Opinion
Civil Action No. 04-0887.
September 28, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution at Houtzdale, Pennsylvania. For the reasons stated below, this court recommends that the petition be denied.
I. BACKGROUND
On January 28, 1982, a jury sitting in the Court of Common Pleas for Philadelphia County, convicted petitioner of murder in the second-degree, robbery, and possession of an instrument of crime. (June Term, 1981, Nos. 2984-88.) Petitioner's conviction arose out of events which occurred on December 15, 1979. On November 17, 1982, the court sentenced petitioner to life imprisonment for the second-degree murder conviction, and concurrent terms of ten to twenty years for robbery and one-half to five years for possessing an instrument of crime.
The state courts, in various decisions, stated that the date of the criminal events was December 15, 1978. See Response Exs. A, B. However, according to the testimony at petitioner's trial, the criminal events occurred on December 15, 1979. See, e.g., N.T., 1/22/82, at 13.52, 13.87. See also Response Ex. D (Commonwealth v. Sims, No. 336 EDA 2002, slip op. at 1 (Pa.Super.Ct. (Nov. 26, 2002).) While it appears that the criminal events occurred in 1979, this particular detail does not impact the court's conclusions regarding petitioner's instant habeas petition.
The evidence at trial showed that on December 15, 1979, petitioner robbed, shot, and killed Calvin Cliett on the third floor of a house located at 731 North 44th Street in Philadelphia. The house was owned by Frank Knight and was used by drug addicts to buy, sell, and use heroin and methamphetamine. Petitioner, during the commission of the crime, shot himself in the hand and then fled the scene.
Following the incident, petitioner went to the home of Carl Davis and Michelle Hannible-Johnson (known at the trial as Michelle Hannible). He admitted to Mr. Davis and Ms. Hannible that he had killed Mr. Cliett. Ms. Hannible then told petitioner that he should go to the hospital to have his hand wound treated.
After three days in the hospital petitioner left against doctor's advice. He then returned to the scene of the murder where he, along with Mr. Knight and Juanita Peck (known at the trial as Juanita Brown), buried Mr. Cliett's body in a shallow grave in the backyard of the house. One and one-half years later, Ms. Peck told the police about the buried body. The police exhumed the body and positively identified Mr. Cliett's remains.Commonwealth v. Sims, No. 4878 Phila. 1997, slip op. at 1-2 (Pa.Super.Ct. Mar. 22, 1999) (Response Ex. B).
Petitioner appealed to the Pennsylvania Superior Court. He raised the following claims for relief:
1. The trial court erred in refusing to give a requested jury instruction regarding a witness' addiction to narcotics;
2. The trial court erred in denying a motion for a mistrial; and
3. The trial court erred in admitting testimony by a hospital records custodian.
On April 12, 1985, the Superior Court affirmed the judgment.Commonwealth v. Sims, No. 3433 Phila. 1982, slip op. at 1 (Pa.Super.Ct. April 12, 1985). See Response Ex. A. Petitioner did not request review of this decision by the Pennsylvania Supreme Court.
On December 10, 1996, petitioner filed his first pro se petition for collateral review under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Petitioner claimed that trial counsel was ineffective for: (1) not requesting a limiting instruction when a witness suggested that petitioner was involved in another shooting; and (2) failing to argue that the verdict was against the weight of the evidence. The Court of Common Pleas dismissed the petition on November 13, 1997. Petitioner filed an appeal to the Superior Court, which affirmed the dismissal of the PCRA petition on March 22, 1999.Commonwealth v. Sims, No. 4878 Phila. 1997 (Pa.Super.Ct. Mar. 22, 1999). See Response Ex. B. Petitioner's petition for allowance of appeal was denied on August 24, 1999. Commonwealth v. Sims, 742 A.2d 674 (Pa. 1999).
On May 14, 1999, petitioner filed a second pro se PCRA petition. The second PCRA petition was dismissed on June 30, 1999, because his first petition remained pending in the state courts. On August 24, 1999, the Supreme Court denied petitioner's request to appeal. Commonwealth v. Sims, 742 A.2d 674 (Pa. 1999).
On October 20, 1999, petitioner filed a third PCRA petition. The petition was dismissed as time-barred on April 6, 2000. On March 2, 2001, the Superior Court affirmed the decision.Commonwealth v. Sims, No. 1513 EDA 2000 (Pa.Super.Ct. Mar. 2, 2001). See Response Ex. C.
On April 24, 2001, petitioner filed a fourth PCRA petition. Petitioner claimed that recent recantations from witnesses Juanita Peck ("Ms. Peck") and Michelle Hannible-Johnson ("Ms. Hannible") established that during his trial the prosecution had violated Brady v. Maryland, 373 U.S. 83 (1963) by not disclosing that "deals" had been made with Ms. Peck and another witness, Carl Davis, in return for their testimony and that of Ms. Hannible. On December 31, 2001, the lower court dismissed the petition as untimely. Petitioner then appealed to the Superior Court which found that the petition was not time-barred, but found the claim raised in the petition meritless and affirmed the dismissal of the petition. Commonwealth v. Sims, No. 336 EDA 2002 (Pa.Super.Ct. Nov. 26, 2002). See Response Ex. D. On May 8, 2003, the Supreme Court of Pennsylvania denied petitioner's request for review. Commonwealth v. Sims, 825 A.2d 638 (Pa. 2003).
On March 1, 2004, petitioner filed the instant pro se petition for a writ of habeas corpus. He raises the following five claims:
1. The prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose information favorable to petitioner.
2. Petitioner's fourth PCRA petition was filed timely.
3. The prosecutor committed misconduct when he failed to correct false testimony given by Mr. Davis, Ms. Hannible, and Ms. Peck.
4. Trial counsel was ineffective when he elicited testimony about additional crimes for which petitioner was charged, and by allowing testimony from a hospital records custodian.
5. All counsel were ineffective when they failed to raise the issue of trial counsel's ineffectiveness for improperly cross-examining witnesses Davis, Hannible and Peck, and for failing to uncover the intimate relationship between witnesses Davis and Hannible.
(Petition at ¶ 12, Motion to Amend at 2.)
On June 15, 2004, the District Attorney for Philadelphia County responded to the petition. She argues that the claims are procedurally defaulted, time-barred, and/or meritless.
II. DISCUSSION A. Habeas Corpus Standards
Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The provision of the AEDPA relevant to the instant matter provides as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1) and (2). With respect to Section 2254(d)(1), a federal habeas petitioner is entitled to relief under the "contrary to" clause only if "the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently that this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08. See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.) (en banc) (to prove entitled to relief under "contrary to" clause, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; . . . petitioner must demonstrate that Supreme Court precedent requires the contrary outcome") (emphasis in original), cert. denied, 528 U.S. 824 (1999).
Under the "unreasonable application" clause, a federal habeas court may not issue the writ simply because the court concludes "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision also is objectively unreasonable. Id. See Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (federal habeas court should not grant the petition unless "the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent") (quoting Matteo, 171 F.3d at 890), cert. denied, 532 U.S. 980 (2001).
With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state court, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A habeas petition must be filed in a timely manner. See 28 U.S.C. § 2244(d) (enacted as part of the AEDPA). The relevant provisions provide:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). See generally Fahy v. Horn, 240 F.3d 239 (3d Cir.), cert. denied, 534 U.S. 944 (2001); Lovasz v. Vaughn, 134 F.3d 146 (3d Cir. 1998).
Petitioner's conviction became final on May 11, 1985. This date represents thirty days after the Superior Court affirmed petitioner's sentence on April 12, 1985. The limitations provision of 28 U.S.C. § 2244(d) has been construed to give all prisoners a one-year grace period following its effective date on April 24, 1996, in which to initiate habeas actions when a conviction became final prior to April 24, 1996. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). Accordingly, petitioner had until April 23, 1997, to file a timely habeas petition. Id.
The one-year statute of limitations is tolled during the time petitioner has pending in the state courts a properly filed PCRA petition. See 28 U.S.C. § 2244(d)(2). Petitioner's first PCRA petition, filed December 10, 1996, tolled the one-year grace period, but only while it was pending. At the time the first PCRA petition was filed, 230 days had expired on the limitations period. On March 22, 1999, the Superior Court affirmed the dismissal of the first PCRA petition and on August 24, 1999, the Supreme Court denied petitioner's request for allocatur. Thus, the limitations period resumed running on August 24, 1999, leaving 135 days for petitioner to file a timely habeas petition.
Petitioner's second PCRA petition was dismissed as untimely because it was filed during the time period that his first PCRA petition remained under review and therefore never acted to toll the limitations period for the habeas petition. Petitioner's third PCRA petition was filed on October 20, 1999, 57 days after the final decision on his first PCRA petition, leaving 78 days remaining in the limitations period. The dismissal of petitioner's third PCRA petition was affirmed by the Superior Court on March 2, 2001, beginning the running of the statute of limitations again.
Petitioner filed his fourth PCRA petition on April 24, 2001, leaving 26 days remaining in the limitations period to file his habeas petition. On May 8, 2003, the Supreme Court of Pennsylvania denied petitioner's request for review of the Superior Court's affirmance of the lower court's denial of his fourth PCRA petition. Thus, petitioner had until June 3, 2003 to file a timely habeas petition for all of his claims not based on newly discovered evidence. Petitioner did not file his habeas petition until March 1, 2004 therefore, all of his claims not based on newly discovered evidence are time-barred. B. Exhaustion and Procedural Default
The Third Circuit has held that the federal habeas statute of limitations is subject to equitable tolling. See Miller v. New Jersey State Dep't of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). In Miller, the court stated the following:
[E]quitable tolling is proper only when the principles of equity would make the rigid application of a limitation period unfair. Generally, this will occur only when the petitioner has in some extraordinary way . . . been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigation and bringing the claims. Mere excusable neglect is not sufficient.Id. at 618-619 (interior quotations and citations omitted). Equitable tolling only may be found when: (1) that state has actively misled the petitioner; (2) the petitioner has in some extraordinary way been prevented from asserting his rights; or (3) the petitioner has timely asserted his rights but in a wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). Petitioner has not shown that he is entitled to equitable tolling.
It is well established that a prisoner must present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999); Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights."Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944 (1992). To satisfy the exhaustion requirement, a petitioner must demonstrate that the claim raised in the federal petition was "fairly presented" to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). "This requires that the claim brought in federal court be the substantial equivalent of that presented to the state courts. Both the legal theory and the facts supporting a federal claim must have been submitted to the state courts."Lesko v. Owens, 881 F.2d 44, 50 (3d Cir. 1989), cert. denied, 493 U.S. 1036 (1990).
On May 9, 2000, the Pennsylvania Supreme Court issued Order No. 218 that declares that federal habeas petitioners no longer have to appeal to the state supreme court to satisfy the exhaustion requirement. This order is not to be applied retroactively. See Wenger v. Frank, 266 F.3d 218, 225 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).
However, when a petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, the doctrine of procedural default generally bars federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996). The Supreme Court stated:
[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred. . . . there is a procedural default for purposes of federal habeas regardless of the decision of the last state court to which the petitioner actually presented his claims.Coleman, 501 U.S. at 735 n. 1. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show that "(1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered." Peterkin v. Horn, 176 F. Supp. 2d 342, 353 (E.D. Pa. 2001); see also Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996).
"A state [procedural] rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claim only if: (1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor, 96 F.3d at 683-84. "A state [procedural] rule is adequate only if it is `consistently and regularly' applied." Id. at 684.
Petitioner can demonstrate cause for procedural default if he can show that some objective factor external to the defense impeded or prevented his ability to comply with the state procedural rules. Caswell, 953 F.2d at 862. To show prejudice, petitioner must present evidence that this factor did more than merely create a possibility of prejudice; it must have "worked to [petitioner's] actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Additionally, the fundamental miscarriage of justice exception to procedural default is only concerned with "actual" innocence, and petitioner must show that it is more likely than not that no reasonable juror would have convicted him absent the claimed error. Schlup v. Delo, 513 U.S. 298, 327 (1995). C. Standard for Ineffective Assistance of Counsel Claims
Petitioner's fourth and fifth claims allege ineffective assistance of counsel. Before addressing the specifics of these claims, the court will review the standards used to evaluate an ineffective assistance claim.
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth a two prong test that a petitioner must satisfy before a court will find that counsel did not provide effective assistance. Under the Strickland test, a petitioner must show: (1) that his attorney's representation fell well below an objective standard of reasonableness; and (2) that there exists a reasonable probability that, barring counsel's ineffectiveness, the result of the proceeding would have been different. Id. at 688-96. To satisfy the first prong of the Strickland test, a petitioner is required to show that "counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. In evaluating counsel's performance, a reviewing court should be "highly deferential" and must 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. at 689. Moreover, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (citation omitted).
To satisfy the second prong of the Strickland test, a petitioner must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. It follows that counsel cannot be ineffective for failing to pursue meritless claims or objections. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999); United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987). In such a situation, the second prong of the Strickland test has not been satisfied. Furthermore, counsel is not ineffective for failing to raise all possible claims of trial court error on appeal. Counsel may exercise his or her professional judgment as to which claims to pursue. See Jones v. Barnes, 463 U.S. 745, 750-54 (1983) (decision of what issues to raise on appeal is charged to counsel; counsel need not assert every non-frivolous issue to guard against subsequent claim of ineffectiveness). Thus, it is not inappropriate for counsel, after consultation with his client, to override the client's wishes when exercising professional judgment regarding which issues to pursue on appeal.Sistrunk v. Vaughn, 96 F.3d at 670.
Additionally, there is no constitutional right to counsel in a state post-conviction proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555-57 (1987). Consequently, there is no Sixth Amendment right to effective assistance of counsel in state post-conviction proceedings. Tillet v. Freeman, 868 F.2d 106, 108 (3d Cir. 1989); David v. Price, 1998 WL 404546, at *3 (E.D. Pa. July 15, 1998). Hence, a petitioner's ineffective assistance of PCRA counsel claim does not arise under the Constitution or laws of the United States, and is not cognizable under 28 U.S.C. § 2254.
D. Petitioner's Claims 1. Claim 1 — Brady Violation
Petitioner's first argument is that the prosecution failed to disclose evidence of a "deal" between the Commonwealth and two of its witnesses, Carl Davis and Juanita Peck, in violation of the mandates set forth in Brady v. Maryland, 373 U.S. 83 (1963). Petitioner maintains that in her statement Ms. Hannible identifies the "deal" Carl Davis allegedly received from the detectives with whom he was working, and states that petitioner was not at her home on December 15, 1979. Petitioner also asserts that Ms. Hannible claims that the detectives told her what to say on the witness stand. (Petition at ¶ 12.) Petitioner maintains that Davis was a "paid" witness and a "government witness." (Motion to Amend at 2.) Petitioner contends that in her statement, Ms. Peck states that she testified to protect her son from prosecution and that she was high on drugs when she testified.
While a prosecutor's affirmative duty to disclose evidence favorable to a defendant can be traced to early twentieth century prohibitions against misrepresentation, it is predominantly associated with the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963). The Supreme Court in Kyles v. Whitley, 514 U.S. 419 (1995) provides a concise summary of the evolution of the current Brady law. In a more recent decision, the Supreme Court stated the Brady rule as follows: AThere are three components to a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Not every failure to disclose favorable evidence gives rise to a constitutional violation. Kyles, 514 U.S. at 436-437. A Brady violation does not occur unless there is a reasonable probability that the suppressed evidence would have produced a different verdict. Strickler, 527 U.S. at 281.
The District Attorney argues that, other than an immunity agreement with Ms. Peck, no other "deals" existed and, in the alternative, even if there were a deal with Mr. Davis the nondisclosure of its existence by the prosecution did not violateBrady's materiality standard. Petitioner's Brady claim is not time-barred as it is based on newly discovered evidence, i.e., the April 2001 statements of witnesses Peck and Hannible. A. The Hannible Statement. A careful reading of Ms. Hannible's statement dated April 10, 2001 (the "Hannible Statement"), does not support petitioner's contentions. Ms. Hannible stated, inter alia, as follows:
The Commonwealth admits that any claims based upon the two April 2001 statements are not time-barred by virtue of 28 U.S.C. § 2244(d)(1)(D). (Response at 9.)
I lived with Carl Davis in Philadelphia, PA from 1976 until 1985. . . . Sims may have come to my home on December 15, 1979 to visit Davis and play pool as he often did but I am not sure. At Sims' trial, I may have said things that are in the transcript that were not true.
I never treated Bobbie Sims at my house on December 15, 1979 for a gunshot wound of his right hand or any type of wound and would remember if I did.
I can not remember ever hearing Bobbie Sims confess to Carl Davis that Sims shot someone through his own hand. I also never observed any shot-up money that Sims had in his possession.
While living with Davis, I was young, naive and in love with him. Davis was . . . an informant who worked with Philadelphia Police detectives [sic] Bethea and another detective whose name I can not recall. I believe I was coerced to giving testimony during trials so that Davis would not go to jail. The detectives never told me to lie but they drove things into my head to say when I was going to court to testify. I am not a criminal and have never been arrested and at this time of my life I did not know how the system worked and believed I had to say things to help Davis. Even though he had a lot of robbery cases against him and was facing thirty years back time in prison, Davis never went to jail because of his help to the homicide detectives.
I never received any special favors from the detectives but during 1979 and 1980[,] Davis was brought to the police headquarters' building . . . so that my two children and I could visit with him for one hour. I was not allowed any conjugal visits with him.
(Hannible Statement at 1-2.) Petitioner misconstrues the Hannible Statement. Ms. Hannible states that she may have testified untruthfully at petitioner's trial, not that she did. Ms. Hannible states that petitioner may have been at the house on December 15, 1979, not that he was not there as petitioner urges. Ms. Hannible states that Davis was an informant who worked with certain detectives, not that he worked for the detectives or was a "paid" witness or a "government agent" as petitioner contends. (Motion to Amend at 2.) Ms. Hannible does not identify any specific deal Davis received in return for her testimony. She states that she did not receive any favors from the detectives other than being allowed to visit Davis with her children for one hour on a few occasions. Ms. Hannible did not state that the detectives told her what to say on the witness stand. Rather, she states that she "believe[s]" she was coerced to testify and "believe[s]" that she had to say certain things "to help Davis." (Hannible Statement at 1.) Ms. Hannible states that Davis did not go to jail because of his help to the detectives, but Davis did serve jail time. Ms. Hannible specifically states that the detectives "never told me to lie."Id. Ms. Hannible does not identify any specific deal or other specific information regarding a deal in her statement.
The court finds that the Hannible Statement does not prove that a "deal" existed between the prosecution and Carl Davis. Ms. Hannible denies any agreement between the prosecution and herself that her testimony was being given in exchange for leniency for Mr. Davis. Furthermore, her assertion that Mr. Davis had a "deal" with the prosecution is given without any supporting statements or evidence. Moreover, at petitioner's trial, Mr. Davis denied having a deal with the Commonwealth regarding his testimony. (N.T., 1/22/82, at 13.12, 13.26-13.27.) For these reasons this court finds that there exists no support for petitioner's claim that evidence of a "deal" between the prosecution and Mr. Davis was withheld by the government.
B. The Peck Statement. Juanita Peck made a statement dated April 12, 2001 (the "Peck Statement"). Petitioner claims that the Peck Statement reveals that detectives threatened Ms. Peck that they would arrest and charge her son with murder if she failed to testify. He also claims that Peck was high on heroin and speed at the time she testified. Ms. Peck stated, inter alia, as follows:
During December 1979, I was living at the home of Frank Wright on 44th Street, Philadelphia, PA along with my son, Walter Brown and a bunch of other people whose names I cannot now remember.
I knew Bobbie Sims as a friend in 1979 and I was in my room . . . in December 1979 when Sims reportedly shot and killed another man at this house. No one witnessed the shooting and everyone got out of the house. Frank Knight came home. He was half high on drugs at the time and cleaned up the shooting and then rolled the body in a rug and buried the man in the back yard.
At this time of my life I was supporting a $100.00 per day heroin and speed habit and when I testified at Sims' trial I was high on heroin and speed and told this to the detective at the time. I cannot remember this detective's name. I have no recollection what I said during my testimony. For over ten years I have been clean of all drugs.
My son, Walter was fifteen years old at the time of this shooting and had earlier been playing craps with Bobbie Sims at Knight's house. He was held as a witness to the shooting and the detective, whose name I cannot recall, told me he would lock my son up as a conspirator if I did not testify at Sims' trial. Neither my son nor anyone else living at Knight's house were charged with anything.
It is my belief that Sims was not a killer and the shooting was an accident because Bobbie had earlier been playing around with the gun and shot himself in the hand during the shooting.
(Peck Statement at 1.)
According to Ms. Peck, petitioner was at the scene of the murder on December 15, 1979, but she now believes the shooting was an accident because petitioner was playing with the gun and accidentally shot himself in the hand. Ms. Peck has no recollection of her testimony at petitioner's trial. Yet, she claims that she now recalls that she testified against petitioner because the detectives threatened to arrest and charge her son in the crime. The record belies this claim. At the trial, the judge conducted a lengthy evidentiary hearing to determine whether Ms. Peck (then Ms. Brown) desired to be represented by counsel. (N.T., 1/21/82, at 12.14-12.38.) During this hearing, the issue of whether Ms. Peck had been granted immunity by the District Attorney arose. At the conclusion of the hearing, Ms. Peck was granted immunity. Id. During the hearing, Ms. Peck questioned whether her son also had been granted immunity from prosecution related to the killing of Calvin Cliett. The following colloquy took place:
The court notes that Ms. Peck's statement that petitioner shot himself in the hand accidentally, contradicts petitioner's assertion that he was shot in the hand when he was robbed by an unidentified individual. See Commonwealth v. Sims, No. 1513 EDA 2000, slip op. at 6 (Pa.Super.Ct. Mar. 2, 2001).
Witness (Ms. Peck): Your Honor, I'd like to know if my son will be indicted on this case.
The Court: Well, that assurance has been put on the record that you would not.
Defense Counsel: That's not her question. She asked about her son.
Witness: Will my son be indicted in this case?
District Attorney: Miss Brown, the order of immunity goes to the testifying witness. . . . I can't tell you that your son will be indicted. I don't know that he will be indicted. He hasn't been indicted. I have no reason to believe that he will or no reason to believe that he will not, and the point is that under the law if you are granted immunity, the immunity is granted to you, and we can't grant immunity to your son by virtue of your testimony. Do you understand what I just said?
Witness: Yes.
Id. at 12.25-12.26. After lengthy discussion, Ms. Peck stated on the record that: "I am alright with the immunity, and I believe if any further action, you know, would transpire from this, I think that I can do it now." Id. at 12.29. Later, Ms. Peck acknowledged before the jury that the Commonwealth granted her immunity from prosecution relating to Calvin Cliett's murder, and that no other deals had been made with her. Id. at 12.65. The Peck Statement does not establish that a deal existed between Ms. Peck and the prosecution to protect her son in exchange for her testimony. This matter was thoroughly explored at the trial and it is clear from the record that Ms. Peck knew that the grant of immunity only protected her from prosecution.
Petitioner also contends that, as set forth in her statement, Ms. Peck was high on heroin and speed when she testified at his trial. During the evidentiary hearing, the District Attorney stated as follows: "[F]rom my conversation with her, I think she does understand what I have said, and I think she is responsive by the answers she has given, and she appears to be an alert, intelligent person." Id. at 12.28. The trial judge then stated: "From as much as I have seen from our conversation with her, she appears to speak well and understand the English language. That is the impression I have." Id. Neither the judge nor the District Attorney, nor any other person at the hearing, including petitioner's counsel, questioned Ms. Peck's intelligence or ability to understand and communicate.
Petitioner's counsel addressed Ms. Peck's drug use at the trial. On crossexamination, Ms. Peck acknowledged that she was addicted to "[h]eroin and methedrine" in December 1979 when Mr. Cliett was killed. Id. at 12.74. She testified at the trial that she no longer used heroin and had not used it for eleven months. Id. at 12.83. Additionally, at the time she testified at petitioner's trial, Ms. Peck was in prison. (N.T., 1/21/82, at 12.70.) Neither petitioner nor Ms. Peck offer any explanation as to how Ms. Peck obtained heroin and speed while in prison prior to giving her testimony.
This court finds that the Peck Statement does not substantiate petitioner's claims, or those of Ms. Peck, that Ms. Peck was high on drugs when she testified or that her testimony was untrue because she thought she was protecting her son from prosecution.
C. A "Deal" With Mr. Davis. Even if a "deal" did exist between the prosecution and Mr. Davis, petitioner failed to satisfy the requirements of Brady. If a deal did exist between Mr. Davis and the prosecution, this would satisfy the first prong of the Brady test which requires that the evidence at issue must be favorable to the defense, either as exculpatory or impeaching evidence. Evidence of the existence of such a "deal" could be used by the defense to impeach the credibility of Mr. Davis and Ms. Hannible.
Petitioner admits that the information in the Peck and Hannible Statements is relevant for impeachment purposes. (Mem. Supp. Pet. at 19, 22.)
The second prong of the Brady test requires that the evidence in question was suppressed, either in good or bad faith, by the prosecution. This second prong of the Brady test would be satisfied if the prosecution failed to disclose to petitioner the existence of a "deal" made with a Commonwealth witness.
The third prong of the Brady test requires that there is a reasonable probability that, had the suppressed evidence been made available to the defense, the trial would have resulted in a different verdict. In the case at bar, the evidence in question could have been used by petitioner to impeach the credibility of Mr. Davis. At trial, petitioner's counsel impeached Mr. Davis' credibility by lengthy discussion of his criminal history and drug use. (N.T., 1/22/82, 13.12-13.15, 13.23-13.25.) Although Mr. Davis denied that he "received anything from the District Attorney" in exchange for his testimony, and denied making "any deals" with the District Attorney, see id. at 13.12, petitioner's counsel suggested several times that Mr. Davis' testimony was tainted by a "deal" he had with the prosecution. During cross-examination, petitioner's counsel questioned Mr. Davis about the time period between his meeting with detectives to discuss petitioner's case and his release from prison. Id. at 13.26-13.27. Petitioner testified that he spoke to the police regarding petitioner in January 1981 and was released from prison in March 1981. Petitioner also testified that he was due to be released from prison in March 1981. Id.
During closing argument, petitioner's counsel again stressed, in detail, the timing of Mr. Davis' conversation with detectives about petitioner and his release from prison. (N.T., 1/26/82, 15.121-15.122.) Petitioner's counsel argued as follows:
According to Carl Davis . . . "Mr. Davis, how was it that you came to tell this story in the first place?"
"Well, I was tired of the life I was living."
"Well, what life were you living?"
"Well, hanging around with Bobby Lee Sims."
But, as we got into it further, we saw that he wasn't hanging around with Bobby Lee Sims. He was up in Holmesburg Prison, in Holmesburg Prison. He got out several months after he told this story. Several months afterwards he is on the street.
"Did you get anything in exchange for this story that you told the police?"
"No."
He didn't get anything, just a changed soul.
"I called my lawyer."
Well, if you are doing this civic act of some kind, why call a lawyer? Call the police. "I have some information for you."
What role does a lawyer play in a situation like that? What role do you think his lawyer played in a situation like that? Do you think that he was telling the truth, that he got nothing for coming up with this story? Reasonable doubt. Reasonable doubt.Id.
It is clear from the trial record that petitioner's counsel was able to thoroughly impeach Mr. Davis' testimony on several grounds, including the suspicion that he had a deal with the prosecutors. Therefore, if the prosecution did suppress evidence regarding a "deal" with Mr. Davis it would not establish aBrady violation. Assuming such evidence existed and was suppressed, it would not satisfy the third prong of Brady as it would be immaterial.
It also is clear from the trial record, that defense counsel attempted to impeach Ms. Hannible's testimony. Petitioner's counsel cross-examined Ms. Hannible concerning her relationship with Mr. Davis, and whether she and Mr. Davis discussed the murder prior to Ms. Hannible meeting with the detectives. (N.T., 1/22/82, at 13.91-13.93.) The evidence petitioner claims was suppressed was merely cumulative and there is not a reasonable probability that had the evidence been made available to the defense that the verdict would have been different. Petitioner' first claim should be denied. 2. Claim 2 — PCRA Petition
The Superior Court dismissed petitioner's Brady claim in his fourth PCRA petition finding that it did not satisfy the requirements of 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(vi) since the content of the two affidavits was limited solely to impeachment of the witnesses and did not contain exculpatory evidence. Commonwealth v. Sims, No. 336 EDA 2002, slip op. at 10 (Pa.Super.Ct. Nov. 26, 2002). The court noted that petitioner represented that the "affidavits' only utility is to undercut the credibility of the two witnesses at trial." Id. (citing Brief for Appellant at 12).
While the District Attorney vigorously denies that at the time of the trial any deals existed, other than the immunity agreement with Ms. Peck, she does admit that the witnesses may have believed that their cooperation in the case against petitioner might help them. The Commonwealth correctly points out that a witness' "nebulous expectation of help from the state" is not Brady material. Goodwin v. Johnson, 132 F.3d 162, 187 (5th Cir 1997) (citation omitted). See also Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003) (same); Collier v. Davis, 301 F.3d 843, 848-49 (7th Cir. 2002) (same), cert. denied, 537 U.S. 1208 (2003); Knox v. Johnson, 224 F.3d 470, 482 (5th Cir. 2000) (same), cert. denied, 532 U.S. 975 (2001); Mills v. Singletary, 63 F.3d 999, 1018 (11th Cir. 1995) (same); Lovitt v. True, 2004 WL 1801348, at *15 (E.D. Va. Aug. 6, 2004) (same).
Petitioner's second claim is that his fourth PCRA petition was not time-barred. Petitioner filed his fourth PCRA petition on April 24, 2001. On December 31, 2001, the lower court dismissed the petition as untimely. On appeal, the Superior Court found that the petition was not time-barred, but concluded that the claims raised in the petition were meritless and affirmed the dismissal of the petition. Commonwealth v. Sims, No. 336 EDA 2002 (Pa.Super.Ct. Nov. 26, 2002).
As summarized above, petitioner is correct when he states in his habeas petition that the Superior Court found "that the trial court erred in dismissing the [fourth PCRA] petition as untimely." Id. at 8. However, the court affirmed the dismissal of the petition finding the claims to be meritless. Id. Regardless, petitioner's claim concerning the timeliness of his fourth PCRA petition does not arise under the Constitution or the laws of the United States and, hence, it is not cognizable under 28 U.S.C. § 2254. Petitioner's second claim should be dismissed.
3. Claim 3 — Prosecutorial Misconduct
The petitioner's third claim alleges that the prosecutor committed misconduct when he did not correct perjured testimony from Ms. Hannible and Mr. Davis regarding: (1) whether or not any "deals" existed between the prosecution and Mr. Davis; and (2) at what time they treated petitioner's hand wound on the day of the murder. The District Attorney argues that no deal ever existed and therefore there was no need to correct the testimony of the witnesses. The District Attorney also argues that the hospital records do not show that Ms. Hannible and Mr. Davis lied about what time they saw petitioner on the day of the murder and, even if they did, such a claim is procedurally defaulted and time-barred as it is not based on new evidence, i.e., the Peck and Hannible Statements.
Petitioner never raised these prosecutorial misconduct claims before a state court and therefore they are not exhausted. Since the time has passed to file a PCRA petition raising these unexhausted claims, they are procedurally defaulted. Petitioner submits no facts or arguments sufficient to excuse this default. The claims also are time-barred under the AEDPA and should be dismissed. Notwithstanding, the court will examine the merits of the claims as if they were properly exhausted. See 28 U.S.C. § 2254(b)(2).
Petitioner's first claim of prosecutorial misconduct is that the prosecutor committed misconduct when he failed to correct testimony given at trial that Mr. Davis did not receive a "deal" from the government in return for his testimony. Petitioner's sole source of evidence for this claim is the previously discussed Hannible Statement. As was noted earlier, the court does not find that the Hannible Statement establishes that a "deal" ever existed between the government and any of the witnesses. In her Statement, Ms. Hannible merely states her thoughts and suspicions some twenty years after the fact. She provides no details or other evidence to corroborate her suspicions that Mr. Davis received favorable treatment because of his and her testimony. Moreover, Mr. Davis consistently denied that he had a deal with the prosecutors. The court finds this claim to be meritless, and thus, it should be denied.
As to his second claim of prosecutorial misconduct, petitioner is incorrect in his contention that the hospital records show that Mr. Davis and Ms. Hannible lied regarding what time on December 15, 1979 they treated petitioner's hand wound. Petitioner urges that the hospital records show that petitioner was at the hospital receiving treatment for his hand wound at the same time that these two witnesses claimed they were treating his wound. (Petition at ¶ 12.) According to the testimony of the hospital's records custodian at trial, petitioner arrived at the hospital at or around 5:35 p.m. on the night in question. (N.T., 1/22/82, 13.51.) During the trial, Ms. Hannible testified that she and Mr. Davis treated petitioner's hand wound in the early morning, around 5 or 6 a.m. Id. at 13.91. Mr. Davis testified that petitioner came to his home the morning of December 15, 1979 at approximately 5:30 to 6:30 a.m. Id. at 13.31. The hospital records indicate that petitioner arrived at the hospital in the evening of December 15, 1979, not the morning. The hospital records do not contradict the testimony of these two witnesses regarding when they treated petitioner's hand wound on December 15, 1979. Therefore, the prosecutor could not have committed misconduct by failing to correct testimony known to be false because the testimony given was not false.
Accordingly, for all of the above reasons, petitioner's third claim should be denied. 3. Claims 4 and 5 — Ineffective Assistance of Counsel
Petitioner's final two claims are that both his trial and appellate counsel were ineffective. Petitioner claims his trial counsel was ineffective for questioning a Commonwealth witness in such a manner as to elicit evidence of other criminal behavior by the petitioner and, by allowing the testimony of the hospital's records custodian. Petitioner claims that his appellate council was ineffective for failing to raise a claim that his trial counsel was ineffective and unprepared to cross-examine the Commonwealth's witnesses. Petitioner also claims that all of his counsel were ineffective for failing to point out the intimate relationship between Mr. Davis and Ms. Hannible.
The District Attorney correctly argues that all of these claims are time-barred and procedurally defaulted. Petitioner has not alleged cause to excuse this procedural default and, therefore, the claims should be dismissed. Moreover, on consideration of the merits of the claims, they should be denied. See 28 U.S.C. § 2254(b)(2).
A. Evidence of Additional Crimes. On direct appeal, petitioner claimed that the trial court erred in not ordering a mistrial after his trial counsel elicited testimony from another witness that petitioner had shot another man in the head. The Superior Court determined that the testimony had no prejudicial impact on the jury and dismissed the appeal. The Superior Court stated as follows:
Applying these criteria to the testimony in the case sub judica, we find that the remarks objected to did not rise to the level of depriving appellant of a fair and impartial trial and are therefore not grounds for a mistrial.
A review of the record reveals that the reference was isolated and not emphasized by appellant's counsel, the prosecutor, nor the court. There was no issue made of the matter to the jury and no other reference to the testimony was made. When considered in light of the entire testimony of the witness, the remark was brief and made only in passing by the witness. Thus, any prejudicial effect was minimized. . . . The reference was also ambiguous and contained in an unresponsive answer which further precluded any prejudicial effect on the jury . . .
The witness' answer was not elicited by the Commonwealth, but invited by the question posed by counsel for appellant. . . . Also, the court offered to give cautionary instructions, but appellant declined for tactical reasons.
Further, any inference that appellant had engaged in prior criminal conduct was innocuous in view of the overwhelming evidence of guilt presented by the Commonwealth.
Under the circumstances of this case, we find that the trial court did not abuse its discretion in determining that the testimony had no prejudicial impact in the jury's verdict.Commonwealth v. Sims, No. 3433 Phila. 1982, slip op. at 7-10 (Pa.Super.Ct. April 12, 1985).
Petitioner argued in his first PCRA petition that trial counsel was ineffective for failing to request a limiting instruction when Mr. Davis suggested that petitioner was involved in another shooting. The Superior Court dismissed the claim, finding that it was "finally litigated" on direct appeal and that petitioner "may not relitigate the same claim again under a new guise."Commonwealth v. Sims, No. 4878 Phila. 1997, slip op. at 6 (Pa.Super.Ct. Mar. 22, 1999). See also 42 Pa. Cons. Stat. Ann. § 9544(a)(2).
The PCRA's prohibition against previously litigated and waived claims is an adequate and independent state ground precluding federal habeas review. Lines v. Larkins, 208 F.3d 153, 164-66 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996) (state court finding that unexhausted claim is "previously litigated" under PCRA constitutes a procedural default barring federal habeas review). Therefore, petitioner's claim, because it was deemed "finally litigated" and waived under the PCRA, is procedurally defaulted and should be dismissed as petitioner does not present any evidence that would lead the court to excuse this default. Moreover, considering the merits of petitioner's claim, this court does not find that the state court's conclusion resulted in a decision contrary to, or an unreasonable application of, clearly established Federal law, or was based on an unreasonable determination of the facts in light of the evidence presented. Petitioner's claim should be denied.
B. Testimony of Records Custodian. Petitioner claims that his trial counsel was ineffective for allowing the testimony of the hospital's records custodian. Since the court, not petitioner's counsel, "allowed" this testimony, the court assumes petitioner means to claim that his counsel was ineffective for failing to object to the testimony of the records custodian. The court first notes that petitioner has offered no reason why this testimony should not have been admitted. More importantly, the court finds this claim to be time-barred. As discussed earlier, all of petitioner's claims not based on the new evidence must be dismissed as time-barred. Petitioner previously raised this claim on direct appeal. The Superior Court did not consider the merits of the claim on direct appeal finding that petitioner had not preserved the claim for appeal. Commonwealth v. Sims, No. 3433 Phila. 1982, slip op. at 2 and 2 n. 2 (Pa.Super.Ct. April 12, 1985). In his third PCRA petition, petitioner alleged that the Commonwealth withheld his hospital records and refused to provide them to petitioner. The court dismissed his third petition as untimely, and the Superior Court affirmed. Commonwealth v. Sims, No. 1513 EDA 2000 (Pa.Super.Ct. Mar. 2, 2001). To the extent the merits of this claim were not raised in the state court, the claim is unexhausted and is now procedurally defaulted.
The Superior Court also stated as follows regarding petitioner's claim that the Commonwealth refused to provide his hospital records to him:
Sims has given no reason why he was purportedly unable to obtain these records through the exercise of due diligence, prior to his first request in 1999. . . . Ostensibly, the medical records were equally available to Sims at the time of trial. In addition, a review of the transcript reveals, and Sims concedes, that the Commonwealth presented the records custodian of the hospital at trial for the purpose of establishing that Sims had suffered a gunshot wound. (N.T., 1/22/82, at 13; 1/26/82, at 15.) As the records custodian was subject to cross-examination by Sims's counsel, the basis for Sims's argument that the Commonwealth improperly withheld this evidence is unclear.Commonwealth v. Sims, No. 1513 EDA 2000, slip op. at 6 (Pa.Super.Ct. Mar. 2, 2001). This court also notes that a copy of the hospital records was admitted into evidence as Commonwealth's Exhibit No. 21 and was available to defense counsel. (N.T., 1/22/82, at 13.49.)
Petitioner's third PCRA petition was dismissed as untimely. A federal habeas court will not review an issue of federal law raised by a state prisoner if the decision of the state court rests on a state law ground that is "independent of the federal question and adequate to support the judgment."Coleman, 501 U.S. at 729. The PCRA statute of limitations has been found to be an adequate and independent state ground precluding federal habeas review. Lines v. Larkins, 208 F.3d at 165-66 (claims time-barred under the PCRA are procedurally defaulted). Since petitioner has failed to present any evidence to excuse this default, the claim must be dismissed. See Teague v. Lane, 489 U.S. 288, 298 (1989).
Moreover, the claim should be denied on its merits since the facts of the case do not support petitioner's claim. Petitioner claims that counsel allowed perjured testimony by witnesses Davis and Hannible that they treated petitioner's hand wound at 5:00 p.m. on December 15, 1979, when the hospital reports indicated that he was admitted into the hospital at 11:00 a.m. on that same day. (Petition at ¶ 12.) As discussed above, the record belies petitioner's argument. Both witnesses testified that they treated petitioner's hand wound at approximately 5:30 to 6:30 a.m. on December 15, 1979, not in the evening. (N.T., 1/22/82, at 13.31, 13.91.) The hospital's records custodian testified that petitioner was admitted into the hospital at 5:35 p.m. on December 15, 1979. Id. at 13.51. The records custodian's testimony does not contradict the testimony of the witnesses. As noted above, counsel cannot be found ineffective for failing to raise a futile objection. Petitioner's claim should be denied. C. Counsel Unprepared to Cross-Examine Commonwealth Witnesses. Petitioner next claims that all appellate counsel were ineffective for failing to raise a claim that trial counsel was ineffective by being unprepared to cross-examine Commonwealth witnesses, including failing to bring out the nature of the relationship between Mr. Davis and Ms. Hannible. Petitioner never raised these claims in the state courts and thus failed to exhaust his state court remedies. Therefore, these claims are procedurally defaulted and should be dismissed as petitioner brings forth no evidence that suggests the defaults should be excused. The claims also are time-barred.
However, considering the merits of the claims, they also should be denied. Petitioner contends that counsel was ineffective when he failed to cross-examine witnesses Davis and Hannible about their "intimate relationship." (Motion to Amend at 2.) The record reveals that Ms. Hannible admitted in her direct testimony that Carl Davis was her husband. (N.T., 1/22/82, at 13.87.) On cross-examination by petitioner's counsel, Ms. Hannible testified that she was Davis's common law wife. Id. at 13.91. Since trial counsel explored the relationship between the witnesses at trial, counsel was not ineffective for this reason. Appellate counsel cannot be found ineffective for failing to pursue a futile issue on appeal. Petitioner's claim should be denied.
To the extent petitioner contends that PCRA counsel was ineffective, those claims should be denied since petitioner has no Sixth Amendment right to effective assistance of counsel in state post-conviction proceedings. Tillet v. Freeman, 868 F.2d 106, 108 (3d Cir. 1989); David v. Price, 1998 WL 404546, at *3 (E.D. Pa. July 15, 1998). Hence, any claim of ineffective assistance of PCRA counsel does not arise under the Constitution or laws of the United States, and is not cognizable under 28 U.S.C. § 2254.
Petitioner also appears to argue that trial counsel was ineffective for failing to uncover that Mr. Davis was a "government agent" and a "paid" witness who had assisted the Commonwealth by testifying at other trials. (Motion to Amend at 2.) Again, the record does not support petitioner's argument. Petitioner provides no evidence which even suggests that Mr. Davis was a "government agent" or a "paid" witness. As noted above in detail, the record contains no evidence that the Commonwealth and Mr. Davis had a "deal." In fact, even faced with the lack of evidence regarding a deal between Davis and the Commonwealth, defense counsel vigorously questioned Davis regarding any such deal and strongly argued in his closing argument that such a deal existed. Consequently, counsel cannot be found ineffective for failing to pursue the theory that Davis had a deal or was working with the Commonwealth, when counsel did, in fact, explore those areas during the trial.
III. CONCLUSION
Accordingly, for all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 28th day of September, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).