Opinion
CIVIL ACTION No. 03-1047
November 14, 2003
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Jeremiah Reeves ("Petitioner"), an individual currently incarcerated at the State Correctional Institute in Camp Hill, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
The following facts were determined at trial:
On the evening of April 23, 1999 . . . two [2] cars, containing a total of seven [7] individuals, set forth shortly before midnight. . . . The first car was driven by [Petitioner]. . . . [Petitioner's] co-defendant, James Galione, was a rear-seat passenger in the other automobile. . . . Upon entering a residential area of Bristol Borough, the vehicle driven by [Petitioner] had occasion to be behind an auto driven by the decedent . . . David Albert. . . . At a stop sign in a residential neighborhood, shouts were exchanged between the occupants of the Albert and Reeves vehicles. The Albert vehicle remained parked at the stop sign. [Petitioner] drove his vehicle beyond Albert's car and stopped partly blocking the street ahead and [Petitioner] and his companions alighted. Thereupon one or more of the occupants of the Albert vehicle also alighted and a confrontation occurred in the street. . . . [T]he initial confrontation between the three [3] occupants of the Albert vehicle and the three [3] occupants of the Reeves vehicle, including [Petitioner], involv[ed] shoving and fisticuffs. . . . [A]fter the fight began, the trunk of the Albert vehicle was opened and tools which Mr. Albert used in his trade as a mason were removed and employed as weapons. Those tools included a four-[4-] foot aluminum carpenter's level, a heavy framing hammer, and a wooden broom handle. . . . [Petitioner] was struck in the head with the carpenter's lever, possibly by the decedent. [Petitioner] seized the level from his assailant and used it to strike him. . . . [A]fter the fight had begun, the [other] vehicle approached the scene and the occupants realized that their friends were engaged in a fight. The [other] vehicle pulled to a stop and co-defendant Galione and Michael Good joined the fray. . . . [T]he now-outnumbered Albert, Weston and Marino fled up the street, away from their vehicle, while pursued by the larger group of young men. Weston and Marino took refuge on the porches of twin homes where they called out to the occupants for help. . . . [D]ecedent was found face down in a driveway adjacent to one of the residences where Marino and Weston had taken refuge. Albert's arms were at his side, there was substantial blood evident, and his breathing was heavy and labored. Albert was taken to Frankford-Torresdale Hospital. Upon arrival at the emergency room he was found to be in a profound coma. He died without regaining consciousness.Commonwealth v. Reeves, Jr, No. 99-3062, at 2-5 (Ct. of Com. Pl. of Bucks County, Pa. Crim. Div. Feb. 14, 2001).
Petitioner was tried before the Honorable David W. Heckler, Court of Common Please of Bucks County, along with co-defendant James R. Galione, on the charges of criminal homicide, aggravated assault, simple assault, recklessly endangering another person, possessing instruments of crime and conspiracy to commit those crimes. On January 28, 2000, Petitioner was convicted of third degree murder and all of the lesser included charges. On March 17, 2000, Petitioner was sentenced to not less then eight (8) nor more than sixteen (16) years of imprisonment for the third degree murder conviction.
Galione was acquitted of criminal homicide and convicted of aggravated assault, conspiracy to commit criminal homicide, conspiracy to commit aggravated assault, possessing an instrument of crime and conspiracy to commit that offense.
Petitioner filed a motion for a new trial and/or arrest of judgment, alleging, inter alia, the existence of after-discovered evidence and ineffectiveness of trial counsel. Evidentiary hearings were held on June 16, 2000, and June 30, 2000, for Petitioner's claims of after-discovered evidence, and on July 6, 2000, for Petitioner's claims of ineffective assistance of counsel. On August 11, 2000, the trial court denied Petitioner's post-verdict motions.
Petitioner appealed to the Pennsylvania Superior Court, raising the following claims: (1) that after-discovered evidence required the grant of a new trial; (2) that he was deprived of his constitutional right to testify; and (3) that defense counsel was ineffective because he failed to: (a) have Petitioner testify; (b) present character witnesses; (c)voir dire the jurors regarding a newspaper article that appeared on the day of closing arguments; and (d) accept the prosecutor's offer to withdraw certain charges.
On December 31, 2001, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Reeves, 792 A.2d 1286 (Pa.Super. 2001); No. 2485 EDA 2000 (Pa.Super. Dec. 21, 2001) (unpublished memorandum). On August 5, 2002, the Supreme Court of Pennsylvania denied Petitioner's Petition for Allowance of Appeal.[fn ]Commonwealth v. Reeves, 805 A.2d 522 ( Pa. 2002).
Petitioner raised the same issues in both his appeal to the Pennsylvania Superior Court and his appeal to the Pennsylvania Supreme Court.
On February 26, 2003, Petitioner filed the instant petition for writ of habeas corpus, raising the following claims:
1. Ineffective assistance of counsel for failing to accept the prosecutor's offer to withdraw five (5) charges;
2. Ineffective assistance of counsel for failing to request that the trial court individually voir dire jury members because of an incorrect newspaper article published the day before deliberations;
3. Ineffective assistance of counsel for failing to call Petitioner to testify on his own behalf;
4. Violation of due process because newly-discovered evidence required the granting of a new trial; and
5. Insufficient evidence to support the conviction.
Respondents have filed an answer arguing that Petitioner is not entitled to federal habeas relief. Petitioner has filed a traverse in response thereto.
II. APPLICABLE LAW
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, amended the standards for reviewing state court judgements in federal habeas petitions filed under 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state court. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if: (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) if the adjudication 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)-(2). Factual issues determined by a state court are presumed to be correct, so the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case different than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citingWilliams, 529 U.S. at 389-390). Further, the Court stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case." Id. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. (citing Williams, 529 U.S. at 388-389). In further delineating the "unreasonable application" component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law, and a federal habeas court may not grant relief unless the court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable.Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 389).
III. DISCUSSION
A. Claims One (1) Through Three (3): Ineffective Assistance of Counsel
Petitioner sets forth three (3) claims of ineffective assistance of counsel. Because Petitioner presented these claims to the state courts on direct appeal, the claims are exhausted and will be addressed on the merits.
Petitioner's claims of ineffectiveness of counsel are governed byStrickland v. Washington, 466 U.S. 668 (1984); see Williams, 529 U.S. at 391 ("It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'"). InStrickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687.
Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, "the question is whether there is a reasonably probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
1. Ineffectiveness of counsel regarding counsel's failure to call Petitioner to testify on his own behalf .
Petitioner first argues that trial counsel was ineffective for advising Petitioner not to testify on his own behalf, therefore preventing him from defending himself. See Pet. at 9. In addressing the merits of this claim on direct appeal, the Pennsylvania Superior Court adopted the trial court's analysis as to Petitioner's claim that counsel was ineffective for failing to put him on the stand. Commonwealth v. Reeves, No. 2485 EDA 2000, at 7 (Pa.Super. December 31, 2001). The trial court stated the following:
I note that Respondents did not address this issue in their answer.
[W]e perceive that [Petitioner] would have been in a worse position, not better, had he testified at trial. At the July 6 hearing, [Petitioner] asserted essentially that his involvement in the fight, including striking someone, quite possibly the decedent, across the back with the level, occurred early in the course of the fight; that thereafter he made an ineffective attempt to knock out the Albert car's windshield and then placed the level in his car and waited in or next to it until the end of the fight. N.T., 7/6/00, pp. 136-138. Of course, as his trial counsel perceived, this left [Petitioner] with no alternative but to directly deny that he had made admissions to police and to claim that the police were not telling the truth. N.T., 7/6/00, p. 167.
A review of the post-mortem photographs of the decedent, coupled with the testimony heard by the jury, makes clear that the decedent was struck with great force by the level at least twice across the upper shoulders and base of the neck and possibly again on the rear of the head. The injuries are accompanied by signature bruising which can be said to be unique to that implement and not consistent with any other possible weapon used in this case. The amount of force employed was extreme. The jury had every reason to conclude from the physical evidence and the expert interpretation thereof that the level was used to inflict blows of such severity that the decedent could not have engaged in further fighting but must necessarily have fallen immediately to the ground. By all of the evidence and by [Petitioner's] admission, that carpenter's level was in [Petitioner's] sole possession throughout the middle and final stages of the fight and during [Petitioner's] flight thereafter. . . .
[Even] if it were to be accepted arguendo that [Petitioner's] interests would have been advanced by his testimony at trial [Petitioner] must establish that trial counsel lacked a reasonable basis for failing to have his client testify. The testimony of trial counsel and the performance of [Petitioner] himself on July 6 established beyond question that trial counsel had such a reasonable basis. First, it is undisputed that counsel, a senior and experienced member of the Public Defender's Office with substantial assistance available to him, arranged for [Petitioner] to be repeatedly cross-examined in practice sessions before commencement of trial. It is further undisputed that prior to these sessions it was counsel's stated desire that [Petitioner] testify and that counsel first wavered in this decision when, despite advice to the contrary, [Petitioner] repeatedly brought into his practice testimony the fact that at the time of this incident he was on probation as the result of a previous assault conviction. . . . In addition to this difficulty, counsel recognized that on cross-examination [Petitioner] would be confronted with the various statements he had made to police and others and would be forced either to acknowledge them, thereby admitting a greater level of culpability, or alternatively to contend that several police officers and some of his own friends testified falsely. Trial counsel plainly had an entirely reasonable basis for wishing to protect [Petitioner] from the various perils which could be anticipated if he testified at trial.Commonwealth v. Reeves, No. 99-3062, at 16-18 (Ct. of Com. Pl. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). As a result, the Superior Court found that counsel was not ineffective for not allowing Petitioner to testify. Commonwealth v. Reeves, No. 2485 EDA 2000, at 7 (Pa.Super. December 31, 2001).
It is well established that the right of a defendant to testify on his behalf is rooted in the Constitution. United States v. Pennycooke, 65 F.3d 9, 10-11 (3d Cir. 1995) (citing Rock v. Arkansas, 483 U.S. 44, 49-53 (1987)). This right is personal and thus only the defendant may waive it. Id. (citing Jones v. Barnes, 463 U.S. 745, 751 (1983)) ("the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal"). As a constitutional right that is "`essential to due process of law in a fair adversary process,'" a defendant's waiver of the right to testify must be knowing and intelligent. Id. (citingSchneckloth v. Bustamonte, 412 U.S. 218, 241 (1973)) (citations omitted). Counsel's decision, however, whether to permit defendant to testify is a tactical one which is afforded a strong presumption of reasonableness.
I find that the decision of the state courts is neither contrary to, nor an unreasonable application of, the standard of ineffectiveness set forth in Strickland, As an initial matter, I agree with the state courts that Petitioner "would have been in a worse position, not better, had he testified at trial." Commonwealth v. Reeves, No. 99-3062, at 16 (Ct. of Com. Pl. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). Trial counsel testified that Petitioner thought his testimony that he was on probation for a previous assault conviction would enhance the credibility of his statement that he withdrew himself from the fight as soon as possible. (N.T. 7/6/00, 84-85, 135-136). It is reasonable for trial counsel to advise Petitioner not to testify if he insisted on bringing up evidence which possibly would support the prosecution's case. For example, if Petitioner testified regarding the previous conviction, the prosecution would be able to use that evidence, which otherwise would not be admissible, against Petitioner. Additionally, Petitioner made statements to the police and others regarding his involvement in the fight, and therefore, on cross-examination, he would either have to acknowledge that he made these statements or testify that police officers and some of his friend falsely testified. (N.T. 7/6/00, 71, 167).
For the aforementioned reasons, I agree with the state courts that "trial counsel plainly had an entirely reasonable basis for wishing to protect [Petitioner] from the various perils which could be anticipated if he testified at trial." Commonwealth v. Reeves, No. 99-3062, at 18 (Ct. of Com. Pl. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). Because it cannot be said that trial counsel was deficient in counseling Petitioner not to testify, Petitioner is not entitled to relief on this claim. 2. Ineffectiveness of counsel regarding counsel's failure to accept the prosecutor's offer to withdraw five (5) charges .
Since I have concluded that counsel's performance was not shown to be deficient, I need not determine whether Petitioner was prejudiced by counsel's decision. See Strickland, 466 U.S. at 697 (stating "there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one").
Petitioner next argues that trial counsel was ineffective for failing to accept the prosecutor's offer to withdraw five (5) of the charges against him. Specifically, Petitioner contends that because the charges against him were not dropped, but were dropped as to his co-defendants, he was "irreparably prejudiced in the eyes of [the] jury . . . making me seem more culpable." See Pet. at 9. Respondents argue that Petitioner's counsel strategically included the charges, so the jury would be able to compromise on lesser charges if they could not agree on the criminal homicide charge.
In addressing the merits of this claim on direct appeal, the Pennsylvania Superior Court deferred to the trial court's finding as to Petitioner's claim that counsel was ineffective because he did not have certain lesser charged dropped. Commonwealth v. Reeves, No. 2485 EDA 2000, at 7 (Pa.Super. December 31, 2001). The trial court stated the following:
Trial counsel articulated the view, which we accept as entirely credible, that those additional lesser charges provided room for jury compromise. Counsel expanded upon this view in response to the court's questions concerning the instruction of the jury on Counts 5 through 9.
MR. HALL: Yea. Judge, I think my client is on somewhat different footing that Mr. Galione . . . in that . . . his statements are that he hit somebody. I think the jury will easily conclude that it had to be David Albert. They are facing each other down from the middle of the street and . . . I think that the jury should be instructed in simple assault since I think it's hard to take away intent to engage in, at least, a mutual combat situation on the part of my client. So I reluctantly think a count of simple assault, in that conspiracy. I think they should be instructed on for my client.
N.T. 1/24/00, pp. 283-284
[Petitioner] fails to advance any argument as to how the presence of these charges affected the jury's deliberations upon the more serious charges of which he was also convicted.
The real essence of [Petitioner's] position is that his co-defendant, as to whom these charges had been removed from the case and who testified at trial, was convicted only of aggravated assault and not murder. A review of the statements of[Petitioner] at sentencing and thereafter reflect a view that the disparity in the jury's verdict as to him and his co-defendant ipso facto demonstrates that his counsel was ineffective . . . It is . . . apparent from the record that [Petitioner's] trial counsel endeavored to, to put it colloquially, "fly below the radar" by allowing the greatest part of the jury's attention to be focused on co-defendant Galione.
Whatever the result, we perceive this to have been an entirely valid strategy based upon an entirely reasonable set of choices . . . [Petitioner's] contentions, both concerning the "extra" charges submitted to the jury . . ., rest essentially upon the differences in the outcomes of the trial for the two co-defendants. The record . . . demonstrates a sound evidentiary basis for the distinctions drawn by the jury between the culpability of the two [2] defendants . . .[W]e perceive that [Petitioner's] counsel was thoroughly effective and that [Petitioner] suffered no prejudice as a result of . . . counsel's choices in trial strategy.Commonwealth v. Reeves, No. 99-3062, at 18-20 (Ct. of Com. P1. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). As a result, the Superior Court found that counsel correctly submitted the "extra" charges to the jury. Commonwealth v. Reeves, No. 2485 EDA 2000, at 7 (Pa.Super. December 31, 2001).
I find that the decision of the state courts is neither contrary to, nor an unreasonable application of, the standard of ineffectiveness set forth in Strickland, In addition to criminal homicide and aggravated assault, Petitioner was charged with simple assault, recklessly endangering another person and conspiracy to commit those crimes. Trial counsel agreed to have the charges of recklessly endangering another person and conspiracy to commit such crime withdrawn, but did not want simple assault or conspiracy to commit simple assault withdrawn. (N.T. 7/6/00, 76-77). The prosecution, however, would only allow Petitioner to withdraw all or none of these claims, so trial counsel declined to have the charges withdrawn. (N.T. 7/6/00, 15-17). When asked, defense counsel said that he was assuming that Petitioner was guilty, at most, of simple assault during mutual combat because Petitioner admitted to hitting decedent with the level. (N.T. 1/24/00, 283-84). Because trial counsel was attempting to prove that Petitioner did not commit murder, it was entirely reasonable for counsel, particularly in light of Petitioner's admission, to want the jury to have the lesser charge of simple assault to consider when determining Petitioner's guilt.
Furthermore, although Petitioner argues that he was prejudiced because the charges against his co-defendant were dropped, the record indicates that there was strong evidence presented which could allow the jury to distinguish between the culpability of Petitioner and Galione. For example, bruising on decedent's head and neck caused by a level; testimony by the medical examiner that any of the blows dealt to decedent, including those dealt by Petitioner, were sufficient to cause the massive brain stem trauma that caused decedent's death; and testimony that Petitioner celebrated the beating after the police had left the scene. (N.T. 1/18/00, 217, 233-234, 237, 239-247; 1/14/00, 146). Furthermore, in contrast to Petitioner, Galione never admitted to hitting the decedent with a level. Therefore, the jury could have reasonably considered Petitioner more culpable than Galione regardless of whether the additional charges against Galione were dropped.
As a result of the foregoing, it cannot be said that trial counsel was deficient in submitting the lesser charges to the jury. Consequently, Petitioner is not entitled to relief on this claim.
3. Ineffectiveness of counsel regarding counsel's failure to request that the trial court individually voir dire jury members because of a factually incorrect newspaper article published the day before deliberations .
In his final claim of ineffective assistance of counsel, Petitioner argues that trial counsel was ineffective for failing to request that the trial court individually voir dire members of the jury because of a factually incorrect, and potentially damaging, newspaper article published the day before deliberations were to start. See Pet. at 10. Respondents counter that counsel's request for a curative jury instruction instead of individual voir dire was based upon reasonable trial strategy.
In addressing the merits of this claim on direct appeal, the Pennsylvania Superior Court stated the following:
In the instant case, although trial counsel did not request the court voir dire the jurors, he did request that the court give an instruction to the jury regarding the publication of the article, and the following instruction was given by the trial court:
I instructed you throughout this matter to disregard all manner of outside information, press accounts, and that sort of thing. And I have every confidence that you have done that and have avoided hearing about anything that would have been in the newspapers. It has been called to my attention that some recent press accounts have included absolutely factually incorrect things and, again, I'm sure by no intent on anybody's part. So I just underscore the idea that in your deliberations, the information that you use to determine whether the Commonwealth has proved these defendants, or either of them, guilty of any crimes charged is based solely on what you heard in the courtroom through the court of this trial, and that and that alone, and there is no other information that could possibly exist from any other source which would be sufficiently reliable for you to properly factor it in anyway into your consideration.
The trial court also noted in its opinion that numerous other reminders were given to the jury throughout the trial including at the conclusion of each day's proceedings, regarding their obligation to avoid press accounts or other sources of outside information. Thus . . . the trial court concluded that the cautionary instructions given in the instant case were sufficient such that trial counsel was not ineffective for failing to request voir dire of the jurors. We agree.
. . . As the trial court noted in the case sub judice, the allegedly prejudicial information contained in the article that appeared in the Bucks County Courier Times, which began on page 1 was not included in the headline, or even on the first page of the newspaper, and, therefore, it was unlikely that a juror could have been inadvertently exposed to it. Moreover, the trial court instructed the jurors throughout the trial, and again when the court became aware of the article, not to read newspapers or consider in their decision any information other than that presented at trial.Commonwealth v. Reeves, No. 2485 EDA 2000, at 9-13 ( Pa. Super. December 31, 2001) (citations to trial court opinion omitted). As a result, the Superior Court found that was not ineffective in not requesting that the jurors be voir dired individually.Id. at 13.
I find that the decision of the Superior Court is neither contrary to, nor an unreasonable application of, the standard of ineffectiveness set forth in Strickland, The article was published in the Bucks County Courier Times, a local newspaper, with approximately one-third of its distribution within Bucks County. The allegedly prejudicial information contained in the article, which began on page one (1), was not included in the headline, or on the first page of the newspaper. When the allegedly prejudicial information became known to trial counsel, he requested a curative instruction in the final charge to the jury, (N.T. 1/27/00, 86), instead of drawing particular attention to the article by individually questioning the jurors. Additionally, the court instructed the jury at the end of every day that they were to avoid outside sources of information including press sources. (N.T. 1/12/00, 80, 231; 1/13/00, 315; 1/14/00, 133, 241; 1/18/00, 180, 279; 1/19/00, 105, 257; 1/20/00, 147, 287; 1/21/00, 236; 1/26/00, 120; 1/27/00, 113, 151). I find that it was reasonable for trial counsel to assume that an individual voir dire was unnecessary because the jurors had been consistently told they should ignore outside sources of information, and the article was not conspicuously displayed. It was also reasonable to assume, as noted by the trial court, that an individual voir dire might draw the jurors attention to the article they had sworn not to read, thereby piquing the curiosity of the jury. Consequently, I agree with the Superior Court that the instructions requested and given to the jurors were reasonable and sufficient. Because it cannot be said that trial counsel acted deficiently in this regard, Petitioner is not entitled to relief on this claim.
B. Claim Four (4): Actual Innocence Based on Newly-Discovered Evidence
In his next claim, Petitioner contends that his due process rights were violated when the state court failed to grant him a new trial on the basis of after-discovered evidence and actual innocence. Specifically, Petitioner argues that the court violated his rights by refusing to grant him a new trial or acquit him based on the testimony of two (2) witnesses, Melody Wollard and Kristin DeAngelis, who allegedly heard the "true killer" bragging about the killing. See Pet. at 10. Because Petitioner presented this claim to the state courts on direct appeal, the claim is exhausted and will be addressed on the merits.
In addressing the merits of this claim on direct appeal, the Pennsylvania Superior Court deferred to the trial court's finding as to Petitioner's claim of newly discovered evidence. Commonwealth v. Reeves, No. 2485 EDA 2000, at 5 (Pa.Super. December 31, 2001). The trial court stated the following:
First, the record reflects that both young ladies were friends of [Petitioner's] co-defendant, James Galione. The theory that Good, Williams and others were responsible for some or all of the fatal injuries to David Albert instead of [Petitioner] and his co-defendant Galione was a central theme of the defense. Given the extent of discussion by the various participants among themselves and to others after the event, we perceive that the discovery of Good's statements at a party which occurred several months before the commencement of trial could have been accomplished by reasonable investigatory diligence.
Second, and of greater import, even if the witnesses' testimony may be accepted as proof that Good indeed kicked a prostrate David Albert in the head three times, we perceive no likelihood that a different verdict with regard to [Petitioner] or his co-defendant would have resulted. The medical testimony in this case agrees that Albert sustained roughly ten serious blows to the head, neck and shoulder areas. Some of the decedent's injuries were described as being consistent with a kicking or stomping. However, in the face of admissions by both defendants that they had used heavy blunt weapons — [Petitioner] a carpenter's level and his co-defendant a framing hammer — upon the head of the decedent and given the testimony of at least the Commonwealth's medical expert that one or two of the blows involved great force which caused a major fracture of the base of the skull, we do not perceive that testimony about three kicks or stomps would have exculpated [Petitioner] or his co-defendant.
We note that in addition to his conviction for third degree murder, [Petitioner] was convicted of conspiracy to commit criminal homicide and aggravated assault. Good was plainly within the ambit of those persons with whom the Commonwealth alleged that [Petitioner] had conspired to batter Albert. The conduct of which Good boasts at the party formed at most a portion of the terrible beating received by the decedent which, so the Commonwealth contends, flowed from that conspiracy. Nothing about Good's boasts, if believed, tend to exculpate [Petitioner] or contradict [Petitioner's] admissions that during the fight he struck the decedent in the head with the carpenter's level.
In considering whether Good's boasts were of such a nature and character as to produce a different verdict if presented to the jury, we perceive that [Petitioner] and his co-defendant are hoist by their own petard. We refer to the fact that both defendants presented separate highly qualified forensic pathologists who testified that the most serious single injury sustained by decedent was characterized by a linear fracture of the base of his skull. It was opined that the blow which caused this fracture would have also caused bruising and massive swelling of the brain stem which in turn would have cut off circulation to that part of the brain which controls autonomic functions such as respiration and heartbeat, this causing death. The witness called by [Petitioner] on this subject . . . testified . . . that this particular injury was attributable to a fall. See, N.T., 1/20/00, pp. 186-188. Under the defense theory, the uniquely fatal injury among the ten [10] or so blows to the head sustained by decedent was inflicted by someone who caused him to fall from the upright position and strike his head upon a hard surface. By [Petitioner's] own theory of defense, the kicking or stomping which the decedent may have sustained after he was prostrate, while hardly helpful to his condition, was not an independent intervening cause of death which could be viewed by the jury as diminishing [Petitioner's] responsibility for decedent's other, more serious injuries.Commonwealth v. Reeves, No. 99-3062, at 21-23 (Ct. of Com. Pl. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). As a result, the Superior Court found that the trial court did not err in refusing to grant Petitioner a new trial on the basis of newly-discovered evidence.Commonwealth v. Reeves, No. 2485 EDA 2000, at 5 (Pa.Super. December 31, 2001).
I find that the decision of the state courts is neither contrary to, nor an unreasonable application of, Supreme Court precedent. A court should grant a new trial on the basis of newly discovered evidence if: (1) the evidence must be "newly discovered," that is, discovered since trial; (2) the court must be able to infer diligence on the movant's part; (3) the evidence cannot merely be cumulative or impeaching; (4) the evidence must be material to the issues involved; and (5) it must be of such a nature that, at a new trial, the evidence would produce an acquittal. United States v. Jasin, 280 F.3d 355, 361 (3d Cir. 2002) (citing United States v. lannelli, 528 F.2d 1290, 1292 (3d Cir. 1976)). Respondents point out that Petitioner's alleged "new evidence" is legally insufficient to grant a new trial, was discoverable before the trial began, and would not have exculpated Petitioner or contradicted Petitioner's admissions that he struck the decedent in the head with a carpenter's level. I agree.
Wollard and DeAngelis were friends of Petitioner's co-defendant and, as noted by the trial court, it is therefore doubtful that the evidence in question was not discoverable before trial. In any event, I agree with the state courts that the evidence could have been discovered by "reasonable investigatory diligence." Commonwealth v. Reeves, No. 99-3062, at 21 (Ct. of Com. P1. of Bucks County, Pa. Crim. Div. Feb. 14, 2001). Furthermore, even assuming that the evidence was not discoverable before trial, it is extremely unlikely that the testimony in question would have produced an acquittal because the evidence of Petitioner's guilt was overwhelming. First, as noted by Respondents, the jury could have considered this testimony to be evidence that supported the prosecution's contention that more than one (1) person was involved in the attack on the decedent, and which would not necessarily have changed their conclusion that Petitioner's blows were the cause of decedent's death. Additionally, the medical testimony, combined with Petitioner's statement that he hit decedent in the head with a level, were enough for the jury to reasonably conclude that Petitioner caused the death of the decedent. The medical testimony in this case demonstrated that the decedent sustained roughly ten (10) serious blows to the head, neck and shoulder areas. (N.T. 1/18/00, 240; 1/21/00, 223;). While some of the decedent's injuries were described as being consistent with kicking or stomping, others were consistent with the use of a carpenter's level. (N.T. 1/18/00, 233, 241). In addition, forensic pathologists testified that the most serious injury sustained by decedent was characterized by a linear fracture of the base of his skull. (N.T. 1/21/00, 196-197). The medical experts opined that the blow which caused this fracture would have also caused bruising and massive swelling of the brain stem which would have cut off circulation to the part of the brain controlling autonomic functions such as respiration and heartbeat, thus causing death. (N.T. 1/21/00, 187-188). Moreover, Petitioner's own witness testified that this particular injury was attributable to a fall. (N.T. 1/20/00, 186-188). Consequently, as noted by the trial court, even under Petitioner's theory of defense, the fact that Good kicked or stomped the decedent after he was on the ground would not have been an independent intervening cause of death which the jury would consider as relieving Petitioner of responsibility for the more serious injuries suffered by the decedent.
In sum, the medical testimony, combined with Petitioner's admission that he hit decedent on the head with a carpenter's level, could have convinced the jury that Petitioner was indeed responsible for the decedent's death. Therefore, I agree with the state courts that the testimony about three kicks (3) or stomps would not have exculpated Petitioner.
For all of the foregoing reasons, it cannot be said that trial court erred in refusing to grant Petitioner a new trial based upon the alleged after-discovered statements of Wollard and DeAngelis. Therefore, I find that Petitioner is not entitled to relief on this claim.
C. Claim Five (5) — Procedurally Defaulted
In his fifth claim, Petitioner argues that there was insufficient evidence to support his conviction. Respondents argue that this claim is unexhausted and procedurally defaulted. A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b). A petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); Picard v. Connor, 404 U.S. 270 (1971). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (quoting Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992)). For a claim to be exhausted, "[b]oth the legal theory and the facts underpinning the federal claim must have been presented to the state courts. . . . and the same method of legal analysis must be available to the state court as will be employed by the federal court." Evans v. Count of Common Pleas. Del. Co., Pa., 959 F.2d 1227, 1231 (3d Cir. 1992). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254). We may excuse exhaustion, however, if requiring exhaustion would be futile, i.e., exhaustion is impossible due to procedural default and state law clearly forecloses review of the unexhausted claim. Werts, 228 F.3d at 192.
Although exhaustion may be excused, we may nonetheless be precluded from reviewing the merits of claims deemed exhausted. As the Third Circuit has held:
claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default."Id. at 192: see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). The "cause and prejudice" standard applies whether the default in question occurred at trial, on appeal, or on state collateral attack. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
To show "cause" for the procedural defect, the petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Werts, 228 F.3d at 192-93 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). With regard to the prejudice requirement, the habeas petitioner must prove "`not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Id. at 193 (citingCarrier, 477 U.S. at 488). This standard requires the petitioner to show he was denied "fundamental fairness" at trial.Id.
In the alternative, if the petitioner fails to demonstrate cause and prejudice for the default, the federal court may also consider a defaulted claim if the petitioner can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice.Coleman, 501 U.S. at 748. To satisfy the fundamental miscarriage of justice exception, the Supreme Court requires petitioners to show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327(1995), (citing Carrier, 477 U.S. at 496):see Glass v. Vaughn, 65 F.3d 13, 16-17 (3d Cir. 1995).cert. denied, 516 U.S. 1151 (1996) (assuming that theSchlup miscarriage of justice/actual innocence standard applied to noncapital petitioner arguing eligibility for lesser degree of guilt). To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely that not that no reasonable juror would have found him guilty beyond a reasonable doubt.Schlup, 513 U.S. at 327.
Here, Petitioner never presented his insufficient evidence claim to the state courts and, therefore, the claim is unexhausted. I find, however, that exhaustion should be excused pursuant to 28 U.S.C. § 2254(b)(1) because a return to the state courts would be futile due to "an absence of available state corrective procedures." Lines, 208 F.3d at 162. The only way in which Petitioner could present this claim in the state court at this time is to file a petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq, However, any such petition would be time-barred by the PCRA's statute of limitations. Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1); see also, e.g., Lines, 208 F.3d at 164 n. 17 (noting that the Pennsylvania Supreme Court has held that the time restrictions for seeking relief under the PCRA are jurisdictional) (citingCommonwealth v. Banks, 726 A.2d 374 (Pa. 1999)). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. Ann. § 9545(b)(3). As previously noted, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal on August 5, 2002. Because the statute of limitations for filing a PCRA appeal ran out on August 4, 2003, Petitioner is procedurally barred from filing a PCRA appeal. Consequently, exhaustion would be futile and is excused.
Although exhaustion is excused, Petitioner's fifth claim is nevertheless procedurally defaulted. Petitioner has failed to show cause and prejudice for the default of these claims. Moreover, to the extent that Petitioner would argue that any default should be excused because failure to excuse default will result in a fundamental miscarriage of justice, I do not agree. As previously mentioned, to satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Schlup, 513 U.S. at 327. To the extent that Petitioner would argue that his claim of after-discovered evidence establishes his actual innocence, see Traverse at 2, 1 note that for the reasons discussed, supra, this claim fails. Because Petitioner's actual innocence claim cannot serve to excuse the default of this claim, the claim remains procedurally defaulted.
Respondents argue that the inclusion of Petitioner's sufficiency of the evidence claim renders the instant petition "mixed" with both unexhausted and exhausted claims, thereby requiring dismissal of the entire petition. See Resp't Answer, at 25. I disagree. Although it is true that the inclusion of any unexhausted federal constitutional claim in a petition normally bars review of the entire petition,Rose v. Lundy, 455 U.S. 509, 522 (1982), I note that this court has excused the exhaustion requirement for this claim because it would be futile for the petitioner to seek relief in the state court system. As a result, this court properly reviewed the remainder of Petitioner's claims.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this Day of November, 2003, it is RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED. There has beenno substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.