Wyatt v. Diguglielmo

Full title: KEVIN WYATT, Petitioner, v. DAVID DIGUGLIELMO, SUPERINTENDENT, AND THE…

Court: United States District Court, E.D. Pennsylvania

Date published: Oct 19, 2004

No. 2:04-cv-148-WY (E.D. Pa. Oct. 19, 2004)

Opinion

No. 2:04-cv-148-WY.

October 19, 2004

REPORT AND RECOMMENDATION

CHARLES SMITH, Magistrate Judge

Currently pending before this Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner incarcerated in the State Correctional Institution at Graterford, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.

I. PROCEDURAL HISTORY

Following a jury trial presided over by the Honorable Juanita Kidd Stout of the Philadelphia Court of Common Pleas, petitioner was convicted, on March 10, 1992, of first-degree murder, two counts of robbery and criminal conspiracy. As set forth by the Pennsylvania Superior Court, the general facts underlying the conviction are as follows:

[Petitioner] acted together with Ray, a female, and Johnson, Bennett and Mayo, all males. After several of the party visited a jewelry store and returned, it was decided to rob the store. [Petitioner] and Bennett were to man a "getaway" car with [petitioner] at the wheel. Ray was to hold the door to the store to facilitate the exit and Johnson and Mayo were to execute the robbery, Johnson being equipped with Bennett's .38 caliber revolver. When the robbers encountered what they perceived as resistance, Mayo fired two shots which resulted in the killing. The pair left the store. Ray got on a bus, and [petitioner], Bennett, Johnson and Mayo left in the car. After his arrest, [petitioner] gave an inculpatory statement. At trial, he disavowed the statement, denied any participation in the planning or execution of the robbery attempt and stated that he, while driving alone, saw Mayo, Bennett and Johnson running and offered them a ride.

Opinion of Pennsylvania Superior Court (2001), at p. 4. Judge Stout thereafter sentenced petitioner to a term of life imprisonment on the murder charge, together with lesser sentences on the other charges.

Petitioner appealed his conviction to the Pennsylvania Superior Court, alleging that (1) the police violated his constitutional right to legal representation when he confessed to participating in the robbery and (2) he was prejudiced when the court permitted repetitive showing of the video tape of the murder. The court remanded the action to the trial court to determine whether petitioner asserted his "non-offense specific Miranda —Edwards right to counsel" at the time of his arrest on unrelated charges. Upon holding the ordered hearing, the trial court found no basis for a new trial. On January 8, 1997, the Superior Court affirmed the decision, Commonwealth v. Wyatt, 688 A.2d 710 (Pa.Super. 1997), and, on August 5, 1997, the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal. Commonwealth v. Wyatt, 699 A.2d 735 (Pa.Super. 1997).

Petitioner filed a petition, dated September 18, 1997, pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Following the appointment of counsel and the submission of an amended petition, the PCRA court denied relief on June 18, 1999. On appeal to the Pennsylvania Superior Court, petitioner raised the following claims: (1) ineffective assistance of counsel for failure to either seek proper redaction of a co-defendant's statements or to seek severance of the cases; (2) ineffective assistance of counsel for failure to seek a mistrial upon the alleged violation by the Commonwealth of Batson v. Kentucky, 476 U.S. 79 (1986); (3) ineffective assistance of counsel for failure to seek a mistrial resulting from a breach of the Commonwealth's discovery obligation under Pa. R. Crim. P. 305; (4) ineffective assistance of counsel for failure to seek relief from prosecutorial misconduct during the Commonwealth's summation; and (5) ineffective assistance of counsel for failure to object to the trial court's jury charge on first-degree murder. By way of memorandum opinion issued July 16, 2001, the Superior Court denied relief on the first four issues, but vacated petitioner's sentence for first-degree murder based on the fifth claim. Both petitioner and the Commonwealth sought allowance of appeal from the Pennsylvania Supreme Court, which denied petitioner's request on October 15, 2002, Commonwealth v. Wyatt, 809 A.2d 904 (Pa. 2002), and the Commonwealth's request on June 3, 2003.Commonwealth v. Wyatt, 825 A.2d 1261 (Pa. 2003).

Petitioner filed the instant Petition for Writ of Habeas Corpus on January 14, 2004. Seeking relief from his remaining convictions, he now puts forth the following claims:

1. Ineffective assistance of trial, post-trial and direct appeal counsel for failure to seek redaction of co-defendant's statement and/or failure to seek severance of cases;

2. Ineffective assistance of trial, post-trial and direct appeal counsel for failure to request the trial court declare a mistrial as a result of Commonwealth's failure to provide pretrial discovery of a letter defendant wrote to Commonwealth witness Kecia Ray;

3. Ineffective assistance of trial, post-trial, direct appeal and post-conviction counsel for failure to request mistrial based on prosecutor's use of peremptory challenges to exclude African Americans from jury;

4. Ineffective assistance of trial, post-trial and direct appeal counsel for failure to request mistrial based upon misconduct committed by prosecutor in summation.

II. STANDARD OF REVIEW

Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

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).

The United States Supreme Court interpreted this statute and more clearly defined the two-part standard of review in Williams v. Taylor, 529 U.S. 362, 404-405, 120 S. Ct. 1495 (2000). Under the first prong of the review, a state court decision is "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States," (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. at 405. Pursuant to the second prong, 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 should apply."Id. at 407-408. Under this clause, however, "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.

III. DISCUSSION

A. Standard of Review for Ineffective Assistance of Counsel Claims

Petitioner's four habeas claims all involve allegations of ineffective assistance of counsel. Accordingly, as an initial matter, we deem it appropriate to enunciate the appropriate standard for adjudicating such claims.

The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case ofStrickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984), the Supreme Court set forth a two-prong test — both parts of which must be satisfied — by which claims alleging counsel's ineffectiveness are reviewed. Id. at 687. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. at 688. 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, 101, 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. The reviewing court must then determine whether, in light of all circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. It is well-established that appellate counsel cannot be ineffective for failing to raise a meritless claim. Id. at 691; Holland v. Horn, 150 F. Supp.2d 706, 731 (E.D. Pa. 2001).

Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. It requires a demonstration that counsel's errors were so serious as to deprive the defendant of a fair trial or a trial whose result is reliable. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694. In Strickland, the Supreme Court emphasized that "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Id. at 695.See also Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999). Notably, Strickland allows a reviewing court to dismiss an ineffectiveness claim under the prejudice prong without addressing the first prong of the test. Id. at 697.

B. Ineffective Assistance of Trial, Post-trial and Direct Appeal Counsel for Failure to Seek Redaction of Co-defendant's Statement and/or Failure to Seek Severance of Cases.

In his first claim for habeas relief, petitioner challenges alleged errors arising from his joint trial with two other co-defendants, Paul Johnson and Tony Bennett. Following his arrest, Bennett provided a statement to police, which was introduced at the joint trial and which suggested petitioner's participation in the armed robbery. Petitioner now claims that counsel was ineffective for failing to either move to sever his case from that of his co-defendants or, alternatively, seek redaction of his name from Bennett's statement. In response, the Commonwealth claims that this claim is both procedurally defaulted and without merit.

1. Procedural Default

As a primary matter, we address the Commonwealth's argument that petitioner's claim of trial counsel ineffectiveness suffers from procedural default. Procedural default bars federal courts from reviewing a state prisoner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted. Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).

A claim may suffer from procedural default if it is found to have been waived. Under the PCRA, a claim is waived if "the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state post-conviction proceeding." 42 Pa.C.S.A. § 9544(b) (1998);Commonwealth v. Lark, 698 A.2d 43, 46 (Pa. 1997). Alternatively, if the petitioner mentions an issue, but fails to develop any argument with respect to the issue in his brief, the issue may also be deemed waived.See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa.Super.Ct. 1996) (internal citations omitted); see also Commonwealth v. Long, 753 A.2d 272, 279 (Pa.Super. 2000);Commonwealth v. Maris, 629 A.2d 1014, 1016-1017 (Pa.Super.Ct. 1993). A petitioner acting pro se is not relieved of the duty to properly raise and develop appealable claims. Commonwealth v. White, 674 A.2d 253, 257 n. 6 (Pa.Super.Ct. 1996). If a state court finds a claim to be waived, it thereafter becomes procedurally defaulted, barring federal habeas review. See Werts v. Vaughn, 228 F.3d 178, 192 n. 9 (3d Cir. 2000), cert. denied, 532 U.S. 980, 121 S. Ct. 1621 (2001) (quotations omitted) (holding that a state procedural default occurs when the state court refuses to hear the merits of the claim because the defendant waived a PCRA claim he could have raised in an earlier proceeding but failed to do so).

On appeal from the denial of the PCRA petition in the instant matter, the Pennsylvania Superior Court remarked:

It is significant to note that at the PCRA listing in the trial court, appellant did not proffer evidence or attempt to demonstrate that counsel's actions were unreasonable. Commonwealth v. Jones, 596 A.2d 885 (Pa.Super. 1991). It is also significant to note that counsel's bald incantation of layered ineffectiveness of all subsequent counsel is inadequate. Ineffectiveness is waived as an issue if not raised at the earliest opportunity including on direct appeal. It has not been demonstrated that previous counsel's failure to litigate the ineffectiveness issues presently on appeal was not the result of any rational, strategic or tactical decision of counsel. 42 Pa.C.S.A. § 9543(a)(4).

Opinion of Pennsylvania Superior Court (2001), at pp. 4-5. In light of this language, respondent now contends that the Superior Court found this claim waived based on 42 Pa.C.S.A. § 9544(b), thus making it procedurally defaulted for purposes of federal habeas review.

This Court's reading of the Superior Court's opinion, however, yields a much different, or at least more skeptical, interpretation. Petitioner's amended PCRA petition and memorandum in support unequivocally raised the issue of trial counsel ineffectiveness for failure to seek either proper redaction of Bennett's statement or severance of the case, together with a claim of appellate counsel ineffectiveness for failure to preserve the claim. On appeal of the denial of this claim, the Superior Court merely held that petitioner failed to meet his burden of proof, under 42 Pa.C.S.A. § 9543(a)(4), of showing that petitioner's failure to litigate the issue prior to or during trial, during unitary review or on direct appeal was not the result of any rational, strategic or tactical decision by counsel. In doing so, the Superior Court directly addressed the merits of petitioner's claim and whether he successfully proved ineffective assistance of counsel. Thereafter, it went on to discuss the underlying Bruton claim, ruling that even if counsel's actions had no strategic basis, the issue itself was futile.

Contrary to respondent's argument, the Superior Court did not invoke 42 Pa.C.S.A. § 9544, which discusses waiver as an independent procedural basis for denial of a habeas claim. Although the court used the term "waiver," it appeared only in reference to petitioner's claims of subsequent counsel ineffectiveness for failure to raise the issue on direct appeal, not in regards to the allegation of trial counsel ineffectiveness for failing to address the trial court's alleged improper redaction of the co-defendant's statement. Moreover, the "waiver" was likewise grounded in 42 Pa.C.S.A. § 9543(a)(4). In light of the ambiguity in the state court's opinion, we err on the side of caution and decline to find this issue waived for purposes of procedural default.

2. Merits of the Claim

Turning to the merits of petitioner's allegation that trial counsel was ineffective for failing to either seek redaction of his name from his co-defendant's statement or, alternatively, move for severance of the trials, we find no basis for habeas relief. It is well established that joinder of two or more defendants is appropriate when an indictment "charge[s] all the defendants with an overall count of conspiracy." See United States v. Lane, 474 U.S. 438, 447, 106 S. Ct. 725, 731, reh'g denied, 475 U.S. 1104, 106 S. Ct. 1507 (1986); see also United States v. Ward, 793 F.2d 551, 556 (3d Cir. 1986) (finding that "[p]articipants in a single conspiracy should ordinarily be tried together for purposes of judicial efficiency and consistency, even if the evidence against one is more damaging than that against the other."); PA R. CRIM. P. 582 (stating that defendants may be tried together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses."). "The court may order separate trials of offenses or defendants . . . if it appears that any party may be prejudiced by offenses or defendants being tried together." PA. R. CRIM. P. 583. All defendants, in this case, were charged with the identical crimes on the identical facts, thereby justifying a consolidated trial. As such, counsel cannot be deemed ineffective for failing to pursue severance absent some demonstrated prejudice.

This principle, however, raises the corollary issue of the Sixth Amendment Confrontation Clause, which guarantees a criminal defendant the right "to be confronted with the witnesses against him," specifically "the right to cross-examine witnesses."Richardson v. Marsh, 481 U.S. 200, 206, 107 S. Ct. 1702, 1706 (1987). The Supreme Court, in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), held that a defendant's constitutional right to confrontation is denied when the confession of a co-defendant, which implicates the defendant, is admitted at trial but the co-defendant is not subjected to cross-examination. Id. at 127-128. Under the facts of that case, the co-defendant's confession directly implicated defendant. Id. at 124. The Supreme Court found that the use of that statement at trial, when the maker did not testify, violated the Sixth Amendment, even when the trial court later instructed the jury that the co-defendant's confession could only be used against the co-defendant himself and not against the defendant.Bruton, 391 U.S. at 137. The Court reasoned that in a joint trial, where the defendant and the confessing co-defendant stand side-by-side, "the risk that the jury will not, or cannot, follow [the trial court's limiting] instructions is so great, and the consequences so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."Bruton, 391 U.S. at 135.

When re-confronted with the issue in Richardson v. Marsh, supra, however, the Supreme Court narrowed the scope of theBruton decision and held that "the Confrontation Clause is not violated by the admission of a non[-]testifying co[-]defendant's confession [when] . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at 211. In Richardson, the defendant and co-defendant were tried jointly for the crimes of murder, robbery and assault. Id. at 202. The co-defendant confessed to the charges, implicating the defendant. Id. at 203. The confession was redacted, removing any indication that the defendant himself was somehow involved. Id. at 203. The redacted confession was then used at the joint trial, even though the co-defendant did not testify.Id. at 203. According to the court, the co-defendant's confession was admissible at the joint trial so long as the statement, standing alone, did not explicitly incriminate the defendant. Id. at 208.

In Gray v. Maryland, 523, U.S. 185, 118 S. Ct. 1151 (1998), the Supreme Court expounded further upon the rules of redaction. While reiterating that redaction could successfully mitigate a potential Sixth Amendment violation, it cautioned against "statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial."Id. at 196. It held that "nicknames and specific descriptions fall inside, not outside, Bruton's protection." Id. at 195. Similar findings have been made in both the Third Circuit and other circuits when a co-defendant's statement was redacted and used during a joint trial. See, e.g., United States v. Belle, 593 F.2d 487, 493-494 (3d Cir.), cert. denied, 442 U.S. 911, 99 S. Ct. 2825 (1979) (holding that redacted confessions were admissible as long as they did not explicitly suggest the participation of the complaining defendant and citing similar cases); United States v. Vejar-Urias, 165 F.3d 337, 340 (5th Cir. 1999) ("where a defendant's name is replaced with a neutral pronoun, as long as identification of the defendant is clear or inculpatory only by reference to evidence other than the redacted confession, and a limiting instruction is given to the jury, there is no Bruton violation."); United States v. Edwards, 159 F.3d 1117, 1124-1126 (8th Cir. 1998), cert. denied, 528 U.S. 825, 120 S. Ct. 310 (1999) (use of redacted confessions of a non-testifying co-defendant did not necessarily incriminate the defendant, especially since defendant's name was replaced with a pronoun, such as "we" or "they").

In the case at bar, the Pennsylvania Superior Court, reviewing this claim on appeal from the denial of petitioner's PCRA petition, held that counsel was not ineffective for failing to seek the redaction of petitioner's name from the statement of co-defendant Bennett. Specifically, it noted that there was no mention of petitioner's name in the statement before the jury and a form of redaction had already taken place. As there was no basis for further redaction, there were no grounds for severance of the charges.

We cannot deem this ruling to be in accord with established federal law. First and foremost, petitioner has proven, by clear and convincing evidence, that the state court's findings of fact are not entitled to deference. On the March 3, 1992 day of trial, co-conspirator Kecia Ray took the stand and, on several occasions, indicated to the jury that petitioner, Anthony Wyatt, was known to her and others as "Flave." (N.T. 3/3/92, pp. 161-162, 185-186). Indeed, the trial court required petitioner to stand in order to have Ms. Ray identify him as the person she knew to be "Flave." (N.T. 3/3/92, pp. 161-162). This nickname was used to refer to petitioner throughout the course of trial. The following day, several statements were to be read into the record, including that of Bennett. Prior to the reading of the statement at issue, the Court discussed redaction with all defense counsel. Petitioner's counsel indicated that he "had no requests for redaction" with respect to Bennett's statement. (N.T. 3/4/92, p. 317). Subsequently, Bennett's statement was read into evidence, in pertinent part, as follows:

ANSWER: I didn't tell you the whole truth. This is the way it really happened. We let T.S. and Y off at 52^nd Street and Walnut, like I had said, but then me, Kecia and Flave went into the Kentucky Fried Chicken and got something to eat. T.S. and Y had came into the Kentucky Fried Chicken Place. They told us that they had gone into the jewelry store to try and pawn a ring. They said that the lady had said that she would give them $24 for the ring. So they said that they was going to stick it up. They said that they wanted me to be the lookout and to hold the door while they went in to rob the store. I told them no. So Kecia said that she would hold the door. So Y told me and Flave to wait outside the store and have the car ready.

* * *

QUESTION: So what happened next?

ANSWER: So Y took off all his jewelry and gave it to me and Flave. He kept one piece on so when they got in the store, that could be their alibi. So then Kecia, Y, and T.S., me and Flave left out the Kentucky Fried Chicken place. Me and Flave drove around the corner. We waited for T.S., Y and Kecia at 51^st and Sansom. Then Y and T.S. came running up the street. They jumped in while the car was moving and we drove back to Southwest Philly to Yogi's house.

QUESTION: Did T.S. give you the gun that he used to kill the woman in the store?

ANSWER: Yeah. Then I gave it to Flave. He put it up somewhere til we came from Jersey. Then he gave it back to me. Then I hid it in my yard. Then my nephew found it and sold it.

(N.T. 3/4/92, pp. 374-375).

In light of this progression of events, the Court finds that Bennett's statement clearly and unequivocally referred to petitioner by name, albeit his street nickname. The jury was repeatedly made aware, both prior and subsequent to the statement, that "Flave" and petitioner Wyatt were one and the same person. Thereafter, Bennett's statement incriminated "Flave" as a knowing participant in the armed robbery. As Bennett did not take the stand to testify, we must deem the introduction of the unredacted statement to be violative of the Bruton rule and the Sixth Amendment right to confrontation.

The inquiry, however, does not end at this juncture. Petitioner's habeas petition raises, not a straightforwardBruton claim, but rather an allegation of ineffective assistance of counsel for failure to seek redaction or, alternatively, severance of the Bennett statement pursuant to theBruton rule. More specifically, he argues that trial counsel could have had no reasonable basis for failing to request redaction or severance.

With respect to this issue, the Court must defer to the state court's ruling that petitioner failed to show that counsel had no rational or strategic basis for his actions. On the morning when both the Bennett and Wyatt statements were introduced, the trial judge conducted a discussion, outside the jury's presence, during which redaction was discussed. Petitioner's counsel, an experienced and well-known criminal lawyer, had apparently originally indicated to the prosecution that he sought redaction. (N.T. 3/3/92, p. 321). During the conference, however, he explicitly remarked that he had no requests for redaction as to the other statements, notwithstanding the requests made by other defense counsel, thereby evidencing that his decision was the product of reasoned analysis. (N.T. 3/3/92, p. 317). As petitioner concedes in his Traverse, counsel's conscious decision was likely grounded in the fact that petitioner faced a first-degree murder charge and that Bennett's statement evidenced his limited involvement in the crime. In other words, while implicating petitioner in the robbery and conspiracy, the statement also corroborated Kecia Ray's testimony and petitioner's own testimony that he knew nothing about the gun which T.S. carried into the store and had no reason to suspect that a killing was going to occur. Certainly, in light of the seriousness of the murder charge compared to the other charges, we cannot find that such a strategy was irrational or not based in sound trial strategy.

Nonetheless, we recognize that, absent an evidentiary hearing, any musings about counsel's strategy are mere speculation based on a blind reading of the transcripts. Even if this Court were to conclude, arguendo, that counsel's actions had no rational or strategic basis, however, petitioner stands hard-pressed to argue that he suffered prejudice as a result of his counsel's failure to seek redaction or, alternatively, severance. As a primary matter, Bennett's statement testified to a series of events that was virtually identical to that recounted by petitioner during trial, from the time they went to Kentucky Fried Chicken to the period shortly after they left the restaurant. The key difference was that, in Bennett's statement, petitioner agreed to wait in the car for the individuals committing the actual robbery while, in his testimony, he never made any such agreement. (N.T. 3/5/92, p. 583). Petitioner never denied that he was at the restaurant or that he picked up T.S. and Johnson after the shooting. Accordingly, even had Bennett's statement been redacted to eliminate any obvious reference to petitioner, the jury could easily infer, based on petitioner's own testimony, that he was the person with Bennett in the Kentucky Fried Chicken and driving the car at the time they picked up the other co-conspirators.

Moreover, the evidence against petitioner was so overwhelming as to make it improbable that the outcome would have been different had Bennett's statement been redacted or even eliminated altogether. Kecia Ray testified that, while the entire group was in the Kentucky Fried Chicken, petitioner agreed to wait in the car with Bennett for the others to rob the store. (N.T. 3/3/92, p. 193). While defense counsel attempted to impeach her with her immunity deal and with an omission from her prior police statement, her testimony regarding petitioner's involvement remained constant. In addition, petitioner also provided a statement to police, wherein he explicitly stated as follows:

Then we like all just got to talking about it, and T.S. and "Y" said they would go in the store and actually do it, and all the rest of us had to do was to look out and provide a way to get away.

Anyway, we decided that T.S. and "Y" would go in the store and Kecia would stand outside and hold the door and me and "X" would wait in the car around 51^st and Sansom Street until they got paid and then we would all take off in the car when it was done.

(N.T. 3/4/92, p. 446). Although he attempted to recant a portion of this statement at trial, he was impeached by multiple inconsistencies. As reflected by the verdict, the jury accorded little weight to this recantation. Further, petitioner conceded before the jury that he was aware, when he picked up T.S. and Johnson, "that it was likely, even probable, that they had committed a crime." (N.T. 3/5/92, p. 586). Such evidence, considered in its totality, was more than sufficient to convict petitioner of conspiracy and robbery, even without the benefit of Bennett's statement.

Finally, the trial judge gave limiting instructions on the use of the statements. Specifically, during the charge, the Court indicated that with respect to the statements from Bennett and Wyatt, they "may consider the statement each defendant made only as it pertains to him, and not as it pertains to any other defendant." (N.T. 3/9/92, p. 880). While this instruction alone would not cure any prejudice incurred from the Bruton violation, it does, in conjunction with the above facts, further mitigate any possibility that the violation contributed to petitioner's conviction.

In short, while the Court agrees that a Bruton violation did occur, based on the improper redaction of the Bennett statement, we cannot conclude that counsel's failure to object to the redaction or, alternatively, seek severance rose to the level of ineffective assistance of counsel. Petitioner neglected to demonstrate that there was no rational or strategic basis underlying his counsel's conscious decision to not request redaction or severance. Moreover, this Court cannot say that counsel's omission so seriously undermined our confidence in the outcome as to render the trial fundamentally unfair. As trial counsel was not ineffective, we cannot find error in appellate counsel's failure to raise the issue on direct appeal. Accordingly, we decline to grant habeas relief on this ground.

C. Ineffective assistance of trial, post-trial and direct appeal counsel for failure to request the trial court declare a mistrial as a result of Commonwealth's failure to provide pretrial discovery of a letter defendant wrote to Commonwealth witness Kecia Ray.

In his next claim, petitioner argues that trial counsel and subsequent counsel were ineffective for not raising the Commonwealth's alleged violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) by failing to provide certain pretrial discovery. Specifically, he contends that the prosecution never produced to the defense a letter written by petitioner to Commonwealth witness Kecia Ray, wherein he indicated that he was not involved at all with the crime and that he was outside in the parking lot cleaning his car when the robbery was planned — a statement which contradicted his trial testimony. We find this claim both procedurally defaulted and without merit.

As a primary matter, before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). In other words, a petitioner must invoke one complete round of the State's established review process. Id. at 845. However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

On appeal from his PCRA petition, petitioner alleged that trial counsel should have sought a mistrial as a result of the Commonwealth's breach of its discovery obligation, based on the theory that the letter was subject to mandatory discovery under Pa. Crim P. 305(B)(1)(b). Petitioner never raised his current habeas claim that the failure to produce the letter constituted a violation of Brady v. Maryland. ¹ Under unequivocal state law, petitioner now has no recourse for exhausting these claims. The PCRA statute states that, "[a]ny petition under this subchapter . . . shall be filed within one year of the date the judgment becomes final . . .," unless petitioner proves that he was either prevented by government officials from raising the claims, the facts upon which the claims are based were previously unknown, or the right asserted is a newly-recognized constitutional right. 42 Pa.C.S.A. § 9545(b) (1998). Petitioner's judgment became final on November 5, 1997, ninety days after the Pennsylvania Supreme Court denied allocatur.² See 42 Pa.C.S.A. § 9545(b)(3) (judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review.). Therefore, he had until November 4, 1998, to seek collateral relief under this statute. The Pennsylvania Supreme Court has conclusively established that the one-year statute of limitations acts as a jurisdictional bar and is not subject to equitable tolling. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Accordingly, any current attempt by petitioner to file a second PCRA petition raising these claims would unequivocally be deemed untimely. Because petitioner cannot now return to the Pennsylvania courts, the unexhausted claim of ineffective assistance of counsel for failure to move for mistrial due to the Commonwealth's Brady violation becomes procedurally defaulted for purposes of habeas review.³

1 To the extent petitioner is raising the claim that the failure to produce the letter violated Pa. R. Crim. P. 305, this claim is not cognizable on federal habeas corpus review. To prevail in his federal habeas corpus petition, a petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States," as opposed to a violation of state laws. 28 U.S.C. § 2254(a). Under § 2254, "a federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 875 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct 475, 480 (1991). Because this claim is based on purely state law, it is simply not cognizable in this Court.
To the extent the claim alleges the Sixth Amendment allegation of counsel's failure to raise violation of Pa. R. Crim. P. 305, this Court notes that petitioner's counsel raised a strenuous objection, proceeding over the course of five transcript pages, only to be met with a firm denial by the trial judge. (N.T. 3/5/92, pp. 607-611). In light of the trial judge's staunch refusal to consider counsel's arguments, petitioner is hard-pressed to argue that a motion for mistrial would have yielded a different response.

2 United States Supreme Court Rule 13(1) grants ninety days after the entry of judgment being appealed to file a petition for writ of certiorari.

3 To survive procedural default in the federal courts, the petitioner must either "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Petitioner alleges ineffective assistance of PCRA counsel for failure to raise this claim. Although "ineffective assistance of counsel can be cause for procedural default, the attorney's ineffectiveness must rise to the level of a Sixth Amendment violation." Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir.), cert. denied, 537 U.S. 897, 123 S. Ct. 195 (2002). A defendant has no federal constitutional right to counsel when pursuing a state collateral attack on his conviction.Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990 (1987) ("[S]ince a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, . . . he has no such right when attacking that conviction that has long since become final upon exhaustion of the appellate process."). Therefore, a failure by PCRA counsel cannot constitute cause to excuse procedural default.

Even if we were to deem the claim not procedurally defaulted, we nonetheless find it to be meritless. In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the United States Supreme Court held that, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. Dissecting this mandate, the Supreme Court subsequently enumerated three elements of a true Brady violation: (1) the evidence must be favorable to the accused as either exculpatory or impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) the evidence must be material in that prejudice did or would ensue from the suppression. Strickler v. Greene, 527 U.S. 263, 281-282, 119 S. Ct. 1936, 1948 (1999);see also Hollman v. Wilson, 158 F.3d 177, 180 (3d Cir. 1998),cert. denied, 525 U.S. 1143, 119 S. Ct. 1035 (1999) (a new trial will be granted for a Brady violation only if the defendant can demonstrate both that the prosecution withheld exculpatory evidence, and that the evidence was material, in that the defendant did not receive a fair trial because of its absence).

Brady's progeny have sought to define what exactly constitutes "exculpatory" evidence in satisfaction of the firstBrady element. "Exculpatory evidence includes material that goes to the heart of the defendant's guilt or innocence, as well as that which might well alter the jury's judgment of the credibility of a crucial prosecution witness." United States v. Starusko, 729 F.2d 256, 260 (3d Cir. 1984). Hence, impeachment evidence can constitute exculpatory evidence under Brady when the credibility of a witness may be determinative of guilt or innocence. Starusko, 729 F.2d at 260. It is well-established, however, that Brady does not require the disclosure of neutral, irrelevant or inculpatory evidence, or evidence available to the defense from other sources. United States v. Pone, Crim. A. No. 93-40-07, 1994 WL 369870, *5 n. 8 (E.D. Pa. July 15, 1994),aff'd, 52 F.3d 318 (3d Cir. 1995); United States v. MacFarlane, 759 F. Supp. 1163, 1168 (W.D. Pa. 1991).

In the case at bar, the letter at issue can hardly be considered "exculpatory" as defined in the above jurisprudence. Petitioner concedes that the letter was damaging, as the prosecutor used it to demonstrate that petitioner's trial testimony was inconsistent and that petitioner attempted to tamper with a witness. Indeed, he remarks that the use of this letter at trial caused him "substantial and severe prejudice." Traverse at 17. Moreover, since petitioner wrote the letter, it was available to him from his own sources. Such inculpatory evidence simply does not fall within the ambit of the Brady. As a result, no constitutional violation could occur by the Commonwealth's failure to produce it. In turn, we decline to find trial or appellate counsel ineffective for either failing to move for a mistrial upon introduction of this evidence or to raise the issue on direct appeal.

D. Ineffective assistance of trial, post-trial, direct appeal and post-conviction counsel for failure to request mistrial based on prosecutor's use of peremptory challenges to exclude African Americans from jury.

Petitioner's third claim challenges trial counsel's failure to request a mistrial based upon the prosecutor's use of his peremptory challenges to exclude African-Americans from the jury. Although trial counsel objected midway through voir dire, the trial court declined to compel the prosecutor to state his reasons for the strikes. Petitioner now argues that by failing to request a mistrial at the close voir dire, trial counsel's conduct fell below an objective standard of reasonableness.

Addressing the claim of ineffective assistance of counsel for failure to pursue a Batson challenge,⁴ the Pennsylvania Superior Court focused on the issue of whether counsel should have renewed his objection after it had been squarely rejected or moved for mistrial. Inquiring as to the actual merits of the Batson claim, the court noted that, during jury selection, the prosecutor struck five African-Americans and eight caucasians, while defense counsel struck nine caucasians and one African-American. At one point, following strikes against three African-Americans by the prosecution, defense counsel challenged the prosecution's exclusion of African-Americans and sought racially neutral explanations. The trial judge denied that request on the grounds that it was being used to intimidate the prosecutor. In light of these facts, the Superior Court concluded that, "[w]e cannot, as an appellate court furnished with the thumbnail sketches of the background of the excused jurors, now second guess the decision of the trial court that there was no showing of prima facie discrimination in jury selection, or find that the situation was so obvious that counsel should have persisted in his argument even after a clear dispositive ruling by the court." Superior Court Opinion (2001), p. 7.⁵

4 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (addressing racially discrminatory use of peremptory challenges).

5 Notably, the trial court found that the underlying trial court error, pursuant to Batson v. Kentucky, was waived since it had not been presented on direct appeal. Accordingly, the claim is now procedurally defaulted on federal habeas corpus review.

The Court does not deem this ruling to be either contrary to or an unreasonable application of federal law. Although petitioner couches his claim in an allegation of ineffective assistance of counsel, we must consider the underlying Batson allegation to determine whether counsel's failure to pursue the argument and move for a mistrial at the close of jury selection fell below an objective standard of reasonableness. A Batson claim presents mixed questions of law and fact. See Jones v. Ryan, 987 F.2d 960, 965 (3d Cir. 1993). The court exercises plenary review over questions of law and, pursuant to 28 U.S.C. § 2254(e), grants deference to findings of fact where not rebutted by clear and convincing evidence. Riley v. Taylor, 277 F.3d 261, 278 (3d Cir. 2001).

In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), the United States Supreme Court altered the standard of proof needed to make out a claim of purposeful discrimination in the selection of petit juries. To establish such a claim, the defendant must make a prima facie showing of a violation. Id., 476 U.S. at 93-94. Second, if the defendant succeeds, the prosecution must articulate a race-neutral explanation for the manner in which he exercised his peremptory challenges. Id. at 94. Finally, the trial court must determine whether the defendant has proven purposeful discrimination.

In the case at bar, the trial court stopped at step one of the analysis. The issue now before the Court is whether, at the close of voir dire, petitioner had sufficiently established a prima facie case of discrimination on which his counsel could have based a motion to require the Commonwealth to state its reasons for the strikes or, alternatively, a motion for a mistrial.

In order to prove a prima facie case of intentional discrimination in jury selection, under step one of the Batson analysis,

the defendant first must show that he is a member of a cognizable racial group . . . and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96 (citations omitted). "A defendant has no right to a `petit jury composed in whole or in part of persons of his own race,'" but, rather "to a jury whose members are selected pursuant to nondiscriminatory criteria." Id. at 85-86 (citations omitted). Interpreting these standards, the Third Circuit Court of Appeals has set forth a non-exhaustive five factor test to determine whether the surrounding facts and circumstances raised an inference of discrimination, including: (1) how many members of the cognizable racial group are in the venire panel from which the petit jury is chosen; (2) the nature of the crime; (3) the race of the defendant and the victim; (4) the pattern of strikes against racial group jurors in the particular venire; (5) the prosecutor's statements and questions during selection. Jones, 987 F.2d at 971. "The defendant's burden at the initial [prima facie] stage is to show merely that jurors of his race have been struck and that the strikes are indicative of an improper motive." Holloway v. Horn, 355 F.3d 707, 728 (3d Cir. 2004). Moreover, "a defendant's Batson objection need not always be based upon a pattern of strikes; it can be based, for example, on a single strike accompanied by a showing that the prosecutor's statements and questions to the juror (or to prior jurors) support an inference of discrimination." Id. "[A] prosecutor who intentionally discriminates against a prospective juror on the basis of race can find no refuge in having accepted other venirepersons of that race for the jury." Id. at 720.

Petitioner, in the case before us, is African-American and, unquestionably, the prosecution used peremptory challenges to exclude members of the African-American race. The Court must therefore query whether the facts and circumstances suggest that those challenges were used in an effort to exclude African-Americans from the jury. Accordingly, we turn to a consideration of the five factors enumerated by the Third Circuit. Under the first factor, we must discern how many members of the cognizable racial group were in the venire panel from which the petit jury was chosen. The total panel consisted of 55 potential jurors, seventeen of whom were excused by the Court, leaving a total of thirty-seven remaining jurors. Of those, nine were African-American, twenty-five were caucasian and three were of unknown race.⁶ In terms of percentages, 24% of the prospective jurors were African-American, 68% were caucasian and approximately 8% were of another or unspecified race.

6 In petitioner's exhibits, the races of the prospective jurors are identified with a "W" for white and a "B" for black. One juror, Patricia M. Higgins, is identified with an "O". As no indication is given as to the meaning of this abbreviation, the Court declines to speculate. With respect to jurors Ronald L. Barber and Lynne D. Kaiser, no indication of their race is given. Petitioner presumes that they are caucasian, but provides no basis on which this Court can do so.

With regards to the second and third factors, the crime in this case involved an armed robbery, for which petitioner was designated the getaway driver. During the course of this robbery, a Mrs. Ju Lee Yang was killed by one of petitioner's co-conspirators. As noted above, petitioner is of the African-American race, while Ms. Yang was Korean. The crime was neither racially-motivated or hate-based. Moreover, nothing in these charges or the race of the victim suggests a racially-based motive for removing black persons from the venire.

As to the fourth factor regarding the pattern of strikes against African-American jurors in the particular venire, we turn to information provided by petitioner with his habeas corpus petition. The prosecutor had a total of twelve peremptory strikes. He used his first three strikes against caucasians, two of whom were male and one of whom was female. Thereafter, he struck, in order, a black female, a white male and two black males. At that point, defense counsel made a Batson challenge, which was summarily dismissed by the trial court. Upon re-commencing jury selection, the prosecutor challenged another three white females, a white male and two black females. Taken in sum, the prosecution struck approximately 55% of the black venire persons. Defense counsel, on the other hand, struck six white males, four white females and one black male. Ultimately, the racial composition of the jury consisted of three African-Americans, eight caucasians and three jurors whose race cannot be identified from the information given.

Finally, we analyze the prosecutor's statements and questions during selection. Petitioner argues that the record shows that the prosecutor exercised peremptory challenges against African-American jurors who were college-educated or employed, but resided in Mt. Airy, Logan, Germatown or West Philadelphia. On the other hand, he accepted white jurors who were either college-educated or who resided in areas traditionally inhabited by white residents. The logical inference, according to petitioner, is that, since the challenged African-Americans were educated and qualified to serve as jurors, the only basis for removing them was their race. This Court's review of the record, however, indicates that the prosecutor's questions focused on past employment, living status and previous experiences with crime. None suggested any racially motivated intent.⁷

7 With respect to the first black juror struck by the Commonwealth, Harriet Latimore, the prosecutor elicited the facts that she had been a victim of a purse-snatching, that her daughter had been robbed while sitting in a car, that her boyfriend worked as a cook in the Philadelphia prison system for five and a half years and that she worked as a vascular cardiology technician for twenty-six years. (N.T. 2/26/92, pp. 128-131). Further, he inquired into her ability to vote for the death penalty. Finally, he asked her if the fact that the victim was a Korean female would affect her ability to be a fair juror, and she answered in the negative.
As to Joseph Wilkins, the second black juror struck by the Commonwealth, questioning by the Court and defense counsel revealed that he worked in a work release program in the Phiadelphia prison system, that his father-in-law was stabbed and killed in a fight two years earlier and that he lives with his high-school student daughter and wife who runs a day care. (N.T. 2/27/92, pp. 188-191). Thereafter, the prosecutor asked about both his previous work at Progress Lighting and his ability to vote for the death penalty. Id. at 191-192. Last, he asked whether the fact that Mr. Wilkins works for the Philadelphia prison system would impact his ability to send the defendants to prison. Id. at 192.
Turning to prospective juror Kenneth Davis, the prosecutor established that he lived in Mt. Airy, Philadelphia for twenty-three years with his parents and sister and had been working as a medic. Id. at 194. Upon further questioning, the prosecutor also elicited the fact that Mr. Davis graduated from East Stroudsburg University with a bachelor's degree. Id. Finally, the prosecutor asked whether the nature of the crime would inhibit his ability to be a fair juror and whether he could vote for the death penalty. Id. at 194-195.
The prosecutor's fourth peremptory challenge against an African-American was exercised against Crystal Brown who stated that she had a Master's degree in education and last worked as a social worker in Presbyterian Hospital. Id. at 224. The prosecutor asked only about her previous employment and qualified her ability to vote for the death penalty. Id. at 225-226.
Finally, the prosecutor challenged Hazel Robinson. On voir dire, he inquired into the two crimes of which she was a victim, her current home in Germantown, her husband's prior employment as a school district administrator, her work as a school nurse and her ability to vote for the death penalty. Id. at 255-256.

Upon consideration of the five factors in conjunction, the Court cannot deem the state court's decision, finding that counsel's actions appropriate, to be either contrary to or an unreasonable application of federal law. While this Court would have been more inclined to find a prima facie case and seek further explanation from the prosecution, we cannot disagree with the state that trial counsel's failure to pursue his motion and/or seek a mistrial fell below an objective standard of reasonableness. The crime in this case was committed by African-Americans against a Korean woman, thus taking away any specific or obvious bias potentially within a caucasian juror. The venire contained nine African-Americans, consisting of approximately 24% of the total eligible jurors. Following the strikes by the prosecution and defense, the jury was 21% African-American, a number consistent with the percentage of African-Americans in the venire. See Jones, 987 F.2d at 971 ("statistical disparities are to be examined in determining whether a prima facie case has been established."). Although the prosecutor did use five of his twelve strikes on African-Americans, the record suggests no racially-motivated pattern in his strikes. Moreover, this Court's review of the prosecutor's questioning of the African-American venire persons reveals no inference of discrimination to suggest that any one of the challenged strikes was made on the basis of race. In short, nothing in this record suggests that a Batson violation was so immediately obvious or that the trial court's ruling was so erroneous as to call into question counsel's failure to challenge this ruling. To find otherwise, would require speculation by this Court in the face of a decision made by the trial judge who stood in a unique position to assess the situation. As we deem the trial counsel ineffectiveness claim to be without merit, we likewise find petitioner's claim of appellate counsel's failure to raise the issue to be without merit as well.

Nor has petitioner established the second Strickland element of prejudice. He put forth no evidence showing that, even had counsel renewed his motion that the trial court would have effectively overruled itself and found the existence of a prima facie Batson claim or that it would have ultimately found purposeful discrimination. Moreover, even assuming arguendo that a new jury would been empaneled, petitioner fails to indicate that the outcome of his trial would have been any different especially in light of the strong evidence against him, including his confession to police and the testimony of Kecia Ray. Absent some merit to this issue, appellate counsel likewise cannot be ineffective for neglecting to raise the issue on direct appeal. Consequently, we decline to grant habeas relief on this claim.

E. Ineffective assistance of trial, post-trial and direct appeal counsel for failure to request mistrial based upon misconduct committed by prosecutor in summation.

Petitioner's final claim asserts that the prosecutor committed multiple instances of misconduct in his summation. While trial counsel objected, petitioner claims that he failed to request a mistrial. Moreover, he contends that post-trial and appellate counsel failed to raise and preserve the issue for review.⁸ Such failures, he alleges, entitle him to a new trial.

8 Petitioner also argues that PCRA counsel was ineffective for failing to preserve the issue. As noted above, however, there is no federal constitutional right to PCRA counsel, thereby making this issue not cognizable on habeas review. See Finley, 481 U.S. at 555.

The Pennsylvania Superior Court considered this precise claim on appeal from denial of petitioner's PCRA petition and declined to grant relief. It argued that to the extent the prosecutor commented on petitioner's credibility, the law permitted him to fairly characterize a defendant's testimony when there has been a conflict with a prior statement so long as it did not induce prejudice or fixed bias. With regards to the remainder of the comments, the court concluded that the arguments were within the proper bounds of fair comment on the evidence and were fair inferences and conclusions which would not, in the context of the trial, merit a mistrial. As such, it found no reason to conclude that, had counsel sought a mistrial, the outcome would have been different.

Under pertinent federal jurisprudence, we agree with this conclusion. "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 947 (1982). A petitioner seeking the writ of habeas corpus will not succeed merely because the prosecutors' actions "were undesirable or even universally condemned.⁹ Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, reh'g denied, 478 U.S. 1036, 107 S. Ct. 24 (1986) (quotations omitted). Rather, to state a claim for habeas relief based upon comments at trial by the prosecutor, a petitioner must show that the prosecutor's comments were so egregious that they fatally infected the proceedings, rendered the entire trial fundamentally unfair, and made the conviction a denial of due process. See Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871 (1974); Lesko v. Lehman, 925 F.2d 1527, 1546 (3d Cir.), cert. denied, 502 U.S. 898, 112 S. Ct. 273 (1991).

9 Although petitioner is not directly claiming a due process violation resulting from prosecutorial misconduct, "the Court views the standards for a prosecutorial misconduct claim as helpful in establishing the parameters of reasonableness for a prosecutor's comments and whether any objections to those comments would have been sustained." Lawrie v. Snyder, 9 F. Supp.2d 428, 443 (D. Del. 1998), certification denied, 176 F.3d 472 (3d Cir.), cert. denied, 526 U.S. 1081, 119 S. Ct. 1993 (1999).

A prosecutor's comments during closing arguments must be directed to an understanding of the facts and of the law rather than to passion and prejudice. Lesko, 925 F.2d at 1545 (citingUnited States ex rel. Perry v. Mulligan, 544 F.2d 674, 680 (3d Cir. 1976), cert. denied, 430 U.S. 972, 97 S. Ct. 1659 (1977)). In evaluating whether petitioner was denied his right to a fair trial as a result of the prosecutorial argument, the Court must look at the prosecution's comments in the context of the trial.Laird v. Horn, 159 F. Supp.2d 58, 129 (E.D. Pa. 2001). Where an error occurs, the inquiry then becomes whether, in light of the record as a whole, the prosecutor's conduct "had substantial and injurious effect or influence in determining the jury's verdict."Brecht v. Abramson, 507 U.S. 619, 638, 113 S. Ct. 1710, 1722 (1993), reh'g denied, 508 U.S. 968, 113 S. Ct. 2951 (1993) (quotations omitted).

In this case, petitioner cites several portions of the prosecutor's argument which allegedly prejudiced his trial. Specifically, he asserts that the prosecutor: (1) improperly commented on his credibility; (2) improperly vouched for the credibility of a Commonwealth witness; (3) attempted to inflame the passions of the jury by making made undue reference to the victim and the victim's clothing. For ease of discussion, we consider each individually.

1. Comments on Petitioner's Credibility

In the first group of challenged remarks, the prosecutor stated:

This man who doesn't want to be convicted of first degree murder, he got on the stand and when I was thinking about him I said he is the trusting man of many tales.

* * *

Silent trusting man of many tales. Tales, many tales. At least five that we know of.

* * *

So the man of many tales has told at least five versions. The kite version clearly doesn't fly so he figured he would try another one.

* * *

I asked Detective Devlin, "In your 25 years, what does it mean?" It means to rob somebody. He doesn't want to admit he knew there was going to be a robbery. He said something like it means to take something, no force. Nor force, yes. That is that young man who possibly wouldn't know the truth if it bit him on the posterior.

(N.T. 3/9/92, pp. 807-814). Petitioner now argues that these comments constituted the prosecutor's injection of his personal opinion regarding petitioner's credibility. Such comments, he claims, are improper under pertinent jurisprudence and infringed upon the jury's exclusive credibility determining function.

Standard 5.8(b) of the ABA Prosecution Standards states that, "[i]t is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence of the guilt of the defendant." See ABA Prosecution Standards, Commentary to Standard 5.8(b). Likewise, the Third Circuit has held that "[i]t is clearly improper to introduce information based on personal belief or knowledge." United States v. Zerbach, 47 F.3d 1252, 1266, n. 11 (3d Cir.), cert. denied, 514 U.S. 1067, 115 S. Ct. 1699 (1995). Nonetheless, while prosecutorial expressions of personal belief on an accused's credibility are strongly condemned, "such expression is not reversible error when the remarks fairly construed refer only to belief based on the evidence and not to an opinion formed from facts not in evidence." United States v. LeFevre, 488 F.2d 477, 479 (3d Cir. 1973) (quoting United States v. Schartner, 426 F.2d 470, 477 (3d Cir. 1970)). Courts within the Third Circuit have repeatedly declined to reverse a conviction where the prosecution's comments as to a defendant's or defense witness's credibility were grounded in the evidence of record. See, e.g., Government of Virgin Islands v. Joseph, 770 F.2d 343, 349 (3d Cir. 1985); Jacobs v. Horn, 129 F. Supp.2d 390, 420 (M.D. Pa. 2001); United States v. Lively, 817 F. Supp. 453, 465 (D. Del.), aff'd, 14 F.3d 50 (3d Cir. 1993).

In the case at bar, petitioner told multiple conflicting versions of the crime and his participation through his statement to police, a letter written to witness Kecia Ray and his testimony at trial. The sheer fact that such conflicting stories existed reflected on the veracity of petitioner and the credibility of his trial testimony. In the challenged remarks, the prosecutor clearly referred to this evidence of record in commenting that petitioner was a "man of many tales" and "wouldn't know the truth if it bit him on the posterior." As such statements were unequivocally based on facts in evidence, we decline to find that they rendered petitioner's trial fundamentally unfair. Because counsel cannot be ineffective for failing to raise or pursue a meritless claim, we deem plaintiff's allegation of ineffective assistance to be baseless.

2. Vouching for Credibility of a Commonwealth Witness

In the second challenged portion of the Commonwealth's closing argument, the prosecutor stated:

Shed not a tear for Kecia Ray. Weep not for her, had she not entered the plea agreement so she could tell you what went on in the restaurant. There were only five people. She was picked. You say why, why, why, why.

At a later time you come back and I will tell you why. I can't tell you why now but the more time you spend thinking about that, the less time you will spend thinking about the evidence establishing the guilt of these defendants.

(N.T. 3/9/92, p. 817). Petitioner claims that this statement was improper as it amounted to improper vouching for a Commonwealth witness by the prosecutor, who relied on facts outside the record. This Court again finds no merit to this claim.

"Vouching constitutes an assurance by the prosecuting attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury." United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998) (citing United States v. Lawn, 355 U.S. 339, 359 n. 15, 78 S. Ct. 311, 323 n. 15 (1958)). When a prosecutor vouches for the credibility of a government witness, two concerns come into play: "(1) such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and (2) the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." Id. (citing United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1048 (1985); United States v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir. 1996)). Controlling jurisprduence regarding vouching does not require reversal per se, but rather demands review of such comments on a case-by-case basis. Id. at 184-185.

For a finding of vouching to be made, two criteria must be met: "(1) the prosecutor must assure the jury that the testimony of a Government witness is credible; and (2) this assurance is based on either the prosecutor's personal knowledge, or other information not contained in the record. . . . The defendant must be able to identify as the basis for [the prosecutor's comment on witness credibility] explicit or implicit reference to either the personal knowledge of the prosecuting attorney or information not contained in the record." United States v. Brennan, 326 F.3d 176, 183 (3d Cir.), cert. denied, 124 S. Ct. 248 (2003) (quoting Walker, 155 F.3d at 187). A "prosecutor is engaging in proper argument and is not vouching" when he argues that "a witness is being truthful based on the testimony given at trial, and does not assure the jury [of] the credibility of the witness based on his own personal knowledge[.]" Walker, 155 F.3d at 187.

The statements at issue did not constitute proper vouching. Indeed, it is far from clear that the prosecutor made any reference to Kecia Ray's credibility at all. Nor did the statement improperly refer to things outside the record or suggest that she be believed due to facts unknown to the jury. Rather, he mentioned only the plea agreement, which she received in exchange for her testimony. Thereafter, he indicated to the jury that they need not dwell on the defense's attempts to distract them into wondering why she, of the five co-conspirators, was chosen to speak for the Commonwealth.¹⁰ (N.T. 3/9/92, p. 817). Even if the remark could be broadly construed to constitute vouching on the basis of facts outside the record, the Court finds the comment to be so obscurely stated as to have no impact on the fundamental fairness of petitioner's trial. As we find no grounds for objection to this statement, we decline to deem counsel ineffective for not moving for a mistrial on this basis or for not pursuing it on appeal.

10 In support of his argument, petitioner cites toCommonwealth v. Bolden, 323 A.2d 797 (Pa.Super. 1974). That case involved the defendant's sale of heroin to an undercover officer. Id. at 798. The Commonwealth's case rested solely on the testimony of that officer and the testimony of another officer who confirmed the contact between the undercover officer and petitioner, but did not witness the sale. Id. The defendant denied that he either possessed or sold the drugs. Id. During closing, the prosecutor stated that "there are certain things that I cannot tell you referring to this case." Id. Reversing the judgment of sentence, the Pennsylvania Superior Court held that "[w]hile the comment did not refer to any particular factual matter, the implication is clear that there existed other incriminating or sinister facts which either were inadmissible or could not be produced. The reference could only lead to wild speculation by the jury in their determination of guilt. The injection of this comment in a case which depended upon a resolution of conflicting testimony may well have influenced the verdict reached by the jury." Id. at 799.
The case before the Court, however, is distinguishable. The prosecutor argued to the jury that he could not explain why Kecia Ray was picked for a plea bargain over the other defendants and that, on another date and time, he could tell them. Taken in isolation, this comment appears to have suggested to the jury that the prosecutor had knowledge of facts outside the record which were more incriminating. Considered in its appropriate context, however, the comment did no such thing. Rather, it was nothing more than a remark that the jury should disregard the defense's attempts to distract them with the issue of Kecia Ray's immunity. Indeed, shortly after this remark, the prosecutor explained, "[w]hat I am saying, Kecia Ray's deal is a red herring. Don't let that throw you off the track of the guilt of these defendants. Don't go for the red herring." (N.T. 3/9/92, p. 817). Nothing in this comment rises to the level of prejudice found by the court in the Bolden case. In any event, the trial court specifically instructed the jury that they were "not to concern [them]selves in any way about the reasons Kecia Ray got the deal . . ." (N.T. 3/9/92, p. 877).

3. Inflammatory Comments

In the final set of comments at issue, the prosecutor stated:

Do I want to prejudice you by that? Surely not. Insofar as I do say they are wrong, I know what is in my heart and soul. And the reason is I want you to be reasonable, thinking common sense feelings. If I wanted to prejudice you, I would have this stench of death in the courtroom. I would unwrap these clothes that have been in this bag, three or four plastic bags with the blood on them and the stench of death would have permeated this courtroom, but I didn't do that.

I brought those clothes in because the doctor was here. If the doctor wanted to compare the bullet holes, the defense wanted to compare the bullet hole, they could. I haven't done that because I don't want to prejudice you. I want you to be fair, objective jurors.

(N.T 3/9/92, pp. 824-825). The prosecutor then took the bag of clothing and tossed it under the counsel table. Id. at p. 826. Further, the prosecutor remarked:

[W]e will never know what had been going through her mind. She is not going to come in here and tell us. You can imagine the terror and the fright and the horror. What do I do?

(N.T. 3/9/92, p. 835). Petitioner contends that these arguments were calculated to improperly inflame the passions or prejudices of the jury and to appeal to the jurors' sympathy for the victim.

The Court disagrees. The prosecution is "accorded reasonable latitude and may employ oratorical flair arguing its version of the case to the jury." Henry v. Horn, 218 F. Supp.2d 671, 705 (E.D. Pa. 2002) (quoting the Pennsylvania Supreme Court and noting that this standard is not contrary to the federal Darden standard for adjudging claims of prosecutorial misconduct). The prosecutor used that latitude in the challenged comments. At no point did he display the bloody clothes of the victim, but merely stated that they existed and that they bore the "stench of death." Moreover, he did not improperly appeal to the emotions of the jury when remarking on the victim's terror, but simply invited the jury to use its common sense in imagining the nature of the crime. Nothing in our federal law precludes a prosecutor from commenting upon the victim during a murder trial. While such arguments were indeed harmful to petitioner's defense, they were not unduly prejudicial such that they rendered the trial fundamentally unfair.

In any event, defense counsel lodged an objection to these comments and the trial judge dismissed it as meritless. The record fails to suggest that a motion for a mistrial would have been successful. Nor does this Court find that a challenge to the comments during direct appeal would have yielded any different result. Accordingly, we dismiss this claim.

In light of the foregoing, I make the following:

RECOMMENDATION

AND NOW, this ____ day of October, 2004, it is RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.