Opinion
CIVIL ACTION NO. 03-735
November 13, 2003
REPORT AND RECOMMENDATION
Presently before the court is a counseled petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On May 14, 1997, following a jury trial in the Court of Common Pleas for Philadelphia County, the petitioner was convicted of first degree murder, criminal conspiracy and possessing an instrument of crime. The petitioner was subsequently sentenced to a life term of incarceration. The petitioner is currently serving his sentence at a state correctional institution.
The petitioner and his co-defendant, Clifford Brown, were tried together on charges that the petitioner had shot Vaughn Gaillard to death on August 5, 1995 in Philadelphia after being told to do so by Mr. Brown. Mr. Brown was also convicted of first degree murder, criminal conspiracy and possessing an instrument of crime.
The petitioner raises the following claims. First, trial counsel, Tariq Kareem El-Shabazz, Esquire, was ineffective because he represented the petitioner while laboring under an actual conflict of interest which adversely affected the defense. Second, trial counsel was ineffective because he failed to object to the Commonwealth's use of a prior consistent statement to rehabilitate its witness, Dana Lucas. Third, trial counsel was ineffective for failing to present favorable testimony that, during his opening statement, counsel had told the jury he would present. Fourth, the trial court erred when it allowed the Commonwealth to use Ms. Lucas' prior consistent statement to rehabilitate her credibility. Each claim will be considered in turn.
The Commonwealth contends that the petitioner's first claim was waived because it was not raised on direct appeal and, therefore, it is procedurally defaulted. The reason the Commonwealth makes this argument is that, on direct appeal, the petitioner was no longer represented by trial counsel and, instead, was represented by his habeas counsel, Cheryl Strum, Esquire. In 1998, when the petitioner was pursuing his direct appeal to the Superior Court of Pennsylvania, it was the rule in Pennsylvania that claims of ineffective assistance of counsel were waived unless they were raised the first time the defendant was represented by new counsel. See Commonwealth v. Hubbard, 372 A.2d 687, 695 n. 6 (Pa. 1977). Thus, under that rule, the petitioner should have raised his first claim on direct appeal. This requirement remained the rule in Pennsylvania until the state supreme court decidedCommonwealth v. Grant, 813 A.2d 726 (Pa. 2002), on December 31, 2002.
The parties agree that the petitioner did not raise his first claim on direct appeal. Instead, after completing his direct appeal, the petitioner raised the claim in a PCRA petition. On October 2, 2002, the Superior Court of Pennsylvania held that the claim was waived because it had not been raised on direct appeal, which was the time when the petitioner was first represented by new counsel. Commonwealth v. Richardson, No. 2763 EDA 2001, slip op. at 4-6 (Pa.Super. Oct. 2, 2002). The question arises whether the former rule is an adequate and independent state law rule which would bar review of the first claim.
PCRA refers to Pennsylvania's Post Conviction Relief Act, which is codified at 42 Pa. C.S.A. § 9541 et seq.
When a habeas petitioner has presented his constitutional claim to the state court and the state court has refused to address the claim based upon an adequate and independent state procedural rule, the claim is procedurally defaulted and barred from habeas review. See Harris v. Reed, 489 U.S. 255, 260-61 (1989). In order to determine whether a state procedural rule is adequate and independent, the Third Circuit has considered the following factors: (1) whether the state procedural rule is stated in unmistakable terms, (2) whether the state courts have refused to review the claim on the merits, and (3) whether the state court's refusal to review the claim is consistent with other state decisions. Reynolds v. Ellingsworth, 843 F.2d 712, 719 (3d Cir. 1988) (citing Wainwright v. Sykes, 433 U.S. 72, 85-86 (1977)). In addition, the Supreme Court has held that, in cases which have extraordinary or unusual circumstances, a state rule which is generally adequate and independent will not bar review of federal claims. See Lee v. Kemna, 534 U.S. 362, 376, 387 (2002). The court will first consider whether the rule at issue is adequate and independent underReynolds v. Ellingsworth. Finding that it is, the court will then consider whether the circumstances surrounding the petitioner's failure to comply with the rule are exceptional and unusual enough to cause the court not to rely upon the rule.
The rule at issue is the former requirement in Pennsylvania that a claim of ineffective assistance of counsel must be raised at the first stage in the proceedings at which the defendant is no longer represented by the allegedly ineffective attorney. See Commonwealth v. Hubbard, 372 A.2d 687, 695 n. 6 (Pa. 1977). This rule is clear on its face, that is, it is stated in unmistakable terms, and it does apply to the petitioner because he ceased being represented by Mr. El-Shabazz after trial and was then represented by Ms. Strum on direct appeal. Further, the Superior Court did rely upon the rule in order to deny relief. Commonwealth v. Richardson, No. 2763 EDA 2001, slip op. at 4-6 (Pa.Super. Oct. 2, 2002). Finally, the rule the Superior Court applied was well-established and had been applied in Pennsylvania for many years before the petitioner changed counsel. See Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa. 1994); Commonwealth v. Hammer, 494 A.2d 1054, 1058 n. 2 (Pa. 1985); Commonwealth v. Hubbard, 372 A.2d at 695 n. 6 (citing earlier cases from which the rule developed). Thus, the application of the former rule, which will be referred to as theHubbard rule, to the petitioner's case is consistent with other state decisions. Based on the court's review of the three Reynolds v. Ellingsworth factors, it must be concluded that the state rule was adequate and independent.
It is true that the Superior Court also held in the alternative that the ineffective assistance claim lacked merit. Commonwealth v. Richardson, No. 2763 EDA 2001, slip op. at 6-7 (Pa.Super. Oct. 2, 2002). Nonetheless, where a state court relies on a state procedural rule to deny relief on a claim and, in an alternative holding, also denies the claim on the merits, the habeas court can rely upon on the procedural default. See Sistrunk v. Vaughn, 96 F.3d 666, 673-74, 675 (3d Cir. 1996) (citing Harris v. Reed, 489 U.S. 255, 264 n. 10(1989)).
The petitioner seeks to avoid this result by arguing that theHubbard rule was abandoned by the state supreme court on December 31, 2002 and so it should not be deemed adequate and independent. It is true that, in Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), the state supreme court abandoned theHubbard rule and decided that, when a defendant is represented by a new attorney on direct appeal, any claim that trial counsel was ineffective should be deferred to a PCRA petition filed after the direct appeal is completed.
The state supreme court decided that the new rule was to be applied to appellant Grant's case as well as to all cases on direct appeal where the defendant had complied with the Hubbard rule.Id. However, the Grant rule was not to be applied to cases pending on collateral review. Id. at 739 n. 16.
At first glance, it might seem that the state supreme court's decision in Grant indicates that the Hubbard rule is not adequate and independent and it should not bar consideration of the petitioner's claim. However, one must remember that, when deciding whether a state procedural rule is adequate and independent, the court must evaluate the state waiver law that was in effect at the time of the asserted waiver. See Reynolds v. Ellingsworth, 843 F.2d at 722. At the time of the asserted waiver, 1998, the rule of Hubbard was clearly the well-established and consistently applied law in Pennsylvania. Thus, the court finds that the Hubbard rule was an adequate and independent state procedural rule.
The petitioner also argues that, pursuant to Lee v. Kemna, 534 U.S. 362 (2002), the Hubbard rule should not be bar consideration of his conflict of interest claim because the rule was applied to him under unusual or extraordinary circumstances. The petitioner argues that application of the Hubbard rule to him was unusual or extraordinary for two reasons: (1) the conflict of interest claim was not developed at the time counsel filed the direct appeal brief in the Superior Court and so the state could not have a legitimate interest in applying the Hubbard rule to him; (2) since the state supreme court abandoned the Hubbard rule inCommonwealth v. Grant, the state could not have a legitimate interest in applying the Hubbard rule to him. See Supplemental Traverse at 3-4.
Ordinarily, a habeas petitioner's violation of a state procedural rule which is "firmly established and regularly followed" will be adequate to bar review of his federal claim. Lee v. Kemna, 534 U.S. at 376. However, in Lee v. Kemna, the Supreme Court reaffirmed the principle that there can be unusual or extraordinary cases, in which a habeas court will decline to enforce a state procedural rule.Id. (citing Davis v. Weschler, 263 U.S. 22, 24 (1923)). Lee v. Kemna was such a case. In order to understand the principle, it is necessary tp review the unusual circumstances inLee v. Kemna.
In Lee v. Kemna, habeas petitioner Lee was tried over three days in February 1994 on charges that he had driven the getaway car for a co-defendant, Reginald Rhodes, who had shot and killed Steven Shelby.Id., 534 U.S. at 367. Lee's defense was that of alibi.Id. The crime took place on August 27, 1992 in Kansas City, Missouri and Lee intended to present evidence that he had been in California with his family at that time. Id. The witnesses Lee intended to call to support his alibi were his mother, his sister and his stepfather, who was a minister. Id. The fact that Lee intended to put on an alibi defense was mentioned by the prosecutor during her opening statement and she stated that would present evidence to refute the alibi. Id. During his opening statement, Lee's defense counsel told the jury that he would put on an alibi defense.Id. Specifically, counsel told the jury that the petitioner was in California during the time the crime was committed and that the petitioner's mother, sister and stepfather would testify in support of the alibi. Id. at 367-68.
The prosecution put on its case, including two eyewitnesses who testified that Lee drove the getaway car. Id. at 368. Two other witnesses testified that they had seen Lee in Kansas City the night before the crime together with Rhodes, his co-defendant, and that Rhodes had asked where Shelby was. Id. The defense began to put on its case on the morning of the third day of trial. Id. At some point in the late morning or early afternoon, the petitioner's three alibi witnesses left the courthouse. Id. at 369. Just after one o'clock, Lee took the stand outside the presence of the jury and stated that the three witnesses had voluntarily traveled from California to testify on his behalf and he provided details concerning where they were staying and how their appearance had been secured. Id. Lee also mentioned what efforts had been made to locate the witnesses once it had been discovered that they had left the courthouse and he asked for a continuance of a couple hours in order to make further efforts to find them. Id. Lee's counsel also made an oral motion to continue the case until the next day, a Friday, in order to try to locate the crucial witnesses. Id. The trial judge said he could not sit on Friday because his daughter was going to be in the hospital all day and he would be staying with her. Id. The trial judge then denied the motion for a continuance. Id. at 370. Lee's counsel next asked the trial judge to continue the case until Monday and the judge denied that request because he had to start another trial that day.Id.
The trial continued without the alibi witnesses. Lee's counsel informed the jury that his alibi witnesses had been in court but, for unknown reasons, had left. Id. The defense then rested. Id. In his closing, defense counsel apologized for his failure to put on the alibi witnesses and again noted that he did not know what had happened to the witnesses. Id. The jury convicted Lee of murder and he was sentenced to life without the possibility of parole. Id. at 371.
After being sentenced, Lee made several efforts to have the state courts review his argument that the trial court's failure to grant him a continuance had denied him the due process right to put on a defense.Id. These efforts were unsuccessful. Id. Lee eventually pursued a direct appeal to the Missouri Court of Appeals.Id. Lee again argued that the trial court's failure to grant him a continuance had denied him the due process right to put on a defense. Id. In response, the state argued for the first time that Lee's motion for a continuance had a fatal procedural flaw.Id. The state argued that the motion for a continuance did not comply with Missouri Supreme Court Rule 24.10 ("Rule 24.10") because Lee had failed to make the showings required under the rule. Id. at 370-71. In its decision, the Missouri Court of Appeals found the motion for a continuance did not comply with Missouri Supreme Court Rule 24.09 ("Rule 24.09") because it was not written and lacked an affidavit to support it. Id. at 372. That court also found that the motion failed to comply with Rule 24.10 because the motion lacked "the factual showing required by Rule 24.10." Id. at 373. Lee then filed motions for rehearing and transfer to the Missouri Supreme Court; those motions were denied. Id.
The Supreme Court noted that Lee did not argue that Rules 24.09 and 24.10 were not generally applicable. Id. at 375. However, the Court found three reasons which demonstrated that Lee's case was exceptional and so Rules 24.09 and 24.10 would not bar consideration of Lee's claim. First, the reasons the trial judge gave for denying the motion for a continuance — his desire to spend the next day (Friday) with his daughter in the hospital and the fact that he intended to start a new trial on Monday — were not reasons which Lee could have countered through perfect compliance with Rules 24.09 and 24.10. Id. at 381. Second, there was no published decision in Missouri which required "flawless compliance with Rules 24.09 and 24.10 in the unique circumstances this case presents — the sudden, unanticipated, and at the time unexplained disappearance of critical, subpoenaed witnesses on what became the trial's last day." Id. at 382. Third, "and most important, given `the realities of trial,' . . . Lee substantially complied with Missouri's key rule [Rule 24.10]." Id. (citation omitted). The realities of trial in Lee's case were that the situation counsel faced was exigent. Id. at 383. Further, Lee's compliance with the Rule 24.10 was substantial because his testimony, counsel's argument before the trial judge and the trial transcript itself revealed the information the rule required. Id. at 383-85.
The question to be decided is whether the petitioner's case involves circumstances so extraordinary or unusual that the Hubbard rule should not be applied to him. The petitioner argues that the circumstances he faced were extraordinary or unusual because: (1) his conflict of interest claim was not developed at the time counsel filed the direct appeal brief in the Superior Court; and (2) the state supreme court abandoned the Hubbard rule in Commonwealth v. Grant. These arguments will be addressed in turn.
The court notes that the petitioner filed the direct appeal brief in the Superior Court in December 1998. The court also notes that the factual basis for the petitioner's conflict of interest claim is contained in the letters he received from Clifford Brown in June and July 1998. In his June and July 1998 letters, Mr. Brown indicated that he would have testified that the petitioner had nothing to do with the killing of the victim and that he, Mr. Brown, had not told anyone to kill the victim. Mr. Brown further stated that Mr. El-Shabazz had advised him that it was not in his interest to testify for the petitioner because the jury would learn of his prior record and, because of this advice, he did not testify.
The District Attorney has provided the court with copies of June and July 1998 letters from Mr. Brown to the petitioner. They are Exhibits D and E to the Response.
The petitioner seeks to avoid the significance of his having received these letters many months before he filed the direct appellate brief by arguing that these letters were not sufficient for him to make a fair challenge to trial counsel's actions. The court disagrees. The two letters clearly provide a strong basis to challenge the actions of Mr. El-Shabazz. If counsel or the petitioner failed to appreciate the significance of these letters in June and July 1998, their failure is not something so extraordinary or unusual that the court will excuse the petitioner's failure to comply with the Hubbard rule.
In a related point, the petitioner further argues that, had he raised the claim on direct appeal, he would have had to request a remand for an evidentiary hearing in order to adequately support the conflict of interest claim. The petitioner contends that the Commonwealth would have opposed his request for a remand and that the Superior Court would likely have agreed with the Commonwealth and denied the remand. First, the notions that the Commonwealth would have opposed the remand and that the Superior Court would have agreed are somewhat speculative. While that may have occurred if the petitioner had asked for a remand, one cannot know for sure because he did not. Further, the petitioner fails to note that, if he had raised the conflict of interest claim on direct appeal and his request for a remand had been denied, so long as he also raised the claim in the petition for allowance of appeal to the state supreme court, the claim would be exhausted. Once the petitioner had exhausted the claim on direct appeal, he would have complied with the Hubbard rule and there would be no issue of procedural default here. For this additional reason, the petitioner's failure to comply with the Hubbard rule is not an extraordinary or unusual circumstance.
The petitioner also argues that the state supreme court's decision to abandon the Hubbard rule in Commonwealth v. Grant was an extraordinary or unusual circumstance. In so arguing, the petitioner fails to consider the time frame within which the extraordinary circumstances occurred in Lee v. Kemna. In Lee v. Kemna, the unusual circumstance was that Lee's crucial alibi witnesses simply disappeared from the courthouse without any explanation. Thus, the unusual circumstance occurred prior to the time Lee needed to comply with the state procedural rules. Indeed, the unusual circumstance is what caused Lee to need to comply with those rules. By contrast,Commonwealth v. Grant, the asserted unusual circumstance, was decided four years after the petitioner failed to comply with theHubbard rule. This difference is important and results inLee v. Kemna not being sufficiently analogous to the petitioner's case to support his argument. Accordingly, the court finds that the petitioner's failure to comply with the Hubbard rule is not excused by extraordinary or unusual circumstances and his conflict of interest claim is procedurally defaulted.
A procedurally defaulted claim cannot be reviewed unless "the [petitioner] 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 claim[ ] will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In order to demonstrate cause, the petitioner must show that "some objective factor external to the defense impeded [the petitioner's] efforts to comply with the state's procedural rule." Id. at 753 (citation omitted). Examples of cause include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) a showing that some interference by state officials made compliance with the state procedural rule impracticable; (3) attorney error that constitutes ineffective assistance of counsel. Id. at 753-54.
The fundamental miscarriage of justice exception is limited to cases of "actual innocence". Schlup v. Delo, 513 U.S. 298, 321-22 (1995). In order to demonstrate that he is "actually innocent", the petitioner must present new evidence of his innocence. Id. at 316-17. This evidence need not be directly related to the habeas claims the petitioner is presenting because the habeas claims themselves need not demonstrate that he is innocent. See id. at 315. The court must consider the evidence of innocence presented along with all the evidence in the record, even that which was excluded or unavailable at trial. Id. at 327-28. Once all this evidence is considered, the petitioner's defaulted claims can only be reviewed if the court is satisfied "that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327.
In this case, the petitioner has failed to demonstrate cause and prejudice for his default. Indeed, he cannot claim that his appellate counsel was ineffective for failing to raise the first claim on direct appeal since he is still represented by appellate counsel.
The petitioner argues that Amadeo v. Zant, 486 U.S. 214 (1988) stands for the proposition that "hidden defects are not subject to procedural default." Traverse at 12. The court has reviewed Amadeo v. Zant and finds that the case does not stand for the proposition the petitioner claims.
In Amadeo v. Zant, the district attorney had instructed the county clerk of court and county jury commissioners to draw master jury lists which would insure that blacks and women were under-represented in the grand and petit juries that were drawn in the county. Id. at 217-18. Amadeo was tried on a capital murder charge during the time the district attorney's policy was employed. Id. at 217. Nonetheless, his attorneys were not aware of the policy, which was not public, and they did not challenge the venire. Id. at 218. Later, the existence of the policy was discovered by other attorneys during the course of an independent civil rights action. Id. at 218. Amadeo's counsel learned of this discovery while Amadeo's direct appeal was pending. Id. In Amadeo's opening brief to the Georgia Supreme Court, his counsel challenged the grand and petit juries which had indicted and convicted him. Id. The Georgia Supreme Court held that the challenge was being brought too late because, in Georgia, a challenge to the grand jury must be brought before indictment and a challenge to the petit jury venire must be raised before voir dire.Id. at 218 n. 2. Contrary to the petitioner's reading ofAmadeo v. Zant, the Supreme Court did not hold that, because Amadeo could not have learned of the claim at the time Georgia procedural rules required him to challenge the grand jury and the petit jury venire, the procedural rules were not adequate and independent. Instead, the Supreme Court noted that the concealment by county officials of the district attorney's policy could constitute cause to excuse the procedural default. Id. at 222. Thus, Amadeo v. Zant, concerns cause to excuse procedural default, not whether a procedural default has occurred. The petitioner's failure to understand this point has caused him to fail to make proper argument under Amadeo v. Zant.
In any event, the court finds that the situation in this case is far different from that in Amadeo v. Zant. In this case, the petitioner himself learned in June and July 1998 that his co-defendant Clifford Brown was willing to claim that Mr. El-Shabazz had instructed him not to testify on behalf of the petitioner. This was learned five to six months before current counsel filed the direct appeal brief in the Superior Court of Pennsylvania in December 1998. Thus, current counsel was aware of the factual basis for the alleged conflict of interest claim before the petitioner defaulted the claim and, more importantly, the state made no effort to conceal these facts from the petitioner or his counsel. By contrast, in Amadeo v. Zant, it was county officials who had concealed the district attorney's policy and the district attorney himself "had made no attempt to deal honestly with petitioner's lawyers and reveal that he has guided the Jury Commissioners' manipulation of the jury lists." Id. at 220. State involvement is important to questions of cause because cause is an objective factor external to the defense. See Coleman v. Thompson, 501 U.S. at 753. Here, the petitioner's failure to raise the claim on direct appeal was not the result of a state effort to conceal the basis for the claim. Instead, the failure to raise the claim on direct appeal was the result of counsel's decision not to raise the claim or her failure to appreciate the significance of Mr. Brown's June and July 1998 letters. Hence, there is no cause for the default.
The petitioner does contend that the testimony Clifford Brown is willing to provide would satisfy the Schlup v. Delo actual innocence standard. Based on his June and July 1998 letters, Mr. Brown would have testified that the petitioner had nothing to do with the killing of the victim and that he, Mr. Brown, had not told anyone to kill the victim. Further, in an August 17, 2001 letter Mr. Brown wrote to Ms. Strum's former associate, Rachel Barrett, Esquire, Mr. Brown provide more details concerning the testimony he could have provided at trial. Mr. Brown admitted that he was present during the shooting of the victim. Mr. Brown claims that the victim and someone named Gregory were gambling at dice and had argued; Gregory had accused the victim of cheating. At some point, the victim announced that he was going to get a gun from his car and he walked towards his car. Gregory told the victim to stop and, when he did not, Gregory shot the victim. Mr. Brown further claims that, at the time of the shooting, the petitioner was not present at the scene and so Mr. Brown could not have instructed the petitioner to shoot the victim. In addition, Mr. Brown seeks to exculpate himself by stating that he never ordered anyone to shoot the victim.
The District Attorney has provided the court with copies of June and July 1998 letters from Mr. Brown to the petitioner. They are Exhibits D and E to the Response.
The petitioner has provided the court with a copy of Mr. Brown's August 17, 2001 letter. It is Exhibit A to the Supplemental Traverse.
Not surprisingly, the prosecution's version of the events that resulted in the victim's death is different. In the prosecution's version, it is the petitioner, Mr. Brown and the victim who are gambling. Mr. Brown and the victim get into an argument; the victim then starts to walk away from the scene of the gambling. Mr. Brown then makes statements to the petitioner which, apparently, the petitioner understands as an order to shoot the victim and the petitioner then shoots the victim.See Commonwealth v. Richardson, No. 3719 Philadelphia 1997, slip op. at 1-2 (Pa.Super. Jan. 27, 2000).
In the prosecution's version of events, Mr. Brown tells the petitioner, "You're going to let him walk away? You ain't going to handle your business? You know how we do. You either put down or lay down." (N.T. 5/7/97 at 14). After being told this, the petitioner walked up to the victim, pulled a gun out of his waist and shot the victim.Id.
It is apparent that Mr. Brown's proposed testimony seeks to exculpate himself and the petitioner by giving a version of the events of August 5, 1995 which is different from the version the jury heard and believed. In order to meet the Schlup standard, the court must be able to conclude that, in light of Mr. Brown's proposed testimony, it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. However, Mr. Brown's testimony does no more than provide a different version of the events which led to the victim's death. On its face, Mr. Brown's version of the events is as likely to be true as the version the eyewitness, Dana Lucas, provided at trial. For this reason, it is not more likely than not that a reasonable jury would believe Mr. Brown's version over that of Ms. Lucas. Thus, Mr. Brown's testimony simply does not meet the Schlup standard and the petitioner's defaulted claim cannot be considered on its merits.
The petitioner's second claim is that trial counsel was ineffective because he failed to object to the Commonwealth's use of a prior consistent statement to rehabilitate its witness, Dana Lucas. This claim has two components, first a claim that the prior consistent statement of Dana Lucas was inadmissible under the Confrontation Clause and, second, that trial counsel failed to object to the prior consistent statement on the ground that it violated the Confrontation Clause. The first component of the ineffective assistance claim is also the petitioner's fourth claim. Thus, the court will address them together, starting with the evidentiary (fourth) claim.
The petitioner initially argued that the prior consistent statement of Dana Lucas was admitted in violation of due process and equal protection. See Memorandum of Law in Support of Petition for Writ of Habeas Corpus at 2. However, in his Traverse, the petitioner argued that the prior consistent statement was admitted in violation of the Confrontation Clause. See Traverse at 9.
The petitioner argues that the admission of the prior consistent statement of Dana Lucas violated the Confrontation Clause. The Commonwealth argues that this claim was never presented in the state courts and is, therefore, unexhausted and procedurally defaulted. The court declines to address this procedural issue because it is apparent that the petitioner has failed to support a Confrontation Clause claim and, therefore, that the claim is without merit. Cf. 28 U.S.C. § 2254(b)(2) (allowing the court to deny a petition that is without merit even if the petitioner has failed to exhaust state remedies).
The case the petitioner relies upon as support for his claim isTome v. United States, 513 U.S. 150 (1995). However,Tome is a case which interprets the meaning of Federal Rule of Evidence ("FRE") 801(d)(1)(B). See Tome, 513 U.S. at 152. There is no discussion in the Tome majority opinion of the Confrontation Clause. See Id. at 152-160, 163-167. Thus, the petitioner is wrong to cite Tome as support for a Confrontation Clause challenge to the prior consistent statement of Dana Lucas. Further, the petitioner has not cited any Confrontation Clause case which would support his argument. Instead, the petitioner complains that Pennsylvania evidentiary law is inconsistent with Tome. This complaint is irrelevant because Tome construes FRE 801 (d)(1)(B) and Pennsylvania's courts are not required to followTome when they construe their own evidentiary law. For these reasons, the petitioner has completely failed to support his claim that his Confrontation Clause rights were violated by the admission of the prior consistent statements of Dana Lucas. Since he has failed to support his fourth claim, the court finds it to be without merit.
Justice Scalia was the fifth justice in the Tome majority and he declined to join the portion of the Court's opinion that is contained at 513 U.S. 160-63. However, that portion of the plurality opinion also has no mention of the Confrontation Clause.
In his second claim, the petitioner contends that trial counsel was ineffective for failing to raise the fourth claim. Since the fourth claim is without merit, the claim of ineffective assistance which is based on it is also without merit. See Moore v. Deputy Commissioners of SCI-Huntinqdon, 946 F.2d 236, 245 (3d Cir. 1991).
The petitioner's remaining claim is that trial counsel was ineffective for failing to present favorable testimony that, during his opening statement, counsel had told the jury he would present. During his opening statement, trial counsel told the jury they would hear testimony that counsel had contacted a detective and told the detective that the petitioner knew there was a warrant for his arrest and that the petitioner would surrender to the police. (N.T. 5/6/97 at 58-59). The jury failed to hear such evidence because, when asked by trial counsel, the detective in question testified that he had not received such a message from counsel. (N.T. 5/12/97 at 195). The Commonwealth concedes that this claim is exhausted and so the court will proceed to the merits.
Whether trial counsel rendered ineffective assistance must be evaluated against the two-part test announced in Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. In making this determination, the court's scrutiny of counsel's performance must be "highly deferential." Id. at 689. The court should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. In short, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"Id.
Second, the petitioner must show that counsel's deficient performance "prejudiced the defense", by, "depriv[ing] the [petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. That is, the petitioner must show that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome,"Id. at 694, but it is less than a preponderance of the evidence. Id. at 693, 694. Finally, if the petitioner fails to satisfy either part of the Strickland test, there is no need to evaluate the other part as his claim will fail, Id. at 697.
The petitioner's second claim was raised on direct appeal and the Superior Court of Pennsylvania adjudicated the claim as follows:
Richardson's counsel told the jury during opening statements that he would produce evidence that Richardson was preparing to surrender prior to arrest, but was unable to do so because he subsequently was shot and hospitalized. Counsel questioned Detective Joseph Centeno ("Centeno") as to whether Centeno had received a message on the 18th of August that Richardson would surrender to police on the following Monday. N.T. 5/12/87, at 195. Centeno testified that he had not received a message. Id. Because counsel attempted to prove that Richardson wanted to voluntarily surrender, we conclude that there is no merit to the claim that Richardson's counsel was ineffective in making this assertion during his opening statement. Thus, Richardson's claim of ineffective assistance of counsel fails.Commonwealth v. Richardson, No. 3719 Philadelphia 1997, slip op. at 7 (Pa.Super. Jan. 27, 2000).
It would appear that the Superior Court adjudicated the petitioner's claim by finding that counsel's performance was objectively reasonable. That is, the Superior Court found that the petitioner could not satisfy the first part of the Strickland test. The Superior Court failed to consider the question of prejudice, which it was not required to do since it had found the petitioner failed to meet the first part of the Strickland test. See Strickland, 466 U.S. at 697. Under current law, the court must defer to the Superior Court's finding that the petitioner did not satisfy the first part of theStrickland test unless the Superior Court's determination in that regard was contrary to or an unreasonable application of United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1);Williams v. Taylor, 529 U.S. 362, 412 (2000). However, since the Superior Court failed to address the question of prejudice, the court can review that issue de novo. See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000). The court will first consider the question of prejudice.
It cannot be disputed that trial counsel failed to present the evidence he said he would present during his opening statement. What is not known, since there has not been an evidentiary hearing, is what is the reason trial counsel failed to present the evidence? The reason for the failure relates to counsel's preparation for trial and whether his performance was objectively reasonable. However, the question to be decided here is whether counsel's failure to produce that evidence, regardless of the reason for the failure, prejudiced the petitioner.
The petitioner's argument concerning prejudice is the following:
There is a reasonable probability that but for counsel's omission the result would have been different because the evidence against Richardson was thin, and the jury might have based the conviction on the defense attorney's failure [to] make a truthful opening statement.
Memorandum of Law in Support of Petition for Writ of Habeas Corpus at 11. First, the court does not agree that the evidence against the petitioner was thin. The Commonwealth presented an eyewitness, Dana Lucas, who had known the petitioner since grade school and who had seen the petitioner shoot the victim. (N.T. 5/7/97 at 5, 14). The Commonwealth also presented testimony from the medical examiner who stated that the gunshot wounds the victim suffered had caused his death. (N.T. 5/13/97 at 75, 79). This is not a thin case, this is a strong case. Further, the jury was instructed that they were not to impose any burden of proof on the petitioner and that they could not infer his guilt from his failure to present any evidence. (N.T. 5/14/97 at 101). Since the court must presume that jurors follow their instructions, see Weeks v. Angelone, 528 U.S. 225, 234 (2000), the court will not draw the speculative inference that the jury disregarded those instructions and based the petitioner's guilt on counsel's failure to present the evidence he had mentioned in his opening statement. For these reasons, the court finds that the petitioner has failed to demonstrate that he was prejudiced by counsel's failure. Therefore, his ineffective assistance claim must fail. See Strickland, 466 U.S. at 697.
The court will also consider whether to recommend granting a certificate of appealability ("COA"). Because the court has disposed of the petitioner's first claim on the ground that it is procedurally defaulted, in order for the petitioner to obtain a COA on that claim, he must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). In Slack, the Supreme Court went on to explain that:
Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.Id. Further, the Supreme Court indicated that, since the petitioner must make showings with respect to the procedural issue and the underlying, constitutional issue, a court may resolve the COA question if either showing is lacking. Id. at 484-85.
In finding that the petitioner's first claim was procedurally defaulted, the court applied Reynolds v. Ellingsworth, 843 F.2d 712 (3d Cir. 1988), to determine that the waiver rule established in Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977), was an adequate and independent state rule. However, it could be argued that Reynolds does not explicitly speak to the factual circumstance that arose in this case because, in Reynolds, the state courts decided Reynolds' state post conviction petition by holding that, at trial, he had failed to comply with a contemporaneous objection rule that was announced in a 1980 decision of the Delaware Supreme Court. Reynolds, 843 F.2d at 716. However, Reynolds' trial had taken place in 1977, three years before the contemporaneous objection rule was announced. Id. at 715. By contrast, here, Pennsylvania abandoned the Hubbard rule four years after the petitioner failed to comply with the rule. It may be that the Third Circuit will want to reconsider whether Reynolds states the proper test to apply when a state abandons a procedural rule some time after the petitioner fails to comply with the rule. In the court's view, this procedural question is an important one, it is one about which reasonable jurists might disagree and it is one which deserves encouragement to proceed further. Thus, it is worthy of a COA. See Slack v. McDaniel, 529 U.S. at 484.
The petitioner also argued that, under Lee v. Kemna, he faced extraordinary or unusual circumstances which would justify excusing his violation of the Hubbard rule. The court has found that his arguments based on Lee v. Kemna are not meritorious and is of the view that reasonable jurists would not debate the court's disposition of his arguments. Further, the petitioner argued that, under Amadeo v. Zant, his claim is not procedurally defaulted. The court has found that his argument based on Amadeo v. Zant is grounded on a misunderstanding of what the case holds and, in any event, lacks merit. The court is also of the view that reasonable jurists would not debate the court's disposition of the petitioner's argument. In addition, the petitioner argued that he was actually innocent. The court has found that the petitioner failed to satisfy the Schlup v. Delo standard for actual innocence and is of the view that reasonable jurists would not debate the court's conclusion. The merits of the defaulted claim must also be debatable or adequate to deserve encouragement to proceed further in order for a COA to be granted. See Miller-El v. Cockerell, 123 S.Ct. 1029, 1034 (2003) (citing Slack v. McDaniel, 529 U.S. at 484)). In the first claim, the petitioner argues that trial counsel, Tariq Kareem El-Shabazz, Esquire, was ineffective because he represented the petitioner while laboring under an actual conflict of interest which adversely affected the defense. The alleged conflict of interest arises because Mr. El-Shabazz represented the petitioner's co-defendant, Clifford Brown, in a separate criminal case. The petitioner alleges that, because of this conflict, Mr. El-Shabazz instructed Mr. Brown not to testify at the petitioner's trial even though Mr. Brown was willing to provide testimony which exculpated the petitioner. If the petitioner's allegations are true, it would seem that Mr. El-Shabazz acted in manner that, on its face, was not designed to assist the petitioner. Indeed, it would appear that Mr. El-Shabazz's actions adversely affected the petitioner's defense. Further, it appears that Mr. El-Shabazz resolved the conflict he faced by choosing to protect Mr. Brown's interests over those of the petitioner. Thus, if the petitioner's allegations are true, his claim may be meritorious. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) (noting that a petitioner must demonstrate that an actual conflict of interest adversely affected his lawyer's performance). This is sufficient to grant a COA on the merits of the claim. See Miller-El v. Cockerell, 123 S.Ct. 1029, 1039 (2003) (noting that the decision to grant a COA requires a general assessment of the merits of the claim). For these reasons, the court concludes that COA should issue with respect to the first claim.
Because the court has relied upon the procedural default of the first claim, it did not review the merits of the claim. Had the default been excused, the court would have had to consider the Superior Court's alternative holding on the merits of the first claim. In doing so, the court would have applied the deferential standard of review called for by 28 U.S.C. § 2254(d)(1). After doing that, Miller-El v. Cockerell would require the court to determine whether its application of 28 U.S.C. § 2254(d)(1) was debatable among jurists of reason in order to grant a COA. Miller-El, 123 S.Ct at 1039. However, since the court has not disposed of the first claim on its merits, the court declines to apply 28 U.S.C. § 2254(d)(1) to the Superior Court's adjudication of the claim and then determine whether that hypothetical application of § 2254(d)(1) would be debatable among jurists of reason.
The court has disposed of the fourth claim, which involves the Confrontation Clause, on the basis that the petitioner has failed to support the claim with appropriate legal authority. In the court's view, no reasonable jurist would dispute that determination. Thus, a COA should not issue with respect to that claim. The petitioner's second claim is that trial counsel was ineffective for failing to raise the fourth claim. However, it well established in the Third Circuit that an attorney is not ineffective for failing to raise a meritless claim, which is what the fourth claim is. Thus, no reasonable jurist would dispute the disposition of the second claim and a COA should not issue with respect to it.
The third claim, which also involves ineffective assistance of counsel, was adjudicated based on the petitioner's failure to demonstrate prejudice. The petitioner erroneously argues that the Commonwealth's case was weak and asks the court to speculate that his jury drew an inference which, under Supreme Court precedent, this court must presume it did not. It is the court's view that, under these circumstances, no reasonable jurist would dispute the court's disposition of the petitioner's third claim and a COA should not issue with respect to it.
The court's recommendation follows.
RECOMMENDATION
AND NOW, this ___ day of November, 2003, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED. It is also RECOMMENDED that a certificate of appealability be granted with respect to the petitioner's claim that his trial counsel, Tariq Kareem El-Shabazz, Esquire, was ineffective because he represented the petitioner while laboring under an actual conflict of interest which adversely affected the defense. It is further RECOMMENDED that a certificate of appealability not be granted with respect to any of the petitioner's other claims.ORDER
AND NOW, this ___ day of ___, 2003, after careful and independent consideration of the petition for a writ of habeas corpus, the answer thereto, the other documents filed by the parties and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED;
3. A certificate of appealability is granted with respect to the petitioner's claim that his trial counsel, Tariq Kareem El-Shabazz, Esquire, was ineffective because he represented the petitioner while laboring under an actual conflict of interest which adversely affected the defense; and
4. A certificate of appealability is not granted with respect to the petitioner's other claims.