Opinion
Civil Action No. 03-3308.
August 27, 2004
MEMORANDUM AND ORDER
Petitioner Jerome Marshall, a Pennsylvania prisoner currently under a sentence of death, has filed a twenty-four count Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. Now before the Court is Petitioner's Motion for Discovery ("Motion"). For the reasons stated below, the Motion will be granted in part and denied in part.
BACKGROUND
Petitioner was arrested in November 1983 and charged with criminal homicide for the deaths of Myndie McKoy, Sharon Saunders, and Saunders' two-year-old daughter Karima Saunders.Commonwealth v. Marshall, 568 A.2d 590, 593 (Pa. 1989) (Marshall I). On August 29, 1984, Petitioner was convicted on three counts of first degree murder in a jury trial in the Philadelphia County Court of Common Pleas. Id. On August 31, 1984, the jury recommended a life sentence for the murder of Sharon Saunders and death sentences for the murders of McKoy and Karima Saunders. Id. Petitioner appealed to the Pennsylvania Supreme Court, which affirmed all three convictions and the sentences for the murders of Sharon Saunders and McKoy, but reversed the death sentence for Karima Saunders' murder and remanded for resentencing on that count. Id. at 600. On July 27, 1990, the retrial jury also recommended that Petitioner be sentenced to death for Karima Saunders' murder, a sentence that was subsequently imposed by the trial court. Commonwealth v. Marshall, 643 A.2d 1070, 1071 (Pa. 1994) (Marshall II). Petitioner appealed again to the Pennsylvania Supreme Court, which affirmed the sentence on May 24, 1994. Id.
Petitioner filed a timely pro se petition for collateral relief in the state court pursuant to the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat. § 9541 et seq. ("PCRA"). Commonwealth v. Marshall, 812 A.2d 539, 543 n. 1 (Pa. 2002) (Marshall III). After court-appointed counsel submitted an amended PCRA petition, relief was denied without an evidentiary hearing. Id. The Pennsylvania Supreme Court affirmed. Id. at 542. The Petition was filed in this Court on May 22, 2003.
LEGAL STANDARD
A "habeas petitioner . . . is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). A habeas petitioner may obtain discovery only pursuant to Rule 6(a) of the Rules Governing § 2254 Cases, which states:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.28 U.S.C. § 2254 Rule 6(a).
As a preliminary matter, the Court must identify the essential elements of Petitioner's claims and address whether his discovery requests are related to a constitutional challenge in the Petition. Bracy, 520 U.S. at 904-5; Abu Jamal v. Horn, No. Civ. A. 99-5089, 2001 WL 1609690, *14 (E.D. Pa. Dec. 18, 2001). Petitioner also must demonstrate good cause for the discovery by setting forth specific allegations that lead the court to believe that, if the facts were fully developed, he may be entitled to relief. Bracy, 502 U.S. at 908-9. A petitioner may not engage in a "fishing expedition," and "bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery." Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991). Once good cause has been shown, the scope and extent of discovery is left to the District Court's discretion. Bracy, 520 U.S. at 909.
ANALYSIS
I. Medical Examiner's File
In support of his ineffective assistance and due process claims, Petitioner requests documents relating to the investigation by the medical examiner, Dr. Aronson. Motion ¶ 4a. Petitioner contends that trial counsel was ineffective for,inter alia, failing to impeach testimony by Dr. Aronson that allegedly conflicted with the post-mortem reports. Petition ¶¶ 80-90. Petitioner also contends that the prosecutor's presentation of any false testimony by Dr. Aronson would have violated due process. Petition ¶ 89.
Petitioner claims that Dr. Aronson's testimony misled the jury into believing that the forensic evidence was consistent with Petitioner's confession to police, undercutting Petitioner's argument that the confession was false and resulted from police coercion. Id. ¶ 90. In his confession to the police, Petitioner admitted that he strangled Sharon Saunders and drowned Karima Saunders and Myndi McKoy. The post-mortem reports, however, indicate that both Karima and McKoy were strangled. Petition Ex. 10. At the guilt phase of the trial, when Dr. Aronson was asked whether he could "exclude drowning as a contributing cause of death of either Myndi McKoy or Kairmah [sic]," he responded, "I cannot exclude it, no, sir." Petition ¶ 83 (quoting N.T. 8/3/84 at 57-58).
Petitioner told police:
I turned the water on before I went into Myndi's room. I then dragged Myndi into the bathroom. She told me that if I left her alone she wouldn't tell anyone. Then she said something about her boyfriend coming back, and that he was a coward and wouldn't do anything about it. I was standing there thinking about what to do. I was scared. Then Myndi began to scream and I put her in the tub and held he [sic] head under the water. See I had these belts around her mouth as a gag but they loosened up and fell off. I held her under the water until she stopped moving. . . . Then the baby started calling Mommy and I said go back to sleep, that she was sleeping. Then I remember filling up the sink and putting the babys [sic] head under the water until she stopped moving. . . .
Q: Do you remember putting any rope, cord or belts around the babies [sic] neck?
A: I can remember holding the babys [sic] head under water but I don't remember putting nothing around her neck.
Petition, Ex. 9.
Petitioner made an almost identical claim in his PCRA petition, alleging that "trial counsel should have impeached Dr. Aronson's testimony that he could not exclude drowning as a contributing cause of the deaths because such testimony was misleading and/or deceptive." Marshall III, 812 A.2d at 549. The Pennsylvania Supreme Court found that "Dr. Aronson's trial testimony was neither deceptive nor misleading" and concluded that the failure to impeach did not constitute ineffectiveness. Id. at 550. This Court may review the state court's factual finding only to determine whether it was an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). It may overturn the state court's legal finding that counsel was not ineffective only if that finding was contrary to, or involved an unreasonable application of, clearly established federal law. Id.
The Supreme Court's factual finding that the testimony was neither deceptive nor misleading was based on Dr. Aronson's clarification of his testimony during the 1990 penalty retrial:
Q: Now, there has been some discussion here about whether you could eliminate drowning as a cause of death, and you said you could not. On the other hand, you have said that with regard to two of these people, Myndi McKoy and Sharon Karima Saunders [sic], that you can eliminate drowning as the cause of death but you cannot eliminate it as contributing. I wonder if you could clarify that.
Dr. Aronson: Let me clarify. I think you misspoke in your question about cause. I cannot eliminate in any of these cases that drowning was some factor somewhere along the line. I can eliminate in all three that it was a cause of death, because of the discoloration of the mucous membrane, indicating that the person was alive at the time the pressure was put on their neck.Marshall III, 812 A.2d 539, 550 (Pa. 2002) (quoting N.T. 7/25/90 at 83). This testimony creates a reasonable basis for the state court finding, because it indicates Dr. Aronson's belief that, although the immediate cause of death in each case was strangulation, drowning may have contributed to the victims' deaths. Because there was a reasonable basis for the Supreme Court's factual finding that Dr. Aronson's guilt phase testimony was neither deceptive nor misleading, it cannot be reopened on habeas review.
The standard for ineffectiveness of counsel is set forth inStrickland v. Washington, 466 U.S. 668 (1984), which states that a claimant must demonstrate (1) that counsel's performance was deficient, i.e. falling below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced his client. Id., 466 U.S. at 689-92. Accordingly, Petitioner's counsel was constitutionally ineffective only if his decision not to impeach Dr. Aronson's testimony — testimony that this Court must accept as neither deceptive, nor misleading — fell below an objective standard of reasonableness and prejudiced Petitioner. Furthermore, this Court must defer to the state court's legal determination that counsel was not ineffective, and may overturn the finding only if it was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d).
The Court will not decide the merits of Petitioner's ineffectiveness claim at this time. However, in light of the state court finding that Dr. Aronson's testimony was neither deceptive nor misleading, the claim that counsel was ineffective for failing to impeach that testimony is unlikely to succeed. Petitioner has failed to show good cause because he has not given the Court reason to believe that he might be entitled to relief if the factual basis for the claim were more fully developed. Accordingly, Petitioner is not entitled to discover documents relating to the medical examination in order to support his ineffectiveness claim.
The same is true of Petitioner's due process claim. Petitioner's contention that his due process rights were violated by the presentation of Dr. Aronson's testimony is unlikely to succeed if that testimony was neither deceptive nor misleading. Accordingly, Petitioner has not shown good cause to discover records relating to the medical examination.
II. Batson Claim
Claim VI of the Petition states that the Prosecutor, Roger King, violated Batson v. Kentucky, 476 U.S. 79 (1986) andJ.E.B. v. Alabama, 511 U.S. 127 (1994) by discriminating against African-American and female venirepersons in his exercise of peremptory jury challenges ("Batson claim"). The Discovery Motion asks for notes, documents, memoranda or reports relating to (1) jury selection in Petitioner's case; (2) jury selection in other homicide cases prosecuted by King; and (3) jury selection policies and practices of the Philadelphia District Attorney's Office, including training sessions on jury selection, during the years that King was a homicide prosecutor. Motion ¶¶ 4(b)-(e).
A. Waiver
Respondents contend that the Batson claim is barred because the Pennsylvania Supreme Court found on PCRA appeal that it had been procedurally defaulted. See Response at 9; Marshall III, 812 A.2d at 543-44. According to the Supreme Court, the Batson claim was waived because Petitioner could have raised it, but failed to raise it before trial, at trial, on direct appeal, or in a prior state postconviction proceeding. Id. at 543 (citing 42 Pa. Cons. Stat. § 9544(b)). A habeas court may not review a state court decision that rests on independent and adequate state grounds, such as a state procedural rule. Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001). However, a procedural rule is adequate only if: (1) it "speaks in unmistakable terms; (2) all state appellate courts refused to review petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). The relevant moment for determining adequacy is the moment when the waiver allegedly occurred. Id. at 684; Bronshtein v. Horn, Civ. A. No. 99-2186, 2001 WL 767593 at *5 (E.D. Pa. Jul. 5, 2001).
At the time of Petitioner's alleged waiver, § 9544(b), the state procedural rule barring his claim, was not consistently applied. Prior to 1998, the Pennsylvania Supreme Court sometimes applied a relaxed waiver rule in capital cases. Marshall III, 812 A.2d at 543; see also Szuchon, 273 F.3d at 325-26. Under the relaxed waiver rule, Petitioner's claim would notnecessarily have been waived by his failure to raise it previously. See Szuchon, 273 F.3d at 325-26. This practice was eliminated by the Supreme Court in Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998), which announced that the relaxed waiver rule no longer would apply to capital appeals brought pursuant to the PCRA. Id. at 700. Thus, § 9544(b) was not adequate to bar federal habeas review prior to Albrecht, but became adequate when the state Supreme Court issued its decision in Albrecht. Albrecht, 720 A.2d at 700.
Petitioner filed his PCRA petition on November 16, 1996, two years prior to the Pennsylvania Supreme Court's decision inAlbrecht. Marshall III, 812 A.2d at 543. Accordingly, § 9544(b) was not consistently applied when the claim was waived, and the Supreme Court's finding of waiver does not bar this court from considering the Batson claim on habeas review. Furthermore, because the State Court declined to decide theBatson issue on the merits, this Court will apply pre-AEDPA standards. Holloway v. Horn, 355 F.3d 707, 719 (3d Cir. 2004). Accordingly, questions of law are reviewed de novo, and the state court's factual findings are presumed correct unless they are not fairly supported by the record. Id.
B. Good Cause for Batson Discovery
Respondents contend that Petitioner has not shown good cause for discovery on the Batson claim because he has not shown that he will succeed on the merits. Response at 13. However, the Court must consider only whether Petitioner has set forth specific allegations that he may be entitled to relief if he can prove what he has alleged.
The Court employs a three-part process to determine whetherBatson has been violated:
First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a . . . neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (internal citations omitted). The Third Circuit has set forth five factors to consider when determining whether a prima facie case has been established: (1) how many members of the group are in the venire panel; (2) the nature of the crime; (3) the race or gender of the defendant and the victim; (4) a pattern of strikes against jurors in the cognizable group; and (5) the prosecutor's questions and statements during jury selection. Jones v. Ryan, 987 F.2d 960, 970-71 (3d Cir. 1993).
Batson also applies to gender-based peremptory challenges. See J.E.B. v. Alabama, 511 U.S. at 130-31.
Petitioner's allegations relate to the first and fourth factors. He argues that King intentionally discriminated against African-American and female venirepersons in this case by striking them in disproportionate numbers. According to Petitioner, at the 1984 trial King struck seven of the thirteen African-Americans whom he could have stricken, but only seven of twentyfour white venirepersons. Id. ¶ 104. He also struck eleven of the twenty-two women whom he could have stricken, but only three of eighteen men. Id. ¶¶ 124-25. At the 1990 penalty retrial, King struck eight of the fifteen African-Americans whom he could have stricken, but only seven of twenty-five white venirepersons. Id. ¶ 105.
This is a capital case and, unlike Petitioner's other claims, the state courts have never reached the merits of this claim. Petitioner argues that the proportions of African-American and female venirepersons who were stricken reflect intentional discrimination on the part of the prosecutor. While proportions alone are not sufficient to prove discrimination, they do support a limited request to inquire further into the intent of the prosecutor. Accordingly, Respondents shall provide Petitioner with any notes regarding race or gender and jury selection that were created during jury selection proceedings in Petitioner's 1984 trial or 1990 penalty retrial and that are in the actual or constructive possession or control of the Commonwealth.
Petitioner may not discover jury selection materials relating to King's other capital prosecutions or jury selection policies in effect during King's tenure as a prosecutor. Such discovery would be excessively broad, given that the relevant question is whether discriminatory strikes occurred in this case. Nor does the Court believe that Petitioner is entitled to materials regarding jury selection training sessions, when there are no specific allegations relating any training sessions to Petitioner's case. The materials listed in the previous paragraph are sufficient for Petitioner to develop the factual basis of his claim without engaging in a fishing expedition.
III. Discovery Relating to Police Interrogations
Petitioner asks to discover materials "concerning interviews of witnesses, and in particular the interviews of Petitioner, Irene Marshall and Eugene Marshall." Discovery Motion at ¶ 4(f). This request relates to Count III of the Petition, which alleges that (1) Petitioner's confession was involuntary, and its admission in evidence violated the 5th and 14th Amendments, and (2) counsel was ineffective for failing to investigate issues that would have strengthened his suppression motion. Petition ¶¶ 71-79.
According to the Investigation Interview Record, Petitioner gave his statement to the police at 2:20 a.m. on November 10, 1983, after receiving Miranda warnings. Petition Ex. 9. His statement was admitted at trial over his attorney's objection that it was coerced. Petition ¶¶ 72, 74. At the suppression hearing, the officers who interrogated Petitioner said that they showed him explicit photographs of the victims' bodies, a tactic that Petitioner describes as psychologically coercive. Id. ¶ 74. Petitioner also testified that the police repeatedly struck him until he confessed. Id. at ¶ 74.
On habeas review, Petitioner argues that "the acts of physical coercion and the acknowledged psychological coercion" during the interrogation resulted in an involuntary confession. Id. In his ineffectiveness claim, he contends that counsel failed to (1) discover and develop "the critical inconsistency between the forensic evidence of the victims' ligature strangulation and Mr. Marshall's confession to drowning the victims;" and (2) investigate and present expert testimony regarding Petitioner's mental and emotional impairments, which, Petitioner claims, "render him particularly vulnerable in stressful situations." Id. ¶¶ 75-76.
Petitioner has failed to set forth sufficient, specific allegations indicating that he might be entitled to relief on these claims if the facts were fully developed. In the absence of any guidance from Petitioner, the Court cannot fathom what facts Petitioner could discover that would help him develop his claim that his confession was coerced. He argues that he should obtain discovery nonetheless, because "[i]t is entirely possible that records supporting the fact that such coercion took place are in the possession of the Commonwealth." Reply to Response to Motion at 10. The legal standard requires more than a mere possibility, however, and specifically prohibits discovery that would amount to a fishing expedition. Deputy, 19 F.3d at 1493. Accordingly, the discovery request regarding the witness interviews must be denied.
IV. Additional Discovery Requests
In addition to the requests considered above, Petitioner asks that the Court order Respondents to produce the following materials:
(g) All material provided in formal or informal discovery to prior defense counsel, and all documents containing or reflecting communications with prior defense counsel, including all transmittal letters pertaining to formal or informal discovery; and
(h) Any and all notes, memoranda, reports or other documents (recorded on paper, audiotape, videotape, electronic, or other form) in the actual or constructive possession or control of the Commonwealth containing information that would tend to exculpate Petitioner from guilt for the offense of first degree murder, or that would tend to reduce his culpability at capital sentencing.
Motion ¶¶ 4(g), (h). Respondents inform the Court that they have no objection to these requests and are in the process of fulfilling them. Response at 14. Accordingly, this portion of the Motion will be dismissed as moot, but Petitioner will be given leave to re-file if he believes that Respondents have failed to comply with the requests.
V. Conclusion
For the reasons stated above, the Motion will be granted in part and denied in part. An appropriate Order follows.
ORDER
AND NOW, this day of August, 2004, upon consideration of Petitioner's Motion for Discovery (docket nos. 7 and 8), Respondents' Response to the Motion (docket no. 9), and Petitioner's Reply thereto (docket no. 10), it is ORDERED that the Motion is GRANTED IN PART AND DENIED IN PART. Within 30 days of receipt of this Order, Respondents shall provide to Petitioner any and all notes regarding race or gender and jury selection that were created during jury selection proceedings in Petitioner's 1984 trial or 1990 penalty retrial and that are in the actual or constructive possession or control of the Commonwealth.It is FURTHER ORDERED that Petitioner's requests for copies of prior discovery materials, communications with prior defense counsel, and exculpatory material are DENIED AS MOOT. Petitioner is given leave to re-file these portions of his Motion if he believes that Respondents have failed to comply with these requests.
It is FURTHER ORDERED that the remainder of the Motion is DENIED.