Opinion
CIVIL ACTION NO. 02-8389
November 26, 2003
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution at Coal Township, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On October 6, 1980, following a jury trial presided over by the Honorable Thomas A. Pitt, Jr. of the Chester County Court of Common Pleas, petitioner was convicted of murder in the first degree and criminal conspiracy. Specifically, petitioner was found guilty of participating in the murder and disposition of the body of an acquaintance who intended to implicate petitioner and his co-conspirator in a series of burglaries and other crimes that the three had committed together. On October 29, 1981, the Honorable John E. Stively, Jr. sentenced petitioner to life imprisonment.
Petitioner appealed to the Pennsylvania Superior Court, putting forth the following three issues:
A. Whether the evidence was sufficient to convict petitioner of murder in the first degree;
B. Whether the court erred in refusing to allow the defense to reopen its case to offer into evidence a defense exhibit; and
C. Whether the court erred in refusing to allow psychiatric testimony from a defense witness concerning the alleged state of mind of the petitioner's co-defendant.
Upon consideration of these claims, the Pennsylvania Superior Court affirmed the convictions in an unpublished Memorandum Opinion on August 5, 1983. Thereafter, the petitioner's Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on January 16, 1984.
On or about August 8, 1988, petitioner filed a pro se petition seeking post-conviction relief. The judge assigned to the petition died before any action was taken, and the petition was not reassigned. On January 10, 1997, petitioner filed a second pro se petition. Present counsel was appointed to represent petitioner, and counsel subsequently filed an amended petition for post-conviction relief on April 12, 1999, dropping the above cited claims and alleging ineffective assistance of trial counsel. On June 19, 2000, the Honorable Paula Francisco Ott of the Chester County Court of Common Pleas denied this petition.
Counsel for petitioner contends that this pro se petition was filed August 23, 1988. It is unclear from the record which date is correct, however, the exact date is of no import in this case.
Petitioner appealed to the Pennsylvania Superior Court, raising four claims of ineffectiveness:
A. Failure to request the "corrupt and polluted source" instruction;
B. Failure to impeach Commonwealth witness Heinzman with evidence of bias or motive to lie;
C. Failure to present a psychologist in petitioner's case in chief; and
D. Failure to request a "voluntary intoxication" instruction.
Upon consideration of these claims, the Pennsylvania Superior Court affirmed Judge Ott in an unpublished Memorandum Opinion on May 2, 2001. On November 15, 2001, the Pennsylvania Supreme Court denied petitioner's Petition for Allowance of Appeal.
On November 8, 2002, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging that his convictions and sentence violate the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, petitioner claims that trial counsel was ineffective for failing to pursue a defense of voluntary intoxication and failing to request a jury instruction on the defense of voluntary intoxication. Respondent retorts that these claims do not provide a basis for habeas relief.
II. DISCUSSION
Before a federal court may grant habeas relief to a state prisoner, the habeas petitioner must exhaust all available state remedies. 28 U.S.C. § 2254 (b); O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999);Vasquez v. Hillery, 474 U.S. 254 (1986); Pickard v. Connor, 404 U.S. 270 (1971). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. at 842; Pickard, 404 U.S. at 275. In other words, a petitioner must invoke "one complete round of the State's established appellate review process," in order to exhaust remedies.O'Sullivan, 526 U.S. at 845. The policy behind the total exhaustion doctrine is rooted in the notion of comity: the state must be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan, 526 U.S. at 842; Pickard, 404 U.S. at 275.
Exhaustion does not require the highest state court rule on the merits of a petitioner's claims, but only that said court be given the opportunity to do so. Swanger v. Zimmerman, 750 F.2d 291 (3rd Cir. 1984). A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts.Santana v. Fenton, 685 F.2d 71. 73-74 (3rd Cir. 1982Xcert. denied, 459 U.S. 1115, 103 S.Ct. 750 (1983). All of petitioner's claims have been exhausted in state court.
III. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for writ of habeas corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues — a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court, as follows:
An application for a writ of habeas corpus on behalf of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless that 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).
Petitioner argues that because the PCRA Court used the three-part prejudice standard laid out in Commonwealth v. Collins, 546 Pa. Super. 193, 687 A.2d 1112 (1996), in lieu of that articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 So. Ct. 2052, 80 L.Ed.2d 674 (1984), the AEDPA does not apply to his claim for ineffective assistance of counsel, and therefore this claim must be reviewed de novo. However, the standards in Collins andStrickland are virtually identical. Under Collins, petitioner must: (1) demonstrate his asserted claim is of arguable merit; (2) prove counsel had no reasonable basis for his act; and (3) demonstrate that due to counsel's lack of reasonable basis, the Petitioner has suffered prejudice such that the outcome of the proceedings would have differed but for counsel's ineffectiveness. J. Ott's opinion at 4. Strickland requires a petitioner to show "(1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1997), citing Strickland, 466 U.S. at 694. Even if theCollins standard is more stringent, as petitioner contends, it is of no matter since petitioner would not have met theStrickland standard either. As will be shown in this Report and Recommendation, there was not a reasonable probability that but for counsel's error, the result of the proceedings would have been different.
Petitioner argues that because the PCRA Court used the three-part prejudice standard laid out in Commonwealth v. Collins, 546 Pa. Super. 193, 687 A.2d 1112 (1996), in lieu of that articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 So. Ct. 2052, 80 L.Ed.2d 674 (1984), the AEDPA does not apply to his claim for ineffective assistance of counsel, and therefore this claim must be reviewed de novo. However, the standards in Collins andStrickland are virtually identical. Under Collins, petitioner must: (1) demonstrate his asserted claim is of arguable merit; (2) prove counsel had no reasonable basis for his act; and (3) demonstrate that due to counsel's lack of reasonable basis, the Petitioner has suffered prejudice such that the outcome of the proceedings would have differed but for counsel's ineffectiveness. J. Ott's opinion at 4. Strickland requires a petitioner to show "(1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1997), citing Strickland, 466 U.S. at 694. Even if theCollins standard is more stringent, as petitioner contends, it is of no matter since petitioner would not have met theStrickland standard either. As will be shown in this Report and Recommendation, there was not a reasonable probability that but for counsel's error, the result of the proceedings would have been different.
The United States Supreme Court, in the case of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded to state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Williams, 529 U.S. at 404-405. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: 1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or 2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. She explained, however, that this "contrary to" clause does not encompass the "run-of-the-mill-state-court decisions" applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case."Id. At 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of § 2254(d) (1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: 1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or 2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply."Williams, 529 U.S. at 407-408. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly-established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. At 410.
IV. MERITS OF CLAIMS
A. Trial counsel was Ineffective for failing to request a jury instruction on voluntary intoxication and failing to present to the jury readily available expert testimony as to petitioner's organic brain disease.
Jordan has raised the above claims of ineffective assistance of trial counsel. When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, reh'g denied, 467 U.S. 1267, 104 So. Ct. 3562 (1984). The Sixth Amendment to the United States Constitution recognizes that every criminal defendant has the right to effective assistance of counsel. U.S. Const., amend. VI. The Supreme Court has set forth a two-prong test — both parts of which must be satisfied — to determine whether counsel was ineffective.Strickland, 466 U.S. at 668. Under the first prong, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge 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. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 107, 76 S.Ct. 158, 163-164 (1955)).
A convicted defendant asserting ineffective assistance must, therefore, identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. Then, the reviewing court must determine whether, in light of all circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. Under Pennsylvania law, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Wilson, 393 A.2d 1141, 1143 (Pa. 1978); Commonwealth v. Rice, 318 A.2d705 (1974).
Under the second prong, the petitioner must demonstrate that his counsel's deficient performance prejudiced the defense.Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. At 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. At 697.
Considering Jordan's claims that his trial counsel was ineffective for failing to pursue a defense of voluntary intoxication and failing to request a jury instruction on the defense of voluntary intoxication, the Superior Court found no merit to these issues, and affirmed Judge Ott's denial of petitioner's request for post-conviction relief. We also find no merit to these claims. Counsel's performance neither fell below the range of competence normally demanded of attorneys in criminal cases nor resulted in any prejudice to the petitioner.
A petitioner charged with first degree murder in the state of Pennsylvania does not necessarily have the right to claim intoxication as a defense. In order for the defense to apply, petitioner must have sufficient evidentiary support. Merely consuming a certain amount of alcohol or having a blood alcohol content above 0.10% is not enough to sustain the defense. Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035, cert. denied, 498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1980); Commonwealth v. Stark, 363 Pa. Super. 356, 526 A.2d 383 (1987), appeal denied, 517 Pa. 622, 538 A.2d 876 (1988). Only where the petitioner can prove that he lost all faculties or sensibilities as a result of his consumption of alcohol will the defense of intoxication apply. Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993); Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991); Commonwealth v. Groff, 356 Pa. Super. 477, 514 A.2d 1382 (1986); Commonwealth v. Reiff, 489 Pa. 12, 15, 413 A.2d 672, 674 (1980).
The trial court has authority to decline to instruct the jury on voluntary intoxication where the defendant has failed to show that he was overwhelmed or overpowered by alcoholic liquor to the point of losing his faculties or sensibilities. Commonwealth v. Tilley, supra; Commonwealth v. Reiff, supra; Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1975). Where it is shown that the defendant recalls details of events immediately leading up to the commission of the offense, and thus is thinking clearly, the court may decline to instruct the jury on voluntary intoxication. Commonwealth v. Carter, 377 Pa. Super. 93, 546 A.2d 1173 (1988), appeal denied, 523 Pa. 630, 564 A.2d 1259 (1989).
Though it is clear from the trial testimony that petitioner consumed alcohol on the night of the offense, it is also evident that petitioner's memory was clear as to the events that transpired. Thus, the trial court was not required to instruct the jury on voluntary intoxication. As well, petitioner's expert, Dr. Mapes, opined only that petitioner suffered from an organic impairment which made him more susceptible to the influence of alcohol. Because this condition does not equate to a level of intoxication rendering petitioner incapable of forming the requisite intent to commit first degree murder, the doctor would not have been able to offer an opinion to the contrary. Thus, the failure of trial counsel to call Dr. Mapes to testify at petitioner's trial does not amount to ineffective assistance with respect to failing to pursue a defense of voluntary intoxication.
Petitioner himself provided specific details as to his activities on the night of the murder, thus proving that he was not intoxicated to the point of losing all faculties or sensibilities. These details included his recollection of providing Brian Hooper (his co-defendant) a rifle and a pistol, loading the pistol, asking Mr. Steward to aid in hiding the victim's body, destroying evidence, obtaining cotton for his and Hooper's ears so as to drown out the victim's moaning, and helping drag the victim's body into the woods. Petitioner's testimony provides clear evidence that he was not intoxicated to the point of losing all faculties or sensibilities on the night of the murder. See Commonwealth v. Proctor, 558 Pa. 382, 737 A.2d 724 (1999); Carter, supra; Tilley, supra.
Though in Commonwealth v. Haywood, 464 Pa. 226, 346 A.2d 298 (1975), the Pennsylvania Supreme Court found that a trial judge committed reversible error when he refused to instruct the jury on voluntary intoxication, the court did not rule on the amount of evidence necessary to justify an intoxication instruction.
An overview of Pennsylvania case law in this area shows that petitioner does not satisfy his burden for a voluntary intoxication instruction by merely proving he was drinking prior to committing the offense with which he has been charged. As previously stated, the record must show that the petitioner was so overwhelmed or overpowered by the alcohol he consumed that he suffered a complete loss of his faculties or sensibilities.See Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203 (1997) (Because there was insufficient evidence that the defendant was overwhelmed by the alcohol, a jury charge on intoxication was not warranted); Commonwealth v. Marshall, 534 Pa. 488, 633 A.2d 1100 (1993) (The court's refusal to provide a voluntary intoxication instruction was upheld because the defendant failed to prove he was so overwhelmed by alcohol that he lacked the specific intent to kill); Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078 (1993) (The key issue with respect to a voluntary intoxication instruction is whether the defendant was so overwhelmed by alcohol as to lose his faculties or sensibilities); Commonwealth v. Tilley, supra.
In a case such as this, the petitioner must prove that counsel's actions or lack thereof amount to ineffective assistance. Here, petitioner's argument that counsel was ineffective due to his failure to pursue a voluntary intoxication defense and request a voluntary intoxication jury instruction has no merit. There is no evidence of petitioner being intoxicated to the extent necessary to entitle him to the jury instruction. In fact, the petitioner's detailed recollection of the events leading up to the murder strongly points to the contrary.
Because petitioner failed to meet the first-prong underStrickland, he necessarily failed to meet the second. Since petitioner's counsel was not ineffective, he could not prove that the result of the proceeding would have been different. Given the absence of evidence that the petitioner was so overwhelmed by his consumption of alcohol that he lacked the requisite intent to commit first degree murder, trial counsel was not ineffective for failing to pursue a voluntary intoxication defense or failing to request a voluntary intoxication instruction.
Having determined that this petition contains claims that are not contrary to or an unreasonable application of the clearly established federal law, this court recommends that:
RECOMMENDATION
AND NOW, this ___ day of November, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for a Writ of Habeas Corpus be DENIED with prejudice. It is also RECOMMENDED that a certificate of appealability not be granted.