Opinion
Civil No. 03-2144.
May 18, 2004
Memorandum and Order
Presently before this court is Wilfredo Ortiz-Santiago's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. United States Magistrate Judge Diane M. Welsh filed a Report and Recommendation ("Report Recommendation") recommending denial of the petition. Petitioner filed objections to the Report Recommendation ("Objections"). For the following reasons, petitioner's objections will be overruled, this court will adopt the Report and Recommendation, and the petition will be denied.
The facts set forth in this section have been taken from the state court records. See Trial Court Order, Nov. 24, 2000 (attached to Com.'s Answer to Petition for Writ of Habeas Corpus at A12); Superior Court Opinion, Nov. 19, 2001 ((attached to Com.'s Answer to Petition for Writ of Habeas Corpus at A15); PCRA Court Order, Nov. 20, 2002 (attached to Com.'s Answer to Petition for Writ of Habeas Corpus at A54).
On November 24, 2000, following a jury trial in the Berks County Court of Common Pleas before the Honorable Forrest G. Schaeffer, petitioner Wilfredo Ortiz-Santiago was convicted of first degree murder, second degree murder, criminal trespass, aggravated assault, burglary, criminal attempt to commit first degree murder, simple assault, recklessly endangering another person, possession of an instrument of crime, and harassment and stalking. Petitioner was sentenced to life imprisonment without parole. He filed a timely direct appeal, in which he raised four grounds for finding error at trial. The Superior Court affirmed the judgment of conviction on November 19, 2001, and Ortiz-Santiago did not petition the Pennsylvania Supreme Court for allocatur review.
The facts underlying petitioner's conviction are set forth in detail in the Superior Court opinion dated November 19, 2001 (attached to Com.'s Answer to Petition for Writ of Habeas Corpus at A15).
On July 11, 2002, petitioner filed a timely petition for relief under the Post Conviction Relief Act ("PCRA"), see 42 Pa. C.S.A. 9541, et seq., in which he asserted claims for ineffective assistance of counsel. In an order dated November 19, 2002, petitioner's PCRA petition was dismissed. He did not appeal the order to the Superior Court.
Petitioner asserts twelve grounds for habeas relief. In his first claim, petitioner claims that the evidence presented at trial was insufficient to establish the "specific intent" required for a conviction of first degree murder and the underlying felony required for a conviction of second degree murder. Secondly, petitioner alleges that he was deprived of his Fifth Amendment right to due process when the trial court permitted a state witness to testify regarding petitioner's postarrest silence. In his third habeas claim, petitioner contends that his counsel was constitutionally ineffective for failing to object to the court's jury instruction regarding voluntary intoxication. Fourth, petitioner alleges that his right to due process was violated when his PCRA petition was denied without an evidentiary hearing. Fifth, petitioner argues that his murder convictions were against the weight of the evidence. In his sixth ground for habeas relief, petitioner alleges that the trial court erred when it denied his motion to exclude evidence of "other crimes."
Petitioner asserts four claims in his habeas petition, Doc. #5, and the remaining claims in his Memorandum of Support, Doc. #11. I have numbered them sequentially for ease of reference.
Each of petitioner's next five claims involve allegations of ineffective assistance of counsel. In his seventh claim, he argues that counsel was ineffective for failing to object to the trial court's jury instruction regarding the use of circumstantial evidence. Eighth, he alleges ineffective assistance of counsel for failure to object to the court's supplemental jury instructions relating to the definitions of murder. Ninth, petitioner claims that his counsel was ineffective for failing to challenge the prosecutor's allegedly prejudicial remarks during his opening statement, and tenth, for failing to challenge the prosecutor's allegedly prejudicial remarks during the closing statement. In his eleventh claim, petitioner alleges ineffective assistance of counsel for failure to petition for review in the Pennsylvania Supreme Court.
Finally, in his twelfth ground for habeas relief, petitioner contends that the effect of the cumulative errors made at trial is so prejudicial as to undermine confidence in the outcome of the trial.
In his objections, petitioner claimed that he required a Spanish-speaking attorney. By order of November 20, 2003 (Doc. #20), therefore, the federal defender was appointed to represent petitioner and to file supplemental objections to the Report and Recommendation. After reviewing the case, the federal defender's office filed supplemental objections stating that — having consulted with petitioner — no further briefing was required. (Doc. #22).
II. STANDARD OF REVIEW
Where a habeas petition has been referred to a Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), this court's review of "those portions of the report or specified proposed findings or recommendations to which objection is made" is de novo. Id. at § 636(b).
III. TIMELINESS
Ortiz-Santiago's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132, 110 Stat. 1214. Under the AEDPA, a state prisoner seeking federal habeas relief must file his habeas petition within one year of the date on which his judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1). Because petitioner's habeas petition was filed prior to the expiration of the one year statute of limitations, it is timely under § 2244(d)(1).
The AEDPA governs § 2254 habeas petitions filed on or after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Petitioner's conviction became final on December 19, 2001, when his time to seek allowance of appeal in the Pennsylvania Supreme Court expired. See also Pa. R. App. P. 1113(a). The one year statute of limitations began to run on December 20, 2001, and continued running until petitioner filed his PCRA petition on July 11, 2002, at which time 203 days had elapsed. Petitioner's statute of limitations was then tolled until November 19, 2002, during the pendency of his state collateral attack, and again until December 19, 2002, for the thirty days during which he could appeal the PCRA court's order. See 28 U.S.C. § 2244(d)(2). Between December 19, 2002, and April 30, 2003, when petitioner filed this habeas petition, approximately 132 days elapsed. The instant habeas petition is, therefore, timely under the AEDPA's one-year statute of limitations.
IV. EXHAUSTION AND PROCEDURAL DEFAULT
Federal habeas relief pursuant to 28 U.S.C. § 2254 is available to a state prisoner only where he has exhausted his remedies in state court; "[i]n other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). This exhaustion rule requires petitioner to "fairly present" each of his federal claims to the state courts. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing cases). To "fairly present" a claim, petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." Id. at 261 (citations omitted). While petitioner need not cite "book and verse" of the federal constitution, Picard v. Connor, 404 U.S. 270, 277 (1971), he must "give the State `the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims to this court. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard, 404 U.S. at 275).
(A.) Claims 4, 11, 12
Petitioner raises three grounds for federal habeas relief in this action that have never before been presented to a state court. His fourth, eleventh, and twelfth claims are being raised for the first time in his § 2254 petition and therefore have not been exhausted, as required by 28 U.S.C. § 2254(b)(1). Moreover, petitioner can never exhaust these claims; he is now prevented from raising these grounds for relief in the Pennsylvania courts because the statute of limitations for filing a PCRA petition has expired. See 42 Pa. Cons. Stat. Ann. § 9545(b).
Any petition for post-conviction relief must be filed within one year of the date on which the petitioner's conviction becomes final. See 42 Pa. Cons. Stat. Ann. § 9545(b)(1). A judgment of conviction becomes final, for the purposes of post-conviction relief, "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Id. § 9545(b)(3).
The Superior Court of Pennsylvania affirmed petitioner's conviction on November 19, 2001. See Commonwealth v. Ortiz, 792 A.2d 617 (Pa.Super. 2001) (Table) (attached to Commonwealth's Answer to Pet.'s Writ of Habeas Corpus, Doc. #9, at A15-A22). Because petitioner did not seek allowance of appeal in the Pennsylvania Supreme Court, his judgment of conviction became final on December 19, 2001, when his time to seek such allowance expired. See Pa. R. App. P. 1113(a). The one-year statute of limitations applicable to any post-conviction relief sought by petitioner began to run on December 20, 2001, therefore, and thus expired on December 19, 2002.
Failure to present federal habeas claims to the state courts in a timely fashion results in procedural default. See O'Sullivan, 526 U.S. at 848 (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). "A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer `available' to him." Coleman, 501 U.S. at 732 (quoting 28 U.S.C. § 2254(b)). Like petitioners who have failed to exhaust their state remedies, however, "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. This doctrine of procedural default, therefore, ensures that state prisoners cannot evade the exhaustion requirement of § 2254 by defaulting their federal claims in state court.
Petitioner's fourth, eleventh, and twelfth claims — which have never before been raised — were not exhausted and are now procedurally defaulted. This court is barred from reviewing these claims, therefore, absent a showing by petitioner that his default should be excused. As the Supreme Court made explicit in Coleman, procedural default can be excused in only two ways:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Id. at 750. To show "cause," petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). To show "actual prejudice," a petitioner must demonstrate that the alleged errors "so infected the entire trial that the resulting conviction violates due process." United States v. Frady, 456 U.S. 152, 168-69 (1982).
Examples of "cause" include a showing that "the factual or legal basis for a claim was not reasonable available to counsel," that "some interference by officials made compliance impracticable," or that "some external impediment prevent[ed] counsel from constructing or raising the claim." Murray, 477 U.S. at 488-92.
The second manner in which a petitioner's procedural default can be excused — the "fundamental miscarriage of justice" exception — is limited to cases in which the petitioner alleges that he is actually innocent. As the Supreme Court has repeatedly noted, this exception will be applied only in "extremely rare" and "extraordinary" cases. Schlup v. Delo, 513 U.S. 298, 321-22 (1995). Where "a constitutional violation has probably resulted in the conviction of one who is actually innocent," a petitioner may be able to avoid an otherwise applicable procedural bar to the consideration of the merits of his constitutional claims. Id. at 327. More specifically, "[t]o show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime by presenting new evidence of innocence." Keller v. Larkins, 251 F.3d 408, 415-416 (3d Cir. 2001) (citations omitted).
Ortiz-Santiago does not allege cause or prejudice with respect to his fourth claim, nor does he allege that lack of review by this court will constitute a fundamental miscarriage of justice, or that he is actually innocent of the offenses of which he has been convicted. Rather, he alleges only that the PCRA court should have conducted an evidentiary hearing before dismissing his petition for relief. He never appealed this dismissal and thus has never raised this issue in the past. Moreover, he offers no explanation for his failure to file an appeal of the dismissal, at which point he could have raised this issue, in the first instance, before the Pennsylvania Superior Court. Consequently, petitioner's fourth claim is foreclosed from habeas review.
With respect to petitioner's eleventh claim — that his attorney was constitutionally ineffective for failing to seek review of his conviction in the Pennsylvania Supreme Court — petitioner did not raise this claim in his PCRA petition. While his Memorandum in support of his habeas petition suggests a reason for counsel's failure to file an appeal to the Pennsylvania Supreme Court — that is, because his counsel refused to file an appeal she considered to be nonmeritorious — he offers no explanation for his failure to raise this issue in his PCRA petition. Petitioner has therefore failed to demonstrate cause and has not alleged that this court's failure to review this claim will constitute a fundamental miscarriage of justice. Petitioner's eleventh ground for habeas relief, therefore, has been procedurally defaulted and is foreclosed from habeas review. Similarly, petitioner does not allege cause or prejudice with respect to his twelfth claim, nor does he allege that lack of review by this court will constitute a fundamental miscarriage of justice. Petitioner's twelfth ground for habeas relief, therefore, has been procedurally defaulted and is foreclosed from habeas review.
See Welsh Ltr. 12/19/2001, attached to Pet.'s Mem. in Support of Pet. for Writ of Habeas Corpus (Doc. #11) as Exhibit B).
(B.) Claims 3, 7, 8, 9, 10
Petitioner raised his third, seventh, eighth, ninth, and tenth claims — each of which sounds in ineffective assistance of counsel — in his petition for PCRA review on July 11, 2002. The PCRA court dismissed the petition on November 19, 2002, and petitioner did not appeal to the Superior Court of Pennsylvania.
Petitioner's failure to appeal the dismissal of his PCRA petition to the Superior Court constitutes a failure to exhaust his state court remedies and, in turn, created a procedural default with respect to these five claims. See Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir. 2002) (holding that a state prisoner's failure to appeal the rejection of his PCRA petition constituted a procedural default) (citing Coleman, 501 U.S. at 750). "By failing to seek direct review in the Pennsylvania appellate courts, [a petitioner] denie[s] the Commonwealth an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." Id. (quoting O'Sullivan, 526 U.S. at 842).
This court's inquiry, therefore, is whether petitioner had cause and prejudice to excuse his procedural default. There is nothing in the record tending to reveal petitioner's justification for not appealing the rejection of his PCRA petition, either in petitioner's briefs or in the Report Recommendation. Even if this court were to engage in guesswork, thus inferring that petitioner's failure to appeal the PCRA ruling was unknowing or involuntary, "that fact is irrelevant to establishing cause." Cristin, 281 F.3d at 419. Petitioner, therefore, has made no showing of "cause" for his failure to appeal the PCRA court's dismissal because "cause cannot be based on the mere inadvertence of the petitioner or petitioner's counsel to take an appeal." Id. at 420. The Third Circuit considered precisely this scenario in Cristin, holding as follows:
It appears from the record that petitioner's court-appointed counsel had been granted permission to withdraw from representation of petitioner before a PCRA appeal would have been due.
The mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. Indeed, in Coleman v. Thompson, the Court addressed the very question presented by this case — the effect of a litigant's inadvertent failure to take a timely appeal in a state collateral proceeding. The Court, applying Murray v. Carrier, concluded that an `ignorant or inadvertent procedural default' does not satisfy the cause element of cause and prejudice. Thus, it is immaterial whether [petitioner] unwittingly failed to appeal the denial of his PCRA petition.Id. (citations and quotations omitted).
Because petitioner has offered no "cause" justifying his failure to appeal the dismissal of his PCRA petition, and because he has proffered no new evidence sufficient to establish a miscarriage of justice excusing his procedural default, petitioner's third, seventh, eighth, ninth, and tenth claims have been procedurally defaulted and habeas review is foreclosed.
(C.) Claim 6
In petitioner's sixth claim for federal habeas relief, he argues that the trial court erred in denying his motion to exclude evidence of "other crimes." See Pet.'s Memo. in Supp. of Pet. for Writ of Habeas Corpus at 14. Petitioner raised this issue in his appeal from his conviction to the Superior Court of Pennsylvania, and defendant concedes that it is exhausted. See Answ. to Mot. Writ Habeas Corpus at note 3. The Superior Court, in its November 19, 2001 opinion, found that evidence of petitioner's prior bad acts was properly admitted as proof of a course of conduct. Commonwealth v. Ortiz, 792 A.2d 617 ( Pa. Super. 2001) (Table) (attached to Commonwealth's Answer to Pet.'s Writ of Habeas Corpus, Doc. #9, at A20-A21). Petitioner raised it again in his petition to this court, arguing that the prejudicial effect of evidence of his prior assaults upon the victim outweighed its probative value. According to petitioner, therefore, the trial court's admission of this evidence violated Pennsylvania Rule of Evidence 404(b)(2) and constituted reversible error.
An inquiry as to whether this evidence was correctly admitted pursuant to Pennsylvania law plays "no part [in] a federal court's habeas review of a state conviction." Estelle v. McGuire, 502 U.S. 62, 67 (1991). As the Supreme Court has "stated many times," federal habeas relief "does not lie for errors of state law." Id. (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Because it is "not the province of a federal habeas court to reexamine state-court determinations on state-law questions," this court's inquiry is "limited to deciding whether [petitioner's] conviction violated the Constitution, laws, or treaties of the United States." Id. at 68 (citing 28 U.S.C. § 2241); see also Wells v. Pestock, 941 F.2d 253, 256 (3d Cir. 1991) ("Our review of a federal habeas corpus petition is limited to remedying deprivations of a petitioner's federal constitutional rights. We can take no cognizance of non-constitutional harm to the defendant flowing from a state's violation of its own procedural rule, even if that rule is intended as a guide to implement a federal constitutional guarantee.").
Petitioner's sixth claim for habeas relief cites the Pennsylvania Rules of Evidence and Pennsylvania caselaw, and mentions neither the Constitution nor any judicial decision based upon the Constitution or other federal law. Because "state law violations provide no basis for federal habeas relief," Estelle, 502 U.S. at 68 n. 2, petitioner is not entitled to relief on this ground. (D.) Claim 5
The government claims that petitioner has procedurally defaulted his sixth claim. There is a subtle distinction, however, between raising a federal claim that is based upon a state law violation, on the one hand, and raising a claim that is a state law claim on its face. Where a state habeas petitioner raises a due process claim, for example, but relies upon state procedural rules and state caselaw, he will be held to have procedurally defaulted the claim for failure to "fairly present" the factual and legal substance of a federal claim. See Keller, 251 F.3d at 413-414 (holding that petitioner had failed to "fairly present" a federal constitutional claim to the state courts where — despite labeling it a claim for violation of due process — he relied upon state law in arguing that the trial court had violated state rules of evidence). Where a petitioner raises a purely state law claim, however — as is the case with petitioner's sixth ground as raised in the current petition — the claim is not cognizable on habeas because "state law violations provide no basis for federal habeas relief." Estelle, 502 U.S. at 68 n. 2.
It is unnecessary, therefore, to consider petitioner's sixth claim "defaulted." Rather, it is simply a state law claim — labeled as such and argued as such — and thus cannot entitle petitioner to relief.
In petitioner's fifth claim for federal habeas relief, he argues that his murder convictions were "against the weight of the evidence." See Pet.'s Memo. in Supp. of Pet. for Writ of Habeas Corpus at 10. Petitioner raised this issue in his appeal from his conviction to the Superior Court of Pennsylvania, and defendant concedes that it is exhausted. See Answ. to Mot. Writ Habeas Corpus at note 3. The Superior Court, in its November 19, 2001 opinion, found that ample evidence was presented at trial to support the credibility determinations of the jury and declined, therefore, to substitute its own judgment for that of the jury. Commonwealth v. Ortiz, 792 A.2d 617 (Pa.Super. 2001) (Table) (attached to Commonwealth's Answer to Pet.'s Writ of Habeas Corpus, Doc. #9, at A19-A20).
Petitioner raised this issue again in his petition to this court, contending that his murder convictions were "against the weight of the evidence." A federal court, however, has no power to grant habeas corpus relief based upon a finding that the state conviction is against the weight of the evidence. See Tibbs v. Florida, 457 U.S. 31, 42-45 (1982); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (holding that a federal court cannot grant habeas relief based on a finding that the conviction was against the weight of the evidence); Smith v. Vaughn, 1997 WL 338851, *8 (E.D. Pa. June 17, 1997) (same). A challenge to the weight of the evidence is not cognizable on federal habeas review because it necessarily requires an assessment of the credibility of the evidence presented at trial; a state court's credibility determinations, however, are binding on federal courts in habeas proceedings. See Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (holding that a federal habeas court is bound by a state court's factual findings with respect to issues of credibility) (citing Marshall v. Lonberger, 459 U.S. 422 (1983)); see also Tibbs v. Florida, 457 U.S. 31, 37-38 (1982) (the "weight of the evidence refers to a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other").
Petitioner's fifth claim, therefore, does not entitle him to federal habeas relief.
(D.) Claims 1 2
The government concedes that petitioner's first and second claims have been exhausted and are properly before this court on habeas review.
V. AEDPA STANDARDS
Section 2254 allows federal courts to grant habeas corpus relief to a prisoner "in custody pursuant to the judgment of a State court" where his custody violates the Constitution of the United States of America. 28 U.S.C. § 2254(a). Because Ortiz-Santiago's petition is governed by the AEDPA, he is entitled to habeas relief only where the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," or "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)(1).
A state court decision may be "contrary to" clearly established federal law in one of two ways. First, a state court decision is contrary to clearly established precedent where "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). Second, a state court decision will be "contrary to" the Supreme Court's clearly established precedent "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the] precedent." Id. at 406. A state court decision involves an "unreasonable application" of federal law, on the other hand, where it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08.
Habeas relief will also be granted where a state court decision is "based on an unreasonable determination of the facts." Under the AEDPA, however, factual determinations made by the state court are accorded a presumption of correctness: "a federal court must presume that the factual findings of both state trial and appellate courts are correct, a presumption that can only be overcome on the basis of clear and convincing evidence to the contrary." Stevens v. Del. Correctional Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)). To prevail under this "unreasonable determination" prong, therefore, petitioner must demonstrate that the state court's determination of the facts was objectively unreasonable in light of the evidence available; mere disagreement with the state court — or even a showing of erroneous factfinding by the state court — will be insufficient to warrant relief, provided that the state court acted reasonably. See Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001) (citing Williams v. Taylor, 529 U.S. at 409); Torres v. Prunty, 223 F.3d 1103, 1007-08 (9th Cir. 2000) (citing same).
VI. DISCUSSION
(A.) Claim One: Insufficiency of the Evidence
Petitioner objects to the Report Recommendation with respect to its determination that the evidence at trial was sufficient to support his convictions for first and second degree murder. Specifically, he argues that extreme intoxication and intense passion prevented him from forming the specific intent required for first degree murder under Pennsylvania law. With respect to his conviction for second degree murder, he claims that the murder was not sufficiently connected to — or a direct result of — the alleged burglary. The applicable federal precedent is the "insufficiency of the evidence" standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979).
"[A]n essential of the due process guaranteed by the Fourteenth Amendment" is that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Id. at 316. Evidence is "insufficient" where "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324; see also Evans v. Court of Common Pleas, Delaware Cty., 959 F.2d 1227, 1233 (3d Cir. 1992) ("the test for insufficiency of the evidence is the same under both Pennsylvania and federal law").
The Superior Court addressed this issue in its November 19, 2001 opinion, holding that sufficient evidence was presented at trial to support petitioner's murder convictions. The question before this court, therefore, is whether the Superior Court's decision was "contrary to" the Jackson standard, involved "an unreasonable application" of Jackson, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1).
After setting forth the sufficiency of the evidence standard and the elements of first degree murder under Pennsylvania law, the Superior Court held as follows:
The Superior Court relied upon the following "sufficiency of the evidence" standard: "When reviewing a sufficiency of the evidence claim, an appellate court must view all of the evidence, and the reasonable inferences to be drawn from that evidence, in the light most favorable to the Commonwealth as the verdict winner and must determine if the evidence was sufficient to enable the fact finder to conclude that all of the elements of the offenses were established beyond a reasonable doubt." Super. Ct. Op. 11/19/01 at 3 (citing Commonwealth v. Gribble, 703 A.2d 426, 429 (Pa. 1997).
The Superior Court, quoting Commonwealth v. Spotz, 716 A.2d 580 (Pa. 1998), stated the elements of first-degree murder as follows: "Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing and that the killing was deliberate. A specific intent to kill may be proven by circumstantial evidence, and therefore, may be inferred from the defendant's use of a deadly weapon upon a vital part of the victim's body." Super. Ct. Op. 11/19/01 at 3 (quoting Spotz, 716 A.2d at 583).
Appellant drove to Santana's apartment, parked a block away, climbed up to a secondstory window, broke into the house, and entered carrying several knives. Appellant first attacked Santana, who sustained a large cut to her arm. He then turned on Baltran, stabbing him 23 times and throwing him down the stairs. When appellant returned for Santana, he placed a knife at her throat and told her `this would be the last one." Appellant's actions were deliberate, premeditated, and intentional. Appellant's specific intent to kill Baltran may be inferred from appellant's use of a deadly weapon, a large kitchen knife, on vital parts of the victim's body, including the abdomen. There is sufficient evidence to support a conviction of first-degree murder.
Super. Ct. Opinion, 11/19/2002 at 4.
Because the Superior Court applied the correct insufficiency standard — one that is identical to the federal standard — "contrary to" analysis is not appropriate. Petitioner does not allege that the Pennsylvania courts have made an unreasonable factual determination, nor does he present clear and convincing evidence to support such a claim. Analysis under the "unreasonable factual determination" prong of section 2254(d)(1), therefore, is also not appropriate. Under the sole remaining prong of section 2254(d)(1) — the "unreasonable application" prong — the relevant inquiry in response to petitioner's first objection is whether the Pennsylvania courts' application of the insufficiency standard to petitioner's first claim was objectively unreasonable — that is, whether the Superior Court's decision, evaluated objectively and on the merits, resulted in an outcome that can reasonably be justified under Jackson.
I hold that it can. The Superior Court properly enunciated the elements of Pennsylvania law and applied the law to the relevant evidence. All of the elements of first degree murder were met, the court applied the Jackson standard reasonably, and its finding of sufficient evidence was not an unreasonable application of Supreme Court precedent.
The Superior Court's analysis of the evidence supporting petitioner's conviction for second degree murder was similarly sound and did not involve an unreasonable application of federal precedent. The state court defined second degree murder according to Pennsylvania statute, took note of the elements required for burglary — the underlying felony — and applied the facts reasonably:
Appellant clearly intended to commit a crime once he entered the apartment. Appellant was carrying three knives and a hammer when he parked his car near Santana's apartment and climbed to a second-story window. Appellant had made several life-threatening remarks to Santana prior to their encounter on November 7. There is sufficient evidence to sustain a conviction of second-degree murder.
Super. Ct. Opinion, 11/19/2002 at 4-5. Because the evidence presented at trial was sufficient to enable a rational juror to find petitioner guilty of the elements of second degree murder beyond a reasonable doubt, the Superior Court's analysis did not involve an unreasonable application of the Jackson standard.
Petitioner is therefore is not entitled to habeas relief on the claim that the evidence at trial was insufficient to support his convictions for first and second degree murder.
(B.) Claim Two: Post-Arrest Silence
In his second claim for federal habeas relief, petitioner argues that the trial court's failure to grant a mistrial after a prosecution witness testified regarding petitioner's post-arrest silence rises to the level of a due process violation.
At trial the prosecution called as a witness Police Investigator Cabrera, who had interviewed petitioner following the homicide. The prosecutor stated during a sidebar conversation that the witness would testify about statements made by petitioner. While on the stand, however, Investigator Cabrera testified that petitioner "told me he didn't have anything to say." Petitioner contends that the prosecution's use of his post-arrest invocation of his right to remain silent constitutes a due process violations. The applicable federal precedent governing the prosecution's use of a defendant's post-arrest silence is Doyle v. Ohio, 426 U.S. 610 (1976).
The Fourteenth Amendment's Due Process Clause bars state prosecutors from using a defendant's post-arrest, post- Miranda-warnings silence to impeach his trial testimony. Doyle, 426 U.S. at 618-19. Because the Miranda warnings carry an implicit assurance "that silence will carry no penalty," the Doyle Court held that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id; see also id. at 619 ("it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony") (quoting United States v. Hale, 422 U.S. 171, 182-83 (1975) (White, J., concurring in judgment)).
In Greer v. Miller, 483 U.S. 756 (1983), the Supreme Court applied the Doyle standard to evaluate the potential due process violation stemming from a comment made, at trial, regarding the defendant's post-arrest silence. In Greer, the defendant testified on direct examination that he was not involved in the kidnapping, robbery, and murder of which he was accused. Id. at 758-60. On cross-examination, the prosecutor asked defendant "Why didn't you tell this story to anybody when you got arrested?" Id. at 759. Defense counsel objected to the question, the trial judge sustained the objection, and the jury was instructed to ignore the question. Id. The prosecutor "did not pursue the issue further, nor did he mention it during his closing argument." Id.
The Greer Court noted that the trial judge had "explicitly sustained an objection to the only question that touched upon [defendant's] postarrest silence," that "[n]o further questioning or argument with respect to [defendant's] silence occurred," and that the court "specifically advised the jury that it should disregard any questions to which an objection was sustained." Id. at 764. Accordingly, it held that no Doyle violation occurred because the defendant's post-arrest silence "was not submitted to the jury as evidence from which it was allowed to draw any permissible inference." Id. at 765.
With this legal backdrop in mind, the question before this court is whether the Superior Court's analysis of the post-arrest silence comment made at trial was "contrary to" the Doyle standard, involved an "unreasonable application" of Doyle, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1).
The Superior Court set forth Pennsylvania law regarding references to post-arrest silence and the effect of a curative instruction, both which are substantively similar to federal law. "Contrary to" analysis, therefore, is inappropriate.
Quoting Commonwealth v. Shotwell, 717 A.2d 1039, 1043 (Pa.Super. 1998), the Superior Court set forth the governing law as follows:
It is a clear violation of the accused's constitutional right against selfincrimination to make a reference at trial to his silence while in police custody. Not every such reference, however, requires a new trial . . . for the trial court may promptly and adequately give a cautionary instruction to cure what might otherwise be reversible error. To determine whether a cautionary instruction cured a reference to appellant's post-arrest silence, this Court must consider:
1) the nature of the reference to the defendant's silence;
2) how it was elicited;
3) whether the district attorney exploited it; and
4) the promptness and adequacy of the cautionary instruction.
If the reference to the accused's silence is of a nature that would seriously compromise the jury's objectivity and is likely to deprive the accused of a fair trial, curative instructions are inadequate and a new trial is required. Exploitation occurs when the prosecutor asks the jury to draw an improper inference from the silence of an accused.
Super. Ct. Opinion at 7.
The Superior Court did not cite Doyle or expressly rely upon federal law. As did the Supreme Court in Doyle and Greer, however, the Superior Court emphasized the significance of the constitutional right against self-incrimination, paid particular attention to the role of the prosecutor in eliciting and relying upon the statement in question, and highlighted that the jury should not be permitted to draw any inferences from a defendant's post-arrest silence. The Superior Court's substantive articulation of the law, therefore, does not appear to be an unreasonable reading of Doyle.
The court then noted the following facts in determining that the "trial judge did not abuse his discretion" and that a mistrial was unwarranted:
[T]he prosecutor stated in a sidebar that the witness would testify about statements made by appellant. After being given his Miranda rights, appellant asked "if the guy died, how the victim was, and then [said] `just throw the charges on me.'" While on the stand, the police prosecutor testified that appellant "told me he didn't have anything to say." The statement was neither anticipated nor elicited by the prosecutor. The prosecutor did not refer to the statement later in the trial or try to exploit it in any way. A prompt and adequate curative instruction, approved by defense counsel, was given to the jury. The trial judge did not abuse his discretion and a mistrial is not warranted."
Super Ct. Opinion at 7-8.
Petitioner makes two arguments in support of his petition for habeas corpus with respect to this analysis. First, he claims that the trial court erred in determining whether the state intentionally elicited the investigator's testimony concerning petitioner's post-arrest silence. Although not phrased as such, I interpret this first argument as a claim that the state court decision was "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1). Despite petitioner's contention that "it is hard to imagine a more intentional violation" of the court's ruling at sidebar, he has presented no evidence that the trial judge's assessment of the situation was "objectively unreasonable." Because this court "must presume that the factual findings of both state trial and appellate courts are correct," and because this presumption "can only be overcome on the basis of clear and convincing evidence to the contrary," I decline to find unreasonable the state court's factual determination that the prosecutor did not intentionally elicit the testimony in question. Stevens v. Del. Correctional Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)).
Secondly, petitioner argues that the trial court's cautionary instruction "was inadequate to negate the effect of the improper testimony." Pet.'s Mem. at 20. As noted by the Superior Court, however, the trial court's curative instruction was both "prompt" and "approved by defense counsel." Super. Ct. Opinion at 8. As in Greer, no further questioning with respect to petitioner's silence occurred, and the court immediately gave the jury a curative instruction. Because evidence of petitioner's post-arrest silence was not "submitted to the jury as evidence from which it was allowed to draw any permissible inference," Greer, 483 U.S. at 765, the Superior Court correctly determined that no Doyle violation occurred.
Even if a Doyle violation had occurred, however, the fact that the jury heard the investigator's comment does not rise above the level of harmless error. In order for a trial error to justify overturning petitioner's conviction, that error must have had "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Based on the overwhelming evidence of petitioner's guilt — that he broke into the victim's house through the second floor window, carrying several knives, and stabbed the victim 23 times — the investigator's passing reference to his post-arrest silence cannot have had a substantial effect on the jury's verdict.
Petitioner, therefore, is not entitled to habeas relief on his second claim.
VII. CONCLUSION
Petitioner has procedurally defaulted claims 3, 4, 7, 8, 9, 10, 11, and 12 and has failed to demonstrate cause and prejudice justifying this default. Claims 5 and 6 are not properly before this court on federal habeas review. With respect to claims 1 and 2, petitioner has failed to establish that the state court rulings on these two grounds were contrary to clearly established Supreme Court precedent, that they were unreasonable applications of federal law, or that unreasonable factual determinations were made. Consequently, I will overrule each of petitioner's objections to the Report and Recommendation, adopt the Report and Recommendation in its entirety, and deny the instant petition for habeas corpus. An appropriate order follows.
Order
And now, on this ____ day of May 2004, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. #5), petitioner's memorandum in support thereof (Doc. #11), the Commonwealth's Answer (Doc. #12), review of the Report and Recommendation (Doc. #15) of United States Magistrate Judge Diane M. Welsh, petitioner's objections to the Report and Recommendation (Doc. #16), the Commonwealth's response to petitioner's objections (Doc. #17), and petitioner's supplemental objections (Doc. #22); and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:1. Petitioner's objections are OVERRULED;
2. The Report and Recommendation of Magistrate Judge Diane M. Welsh is APPROVED and ADOPTED as supplemented herein;
3. The petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DENIED;
4. The petitioner having failed to make a substantial showing of the denial of a constitutional right, there is no ground to issue a certificate of appealability, see 28 U.S.C. § 2253(c); and
5. The Clerk shall CLOSE this case statistically.