Opinion
Civil Action No. 03-4658.
June 30, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Dallas, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
FACTS AND PROCEDURAL HISTORY :
On July 15, 1997, after a jury trial before the Honorable David Savitt, Hayes was convicted of first degree murder, possessing an instrument of crime, and carrying a firearm on a public street. The charges arose from the shooting death of Michael Blagman on November 2, 1996. The key witness at trial was Lorenzo Abner, the decedent's nephew, who was with Mr. Blagman at the time of the shooting. During the trial, Mr. Abner testified that he and Mr. Blagman purchased some crack cocaine from Hayes at a drug house at 27th and Eyre Streets on the day of the shooting. (N.T. 7/10/97, 146-47). After going upstairs and smoking their crack, they left the house and went to Mr. Abner's. Later in the day, the two returned to purchase more crack. An argument ensued between Mr. Blagman and Hayes because Mr. Blagman failed to knock when he entered the house. (N.T. 7/10/97, 149). Hayes informed the two that he did not have any more product to sell. (N.T. 7/10/97, 149). Again, words were exchanged between Hayes and Blagman. Mr. Abner testified that Hayes held a semiautomatic pistol in his hands when he and Blagman were in the house. As they left the house, Abner heard shots from behind him. He saw the victim fall to the ground and he started running. When Abner turned back, he saw Hayes pointing a gun in his direction, at his head, but Hayes did not fire at Abner. (N.T. 7/10/97, 149-51). Judge Savitt sentenced Hayes to life imprisonment on the murder charge, and concurrent 1-2 year sentences for each of the remaining charges.
Hayes, through counsel, filed a direct appeal, claiming that the trial court erred in failing to grant a mistrial when the prosecutor made improper remarks in his closing. On September 22, 1998, the Superior Court affirmed the judgment of sentence.Commonwealth v. Hayes, 3485 Phila. 1997. The Supreme Court of Pennsylvania denied allocatur on July 8, 1999. Commonwealth v. Hayes, 532 EAL 1998.
On May 1, 2000, Hayes filed a pro se petition for relief pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. Appointed counsel filed an amended petition presenting several allegations of ineffective assistance of counsel:
1. Counsel failed to request a "mere presence" jury instruction;
2. Counsel failed to request a cautionary instruction regarding the credibility of a witness;
3. Counsel failed to adequately cross examine a Commonwealth witness concerning his drug use on the night of the shooting; and
4. Counsel failed to investigate and secure the testimony of a witness interviewed by the police on the night of the incident.
On July 7, 2002, Judge Savitt dismissed the petition. The Superior Court affirmed the denial of collateral relief on June 18, 2003. Commonwealth v. Hayes, 2356 EDA 2002. Hayes did not seek discretionary relief in the state Supreme Court.
On August 12, 2003, Hayes filed this petition for habeas corpus relief, claiming:
1. The prosecutor failed to divulge exculpatory evidence;
2. Counsel was ineffective for failing to investigate and secure the testimony of a witness interviewed by the police on the night of the crime;
3. Counsel was ineffective for failing to request a "mere presence" instruction and a "guilt by association" instruction;
4. Counsel was ineffective for failing to request an instruction regarding the credibility of a Commonwealth witness.
Hayes also presents a layered claim of counsel ineffectiveness, asserting that PCRA counsel (described in the petition as "appeal counsel") failed to allege counsel's ineffectiveness for failing to request an instruction regarding the credibility of a Commonwealth witness. Since Hayes was represented by trial counsel throughout his direct appeal, the first opportunity to bring a claim alleging the ineffectiveness of trial counsel was in the PCRA action. The ineffectiveness of PCRA counsel does not provide a basis for habeas corpus relief. 28 U.S.C. § 2254(i);Pennsylvania v. Finley, 481 U.S. 551, 555 (1986). Thus, Hayes is not entitled to relief on this layered ineffectiveness claim. Moreover, as discussed later in this Report, the underlying claim regarding an additional credibility instruction is without merit.See infra, at 9-10.
DISCUSSION :
Ordinarily, the federal court will not address the merits of a petitioner's claims unless he has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1). This requires that the petitioner fairly present his claims to the state courts in order to give the state the "initial opportunity to pass upon and correct" any alleged violations of petitioner's rights. Picard v. Conner, 404 U.S. 270, 275 (1971) (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).
It is clear that Hayes's first claim — that the prosecutor failed to divulge exculpatory evidence — is unexhausted. Hayes failed to present this claim to any state court. However, it is equally clear that the claim lacks all merit. In his claim, Hayes complains that the prosecutor failed to disclose the statement that Nikki Anderson, a witness to the crime, gave to the police on the night of the incident. Contrary to Hayes's assertion, the statement was turned over in response to discovery requests on February 5, 1997, more than five months prior to the trial. See Letter dated 2/5/97, attached to Response, at Exhibit D. Thus, Hayes's first claim, that the prosecutor withheld potentially exculpatory evidence, fails.
The District Attorney also argues that all of Hayes's remaining claims are unexhausted because he failed to present any of these claims to the Pennsylvania Supreme Court. Moreover, because Hayes does not have any avenue through which to present the claims in the state courts at this time, the District Attorney argues that all his claims are procedurally defaulted.
The exhaustion issue is complicated in Hayes's case because, in May of 2000, while Hayes's PCRA petition was pending in the trial court, the Pennsylvania Supreme Court declared, in Administrative Order 218, that appeal to the highest state court is not a necessary requirement for exhaustion. Hayes presented his claims to the Superior Court in his collateral appeal, but failed to seek discretionary review in the Pennsylvania Supreme Court. The District Attorney argues that, although the Third Circuit has determined that Administrative Order 218 does not apply retroactively, the Circuit Court has yet to determine whether it applies prospectively, to cases appealed after the adoption of Order 218 in May of 2000, like Hayes. Therefore, the District Attorney argues that the claims Hayes failed to present to the Pennsylvania Supreme Court are unexhausted.
Pennsylvania Rule 218 of Judicial Administration provides as follows:
We hereby declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. When a claim has been presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief.
As the District Attorney asserts, the Third Circuit has held that Administrative Order 218 does not apply retroactively, see Wenger v. Frank, 266 F.3d 218, 225 (3d Cir. 2001), and has not specifically addressed its application prospectively. However, the judges of our District Court have found that Order 218 does not require a petitioner to present his claims to the Pennsylvania Supreme Court for the claims to be considered exhausted.
We likewise conclude that principles of deference to Supreme Court dicta and of comity towards the state courts, which is the basis of the exhaustion doctrine, require us to respect the pronouncement of the Pennsylvania Supreme Court in Order No. 218. We therefore conclude and hold that Order No. 218 removes a petition for discretionary review from one full round of Pennsylvania's ordinary review process and therefore makes discretionary review unavailable for the purpose of the exhaustion requirement in § 2254.Mattis v. Vaughn, 128 F. Supp.2d 249, 261 (E.D. Pa. 2001) (Van Antwerpen, J.), aff'd 80 Fed. Appx. 154 (3d Cir. 2003). See also Wilson v. Vaughn, 304 F. Supp.2d 652, 658 (2004) (Schiller, J.); Lambert v. Blackwell, 2003 WL 1618511 *25 (E.D. Pa. Apr. 1, 2003) (Brody, J.); Perez Leon v. Benning, 2003 WL 21294901 *1 (E.D. Pa. Feb. 24, 2003) (Kelly, J.); Riley v. Myers, 2002 WL 31845865 *5 (E.D. Pa. Dec. 18, 2002) (Shapiro, J.). I find, not only the plethora of opinions, but also the reasoning underlying the opinions compelling. Exhaustion is based upon comity. See Picard, supra. Because the Pennsylvania Supreme Court has determined that an allocatur petition is unnecessary to permit federal review, such review does not undermine the state courts Thus we will proceed to address the merits of Hayes's remaining claims.
In all of his remaining claims, Hayes alleges that trial counsel was ineffective. Such claims are governed by Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court held that counsel will be considered ineffective only when the petitioner establishes that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id, at 687. In considering Hayes's habeas petition, the federal court may not grant him relief unless the state court's determination of these issues was contrary to or involved an unreasonable application of theStrickland standard, or was based on an unreasonable determination of the facts. Because we find that the state court properly considered Hayes's claims and determined that they were without merit, we will recommend that his petition be denied.
Counsel's Failure to Investigate and Call Nikki Anderson
Hayes complains that counsel was ineffective for failing to interview Nikki Anderson and secure her attendance at trial. Ms. Anderson provided a statement to the police on the night of the shooting, in which she stated that she saw four black males arguing outside her house. She believed two of the individuals, including the decedent, were attempting to rob one of the other men. According to Ms. Anderson's statement, the intended robbery victim pulled out a gun and shot. One of the two alleged robbers was hit and the other used the decedent as a shield. (Anderson Investigation Interview Record). Hayes contends that counsel was ineffective for failing to locate and call Ms. Anderson as a witness because her testimony would contradict that of the other witnesses to the crime.
The state courts concluded that counsel was not ineffective because Hayes failed to establish that the witness was available, that she would have testified, and that her absence prejudiced Hayes's trial. As previously stated, in order for Hayes to be entitled to relief, the federal court must find that the state court's determination of this issue was contrary to or involved an unreasonable application of federal law, or that the decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
After reviewing the trial transcript and Ms. Anderson's statement, we find that the state court's determination is consistent with the Strickland standard and was not unreasonable in light of the evidence. First, we note, as did the Superior Court, that Hayes has presented no evidence to establish that Ms. Anderson was available and willing to testify on his behalf. Where a petitioner contends that counsel was ineffective for failing to call a witness, he must establish that the witness was willing and available to testify. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 298 (3d Cir. 1991) (counsel was not ineffective for failing to call a witness absent a showing that such witness was available and the testimony was forthcoming);United States v. Dawson, 857 F.2d 923, 928 (3d Cir. 1988) (relief unavailable where defendant failed to establish that witnesses were ready to volunteer testimony or that if called they would testify).
In addition, Hayes has failed to demonstrate that his defense was prejudiced by counsel's failure to obtain testimony from this witness. As previously stated, Ms. Anderson described the scene that she saw from the second floor window of her apartment.
There were 4 b/males. 2 males I think were trying to robb [sic] one of the males. There was arguing outside about some money.
The person who was shot and another male wearing a black fuffy [sic] jacket was trying to rob a b/m 30 yrs (NFD) who pulled out a handgun.
The man with the fuffy [sic] jacket grabbed the man who was shot and stood behind him (like a shield).
(Anderson Investigation Interview Record).
Anderson did not give any detailed description of the perpetrator. Moreover, the detective who interviewed her stated that she "heard the shots," then "looked out her window" to see the victim lying in the street. (Investigation Interview Record, Sgt. William Frazier, at 2). Thus, if she had given testimony consistent with her statement, she would have been subject to cross examination based on Sergeant Frazier's report that she did not witness the shooting, only its aftermath. Additionally, considering the eyewitness testimony of Lorenzo Abner, the decedent's nephew, who was with the decedent at the time of the shooting, Ms. Anderson's sketchy observations would not have changed the outcome of the case as required byStrickland. Counsel's Failure to Request a "Mere Presence" or "Guilt by Association" Instruction
Next, Hayes argues that counsel was ineffective for failing to request a "mere presence" or "guilt by association" charge. Considering the eyewitness testimony placing the gun in Hayes's hand and him firing the weapon, striking the victim, which caused his death, Petitioner's claim seems a bit absurd. In short, there was no need for a "mere presence" or "guilt by association" charge because Hayes never presented such a scenario. His defense was to attack his identification by the witnesses.
Moreover, as the Superior Court found, the court properly explained the elements of the crimes, explained that the defendant could not be found guilty unless the jury found that he committed the crimes and had the intent to do so.
In particular, the trial court instructed the jurors that before they could convict Appellant, they had to find he possessed a firearm, that he possessed it with the intent to employ it criminally, and that he not only used the firearm on a vital part of the victim's body, but that he intended to do so.Commonwealth v. Hayes, 2356 EDA 2002, at 7. The Superior Court's recitation is consistent with the charge as given by the trial court. (N.T. 7/14/97, 103-05). With such an instruction before the jury, they could not have found Hayes guilty if he were merely present at the scene or associating with the actual shooter. Thus, Hayes cannot establish that counsel's performance in failing to request such an instruction was deficient or caused him prejudice.
Counsel's Failure to Request and Instruction Regarding Credibility of a Witness
Finally, Hayes argues that counsel was ineffective for failing to request cautionary instructions regarding the testimony of Lorenzo Abner, the decedent's nephew, who was with him at the time of the shooting. Review of the court's instructions to the jury reveals that the court did instruct the jury that they could consider Mr Abner's prior convictions in determining his credibility. (N.T. 6/14/97, 118-19). However, Hayes argues that this instruction was not sufficient.
Rather, in a very convoluted argument, Hayes seems to claim that the jury should have been instructed to view the testimony with further suspicion because, according to Hayes, Mr. Abner received a more lenient sentence based on his testimony or lied to avoid the consequences of his felonious behavior. The Superior Court found that Hayes was not entitled to any charge in addition to the standard instruction on credibility, the crimen falsi charge previously discussed, and a Kloiber charge, having to do with Mr. Abner's identification testimony.
Appellant hypothesizes that the only possible reason Mr. Abner was not charged with this offense [purchasing drugs] is that the prosecution must have made some sort of deal with him to testify at Appellant's trial. Appellant presents no evidence to support the accusation that the Commonwealth made a favorable deal with Mr. Abner but failed to disclose the purported agreement to the Appellant.
It is unclear whether Hayes is referring to the fact that Mr. Abner admitted that he and the decedent had purchased cocaine or whether he is referring to an alleged robbery that the decedent and Mr. Abner were undertaking at the time Mr. Blagman was killed. There is no evidence in the record to support the latter, other than Hayes's own assertion and the sketchy description given of the scene by Ms. Anderson, which was discussed earlier in this Report. Without evidence to support the theory, counsel can not be considered ineffective for seeking a jury instruction based on pure conjecture.
A Kloiber charge, referring to Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875 (1954), is an instruction that the jury should consider an equivocal identification with caution.
. . .
In the present case, the trial court charged the jury in a manner consistent with Pennsylvania Suggested Standard Jury Instruction (Criminal) 4.17 concerning the general credibility of witnesses. N.T., 7/14/97, at 108-13. The trial court explicitly charged on the jury's duty to weigh credibility in light of a witness's possible bias or prejudice and the possibility that a witness may have a motive to willfully and deliberately give false evidence. Id. at 110-112. As noted above, the trial court also gave a Kloiber charge concerning Mr. Abner's identification testimony. No more was required. We will not find counsel ineffective for failing to secure a jury charge his client was not entitled to receive.Commonwealth v. Hayes, 2356 EDA 2002, at 12-13.
In Commonwealth v. Thompson, 739 A.2d 1023, 1031 (Pa. 1999), the Pennsylvania Supreme Court held that the jury should be instructed that it could use pending criminal charges to determine if a witness had a potential bias in aiding the Commonwealth. However, here there was no evidence that the Commonwealth made any deal with Mr. Abner. Thus, the court had no basis to inform the jury that such a deal existed or that the jury could infer a motive underlying Mr. Abner's testimony. The court's charge included an instruction to consider whether any witness was biased, prejudiced, or had a motive to favor one side or the other, as required by Pennsylvania law. (Tr. 7/14/97, 110). See Commonwealth v. Gibson, 720 A.2d 473, 481 (Pa. 1998) (jury instruction on credibility adequate if it conveys the concept that "the personal interest of a witness may have an impact upon his testimony and should be taken into account in making credibility determinations."). Because the court fully and adequately instructed the jury regarding the credibility of witnesses, counsel cannot be deemed ineffective for failing to request a charge which was not warranted.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 30th day of June ____, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
JAMES KNOLL GARDNER, J.AND NOW, this ____ day of ____, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of appealability.