its 1997 Albrecht decision. Thus, Judge Glazer's determination nearly three years later that most of Marshall's claims had been waived rested completely on state law procedural grounds that were completely sufficient to support his decision. In 2000, no Pennsylvania court could grant relief under the PCRA on a claim that has been waived. See 42 Pa. Cons. Stat. Ann. § 9543(a)(3). Therefore, we will not defer to Judge Glazer's alternative discussion on the merits. See Harris, 489 U.S. at 264 n. 10; Dugger v. Adams, 489 U.S. at 410 n. 6; see also Appel, 250 F.3d at 210 (citation omitted).
Nonetheless, the procedural bar of waiver on which Judge Glazer's opinion relied does not prevent this court from granting habeas relief. As noted above, when a state court denies relief based on a state procedural rule which is "independent of the federal question and adequate to support to the judgment," federal habeas review is typically barred. See Coleman, 501 U.S. at 729; Bronshtein, 404 F.3d at 707. The waiver rule, while sufficient to support the judgment as a matter of Pennsylvania law, is inadequate to bar federal review where the specific procedural rule has not been "firmly established and regularly followed." Bronshtein, 404 F.3d at 707 (citations omitted); see generally Doctor, 96 F.3d at 684 (citation omitted).
The Pennsylvania Supreme Court has not "regularly followed" its decision in Albrecht to abrogate the doctrine of relaxed waiver. Although repeatedly stating Albrecht is sound law, see Commonwealth v. Bracey, 795 A.2d 935 (Pa. 2001); Commonwealth v. Hawkins, 787 A.2d 292 (Pa. 2001), and applying it in some cases,see, e.g., Commonwealth v. Lambert, 797 A.2d 232 (Pa. 2001), the Pennsylvania Supreme Court has on several occasions effectively relaxed the waiver rule and discussed the merits of waived claims. See Commonwealth v. Marrero, 748 A.2d 202 (Pa. 2000);Commonwealth v. Williams, 782 A.2d 517 (Pa. 2001); Commonwealth v. Meadows, 787 A.2d 312 (Pa. 2001); Commonwealth v. Gorby, 787 A.2d 367 (Pa. 2001); Commonwealth v. Rivers, 786 A.2d 923 (Pa. 2001); Commonwealth v. Pierce, 786 A.2d 203 (Pa. 2001);Commonwealth v. Ford, 787 A.2d 325 (Pa. 2002); Marshall II, 810 A.2d 1100 (Pa. 2002). Because the waiver rule was not "firmly established and regularly followed" in practice and had not been "consistently and regularly" applied at the time of Marshall II, it cannot bar federal habeas review.
On direct appeal, Marshall raised several state law claims. In his PCRA petition, Marshall brought the federal law variations of some of those state law claims that he had raised on direct appeal. Judge Glazer concluded that the federal variants raised in the PCRA petition had been "previously litigated," and thus were barred, when the Pennsylvania Supreme Court rejected the state law counterparts in Marshall I. In Marshall II, the opinion of Chief Justice Zappala which was joined by Justice Cappy, agreed with Judge Glazer. Because Justice Castille, joined by Justice Eakin, agreed with the Chief Justice's opinion that "those . . . claims which were previously litigated are not cognizable under the PCRA," a majority of four justices rejected several claims as previously litigated. However, § 2254 deference is not appropriate to those holdings. Marshall had simply litigated claims under Pennsylvania law during his direct appeal in Marshall I. He did not raise any federal claims at that time. To the extent four justices inMarshall II agreed that Marshall's federal claims had been "previously litigated" on direct appeal when the Pennsylvania Supreme Court rejected the Pennsylvania law variants of those claims, we find the Court misunderstood the claims and de novo review is appropriate. See Bronshtein, 404 F.3d at 726; Chadwick, 312 F.3d at 606. Simply put, when a court adjudicates a state law claim it does not decide any similar claim under federal law.
Finally, with regard to several of his guilt phase claims, petitioner also seeks an evidentiary hearing under 28 U.S.C. § 2254(e) to supplement the state court record. We have reviewed these claims and conclude petitioner has not demonstrated that any of them relies upon a "factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2). Nor would any such factual predicate be "sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." Id. In our view, a hearing is not necessary to develop the record or assist in evaluating Marshall's petition. Consequently, we deny Marshall's requests for a hearing relating to his guilt phase claims.
In sum, because Marshall II is not an adjudication on the merits and there is no independent and adequate state ground to bar his petition under § 2254, we will apply pre-AEDPA standards to those claims petitioner raised for the first time in his PCRA proceedings and that Judge Glazer ruled were waived. No hearing pursuant to 28 U.S.C. § 2254(e) will be held.
IV.
Marshall raises several constitutional claims related to jury selection. First, he asserts he is entitled to relief because the Commonwealth used its peremptory challenges in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Second, he contends that the Commonwealth engaged in gender discrimination by using its peremptory challenges impermissibly to strike African-American males. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Third, he maintains that a pattern and practice of discriminatory jury selection occurred in violation of Swain v. Alabama, 380 U.S. 202 (1965). Finally, we shall consider any claim the petitioner may have under the fair cross-section requirement of the Sixth Amendment.
Petitioner did not assert a Batson claim on direct appeal. He first raised claims under Batson during the PCRA proceedings. In his PCRA petition, he argued that the Commonwealth had removed five potential jurors because they were African-American. Instead of identifying these individuals by name, Marshall provided a citation to five pages in the state court record. The citation reads as follows: "N.T. 9/26/89 at 122, 178; N.T. 9/27/89 at 75; N.T. 9/28/89 at 31, 40." Resp. to Pet. for Writ of Habeas Corpus, Ex. J, at 121. The first three pages cited reference the locations in the record where the Commonwealth exercised peremptory strikes against Marilyn Cole ("Cole"), Thelma Cromwell ("Cromwell"), and Marie Pace ("Pace") respectively. The fourth citation (N.T. 9/28/89 at 31) takes us to the beginning of the voir dire of Joseph Holsendolph ("Holsendolph"), an African-American male, who subsequently was stricken by the Commonwealth, now allegedly in violation of Batson. See N.T. 9/28/89 at 37. The fifth citation (N.T. 9/28/89 at 40) is to a portion of the jury selection unrelated to any peremptory strike. Rather, the citation is to a discussion between the prosecutor and Judge Sabo relating to the many reasons why another member of the venire had been excused for cause only moments before. See N.T. 9/28/89 at 39. In the midst of this discussion, defense counsel interjects with comments about the strike of Holsendolph.See N.T. 9/28/89 at 40. Thus, the citation to page 40 of N.T. 9/28/89 is inaccurate and does not reference a fifth strike. Later in his PCRA petition, Marshall identifies the fifth potential juror struck allegedly in violation of Batson and allots seven lines of page-long paragraph 196 to the fifth strike, Denise White ("White"). He there provides the correct citation to the record. See Resp. to Pet. for Writ of Habeas Corpus, Ex. J, ¶ 196 at 126; see also N.T. 9/27/89 at 166-76.
Judge Glazer denied the Batson claim for two reasons. First, he found Marshall had waived the claim by failing to present it on direct appeal. He also explained that Marshall had failed to make a proper evidentiary record under state law. The Pennsylvania Supreme Court requires parties objecting under Batson to make a record of the race of the venirepersons struck by the prosecutor and the race of prospective jurors acceptable to the Commonwealth but stricken by the defense. See Commonwealth v. Spence, 627 A.2d 1176, 1182 (Pa. 1993); Commonwealth v. Simmons, 662 A.2d 621, 631-32 (Pa. 1995); Commonwealth v. Gibson, 688 A.2d 1152, 1159 (Pa. 1997).
On appeal to the Pennsylvania Supreme Court in Marshall II, petitioner presented his claim that the Commonwealth violatedBatson when it struck five members of the venire. He did so in the same confusing manner as he employed in his PCRA petition.See Resp. to Pet. for Writ of Habeas Corpus, Ex. P, at 53-57. Likewise, in his federal habeas petition, Marshall also asserts that the Commonwealth struck five members of the venire on account of race and offers the same partially incorrect citation in support. Again, he did not name the five members of the venire to which he was referring and the citation, as in his state court filings, identifies only four. Unlike his PCRA petition and initial brief on appeal in Marshall II, however, the federal habeas petition contains no additional discussion from which we may identify the fifth allegedly unconstitutional strike. Without any discussion or citation to the record, Marshall's federal habeas petition alleges only four strikes in violation of Batson.
To support the ever-changing nature of his Batson arguments, petitioner has submitted in this court nearly sixty pages of additional evidence in the form of voter registration records and various affidavits from individuals who assert they were in Marshall's jury venire or know others who were. See Pet. for Writ of Habeas Corpus, Ex. 42.
In his reply brief in this court, petitioner's Batson claim underwent another metamorphosis. There, he asserted for the first time that the Commonwealth exercised its peremptory challenges to remove six, not five or four, African-American potential jurors from the venire. In footnote 93 of the reply brief Marshall, for the first time, listed the names of all eleven members of the venire struck by the prosecutor as well as the race and gender of each. Denise White is included in this list as a "black female." Aside from her belated appearance on this list there is no discussion of the circumstances surrounding her being stricken, no citation to the relevant section of the record, and no explicit assertion that the prosecutor's strike of her violated Batson. Marshall also claimed for the first time in his reply brief that the prosecutor violated Batson a sixth time when he struck Ron Hoppes ("Hoppes").
Petitioner is apparently content to imply that the prosecutor violated Batson in striking White because the text of the reply brief claims the Commonwealth struck six African-Americans in violation of Batson and, in footnote 93, Marshall lists only six strikes used on "black" members of the venire.
Prior to filing his reply brief in this court, petitioner never mentioned the prosecutor's strike of Ron Hoppes. This was not raised on direct appeal, nor was it brought to the attention of the state courts during collateral proceedings.
The Commonwealth argues that the Batson claim before the court differs both legally and factually from the version presented to the state courts. As such, it maintains that the claim has not been exhausted and is now procedurally defaulted. The Commonwealth also asserts that juror affidavits and voter registration evidence offered in Exhibit 42 of the habeas petition may not be considered as Marshall does not offer an adequate explanation for the reason it was never presented to any state court.
Petitioner's Batson claim as it currently stands is, in effect, several separate claims that the prosecutor struck potential jurors on account of their race. Even one discriminatory strike is sufficient to merit relief. Marshall has exhausted his Batson claims regarding Cole, Cromwell, Pace, and Holsendolph. He presented the factual and legal substance of the claim in his PCRA petition and on appeal to the Pennsylvania Supreme Court in Marshall II. In addition, even though the confusing and convoluted manner in which Marshall challenged the White strike in PCRA proceedings calls into question the "fairness" of its presentation to the state courts, we find that petitioner placed the state courts on notice regarding this strike as well. See Picard v. Connor, 404 U.S. 270 (1971).
If we considered the Batson claim as it is currently presented, the addition of another allegedly unconstitutional strike would require that we hold the entire claim unexhausted, procedurally defaulted, and unreviewable. As the petitioner correctly observes, one discriminatory strike is sufficient to warrant relief under Batson.
Despite having exhausted his White claim, in our view, it is not before this court and therefore we shall not consider it. Marshall did not mention White in his habeas petition and merely lists her name, sex, and race in footnote 93 of the reply brief. Footnote 93 and its accompanying text amount to little more than a bald assertion that the prosecutor violated Batson simply because he struck White, who is black. Without more, this is insufficient to show that "the totality of the relevant facts gives rise to an inference of discriminatory purpose."Strickland, 476 U.S. at 93-94. Furthermore, it is not our responsibility sua sponte to sift through the enormous state court record, petitioner's filings in state courts, as well as the thousands of pages filed in this court in order to piece together or construct the factual support or legal argument to bolster this Batson claim.
In addition, Marshall has not properly exhausted his claim that the prosecutor violated Batson in striking Ron Hoppes. Petitioner never brought the Hoppes strike to the attention of any state court on direct appeal or during PCRA proceedings. In addition, he did not raise the strike in his habeas petition in this court. Rather, as noted above, he raised the issue for the first time in his reply brief. Therefore the Hoppes Batson claim is unexhausted and, as state court relief is clearly foreclosed by the PCRA time bar, the claim is procedurally defaulted. See 45 Pa. Cons. Stat. Ann. § 9545(b); McCandless, 172 F.3d at 260;Whitney, 280 F.3d at 252 (citation omitted).
We may only reach the merits of the Hoppes Batson claim if Marshall can make the requisite showing of cause and prejudice. Petitioner has not demonstrated that his failure to raise this claim prior to filing a reply brief in this court on January 23, 2006 may properly be attributed to "some objective factor external to the defense." Slutzker, 393 F.3d at 381. This belated effort comes more than sixteen years after the jury selection and more than eight years after raising his other Batson claims, Because Marshall has not established cause and prejudice, we do not decide the merits of his Hoppes Batson claim.
Marshall, as explained above, has submitted additional evidence in Exhibit 42 relevant to his Batson claims. We agree with the Commonwealth that this evidence is improperly before us because none of it was presented to any state court. Therefore, we will not consider it. We now turn to the merits of Marshall's Batson claim with regard to the strikes of Cole, Cromwell, Pace, and Holsendolph, based solely upon the record before the PCRA court and the Pennsylvania Supreme Court in Marshall II.
At the beginning of the third day of jury selection, defense counsel first raised a race-based "objection" to jury selection. He pointed out that "there are no black males on the Jury, no black people in general for that matter" and said his client thought the prosecutor was "striking people on racial grounds." When Judge Sabo replied by pointing out that defense counsel had used his peremptory challenges against several African-Americans, including "Anita Brahm," whom the Commonwealth had accepted, defense counsel simply moved on. He neither responded to Judge Sabo nor pressed his objection.
Defense counsel appeared to make an objection that the jury violated the Fair Cross Section Clause of the Sixth Amendment of the United States Constitution. We consider such an objection below.
Later that morning, the prosecutor moved to excuse Edward W. Pitts for cause. The prosecutor then asked that the record reflect that defense counsel, after consultation with Marshall, had not voiced any objection to the Commonwealth's motion to excuse him. Defense counsel, in response to the prosecutor's clarification of the record, stated that "[w]ith respect to the other witness [sic] . . . the one proceeding this one right here [Holsendolph], I think the record also should reflect that he was a black male, probably the only black male so far that was qualified to sit on this Jury, and the Commonwealth exercised a peremptory strike." When asked to clarify the nature of his comment, defense counsel asserted that he was objecting to what he considered to be the prosecutor's "[s]ystematic exclusion of black males." The Commonwealth pointed out that according to defense counsel's own characterization, the prosecutor could not have been systematically excluding qualified black males because Holsendolph had been the only qualified black male at that point of the jury selection. Judge Sabo said he would keep an "eye" on the prosecutor. Defense counsel did not reply or bring up the matter again.
In 1986, the Supreme Court explicitly held that the prohibition on racial discrimination in jury selection extends to the state's use of peremptory challenges. Batson, 476 U.S. at 85 (citingStrauder v. West Virginia, 100 U.S. 303 (1880)); see also Rose v. Mitchell, 443 U.S. 545 (1979). The Court, recognizing that defendants face an uphill battle to show intentional discrimination, established a three-step burden-shifting framework to guide trial courts in their review of peremptory challenges.
First, the party making the challenge must set forth a prima facie case by objecting to a strike or pattern of strikes and "showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Strickland, 476 U.S. at 93-94. The moving party satisfies this step "by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Wilson v. Beard, 426 F.3d 653, 667 (3d Cir. 2005) (citing Johnson v. California, 545 U.S. 162, 170 (2005)). The moving party may offer a "wide variety" of evidence to satisfy Batson's first step as long as the evidence offered is "sufficient to permit the trial judge to draw an inference that discrimination has occurred." Johnson, 545 U.S. at 170.
If the defendant makes out a prima facie case, the court proceeds to Batson's second step. At that point, the "burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes." Johnson v. California, 545 U.S. 162, 168 (2005) (citation omitted). If the prosecutor articulates a race-neutral reason for striking a member of the jury pool that is not pretextual, Batson's third step comes into play. The trial court must decide whether the defendant has proven purposeful racial discrimination. Id. (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)).
Defense counsel began the third day of jury selection by raising a list of issues, the fourth of which was a "concern" that there were no African-Americans on the yet-incomplete jury and specifically that there were no "black males." Counsel explained that his client believed this lack of African-American men was due to the prosecutor's striking them from the jury pool. It is difficult to understand the precise nature of his statement to the court. It was not made contemporaneously with or in relation to any particular peremptory strike. Rather, if anything, it appears that defense counsel may have sought some unstated form of relief apparently based on the notion that a partially selected jury, so far all white, in the trial of an African-American defendant suggested that the prosecutor was discriminating against "black males" specifically, or African-Americans generally. It seems as if defense counsel purported to object on the ground that those jurors chosen so far did not constitute a fair cross section of the community, not that the prosecutor violated Batson in exercising his peremptory challenges. See Taylor v. Louisiana, 419 U.S. 522 (1975).
We shall assume, however, that the statements of defense counsel were sufficient to articulate a claim that the prosecutor was striking potential jurors on account of their race and that he satisfied Batson's first step. Johnson, 545 U.S. at 170. At the time counsel stated his objection about the lack of African-American males, the Commonwealth had stricken one African-American male and three African-American females.
That African-American male was Hoppes who, as we stated above, was identified as an African-American male for the first time in petitioner's reply brief in this court. Until that time, therefore, counsel's charge of "systematic exclusion" made little sense considering that at the time the objection was made the record suggested that the prosecutor had not used any of his peremptory challenges on African-American males. Even though this recent effort to include Hoppes eliminates the above confusion, defense counsel still significantly undercut his own objection by his subsequent statement during voir dire that Holsendolph was the first "qualified" African-American male of the venire.
Even though we find that defense counsel stated a challenge sufficient to satisfy the low threshold of Batson's first step, the record evidences legitimate reasons for striking the jurors in question. Cole admitted that she knew the defense counsel "socially" because he was a patron at the cleaners where she worked. The record reflects that both Cromwell and Pace were hesitant when asked about imposing the death penalty. While Cromwell eventually said she could impose the death penalty, several of her answers revealed a strong reluctance to do so. Pace stated that she "thought" she could vote for a death sentence but could not be sure. These reasons provided the prosecutor legitimate reasons for challenging these women, even though defense counsel appeared concerned only with the jury's dearth of "black males." In light of the above, petitioner cannot meet his burden to demonstrate that the strikes of Cole, Cromwell and Pace were the result of racial discrimination.
We now turn to the strike of Holsendolph. Later on the third day of jury selection, after the Commonwealth moved to strike Edward Pitts for cause, the prosecutor sought to clarify the record by noting that neither the defendant nor his attorney had voiced an objection to this request. At this point, defense counsel observed that the venireman before Pitts, Joseph Holsendolph, "was a black male, probably the only black male so far that was qualified to sit on this Jury, and the Commonwealth exercised its peremptory strike." Defense counsel continued by asserting the Holsendolph strike indicated the Commonwealth was engaging in the "systematic exclusion of black males."
This statement is particularly perplexing given the argument by petitioner's current counsel that the prosecutor violatedBatson in exercising a peremptory challenge on Hoppes. If Hoppes indeed was an African-American, defense counsel had either forgotten that fact or, in making this statement, effectively conceded Hoppes was not qualified to sit on the jury.
We shall assume that defense counsel made an objection concerning Holsendolph sufficient to satisfy the first step of the Batson inquiry and to shift the burden to the Commonwealth to articulate a legitimate reason. We find that the Commonwealth offered such a reason. Holsendolph revealed that he had sat as a juror in a murder case and that the experience had been a "lasting" and unpleasant one. Additionally, he was reluctant when asked whether he could vote to impose the death penalty. These reasons provide a proper basis for the prosecutor's strike. Petitioner has failed to point to any evidence in the record to counter the reasons offered by the Commonwealth to justify the strike. In sum, the petitioner has not met his burden to show that the prosecutor violated Batson when he used a peremptory challenge on potential juror Holsendolph.
Nearly eight years after jury selection, Marshall supplemented his record-based arguments with a contention that at the time of petitioner's trial the Philadelphia County District Attorney's Office engaged in a pattern and practice of systematically excluding African-Americans from petit juries. He offers a videotape produced by the District Attorney's office in the late 1980's on which Assistant District Attorney Jack McMahon conducted a training session on jury selection for other assistant district attorneys in the office. The contents of the tape have been described at length by our Court of Appeals. See Wilson v. Beard, 426 F.3d 653, 656-58 (3d Cir. 2005). In short, on the videotape, McMahon, who was not the prosecutor in this case, makes numerous highly inflammatory statements that not only suggest he regularly sought to exclude certain categories of qualified African-Americans from sitting on juries but also that he engaged in various deceitful practices designed to conceal such discrimination and mislead both courts and opposing counsel. He urged his audience to adopt these practices.
Marshall also points to handwritten notes taken by Assistant District Attorney Gavin Lentz at a lecture given by Assistant District Attorney Bruce Segal on August 14, 1990 in which the latter stated his ideal jury was comprised of "[twelve] Archie Bunkers [who] will convict on little evidence." Segal commented that he favored jurors of Italian, Irish, Polish, and German descent from neighborhoods that are predominantly white, that is Roxborough, Fishtown, and South Philadelphia. He nevertheless reported that "acceptable" blacks included "older blacks," "property owners," and "men." He suggested that assistant district attorneys should search for a non-race reason to strike African-Americans and write that reason down as a defense against any Batson objection. Marshall urges that together with the McMahon tape and Segal lecture we should consider a study by Professors David Baldus and George Woodworth that concludes the District Attorney's office struck African-Americans from jury venires at a much higher rate than it did whites.
While these materials certainly contain statements of former prosecutors McMahon and Segal that they regularly engaged in reprehensible and indeed unconstitutional behavior in the selection of juries, petitioner has failed to show that this evidence reveals anything about the jury selection at his trial. Marshall was not prosecuted by McMahon, Segal, or Lentz. He does not even claim that the prosecutor in this case, Joseph McGettigan, watched or knew about the McMahon tape or attended Segal's lecture. Likewise, even if we were to assume that the entire Philadelphia District Attorney's office had an unconstitutional policy or practice of striking African-American from juries or that McGettigan himself struck more African-Americans than Caucasians, Marshall must demonstrate that the Commonwealth engaged in discrimination at his trial. See McCleskey v. Kemp, 481 U.S. 279 (1987).
In short, petitioner has not shown that at his trial the prosecutor exercised his peremptory challenges in a racially discriminatory manner in violation of Batson with respect to Cole, Cromwell, Pace, and Holsendolph.
Petitioner further alleges the Commonwealth struck several potential jurors on the basis of their gender. This claim was raised for the first time in Marshall's habeas petition in this court and was not presented to the state courts. It is therefore unexhausted and, with an absence of available state corrective process, procedurally defaulted. McCandless, 172 F.3d at 260; Whitney, 280 F.3d at 252 (citation omitted). Petitioner has not met his burden to make a showing of cause and prejudice necessary in order for us to excuse the default.
Even if he had shown cause and prejudice, we could not grant relief. In 1994 the Supreme Court extended Batson and held that the Equal Protection Clause of the Fourteenth Amendment forbids states from exercising peremptory challenges on the basis of gender. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). Marshall's conviction and sentence became final on February 3, 1994, that is, ninety days after the Pennsylvania Supreme Court decided Marshall I. See Sup. Ct. R. 13(1). J.E.B. was decided on April 19, 1994. As Marshall's case was no longer pending on direct review at that time, he cannot claim the benefit of the rule. See Griffin v. Kentucky, 479 U.S. 314 (1987). The Supreme Court has declined to apply the rule in Batson retroactively to cases on collateral review. See Allen v. Hardy, 478 U.S. 255, 257-58 (1986). We see no basis to apply J.E.B. retroactively to Marshall's collateral attack on his conviction. See Teague, 489 U.S. at 311.
Finally, Marshall maintains that the Commonwealth violated his rights under Swain v. Alabama, 380 U.S. 202 (1965) in that it engaged in a pattern and practice of discriminatory jury selection. We also consider defense counsel's statements that appear to articulate a variant of a "fair cross-section" objection rather than a Batson challenge.
Although he did not raise either claim on direct appeal, petitioner "fairly presented" his claim during his PCRA proceedings that the Philadelphia District Attorney's Office in general and the prosecutor in his case systematically engaged in discrimination against African-American prospective jurors. Therefore, he has exhausted the claim. In addition, because the Pennsylvania Supreme Court's decision in Marshall II is not an "adjudication" on the "merits," pre-AEDPA standards apply to our analysis here.
In Swain v. Alabama, the Supreme Court held that where a single prosecutor or an entire office "consistently and systematically" exercises peremptory strikes in criminal trials "to prevent any and all [African-Americans] on petit jury venires from serving on the petit jury itself" a defendant may be able to show a violation of the Fourteenth Amendment. Swain, 380 U.S. at 223. The Court explained that a defendant might prevail on such a claim where he can demonstrate that
the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries . . .Id. In Swain itself, however, the Court did not find that Talladega County, Alabama had engaged in such pervasive discrimination. Id. at 224-26.
Marshall has not succeeded in making a claim under Swain. He has failed to establish that in "case after case" either the prosecutor in his case or the Philadelphia District Attorney's Office exercised peremptory challenges so that "no [African-Americans] ever serve on petit juries." Swain, 380 U.S. at 223. Quite the contrary, the very studies offered by the petitioner suggest that many African-Americans have and do serve on criminal juries in cases tried in the Court of Common Pleas of Philadelphia County. The record does not support the contention that at Marshall's trial the prosecutor used peremptory challenges in a racially discriminatory manner.
To the extent petitioner's trial counsel articulated a claim under the "fair cross section" requirement of the Sixth Amendment, we reject it. The Supreme Court has held that the right to a jury trial enshrined in the Sixth Amendment to the United States Constitution includes an implicit requirement that petit juries be selected from a "cross section of the community" that is "representative" or "fair." Taylor v. Louisiana, 419 U.S. 522, 528, 529 (1975) (citation omitted). To establish a violation of the fair cross section requirement, Marshall must show: (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in panels from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury selection process. See United States v. Orange, 447 F.3d 792, 797 (10th Cir. 2006) (citing Duren v. Missouri, 439 U.S. 357, 364 (1979)).
The Sixth Amendment provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ." U.S. Const. amend. VI.
The Supreme Court has explained that the " Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does)." Holland v. Illinois, 493 U.S. 474, 480 (1990). It has stated that the fair cross section requirement "never included the notion that, in the process of drawing the jury, initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests . . ." Id.
The Supreme Court has clearly held that the fair cross section requirement only applies to the venire from which the jury is selected, not the petit jury actually empaneled. Any such claim here is without merit. See Holland, 493 U.S. at 480; Taylor, 419 U.S. at 538; Duren v. Missouri, 439 U.S. 357, 363-64 (1979);Lockhart v. McCree, 476 U.S. 162 (1986).
Marshall has not demonstrated he is entitled to relief. Accordingly, we will deny Marshall's petition with regard to his claims under Batson, J.E.B., Swain, and any potential claim under the fair cross section requirement.
V.
Marshall next argues that his conviction must be set aside because his counsel was ineffective during the guilt phase of his trial in violation of Strickland v. Washington, 466 U.S. 668 (1984), for failing to investigate, develop, and present defenses of voluntary intoxication and diminished capacity.
The petitioner raised these claims in the state courts. Although Marshall also brought variations of the same arguments couched in terms of trial court error, his petition before us sets forth his arguments relating to purported mental health defenses under the rubric of ineffective assistance of counsel. Petitioner has exhausted these claims because he presented them to both the PCRA court and the state Supreme Court in Marshall II in a manner that put both courts "on notice" of the federal claim petitioner asserts here. McCandless, 172 F.3d at 261 (citation omitted).
For example, on direct appeal, Marshall claimed that Judge Sabo committed error when he refused to instruct the jury on the law of the voluntary intoxication defense.
In Strickland, the Supreme Court reaffirmed that the right to counsel enshrined in the Sixth Amendment to the United States Constitution is the right to the effective assistance of counsel.Strickland, 466 U.S. at 684, 686 (emphasis added). The Court established a two-part test with which to evaluate claims Sixth Amendment claims of ineffective assistance of counsel. An individual asserting such a claim must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him or her. See id. at 687-90; see also Harrington v. Gillis, 456 F.3d 118, 125 (3d Cir. 2006). To prevent courts from relying on the perfect clarity of hindsight, the Supreme Court has cautioned that "hindsight is [to be] discounted by pegging adequacy to counsel's perspective at the time [allegedly ineffective decisions were made] . . . and by giving a heavy measure of deference to counsel's judgments." Rompilla v. Beard, 545 U.S. 374, 381 (2005) (citations omitted).
To establish deficient performance an individual must demonstrate that his counsel's representation "fell below an objective standard of reasonableness." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citation omitted). The Supreme Court has declined to establish specific guidelines and instead has emphasized that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688; see also Williams, 529 U.S. at 390-91; Wiggins, 539 U.S. at 521. To demonstrate prejudice, an individual 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 one sufficient to undermine confidence in the outcome."Strickland, 488 U.S. at 694; see also Williams, 529 U.S. at 391;Wiggins, 539 U.S. at 534. As our Court of Appeals recently reiterated, the defendant must show a "reasonable probability that, but for counsel's error, the result would have been different." Shelton v. Carroll, 464 F.3d 423, 438 (3d Cir. 2006).
Although the Pennsylvania Supreme Court ruled in Marshall II before the United States Supreme Court decided Wiggins, the Supreme Court declared that it was applying the same "clearly established" standards in both Wiggins and Williams v. Taylor, 529 U.S. 362, 390 (2000).
Under Pennsylvania law, "to find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven that he unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner." Commonwealth v. Sattazahn, 763 A.2d 359, 363 (Pa. 2000). "An intentional killing is one committed by means of poison, lying in wait, or by any other kind of willful, deliberate and premeditated actions."Commonwealth v. Solano, 906 A.2d 1180, 1184 (Pa. 2006). In addition, Pennsylvania law provides that the "use of a deadly weapon on a vital part of the body is sufficient to establish the requisite specific intent to kill." Id. (quoting Commonwealth v. Walker, 656 A.2d 90 (1995)). To convict a defendant of the offense of third-degree murder, however, the prosecutor "need only prove that the defendant killed another person with malice aforethought." Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005). The concept of "malice" encompasses "not only a particular ill-will, but [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." Id. A killing committed with malice but without specific intent to kill and not during the course of some other felony constitutes a third-degree murder, which is a general intent crime. See Commonwealth v. Taylor, 876 A.2d 916, 926 (Pa. 2005); Commonwealth v. Meadows, 787 A.2d 312, 316-17 (Pa. 2001).
Pennsylvania has codified a narrowly-tailored defense of voluntary intoxication. Generally, a defendant may not introduce evidence of alcohol consumption or drug use to negate the intent element of an offense. See 18 Pa. Cons. Stat. Ann. § 308. Evidence of voluntary intoxication or drug use may only be "relevant to reduce murder from a higher degree to a lower degree of murder." Id. To succeed in reducing the degree of murder, a defendant must demonstrate that he or she was so "overwhelmed by the effects of alcohol [or drugs]" to the point of "losing his faculties and sensibilities," resulting in his "inability to form the specific intent to kill." See Commonwealth v. Fletcher, 861 A.2d 898, 908 (Pa. 2004) (citation omitted). Evidence of intoxication offered to negate the specific intent necessary for first-degree murder "imposes no new burden on the Commonwealth and creates no new presumption for defendant which the Commonwealth must labor to overcome." Id. (quoting Commonwealth v. Stoyko, 475 A.2d 714, 720 (Pa. 1984)).
Like diminished capacity, voluntary intoxication is not an affirmative defense per se. Rather, in presenting a voluntary intoxication (or diminished capacity) defense, the defendant attempts to counter the Commonwealth's effort to prove an element of the crime charged, that is, specific intent. See Rock v. Zimmerman, 959 F.2d 1237, 1245 (3d Cir. 1992). For convenience, we refer to them as defenses.
Under Strickland, we must determine whether counsel's actions relating to any investigation, pursuit, or development of a voluntary intoxication defense were unreasonable in light of the then prevailing professional norms. We find counsel was not unreasonable because there was and is no evidence to support the defense. There is no evidence that petitioner had consumed alcohol or drugs prior to committing the offenses so as to suggest he was so "overwhelmed" by drugs or alcohol at the time of the killings that he lost his "faculties and sensibilities" and could not "form the specific intent to kill." Id. (citation omitted). Quite the contrary, the evidence of petitioner's behavior at the time he committed the killings demonstrates that he possessed his faculties of deliberation and premeditation. Marshall recognized that his stepdaughter had seen him kill his wife and then killed her. He cleaned himself and the hammer before taking the remaining children out of the house. In addition, petitioner was able to drive these children safely to a friend's house despite twice injecting himself with drugs on the way. A defendant's ability to drive a car immediately following the commission of a crime "substantially negates" a defense of voluntary intoxication. See Breakiron, 571 A.2d at 1041.
Petitioner offers an affidavit of Veronica Robichaus dated some ten years after the murder in question as evidence that he was intoxicated at the time he murdered his wife and stepdaughter. According to Robichaus she lived in the same building as Marshall in 1987. She stated that "[l]ate one night in May 1987" she heard someone "banging at my door." It was the petitioner sweating profusely and looking disheveled. He had difficulty standing, could not speak coherently, and his eyes were "weird and didn't look right." She told him that she was going out and closed the door. She claims that "a few days later" she learned of the murders and asserts that the night she described "must have been the night before the murders."
This affidavit is not helpful to the petitioner. Robichaus does not say she saw petitioner the night before the murders. She fails to provide a date or even the time at which she observed him and ten years later merely assumes, without any basis, that her encounter with Marshall "must" have been the night before the murders. Even if we take as fact Robichaus ten-year-old recollection that "one night in May 1987" she saw petitioner the night that "must have been" before the murders, it does not assist a voluntary intoxication defense. To make out a successful defense in this regard, Marshall must show that at the time of the murders he was so "overwhelmed by the effects of alcohol [or drugs]" that he lost "his faculties and sensibilities" and was unable to "form the specific intent to kill." Fletcher, 861 A.2d at 908. At best, the affidavit suggests Marshall may have been high or drunk when Robichaus saw him, sometime on the night before he killed his wife and stepdaughter. We do not know how many hours before the murders Robichaus saw petitioner. Her recollection is insufficient to establish that Marshall was so overwhelmed by the effects of drugs and/or alcohol that he lost his faculties and sensibilities and could not form the specific intent to kill.
Marshall also submits 1997 affidavits from Dr. Robert A. Fox, a medical doctor and psychiatrist, and Dr. Henry Dee, a licensed psychologist and neuropsychologist. Again, these affidavits come some ten years after the murders in question. Relying extensively on the Robichaus affidavit, both opine that at the time of the murders Marshall was unable to form the specific intent to kill because of the effects of alcohol and drugs or withdrawal from alcohol and drugs. Both also examined Marshall and studied the affidavits of petitioner's friends and family as well as each other's findings. They conclude that the record available at the time of the trial indicated that counsel should have conducted further testing and investigation. We disagree. Because the Robichaus affidavit is neither reliable nor relevant to petitioner's voluntary intoxication defense, the conclusions of Drs. Dee and Fox relying on that affidavit carry no weight.
Even if we were to hold that defense counsel was unreasonable for failing to pursue and present a voluntary intoxication defense, petitioner fails to establish that he suffered prejudice under Strickland. As discussed above, there is nothing in the record to demonstrate that petitioner was so "overwhelmed by the effects of alcohol [or drugs]" to the point of "losing his faculties and sensibilities," resulting in his "inability to form the specific intent to kill." Fletcher, 861 A.2d at 908; see generally Commonwealth v. Tilley, 595 A.2d 575, 580 (Pa. 1991). Thus, there is no prejudice under Strickland. See Strickland, 466 U.S. at 688, 694; see also Williams, 529 U.S. at 390-91.
Petitioner further argues that counsel was ineffective in failing to investigate, prepare, and present a fully developed defense of diminished capacity. Diminished capacity is an "extremely limited" defense in Pennsylvania. Commonwealth v. Singley, 868 A.2d 403, 412 n. 10 (Pa. 2005) (citation omitted). It is applicable only in those cases where a defendant "admits liability" but contests "the degree of culpability based upon a defendant's inability to possess a particular mental state."Commonwealth v. Mitchell, 902 A.2d 430, 446 (Pa. 2006); see also Commonwealth v. Williams, 732 A.2d 1167, 1190 (Pa. 1999). A defendant asserting this defense "must notify the Commonwealth before trial and include documentation offering specificity regarding the nature and extent of the infirmity." Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003) (emphasis in original).
By presenting this defense, the accused attempts to "prove that his mental condition at the time of the crime was such that he was incapable of forming the specific intent to kill."Commonwealth v. Porter, 728 A.2d 890, 897 (Pa. 1999). The defendant must provide "extensive psychiatric testimony establishing [that he] suffered from one or more mental disorders which prevented him from formulating the specific intent to kill." Mitchell, 902 A.2d at 446 (citing Commonwealth v. Cuevas, 832 A.2d 388, 392 (Pa. 2003)). Such testimony must show that at the time the crime was committed the defendant suffered from a mental disorder "affecting the cognitive functions of deliberation and premeditation necessary to formulate specific intent." Commonwealth v. Saranchak, 866 A.2d 292, 299 (Pa. 2005) (citation omitted); see also Commonwealth v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982). The defense may be overcome by evidence that the defendant acted with specific intent. Commonwealth v. Legg, 711 A.2d 430, 435 (Pa. 1998). If a defendant succeeds with this defense, first-degree murder is mitigated to third-degree murder. See Singley, 868 A.2d at 412 n. 9. The Pennsylvania Supreme Court has stressed that evidence of the defendant's "inability to control himself" or "irresistible impulses" is irrelevant and inadmissible to support a claim of diminished capacity. See Cuevas, 832 A.2d at 394; Commonwealth v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982).
Prior to trial, counsel surely knew of the overwhelming evidence that defendant had killed his wife barely one week after threatening to kill her if she ever left him. There was also evidence that Marshall had killed his stepdaughter because she saw him kill his wife to "shut her the f**k up," and then carefully cleaned himself and the hammer he used to kill his stepdaughter. He concealed the bodies from the remaining children in the apartment, took those children to a friend's house, and after a few days fled the state. Further, counsel knew, or should have known, about Marshall's prior incarceration in 1977 for robbery, and his completion of high school and one year of college, and his service in the United States Marine Corps for two years. Petitioner had been hit on the head as a child and occasionally suffered headaches and dizziness because of the incident. Prior to trial it was clear that the defendant had for many years frequently abused drugs and alcohol, regularly consuming them to the point where he "blacked out." Finally, defense counsel was aware that defendant very much wanted to be examined for possible "OBD," that is, "organic brain disease" due to "the part of the case he could not remember because of his drug use." Petitioner had gone so far as to send case law on diminished capacity and voluntary intoxication defense to his trial counsel.
This had been raised at a pretrial hearing before trial counsel had been appointed to represent Marshall.
On September 25, 1989, the day before jury selection, Judge Sabo held a hearing on the defendant's motion to suppress evidence. At that time, petitioner's trial counsel requested a continuance so that he could have Marshall examined by a psychiatrist in support of a diminished capacity defense. Judge Sabo, while refusing to delay the trial, said he would permit Marshall to be examined and instructed counsel to prepare an appropriate order. Counsel, however, neglected to submit one until the fourth and final day of jury selection, that is, seven days later. Meanwhile, when counsel introduced himself to the jury array on September 26, he stated that his only potential witnesses were experts even though his client had yet to be examined by any such experts. At that point he had not submitted a proposed order to the court and had no expert testimony prepared.
Judge Sabo, counsel, and the Commonwealth discussed the proposed order after the jury had been selected on October 2.
On October 2, 1989, after the jury had been selected, the Judge, prosecutor, and defense counsel debated the proposed order for psychiatric evaluation. Counsel again requested that the trial be delayed for this evaluation by a neuropsychiatrist for any organic brain disease, even though counsel had squandered the previous seven days. Confronted with such a critical motion after jury selection, Judge Sabo decided to have the defendant immediately evaluated for competency to stand trial and for any evidence of organic brain disease. If the initial evaluations revealed the defendant was not competent to stand trial or suffered from OBD, more comprehensive testing would be ordered and the trial delayed.
The next day, October 3, Marshall was examined pursuant to court order by Dr. Pietro Miazzo, a psychiatrist, who concluded that Marshall was competent to stand trial. He determined that there was no indication the defendant had any organic brain disease. Dr. Miazzo found that Marshall was alert, logical, and coherent and did not exhibit any signs of hallucinations, paranoia, or suicidal behavior. While Marshall told Dr. Miazzo that he had been hit on the head with a brick when he was twelve years old, he denied any "history of seizures" or "psychiatric or suicidal" problems. Although he claimed to have been drug free for a year, he revealed a history of heavy drug use and drinking to the point of blackouts.
That same day defendant was also examined and evaluated, pursuant to court order, by Jules De Cruz, M.S., a licensed psychologist. Marshall did not have any difficulty taking the psychological tests or answering questions posed to him. De Cruz concluded that Marshall was of average intelligence and abstract reasoning capacity but impulsive under stress and suspicious. He also found that petitioner's ability to control his impulses was limited but that there was no evidence of "major mental illness or affective disorder" or "indications of significant organic involvement or organic impairment."
The tests performed did not reveal any indication of OBD or other physical or mental ailment and no further examinations were ordered. The next day, Judge Sabo orally informed counsel that these tests did not reveal the existence of any mental problems and that written reports would be provided to counsel as soon as they were available. During his opening statement later that morning, counsel admitted Marshall had killed the victims but that he lacked specific intent to do so due to his drug addiction and, therefore, was only guilty of third-degree murder. Furthermore, he did not take any action on the record to follow up with the evaluations performed on October 3 or to secure his own mental health expert before it came time to present defendant's case.
We evaluate the reasonableness of trial counsel's decisions in light of the information he knew and should have known at the time. Rompilla, 545 U.S. at 381 (citations omitted). There is no indication that counsel devoted any significant time or effort to seek such an expert before the trial. Counsel asked Judge Sabo for an evaluation the day before jury selection but, even though he was granted permission for an evaluation, did nothing for one week. Counsel was aware of the requirements of the diminished capacity defense as his opening argument makes clear. He told the jury that Marshall had killed his wife and stepdaughter and that his drug addiction prevented him from forming the requisite specific intent for first-degree murder. Instead, as noted above, he requested the jury find his client guilty of third-degree murder. However, an important component in convincing the jury to return a verdict of third-degree murder rather than first-degree murder is expert testimony "establishing [that defendant] suffered from one or more mental disorders which prevented him from formulating the specific intent to kill." Mitchell, 902 A.2d at 446; see also Commonwealth v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982). Counsel knew that he had no such testimony based on Judge Sabo's oral report earlier that morning of the findings and conclusions of Dr. Miazzo and the psychologist, Jules De Cruz. He nevertheless charged forward without the expert evidence required to support the defense. We are not aware of any efforts taken by counsel to rectify this deficiency during the days the prosecutor was presenting the Commonwealth's case-in-chief. Finally, counsel did not act upon seeing the Miazzo and De Cruz reports, even though they appeared to focus on the defendant's competency to stand trial, not on whether he had a mental disorders which prevented him from formulating the specific intent to kill at the time of the crimes.
As we note in the next section, see infra part VI, the court had authorized $150 toward such an examination and could have increased the amount if requested. Counsel did not spend these funds.
The United States Supreme Court has consistently referred to the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases published in 1989 ("ABA Guidelines") as "guides" to professional norms. See Strickland, 466 U.S. at 688; Rompilla, 545 U.S. at 387 n. 7. Counsel's performance preparing and presenting the defense of diminished capacity "fell below an objective standard of reasonableness" when measured by the ABA Guidelines. See Strickland, 466 U.S. at 688. Specifically, counsel's preparation for trial fell short of what a reasonable attorney would be expected to do, especially relating to defendant's only defense against capital charges. ABA Guideline 11.4.1.7 suggests that counsel "should secure the assistance of experts where it is necessary or appropriate for . . . preparation of the defense . . . and rebuttal of any portion of the prosecution's case at the guilt/innocence phase." Counsel did not make any noticeable attempt in this regard despite knowing that the defense of diminished capacity required him to do so. He neither took advantage of resources to obtain defense experts nor investigated the examinations ordered by Judge Sabo. We agree with the petitioner that the brief examinations by court-employed experts for competency to stand trial were not adequate substitutes for a defense expert regarding a diminished capacity defense. Accordingly, we find that counsel's preparation and presentation of the diminished capacity defense was unreasonable due to his failure to pursue and obtain expert assistance.Strickland, 466 U.S. at 688.
The ABA Guidelines were in effect at the time of Marshall's trial.
In order to be entitled to relief, however, Marshall must also demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 488 U.S. at 694. Petitioner has failed to establish such prejudice because the evidence submitted at trial indicates that on the morning he killed his wife and stepdaughter Marshall's "cognitive functions of deliberation and premeditation" were not so altered by a "mental disorders" that he could not form the specific intent to kill. See Saranchak, 866 A.2d at 299; Mitchell, 902 A.2d at 446. As the evidence clearly demonstrated that petitioner acted with premeditation and deliberation in killing his wife and stepdaughter, in our view there is not a reasonable probability that even a diminished capacity defense fully supported by expert testimony would have changed the result of the proceeding. See Strickland, 488 U.S. at 694; Legg, 711 A.2d at 435. Further, this failure is not sufficient to undermine confidence in the outcome of the trial. When Marshall's stepdaughter Shanisha saw Marshall killing her mother, petitioner recognized the danger she posed to him and pursued her through the apartment until he caught her. He then carried her back to the privacy of his bedroom, shut the door, and killed her with a hammer. He methodically concealed his actions by hiding the bodies from his remaining children, cleaning both himself and the hammer, and thereafter taking the children to a friend's house. This is the behavior of a man in full possession of his "cognitive functions of deliberation and premeditation." Saranchak, 866 A.2d at 299. Such evidence can and did disprove a defense of diminished capacity. Legg, 711 A.2d at 435.
Marshall's situation is unlike, for example, the case in which the Pennsylvania Supreme Court created the diminished capacity defense. See Commonwealth v. Walzack, 360 A.2d 914 (Pa. 1976). There, the Court held that a defendant charged with murder could not physically form the intent to kill due to having had a lobotomy. See id.
Even if petitioner had acquired prior to trial the expert assistance he has now, the result of the guilt phase of the trial, in our view, would have been the same. Strickland, 488 U.S. at 694. Marshall's experts, as noted above, rely on the inadequate Robichaus affidavit and thus do not aid petitioner's defense of diminished capacity. Moreover, the overwhelming weight of the evidence demonstrates Marshall acted with premeditation and deliberation when he killed his wife and stepdaughter.
Dr. Dee concluded that Marshall is "brain-damaged" with "substantial impairment of memory" with "impaired" "verbal and non-verbal reasoning" stemming from his substance abuse and a "dysfunctional and abusive" childhood. He further opines that Marshall's addiction was so consuming that he was "unable to stop using cocaine." Dr. Dee concludes that these factors "substantially impaired his capacity to conduct or conform his conduct to the requirements of law and left him under the influence of extreme mental or emotional disturbance." We find the conclusions in this report to be irrelevant to diminished capacity. The Pennsylvania Supreme Court has stated that in order to be relevant and admissible, expert testimony with respect to the diminished capacity defense must address the defendant's ability to form the specific intent to kill. Saranchak, 866 A.2d at 299 (citation omitted); Zettlemoyer, 454 A.2d at 943. Because it does not address the proper legal standard, Dr. Dee's expert opinion is simply not relevant.
Accordingly, we will not grant Marshall relief on this claim.
VI.
Marshall maintains that he is entitled to relief from his conviction because Judge Sabo denied him access to a defense-oriented psychiatrist to whom he claims he was entitled under Ake v. Oklahoma, 470 U.S. 68 (1985). He also contends that the failure to disclose the results of the court's medical and psychological examinations violated his right to due process of law and that the examinations violated his right to counsel.
Petitioner's first defense counsel requested the court to authorize initial funding for a psychiatric evaluation. As was customary at the time, Judge Charles L. Durham approved $150 for this purpose on June 29, 1988. Defense counsel could have returned to the court for more funding if needed. The authorized funds were never spent. On March 20, 1989, Marshall made a pro se motion to remove his counsel on the ground that she was ineffective. In addition, on April 17, two days before a hearing on his motion to suppress, petitioner also filed a civil suit against her for damages. Petitioner's counsel felt compelled by this lawsuit to seek to withdraw from representing Marshall. She made a motion to this effect on April 19.
When questioned by Judge Sabo, Marshall expressed dissatisfaction with counsel's recommendation that he accept the Commonwealth's plea offer and had a list of ten attorneys he deemed acceptable. He further stated that he wished to be examined by a psychiatrist for the "part of the case I don't remember because I was under the influence of drugs." N.T. 4/19/89 at 10-11. He was unhappy that counsel, in his view, had not followed his instructions. He stated that he had no intention of cooperating with her. Judge Sabo reluctantly granted her motion to withdraw on April 20. Soon thereafter, the court appointed Marshall new counsel.
On September 25, 1989, one day before jury selection was scheduled to begin, Judge Sabo held a hearing on the defendant's motion to suppress evidence. At that hearing, petitioner's trial counsel asked the court for a continuance so that he could have Marshall examined by a psychiatrist to prepare a diminished capacity defense. Judge Sabo said he would allow Marshall to be examined and instructed counsel to prepare an order for him to sign to the same effect. Counsel said he would do so. Judge Sabo denied the motion to suppress after the hearing on September 25, and jury selection commenced the following day and continued until Monday, October 2. Despite being instructed to prepare an order, counsel neglected to transmit such a form of order until October 2, seven days after his initial request.
When defense counsel finally raised the issue at the close of the proceedings on Monday, October 2, the jury had been selected. The proposed order, which was never signed, sought a "complete examination of the [d]efendant's nervous system," a phrase he admitted borrowing from "the psychiatrist up at the hospital at the Hahnemann section at the Detention Center." He did not understand the nature of the tests he requested nor how long they would take to perform. The Commonwealth objected to another delay for open-ended psychiatric testing especially when the jury had been selected and seated. Judge Sabo recessed to allow defense counsel time to research the legal basis and medical details of his request.
The jury was not sworn, however, until Wednesday, October 4.
Defense counsel reported the testing would be completed within one week so that the trial could start the following Monday. The Commonwealth objected in light of what it deemed an excessive amount of time to make the jury wait and the lack of indications that Marshall suffered from organic brain disease. Judge Sabo again criticized counsel for making such a request on the very eve of trial but nevertheless fashioned a procedure that would both allow Marshall to be examined by a psychiatrist and at the same time allow the trial to proceed without another continuance. The court ordered "forthwith" a psychiatric evaluation and an electroencephalogram ("EEG") to be conducted within twenty-four hours at Philadelphia's Holmesburg prison. If the results revealed any indications of OBD or the need for further testing, the court would then revisit the matter and consider postponing the trial. Otherwise, the trial would proceed as scheduled. Neither counsel nor Marshall objected to this arrangement. Judge Sabo entered an order implementing his plan and voided an order granting a more thorough degree of testing that he had signed the same day prior to the discussion with counsel.
An electroencephalogram (EEG) is a test that measures and records the electric currents developed in the brain. The test measures the electrical activity of the brain. Used most often to diagnose epilepsy, the test may also be used to identify the location of a suspected brain tumor, inflammation, infection (such as encephalitis or meningitis), bleeding, head injury, or disease in the brain, such as Parkinson's disease. It also may be used to assist doctors in evaluating periods of unconsciousness or dementia. See http://www.webmd.com/epilepsy/Electroencephalogram-EEG-21508 (April 25, 2007).
Marshall was therefore removed from the following day's "bring-down list," that is, the daily order stating which prisoners will be brought from confinement to the Criminal Justice Center. The record does not reveal why Marshall was brought to court on October 3 notwithstanding the order of the previous day.
Despite the court's order, Marshall was brought from the prison to the court on October 3 and evaluated there. The following day, defense counsel advised Judge Sabo that the defendant had been brought down and evaluated and asked permission to examine the experts to determine the manner in which they had arrived at their conclusions. The court commented that he had been informed of the results of the evaluations and that written reports were in the process of being prepared. Judge Sabo said he would provide defense counsel with the reports as soon as they were available and that counsel could then decide if he wished to question the psychiatrist and psychologist who had examined his client the day before. Defense counsel did not object to that arrangement and the trial began. The trial transcript does not contain any further discussion of the examinations.
Despite the agreement by the parties and the order signed by Judge Sabo, petitioner was brought to court on October 3 and the ordered psychiatric tests were administered there. Defense counsel did not object to the change in location on the morning of October 4.
Marshall did not assert an Ake claim on direct appeal. Rather, he did so for the first time in his PCRA petition and again on appeal in Marshall II. He argued that the trial court violated his constitutional rights when it granted his counsel's request for an evaluation, later vacated that order, and then misled the defense when it orally reported the results of the tests that were actually performed. The PCRA court held the claim waived and the Pennsylvania Supreme Court affirmed the denial of PCRA relief. The Commonwealth contends that during PCRA proceedings, petitioner did not make a separate claim under Ake, as he does before this court, and so his claim here is unexhausted and procedurally defaulted. We find that both the PCRA and Marshall II courts were on notice of petitioner's claim that the trial court did not afford him his rights under Ake.McCandless v. Vaughn, 172 F.3d at 261 (citing Anderson, 459 U.S. at 6). Therefore, the claim has been exhausted and, for the reasons set forth above, see supra part III, we apply pre-AEDPA standards, that is, de novo review.
In Ake v. Oklahoma, the Supreme Court held that when a defendant "demonstrates that his sanity at the time of the offense is to be a significant factor at trial" or the state "presents psychiatric evidence of the [defendant's] . . . future dangerousness" at sentencing, the Constitution requires the state to "assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83. The Court recognized that "[a] defendant's mental condition is not necessarily at issue in every criminal proceeding . . . and it is unlikely that psychiatric assistance . . . would be of probable value in cases where it is not." Id. at 82. Instead, "[t]he variable on which [a court] must focus is, therefore, the probable value the assistance of a psychiatrist will have . . . and the risk attendant on its absence." Id. at 84. The Court noted that such a defendant does not have the right to "choose a psychiatrist of his personal liking or to receive funds to hire his own." Id. at 83. Rather, the Court left it to each state to establish its own means of ensuring indigent defendants' access to a psychiatrist when his or her sanity at the time of the offense will be a significant factor at trial.
The Commonwealth maintains that Ake does not apply to Marshall because the two circumstances triggering the right to state-funded psychiatric assistance identified by the Supreme Court were not present in his case. First, the prosecutor did not present psychiatric evidence of the petitioner's future dangerousness during the guilt or penalty phases of the trial. Second, Marshall's sanity at the time of the offenses was not a substantial factor at the trial. While the Commonwealth is correct that neither situation existed at Marshall's trial, we believe it somewhat incongruous to demand that a defendant asserting a defense of diminished capacity offer expert testimony while at the same time denying the defendant the means to present the required testimony. Nevertheless, we need not decide whether the rule in Ake applies to prisoners raising the defense of diminished capacity. Assuming Ake does apply, its requirements were satisfied.
The Pennsylvania courts complied with the Supreme Court's mandate in Ake. That decision merely requires each state to "assure the defendant access to a competent psychiatrist" under certain conditions. Ake, 470 U.S. at 83 (emphasis added). The Court left it up to the states to establish the means with which to carry out the rule. In Pennsylvania in 1988-1989, upon request of counsel for a defendant, state courts could authorize initial funding to pay for psychiatric evaluation in the amount of $150. The Commonwealth represents, and Marshall does not dispute, that the court could have authorized additional funds upon request once the initial amount had been spent. On June 29, 1988, Judge Durham, who preceded Judge Sabo in this case, granted the request of petitioner's counsel to authorize funding for a psychiatric defense by ordering an initial $150 for that purpose. See Szuchon v. Lehman, 273 F.3d 299, 318 (3d Cir. 2001).
Judge Durham satisfied Ake when he granted the motion of defense counsel to authorize funds for a psychiatric evaluation. We reject Marshall's assertion that the Court of Common Pleas or the Commonwealth somehow violated Ake because both his attorneys elected not to use the funds. Accordingly, we will not grant habeas relief on this claim.
Marshall also argues his right to due process of law was violated when the court failed to provide him with copies of the written reports authored by the court psychiatrist and psychologist. He further asserts that Judge Sabo denied him due process of law by inaccurately summarizing these reports to the attorneys.
Petitioner did not fairly present this due process claim to the state courts. In his PCRA petition, this claim comprises two paragraphs (¶¶ 149-50) in the midst of his extended, multi-page discussion relating to the other claims in this section. The two paragraphs in the PCRA petition claim that because defense counsel was not given a copy of the report and Marshall's evaluators reported to the court alone, he is entitled to relief. Marshall did not provide the state courts with the legal or factual basis for his due process claim and never cited to any constitutional or statutory authority, or any federal or state case. In his current petition, Marshall offers this alleged omission as a separate claim for relief. He has added further discussion and provided legal authorities not offered to the state courts. Petitioner also expands the claim by asserting that Judge Sabo also violated his constitutional rights by misrepresenting the content of the reports. This expanded due process claim was not "fairly" presented to the state courts. The two paragraphs contained in the PCRA petition are not fair "notice" of the claim as it is before us today. We find that it has not been exhausted and is procedurally defaulted. Petitioner has not made the requisite showing of cause and prejudice.
Even if we were to reach the merits, however, we would not grant petitioner relief. The report of Dr. Miazzo is dated October 4, 1989, and the report of Jules De Cruz is dated October 5, 1989. Judge Sabo orally relayed that both examinations revealed Marshall was competent to stand trial and revealed no indications of OBD and that written reports would be provided counsel as soon as they were available. The issue was not brought up again. We see no reason to read the silence in the record as evidence that the reports, which were not favorable to Marshall, were not provided in violation of petitioner's right to due process of law. We decline to grant Marshall habeas relief on the basis of idle speculation that his counsel may not have received reports from the two examinations of petitioner on October 3.
VII.
Marshall further asserts that the court violated his right to counsel under the Sixth Amendment to the United States Constitution and Estelle v. Smith, 451 U.S. 454 (1981), when it subjected him to medical evaluations that occurred outside the presence of his attorney and without proper notice. In support of his claim he also cites several cases decided by our Court of Appeals: Appel v. Horn, 250 F.3d 203, 215 (3d Cir. 2001); Hull v. Freeman, 932 F.2d 159 (3d Cir. 1991); and Smith v. Freeman, 892 F.2d 331 (3d Cir. 1989). Marshall did not raise this claim on direct appeal. It comprised Claim XIII of his PCRA petition. He exhausted the claim by fairly presenting it before the PCRA court and the Pennsylvania Supreme Court in Marshall II. We apply the pre-AEDPA de novo standard of review. See supra part III.
In Estelle, after the defendant had been indicted and counsel appointed, the state announced it would seek the death penalty. The trial judge, sua sponte, ordered a psychiatric evaluation of the defendant to determine whether he was competent to stand trial without informing defense counsel. After a jury found defendant guilty of murder, the state called to the stand the physician who had performed the initial psychiatric evaluation during the penalty phase of the trial to testify as to the defendant's future dangerousness. Based in part on that testimony, the jury sentenced the defendant to death. The Supreme Court vacated defendant's death sentence and held that defendant had a right under the Sixth Amendment to consult his attorney before submitting to a psychiatric evaluation by the state that would be used against him during the penalty phase of his criminal trial. Estelle, 451 U.S. at 469-71.
Marshall's rights under Estelle and the Sixth Amendment were not violated. While it is certainly true that defense counsel was not present while the medical personnel evaluated his client, nothing in the Constitution nor any decision by the Supreme Court or our Court of Appeals requires counsel to be present during the psychiatric evaluation of his client. See Re v. Snyder, 293 F.3d 678, 682 (3d Cir. 2002). Indeed, the Supreme Court has observed that the presence of an attorney during a psychiatric evaluation would "contribute little" and might be "seriously disrupt[ive]."Estelle, 451 U.S. at 470 n. 14. It was defense counsel that sought and agreed to these evaluations after discussion with Judge Sabo and the prosecutor on the record. Defense counsel did not ask to be present nor did he object on this basis at any time. Furthermore, unlike Estelle, the Commonwealth did not use the evaluations for any purpose during either the guilt or penalty phase of petitioner's trial. The prosecutor did not mention the existence or content of either report and did not seek to call the psychologist and psychiatrist to testify.
All the attorneys and the court agreed with the ad hoc testing designed to accommodate defense counsel's late request without excessive inconvenience to the already-empaneled jury. Whatever may be said about the procedure, it did not violate Estelle v. Smith. Accordingly, we will not grant habeas relief on this claim.
In addition, petitioner argues that all his counsel were ineffective for failing properly to address and/or litigate these claims during the trial and on direct appeal. These claims were not fairly and completely presented to the state courts as separate, fully developed claims. Therefore, they have not been exhausted. Marshall has not showed cause and prejudice. See supra part III.
VIII.
In addition to those claims presented at oral argument on his pending petition for relief under 28 U.S.C. § 2254, Marshall makes numerous additional claims that he maintains entitle him to a new guilt phase trial. Marshall contends that his counsel was ineffective for failing to impeach his friend Scotty Brecher at length regarding Brecher's drug use as well as his testimony that purportedly stood in "direct contradiction to all other accounts." He further argues that counsel was constitutionally ineffective for failing to notice that Brecher was intoxicated while he testified as he states in a 1997 affidavit.On direct appeal, petitioner did not assert that his counsel was ineffective for failing to investigate and present the jury with Brecher's background or for failing adequately to impeach him. Rather, he first brought it before the state courts during his PCRA proceeding. We find that it was fairly presented to the state courts in a manner that put those courts on "notice" of the federal claim he brings before us. We apply pre-AEDPA standards for the reasons stated in Part III of this Memorandum. In addition, we have described at length the standards by which we evaluate claims under Strickland and will not do so again here.
This is a combination of Claims I.D and III.B of Marshall's habeas petition.
Brecher was a close friend of Marshall's at the time of the crimes. Their friendship centered on their shared interest in injecting themselves with large doses of drugs. At trial, Brecher testified for the Commonwealth and recounted that while he and Marshall were using drugs together after the murders Marshall had told him he murdered his wife and stepdaughter. Marshall took Brecher back to his apartment and asked him if he "was ready" to see the crime scene before opening the door to the bedroom and revealing the bodies of his victims. Over the following days, Brecher and Marshall removed the television from the bedroom in order to trade it for drugs and later sold Donna Marshall's car for more drug money. For several days after the murders the two men regularly used drugs together until Marshall decided to flee the state to avoid arrest. Brecher assisted Marshall's efforts to leave the state and travel to South Carolina. After helping Marshall flee, Brecher made two recorded statements to the police that were later supplied to the defense. On July 14, 1997, however, nearly eight years after the trial, Brecher signed an affidavit in which he maintains that he was intoxicated when he testified at the preliminary hearing and trial.
Petitioner, relying on new assertions contained in Brecher's 1997 affidavit, also argues that Brecher actually made three, not two, statements to the police and counsel was ineffective for failing to question Brecher about the third statement. Even assuming arguendo that there was a third statement, counsel could not be ineffective for failing to cross-examine Brecher regarding something about which he knew nothing and could reasonably have known nothing at the time.
Counsel's failure to question Brecher extensively regarding his drug use was not an unreasonable performance under Strickland, nor did the petitioner suffer any prejudice. The prosecutor thoroughly examined Brecher regarding his use of drugs generally as well as during the specific events in question. Brecher admitted to extensive use of illegal drugs, yet he was able to recall clearly and consistently the events that took place the days after the murders. We see little defense counsel might have gained from belaboring Brecher's drug use. The prosecutor uncovered material from which counsel could have argued to the jury that his drug use undermined his credibility, but we do not fault him for not rehashing material the prosecutor had exhaustively covered moments before.
Brecher's testimony was consistent with the statement he gave to the police after Marshall had fled to South Carolina.
In addition, even if we were to label counsel unreasonable for his failure to cross-examine Brecher on his drug addiction, Marshall has not demonstrated prejudice, namely that had Brecher been cross-examined on his drug use, the jury would have found Marshall not guilty of first-degree murder and simply guilty of third-degree murder. Excluding Brecher's testimony in its entirety, there was ample evidence from numerous other sources to support the jury's verdict.
Likewise, we decline to label counsel's performance unreasonable under Strickland for failing to notice Brecher's alleged state of intoxication when he testified or for not questioning Brecher regarding his mysterious third statement to the police. We find Brecher's 1997 affidavit is utterly incredible. There is no indication Brecher was intoxicated when he testified. From our review of the record, it appears that Brecher's responses to questions were clear and lucid and that his testimony was consistent with his own prior statements to the police and with the other evidence. Furthermore, even if he was intoxicated when he testified, the prosecutor, the court, as well as the defendant and his lawyer all failed to notice. This is not unreasonable performance under Strickland.
In sum, counsel was not ineffective for failing to notice any impairment of Brecher on the stand because we find no indication that he actually was impaired. Additionally, we do not fault counsel for failing to cross-examine Brecher about nonexistent statements to the police. Even assuming counsel was ineffective, Marshall did not suffer any prejudice because he fails to demonstrate that the result of the guilt phase would have been different.
IX.
Prior to trial, the Commonwealth turned over two statements made by Brecher to the Philadelphia police. Petitioner claims that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), by refusing to furnish the defense with a statement allegedly made to the police by Scott Brecher at a time when he was under the influence of drugs. Marshall further argues that the Commonwealth violated Brady when it failed to reveal information regarding Brecher's drug addiction.
The record did not contain any indication of a third statement made by Brecher to the police until Brecher claimed he made a third statement in a 1997 affidavit and thus was not raised on direct appeal. Marshall fairly presented the claim to the PCRA court and on appeal to the Pennsylvania Supreme Court in Marshall II. Therefore, we find that the claim has been properly exhausted. We apply pre-AEDPA de novo standard. See supra part III.
In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87. To establish a violation of Brady, Marshall must show that: (1) evidence was suppressed; (2) the evidence was favorable to the defense; and (3) the evidence was material to guilt or punishment. See Albrecht v. Horn, 471 F.3d 435 (3d Cir. 2006). Impeachment evidence also falls within theBrady rule. See United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). The test is an objective one; there is no bad-faith inquiry. See United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003). The Supreme Court has explained that evidence is material if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict" or if there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 435 (1995); United States v. Bagley, 473 U.S. 667, 682 (1985). We inquire whether in the absence of the suppressed evidence he received a fair trial, that is, a trial resulting in a verdict worthy of confidence. See Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles, 514 U.S. at 434).
The requirements of Brady extend beyond evidence prosecutors actually possess. United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). The Supreme Court has emphasized that prosecutors have "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles, 514 U.S. at 437. Evidence that is not turned over to the defense yet is deemed to be in the "constructive possession" of the prosecutor, may violate Brady. See United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). Our Court of Appeals has construed the term "constructive possession" to mean that "although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence. Accordingly, we consider whether the prosecutor knew or should have known of the materials even though they were developed in another case." Risha, 445 F.3d at 303 (quotingUnited States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993)).
Petitioner cannot demonstrate that the Commonwealth violatedBrady v. Maryland. First, there is no evidence, other than Brecher's 1997 affidavit ten years after the event in question, that he made a third statement to the police or that the prosecutor ever possessed, actually or constructively, any documents related to the alleged interview. In addition, even if Brecher made a third statement, a dubious proposition at best, his 1997 affidavit does not recant or undermine Brecher's testimony at trial. Thus, petitioner cannot establish that the absence of this third statement "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict" or, in short, show a "reasonable probability of a different result." Banks, 540 U.S. at 698, 699 (quoting Kyles, 514 U.S. at 434, 435) (quotation omitted).
Finally, we reject Marshall's claim that the Commonwealth violated Brady when it failed to disclose details relating to Brecher's drug use. Petitioner and Brecher used a variety of drugs, and did so together, for many years. As Marshall already knew the facts he accuses the Commonwealth of suppressing, he cannot prevail on his Brady claim. See DiSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006); Ellsworth v. Warden, 333 F.3d 1 (1st Cir. 2003); United States v. Cottage, 307 F.3d 494 (6th Cir. 2002); United States v. Morris, 80 F.3d 1151 (7th Cir. 1996).
Accordingly, Marshall's claims for relief pursuant to Brady v. Maryland will be denied.
X.
Marshall raises several claims relating to three members of the jury array: Karen Edith Poles ("Poles"), John M. Knauf ("Knauf"), and Joseph Rock ("Rock"). Only the latter two served on the jury. Petitioner asserts that Judge Sabo violated his right to a fair and impartial jury under the Sixth and Fourteenth Amendments in failing to dismiss all three jurors for cause. Marshall further argues that his counsel provided ineffective assistance when he did not move to excuse Knauf and Rock for cause and allowed them to sit on the jury.
Marshall maintains that Judge Sabo violated his constitutional right to a fair and impartial jury when he denied a motion by defense counsel to dismiss Poles for cause and when he limited defense counsel's questioning during voir dire. Counsel, who eventually exercised all twenty peremptory challenges, was forced to use one on Poles. Petitioner also argues that to the extent counsel failed to question Poles effectively so as to reveal bias he was constitutionally ineffective.
Petitioner raised the state-law equivalent of this claim on direct appeal. The Pennsylvania Supreme Court rejected it on the merits. Marshall I, 633 A.2d at 1104. In his PCRA petition, Marshall presented the federal version of the same claim. Judge Glazer found that the federal claim had been fully and fairly litigated when the Supreme Court rejected the state law variant in Marshall I and therefore was not cognizable under the PCRA as a previously litigated claim. A majority of the Pennsylvania Supreme Court agreed the claim had been previously litigated. Marshall II, 810 A.2d at 1216-17. The Commonwealth argues that we should defer to this holding.
Chief Justice Zappala's opinion was joined on this point by Justice Cappy. Marshall II, 810 A.2d at 1229 (Cappy, J., concurring). Justice Castille, joined by Justice Eakin, also agreed that this claim was "previously litigated [and] . . . not cognizable under the PCRA." Id. at 1230 (Castille, J., concurring in part and dissenting in part).
The claim Marshall raised on direct appeal was completely based on Pennsylvania law while the claim raised in PCRA proceedings and before this court is wholly federal. While the substance of the state and federal law is similar, the PCRA claim before the Court in Marshall II is, in our view, not the same as the one adjudicated in Marshall I. To hold, as the state courts did, that Marshall's federal claim was fully litigated when the Marshall I Court adjudicated his state law claim, indicates that the PCRA Court and the Pennsylvania Supreme Court in Marshall II misunderstood the nature of the PCRA federal claim, which petitioner exhausted in his PCRA proceedings. Thus, we apply pre-AEDPA standards. See Bronshtein, 404 F.3d at 726; Chadwick, 312 F.3d at 606.
The United States Supreme Court has repeatedly explained that in
any . . . trial situation where an adversary wishes to exclude a juror because of bias . . . it is the adversary seeking exclusion who must demonstrate, through questioning, that the potential juror lacks impartiality. It is then the trial judge's duty to determine whether the challenge is proper. This is, of course, the standard and procedure outlined in Adams, but it is equally true of any situation where a party seeks to exclude a biased juror.Wainwright v. Witt, 469 U.S. 412, 423-24 (1985) (internal citations omitted). The Supreme Court went on to state that in cases where a criminal defendant "sought to excuse a juror for cause and the trial judge refused, the question was simply did [the] juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestations of impartiality have been believed." Id. (internal punctuation omitted) (citing Patton v. Yount, 467 U.S. 1025, 1036 (1984)).
In Pennsylvania, the test for whether a prospective juror should be disqualified is the same today as it was at the time of Marshall's trial. Compare Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), with Commonwealth v. Lane, 555 A.2d 1246, 1249 (Pa. 1989). Pennsylvania courts ask whether the prospective juror "is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence." Robinson, 864 A.2d at 489. The Pennsylvania Supreme Court has explained that "[j]urors should be disqualified for cause when they do not have the ability or willingness to eliminate the influences under which they are operating and therefore cannot render a verdict according to the evidence." Id. (citation omitted). A judge should grant a challenge for cause only "when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions." Id. at 489-90 (citation omitted). Finally, "the burden of proving that a venireman should be excused for cause is on the challenger who must demonstrate that he or she possesses a fixed, unalterable opinion that would prevent him or her from rendering a verdict based solely on the evidence and the law." Id. at 490 (citation omitted).
There is nothing to suggest, and Marshall does not argue, that Pennsylvania law is inconsistent with the United States Constitution as interpreted by the United States Supreme Court.
During voir dire, Poles said repeatedly that she could and would give Marshall a fair trial and follow the instructions on the law given by the Judge. See Marshall I, 633 A.2d at 1104. Petitioner makes much of the fact that Poles' brother-in-law had killed an infant, but her answers to defense counsel's questions on the subject are consistent with her statements that she would be fair to both the Commonwealth and Marshall and judge the case according to the evidence and the law. Poles stated that even though she did not care for her brother-in-law, she opined that, in her view, he should not have received the death penalty because he "did not have all his faculties" due to drug use. She then emphasized that she would make her decision based on the evidence and the law as explained by the court, nothing more. In short, Poles maintained she would follow the law without bias toward either side and indicated that she was open to the argument of the defense that drug use effectively mitigated the crime in question and reduced the proper punishment.
A trial judge may deny a motion to excuse a potential juror for cause where the court believes the juror will be fair to both sides and try the case according to the evidence and the law as explained by the court. Wainwright, 469 U.S. at 423-24. Judge Sabo believed Poles' statements to this effect and the record is void of evidence that suggests this judgment was incorrect. See 28 U.S.C. § 2254(e). Because the record offers no support for petitioner's claim that Judge Sabo denied him the right to a fair and impartial jury, we will deny the petition in this respect.
In a one-sentence addendum to the above claim, Marshall maintains that "[t]o the extent that trial counsel failed properly to inquire regarding the juror's bias, counsel's conduct constituted prejudicially deficient performance in violation of the Sixth and Fourteenth Amendments." Petitioner did not raise the claim on direct appeal, in his PCRA petition, or on appeal to the Pennsylvania Supreme Court in Marshall II. The claim is therefore defaulted and petitioner has failed to make the required showing of cause and prejudice. We will not consider it.
During voir dire, potential juror John M. Knauf revealed that two and one-half years prior to Marshall's trial his daughter's fiancee was shot to death during a robbery while he was holding Knauf's infant granddaughter. While the baby was not harmed, Knauf "took it kind of harshly." Although he did not witness the attack, he "vaguely" recalled seeing the victims in the hospital following the crime. When asked by counsel if he could give the defendant a fair trial, Knauf stated that the fact the crime involved a child victim would be "hard to cope with personally" and that "I think I would take that sort of bad." Nevertheless, he stated that "without a doubt" he could "certainly" follow the Judge's instructions on the law and give all parties a fair and impartial trial. Both sides accepted Knauf.
Nearly eight years later, on July 29, 1997, Knauf signed an affidavit in support of Marshall's PCRA petition. The affidavit was submitted to the PCRA court within the time allotted by Judge Sabo's notice of intent to dismiss and is therefore a part of the PCRA record which we may consider. In that affidavit Knauf claimed he "gave a truthful answer to every question I was asked" and that he "would not have said anything that was not true to get on the jury any more than I would have lied to get off the jury." He then went on to state that he does not like African-Americans and to describe Marshall as "dark and mean looking" and that because he killed a child Knauf "automatically" concluded that Marshall should be sentenced to death.
Marshall first alleges that his constitutional right to a fair trial was violated when Judge Sabo did not excuse Knauf for cause. Petitioner further argues that defense counsel was ineffective for not challenging him for cause or exercising a peremptory strike and thereby allowing Knauf to sit on the jury. Marshall relies primarily on Knauf's 1997 affidavit to support these claims in his federal habeas petition. Petitioner presented both these claims to the PCRA court and to the Pennsylvania Supreme Court in Marshall II. While the discussion of the federal nature of the claims is somewhat conclusory and undeveloped in his state court filings, it was sufficient to put the state courts on notice of these claims. We first address Marshall's claim of trial court constitutional error applying the pre-AEDPA de novo standard. See supra part III.
In analyzing these claims, we shall not consider Knauf's 1997 affidavit, which attempts to impeach the verdict in this case nearly eight years after it occurred. Pennsylvania law in 1989, as it does today, did not permit juror affidavits to be used in this manner. See Commonwealth v. Abu-Jamal, 720 A.2d 485, 558 (Pa. 1998); Commonwealth v. Patrick, 206 A.2d 295, 297 (Pa. 1965). Likewise our Court of Appeals generally does not permit jurors to impeach their verdict after the jury has been discharged. See United States v. Lloyd, 269 F.3d 228, 237 (3d Cir. 2001); Wilson v. Vermont Castings, Inc., 170 F.3d 391, 394 (3d Cir. 1999). A federal court may only "inquire into the verdict . . . if extraneous prejudicial information was improperly brought to the jury's attention or [if] any outside influence was improperly brought to bear upon any juror." Wilson, 170 F.3d at 394 (quoting Fed.R.Evid. 606(b)). This exception does not pertain here.
As we stated above, a trial judge may, consistent with the United States Constitution and Pennsylvania law, deny a motion to excuse a potential juror for cause where the court credits the juror's statements that he or she will be fair to both sides and try the case according to the evidence and the law as explained by the court. See Witt, 469 U.S. at 423-24; Robinson, 864 A.2d 460; Lane, 555 A.2d at 1249. Knauf reported that he was "child oriented" but did not indicate that this would prevent him from being fair. He later stated unequivocally that he would be impartial. After conferring with Marshall, counsel stated that the defense found Knauf acceptable and the prosecutor agreed. Knauf did not say anything that indicated bias such that Judge Sabo should have sua sponte excused him for cause, especially when the Commonwealth, defense counsel, and defendant found he was acceptable. We are ill-equipped to evaluate credibility determinations more than seventeen years after they were made and decline to do so on the record in this case. See 28 U.S.C. § 2254(e).
The record reflects that petitioner was very involved in the selection of the jury. He regularly conversed with counsel on each member of the jury panel.
Marshall presented two variations of his ineffective assistance claim to the state courts. On direct appeal, petitioner argued solely that counsel was ineffective for failing to have Knauf removed for cause or use a peremptory challenge on him because after the shooting of his daughter's fiancé, he saw both the body and his infant granddaughter covered in blood at the hospital. The Pennsylvania Supreme Court found the claim lacked merit because, as Knauf said he would follow the court's instructions and be fair and impartial to all parties, Judge Sabo was not compelled to disqualify him. Marshall I, 633 A.2d at 1104. The Pennsylvania Supreme Court also held that defense counsel had a reasonable basis for not excluding Knauf, namely that counsel believed Knauf would give his client a fair trial and that during voir dire the two had developed a rapport. Id. During state collateral proceedings, petitioner argues counsel was ineffective for the same reasons stated in Marshall I and because Knauf's 1997 affidavit revealed virulent bias and racism that counsel failed to reveal. Petitioner proceeds on the same two-front argument here.
Without Knauf's affidavit, we are left with Marshall's argument that defense counsel was constitutionally ineffective for failing to move to excuse Knauf for bias and his racist views based on what was said during voir dire. Counsel's performance was not unreasonable. Knauf testified he would follow the law and be fair and impartial. No one in the courtroom, including Marshall himself, indicated any disbelief of that statement. In addition, counsel articulated a reasonable basis for his decision not to exercise a peremptory challenge. He believed Knauf's answers that he could and would give the defendant a fair trial. He also thought he had established a rapport with Knauf during the questioning when they joked about his name. See Marshall I, 633 A.2d at 1104. In addition, counsel was not unreasonable for failing to question Knauf further or to divine that eight years later Knauf would claim to be a racist who, despite his statements to the contrary while under oath, could not give defendant a fair trial. Accordingly, we deny relief on this claim.
The transcript records that the defendant and counsel conferred about Knauf prior to accepting him. Marshall has never maintained that defense counsel ignored his input or accepted a juror against his wishes.
Petitioner argues that his counsel was ineffective for not moving to dismiss juror Joseph Rock for cause or not using a peremptory challenge to keep him off the jury. Marshall contends Rock made several statements that indicated he could not be a fair and impartial juror. Petitioner also asserts the trial court erred for not dismissing Rock sua sponte for cause. Marshall raised these claims for the first time in his PCRA petition. They were fairly presented and are exhausted. We review these claims under pre-AEDPA standards. See supra part III.
At the time of Marshall's trial, Rock was retired, married, and had three adult children. He had been called for jury service at least five times prior to Marshall's case and had been selected to sit on a jury in a criminal case once before. Rock expressed some difficulty walking due to two bad knees but said it would not prevent him from serving on the jury if selected. When asked if there was anything about the case that would "give [him] any problems about being fair" he expressed his concern that one of the victims was a child because he was "a father and everything." The prosecutor inquired if he could put aside this bias. Rock responded: "I guess I could, when I heard the evidence it would be a different story. But I mean from what, you know, what you see and are reading these days about these abusing children and everything. I can't see that myself." The prosecutor pressed him further, asking "notwithstanding your being upset would you put that aside and listen to the evidence and be fair." Rock answered, "I think I could. I think so." Petitioner contends that the court violated his constitutional rights when it failed to excuse Rock for cause, apparently sua sponte, after he made these statements and argues counsel was ineffective for allowing him to sit on the jury.
Marshall also maintains that Rock exhibited a zeal for imposing the death penalty that also, according to petitioner, further undermined any confidence in his ability to deliberate fairly and impartially. When asked if he had any beliefs that would prevent him from imposing the death penalty, Rock answered that he had none and if "he thought the man was guilty enough I wouldn't have no problem." The prosecutor cautioned that it was not a question of "guilty enough" but rather if he would "follow the instructions on the law" given by the court. Rock then stated "yeah, sure" when asked if he could follow those instructions and "absolutely" when the prosecutor inquired if he would "try and be a fair guy, as fair as you can be."
Judge Sabo did not violate petitioner's right to a fair and impartial jury under the Sixth Amendment when he did not dismiss Rock for cause sua sponte. The prosecutor accepted Rock as did the defense counsel after consulting with Marshall. In such a situation, Judge Sabo did not violate petitioner's constitutional rights when he did not intervene to excuse a juror the defense accepted. See Witt, 469 U.S. at 423-24; Robinson, 864 A.2d 460; Lane, 555 A.2d at 1249. Rock stated that he would "absolutely" do his very best to be fair despite his earlier tentativeness when he learned the nature of the crimes involved. The record does not indicate a reason to disbelieve Rock. Discomfort with the gruesome nature of the crimes in this case is hardly surprising and does not automatically indicate bias against the defendant. In short, because there was no cause and the defense had accepted Rock, Judge Sabo did not violate Marshall's constitutional rights by not excusing him for cause sua sponte. Accordingly, we deny Marshall's petition for relief on this claim.
We also read Marshall's petition to argue, somewhat cursorily, that Rock's statements evidencing a "zeal" for imposing the death penalty demonstrated that he was not able to be fair and impartial during the guilt phase. This claim is meritless. Petitioner mischaracterizes the voir dire testimony. Rock stated that he would not have a problem imposing the death penalty, not that he was anxious to sit on a capital jury for the opportunity or that he would automatically do so in this case. In short, Rock's responses to voir dire questioning relating to the death penalty do not reveal him to be unfair and impartial.
Petitioner also asserts that his counsel was ineffective for allowing Rock to sit on the jury. Marshall has not demonstrated that counsel's decision not to exercise a peremptory challenge was unreasonable. The transcript does not provide any indication that would lead a reasonable attorney to conclude Rock would be unfair or biased. Like his counsel at the time, petitioner accepted Rock. The transcript indicates that counsel conferred with his client before accepting Rock and Marshall has never asserted he opposed Rock's selection. Both counsel and client found Rock acceptable in accordance with his testimony that he could be fair and follow the law. We will not seventeen years later find counsel was unreasonable in failing to strike Rock. See 28 U.S.C. § 2254(e). Finally, even if counsel was unreasonable, Marshall fails to demonstrate any prejudice and in light of the record we decline to invent some.
For the reasons above, we deny Marshall's petition for habeas relief on his claims relating to potential-juror Poles and jurors Knauf and Rock.
XI.
Petitioner next argues that his constitutional right to due process was violated as a result of purported instances of prosecutorial misconduct. Marshall contends the prosecutor expressed his personal opinion that the defendant was guilty, vouched for the credibility of the Commonwealth's witnesses, speculated as to the last words of the victims, used rhetoric to inflame the passion of the jury, and made improper references to both the Bible and uncharged conduct. We consider each allegation of misconduct.
Petitioner also asserts that all counsel were ineffective for failing to object, litigate, and/or appeal these statements. We will not consider one-sentence ineffective assistance of counsel claims "tacked on" the end of other claims.
"[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 (1985). The United States Supreme Court has explained that the proper standard of review to be applied in a federal habeas proceeding of allegedly improper prosecutorial statements during a criminal trial is "the narrow one of due process, and not the broad exercise of supervisory power."Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). For a federal court to grant habeas relief it "is not enough that the prosecutors' remarks were undesirable or even universally condemned," rather the appropriate question is whether the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citations and internal quotation omitted). To demonstrate entitlement to habeas relief, the petitioner must show the prosecutor engaged in egregious misconduct, not simply that the trial court erred. See Smith v. Phillips, 455 U.S. 209, 221 (1982). As our Court of Appeals has explained, "improper conduct is not, in itself, sufficient to constitute constitutional error, even when . . . that conduct is alleged to be both deliberate and pervasive." Marshall v. Hendricks, 307 F.3d 36, 67 (3d Cir. 2002). Rather, "[i]mproper conduct only becomes constitutional error when the impact of the misconduct is to distract the trier of fact and thus raise doubts as to the fairness of the trial." Id.
A.
Marshall alleges that the prosecutor expressed his personal opinion that the petitioner was guilty and that in doing so implied that the decision to prosecute was based on the prosecutor's "professional judgment" and, therefore, that the jury could trust that the defendant was guilty. See Brooks v. Kemp, 762 F.2d 1383, 1410 (11th Cir. 1985). Petitioner claims the prosecutor did so during his closing argument when he made the following statement:
And first of all let me say that I appreciate your service as jurors and I know you paid close attention to the testimony. But it hasn't been a pleasure, this has been no pleasant case, particularly for me because I knew at the conclusion of this case before the testimony had ended that Ayesha would testify. It has not been pleasant and I am not happy, will not be happy when you return with the appropriate verdict. This is not the proper emotion to show in a case like this and I won't have it. I will be gratified when justice is done, that is the emotional response I will have if you return with the appropriate verdict of murder in the first degree.
In his petition, Marshall offered the underlined portions set forth above (and below) as examples of misconduct. Throughout this part of the opinion we have reproduced and underlined the challenged portions of the prosecutor's closing argument and presented them in their larger contexts, which are not underlined.
N.T. 10/10/89 at 38-39. Marshall also asserts that the prosecutor opined that he was guilty when he stated:
First I want to say one thing, it never ceases to amaze me how — I guess if there was a script here I would be a director — how I am accused of being a director of something that happened two years ago, and another year passes before I even heard the name Jerry Marshall or heard of his wife and stepdaughter or persons who talked to the police within an hour of learning of the death of these deceased and are not being accused of orchestrating march to anywhere. But [defense counsel] has different obligations than I have. I have an obligation to present to you testimony and you have an obligation to render a true and accurate verdict and one that the law requires.
N.T. 10/10/89 at 40. Finally, petitioner argues the prosecutor committed misconduct during his closing argument when he said:
But I have concluded my remarks just about and I thank you for bearing with me to this point. Some of the things I had to say are rather dry. When I discuss some definitions of crimes and things that I have to do, that is my obligation, to point those things out to you. Just like it is my obligation to put on testimony of effort after effort after effort of detectives to find this [d]efendant unsuccessfully. You will forgive me for that and the length of my speaking out, but you know that when I sit down there and when I take my seat, when I stop speaking there will be no more words said on this world, on this [E]arth on behalf of justice for Shanisha Dunbar and Donna Marshall. That's it. I say the last words, so I am reluctant to leave any unspoken that will help you reach the appropriate verdict.
N.T. 10/10/89 at 58-59.
Petitioner did not present this claim of prosecutorial misconduct on direct appeal. Rather, he raised it for the first time in his PCRA petition. The PCRA court found the claim had been previously litigated and denied relief. The Pennsylvania Supreme Court denied relief. Marshall II, 810 A.2d at 1223-24, 1229-31. By presenting his claim fairly to the state courts during PCRA proceedings petitioner has exhausted his claim. For the reasons stated previously, see supra part III, our review is de novo.
None of the statements above made by the prosecutor during his closing argument offers or implies a personal opinion about Marshall's guilt. In the first passage, the prosecutor was responding to the closing argument of defense counsel where he said, "[n]ow, there are many people in this courtroom today that will applaud you if you return a verdict of first-degree murder. The prosecutor, the family of the decedents, they will certainly be happy if you return a verdict of first degree murder." N.T. 10/10/89 at 35. As was his right, the prosecutor responded that he would not "applaud" or be "happy" but, instead, would be gratified to see justice done. The Commonwealth repeatedly stated that the law and the facts commanded a verdict of guilty of first-degree murder, but nowhere did the prosecutor tell the jury that the defendant was guilty based on his own belief or knowledge.
The second passage above also responds to an implicit accusation made by defense counsel in his closing statement. Counsel had repeatedly suggested that the witnesses for the Commonwealth all testified to "a basic script outlined in the prosecutor's opening statement." As defense counsel recounted the prosecution witnesses, he repeated that each stuck to the "script," suggesting that each witness followed a story, not the truth. Again, the prosecutor had the right to respond to an assertion by the defense that he manufactured a story and that his witnesses followed it. In refuting this claim, the prosecutor did not express a personal opinion that Marshall was guilty or imply that Marshall was guilty on the basis of facts not in evidence.
In addition, Marshall claims the discussion of the prosecutor's role in the second and third excerpts of the prosecutor's closing argument amounted to an assertion that a guilty verdict was appropriate because in the government's experienced judgment Marshall was guilty. This is an unreasonable interpretation of the record. In making the statement, the prosecutor spoke the truth: a prosecutor and a defense attorney do have different obligations. See United States v. Wade, 388 U.S. 218, 256 (White, J., concurring in part and dissenting in part). Nothing in the prosecutor's statements about his obligation or that of defense counsel expresses his personal opinion about the correct verdict or suggests that the jury base its verdict on anything other than the evidence and the law.
B.
Marshall also argues that the prosecutor violated his constitutional right to due process by improperly vouching for the credibility of several Commonwealth witnesses and the Commonwealth's case on three separate occasions during his closing argument:
You will also hear the Judge define the credibility of a witness, how to determine that witness' credibility. And you do it by using your common sense in the light of your everyday experience. Does what they say make sense, hold together logically, does it make sense within the context of things. And I submit to you that the Commonwealth has presented credible witnesses, witnesses, whose credibility has not been seriously challenged in [c]ross [e]xamination or in any other fashion or in the closing or any other way. But that is for you to determine. You are the sole determiners of the credibility, that is of the truthfulness and believability of the witnesses.
N.T. 10/10/89 at 43. Petitioner also points to the following section of the closing argument:
Well, that's the portion [defense counsel] didn't read to you. And that's dated 5/22/87 at 10:00 a.m., about two-and-a-half hours after they had found the body of her sister. But [defense counsel] tell[s] you that's a script. Well, she writes a fast script if she writes a script, or perhaps I was able to write that two years after the event. But that's the testimony of Denise Carrington, and I submit to you that it is credible testimony, as is the testimony of Simone Barnes and Bessie Guyton and all the civilian witnesses.
N.T. 10/10/89 at 55. Finally, Marshall maintains the prosecutor vouched for his witnesses' credibility when he said,
Some of the things I had to say are rather dry. When I discuss some definitions of crimes and things that I have to do, that is my obligation, to point those things out to you. Just like it is my obligation to put on testimony of effort after effort after effort of detectives to find this [d]efendant unsuccessfully. You will forgive me for that and the length of my speaking out, but you know that when I sit down there and when I take my seat, when I stop speaking there will be no more words said on this world, on this [E]arth on behalf of justice for Shanisha Dunbar and Donna Marshall.
The procedural history of and standard of review for the vouching claims is identical to those of petitioner's claim that the prosecutor engaged in misconduct by stating his opinion the defendant was guilty. For the reasons stated above we apply pre-AEDPA standards.
A prosecutor may not vouch for the credibility of the government's witnesses or his case. Young, 470 U.S. at 18. Our Court of Appeals has held that a prosecutor improperly "vouches" for a witness when two criterion are satisfied. First, "the prosecutor must assure the jury that the testimony of a Government witness is credible." United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006). In addition, the prosecutor must also have made the assurance "based on either the prosecutor's personal knowledge, or other information not contained in the record." Id.; see also United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995). If we find the prosecutor committed constitutional error by vouching for the credibility of his witnesses, we then analyze whether the error was harmless or "so infected the trial as to render it unfair." Marshall v. Hendricks, 307 F.3d at 67 n. 16.
Of the three sections of the prosecutor's closing argument set forth above, we discuss only the first and second. In both passages, we agree with Marshall that the prosecutor indeed assures the jury that several of his witnesses were credible and worthy of belief. Harris, 471 F.3d at 512. The statements cannot be considered "vouching," however, unless they were "based on either the prosecutor's personal knowledge, or other information not contained in the record." Id. In both statements the prosecutor does not offer any reason for his pronouncements that government witnesses were credible. By failing to support the statements with evidence in the record, the prosecutor implied that the jurors ought to credit government witnesses on the strength of his statement alone. The prosecutor's follow-up comments that credibility determinations are for the jury do not remedy the vouching.
In the third passage, the prosecutor does not assure the jury of the credibility of any government witness or the merit of his case.
Having shown that the prosecutor vouched for the government witnesses, petitioner is entitled to habeas relief only if he can demonstrate prejudice, that is the comments "so infected the trial as to render it unfair." Marshall v. Hendricks, 307 F.3d at 67 n. 16. Petitioner has not met his burden. Over the course of the trial the Commonwealth presented voluminous persuasive evidence that Marshall committed first-degree murder in the killing of his wife and stepdaughter. The comments above, taken in the context of the closing argument and the trial as a whole, did not so infect the trial as to make it fundamentally unfair or undermine confidence in the verdict. The prosecutor's vouching fell short of the egregious variety condemned by the Supreme Court and our Court of Appeals in Young, United States v. Dispoz-O-Plastics, Inc., 172 F.3d 275, 283 (3d Cir. 1999), United States v. Molina-Guevara, 96 F.3d 698 (3d Cir. 1996), or United States v. DiLorento, 888 F.2d 996 (3d Cir. 1989). The prosecutors in those cases brazenly bolstered the credibility of their witnesses either by stating or implying that the jury could trust that the government would only put forward truthful witnesses or by suggesting that a government witness was credible based on facts not in evidence but known to the prosecutor.
In sum, we conclude that the prosecutor vouched for the credibility of the Commonwealth's witnesses in two parts of his guilt phase closing argument. Nevertheless, because the petitioner did not suffer any prejudice, we deny relief. See Hendricks, 307 F.3d at 67 n. 16.
C.
Petitioner argues that in the following two portions of his closing argument the prosecutor implicitly commented on Marshall's right to remain silent:
But drugs are not what this case is about. It was the Defendant's desire for drugs that made this case what it is about, which is the murder of two innocent people. His desire to have that money to purchase those drugs. And you can imagine the conversation that took place when he was discovered taking that money from his wife's purse. What was said? Well, that is the last you're getting because I'm leaving you. Because you heard testimony from Simone Barnes and from Denise Carrington. And despite what [defense counsel] says about the script, this occurred three hours after her sister's death, Denise Carrington said she was leaving him this week, as soon as she got her check she was out of there. So do you think that may have formed part of the conversation that took place when the Defendant was discovered taking money that belonged for food for the children from the children's mouths? We won't know because the words that Donna Marshall spoke are long since gone with her.
At this point defense counsel objected and was overruled by Judge Sabo.
N.T. 10/10/89 at 48-49. Marshall also asserts the prosecutor made additional impermissible references to the former's right to remain silent when he stated:
Can you contest the malice with which these events occurred? Can you doubt the specific intent to kill that existed in the mind of the [d]efendant at the time that he called his nine-year-old, four[-]foot, four[-]inch, 66-pound victim as she fled to the doorway? Can you doubt the malice and the intent that was in his mind as he called to her, and being a little older, being at that time Ayesha's age, she was nine, she understood what had happened to her mother, that's why she was fleeing. She was fleeing because she couldn't help her mother. Maybe she didn't know her mother was beyond help, not even with that knife that she got out of the kitchen that was still under her pillow. She had to go and get a big person to help, and that's where she was going, to the front door to help her mom.
And what do you think was in the heart and in the mind of the [d]efendant when he called her back? Nee-nee come back here. What was in his mind then? He was going to shut her the f**k up. And he did.
N.T. 10/10/89 at 56. The procedural history of and standard of review for this claim is identical to those of petitioner's previous two claims discussed in this section. For the reasons stated above we apply pre-AEDPA standards.
A government attorney violates a defendant's Fifth Amendment right not to testify against himself in a criminal proceeding if he or she comments adversely on the defendant's failure to testify as a witness at trial or give a statement to the police.See Griffin v. California, 380 U.S. 609 (1965). The prosecutor may not "make a remark [that] is directed to a defendant's silence when the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify."United States v. Brennan, 326 F.3d 176, 187 (3d Cir. 2003) (internal punctuation omitted) (quoting Bontempo v. Fenton, 692 F.2d 954, 959 (3d Cir. 1982)). Our Court of Appeals has observed, however, that "[q]uestions about the absence of facts in the record need not be taken as a comment on defendant's failure to testify." Bontempo, 692 F.2d at 959 (citation omitted).
In making the statements set forth above, the prosecutor did not comment improperly on the petitioner's right not to testify. The evidence adduced at trial tended to show that one week before the murder petitioner threatened to kill his wife if she left him. Donna Marshall intended to leave petitioner, and Marshall killed his wife after she caught him stealing money from her purse. While stating that there was no evidence of what Donna Marshall's final words actually were, the prosecutor referenced Brecher's testimony that Marshall said he killed his wife after she caught him taking money from her purse. The prosecutor's argument reminded the jury of the evidence presented from which it could conclude that Marshall possessed the requisite intent to kill and that he acted on that intent. The above passages counter defense counsel's efforts to shift the fault from petitioner to drugs. At no point during his closing argument did the prosecutor comment, directly or implicitly, on Marshall's decision not to take the stand.
Even if we were persuaded that the comments above did adversely reference Marshall's decision not to testify, we hold petitioner has failed to show that the "language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." Brennan, 326 F.3d at 187 (citation omitted). The jury would not "naturally and necessarily" interpret the above comments as an invitation to draw a negative inference from Marshall's decision not to testify. Rather, the prosecutor effectively reminded the members of the jury of the evidence it had heard of Marshall's intent to kill his wife and stepdaughter as recounted by a friend of the victim and a friend of the defendant.
For the foregoing reasons, we deny Marshall relief on this claim.
D.
Petitioner asserts that with the following comment the prosecutor attempted to inflame the passions of the jury so that it would reach a verdict based on emotion and sympathy, not evidence and law:
And remember what Ayesha said when he [Marshall] walked out, he walked in the kitchen and he washed the blood from his hands. And I said it before and I will say it again, if you look closely at Mr. Marshall, you can see that blood is not gone, it is still on his hands. Because the blood of Shanisha Dunbar doesn't wash off that easily. It's still there, and it is for you to say so.
And one last thing. Remember what Scotty Brecher said? Surprised me, I didn't know what he was going to say. I asked him did you check to see if Shanisha and Donna Marshall were dead or just injured? And he said I knew they were dead. How did you know they were dead. Because he looked at them and their eyes were open. So they were still open and they look to you for justice. So I ask you to do the right thing in this case: what the law and the facts require. And return with the verdict that is appropriate under the law and the facts, and say to the defendant when you come back into this room what I say to him right now: Mr. Marshall, you are guilty of murder in the first degree of Donna Marshall and you are guilty of murder in the first degree of Shanisha Dunbar.
Come back in and say that and do your duty and close the eyes of the dead. I thank you.
N.T. 10/10/89 at 61-62.
On direct appeal Marshall asserted that in making the above statement during his closing argument, the prosecutor violated his right to a fair trial under Pennsylvania law and that his counsel was ineffective under state law for failing to object. The Pennsylvania Supreme Court rejected both arguments. Marshall I, 633 A.2d at 1106-07. In his PCRA petition, Marshall made the same arguments, this time under federal law. Judge Glazer held the claim had been previously litigated and, therefore, was barred under the PCRA. A majority of the Pennsylvania Supreme Court agreed in Marshall II. We nevertheless apply de novo review to this claim that was exhausted during PCRA proceedings.
We do not apply AEDPA deference to these claims because we find that the Pennsylvania Supreme Court misunderstood the nature of the petitioner's federal claims when it held that it had fully and fairly litigated them in Marshall I when it decided analogous state law claims. When a court adjudicates a state law claim, it does not automatically adjudicate the federal variation, if any.See Bronshtein, 404 F.3d at 726; Chadwick, 312 F.3d at 606.
The prosecutor repeatedly told the jury to put aside its emotions and render its verdict on the basis of the evidence before it and the law explained by the court. Judge Sabo instructed the jury that the arguments made by the attorneys were not evidence. We are not persuaded that the above portion of the prosecutor's closing argument was an attempt to inflame the passions of the jury. The references to "blood . . . on his hands" called the jury's attention to the actual evidence. Ayesha had testified that after killing his stepdaughter, Marshall emerged to wash the blood from his hands and the hammer. The implication was clear. Although petitioner could literally clean the blood from his hands, he could not wash away the criminal liability for his actions if the jury so found. It is absurd to believe that the jury was confused by the reference and actually thought Marshall's hands were actually covered with the victims' blood more than one year after the crimes. There is no reasonable likelihood the prosecutor's comments created confusion.
Likewise, the prosecutor's reference to the eyes of the victims' being open referenced facts that were in evidence. Brecher testified that as he and Marshall stole Donna Marshall's property to sell for drugs, he knew the victims were dead in part because their eyes were open. Whether or not this statement approaches the outer limits of the prosecutor's wide latitude to press his case forcefully, it does not cross that line. When viewed in the greater context of the evidence presented in the case, the prosecutor's repeated calls for the jury to put emotion aside and render a verdict consistent with the law and the evidence, and the defense counsel's closing statement, we do not find the prosecutor's statements could have affected the judgment or inflamed the passions of the jury members so as to make the trial unfair. We are not persuaded that the statement so infected the trial as to deny the defendant due process. The primary case upon which petitioner relies concerns prosecutorial comments about the failure of a defendant to take the stand at sentencing to apologize for his crimes. See Lesko v. Lehman, 925 F.2d 1527, 1545 (3d Cir. 1991). That is not the situation before us.
E.
Finally, Marshall argues that the prosecutor violated his constitutional rights by mentioning uncharged criminal conduct and invoking the Bible when he made the following statement in his closing argument:
You heard testimony from Calvin Dunbar and Simone Barnes and Denise Carrington. And Denise is the sister of the decedent. And you heard testimony from Detective Kane. And although [defense counsel] characterizes it as a script, I guess one could say that when a group of different people see the same thing they will tend to agree. And there is no doubt Mr. Marshall was involved in drugs as [defense] counsel says, he was involved in drug trafficking and he certainly was involved in drug use. But he forgets something. There is an expression which many people misuse, and I am going to give it to you and you may recall it in the way that people misuse it. They say money is the root of all evil. Well, that is not exactly the quotation. It is the love of money is the root of all evil.
N.T. 10/10/89 at 47. These claims were not fairly presented to the state courts on direct appeal or during state collateral proceedings. Although petitioner mentioned these two grounds in an introductory list, nowhere did he develop the substance of these claims in the same manner as here. Therefore the claims are defaulted and Marshall has not demonstrated cause and prejudice.
Even were the claims not defaulted, we would deny relief as both are meritless. The prosecutor's statement above referenced drug trafficking, that is, the purchase and sale of narcotics. Petitioner is indeed correct when he notes the Commonwealth did not pursue drug charges at his murder trial. However, drugs featured prominently throughout the trial, and we find no possible prejudice to Marshall from mentioning what the jury already knew. The alleged reference to the Bible is equally devoid of merit as the prosecutor does not cite or quote the source of the statement as the Bible. There is no violation and, even if there were, no prejudice.
Petitioner refers to 1 Timothy 6:10 — "[f]or the love of money is a root of all kinds of evil" (New International Version).
Accordingly, we deny Marshall's petition for relief on his prosecutorial misconduct claims.
XII.
Petitioner further argues that defense counsel's closing argument denied him his right to counsel in violation of United States v. Cronic, 466 U.S. 468 (1984) and was ineffective underStrickland. Specifically, Marshall contends that his counsel was ignorant of Pennsylvania law on premeditation and, therefore, asked the jury to do something it was not permitted to do, namely disregard the law. In addition, he maintains his counsel failed to articulate a meaningful and cogent argument that Marshall acted without premeditation when he killed his wife and stepdaughter.
Marshall first raised his combined Strickland/Cronic claim relating to defense counsel's guilt phase closing in his PCRA petition and then on appeal to the Pennsylvania Supreme Court. We find that Marshall exhausted the combined claim in state court. Because no majority on the Pennsylvania Supreme Court adjudicated this claim on the merits in Marshall II, we apply pre-AEDPA standards.
The United States Supreme Court handed down its decision inUnited States v. Cronic the same day it decided Strickland. InCronic, the Court identified three situations in which counsel's performance may be labeled ineffective absent a showing of actual prejudice. Cronic, 466 U.S. at 659-62. The first occurs when there is a "complete denial of counsel . . . at a critical stage in the trial proceedings." Bell v. Cone, 535 U.S. 685, 695-96 (2002) (quotation omitted). The second situation covers cases where a person is represented by counsel at trial who "entirely fails to subject the prosecution's case to meaningful adversarial testing." Id. at 696. Finally, prejudice is presumed where counsel "is called upon to render assistance under circumstances where competent counsel very likely could not" possibly accomplish the task. Id. (citing Powell v. Alabama, 287 U.S. 45 (1932)). As we have already set forth the law pertaining toStrickland and ineffective assistance of counsel, we will not do so again here.
Defense counsel's performance during closing arguments is properly evaluated under Strickland's performance and prejudice components, not those of Cronic. Marshall was not denied the presence of counsel at a crucial stage of the proceeding. As the Court explained in Bell, this situation occurs where a criminal defendant is actually or constructively denied counsel by government action. See Bell, 535 U.S. at 696 n. 3 (collecting cases). This is not such a case.
In addition, defense counsel's performance did not fall within the second category of cases where prejudice may be presumed, as the Court identified in Cronic. The Court emphasized in Bell that in order to presume prejudice for counsel's failure under Cronic, counsel must "entirely fail[ ] to subject the prosecution's case to meaningful adversarial testing." Id. at 697 (emphasis in original). Counsel's closing argument did not entirely fail to contest the Commonwealth's case. As an example of a case where counsel "entirely" fails to challenge the government's case, theCronic Court cited Davis v. Alaska, 415 U.S. 308 (1974). InDavis, the defense attorney was not permitted to cross-examine an important government witness. Here, while acknowledging that the jury need not find Marshall engaged in elaborate planning or premeditation in order to convict Marshall of first-degree murder, defense counsel nevertheless argued for a reading of state law that most favored his client. Defense counsel's closing argument certainly was not the comprehensive failure the Supreme Court referenced in Cronic and Bell.
Furthermore, counsel's closing arguments relating to premeditation were not unreasonable under Strickland. Counsel faced a difficult, uphill battled due to the overwhelming evidence establishing that his client killed the victims. Not only did the evidence clearly demonstrate that Marshall committed the criminal acts for which he was charged, Marshall either refused or could not provide the information necessary to proceed under a diminished capacity and/or voluntary intoxication defense as he insisted. Marshall claimed he could not remember the events of the morning on which he killed his wife and stepdaughter even though he could recall events before and after. Counsel did not have any evidence from which he could argue, as Marshall insisted, that the latter consumed alcohol or drugs immediately prior to the crimes which rendered him incapable of forming the specific intent to kill. On top of his client's lack of memory, there was significant evidence that Marshall not only had the ability to form the intent to kill but also that he had done so and then made efforts to conceal the crime from the authorities and the children in the apartment. Confronting such a case, defense counsel was not unreasonable in his closing argument. Even if counsel's performance were unreasonable, given the overwhelming evidence, we find Marshall did not suffer prejudice.
Accordingly, we deny Marshall's petition for relief underCronic and Strickland relating to defense counsel's closing argument during the guilt phase.
XIII.
Marshall raises several other claims which we have not discussed at length here. For example, at the close of many sections in his petition, he appends a one- or two-sentence summary claim of ineffective assistance against one, several, or all of his prior counsel for failure to address the relevant claim during the underlying proceeding, on direct appeal, or during the PCRA process. In addition, Marshall asserts several other claims of trial court error. Setting aside the question of exhaustion, which was not satisfied in many cases, after careful review, we find these claims to be without merit. See 28 U.S.C. § 2254(b)(2).
XIV.
For the reasons discussed above, the petitioner has not demonstrated that he is entitled to habeas relief with respect to the guilt phase of his trial. The Commonwealth has agreed to a new trial with respect to the penalty phase. Accordingly, we grant Marshall's petition for a writ of habeas corpus in part and deny it in part. We will not issue a certificate of appealability.
ORDER
AND NOW, this 25th day of April, 2007, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the petition of Jerry Marshall, Jr. for a Writ of Habeas Corpus under 28 U.S.C. § 2254 is GRANTED with respect to the penalty phase of his trial and is otherwise DENIED;
(2) the Commonwealth of Pennsylvania shall conduct a new sentencing hearing within 180 days of this Order;
(3) should the Commonwealth of Pennsylvania not have commenced a new sentencing hearing within 180 days, the writ shall issue and the petitioner shall be deemed to be sentenced to life imprisonment;
(4) a certificate of appealability will not issue; and
(5) if a certificate of appealability is sought from or an appeal is taken to the United States Court of Appeals for the Third Circuit, the entry of this Order will be stayed pending disposition of the proceedings in that Court.