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Wallace v. Price

United States District Court, W.D. Pennsylvania
Oct 1, 2002
Civil Action No. 99-231 (W.D. Pa. Oct. 1, 2002)

Opinion

Civil Action No. 99-231

October 1, 2002


CAPITAL CASE


REPORT AND RECOMMENDATION

On October 30, 1985, a jury empaneled by the Court of Common Pleas for Washington County, Pennsylvania, found the petitioner, William Wallace, Jr., guilty of first-degree murder in the death of Tina Spalla and second-degree murder in the death of Carl Luisi, Sr. The jury also found Wallace guilty of robbery and conspiracy. The following day, the same jury sentenced him to death on his first-degree murder conviction. At issue today is Wallace's amended petition for habeas corpus relief, filed pursuant to 28 U.S.C. § 2254 (1994 Supp. 2001). Dkt. no. 12. In this petition, Wallace argues that the proceedings against him were infected with federal constitutional error and that he is entitled to either a new trial or, at a minimum, a new sentencing hearing.

As to his conviction for first-degree murder, I agree. At trial, the Commonwealth's star witness was Henry Eugene Brown, and he testified that Wallace fired the shot that killed Tina Spalla. Twice Wallace tried to admit Brown's confession that he — and not Wallace — had shot Spalla; and twice, the trial court barred the statement. These rulings violated Wallace's rights under the Sixth and Fourteenth Amendments and had a substantial and injurious effect on the jury's verdict of first-degree murder. Accordingly, I recommend that Wallace's conviction for first-degree murder (and consequently his death sentence) be vacated. As to his remaining convictions, however, my recommendation is just the opposite. While Wallace has raised serious questions about the constitutionality of the proceedings against him, I ultimately recommend that the challenge to his convictions for second-degree murder, robbery, and conspiracy be denied. My reasoning is set forth in the following pages.

I. FACTS AND PROCEDURAL HISTORY

Shortly after 5:00 p.m. on August 17, 1979, two men, armed with handguns, entered Carl's Cleaners in Canonsburg, Pennsylvania. (Third Trial Tr., at 612). Several minutes later, Carl Luisi Sr., the owner of Carl's Cleaners, was found dead, having been shot twice, once in the abdomen and once in the back. Id. at 268-70, 352-53. Tina Spalla, a fifteen-year-old employee, was also shot. Id. at 273. She had been standing behind the cash register, with the drawer open, when a single bullet pierced her chest and passed through her heart. Id. at 273-74. For nearly an hour emergency personnel tried to revive the young girl, unfortunately with no success. Id. at 324, 329-30, 353-54. Shortly before 6:00 p.m., she died as well. Id. at 490. The two men who took these two lives received no great payoff, just the day's receipts, a mere $227.05. Id. at 490-91.

Throughout this Report and Recommendation, I will refer to the transcript of Wallace's trial as follows: (Third Trial Tr., at ___).

Within hours, the police began to piece together the facts of the crime. Several witnesses said that they saw two black males fleeing the cleaners just seconds after the fatal shots were fired. Both men had guns, and one of them wore a long tan trench coat. Id. at 412-16, 440-44. Further investigation showed that the same two men had been seen in the area, shortly before the crime, driving in a brown car with Ohio license plate number M93374. Id. at 357-59, 376-78, 384-87, 392-95, 461. Finally, fingerprints lifted from the crime scene revealed a left thumb print on the cash register drawer just steps from where Tina Spalla's body lay. Id. at 244-45. Both the fingerprint and the car belonged to the same man: Henry Eugene Brown. Id. at 244-46, 501.

With the investigation gathering steam, the Pennsylvania State Police put out an APB, requesting that all units "be on the lookout for a brown `72 Buick, four-door, Ohio registration number M93374, occupied by two Negro males . . ." Id. at 461. On August 20, 1979, investigators in Wheeling, West Virginia located the vehicle parked in front of the Vineyard Hills apartment complex. Id. at 462. Shortly after police found the car, two black males approached it, opened the passenger door, and began searching through the glove compartment. Id. at 464. When the police moved-in to make an arrest, one of the men, Henry Eugene Brown, fled. Id. at 464-65. The other man cooperated and was taken into custody. That man was the petitioner, William Wallace.

Weeks later, Brown was arrested outside Detroit, Michigan. Id. at 624.

From the start there was little direct evidence linking Wallace to the crime. None of the eyewitness could identify him as one of the two males seen near the crime scene around the time of the murders. None of the fingerprints lifted from Carl's Cleaners matched Wallace's own. None of the money taken from the cleaners was found in Wallace's possession. And the murder weapon was never found on Wallace's person or among his possessions. As Pennsylvania State Trooper Paul Bivens admitted, law enforcement officials did not find "any evidence, any fingerprints or anything that identifie[d] Mr. Wallace as being present at the scene of the crime[.]" Id. at 252-53.

Nevertheless, investigators believed that Wallace had committed the murders and their belief was bolstered by a few significant pieces of evidence. First, investigators recovered a brown trench coat belonging to Wallace and subsequently learned that Wallace had worn this trench coat on August 17, 1979. Id. at 541. The coat was the same style and color worn by one of the two men seen fleeing Carl's Cleaners on the day of the murders. Id. at 415-16, 441, 541, 571. Second, investigators discovered that Wallace spent much of August 17, 1979, traveling with Henry Brown in Brown's car, id. at 535-41, the same car observed at the murder scene by numerous witnesses. Id. at 357-59, 376-78, 384-87, 392-95, 461. Third, they learned that Wallace owned a .32 caliber gun, id. at 540, the same kind of gun that was used to shoot Carl Luisi, Sr. and Tina Spalla, id. at 291-92, 535-36, and that Wallace was carrying this gun on the day of the murders. Id. at 540. Finally, investigators were approached by a man named Olen Clay Gorby, a cellmate of Wallace's in the Washington County jail, who claimed that Wallace had confessed to committing the crimes in question. Id. at 758-60.

On the basis of this evidence the Commonwealth charged Wallace with first-degree murder for the deaths of Spalla and Luisi, robbery, and criminal conspiracy. Wallace was tried on these charges on December 3, 1980. Commonwealth v. Wallace, 455 A.2d 1187, 1188 (Pa. 1983) ("Wallace I"). This first trial ended in a mistrial because the jury was unable to reach a verdict. Id. A second trial commenced on February 2, 1981, and, this time, Wallace was convicted of first-degree murder for the death of Spalla, second-degree murder for the death of Luisi, robbery, and criminal conspiracy. Id. On the first-degree murder conviction, the jury sentenced Wallace to death. Id. at 1188-89. This verdict, however, did not withstand appeal. The Pennsylvania Supreme Court vacated Wallace's convictions and remanded for a new trial. Id. at 1193. In particular, the Court found that the Commonwealth had knowingly elicited "false" testimony from its star witness, Olen Clay Gorby, id. at 1191, and that it had concealed evidence about Gorby's past criminal record and identity. Id. at 1191-93.

At each of these two previous trials, Henry Brown did not testify, even though he had given a statement to the police admitting his own complicity in the robbery and implicating Wallace in the murders of Luisi and Spalla. Twice Brown had pled guilty to two counts of second degree murder. (Third Trial Tr., at 653, 665-66). Twice he had been sentenced to life in prison. Id.; see also id. at 108. And twice, he had refused to testify against Wallace. Id. at 662-64, 669, 672. As the date of Wallace's third trial approached, Brown was still serving a life sentence and still refusing to testify against Wallace.

On the eve of the third trial, therefore, the Commonwealth faced a serious problem. Without Brown's testimony, its entire case turned, once again, on the testimony of Olen Clay Gorby. But, unlike the first two trials, Gorby was now bound to face a prolonged and serious attack on his credibility. Unable to obtain a lasting conviction on two previous occasions, the Commonwealth entered the third trial with an even weaker case than it had before. Something had to be done to bolster its case and guarantee a conviction. To the Commonwealth, at least, that something was obvious: it had to secure Brown's testimony once and for all.

On the morning of Wallace's third trial, the Commonwealth offered Brown what defense counsel called "the deal of the century." Id. at 689. The deal was this: if Brown agreed to testify against Wallace, then his life sentence would be reduced to ten to twenty years, with a credit for six years served, and a guarantee that the Commonwealth would recommend parole at the earliest possible date. (Plea Agreement, ¶¶ 1(c)-(d), 2, 5-6). In simple terms, Brown, a man who was staring two life sentences directly in the face, was offered an opportunity to be released from jail "as soon as possible." (Third Trial Tr., at 674). Obviously, Brown accepted the deal and agreed to testify against Wallace at his third trial.

His testimony was exactly what the Commonwealth needed to obtain a conviction. Brown explained that he and Wallace drove into Canonsburg, Pennsylvania in Brown's car shortly before 5:00 p.m. on August 17, 1979. Id. at 607-10. At the time, Wallace wore a beige trench coat, id. at 611, and carried a .32 caliber handgun. Id. at 606. The two men entered Carl's Cleaners and asked Tina Spalla, who was standing behind the front counter, for a price list. Id. at 612. When Spalla bent over to retrieve the list, both men drew their guns. Id. Immediately, Wallace disappeared into a back room, and Brown began taking the money out of the open cash register. Id. Just then, Brown heard a shot. Turning, he saw Wallace step out of the back room with Carl Luisi, Sr., doubled-over and holding his stomach, a few steps behind. Id. at 613. As Luisi fell to the floor, Wallace shot him a second time — this time in the back. Id. Without wasting a moment, Wallace rushed toward the cash register and ordered Brown to "shoot the girl." Id. at 614. But Brown refused. "At that point[, however, Wallace] didn't hesitate," he raised his gun and shot Spalla himself. Id. The two men fled the store and jumped into Brown's car. Id. at 616-17. As they sped out of Canonsburg, Brown asked Wallace why he had shot Luisi and Spalla. Showing little concern, Wallace responded: "that's just two more whites dead, don't worry about it." Id. at 617.

The jury that heard this evidence convicted Wallace of all charges against him. The following day, the same jury sentenced him to death on his conviction for first-degree murder. Id. at 1017. Wallace appealed his conviction and sentence to the Pennsylvania Supreme Court. On July 5, 1989, that Court affirmed his conviction and upheld his death sentence in a five to two vote. Commonwealth v.Wallace, 561 A.2d 719, 729 (Pa. 1989) ("Wallace II"). On October 3, 1989, Wallace's conviction became final.

This included a charge for first-degree murder in the death of Spalla, second-degree murder in the death of Luisi, robbery, and criminal conspiracy. Wallace's third jury was not instructed on first-degree murder for the death of Luisi because the jury at the second trial had acquitted Wallace of this charge. Wallace I, 455 A.2d at 1188.

Under Rule 13 of the Rules of the United States Supreme Court, Wallace had ninety days to file his petition for certiorari "from the date of entry of the judgment or order sought to be reviewed. . . ." Accordingly, Wallace had until October 3, 1989 to file his petition for certiorari. Because he did not file such a petition, his conviction became final on that date for purposes of this federal habeas petition.

He subsequently filed various pleadings with the Court of Common Pleas and the Pennsylvania Supreme Court under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. On June 15, 1995, he filed a pro se PCRA petition, seeking relief from both his conviction and death sentence. ("Pro Se Petition"). After appointment of counsel and the filing of an amended petition, Wallace filed a second amended petition on September 1, 1995. ("Second Amended Petition"). On November 6, 1995, the PCRA court held a hearing on various claims raised in Wallace's second amended petition. (PCRA Hearing Tr., 11/6/95, at 1). Less than a month later, that court issued a twenty-four page opinion, denying relief. (PCRA Court Op., 12/5/95, at 24). More than three years later, the Pennsylvania Supreme Court affirmed the PCRA court's decision. Commonwealth v. Wallace, 724 A.2d 916, 925 (Pa. 1999) ("Wallace III").

Within weeks, Wallace's lawyers entered their appearance on his behalf in the United States District Court for the Western District of Pennsylvania, again seeking relief from his conviction and death sentence. Wallace v. Price, Civil Action No. 99-231 (February 11, 1999). The case was assigned to United States District Judge Sean J. McLaughlin who, in turn, referred the case to this Magistrate Judge. Dkt. nos. 2-3. A number of weeks thereafter, Wallace filed a petition for habeas corpus relief under 28 U.S.C. § 2254, dkt. no. 5, and an amended petition. Dkt. no. 12. It is this amended petition that is at issue today. In it, Wallace raises twelve claims for relief, ten of which focus exclusively on the constitutionality of his convictions. Id. Before delving into the merits of these claims, however, I will briefly outline the statute that governs their disposition.

This was not the first time Wallace had made an appearance in federal court. In December 1991, in fact, he filed a petition for writ of habeas corpus, alleging numerous claims of relief. Wallace v. Domovich, Civil Action No. 91-2209 (December 31, 1991). After nearly two years, that petition was dismissed without prejudice due to Wallace's failure to exhaust his state court remedies. Dkt. nos. 42-43.

II. STANDARD OF REVIEW

Wallace filed his petition for habeas corpus relief after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132 § 104, 110 Stat. 1214, so that statute applies to his case. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Of particular importance in this case is § 2254(d) which creates a deferential standard of review for federal habeas corpus petitions. This section provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

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(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.
28 U.S.C. § 2254(d)(1). The United States Supreme Court interpreted this standard for the first time in Williams v. Taylor, 529 U.S. 362 (2000). Subsequently, in Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000), the Court of Appeals for the Third Circuit set out the manner in which a district court should proceed when reviewing a habeas petition under § 2254(d)(1).

First, with respect to the case under review, the court must identify the law which is clearly established by the Supreme Court. Williams, 529 U.S. at 390; see also Hameen, 212 F.3d at 235. The phrase "clearly established Federal law" "refers to the holdings, as opposed to the dicta," of Supreme Court opinions at the time that the state court conviction became final. Williams, 529 U.S. at 390 ("[t]he threshold question under AEDPA is whether Williams seeks to apply a rule of law that was clearly established at the time his state-court conviction became final."). While this requirement does not incorporate wholesale the Supreme Court's holding in Teague v. Lane, 489 U.S. 288 (1989), it is similar to Teague in at least one respect: "any decision that would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1)." Williams, 529 U.S. at 412; see also Moore v. Morton, 255 F.3d 95, 104-05 (3d Cir. 2001).

In Teague, the Supreme Court held that federal courts should not grant habeas relief when a petitioner relies on a new rule of constitutional law. Teague, 489 U.S. at 316. Under Teague, "a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government." Id. at 301. Accordingly, a rule of law is "old" under Teague if it is dictated or "compelled" by the precedent existing at the time the petitioner's state court conviction became final. Saffle v. Parks, 494 U.S. 484, 488 (1990).

Once the court determines the clearly established law, it must then decide whether the state court's decision was "contrary to" or "an unreasonable application of" that law. 42 U.S.C. § 2254(d)(1). These two clauses have independent meaning. Williams, 529 U.S. at 405, 407. Under the "contrary to" clause, a federal habeas court may grant the writ in only two instances: 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 decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Id. at 412-13. "[A] run-of-the mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner's case [does] not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Id. at 406.

Under the "unreasonable application" clause, a federal habeas court may grant the writ even if the state court identifies the correct legal principle, as long as the court unreasonably applies that principle to the facts of the case. Williams, 529 U.S. at 413. The Third Circuit explained the manner in which a district court should apply this prong of § 2254(d)(1) in Hameen:

The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Thus, under the "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that 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."

Hameen, 212 F.3d at 235 (quoting Williams, 529 U.S. at 418-411).

The Williams Court noted two instances when the "unreasonable application" prong may apply: 1) when "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case"; or 2) when "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407-409; see also Hameen, 212 F.3d at 253 (McKee, J., concurring).

But § 2254(d)(1) does not apply to all cases that otherwise fall within AEDPA's reach. The introductory sentence of § 2254(d)(1) explicitly limits deferential review to only those claims that were "adjudicated on the merits in State court proceedings." 42 U.S.C. § 2254(d)(1). "It follows that when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standards provided by AEDPA and explained in Williams do not apply." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). In such cases, the court should exercise "pre-AEDPA independent judgment." Hameen, 212 F.3d at 248; see also Appel, 250 F.3d at 210. Under this pre-AEDPA standard of review, the district court reviews de novo pure questions of law and mixed-questions of law and fact. Appel, 250 F.3d at 210; Williams, 529 U.S. at 400-402 (O'Connor, J., concurring). In either case, whether the pre or post-AEDPA standard applies, the state court's factual findings are presumed correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. Appel, 250 F.3d at 210 (citing 28 U.S.C. § 2254(e)(1)).

With these legal standards in mind, I now address the merits of Wallace's petition.

III. GUILT-PHASE CLAIMS

Wallace has raised ten claims that challenge the constitutionality of his convictions for first-degree murder, second-degree murder, robbery, and conspiracy. Rarely have I encountered a petition that raises such close and difficult questions of federal constitutional law. After thoroughly reviewing Wallace's guilt-phase claims, I recommend that his conviction for first-degree murder be vacated. As to all other claims, I recommend that they be denied.

It is unclear whether Wallace's conviction for robbery is even at issue in this petition because the trial court did not sentence him on this conviction, deeming it merged with his conviction for second-degree murder. Because the parties do not raise this issue, and because it makes little difference to my resolution of this petition, I present this Report Recommendation as though all four of Wallace's convictions are at issue.

A. Trial Court's Refusal to Admit Brown's Statement That He "Shot the Girl."

Wallace first claims that his conviction should be vacated because the trial court refused to admit, either as substantive evidence or for impeachment purposes, Henry Brown's statement that he, and not Wallace, shot Tina Spalla. Wallace argues that this error violated the Sixth, Eighth, and Fourteenth Amendments. While this claim was raised before the Pennsylvania Supreme Court, Wallace II, 561 A.2d at 725-26, that court did not address the federal constitutional issues that are before me today. Accordingly, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be granted in part and denied in part.

This is Claim I in Wallace's amended petition. (Amended Petition, dkt. no. 12, Claim I, at 17).

(1) Factual Background

At its core, Wallace's claim turns on the admissibility of one phrase: "[I] shot the girl." A few days after the murders, Henry Brown allegedly said these words to his then girlfriend, Anita Johnson. Johnson, in turn, gave a written statement to the police in which Brown's damaging words were duly recorded.

I asked Henry what happened. He told me that they went to a cleaners and that when they walked in, they had their guns. Tippy had told the man and the girl if they would be cool, nobody would get hurt. First of all, Henry called Tippy "trigger happy" because Tippy had shot the man and then, as the man was falling he shot him again. He told me the man was shot in the front and in the back. He said that the people at the cleaners must have had a good day. The man acted like he didn't want to give up the money. I guess Tippy was scared to go in the back. Henry said something about the money box being in the back. Henry told me he didn't want to touch the cash register because there would be fingerprints and he snatched the money out of the girl's hand and as he was leaving he shot the girl.

Wallace's nickname was "Tippy."

(Statement of Anita Louise Johnson (quoted in dkt. no. 20, at 24-25)) (emphasis added) ("Johnson Statement"). At trial, Wallace's counsel tried to place this statement in evidence on three different occasions. First, he tried to use it during his cross examination of Anita Johnson. Later, during Brown's cross examination, he tried to get Brown to admit making the statement, with little success. Finally, during the defendant's case in chief, he tried to recall Anita Johnson to the stand to impeach Brown's testimony. Each time, however, counsel's efforts were stymied by court rulings barring the admission of the statement at issue. Before turning to the constitutional questions raised by these rulings, I briefly outline the drama surrounding the admission of these four simple words.

(a) Testimony of Anita Johnson

At trial the Commonwealth introduced the testimony of Anita Johnson. (Third Trial Tr., at 537-75). At the time of the murders, Johnson was Henry Brown's girlfriend, id. at 538, and at trial she offered important testimony about the activities of Brown and Wallace both before and after the crime. During cross examination, defense counsel tried to question Johnson about Brown's statement that he, and not Wallace, shot Tina Spalla. (Johnson Statement, dkt. no. 20, at 24-25).

Q. Miss Johnson, you gave a statement, did you not, dated the 23rd of August, 1979?

A. Yes.

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Q. Didn't you . . . state that after Henry left he showed you that one of the bullets was gone from his .38?

A. Yes.

Q. He did show you that, didn't he?

A. Yes.

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Q. Did Henry also tell you that he shot the girl?

MR. PETTIT: Objection, Your Honor.

THE COURT: Sustained.

Q. Miss Johnson, did you say in your statement that you gave to the police —

MR. PETTIT: Objection, Your Honor.

THE COURT: Let's have a side bar.

(Third Trial Tr., at 559-63). During the side bar, the trial judge sustained the Commonwealth's objection and reminded defense counsel of an earlier ruling in which he had held that Brown's statements to Johnson were inadmissible hearsay. Id. at 554-58, 563. Though defense counsel continued to ask Johnson about her conversations with Brown, all Johnson would say was that "Henry mentioned something about something." Id. at 573. The jury never heard about Brown's prior statement that he "shot the girl." (Johnson Statement, dkt. no. 20, at 24-25).

(b) Cross-Examination of Henry Brown

Defense counsel again tried to introduce Brown's prior statement during Brown's own cross examination.

Q. Mr. Brown, you told Miss Johnson that you shot the little girl, is that correct?
A. Yes. No, wait a minute, I did say something to her to that effect, but I didn't — I don't remember exactly whether I did or not.

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Q. You are aware that when they found [your] gun there was one bullet missing and there was one chamber empty, is that not correct?

A. Yes.

Q. Didn't you show Anita [Johnson] that .38 caliber gun and show her where the bullet was missing and say that you had shot the girl?

A. No, I didn't.

Q. You didn't say that?

A. No, I didn't.

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Q. You had a discussion with Anita concerning what had happened in your involvement in Canonsburg, did you not?

A. Yes, I did.

Q. Do you remember how long that discussion took?

A. It was a brief conversation between her and myself. I told her when I came in, after I took a bath and you, because I was still tired when I came in from the day's activities, and I mentioned to her that we had robbed a cleaners and two people were shot.

Q. You told her that you shot the little girl, didn't you?

A. I don't remember that, no.

Q. Mr. Brown, do you remember telling the police that Anita was going around bragging about what you told her to everything on the hill?
A. I was running at the time, I don't know what she was doing.

Q. You don't remember telling the police in January, 1980?

A. This is something I heard, I don't know.

Q. But you told the police, didn't you, that Anita was bragging?

A. This is what I heard, yes.

Q. What did you hear?

A. That she was running around bragging, that's it.

Q. Bragging about what?

A. That I was supposed to have shot the girl and that Tippy shot the man twice.
Q. And she was bragging because you told her that, didn't you?

A. No.

(Third Trial Tr., at 703-06) (emphasis added).

On direct examination, the Commonwealth also elicited testimony about whether Brown had told Johnson that he "shot the girl." In response, Brown said "I may have, but I don't remember saying anything to her about that no." Id. at 621. When asked again, he gave a similar response: "I may have. We'd been tired and we were driving most of the day, so I was pretty out of it, so I may have said something. I don't remember." Id.

(c) Counsel's Attempt to Recall Anita Johnson

Unable to obtain a clear admission from Brown, defense counsel, Thomas Vreeland, re-called Anita Johnson to impeach Brown with his own statement that he "shot the girl." Id. at 869.

MR VREELAND: Your Honor, Miss Johnson testified for the Commonwealth earlier in this case, and we reserve the right to call her on cross examination. Specifically, we were not allowed to ask questions concerning certain discussions [Brown] had with Miss Johnson, and these discussions related to Henry Brown's admission to her that he had shot the girl, and we would like to bring her to the stand to cross examine her concerning those discussions which she had with Mr. Brown.

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THE COURT: Let's get more specific. What is it you are going to ask her? You can ask leading questions.

MR. VREELAND: Did Brown tell her that he shot the girl.

THE COURT: All right. What did Henry Brown say to that question? You can only offer it, in other words, you can only bring Anita Johnson back to contradict his testimony.

MR. McCUNE: That's right.

THE COURT: Now because I was listening for that in your cross examination, you asked it two times.

Mr. James McCune was also defense counsel for Wallace.

MR. VREELAND: I asked it more than two times.

THE COURT: He answered twice with one variation the same way. The first time he said I don't remember. The next time he said I may have, I don't remember. That's what he said.
MR. PETTIT: And he has not denied that, Your Honor, so there would be nothing inconsistent about this, and therefore, it would be improper and inappropriate.
THE COURT: Any other questions you want to ask her with reference to Brown?
MR. McCUNE: Obviously, if she denies it, then we will impeach her with her own statement, and we will call additional witnesses.
THE COURT: It's not a question whether she denies it. You are trying to impeach Brown through her. It's not whether she denies it.

Mr. John Pettit was Washington County District Attorney and counsel for the Commonwealth.

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THE COURT: All right, I am going to deny her testimony relative to that statement. The reason being Brown said I may have and he said I don't remember. Now you will find that to impeach someone with prior inconsistent statements, that witness must say he or she did not do that. Now he never said he didn't do it. He said I may have told her that. He said that a couple of times and he said I don't remember. Really, a don't remember statement means you can't do it at all, because there's nothing to impeach.

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THE COURT: What I am going to do, I will look this up, I have some case law on that . . .

Id. at 870-73 (emphasis added). The court took a brief recess, during which time counsel for each side made additional arguments in support of their positions on the issue. Eventually, the trial judge concluded: "I will not permit her to testify. There is nothing to impeach because he said I might have told her that, which you can argue to the jury that he said that." Id. at 878. Once again, the jury never saw or heard Brown's statement that he "shot the girl."

Within days of being convicted and sentenced to death, Wallace raised the trial court's failure to admit Brown's statement in his motion for a new trial, alleging that the error violated state law. (Post Trial Motion, ¶ 11(b); Additional Post Trial Motion, ¶ 29). In a lengthy opinion, the trial court denied Wallace's claim, (New Trial Op., 4/2/87, at 21-26), and, on appeal, the Pennsylvania Supreme Court affirmed, holding that any alleged error was "harmless error at best." Wallace II, 561 A.2d at 725. In his PCRA petition, Wallace raised the issue again, but, this time, as a federal constitutional claim. (Pro Se Petition, ¶ 2; Brief in Support of Pro Se Petition, at 29-44; Supp. to Pro Se Petition, ¶¶ 3 12; Amended Petition, ¶ I; Second Amended Petition, ¶ I). This time, however, the Pennsylvania Supreme Court refused to address the merits of the claim, holding instead that the claim been previously litigated. Wallace III, 724 A.2d at 920. Before turning to the substance of Wallace's claims, I must answer two questions: 1) can I address the merits of these claims in the first place? And, if so, 2) what standard of review applies? It is to these procedural questions that I now turn.

(2) Can This Court Review the Merits?

Although the writ of habeas corpus has been described as the "highest safeguard of liberty," Smith v. Bennett, 365 U.S. 708, 712 (1961), there are strict procedural limits that govern its application. The most common limitations are the doctrines of exhaustion and procedural default. Exhaustion governs when a particular claim can be heard in federal court, mandating that the issues raised in the habeas petition be first be presented to the state courts. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996). Procedural default, in contrast, governs whether a claim may be heard in federal court. It forbids relief on those claims that are barred by an independent and adequate state procedural rule. Toulson v. Beyer, 987 F.2d 984, 986 n. 5 (3d Cir. 1993). In the present case, Wallace alleges that the trial court's refusal to admit Brown's statement violated four separate constitutional provisions: 1) the confrontation clause of the Sixth Amendment; 2) the compulsory process clause of the Sixth Amendment; 3) the due process clause of the Fourteenth Amendment; and 4) the Eighth Amendment. Dkt. no. 20, at 16. For the following reasons, I conclude that his Sixth and Fourteenth Amendment claims are properly before me, but that Wallace's Eighth Amendment claim is procedurally barred.

(a) Sixth and Fourteenth Amendment Claims

There is no doubt that Wallace has satisfied the exhaustion requirement for his Sixth and Fourteenth Amendment claims. The exhaustion hurdle is not insurmountable, requiring only that the petitioner "fairly present" his claim to the state courts before bringing them in federal court. McCandless, 172 F.3d at 260; Doctor, 96 F.3d at 678. To satisfy this fair presentation requirement, the federal claim must be the "substantial equivalent" of the claim brought in state court. Evans v. Court of Common Pleas, Delaware County, Pennsylvania., 959 F.2d 1227, 1231 (3d Cir. 1992). In deciding whether a claim was fairly presented, a district court should look to "the substance of the claim presented to the state courts, rather than its technical designation." Id.; see also McCandless, 172 F.3d at 261-62. Wallace presented his Sixth and Fourteenth Amendment claims to the state courts in his PCRA Petition. (Pro Se Petition, ¶ 2; Brief in Support of Pro Se Petition, at 29-44; Supp. to Pro Se Petition, ¶¶ 3 12; Amended Petition, ¶ I; Second Amended Petition, ¶ I). At that time, he relied on the same federal constitutional provisions and the same cases that he relies on today. Fair presentation requires no more. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62.

Having satisfied the exhaustion requirement, Wallace must surmount one more hurdle: procedural default. The doctrine of procedural default is "grounded in concerns of comity and federalism," Coleman v. Thompson, 501 U.S. 722, 730 (1991), and it bars federal habeas review whenever the petitioner has failed to comply with a state's procedural rules. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Only in the rare case where the petitioner can demonstrate "cause" for not following the state procedural rule and "prejudice" resulting from application of the procedural bar will a federal habeas court review the merits of the petitioner's claim. Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977).

Before a state procedural rule can act as a bar to relief in federal court, however, it must be both "independent" of federal law and "adequate." Coleman, 501 U.S. at 729; Szuchon v. Lehman, 273 F.3d 299, 325 (3d Cir. 2001); Jermyn v. Horn, 266 F.3d 257, 278 (3d Cir. 2001). A state procedural rule is "adequate" only if it is "firmly established and regularly followed" at the time the alleged procedural default occurred. Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)); Doctor, 96 F.3d at 686; Szuchon, 273 F.3d at 325-26; Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988). In the Third Circuit, at least, deciding whether a state procedural rule is adequate requires a multi-part inquiry. First, the court must define the state procedural rule allegedly violated. Second, it must identify when the alleged default occurred. Finally, it must decide whether the procedural rule in question was firmly established and consistently applied at the time of the default. Pursell v. Horn, 187 F. Supp.2d 260, 292 (W.D.Pa. 2002) (Smith, C.J.). In applying this analysis to the present case, I conclude that Wallace's Sixth and Fourteenth Amendment claims are not procedurally defaulted.

(i) The Procedural Bar in Question

Wallace first raised these claims during the PCRA proceedings, (Second Amended Petition, ¶ I, PCRA Appeal Brief, at 12-25), but the Pennsylvania Supreme Court refused to address them, holding that they were "not reviewable under the PCRA," because they had been previously litigated. Wallace III, 724 A.2d at 920. At first blush, the Pennsylvania Supreme Court's holding appears incorrect. Wallace did not previously litigate his federal constitutional claims. Rather, it was his state law claims, arising out of the same factual scenario, that Wallace litigated during direct review. (Direct Appeal Brief, at 31-37); see also Wallace II, 561 A.2d at 725-26 n. 15. On closer inspection, however, the Pennsylvania Supreme Court's ruling makes perfect sense. Over the years, that Court has read the PCRA's bar for "previously litigated" claims quite broadly, not only preventing litigation of the same claim raised on direct appeal, but also prohibiting the assertion of new legal theories stemming from the same factual scenario. See, e.g., Commonwealth v. Bracey, 795 A.2d 935, 939 (Pa. 2001) ("a petitioner cannot obtain post-conviction review of claims previously litigated on appeal by alleging ineffective assistance of prior counsel and presenting new theories of relief to support previously litigated claims.") (emphasis added). In other words, the PCRA gives a litigant one bite at the apple. When Wallace raised the question of the trial court's failure to admit Brown's statement on direct appeal, he was required to append all his legal theories at that time. Id. Failure to do so meant that any claims not raised were "not reviewable" under the PCRA. Wallace III, 724 A.2d at 920. I recognize the problem that stems from the Pennsylvania Supreme Court's broad reading of the "previously litigated" language at issue. That Court's interpretation stretches the language of the Act in a way that was certainly not anticipated by its drafters. Under 42 Pa. Cons. Stat. Ann. § 9543(a)(3), a litigant is entitled to consideration of his claim on the merits only if he can prove that the claim "has not been previously litigated or waived." (emphasis added). Separated by the disjunctive, the terms "previously litigated" and "waived" are intended to be distinct, with separate scope and meaning. They are alternatives. Yet, the Pennsylvania Supreme Court's broad interpretation of the term "previously litigated" leads to the opposite result, expanding the meaning of "previously litigated" until it melds with the word "waiver." While such an interpretation is certainly in tension with the precise words of the statute, I have little choice but to follow it. As a federal court sitting in habeas, I am to give deference to a state court's reading of its own law. Fahy v. Horn, 240 F.3d 239, 243-44 (3d Cir. 2001). When Wallace failed to append his federal constitutional claims on direct appeal, he waived them, losing the right to assert them under the PCRA to the same factual scenario raised on direct appeal. This is the procedural bar that the Pennsylvania Supreme Court applied to Wallace's claims.

Under the PCRA, a petitioner can bring a claim for relief only if "the allegation of error has not been previously litigated . . ." 42 Pa. Cons. Stat. Ann. § 9543(a)(3). At the time, "an issue" was deemed "previously litigated" if "the highest appellate court in which the petitioner could have had review as a matter of right ha[d] ruled on the merits of the issue . . ." Id. § 9544(a)(2).

(ii) When The Alleged Default Occurred

This default occurred between 1986 and 1989, when Wallace's direct appeal was winding its way through the state court system. At this time, Wallace would have been obligated to raise the federal constitutional claims that he now asserts. Doctor, 96 F.3d at 686 (holding that a default occurs on the date that the litigant fails to assert his barred claims, not on the date that the state court actually decides the procedural bar issue). Now only one question remains: was the procedural bar at issue "firmly established and regularly followed," James, 466 U.S. at 348-51, between 1986 and 1989?

(iii) Procedural Bar Not Firmly Established Between 1986 and 1989

I conclude that it was not. In fact, at that time, the Pennsylvania Supreme Court applied what it called a "relaxed waiver rule" in capital cases, reviewing the merits of all claims raised, whether on direct appeal or in post-conviction proceedings, regardless of any alleged procedural bar at issue. As the Pennsylvania Supreme Court explained in Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978), it had a "duty to transcend procedural rules" in death penalty cases because procedural rules "cannot be exalted to a position so lofty as to require this Court to bind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen." The Pennsylvania Supreme Court followed the relaxed waiver rule when Wallace's trial was conducted in 1986, when his conviction was affirmed in 1989, and when his PCRA petition was filed in 1995. By 1997, in fact, the relaxed waiver rule was so well established that the Third Circuit held that the Pennsylvania Supreme Court had a "practice of reaching the merits of claims in PCRA petitions in capital cases regardless of the failure of the petition to meet the appropriate procedural criteria." Banks v. Horn, 126 F.3d 206, 214 (3d Cir. 1997).

See Commonwealth v. Zettlemoyer, 454 A.2d 937, 955 n. 19 (Pa. 1982); Commonwealth v. Frey, 475 A.2d 700, 707 n. 4 (Pa. 1984); Commonwealth v. Baker, 511 A.2d 777, 790 n. 10 (Pa. 1986); Commonwealth v. Yarris, 549 A.2d 513, 521 (Pa. 1988); Commonwealth v. Abu-Jamal, 555 A.2d 846, 854 (Pa. 1989); Commonwealth v. DeHart, 650 A.2d 38, 48 (Pa. 1994); Commonwealth v. Travaglia, 661 A.2d 352, 356 n. 6 (Pa. 1995); Commonwealth v. Walker, 656 A.2d 90, 98-99 (Pa. 1995); Commonwealth v. Morris, 684 A.2d 1037, 1042 n. 11 (Pa. 1996); Commonwealth v. Spotz, 716 A.2d 580, 591 (Pa. 1998); Commonwealth v. Brown, 711 A.2d 444, 455 (Pa. 1998). For a more complete list of the Pennsylvania Supreme Court cases concerning the doctrine of relaxed waiver see Louis M. Natali, New Bars in Pennsylvania Capital Post-Conviction Law and Their Implications for Federal Habeas Corpus Review, 73 Temp.L.Rev. 69, 86 n. 127 (2000).

In early 1999, however, the rules changed. In Commonwealth v. Albrecht, the Pennsylvania Supreme Court refused to apply its relaxed waiver rule to issues raised for the first time in a PCRA petition. Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). This case was decided more than twelve years after Wallace's conviction, and more than three years after he filed his PCRA petition. Indeed, at the time he filed his direct appeal, Pennsylvania law allowed Wallace to raise his federal constitutional claims at a later time without being barred by a state procedural rule. See supra note 15. Procedural default is a legitimate and a long-respected defense to federal habeas litigation, but it is not a "trap for the unwary." Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975). To apply the Pennsylvania Supreme Court's expansive reading of the term "previously litigated" to bar consideration of Wallace's federal constitutional claims would "apply a rule unannounced at the time of petitioner's [alleged default]." Ford, 498 U.S. at 424. Accordingly, such a rule is "inadequate to serve as an independent state ground," barring federal review. Id. For this reason, the Commonwealth's procedural default defense must fail, and I can address the merits of Wallace's Sixth and Fourteenth Amendment claims.

While the Albrecht decision bars the applicability of the "relaxed waiver" rule to PCRA petitions, the doctrine still applies in capital cases on direct appeal. See Commonwealth v. Rivera, 773 A.2d 131, 139 n. 7 (Pa. 2001) ("Technically, this claim is waived because counsel failed to make a timely objection to the jury instruction. See Pa.Crim.P. 1119(b). However, because this is a capital case on direct appeal, we will nonetheless review the merits of this claim pursuant to the relaxed waiver rule."); Szuchon, 273 F.3d at 325-26 (interpreting Pennsylvania law on this issue).

(b) Eighth Amendment Claim

I reach a different conclusion, however, regarding Wallace's claim under the Eighth Amendment. Unlike his Sixth and Fourteenth Amendment claims, Wallace did not exhaust this claim in the state courts. In fact, in his two trips through the state court system, Wallace never once provided the state courts with "fair notice that he was asserting" such a claim. McCandless, 172 F.3d at 261-62. Not once did he cite the Eighth Amendment as it pertained to this claim. At no time did he cite Lockett v. Ohio, 438 U.S. 586, 603-04 (1978), the case that he now relies on to establish his claim. And he never used any federal constitutional "buzz-words" to inform the state court that it was, indeed, a federal constitutional claim that he was asserting. Had Wallace complied with any of the minimal standards as set out here, he may have put the state courts on notice of his Eighth Amendment claim. McCandless, 172 F.3d at 261-62. His failure to meet any of them means that his Eighth Amendment claim is not exhausted.

Though generally a habeas petition that includes unexhausted claims must be dismissed, Rose v. Lundy, 455 U.S. 509, 510 (1982), a federal court can "excuse" a petitioner's failure to exhaust as "futile" "if it is clear that [the habeas petitioner's] claims are now procedurally barred under state law." Gray v. Netherland, 518 U.S. 152, 161 (1996). Exhaustion is "futile" only if the state law in question "clearly foreclose[s] state review of [the] unexhausted claim." Toulson, 987 F.2d at 987; Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002).

This is just such a case. Here, exhaustion is "futile" because Wallace's Eighth Amendment claim is now clearly foreclosed under Pennsylvania law. Under 42 Pa. Cons. Stat. Ann. § 9454(b)(1), any PCRA petition, "including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final . . ." This time-bar is jurisdictional and has been strictly enforced by the Pennsylvania Supreme Court. Commonwealth v. Banks, 726 A.2d 374 (Pa. 1999); Fahy, 240 F.3d at 245; Whitney, 280 F.3d at 251. Although the PCRA time-bar did not go into effect until January 1996, the legislature provided until January 1997 for individuals, like Wallace, whose convictions became final before the effective date of the Act. 42 Pa. Cons. Stat. Ann. § 9454, Notes. Wallace did not raise his Eighth Amendment claim by this date, and none of the exceptions to the PCRA's limitations period are applicable in this case. See id. § 9545(b)(1)(i)-(iii). Raising this Eighth Amendment claim in state court today, therefore, would be a futile act. The exhaustion doctrine does not require such meaningless gestures. "After all, it is the legal issues that are to be exhausted, not the petitioner." Story v. Kindt, 26 F.3d 402, 406 n. 8 (3d Cir. 1994) (citations omitted).

Unfortunately for Wallace, a finding of futility often amounts to a death knell for habeas petitioners. Lines v. Larkin, 208 F.3d 153, 166 (3d Cir. 2000). Like an iron fist in a velvet glove, the time-bar in question is both a helpful hand, allowing Wallace to overcome his failure to exhaust, and an impenetrable obstacle, barring any further litigation of his time-barred claim. Over the past several years, in fact, the Court of Appeals for the Third Circuit has stated, with little discussion, that "claims deemed exhausted because of a state procedural rule are deemed procedurally defaulted." Id. at 160; Whitney, 280 F.3d at 252; Werts v. Vaughan, 228 F.3d 178, 192 (3d Cir. 2000); see also McCandless, 172 F.3d at 260. In cases like the present one, therefore, "federal courts may only reach the merits if the petitioner makes the standard showing of `cause and prejudice' or establishes a fundamental miscarriage of justice." Whitney, 280 F.3d at 252-53. Because Wallace has not attempted to make such a showing, I must hold his Eighth Amendment claim procedurally defaulted and barred from federal review.

Even if Wallace had come forward with some evidence of cause and prejudice, my conclusion that he is entitled to relief from his conviction for first-degree murder obviates the need for me to address this issue.

I am well aware of the problem with this analysis. Simply put, it fails to consider the adequacy of the procedural bar at issue, a central component in any procedural default analysis. Ford, 498 U.S. at 423-24; Doctor, 96 F.3d at 686. There is no question that Pennsylvania currently applies a one-year statute of limitations to claims brought under the PCRA. Banks, 726 A.2d at 374; Fahy, 240 F.3d at 245; Whitney, 280 F.3d at 251. But this statute of limitations was not always in effect. In fact, it was not until 1995, more than six years after Wallace's conviction became final, that the Pennsylvania legislature adopted the time bar now at issue. 42 Pa. Cons. Stat. Ann. § 9545, Notes. As late as 1997, the Third Circuit stated its feeling that the Pennsylvania Supreme Court simply would not follow this time-bar in capital cases, applying instead the relaxed waiver rule. Banks, 126 F.3d at 214; see also Crawley v. Horn, 7 F. Supp.2d 587, 588 (E.D.Pa. 1998) (PCRA statutory time-bar may be overcome by capital case relaxed waiver rule); Jermyn, 266 F.3d at 278-79. And not until 1999, more than a decade after Wallace's conviction became final, did the Pennsylvania Supreme Court hold for the first time that the time-bar was jurisdictional and not waivable. Banks, 726 A.2d at 374; Fahy, 240 F.3d at 245. Accordingly, whether Wallace's claim lives or dies depends on the resolution of one question: when did the alleged default occur?

It is this very question, however, that the Third Circuit has repeatedly ignored in cases like the one we have here. In Whitney v. Horn, for instance, the petitioner failed to exhaust his challenge to the trial court's jury instructions in his case. Whitney v. Horn, 170 F. Supp.2d 492, 496-500 (M.D.Pa. 2000). Even though the petitioner was barred from returning to state court under the PCRA's one-year limitations period, the court held that this time-bar was inadequate because it was not clearly established and regularly followed at the time of the petitioner's alleged default. Id. On appeal, the Third Circuit reversed. Whitney, 280 F.3d at 262. Although the court agreed that exhaustion was now futile, it held that the district court erred when it discussed the adequacy of the time-bar. Id. at 253.

In Lines [v. Larkin], we undertook a procedural default analysis of cause and prejudice without providing a detailed analysis of whether Pennsylvania's time limit was an adequate or independent state rule for denying relief.

* * * *

Whitney acknowledges that Lines discusses the very state procedural rule at issue here, but he argues Lines must be distinguished because it was not a capital case, and because we did not discuss the adequate state ground requirement there. We are unimpressed with Whitney's attempt to distinguish Lines as a non-capital case. As noted above, the distinction is no longer valid for purposes of application of the PCRA's time bar as it pertains to issues of exhaustion and futility. Accordingly, the procedural default analysis in Lines is indistinguishable from that which we must undertake here.

Id. at 253 (citations omitted). While the adequacy question was directly presented, the Third Circuit avoided it. Id. A number of recent cases have taken the same approach, excusing exhaustion due to a current procedural bar and then deeming the claim to be procedurally barred without any discussion of adequacy. See, e.g., Lines, 208 F.3d at 166; Szuchon, 273 F.3d at 323 n. 14.

In the present case, I must follow the Third Circuit's clear mandate. The Pennsylvania Supreme Court would bar Wallace's claim today under the PCRA's one-year limitations period. Banks, 726 A.2d at 374; Fahy, 240 F.3d at 245; Whitney, 280 F.3d at 251. Whether this limitations period would have been an adequate bar in 1990, or 1997, or 1999, are questions that are not before me. Whitney, 280 F.3d at 253. Because Wallace has put forward no evidence of cause or prejudice, his claim is procedurally barred, and I will not address it on the merits.

(3) Does AEDPA's Deference Apply?

With exhaustion and procedural default put to rest, one more preliminary question remains: what standard of review applies to Wallace's claims under the Sixth and Fourteenth Amendments? As the clear language of § 2254(d)(1) states, AEDPA deference only applies to "any claim that was adjudicated on the merits in State court proceedings . . ." 28 U.S.C. § 2254(d)(1) (emphasis added). According to the Court of Appeals for the Third Circuit, a claim is not "adjudicated on the merits" for purposes of § 2254(d)(1) "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Everett v. Beard, 290 F.3d 500, 507-08 (3d Cir. 2002); see also Hameen, 212 F.3d at 248. This is not a meaningless standard. In fact, in Hameen, the Third Circuit refused to apply AEDPA deference to petitioner's claim that his sentencing jury double counted certain aggravating factors in violation of the Eighth Amendment, even though the state Supreme Court had cited the relevant Eighth Amendment case law. Hameen, 212 F.3d at 248. According to the Third Circuit, the state court had cited this federal constitutional case law for a different proposition than the one raised by the petitioner and, therefore, "did not pass on [petitioner's] Eighth Amendment constitutional duplicative aggravating circumstances argument . . ." Id.

In the present case, there is no indication from the face of the Pennsylvania Supreme Court's decision that Wallace's federal constitutional claims were addressed on the merits. Indeed, in the section of its opinion dedicated to the admissibility of Brown's statement, the Pennsylvania Supreme Court cited no federal constitutional case law. Its only reference to any case law was a footnote relying on state evidentiary law. Wallace II, 561 A.2d at 725 n. 15 (stating that its analysis must be "guided" by Commonwealth v. Claypool, 495 A.2d 176, 178 (Pa. 1985) and Commonwealth v. Bartlett, 288 A.2d 796, 799-800 (Pa. 1972), two cases relying exclusively on state evidentiary law). Even the court's statement that the exclusion of Brown's admission was "harmless at best," Wallace II, 561 A.2d at 725, does not mean that a federal constitutional claim was addressed. In Pennsylvania, harmless error analysis is not the exclusive province of federal constitutional law, but can and does apply equally to run-of-the-mill state law errors. Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). For these reasons, I conclude that the federal constitutional claims raised by Wallace were never "adjudicated on the merits in State court proceedings . . ." 28 U.S.C. § 2254(d)(1). AEDPA's deference simply does not apply.

(4) First-Degree Murder Conviction

Turning to the merits of Wallace's Sixth and Fourteenth Amendment claims, I conclude that his conviction for first-degree murder should be vacated. The trial court's refusal to admit Brown's statement that he "shot the girl," either as substantive evidence or for impeachment purposes, amounted to more than just a minor state law error. It was an error of constitutional dimension. It had a significant effect on Wallace's defense, undermining his claim of innocence and depriving him of a powerful means of damaging Brown's credibility. As set forth below, this error violated two separate constitutional provisions.

(a) The Due Process Clause

First, the error amounted to a violation of the due process clause of the Fourteenth Amendment. As the United States Supreme Court has explained, "the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). This constitutional command is not meant to supplant state rules of evidence, and, as a general rule, a state court's decision to exclude evidence does not implicate the federal constitution. Id. at 690; Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). Nonetheless, in certain cases, a state court's evidentiary ruling can go too far. Crane, 476 U.S. at 690; Chambers, 410 U.S. at 302. When a court excludes "competent," "reliable" evidence, Crane, 476 U.S. at 690, that is "critical to [the defendant's] defense," Chambers, 410 U.S. at 302, it runs a grave risk of violating the guarantee of fundamental fairness implicit in the due process clause. Id.

This is precisely what occurred in Chambers v. Mississippi. In that case, Chambers was arrested and tried for the murder of a police officer. Shortly after the murder, a man named Gable McDonald made three statements to friends, admitting that he, and not Chambers, committed the crime. Chambers, 410 U.S. at 292-93. Later, McDonald actually gave a sworn confession to the crime — a confession that he subsequently withdrew. Id. at 287-88. While the jury heard McDonald's confession and his later recantation, id. at 291, it never heard testimony from McDonald's friends who claimed that McDonald had confessed to the crime. Id. at 292-93. The trial court ruled that such testimony was hearsay and inadmissible. Id. Chambers was convicted, and his conviction was affirmed by the Mississippi Supreme Court.

On a writ of certiorari, the United States Supreme Court reversed. Even though the trial court's ruling was in compliance with Mississippi's hearsay rule, the Chambers court held that state law had to give way to the commands of due process. Four factors were crucial to the Court's decision.

At the time, Mississippi recognized an exception to the hearsay rule for statements against pecuniary interest, but not for statements, like McDonald's, that were against penal interest. Id. at 299.

First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred. Second, each one was corroborated by some other evidence in the case. . . . Third, . . . each confession here was in a very real sense self-incriminatory and unquestionable against interest. . . .
Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury.

Id. at 300-01. The Court continued: "In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302.

There was a second error in Chambers as well. The trial court refused to allow the defendant to treat McDonald as an adverse witness and cross-examine him. Id. at 297-98.

Since its decision in Chambers, the Supreme Court has reaffirmed the principles set out there on a number of occasions. In Green v. Georgia, 442 U.S. 95, 97 (1979), for instance, it vacated a death sentence because the trial court refused to admit testimony that someone other than the defendant fired the shots that killed the victim. Like the evidence at issue in Chambers, the statement at issue in Green was made spontaneously to a close friend, was corroborated by other evidence, and was against the declarant's penal interest. Id. Similarly, in Crane v. Kentucky, the court cited Chambers and vacated a murder conviction because the trial court refused to permit the introduction of testimony pertaining to the circumstances of the defendant's confession. Crane, 476 U.S. at 690-91. "[A]n essential component of procedural fairness is an opportunity to be heard," the Crane court explained. "That opportunity would be an empty one if the States were permitted to exclude competent, reliable evidence . . . when such evidence is central to the defendant's claim of innocence." Id. at 690.

But that is precisely the kind of evidence that was excluded in Wallace's case. Id. Indeed, when judged by the four factors considered so important to the Chambers Court, the trial court's error in this case becomes readily apparent. See, e.g., Cunningham v. Peters, 941 F.2d 535, 539-41 (7th Cir. 1991) (applying Chambers' four-factors to determine if state court ruling violated due process).

Unlike Chambers, where the trial court's ruling was consistent with Mississippi's hearsay rule, the trial court's ruling in Wallace's case was arguably incorrect as a matter of state law. At the time, Pennsylvania recognized an exception to the hearsay rule for declarations against penal interest. The Pennsylvania Supreme Court explained the contours of this rule a few years before Wallace's conviction became final. [W]e recognize and accept that a declaration against the declarant's penal interest is admissible in evidence as an exception to the hearsay rule. We, however, have never endorsed the view that all such declarations against penal interest are automatically admissible as a hearsay exception merely because they are or tend to be against the declarant's penal interest. To be admissible, considerable assurance of the reliability of such a declaration is required. Commonwealth v. Bracero, 528 A.2d 936, 940 (Pa. 1987) (internal citations omitted) (emphasis added); see also Commonwealth v. Yarris, 731 A.2d 581 (Pa. 1999). For the reasons set forth below, I believe that there were sufficient indicia of reliability to compel the admission of this statement, whether as a matter of state or federal law.

First, Brown made his statement spontaneously to a close acquaintance shortly after the crime occurred. Without being asked, and completely of his own accord, he informed Anita Johnson of the circumstances of the crime, including the crucial fact that he had fired the bullet that struck Spalla. (Johnson Statement, dkt. no. 20, at 24-25). His admission was made within two days of the murder, (Third Trial Tr., at 559-61, 572-74, 619-21), and it was made to his girlfriend. Id. at 537-38. No doubt, Johnson and Brown were intimate acquaintances, as they lived together at the time. Id. at 538, 702-03.

Second, Brown's statement was corroborated by independent evidence in the case. Brown admitted that he carried a .38 caliber handgun that was fully loaded on the day of the murders. Id. at 703-04. When the police recovered this weapon, however, one bullet was missing. Id. at 560, 704. The pathologist, a man with training in ballistics, id. at 282, noted that the slug removed from Tina Spalla's body "would appear to be a short .38 caliber slug," id. at 274-75, 277-78, the same kind that came from Brown's weapon. Id. at 703-04. Other evidence seemed to confirm that Brown shot Spalla. His fingerprint, for instance, was found on the cash register, just a few feet from where Spalla's body lay. Id. at 244-45. And he was perfectly positioned throughout the robbery to fire a direct shot through Spalla's chest. Id. at 612-13.

The pathologist also testified that the two exit wounds on Carl Luisi, Sr. were both 8 millimeters in diameter, id. at 278-79, while the exit wound on Tina Spalla was a different size, 10 millimeters. Id. at 280-81. Defense counsel tried to use this evidence to show that Luisi and Spalla were shot with different weapons. If proven, this theory could have led credence to the idea that Wallace shot Luisi with a .32 caliber handgun, while Brown shot Spalla with a .38.

Finally, the last two Chambers factors are easily satisfied. Brown's statement was self-incriminating and unquestionably against his penal interest. He had nothing to gain by telling Johnson that he had "shot the girl." In fact, with his history in the criminal justice system, id. at 634-51, he must have known that his confession could lead to criminal prosecution. Finally, Brown was present throughout the trial. If the trial court admitted his statement, he would have had a chance to elaborate on it, clarify it, or recant it. With all the facts before it, the jury could have scrutinized his demeanor and weighed his credibility. Chambers, 410 U.S. at 301. Because the trial court barred the admission of Brown's statement, however, the jury in Wallace's case never got this chance.

Although there are differences between Chambers and this case, these differences actually strengthen Wallace's claim for relief. For example, the jury in Chambers heard McDonald's written and sworn confession to the crime. Chambers, 410 U.S. at 291. It was permitted to weigh this confession as substantive evidence of Chambers' innocence. Id. And it had the opportunity to judge McDonald's demeanor when he disavowed his confession on the witness stand. Id. No such evidence was put before the jury at Wallace's trial. (Third Trial Tr., at 559-63, 870-78). Unlike the jury in Chambers, Wallace's jury was kept completely in the dark. It was barred from considering Brown's prior confession and prohibited from balancing his confession when placed along side the other evidence in the case. If the limited evidentiary rulings in Chambers violated due process, then the trial court's expansive evidentiary rulings in Wallace's case likewise violate his due process rights.

The Supreme Court's decision in Montana v. Egelhoff, 518 U.S. 37 (1996) is not to the contrary. In that case, the court upheld a Montana statute that barred the jury from considering a defendant's voluntary intoxication when deciding the question of whether he had the requisite mental state to commit the crime. A plurality of the court adopted a limited reading of the Chambers stating that:

Chambers was an exercise in highly case-specific error correction. At issue were two rulings by the state trial court at Chambers' murder trial: denial of Chambers' motion to treat as an adverse witness one McDonald, who had confessed to the murder for which Chambers was on trial, but later retracted the confession; and exclusion, on hearsay grounds, of testimony of three witnesses who would testify that McDonald had confessed to them. We held that both of these rulings were erroneous, the former because McDonald's testimony simply was adverse, and the second because the statements "were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability," and were "well within the basic rationale of the exception for declarations against interest." Thus, the holding of Chambers — if one can be discerned from such a fact-intensive case — is certainly not that a defendant is denied "a fair opportunity to defend against the State's accusations" whenever "critical evidence" favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation.

Id. at 52-53 (citations omitted). A number of courts have seized on this language and sought to curb Chambers' reach. See, e.g., Little v. Johnson, 162 F.3d 855, 860 (5th Cir. 1998); Starns v. Cowan, ___ F. Supp.2d ___, 2002 WL 1369994, at *5 (C.D.Ill., June 25, 2002).

But Egelhoff's restrictive reading of Chambers does not control the disposition of Wallace's case. For starters, the interpretation was accepted only by a plurality of the court, Egelhoff, 518 U.S. at 39 (Scalia, Rehnquist, Kennedy, Thomas), and is, therefore, without precedential force. Rappa v. New Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994). In fact, Justice Ginsburg, the deciding vote in Egelhoff, rested her decision on completely different grounds. In doing so, she rejected the plurality's narrow reading of Chambers, admitting that Montana's law would "offend due process" if it was "simply a rule designed to keep out `relevant exculpatory evidence[.]'" Egelhoff, 518 U.S. at 57 (Ginsburg, J., concurring) (quoting id. at 67 (O'Connor, J.)). On this point, at least, the four dissenting Justices agreed with Ginsburg. Id. at 61. Accordingly, rather than stand for a limitation of Chambers, Egelhoff represents its reaffirmation. As five Justices recognized, in certain cases, a state's exclusion of relevant and reliable exculpatory evidence runs afoul of the due process clause of the Fourteenth Amendment. Id. at 57, 61.

This is one of those cases. Brown's statement was reliable, supported by other evidence, and decidedly exculpatory. Though it was the cornerstone of Wallace's claim of innocence, the jury never heard it. Under the unique circumstances of this case, this decision amounted to a violation of the due process clause of the Fourteenth Amendment.

Wallace also claims that the trial court's rulings violated the compulsory process clause of the Sixth Amendment. I need not address this claim because "[t]here is apparently little, if any, difference" between the scope of the compulsory process and due process clauses in cases like the present one. Gov't of Virgin Islands v. Mills, 956 F.2d 443, 445 n. 4 (3d Cir. 1992); see also Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987) (stating that the compulsory process clause "provides no greater protections . . . than those afforded by due process . . .") (emphasis in original); Cikora v. Dugger, 840 F.2d 893, 897 n. 4 (11th Cir. 1988) ("[W]e believe that the standards for assessing the sixth amendment violation and a violation of due process itself are in context — a challenge to a trial court ruling excluding evidence or testimony.").

(b) The Confrontation Clause

The rulings of the trial court also violated the confrontation clause of the Sixth Amendment. This constitutional provision provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ." U.S. Const. amend. VI. The Supreme Court has interpreted this provision to provide a criminal defendant with two distinct rights: the right to face or "confront" those who testify against him; and the right to conduct cross examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). In the present case, Wallace claims that, by denying him the right to introduce Brown's prior statement, the trial court interfered with his right of cross-examination. Although this is an exceedingly close question, I ultimately agree.

First, the trial court's ruling was a violation of state law. Six times Brown was asked about his prior statement and his responses fell into two distinct categories. First, he hedged, admitting that he may have made the statement, but later he explained that he did not remember making the statement. (Third Trial Tr., at 621) ("I may have, but I don't remember saying anything to her about that no."); id. ("I may have. We'd been tired and we were driving most of the day, so I was pretty out of it, so I may have said something. I don't remember."); id. at 703 ("I don't remember exactly whether I [said that] or not."); id. at 705 ("I don't remember that, no."). Second, when pressed on cross examination, Brown flatly denied ever making the statement. Id. at 704 ("Q. You didn't say that? A. No, I didn't."); id. at 706 ("Q. And [Johnson] was bragging because you told her that [you shot the girl], didn't you? A. No."). The trial court denied Wallace's effort to recall Johnson to the witness stand for impeachment purposes, holding "a don't remember statement means you can't do it at all, because there is nothing to impeach." Id. at 878. In other words, according to the trial court, Brown's statements were simply not inconsistent. Id. at 870-73, 878.

The trial court's interpretation of state law, however, was incorrect. Under Pennsylvania law, "[i]t does not matter whether the witness denies making the inconsistent statement, or whether he says that he does not recall it. In either event, an adverse party has the right to introduce extrinsic evidence that the witness did, indeed, make the inconsistent statement." Commonwealth v. Brown, 448 A.2d 1097, 1103-04 (Pa.Super.Ct. 1982) (emphasis added). When it issued its ruling, the trial court ignored Brown's direct denials and focused instead on his poor memory. (Third Trial Tr., at 870-73, 878). Nonetheless, even under the trial court's selective reading of Brown's testimony, the prior statement was admissible. Brown, 448 A.2d at 1103-04. While this state law error is clear enough, I am not empowered to grant habeas relief based solely on such errors. Pulley v. Harris, 465 U.S. 37, 41 (1984). Thus, the question that remains is whether this state law error also amounted to a violation of the federal constitution.

The most relevant case is Davis v. Alaska, 415 U.S. 308 (1974). There, the defendant was on trial for stealing a large safe from the Polar Bar in Anchorage, Alaska. Id. at 309. The key witness for the government was a young man named Richard Green. Id. at 310. Green saw Davis shortly after the murder, standing near the trunk of a blue Chevrolet, holding a crowbar. Later, the police found the empty safe in the same location where Davis had been standing. Id. Interestingly, this location was also on Green's property. Id. At trial, Davis tried to show that Green made a faulty identification. In support of this theory, he sought to introduce the fact that Green was on juvenile probation for burglary at the time. Id. at 311.

From this [Davis] would seek to show — or at least argue — that Green acted out of concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of [Davis] to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation.

Id. at 311. The trial court permitted Davis to question Green about possible bias, but it barred him from pointing to the juvenile probation as the reason for that bias. Ritchie, 480 U.S. at 63-64 (Blackmun, J., concurring). Davis was convicted and his conviction was affirmed in the state court.

On a writ of certiorari, the Supreme Court reversed. While acknowledging the "broad discretion" entrusted to trial judges "to preclude repetitive and unduly harassing interrogation," the court nonetheless explained that the Sixth Amendment generally permits a defendant "to impeach, i.e., discredit, the witness." Davis, 415 U.S. at 316; see also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). In Davis' case, the trial court abused its discretion.

While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness. . . .
On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross-examination . . ."

Id. at 318.

Much like Davis, Wallace was also denied the opportunity to effectively cross-examine the key government witness in his case. When the trial court refused Wallace's request to recall Anita Johnson, it left him in the exact same position in which Davis found himself. Like Davis, Wallace was permitted to question the witness, but he was barred from "expos[ing] to the jury the facts" from which it could judge the witness's reliability. Davis, 415 U.S. at 318; Ritchie, 480 U.S. at 63-64 (Blackmun, J., concurring) The jury must have recognized the problem. After asking Brown four times about his prior statement to Johnson, Wallace's counsel never "dropped the other shoe" and proved that Brown actually made the statement in question. His questioning, therefore, must have hung over the jury like an empty threat or an unfulfilled promise. At the end of the trial, "the jury might well have thought that [defense counsel] was engaged in a speculative and baseless line of attack" on Brown's credibility. Id. Just as in Davis, this limitation on Wallace's right to impeach the Commonwealth's star witness violated the confrontation clause of the Sixth Amendment. Id.; see also United States v. Williams, 892 F.2d 296, 301 (3d Cir. 1989) (trial court violated confrontation clause when it prohibited inquiry into witness's prior conviction), superseded by statute on other grounds, Stinson v. United States, 508 U.S. 36, 39 n. 1 (1993).

The Supreme Court's decision in Ritchie does not alter my conclusion. In that case, a plurality of the court read the confrontation clause narrowly, holding that the "the Confrontation Clause only guarantees `an opportunity for effective cross examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Ritchie, 480 U.S. at 53 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)) (emphasis in original). As interpreted by the Ritchie plurality, the confrontation clause guaranteed the right to ask questions and nothing more. Id. at 53-54. Because the defendant in Ritchie was permitted to "cross examine all of the trial witnesses fully," no Sixth Amendment violation existed. Id. Some courts have seized on this language and held that asking questions alone is enough for confrontation clause purposes — even when the defendant is denied the tools of impeachment. Tapia v. Tansy, 926 F.2d 1554 (10th Cir. 1991); Laboy v. Demskie, 947 F. Supp. 733, 742 (S.D.NY 1996).

But Ritchie does not control my disposition of this case for one reason: the plurality's reasoning did not garner a majority of the court. See Rappa, 18 F.3d at 1057. In fact, the deciding vote in that case was Justice Blackmun, who joined the plurality on other grounds and flatly rejected its overly-restrictive reading of the confrontation clause.

The plurality recognizes that the Confrontation Clause confers upon a defendant a right to conduct cross-examination. It believes that this right is satisfied so long as defense counsel can question a witness on any proper subject of cross-examination.

* * * *

If I were to accept the plurality's effort to divorce confrontation analysis from any examination into the effectiveness of cross-examination, I believe that in some situations the confrontation right would become an empty formality.

Ritchie, 480 U.S. 62 (Blackmun, J., concurring). While Blackmun admitted that in most cases, "simple questioning of a witness will satisfy the purposes of cross-examination[,]" id., he nonetheless stated that in other cases, like Davis v. Alaska, "simple questioning will not be able to undermine a witness' credibility and in fact may do actual injury to a defendant's position." Id. at 63. Despite its basic disagreement with Blackmun's concurrence, even the Ritchie plurality seemed to concede the distinction that he was making. "The constitutional error in [Davis]", the plurality explained, "was that the defendant was denied the right `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id. at 54 (citation omitted) (emphasis added).

Nothing more succinctly states what occurred at Wallace's trial. Repeatedly, Wallace tried to the "expose to the jury the facts" concerning Brown's previous statement that he "shot the girl," and repeatedly the trial court barred his efforts. This was a serious error and one that rose to the level of a violation of the confrontation clause of the Sixth Amendment. Davis, 415 U.S. at 318.

(c) The Errors Were Not Harmless

Although the trial court's exclusion of Brown's statement violated the Sixth and Fourteenth Amendments, a writ of habeas corpus may issue only if those constitutional errors "`had a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

If, when all is said and done, the [court] . . . is sure that the error did not influence the jury, or had but a very slight effect, the verdict and the judgment should stand. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

The United States Supreme Court has identified two kinds of errors: structural and trial. Arizona v. Fulminante, 499 U.S. 279, 306-10 (1991). "A structural error is a defect in the trial mechanism itself, affecting the entire trial process, and is per se prejudicial." Hassine v. Zimmerman, 160 F.3d 941, 949 (3d Cir. 1998) (internal quotations omitted). A trial error, in contrast, "`occur[s] during the presentation of the case to the jury,' and is amenable to harmless-error analysis because it `may be quantitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].'" Brecht, 507 U.S. at 629 (quoting Fulminante, 499 U.S. at 307). The errors at issue in the present case are undoubtedly trial errors, subject to harmless error review.

O'Neal v. McAninch, 513 U.S. 432, 437-38 (1995) (quoting Kotteakos, 328 U.S. at 764-65). In making its assessment, the court must consider the "impact of the error on the minds of the jurors in the total setting." Yohn v. Love, 76 F.3d 508, 523 (3d Cir. 1996). It must weigh the impact of the evidence on the jury and must judge the manner in which the jury would reasonably perceive the case without the constitutional error. Hassine, 160 F.3d at 955. For the following reasons, I conclude that the Sixth and Fourteenth Amendment violations described above had "a substantial and injurious effect," Brecht, 507 U.S. at 637, on the jury's decision to convict Wallace of first-degree murder.

To begin, Brown's statement was directly related to the most significant issue in the Commonwealth's case: who shot Tina Spalla? Without proof that Wallace shot Spalla, the Commonwealth could not obtain the first-degree murder conviction it so aggressively sought. See (Third Trial Tr., at 962-63) (stating that first-degree murder requires that Wallace "intentionally" "caused" Spalla's death). While admission of Brown's statement would not have proved Wallace's innocence conclusively, it would have cast the Commonwealth's case in an entirely different light. At once, a cloud of suspicion would have hovered over Brown himself. No doubt, the jury would have remembered that it was Brown, and not Wallace, who was standing directly in front of Tina Spalla throughout the robbery. Id. at 244-45, 612-13. It would have recalled that Brown's gun, a .38 caliber, was fired on the day of the murder, and that the slug lodged in Spalla's chest might well have been of the same caliber. Id. at 274-75, 277-78, 560, 703-04. And it may have even given credence to Wallace's theory that Spalla and Luisi were shot by different-sized bullets. Id. at 278-81. Without Brown's statement, these pieces of evidence would have seemed disjointed. But, when juxtaposed with his confession, this evidence would have congealed into a compelling defense that Brown, and not Wallace, fired the shot that took Spalla's life.

In Pennsylvania, a criminal defendant can be guilty of first-degree murder without pulling the trigger under a theory of accomplice liability. Commonwealth v. Spotz, 716 A.2d 580, 585-86 (Pa. 1998). Nonetheless, the jury in Wallace's case was never instructed on this theory. (Third Trial Tr., at 960-66). Accordingly, to find Wallace guilty of the crime, it had to determine whether he shot Tina Spalla.

After all, the only evidence that Wallace actually killed Spalla was his ownership of a .32 caliber handgun, id. at 540, the same kind allegedly used to shoot her. Id. at 291-92. This evidence, however, was hardly proof of first-degree murder. First, the murder weapon itself was never found. Second, Brown and Johnson admitted that they identified Wallace's weapon as a .32 only because the police had told them as much. Id. at 565, 691. As the Commonwealth's own witness admitted, there was a dearth of physical evidence against Wallace. Id. at 252-53.

While Olen Clay Gorby's testimony would have remained untouched by the admission of Brown's prior statement, his testimony, standing alone, was hardly the stuff upon which to rest a first-degree murder conviction. Id. at 759-60. On two previous occasions, in fact, the Commonwealth tried to convict Wallace based on Gorby's testimony alone, and both times it failed to gain a conviction that could survive. Wallace I, 455 A.2d at 1188, 1191-93. To make matters worse, Gorby had a string of prior convictions, (Third Trial Tr., at 764-65), and his credibility was undermined by another prisoner, id. at 842-45, and the Deputy Warden of the Washington County jail, id. at 825-27. It is unlikely that the jury in Wallace's case, once given compelling evidence that Brown had killed Spalla, would have decided to convict on Gorby's testimony alone.

While this analysis is sufficient to compel my conclusion today, there is even more evidence which supports my view that the errors in question were not harmless. During its closing argument, the Commonwealth exacerbated the constitutional problem when it blamed Wallace himself for failing to prove that Brown shot Spalla.

[I]t was represented to you that Mr. Brown said he was responsible and that he pled guilty two or three times, but has it ever been said to you by anyone that Mr. Brown at any time said I shot Carl and Tina? He knows he was there. He's lived on the wrong side of the law at times and he knows to be there is to be responsible. But he also, in his heart and his mind, knows the difference between being responsible and between pulling the trigger.

Id. at 924-25 (emphasis added). I am not sure why the Commonwealth made this argument. Perhaps it was attempting to bolster Brown's credibility. Perhaps it was "rubbing salt" in Wallace's wound by stressing the evidentiary rulings that had gone against him. Whatever the reason, this statement poisoned the collective mind of the jury. It accentuated the trial court's errors by telling the jury that Brown never confessed to shooting Spalla when, in fact, there was evidence that he had. Under the present circumstances, such poison knows but one antidote. I must therefore conclude that the Sixth and Fourteenth Amendment errors at issue had "a substantial and injurious effect," Brecht, 507 U.S. at 637, on the jury's verdict of first-degree murder. On this conviction, at least, Wallace is entitled to relief.

(5) The Remaining Convictions

I reach a different conclusion, however, on Wallace's convictions for second-degree murder, robbery, and conspiracy. While the trial court's refusal to admit Brown's prior statement altered the landscape of the Commonwealth's case for first-degree murder, it had a much more muted effect on the remaining charges against him.

For one, Brown's statement did not weaken the evidence against Wallace on these remaining charges. The second-degree murder charge was based solely on the shooting of Luisi, not Spalla. The robbery charge was unaffected by Brown's confession or by any evidence concerning the shootings in question. While Brown's statement might have had an effect on Wallace's conspiracy charge, it was only because conspiracy required proof of an overt act. Nonetheless, the overt act could have consisted of a host of things, including the robbery itself, and the jury did not need to find that Wallace shot Spalla in order to convict him of conspiracy. (Third Trial Tr., at 959-60). All of this, however, is a complicated way to make a simple point: while Brown's statement directly affected the first-degree murder conviction, its connection to the remaining convictions was tenuous, at best.

The only real influence that Brown's statement would have had is this: it would have damaged his credibility. But this damage is hardly enough to topple the remaining convictions. Brown's credibility had already been significantly shaken by evidence of his prior criminal record, his questionable motive for testifying, and his previous guilty-pleas in this very case. Id. at 634-88. Nonetheless, the jury that heard this evidence credited Brown's testimony and convicted Wallace on all the counts against him. At least with regard to Wallace's remaining claims, I suspect that the added chink in Brown's credibility, particularly concerning an unrelated issue, would have done little to affect the jury's assessment of him.

Additionally, there was compelling evidence that Wallace did take part in the robbery, even if he did not fire the bullet that killed Spalla. Two men entered Carl's Cleaners on August 17, 1979, and one of them was Henry Brown. At trial, this fact was undisputed. Unfortunately for Wallace, there was powerful circumstantial evidence marking him as the second man. For one, Wallace spent much of August 17, 1979 traveling with Brown in Brown's car, id. at 535-41, the same car seen at the scene by numerous witnesses. Id. at 357-59, 376-78, 384-87, 392-95, 461. Second, he was wearing a tan trench coat at the time, id. at 541, the same kind worn by one of the two men who fled Carl's Cleaners shortly after the robbery. Id. at 415-16, 440. Finally, he was still with Brown three days after the murder and, at the time, he "seemed kind of nervous." Id. at 543. While this evidence does not prove that Wallace fired the gun that killed Spalla, it certainly shows that he participated in the robbery — more than enough to obtain convictions for robbery, conspiracy, and second-degree murder.

Under Pennsylvania law, Wallace could have been found guilty of second-degree murder under the felony-murder doctrine, simply by taking part in the robbery, whether or not he fired the shots that killed the victims. 18 Pa. Cons. Stat. Ann. § 2502; Commonwealth v. Allen, 379 A.2d 1335 (Pa. 1977).

Even Wallace himself recognizes that the errors at issue had a greater effect on his first-degree murder conviction than they did on his remaining convictions. His counsel first noted the distinction at trial, stressing that Brown's prior statement was relevant to the first-degree murder conviction alone:

We propose to call Anita Johnson in this first degree murder case to testify that Henry Brown, the Commonwealth's main witness, told her, Anita Johnson, that he, Brown, shot and killed the girl, with reference to Tina Spalla. That is the victim on whom the Commonwealth is seeking first degree murder and the death penalty against Mr. Wallace. . . . Brown most certainly did tell her that he shot the girl, and that is relevant not only to impeach Brown, but for another purpose as well. That is substantive defense that Mr. Wallace has. By this testimony of Mr. Brown, the Commonwealth's star witness coming in, this may show the jury, this may convince the jury that the Commonwealth does not have enough evidence to prove beyond a reasonable doubt that the defendant Wallace was the killer of Tina Spalla. The jury may conclude, they may choose to believe the statement that Brown gave to Anita Johnson, that he, Brown, did indeed kill Tina Spalla, and that therefore, they may find Mr. Wallace guilty only of second degree murder; or in the alternative, that may cause them to find Mr. Wallace guilty of first degree murder, but save him from the electric chair.
I suggest to the Court that whether or not Mr. Wallace dies in the electric chair may very well turn on the question we are discussing here today. I think any close question such as this must be resolved in favor of the defendant, and this is no pickpocketing, this is first-degree murder.

Id. at 875-77 (emphasis added). So too in his habeas petition, Wallace stressed that this error had a greater effect on his first-degree murder conviction than it did on the other convictions. "Evidence tending to establish that Mr. Brown actually shot Ms. Spalla," Wallace explained, "was critical to Petitioner's defense with respect to first degree murder." Dkt. no. 20, at 17-18. As to the other convictions, the evidence merely undermined Brown's credibility. Id. at 18.

For the most part, I agree with Wallace's assessment. Evidence that Brown shot Spalla was "critical" to his defense for first-degree murder and the failure of the court to admit Brown's statement had a serious effect on the jury's verdict on that count. As to his remaining convictions, however, the damage was not as severe. Admission of Brown's prior statement had little direct relevance to the other convictions, except to the extent that it weakened Brown's credibility, which was already throughly attacked during the course of trial. For this reason, I conclude that the errors at issue, at least with respect to Wallace's convictions for second-degree murder, robbery, and conspiracy, were harmless.

(6) Conclusion

To the extent that Wallace seeks relief from his conviction for first-degree murder, I recommend that his Sixth and Fourteenth Amendment claims be granted. In all other respects these claims should be denied. Nevertheless, even for those errors deemed harmless, Wallace has made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and is entitled to a certificate of appealability.

In order to make a "substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c)(2), Wallace must prove "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Szuchon, 273 F.3d at 312.

B. The Deal That Secured Henry Brown's Testimony

With Wallace's first-degree murder conviction stripped away, all that remains are his convictions for second-degree murder, conspiracy, and robbery. In an effort to obtain relief from these convictions, Wallace argues that the Commonwealth violated his rights under the due process clause of the Fourteenth Amendment when it intentionally manipulated the judicial process in order to secure the testimony of Henry Brown. Because the Pennsylvania Supreme Court addressed the merits of this federal constitutional claim, Wallace II, 561 A.2d at 312, my review is limited under AEDPA. 28 U.S.C. § 2254(d)(1). For the following reasons, I recommend that Wallace's claim be denied.

(1) Factual Background

In January 1980, Henry Brown pled guilty to two counts of felony-murder (second-degree murder), one count of robbery, and one count of criminal conspiracy for his participation in the robbery of Carl's Cleaners and the murders of Carl Luisi, Sr. and Tina Spalla. (Third Trial Tr., at 653). He was sentenced to life in prison. Id. at 661. A condition of that plea was that Brown testify against Wallace at trial. Id. at 656. When he refused to do so, the Commonwealth withdrew the agreement, deciding instead to proceed against him at a trial in which it would seek the death penalty. Id. at 663-64. Rather than face the prospects of a death sentence, Brown entered another agreement with the Commonwealth. Once again, he pled guilty to two counts of second-degree murder, one count of robbery, and one count of conspiracy, and, once again, he was sentenced to life in prison. Id. at 666. When Wallace came to trial in December 1980 and again in February 1981, Brown did not testify against him. Id. at 662-64, 669, 672. Nearly five years later, as the date of Wallace's third trial approached, Brown was still serving a life sentence and still refusing to testify against Wallace.

On the eve of Wallace's third trial, however, the Commonwealth and Brown struck a deal. In exchange for Brown's agreement to testify against Wallace, the Commonwealth agreed to a change in Brown's plea and a dramatic reduction in his sentence. See supra § I. While the terms of the agreement were clear enough, a number of hurdles stood in the way. Neither Brown nor the District Attorney had the power to alter a guilty plea that had been entered in open court and accepted by a state judge. In fact, the judge that accepted Brown's second plea, Court of Common Pleas Judge John F. Bell, said that he believed that the sentence Brown received was appropriate.

In the eyes of the law, you were just as guilty as if you did do the killing, and any sentence less than full incarceration, I think, would depreciate the seriousness of these crimes. I also feel that with your past record, any sentence that did not require a life sentence would be detrimental to society and to the general public.

Id. at 110 (quoting Plea Tr., 10/24/80) (emphasis added). To make matters worse, at that time, Pennsylvania law did not permit the withdrawal of a guilty plea or modification of a sentence, more than ten days after the imposition of the sentence. Pa.R.Crim.P. 321 1410 (West 1985). Accordingly, to secure judicial blessing for their deal, Brown and the Commonwealth had to use their creative skills and take a different approach.

The path they chose to circumvent their dilemma was this: a petition would be filed challenging Brown's earlier guilty plea under the Pennsylvania Post Conviction Hearing Act ("PCHA"). On the first morning of Wallace's third trial, Brown's attorney, Paul Gettleman, presented this petition to Judge Gladden of the Court of Common Pleas for Washington County. (Third Trial Tr., at 108, 333). In it, Gettleman argued that he was ineffective when he represented Brown during the negotiation of his second plea agreement. Id. at 339. And he asked that Brown be allowed to withdraw that earlier guilty plea. (Plea Agreement, ¶ 1(a)). The Commonwealth did not oppose the request, (Third Trial Tr. at 334), and, in fact, "concede[d] that Henry Eugene Brown should be permitted to withdraw his guilty plea . . . for the reasons cited in the PCHA petition." (Plea Agreement, ¶ 1(b)). In addition, both parties asked Judge Gladden to accept a new plea agreement under which Brown would plead to third-degree murder and be sentenced to ten to twenty years. Id. ¶ 1(c). Judge Gladden permitted Brown to withdraw his guilty plea and accepted the new agreement of the parties. (Third Trial Tr., at 337).

There were obvious problems with the PCHA proceedings that sanctioned Brown's new plea agreement. First, the proceedings themselves were sapped of their adversarial nature and became nothing more than a mere rubber stamp for the agreement reached by Brown and the Commonwealth. No hearing was held, and Brown was never questioned by the court. Id. at 342-43. The Commonwealth, usually a fierce adversary in such proceedings, conceded the merits of Brown's petition and even went so far as to ask the court to grant the relief requested.

Second, the way in which the PCHA petition was presented was arguably improper. As a general rule, Pennsylvania law prohibits an attorney from raising his own ineffectiveness. Commonwealth v. Fox, 383 A.2d 199, 200-01 (Pa. 1978). One noted exception exists when the reversible error is apparent on the record. Id. But, it is difficult to believe that such an exception applied in Brown's case. Brown's fingerprints were found in Carl's Cleaners, his car was spotted at the scene, and he gave a statement to the police admitting his complicity in the robbery. Indeed, at one point, the Commonwealth had charged Brown with first-degree murder and was seeking the death penalty. A second-degree murder plea, which may have served to save Brown's life, was certainly a reasonable and prudent deal for counsel to strike. That much is obvious to even the most casual observer.

Upon learning of Brown's deal, Wallace moved to prevent him from testifying at trial. (Third Trial Tr., at 109-111, 583-84). The trial court heard argument on this issue, id. at 108-61, 333-46, 579-601, and ultimately rejected the motion. Id. at 597. Brown testified, and Wallace was given some latitude to cross-examine him. Id. at 653-88. The jury was told about Brown's two earlier guilty pleas and his refusal to testify on two previous occasions. Id. at 653, 669, 672. It heard that Brown had been serving a life sentence with no possibility of parole, id. at 661, 666, when the Commonwealth offered him a deal that permitted him to be released within four years. Id. at 673-74. And it learned the substance of Brown's plea agreement with the Commonwealth, having it read to them by Wallace's counsel. Id. at 685-88. After hearing all of this, however, the jury still credited Brown's testimony and convicted Wallace of the charges against him.

(2) Exhaustion and Procedural Default

After trial, Wallace raised the exact same claim that he raises today in a motion for new trial and then on appeal from the trial court's denial of that motion. (Additional Post Trial Motion, ¶ 23; Direct Appeal Brief, at 41-45). The Pennsylvania Supreme Court addressed the issue on its merits, denying relief. "The record reveals that every aspect of the bargain between Brown and the prosecution was presented to the jury in painstaking detail and that nothing was hidden from their scrutiny," the court explained. "Thus the admission of Brown's testimony was harmless." Wallace II, 561 A.2d at 312. Because the claim now at issue was fairly presented to the state court and addressed on its merits, it is exhausted and not procedurally barred. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. The only issue that I must resolve, therefore, is whether the Pennsylvania Supreme Court's decision was "contrary to" or an "unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1). For the following reasons, I conclude that it was not.

(3) Prosecutorial Misconduct Claim

Federal habeas relief may be granted when a prosecutor's conduct during trial "so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To constitute a due process violation, however, the petitioner must prove more than just an ordinary trial error. Instead, he must prove that there has been, in his case, a "`failure to observe the fundamental fairness essential to the very concept of justice.'" Id. at 642 (quoting Lisbena v. California, 314 U.S. 219, 236 (1941)). In analyzing a claim for prosecutorial misconduct, the court must "examine the prosecutor's offensive actions in light of the entire trial, assessing the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant." Moore v. Morton, 255 F.3d 95, 108 (3d Cir. 2001).

The Commonwealth's conduct in this case was far from a model of prosecutorial ethics. Unable to obtain Wallace's conviction on two previous attempts, the Commonwealth circumvented Pennsylvania law by offering Brown a deal that only a fool in his folly would choose to reject. Brown would testify against Wallace and his life sentence would magically vanish. Adding to the tempting offer, he would be almost immediately redeemed from the sentence which placed him behind bars for the remainder of his natural life.

While the great majority of PCHA petitions are denied outright, this one obviously received preferential treatment. It was summarily granted without any adversarial testing. The trial court did not hold a hearing, did not elicit testimony from the lawyer who was allegedly ineffective, and did not ask any questions of the client whose rights were allegedly denied. (Third Trial Tr., at 342-43). The plea agreement that resulted was one for third-degree murder, an agreement arguably at odds with the facts of this case. The sentence that was imposed was for ten to twenty years, a sentence inconsistent with the view of the trial judge who accepted Brown's second guilty plea. Id. at 110 (quoting Plea Tr., 10/24/80). Finally, the way that Brown's relief was obtained — through a claim of ineffectiveness raised by the same lawyer who had represented him previously — was in tension with well-settled Pennsylvania law. Fox, 383 A.2d at 200-01. None of these problems were discussed at the PCHA proceedings. In fact, Wallace's counsel tried to raise these very issues, but was denied the opportunity. (Third Trial Tr., at 109).

While I am obviously troubled by all of this, my concerns are insufficient to secure Wallace the relief he seeks. As the Supreme Court has explained, "the 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 (1982). Whatever the Commonwealth might have done, Wallace's trial was basically fair. The jury heard nearly everything about the substance of the deal between Brown and the Commonwealth and the way that it implicated Brown's credibility. On cross-examination alone, Brown recounted his two previous guilty pleas, his refusal to testify on two previous occasions, and the fact that he was serving two life sentences on the eve of Wallace's trial. (Third Trial Tr., at 653, 656, 661-64, 666, 669, 672). The jury learned that Wallace had challenged his second guilty plea and that the challenge had been rejected by the same judge who presided over Wallace's trial. Id. at 684. It heard about the last minute deal and, in broad terms, how it came about. Id. at 655, 671-72, 685-88. Brown's plea agreement was read to the jury, paragraph by paragraph, for its consideration. Id. at 685-88. During cross-examination alone, questioning concerning Brown's deal spanned nearly forty pages, id. at 651-89, and must have consumed more than an hour of trial time. Finally, counsel for both sides discussed Brown's deal in their closing arguments. Id. at 901-02, 930-32. All of this evidence shed light on Brown's deal, his reasons for testifying, and his credibility.

In one respect, however, the jury was kept in the dark. It never heard Wallace's theory that the PCHA proceedings were illegal under state law. Had the jury credited this theory, it might have viewed the Commonwealth's case with greater suspicion, viewing the Brown plea agreement as an illicit transaction orchestrated by the Commonwealth in a last-ditch effort to win a losing case. Nonetheless, I cannot say that the exclusion of this evidence was incorrect as a matter of due process. Evidence concerning the legality of the deal was likely irrelevant and certainly collateral to the issue of Brown's credibility. Had the trial court admitted such evidence, it would have created a unwieldy mini-trial that was more likely to confuse the jury than to inform it. The trial court admitted nearly all of the evidence concerning Brown's plea bargain. It allowed the jury to learn about the agreement, as well as the circumstances which prompted the Commonwealth to offer the deal to Brown. With that information within its ken, the jury had every opportunity to judge Brown's credibility. No more was required to satisfy due process. Donnelly, 416 U.S. at 642-43.

After all, this was not a case where a witness was compelled to present false testimony. In fact, the third plea agreement between Brown and the Commonwealth required just the opposite.

In order to fulfill his part of the agreement, Henry Eugene Brown agrees to testify truthfully and completely to all facts surrounding the cases at issue. Said testimony, however, to be substantially consistent with the statement of the said Henry Eugene Brown as given to law enforcement officers on January 23, 1980, wherein he identifies William Wallace as the shooter of Tina Spalla and Carl Luisi, Sr.

(Plea Agreement, 10/25/85, ¶ 2) (emphasis added). Today, Wallace seizes on the fact that Brown was required to testify in accordance with his January 23, 1980 statement as proof that Brown was required to testify falsely. But, this criticism is without merit. The Commonwealth had reason to believe that Brown's prior sworn statement was truthful and to ask him, once again, to present his story in the same way.

Indeed, a review of those cases in which the Supreme Court has found false testimony shows the lack of substance to Wallace's argument. In Miller v. Pate, 386 U.S. 1 (1967), the government conceded that the allegedly "blood stained" shorts that had made up the heart of its case at trial were, in fact, stained with red paint. Miller, 386 U.S. at 6. In Alcorta v. State of Texas, 355 U.S. 28 (1957), the government's key witness at trial later admitted that he had given less than truthful testimony. Alcorta, 355 U.S. at 30-31. And in Napue v. Illinois, 360 U.S. 264 (1959), there was an uncontested factual finding that the government's main witness lied when he denied that he was receiving consideration for his testimony. Napue, 360 U.S. at 267-68. In each case, the evidence introduced at trial was undeniably false: witnesses recanted or the government conceded the falsity. Here, there is no such proof. No secret documents, hidden police reports, or buried affidavits have been unearthed, demonstrating that the Commonwealth knowingly presented false testimony. Granted, Brown did state that he "shot the girl" soon after the murder, while his trial testimony (and apparently his January 23, 1980 statement) shows that Wallace shot Spalla. But, this does not mean that Brown lied when he took the stand. He could have very well lied to Johnson. And, it certainly does not mean that the Commonwealth knowingly introduced false testimony at trial.

This was also not a case where the Commonwealth withheld critical information from Wallace. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). The PCHA proceedings at issue were open to the public, and counsel for Wallace actually witnessed these proceedings first-hand. (Third Trial Tr., at 108-09). The Plea Agreement and the PCHA petition were disclosed to Wallace prior to Brown's examination, and he was given the opportunity to review these documents completely before his cross-examination of Brown. Id. at 589-97. Further, even the deal itself was not a surprise to Wallace. For years, the Commonwealth had been trying to secure Brown's testimony against Wallace. As defense counsel conceded at trial, "[t]he Commonwealth . . . has informed us all along that they hoped to have Mr. Brown as a witness in this case . . ." Id. at 115.

Finally, this was not a case where the prosecution engaged in "outrageous conduct." As the Court of Appeals for the Third Circuit has explained, "a criminal defendant may raise a due process challenge to an indictment against her based on a claim that the government employed outrageous law enforcement investigative techniques." United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir. 1998).

Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. . . . The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating.

Id. at 230-31 (citation omitted). As I have already clearly stated, the Commonwealth's conduct in its prosecution of Wallace was arguably questionable in some respects, but it was not outrageous. The Commonwealth entered a public deal with Henry Brown which was sanctioned by a trial court, exercising its independent judgment. This is sufficient to overcome any allegation that the Commonwealth's conduct somehow violated due process. Id. at 230.

In rejecting Wallace's claim, the Pennsylvania Supreme Court addressed the issues discussed at length here. With little discussion, it succinctly and effectively denied Wallace's claim, holding that "every aspect of the bargain between Brown and the prosecution was presented to the jury in painstaking detail and that nothing was hidden from their scrutiny." Wallace II, 561 A.2d at 312. This conclusion was generally correct as a factual matter and clearly correct as a legal one. Smith, 455 U.S. at 219. Accordingly, it was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law," 28 U.S.C. § 2254(d)(1). Franklin v. Johnson, 290 F.3d 1223, 1233 (9th Cir. 2002) ("If . . . the state court reached the correct result with respect to petitioner's claim of constitutional violation (even if on erroneous reasoning), that is the end of our inquiry.").

(4) Conclusion

For the reasons set out above, I recommend denying Wallace's claim for relief under the due process clause of the Fourteenth Amendment. However, because Wallace has made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), he is entitled to a certificate of appealability on this claim.

C. Ineffective Assistance of Counsel

Wallace next raises a lengthy claim for ineffective assistance of counsel. While styled as one claim, it is in reality many different claims. Whether considered individually or cumulatively, however, these claims are without merit.

This is Claim III in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III, at 24-46).

(1) Counsel's Failure to Object to Testimony Concerning Crime Victims

Wallace first argues that his trial counsel erred by failing to object to certain testimony concerning the crime victims, Spalla and Luisi. The Pennsylvania Supreme Court addressed the merits of this claim, denying relief. Wallace III, 724 A.2d at 923-24. For the following reasons, I conclude that its decision was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

This is Claim III.A in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.A, at 24).

(a) Factual Background

At trial, the Commonwealth introduced the testimony of seven different witnesses who saw the victims either shortly before or immediately after their deaths. The relevant testimony was as follows:

• Toni Spalla Manganas, Tina Spalla's sister, testified that she dropped her sister off at Carl's Cleaner's on the day of the murder, (Third Trial Tr., at 298), and then never saw her alive again. Id. at 299. According to Manganas, Spalla would have entered the eleventh grade. Id.
• Denise Buyan, another of Spalla's sisters, testified that she was working in a supermarket near Carl's Cleaners at the time of the shootings and that she ran to the cleaners once she learned that there was an ambulance there. Id. at 303. When she got to the cleaners her sister was alive, but was being placed on a stretcher. Id. at 304. She watched the emergency crew place Spalla in the ambulance and then followed the ambulance to the hospital. Id.
• Debra Ann Prater, an employee of Carl's Cleaners, testified that she worked until 5:00 p.m. on the day of the shootings. Id. at 312. She explained that the store had taken in $197.05 on that day. Id. When she left, Tina Spalla was at the front counter near the cash register, while Carl Luisi, Sr. was in the back room. Id. at 312-13.
• Carl Luisi, Jr., the son of Carl Luisi, Sr., testified that he worked for his father for many years and was familiar with the business. Id. at 315-17. He verified that the store had taken in $197.05 on August 17, 1979. Id. at 318-19. When he learned of the shootings, he rushed to the cleaners only to find that his father had been shot and was apparently dead. Id. at 319-20.
• Thomas Drosdick, a customer, testified that when he entered Carl's Cleaners at approximately 5:30 p.m., he heard a "faint moaning sound" and saw Spalla on the floor near the cash register "rolling from side to side." Id. at 322. He called the police and then reentered the cleaners with his wife, who was a nurse. Id. at 323-24. His testimony continued:
We went back in and first, I believe my wife looked at Carl, but I'm not a doctor, but he looked dead; I mean his eyes were rolled back in his sockets and there was powder burns on his chest from where he was shot. And so she went and went to Tina, who was still moving and I'm not sure what all she did. I stayed out of her way. But I believe she gave her mouth-to-mouth resuscitation.

Id. at 324.

• Karen Demark, Drosdick's wife, reiterated much of her husband's testimony and then briefly explained her interaction with Spalla before Spalla died. Id. at 326-29. Spalla was "lying on her back on the floor and she was throwing her head back and forth and moaning." Id. at 329. Demark performed mouth-to-mouth resuscitation for several minutes and then the ambulance arrived. Id. at 330. When asked to describe Spalla's condition at the time, Demark said the following: "Just that whenever I got up to leave her, she had a blood stain running across her chest and I know that whenever they went to put her in, they had her on a stretcher and she like went into heart failure or something; she was serious." Id. at 330.
• William Miller, an emergency medical technician who responded to the shootings, testified that when he arrived at the cleaners, Carl Luisi, Sr. was dead. Id. at 352-53. He then explained that he tried to "stabilize" Tina Spalla. Id. at 353. At the time, however, "she had a lot of blood in her mouth," id., and was gasping for breath," id. at 354, and "moaning." Id.

At the time, Wallace's counsel did not object to the introduction of any of this testimony. Today, Wallace alleges that this failure amounted to ineffective assistance of counsel.

(b) Exhaustion and Procedural Default

This identical claim was raised during Wallace's PCRA proceedings. (Supp. to Pro Se Petition, ¶ (2)(b), at 3-(G); PCRA Appeal Brief, at 64-72). The Pennsylvania Supreme Court rejected it, however, holding that Wallace's "ineffectiveness claim fails because he has not established that there is a reasonable probability that but for counsel's failure to object to the challenged testimony the outcome of the proceedings would have been different." Wallace III, 724 A.2d at 924. Because the claim now at issue was fairly presented to the state court and addressed on its merits, it is exhausted and not procedurally barred. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. Thus, the only question before me is whether the Pennsylvania Supreme Court's decision was "contrary to" or an "unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1). I conclude that it was not.

(c) Legal Analysis

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set out two components to a Sixth Amendment claim for ineffective assistance of counsel. First, the petitioner must show that his counsel's performance was deficient. This requires showing that "counsel's representation fell below an objective standard of reasonableness." Id. at 688; see also Williams, 529 U.S. at 390-91.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and 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's was unreasonable. . . . [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."

Strickland, 466 U.S. at 689. As the Third Circuit has explained, "[i]t is only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997).

Second, the petitioner must show that he was prejudiced by the deficient performance. "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." Strickland, 466 U.S. at 687. To establish prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional 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; see also Williams, 529 U.S. at 391.

In the present case, Wallace has failed to prove either prong of his Sixth Amendment claim. First, defense counsel's failure to object to this testimony was wholly reasonable. Much of the testimony that Wallace objects to was perfectly acceptable and wholly relevant when considered in context. The government is not required to try a murder case on a blank canvas. In fact, "the usual standards of trial relevance afford factfinders enough information about surrounding circumstances to let them make sense of the narrowly material facts of the crime itself." Payne v. Tennessee, 501 U.S. 808, 840-41 (1991) (Souter, J., concurring). For the most part, the evidence at issue added background and color to the picture that the Commonwealth was trying to portray. It explained the circumstances shortly before the murders and described the condition of the victims soon after the crime. The wholesale elimination of this evidence, as Wallace now requests, "would seriously reduce the comprehensibility of most trials by depriving jurors of those details of context that allow them to understand what is being described." Id. at 841. In failing to object to such testimony, counsel was not deficient.

Wallace also was not prejudiced by this testimony. The testimony at issue played a minor role in the Commonwealth's case, comprising just over fifty pages in a transcript that spanned more than 1000. See (Third Trial Tr., at 300-54). For the most part, it came on the trial's second day, id., while the heart of the Commonwealth's case did not come until the fourth and fifth days of trial. Id. at 602-796. After the witnesses in question testified, their testimony was never mentioned again and never raised in closing arguments. Indeed, the testimony was of such little value in a trial that turned almost exclusively on the testimony of Henry Brown that I am surprised that Wallace raises this issue at all. It would have taken a jury with extraordinary recall to remember the testimony now at issue, and one of considerable incompetence to rely on it.

All of this is a long way of saying that the Pennsylvania Supreme Court's decision denying relief must stand. First, that court's decision was not "contrary to" Strickland. Although that court did not cite Strickland in denying Wallace's ineffectiveness claim, it relied on Pennsylvania cases that used an identical standard for ineffectiveness. Wallace III, 724 A.2d at 924; see also Werts v. Vaughn, 228 F.3d 178, 202-03 (3d Cir. 2000) (examining Pennsylvania ineffectiveness law and determining that it is the same as the Strickland standard); see also Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (same). As the Williams Court explained, "a run-of-the mill state-court decision applying the correct legal rule from [Supreme Court] cases," does "not fit comfortably within § 2254(d)(1)'s `contrary to' clause." Williams, 529 U.S. at 406. Second, the Pennsylvania Supreme Court's decision was not "unreasonable." That Court correctly applied Strickland's prejudice prong in denying Wallace's claim for relief. Under AEDPA, no more is required. Franklin, 290 F.3d at 1233. I recommend denying Wallace's claim for relief and denying him a certificate of appealability as well.

(2) Counsel's Reference to Wallace's Prior Trials

Wallace next argues that his counsel was ineffective when he repeatedly mentioned the fact that Wallace was tried for the same crime on two previous occasions. The Pennsylvania Supreme Court addressed the merits of this claim in Wallace III, 724 A.2d at 923, denying relief. For the following reasons, I conclude that this decision was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

This is Claim III.B in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.B, at 30).

(a) Factual Background

During the course of the trial, Wallace's counsel personally indicated to the jury, and elicited testimony from others which suggested, that Wallace had been previously tried for the same offense.

First, during the cross examination of Donald Kemp, a Commonwealth witness, defense counsel referred on more than one occasion to the existence of a prior trial. (Third Trial Tr., at 451-53). During his direct examination, Kemp had testified that two black males fled Carl's Cleaners immediately after the shootings. Id. at 440. One of the men wore a beige trench coat. Id. at 440. The other wore a burgundy sport coat. Id. During cross-examination, Wallace's counsel tried to impeach Kemp on this testimony. Three times he referred to a "prior proceeding" in an effort to show the inconsistencies in Kemp's testimony. Id. at 451-52. And, one time, he even asked about Kemp's testimony at the "last trial." Id. at 452. At some point during this exchange, the District Attorney objected and exacerbated the problem when he used the phrase "previous trial" in front of the jury. Id. at 453.

Second, during the cross-examination of Henry Brown, Wallace's counsel questioned the witness in a way that implied that there had been two previous trials in this case. Id. at 662-73.

Q. The truth of the matter is you had prior occasions when you were going to take the stand and testify in some prior proceeding, right? But you refused.

A. Right.

* * * *

A. I'm not trying to hide anything. I'm not trying to hide it here in Court.

Q. You hid it twice before.

A. No, I haven't hid it.

Q. You haven't?

A. No.

Q. Were you called to testify on two other occasions?

A. It's never been heard.

Q. Were you called to testify on two other occasions?

A. I was asked.

Q. Did you refuse?

A. Yes, I did.

Q. Because the deal wasn't good enough, was it?

A. If you want to put it that way, yes . . .

Id. at 669-72 (emphasis added).

Finally, defense counsel elicited the same kind of testimony from Ronald Van Ostran, a key witness for the defense.

Q. Now, Mr. Van Ostran, while you were in the Greene County jail, did you happen to meet or know an individual by the name of Olen Clay Gorby?

A. Yes, sir.

* * * *

Q. What did Mr. Gorby tell you?

A. Mr. Gorby told me that he'd be getting out of jail soon after the trial, that he was promised to be released from all of his charges if he testified against Mr. Wallace, and that he was receiving $1,000.00 in payment.

* * * *

Q. Mr. Van Ostran, how long were you in the Greene County Jail with Olen Clay Gorby?

A. I would say approximately 6 weeks.

Q. Did Mr. Gorby inform you that he was going to be released soon?
A. He said that he would be released immediately after the trial.
Q. To the best of your knowledge, do you have any idea when or if Mr. Gorby was ever released?

A. No, I don't know when, but I believe he was.

Q. But you have no first-hand knowledge of that, do you?

A. No sir, I don't.

Q. When did you leave the Greene County Jail?

A. I believe it was around the 20th of March.

Q. What year?

A. 1981.

Id. at 842-45 (emphasis added). At this point in the trial, Gorby had already admitted that shortly after he had testified against Wallace at "a prior proceeding," he was released from jail. Id. at 767. The Commonwealth recognized the problem with many of defense counsel's questions and raised the issue at a side bar conference.

MR. PETTIT: Your Honor, we would just like the record to clearly indicate that defense counsel is asking questions of this witness concerning his testifying against Mr. Wallace.

MR. VREELAND: In a prior proceeding.

MR. PETTIT: In a prior proceeding. I think he may have even said in a previous trial. I'm not certain.

MR. VREELAND: Not this time, I don't think.

MR. PETTIT: Of course, we have no manner in which to conduct the defense of this case, but we think it is important to call the attention of the Court and to defense counsel at this time the area he is covering so that at some later point in time we are not faced with a problem whereby this defendant is suggesting he is entitled to a new trial, due to the ineffectiveness of counsel by bringing out before this jury the fact that the defendant was on trial before.

Id. at 782-83 (emphasis added).

(b) Exhaustion and Procedural Default

No doubt taking his cue from the District Attorney's statement at trial, Wallace raised the same ineffectiveness claim that he raises today during his PCRA proceedings in state court. (Second Amended PCRA Petition, ¶ XV; PCRA Appeal Brief, at 54-60). The Pennsylvania Supreme Court rejected the claim, holding that Wallace had failed to prove that he had been prejudiced by his counsel's conduct. Wallace III, 724 A.2d at 923. Once again, there is no issue of exhaustion or procedural default before me. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. And, once again, the only question I must address is whether the Pennsylvania Supreme Court's decision was "contrary to" or an "unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1). I conclude that it was not.

(c) Legal Analysis

At the beginning of the third trial, defense counsel was in possession of mounds of valuable impeachment evidence. If used properly, this evidence could have significantly undermined the credibility of the government's key witnesses and sapped the jury's faith in the integrity of the Commonwealth's case. But, to use this evidence properly, defense counsel had to, at a minimum, admit the existence of the prior proceedings in this case. He did so. And he did so in a way that was professional and not overly obvious. Only once, during the course of a week-long trial, did counsel use the term "last trial," (Third Trial Tr., at 452), when referring to the prior proceedings in this case. At all other times, he used ambiguous phrases, such as "prior proceedings," id. at 451-52, or "prior occasions," id. at 669-72. When reviewing counsel's conduct under Strickland, I "must indulge the strong presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In the present case, counsel made a strategic decision to tap into the wealth of impeachment evidence available to him. His decision was reasonable and, indeed, absolutely appropriate under the circumstances of this case. For this reason, Wallace cannot satisfy the first prong of his Strickland claim. The Pennsylvania Supreme Court's decision to reject Wallace's claim was correct. Franklin, 290 F.3d at 1233. Accordingly, I recommend denying Wallace's claim and denying him a certificate of appealability as well.

(3) Counsel's Failure to Present Alibi Testimony of Loretta Buckner

Wallace next claims that his trial counsel was ineffective because he failed to present the alibi testimony of Loretta Buckner at trial. The Pennsylvania Supreme Court addressed the merits of this claim in Wallace III, 724 A.2d at 922, denying relief. For the following reasons, I conclude that this decision was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

This is Claim III.C in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.C, at 35).

(a) Factual Background

At trial, Wallace did not put forward an alibi for his whereabouts at the time of the murders. This does not mean that he did not have one. In fact, from the moment of his arrest, Wallace claimed that he spent the entire day of the murders with Loretta Buckner, the mother of his children. He first told this alibi to Jane Glauser, a lawyer who represented him during his extradition hearings in West Virginia. (PCRA Hearing Tr., 11/6/95, at 56). To confirm Wallace's story, Glauser spoke with Buckner on "several occasions," id., ultimately concluding that her story was "consistent." Id. at 62. After being sent to Pennsylvania for trial, Wallace again told his alibi to his defense counsel, Thomas Vreeland. Id. at 8-9. Nonetheless, Vreeland decided not to put Buckner on the stand. He explained his decision at the PCRA hearing.

[Wallace's] request for an alibi defense was off again, on again, off again, on again. After we had attempted to talk to Loretta Buckner on a number of occasions, I think I actually had talked to her on the telephone and determined she would not be a good alibi witness, she never got her story straight, she'd say different things at different times. We determined she would not be a good witness for his defense, and that her alibi wasn't very credible.

* * * *

I would have to say — I can't be specific, but I would have to say that she was inconsistent, and that was one of the reasons why we decided that she would be more of a liability than an asset.

Id. at 10-11; see also id. at 38-39. Put another way, Vreeland did not think that Buckner's testimony would be "advantageous" to Wallace. Id. at 39. Accordingly, when Wallace presented his defense at trial, it was limited to attacking the Commonwealth's case. The jury never heard any evidence that Wallace had an alibi.

(b) Exhaustion and Procedural Default

In his PCRA petition, Wallace claimed that his counsel was ineffective for failing to put Buckner on the stand. (Second Amended PCRA Petition, ¶ II; PCRA Appeal Brief, at 25-28). Relying on Vreeland's statement at the PCRA hearing, the Pennsylvania Supreme Court denied this claim. Wallace III, 724 A.2d at 922. Because Wallace's claim was fairly presented to the state court and addressed on its merits, it is exhausted and not procedurally barred. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. Thus, the question before me is whether the Pennsylvania Supreme Court's decision was "contrary to" or an "unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

(c) Legal Analysis

In the present case, this question is easily answered. Both the PCRA court and the Pennsylvania Supreme Court credited Vreeland's testimony, (PCRA Ct. Op., 12/5/95, at 9); Wallace III, 724 A.2d at 922, and I have no reason to disagree with their assessment. Vreeland explained that Buckner "never got her story straight," (PCRA Hearing Tr., 11/6/95, at 10), and that "her alibi wasn't very credible." Id. While Wallace's extradition counsel, Jane Glauser, had a different opinion of Buckner's credibility, her conduct is not at issue in this case. It was Thomas Vreeland who was Wallace's counsel at trial, and Vreeland was charged with making the strategic choices about how to present the best defense. In this case, Vreeland had sound, strategic reasons for keeping Buckner off the stand. Strickland requires no more. Strickland, 466 U.S. at 689. For this reason, I recommend denying Wallace's claim and denying him a certificate of appealability as well.

(4) Counsel's Failure to Obtain Independent Ballistics Exam

Wallace next alleges that his trial counsel was ineffective when he failed to obtain an independent ballistics test. The Pennsylvania Supreme Court addressed the merits of this claim in Wallace III, 724 A.2d at 924-25, denying relief. Once again, this decision was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

This is Claim III.D in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.D, at 36).

(a) Factual Background

At trial, the Commonwealth's theory was that Wallace shot both victims with a .32 caliber pistol — a weapon that was never recovered. In support of its theory, it presented the testimony of Daryl Mayfield, a ballistics expert for the Pennsylvania State Police. (Third Trial Tr., at 289-90). Mayfield examined the bullet slugs that had been retrieved from the bodies of Spalla and Luisi. Id. at 290. Although he could not match these slugs to any particular weapon, he concluded that each slug had been discharged from the same weapon — a .32 caliber pistol. Id. at 291-92, 294. To link this testimony to Wallace, the Commonwealth also introduced the testimony of Anita Johnson and Henry Brown, both of whom explained that Wallace was a carrying a .32 caliber weapon on the day of the murders. Id. at 540, 606.

There were at least three pieces of evidence that cast doubt on the Commonwealth's theory — at least with regard to the bullet that killed Spalla. First, the pathologist, Dr. Ernest Abernathy, testified that the slug pulled from Spalla's body "appeared to be a short .38 caliber slug." Id. at 274-75, 277-78. Second, Henry Brown admitted to carrying and firing a .38 caliber weapon on the day of the murders. Id. at 560, 703-04. Finally, Anita Johnson told the police that Brown had confessed to shooting Spalla. (Johnson Statement, dkt. no. 20, at 24-25).

Although not a ballistics expert, Abernathy nonetheless had training in it. Id. at 282. Indeed, as Abernathy admitted during his direct examination, "I have obviously seen a great many gunshot wounds." Id. at 275.

Defense counsel jumped on this evidence and tried to prove that Brown had fired the gun that killed Spalla. He effectively cross-examined Abernathy on his statement that the slug pulled from Spalla appeared to be a .38. (Third Trial Tr., at 280-82). He tried to demonstrate that the slugs examined by Mayfield were not the same ones that had been retrieved from Spalla's and Luisi's bodies. Id. at 272, 274, 282, 294, 894-96. Finally, he vigorously sought to introduce Brown's statement that he "shot the girl." See supra § III.A.(1).

At trial, Abernathy explained that he marked each slug with a number "08" when he examined it. Id. at 272, 274, 282. Nonetheless, Mayfield never saw these markings on the slugs he examined. Id. at 294.

(b) Exhaustion and Procedural Default

Today, Wallace claims that his lawyer should have done more, arguing that he was ineffective in not hiring a ballistics expert. This exact claim was raised in his PCRA proceedings in state court. (Second Amended PCRA Petition, ¶ IX; PCRA Appeal Brief, at 49-50). The PCRA court held a hearing, during which defense counsel explained his reasons for failing to hire such an expert.

A. Well, we believed that [the Commonwealth's ballistics evidence] was unreliable. The testimony showed that it was. Darryl Mayfield said to the best of his ability that it appeared to be a .32 caliber because it was all mangled and so forth. Abernathy said he removed what he believed to be a .38 caliber bullet from her body. So we thought that that created some doubt, especially coupled with the evidence and the testimony that we were expecting to get in from Anita Johnson and Henry Brown.
Q. Did you consider a defense analysis from a forensic standpoint of the b[a]llistics evidence, the three slugs?

A. Yes.

Q. And what did you conclude regarding that?

A. Well, we were concerned that if we had a b[a]llistics analysis and it was an adverse analysis, then we would lose that reasonable doubt that we thought we could create.

Q. Was one ever done?

A. By the defense?

Q. Right.

A. No.

(PCRA Hearing Tr., 11/6/95, at 30-31). The PCRA court accepted counsel's reasoning and rejected Wallace's claim. (PCRA Court Op., 12/5/95, at 18). On appeal, the Pennsylvania Supreme Court affirmed, holding that "counsel's decision not to pursue an independent analysis of the bullet in question was motivated by trial strategy," namely, counsel's fear that an adverse analysis would hurt the defense. Wallace III, 724 A.2d at 925. Once again, this claim is clearly exhausted and not procedurally defaulted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. And, once again, the only question is whether the Pennsylvania Supreme Court's decision ran afoul of AEDPA's deferential standard of review. 28 U.S.C. § 2254(d)(1).

(c) Legal Analysis

I have some concerns with the Pennsylvania Supreme Court's decision on this issue. Particularly in a capital case, counsel has a duty to investigate and prepare for both the guilt and sentencing phases of the trial. "While counsel is entitled to substantial deference with respect to strategic judgment, an attorney must investigate a case, when he has cause to do so, in order to provide minimally competent professional representation." Kauffman, 109 F.3d at 190 (citing United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)). This is a case where counsel certainly had "cause" to investigate the caliber of the bullet that killed Tina Spalla. Substantial evidence had already cast doubt on Trooper Mayfield's conclusion that the slug was a .32, and an expert report rejecting Mayfield's conclusion might have meant an acquittal for Wallace on the first-degree murder charges. But Wallace's counsel did not hire a ballistics expert, and his reason for failing to do so reveals a deep misunderstanding of Pennsylvania law.

At the time of Wallace's trial, a defendant was only required to disclose the results of an expert report if it was "prepared by a witness whom the defendant intend[ed] to call at the trial." Pa.R.Crim.P. 305(C)(2)(a) (West 1985). In other words, if Wallace's counsel hired a ballistics expert who confirmed that the slug pulled from Spalla's body was indeed a .32 caliber, the jury would never have learned of this expert report. Commonwealth v. Breakiron, 571 A.2d 1035, 1040 (Pa. 1990) (holding that "the Commonwealth may not introduce these materials into evidence or otherwise make known their existence at trial unless the defendant himself uses the reports."). Counsel's unfamiliarity with this rule can hardly be overlooked. Nor can it somehow be dismissed as a reasonable trial strategy.

Nonetheless, I recommend denying Wallace's claim for two reasons. First, Wallace has introduced no evidence showing that an independent ballistics test would have proven that the bullet that struck Spalla was, in fact, a .38 caliber bullet. Under Strickland, it is the petitioner, and no one else, who has the burden to prove all facts in support of his claim. Sistrunk v. Vaughan, 96 F.3d 666, 671 (3d Cir. 1996). Without such evidence, I can only assume that no such expert report exists. Id. And without a report contradicting the evidence introduced at trial, Wallace was simply not prejudiced by counsel's conduct.

Second, this entire claim is an attack only on Wallace's first-degree murder conviction, dkt. no. 20, at 43, a conviction on which I have already decided to grant relief. The caliber of the bullet used to kill Spalla was not relevant to the charges of robbery, conspiracy, and second-degree murder against Wallace. Indeed, defense counsel conceded this much at closing, when he admitted that the dispute about the caliber of the bullet related solely to the charge of first-degree murder. (Third Trial Tr., at 894-96). Once again, I recommend denying Wallace's claim for relief and denying him a certificate of appealability as well.

(5) Counsel's Failure to Object to Admission of Bullet Fragments

Continuing his attack on the Commonwealth's ballistics evidence, Wallace next claims that his counsel was ineffective for failing to object to the admission of the three bullet fragments that were admitted against him at trial. The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that this claim be denied.

This is Claim III.E in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.E, at 36).

(a) Factual Background

At trial, Dr. Abernathy explained that he removed three bullet slugs from the bodies of Tina Spalla and Carl Luisi, Sr., and that he marked each of these slugs with the number "08." (Third Trial Tr., at 274, 282, 287-88). Nevertheless, Trooper Mayfield, the ballistics expert who concluded that the slugs pulled from Spalla and Luisi were .32 caliber slugs, did not observe these markings on the slugs that he examined. Id. at 294, 536. Wallace argues that this fact creates an obvious inference: Abernathy and Mayfield did not examine the same slugs. Today, he contends that his counsel's failure to challenge the authenticity of the slugs examined by Mayfield amounted to ineffective assistance.

(b) Exhaustion and Procedural Default

Unfortunately for Wallace, he never exhausted this claim in the state courts. On direct review, he argued that it was error for the trial court to admit the slugs in question because there was a question of authenticity. (Direct Appeal Brief, at 38-40); Wallace II, 561 A.2d at 726. But he never argued then, or during his PCRA proceedings, that his counsel was somehow ineffective for failing to object to the admission of the slugs. While the substance of these claims is very similar, the differences are important enough to require Wallace to raise his ineffectiveness claim separately. Unlike the underlying state law claim, for example, the ineffectiveness claim requires an inquiry into the mind of the defense counsel, an inquiry that can often require an evidentiary hearing. Under the present circumstances, the state court did not have the opportunity to conduct such an inquiry because it was never given "fair notice that [Wallace] was asserting" a Sixth Amendment claim. McCandless, 172 F.3d at 261-62.

Nonetheless, in the present case, Wallace's failure to exhaust is excused as "futile" because Wallace's Sixth Amendment claim is now clearly barred under the PCRA's statute of limitations. 42 Pa. Cons. Stat. Ann. § 9454(b)(1); Fahy, 240 F.3d at 245; Whitney, 280 F.3d at 251. But, as in most cases, futility acts as Wallace's friend and foe, helping him overcome his failure to exhaust, but barring his claim from federal court review. Whitney, 280 F.3d at 253; Lines, 208 F.3d at 166; Szuchon, 273 F.3d at 323 n. 14; see also supra § III.A.(2)(b). Because Wallace has not shown "cause and prejudice" to overcome his default, Whitney, 280 F.3d at 252-53, I cannot review the merits of his Sixth Amendment claim.

(c) Legal Analysis

Even if this claim was not barred, Wallace would still not be entitled to relief. First, his allegations are not factually correct. Defense counsel did object to the admission of the bullet fragments and he objected for precisely the reason that Wallace sets out today in his claim for relief. (Third Trial Tr., at 807-08). Thus, counsel did everything that Wallace now requests and he did not act unreasonably under Strickland. Second, Wallace's underlying claim clearly lacks merit. At trial, the Commonwealth proved a link in the chain of custody between the slugs removed from Spalla's and Luisi's bodies, and the ones examined by Trooper Mayfield. After Dr. Abernathy removed the slugs, he handed them to Trooper Paul Bivens. Id. at 248-49, 271, 274. Bivens, in turn, gave them to Mayfield, the expert who concluded that the slugs were .32 caliber. Id. at 290; see also id. at 809. This is more than enough to establish chain of custody under state law. Because a lawyer has no legal obligation to raise a meritless claim, see United States v. Mannino, 212 F.3d 835, 840 (3d Cir. 2000), counsel was not required to object, and Wallace is not entitled to relief. I recommend denying this claim and denying a certificate of appealability as well.

(6) Counsel's Failure to Object to Manning's Identification of Trench Coat

Putting the ballistics evidence aside, Wallace now turns his attention to the tan trench coat, arguing that his trial counsel was ineffective when he failed to object to the identification of this coat by Trooper William Manning. Because the Pennsylvania Supreme Court addressed the merits of this claim, Wallace III, 724 A.2d at 922, AEDPA's deferential standard of review applies. 28 U.S.C. § 2254(d)(1). For the following reasons, I recommend denying relief.

This is Claim III.F in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.F, at 37).

(a) Factual Background

At trial, Trooper William Manning testified that he spoke with Connie Johnson, a friend of Wallace's, shortly after the murder. (Third Trial Tr., at 576). During this conversation, Manning received a dry-cleaning slip, which he used to obtain a tan trench coat from a West Virginia cleaners. Id. at 577. The coat, according to Manning, belonged to William Wallace. Id. This testimony was crucial to the Commonwealth's case because two eyewitnesses had testified that one of the men seen fleeing Carl's Cleaners on the day of the murders wore a similar coat. Id. at 412-13, 415-17, 440. Today, Wallace claims that Manning's identification was based on "nothing more than speculation or hearsay." Dkt. no. 20, at 49. The dry cleaning slip on the coat said "Connie Johnson," not William Wallace. (Third Trial Tr., at 577-79). And Manning only knew that Wallace owned that coat because Connie Johnson — a woman who never testified at trial — told him so. For these reasons, Wallace argues that his counsel should have objected to Manning's identification of the coat in question.

(b) Exhaustion and Procedural Default

The identical claim was raised by Wallace in his PCRA petition. (Second Amended PCRA Petition, ¶ III; PCRA Appeal Brief, at 29-31). The Pennsylvania Supreme Court rejected it, holding that Wallace was not prejudiced because two other witnesses, Anita Johnson and Henry Brown, testified that Wallace was wearing that trench coat on the day of the murder. Wallace III, 724 A.2d at 922. Because Wallace's claim was fairly presented to the state court and addressed on its merits, it is exhausted and not procedurally barred. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. The only question before me, then, is whether the Pennsylvania Supreme Court's decision was "contrary to" or an "unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

(c) Legal Analysis

Once again, this question is easily answered. At trial, both Anita Johnson and Henry Brown identified the tan trench coat as the one worn by Wallace on the day of the murders. (Third Trial Tr., at 541) (Johnson testifies that "that's the trench coat that Tippy had on" on the day of the murders.); id. at 611 (Brown testifies that "it's been six years ago, but it looks like the coat that he had at the time, yes."). Whether counsel objected to Manning's testimony or not, Johnson and Brown's testimony was sufficient to tie the tan trench coat to William Wallace. Thus, the exclusion of Manning's testimony would have had no effect on the outcome of the trial. The Pennsylvania Supreme Court's denial of this claim was correct. Franklin, 290 F.3d at 1233. Once again, I recommend denying him a certificate of appealability on this claim as well.

(7) Counsel's Failure to Present the Testimony of Officer Paul Sharkady

Continuing to raise issues that relate to the tan trench coat, Wallace claims that his trial counsel was ineffective when he failed to offer the testimony of Officer Paul Sharkady. The Pennsylvania Supreme Court addressed the merits of this claim in Wallace III, 724 A.2d at 922, denying relief. I conclude that this decision was neither "contrary to" nor "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1).

This is Claim III.G in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.G, at 37-38.)

(a) Factual Background

At trial, two eyewitnesses, Jerry Wayne Martin and Donald Kemp, testified that one of the men seen fleeing Carl's Cleaners on the day of the murders wore a tan trench coat. (Third Trial Tr., at 412-13, 415-17, 440). Of course, the Commonwealth's theory was that the man in the trench coat was William Wallace. Id. at 415-17, 541, 577, 611. Today, Wallace claims that there was a "fatal weakness" in the Commonwealth's theory — one that was unexploited by his counsel. Dkt. no. 20, at 50. Prior to trial, Canonsburg Police Officer Paul Sharkady testified that he saw Henry Brown wearing the tan trench coat on the day of the murders. (Brown Habeas Hearing, 12/28/79, at 6-9, cited in dkt. no. 20, at 50). Wallace's counsel was aware of this testimony, but failed to present it at trial. According to Wallace, this testimony would have undermined the Commonwealth's case that Wallace was the second assailant. Counsel's failure to seek its admission, he argues, was a violation of the Sixth Amendment.

(b) Exhaustion and Procedural Default

This same claim was raised in Wallace's PCRA petition, (Second Amended PCRA Petition, ¶ V; PCRA Appeal Brief, at 37-38), and it was rejected by the Pennsylvania Supreme Court. In reaching its decision, the court credited the testimony of Wallace's counsel at the PCRA hearing on this very issue.

It was a two-edge sword, that we had talked with Sharkady, and Sharkady led us to believe that no one had ever asked him the question on the stand as to whether or not he could identify the other individual, and in all of the three trials of Wallace, there was never anyone who could identify Mr. Wallace as an individual who was the perpetrator in a crime. So identification was a very important part of our defense in that they couldn't identify him. Sharkady claims that he [could] identify Brown, and in discussions with Sharkady, he led us to believe he might be able to identify Wallace as well. . . . We felt it was a two-edge sword because . . . there was a distinct possibility that he was going to say Wallace was the other man that he saw that day, so we stayed away from it. It was a tough decision on our part.

(PCRA Hearing, 11/6/95, at 17-19). Based on this testimony, the Pennsylvania Supreme Court concluded that "counsel had a reasonable basis for not presenting Sharkady's testimony." Wallace III, 724 A.2d at 923. Once again, this claim is clearly exhausted and not procedurally defaulted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. And, once again, the only question is whether the Pennsylvania Supreme Court's decision ran afoul of AEDPA's deferential standard of review. 28 U.S.C. § 2254(d)(1).

(c) Legal Analysis

It did not. If Strickland stands for any principle it is that courts reviewing claims of ineffectiveness "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Here, counsel spoke with Sharkady and came away with the distinct fear that Sharkady "might be able to identify Wallace" if he took the stand. (PCRA Hearing Tr., 11/6/95, at 17). The odds were certainly against it. In two previous trials, the Commonwealth had not called Sharkady, something that it would have done if Sharkady's testimony had favored the prosecution. Nonetheless, counsel's fear was far from irrational or ill conceived. The focal point of Wallace's defense was the Commonwealth's failure to link him to the scene of the crime through eyewitness testimony. Even if the possibility was remote, defense counsel acted reasonably by attempting to avoid just such an identification. He considered the possibility of calling Sharkady as a witness and made a judgment call about the man's threat to identify Wallace. Based on this information, counsel decided not to call Sharkady. Admittedly, it was a "tough" call. (PCRA Hearing, 11/6/95, at 19). But, just such tough calls are entitled to Strickland's deference. Accordingly, I recommend denying this claim and denying a certificate of appealability as well.

(8) Counsel's Failure to Brief the Admission of Anita Johnson's Testimony

Wallace next claims that his trial counsel was ineffective when he failed to research and brief the admission of Anita Johnson's testimony that Henry Brown "shot the girl." The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that this claim be denied.

This is Claim III.H in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.H, at 38.)

(a) Exhaustion and Procedural Default

The facts surrounding the admission of Brown's confession have already been discussed at length, see supra § III.A(1), and I need not recount them here. Working on the assumption that Brown's statement was clearly admissible, Wallace now contends that his counsel was ineffective in failing to research and brief the issue for the trial court. This claim was never raised before, either on direct review or during the PCRA proceedings, and is not exhausted. McCandless, 172 F.3d at 261-62. Although exhaustion is now "futile," Wallace cannot overcome the procedural bar that rears its head here and forever forbids federal review. See supra §§ III.A.(2)(b) III.C(5)(b); Whitney, 280 F.3d at 253; Lines, 208 F.3d at 166; Szuchon, 273 F.3d at 323 n. 14. Because Wallace has not shown "cause and prejudice" to overcome his default, Whitney, 280 F.3d at 252-53, I cannot review the merits of his Sixth Amendment claim.

(b) Merits of the Claim

No matter how the procedural issues are resolved, Wallace's claim is meritless. While briefing the issue might have improved Wallace's chances, I can hardly say that counsel was unreasonable because he failed to file a legal memorandum. On more than one occasion, counsel sought to admit Brown's statement, and each time, he showed a passion for the issue and a ready familiarity with the case that boded well for Wallace's chances. (Third Trial Tr., at 553-74, 703-06, 869-78). Admittedly, counsel could have done more. But so could every criminal defense lawyer who has ever tried a case in the Commonwealth of Pennsylvania. Here, counsel failed to file a brief. Had he done so, he would now be faulted for failing to cite the right cases. And, had he done that, he would be attacked for failing to pen his argument with sufficient force and clarity. "[I]t 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's was unreasonable." Strickland, 46 U.S. at 689. That is why Strickland creates "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. In the present case, Wallace has come forward with no evidence to overcome that presumption. Accordingly, I recommend denying his claim and denying him a certificate of appealability as well.

(9) Counsel's Failure to Object to the Testimony That Wallace Owned .32 Caliber Handgun

Wallace next claims that his trial counsel was ineffective when he failed to object to repeated testimony that Wallace owned a .32 caliber handgun. The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that this claim be denied.

This is Claim III.I in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.I, at 39).

(a) Factual Background

After Trooper Mayfield testified that the bullets that struck Spalla and Luisi came from a .32 caliber handgun, the Commonwealth needed to somehow link this testimony to Wallace himself. It did so through the testimony of two witnesses, Anita Johnson and Henry Brown. Johnson testified first, explaining that Wallace owned a .32 caliber gun and that he had this gun with him on the day of the murders. (Third Trial Tr., at 540). Henry Brown was more equivocal, stating that he "assume[d]" Wallace's gun was a .32. Id. at 606. The Commonwealth offered no other testimony on this point.

Wallace now claims that his counsel was ineffective for failing to object to the admission of this testimony. In particular, he argues that Johnson's and Brown's testimony was speculative and based on pure hearsay. Dkt. no. 20, at 52. During her cross-examination, for instance, Anita Johnson admitted that she knew Wallace owned a .32 caliber gun only because Henry Brown had told her as much. (Third Trial Tr., at 565). Brown's cross-examination was even more damaging.

Q. . . . Mr. Brown, this gun that Mr. Wallace had, you said, I assume it was a .32. Does that mean you don't know it was a .32?

A. I knew it was a smaller caliber than I had.

Q. But you didn't have any idea what caliber it was until the police suggested to you what it was.

A. Well, yes, no, no.

Id. at 691. As Wallace argues, if Johnson only knew that Wallace had a .32 because Brown told her so, and Brown only knew because the police told him so, then the Commonwealth's case rests on nothing more than a foundation of sand.

(b) Exhaustion and Procedural Default

Wallace raised this claim in his PCRA petition, (Second Amended PCRA Petition, ¶ IV), and the PCRA court denied relief, holding that even if counsel had objected the objection would have been overruled. (PCRA Ct. Op., 12/5/95, at 11-12). Wallace appealed, (PCRA Appeal Brief, at 38-43), but, on that appeal, the Pennsylvania Supreme Court viewed the claim as trial court — not counsel — error and held that it was waived. Wallace III, 724 A.2d at 922 n. 5.

Because Wallace's claim was fairly presented to the state court, it is exhausted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. While the Pennsylvania Supreme Court held that Wallace's claim of trial court error was waived, this procedural bar is inapplicable to Wallace's ineffectiveness claim. As that court itself admitted, "the PCRA petition marked the first opportunity [Wallace] had to challenge the effectiveness of his trial counsel," and, therefore, the ineffectiveness "claims raised in [Wallace's] PCRA petition are not waived." Wallace III, 724 A.2d at 921. For this reason, Wallace's claim is not defaulted, and I can address its merits.

(c) Legal Analysis

The heart of the Commonwealth's case was the testimony of two witnesses, Henry Brown and Olen Clay Gorby. Brown testified, in no uncertain terms, that he saw Wallace shoot both Spalla and Luisi. (Third Trial Tr., at 612-14). Gorby corroborated Brown's testimony by explaining that Wallace had confessed to the murders in question. Id. at 759-60. Wallace's fate, therefore, turned on the credibility of these witnesses. Whether Wallace had a .32, a .38, or some other weapon, was really a minor point, unless the evidence of gun ownership clearly exonerated him. It did not. Rather than seek to exclude Brown's and Johnson's testimony, therefore, Wallace's counsel took a wiser course. He let the testimony in and then diluted its effect by undermining the credibility of the witnesses and questioning the integrity of the Commonwealth case. This was an effective strategy, and one consistent with the larger themes that resonated throughout Wallace's defense. It was a reasonable approach that did not prejudice Wallace in any way. Strickland, 466 U.S. at 689, 694. For this reason, I recommend denying his claim and denying a certificate of appealability as well.

(10) Counsel's Failure to Seek Order Barring Testimony That Gorby Met Wallace in Jail

Wallace next claims that his counsel was ineffective when he failed to seek an order barring Olen Clay Gorby from testifying that he met Wallace in jail. The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. Once again, I recommend that this claim be denied.

This is Claim III.J in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.J, at 42).

(a) Factual Background

At trial, the Commonwealth introduced the testimony of Olen Clay Gorby. Gorby had testified at Wallace's two previous trials and, each time, he had explained that Wallace confessed to murdering Luisi and Spalla. Within minutes of taking the witness stand at the third trial, Gorby provided the following testimony.

Q. Do you know the defendant, William Wallace?

A. Yes, sir, I do.

Q. Do you see him in this courtroom?

A. Yes, sir.

* * * *

Q. Going back to August, 1979, some six years ago, how long had you known Mr. Wallace at that time?

A. About seven years, six years.

Q. Where did you first meet the defendant Wallace?

A. I met him in West Virginia State Penitentiary, 1973.

(Third Trial Tr., at 722-23). Wallace's counsel immediately objected and moved for a mistrial. Id. at 723. After recessing for the night, the trial court denied this motion. Id. at 736-39. Today, Wallace argues that his counsel should have sought an order barring any reference to Wallace's prior incarceration before Gorby presented his testimony. Dkt. no. 20, at 54-55.

There is no doubt that Wallace's counsel knew his client had been in jail with Gorby. In a pre-trial statement given shortly before the first trial, Gorby said that he had first met Wallace in the West Virginia Penitentiary. (Gorby Statement, 7/14/80, at 3) (quoted in dkt. no. 20, at 66). Similarly, during a hearing held in 1981, Gorby explained that he "knew Wallace in the West Virginia Penitentiary." (After-Discovered Evidence Hearing, 10/6/81, at 166) (quoted in dkt. no. 20, at 66). The question today, therefore, is whether counsel should have anticipated Gorby's testimony and moved, before trial, to bar this one damaging reference.

(b) Exhaustion and Procedural Default

The same claim was raised in Wallace's PCRA Petition, (Second Amended PCRA Petition, ¶ VII), and rejected by the PCRA court. (PCRA Court Op., 12/5/95, at 15-16). Wallace did not, however, raise this claim on appeal and, thus, it was never addressed on the merits by the Pennsylvania Supreme Court. Wallace's failure to assert this claim before the Supreme Court redounds to his detriment.

To satisfy the exhaustion requirement of 28 U.S.C. § 2254(b)(1), a habeas petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Because the Pennsylvania Supreme Court was never given "fair notice that [Wallace] was asserting" a Sixth Amendment claim, McCandless, 172 F.3d at 261-62, his claim is not exhausted. Although it is now "futile" for Wallace to return to state court, see supra §§ III.A.(2)(b) III.C(5)(b), I still cannot review this ineffectiveness claim. For reasons already explained, that claim is now procedurally defaulted. Id. Because Wallace has not shown "cause and prejudice" to overcome his default, Whitney, 280 F.3d at 252-53, his claim is barred from federal review.

(c) Legal Analysis

Even if Wallace could surmount the procedural hurdles that stand in his way, he is still not entitled to relief. There is little evidence to support his claim that his counsel should have anticipated Gorby's improper remark. True, Gorby had twice before explained that he met Wallace in jail, but he had never clearly mentioned this fact when he testified at either of the first two trials, and defense counsel had no reason to think that he would mention it at the third trial. The statement was completely irrelevant, wholly improper, and likely grounds for a mistrial. And the prosecutor himself would have been charting a course as treacherous as that between Scylla and Charybdis had he tried to introduce it. For these reasons, Gorby's statement must have come as a complete surprise to everyone. Once it did come out, however, defense counsel did all that a reasonably competent trial lawyer should have done: he objected, moved for a mistrial, and argued vigorously in favor of his position. Wallace could have expected no more. Thus, I recommend denying his claim for relief under Strickland and denying him a certificate of appealability as well.

(11) Counsel's Failure to Investigate and Present Defense at Trial

Finally, Wallace contends that his counsel was ineffective when he failed to investigate and present a defense at trial. For two reasons, I recommend that this claim be denied.

This is Claim III.K in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim III.K, at 43).

First, Wallace failed to raise it either on direct review or in his PCRA proceedings, and the claim is now procedurally defaulted. See supra §§ III.A.(2)(b) III.C(5)(b); see also Whitney, 280 F.3d at 253; Lines, 208 F.3d at 166; Szuchon, 273 F.3d at 323 n. 14.

Second, even if not defaulted, Wallace's claim is without merit. As Wallace himself admits, this is a claim for cumulative prejudice. In Berryman v. Morton, 100 F.3d 1089, 1101-02 (3d Cir. 1996), the Third Circuit suggested that such claims be analyzed using a two-step process. To begin, the court must decide whether counsel has been deficient in any way. Id. at 1097-1101. If so, the court must then bundle together all of counsel's errors and analyze the cumulative prejudice that arose from these errors. Id. at 1101-02. While Berryman shows that cumulative prejudice review is proper under Strickland, such review is simply not needed here. None of Wallace's claims surmount the first prong of the Strickland test. Without counsel error, there can be no cumulative prejudice. Accordingly, I recommend denying Wallace's claim and denying him a certificate of appealability as well.

D. Selection of Wallace's Jury From Somerset County

Wallace next claims that his Sixth and Fourteenth Amendment rights were violated when his jury was chosen from Somerset County, a county that included significantly fewer African Americans than found in the county where the crime was committed. The Pennsylvania Supreme Court did not address the merits of this federal constitutional claim and, therefore, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

This is Claim IV in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim IV, at 43).

(1) Factual Background

Prior to his third trial, Wallace filed a motion for a change of venue or venire based on the extensive pretrial publicity surrounding his trial in Washington County, the county where the crime was committed. Dkt. no. 12, ¶ 115. The trial court granted Wallace's request for a change of venire and, in accordance with established procedures in effect at the time, the Pennsylvania Supreme Court ordered that the jury in Wallace's case be selected from Somerset County. Id. This decision caused Wallace one immediate problem. He is African-American, as was 3.5% of the Washington County population at the time of his trial. Id. ¶ 116. Although African-Americans were a small a minority in Washington County, they were almost non-existent in Somerset County. In fact, at the time of Wallace's third trial, Somerset County had a population of 81,000 people, less than one tenth of one-percent of whom were African-Americans. Id. ¶ 117; (Third Trial Tr., at 49-51). Almost immediately, Wallace challenged the change of venire, arguing that African-Americans were excluded from his jury. (Third Trial Tr., at 40-41). The trial court held a brief hearing on the issue, during which it heard testimony on the jury selection process in Somerset County. The court also considered statistics concerning the number of African-Americans in Somerset County. Id. at 44-71. At the conclusion of the hearing, the trial court denied Wallace's motion.

[Under the law,] there cannot be any systematic exclusion of prospective jurors by reason of race, color, creed or religious backgrounds. And I have not heard, nor has it been shown that there is any systematic exclusion, based upon that. Now the fact there is, we grant, there is a small black population, that may be true, but there has been no systematic exclusion of blacks from the jury panel and for that reason, the Court is denying your motion challenging the array of the jurors.

Id. at 70-71.

(2) Exhaustion and Procedural Default

Wallace raised this same claim during his motion for a new trial, (Post Trial Motion, ¶ 5), but he subsequently withdrew it after determining that it was without merit. (New Trial Op., 4/2/87, at 8). During his PCRA proceedings, Wallace raised the claim again, (Second Amended PCRA Petition, ¶ XVI; PCRA Appeal Brief, at 46), but, this time, the Pennsylvania Supreme Court held that Wallace had waived the claim by failing to raise it on direct appeal. Wallace III, 724 A.2d at 921 n. 5. Because Wallace "fairly presented" his claim to the state courts during the PCRA proceedings, the claim is exhausted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. The remaining question, however, is whether the Pennsylvania Supreme Court's holding that Wallace waived the claim amounts to an independent and adequate state law ground barring federal review. For one reason, I conclude that it is not.

Nonetheless, the Pennsylvania Supreme Court did address this claim as one of ineffective assistance of counsel due to counsel's failure to request that the "jury be drawn from a county with a substantial population of African-Americans." Wallace III, 724 A.2d at 922.

At the time of Wallace's direct appeal, the Pennsylvania Supreme Court still applied the "relaxed waiver rule" in capital cases. See supra note 15. In fact, it was not until Commonwealth v. Albrecht, 720 A.2d at 700, more than twelve years after Wallace's appeal, that the Pennsylvania Supreme Court eliminated the relaxed waiver rule in PCRA petitions. Indeed, in 1987, the Pennsylvania Supreme Court had a regular practice of forgiving waivers in capital cases, whenever they occurred. To apply the Albrecht rule "retroactively to bar consideration of [Wallace's] claim . . . would therefore apply a rule unannounced at the time of petitioner's trial and consequently inadequate to serve as an independent state ground . . ." Ford, 498 U.S. at 424. For this reason, Wallace's claim is not defaulted.

(3) The Teague Bar

Although Wallace has surmounted one procedural hurdle, his claim falls victim to another one. In Teague v. Lane, 489 U.S. 288 (1989), the United States Supreme Court held that federal courts should not grant habeas relief whenever a petitioner relies on a new rule of constitutional law that came into existence after his conviction became final. Teague, 489 U.S. at 316. This rule is grounded in concerns of "comity and finality" and recognizes the limited scope that the Great Writ has in federal courts today. Id. at 308. While the passage of AEDPA created some questions about the continued application of Teague, there is little question that Teague applies in cases like the present one. Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 n. 2 (3d Cir. 1999) ("[a]lthough the Teague doctrine was supplemented by the passage of AEDPA, Teague continues to be applied in its own right."); Green v. French, 143 F.3d 865, 874 (4th Cir. 1998) ("anti-retroactivity principles of Teague would appear applicable in contexts where the limitations of section 2254(d)(1) are not, such as where a habeas petitioner's constitutional claim is not properly raised in state court and therefore not `adjudicated on the merits in State court'"); Fisher v. Texas, 169 F.3d 295, 304 (5th Cir. 1999) (same). Indeed, as the United States Supreme Court explained just this past term, Teague is a "threshold question in every habeas case . . ." Horn v. Banks, ___ U.S. ___, 122 S.Ct. 2147, 2150 (2002) (quoting Caspari v. Bohlen, 510 U.S. 383, 389 (1994)).

A Teague inquiry proceeds in three steps. First, the court must determine the date on which the petitioner's conviction became final. O'Dell v. J.D. Netherland, 521 U.S. 151, 156 (1997). In this case, that date is October 3, 1989. See supra note 4. Second, the court must decide whether the petitioner's claim rests on a new rule of constitutional law. New rules "break new ground or impose . . . new obligation[s] on the States or the Federal Government." Teague, 489 U.S. at 301. Old rules, in contrast, are those that are so "compelled by existing precedent," Saffle v. Parks, 494 U.S. 484, 488 (1990), that an objectively reasonable jurist would readily conclude that they were required by the Constitution. O'Dell, 521 U.S. at 160. To determine whether the rule sought by the petitioner is new or old, the court should survey the legal landscape at the time the petitioner's conviction became final. Graham v. Collins, 506 U.S. 461, 468 (1993). Finally, if the petitioner seeks the benefit of a new rule, then habeas relief is barred, unless one of Teague's two narrow exceptions applies. O'Dell, 521 U.S. at 156-57.

The first exception is for new rules "forbidding criminal punishment of certain primary conduct [and] rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." O'Dell, 521 U.S. at 156-57. (citations omitted). The second exception is for those new rules that are "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (citations omitted).

In the present case, Wallace claims that the selection of his jury from Somerset County violated three different provisions of the federal constitution: 1) the fair cross section requirement of the Sixth Amendment; 2) the equal protection clause of the Fourteenth Amendment; and 3) the due process clause of the Fourteenth Amendment.

Before turning to the Teague issue in this case, however, it is important to understand what is not at issue. Wallace does not allege that Somerset County's system of picking jurors somehow violated the Constitution. In fact, he never once questions the trial court's conclusion that Somerset County chose its potential jurors in a fair and reasonable way. (Third Trial Tr., at 70-71). Rather, to Wallace, the error came earlier, when the state court ordered that his jury selection process be transferred from a county with a 3.5% African-American population to one with almost no African-Americans. The issue before me today is whether, at the time that Wallace's conviction became final, an "objectively reasonable jurist" would have felt "compelled," Saffle, 494 U.S. at 488, to hold that this change of venire stripped Wallace of his rights under the United States Constitution. For the following reasons, I conclude that it did not.

(a) Fair Cross-Section Claim

At the time relevant here, the United States Supreme Court had set forth the general rules governing claims brought under the fair cross-section requirement of the Sixth Amendment. Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979). As the Court explained in Duren:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren, 439 U.S. at 364 (emphasis added). The prima facie case, however, was not the end of the inquiry. Once the petitioner made this prima facie showing, the state could rebut it "by showing attainment of a fair cross section to be incompatible with a significant state interest." Id. at 368; see also United States v. Weaver, 267 F.3d 231, 237 (3d Cir. 2001).

This general standard was well-entrenched at the time Wallace's conviction became final. Nonetheless, its mere existence does not help Wallace overcome Teague's bar. As the Supreme Court has warned, "the [Teague] test would be meaningless if applied at this level of generality." Sawyer v. Smith, 497 U.S. 227, 236 (1990). In analyzing Teague issues, federal courts must look with a more precise eye at the claim alleged. In Butler v. McKellar, 494 U.S. 407 (1990), for instance, the petitioner sought application of the rule in Arizona v. Roberson, 486 U.S. 675 (1988), a case decided after his conviction became final. Butler argued that he could invoke Roberson because it was merely an application of Edwards v. Arizona, 451 U.S. 477 (1981), a case in existence before his conviction became final. The two cases were clearly similar. Edwards held that the police must stop questioning a suspect once he invokes his right to counsel. Edwards, 451 U.S. at 484-85. Roberson held that the police must stop questioning a suspect once he invokes his right to counsel, even if this request occurs in the course of investigating an unrelated crime. Roberson, 486 U.S. at 682. Thus, Roberson was a minor extension of Edwards, "merely an application of Edwards to a slightly different set of facts." Butler, 494 U.S. at 414. No matter, the Court held that the rule in Roberson was "new" for purposes of Teague. "It would not have been illogical or even a grudging application of Edwards," the Court explained, "to decide that it did not extend to the facts of Roberson." Butler, 494 U.S. at 415 (emphasis added).

So too, in Wallace's case, it would have been wholly reasonable for a court to refuse to grant Wallace the relief he now seeks. For starters, both Taylor and Duren, the two Supreme Court cases in effect at the time, left unanswered the most important issue in Wallace's case. In those cases, the Court held that held that a prima facie Sixth Amendment claim could be established only if a "distinctive" group "in the community" was not fairly represented in the jury pool "in relation to the number of such persons in the community." Duren, 439 U.S. at 364 (emphasis added). But, the Court never once defined the scope of "the community" for purposes of a Sixth Amendment claim. Was it "the community" in which the crime occurred? Or "the community" from which the jury was to be chosen? Neither Taylor nor Duren provided any guidance in answering this question. At the time that Wallace's conviction became final, therefore, it was still very much unresolved.

Second, nearly every lower court that addressed the issue by 1989 rejected the fair cross-section claim that Wallace now raises. See, e.g., Maryland v. Brown, 295 F. Supp. 63, 82 (D.Md. 1969) (rejecting sixth amendment claim); Sanders v. Wisconsin, 230 N.W.2d 845, 855-56 (Wis. 1975) (holding that change of venue from one county to another with a smaller percentage of African-Americans did not violate defendant's right to a fair and impartial jury); People v. Remiro, 153 Cal.Rptr. 89, 109 (Cal.Ct.App. 1979) (rejecting Sixth Amendment claim based on venue change to county with fewer minorities). In fact, only one case, Alvarado v. Alaska, 486 P.2d 891, 905 (Alaska 1971), found such a violation under the United States Constitution. But, the facts of that case were so far distinguishable from Wallace's that a state court judge reviewing it in 1989 would have likely found the case inapplicable. As the Alaska Supreme Court itself explained, "[b]ecause of the vast expanses of land which lie within the borders of our state, because of the variety of cultural heritage of our citizens, and because of the relative sparseness of our population, the problem of selecting juries in Alaska is unique." Id. The Third Circuit also recognized the "unique" circumstances of the Alvarado decision, noting that "[t]he inapplicability of that holding to other geographic areas was stressed several times by the court." Zicarelli v. Dietz, 633 F.2d 312, 317 (3d Cir. 1980).

Only one other case that I have unearthed provides Wallace with some support for the claim he now asserts — the Third Circuit's decision in Zicarelli v. Dietz. Again, however, a state court reading Zicarelli at the time would have hardly felt compelled to reach the conclusion that Wallace now seeks. For one, the Court of Appeals for the Third Circuit rejected the fair-cross section claim raised by the defendant in that case, even though the change of venue from one county to another had resulted in a change of the Puerto Rican population from more than 5% to less than 1%. Id. at 316, 320. Second, the Court made a number of statements that were clearly hostile that the claim now raised. See, e.g., id. at 317 (explaining that "there is no constitutional right to a jury chosen from the division where the offense was committed . . ."). Finally, the court did not adopt the holding in Alvarado, even though it was given the chance to do so. Id. at 320 ("we do not decide whether the cross section claim would preclude exclusion of a geographic group when the group is profoundly culturally distinct as it was in Alvarado v. State, 482 P.2d 891 (Alaska 1971) . . ."). Despite its overtures in support of a fair cross-section claim in circumstances like the present one, even the Third Circuit was reluctant to adopt such a rule of law.

At times, the Zicarelli court's dicta seemed to suggest that it was receptive to a fair cross-section claim such as the one now raised. Id. at 318-20.

More than anything else, these lower court opinions demonstrate the very "newness" of the rule sought by Wallace today. On more than one occasion, the Supreme Court has looked to lower court decisions to show that a rule is "new" under Teague. See, e.g., O'Dell, 521 U.S. at 166 n. 3 (pointing to lower court decisions to bolster its conclusion that the rule in question was "new" under Teague). For example, in Butler, 494 U.S. at 415, the Court suggested that a rule is "new" if it is characterized by "a significant difference of opinion on the part of several lower courts that ha[ve] considered the question previously." See also Sawyer, 497 U.S. at 237. In the present case, there was hardly a difference of opinion concerning the viability of the claim that Wallace now raises. At the time, nearly every court that addressed the issue held that the fair cross-section provision of the Sixth Amendment simply was not violated under facts like the ones at issue. Thus, a state court reviewing this case law would have been reasonable, and, indeed, well within the mainstream, if it rejected the claim that Wallace now asserts.

Even today, thirteen years after Wallace's conviction became final, most courts continue to deny Sixth Amendment claims like the one brought by Wallace. See, e.g., Ross v. Arkansas, 779 S.W.2d 161, 163-64 (Ark. 1989) (rejecting claim that defendant was entitled to have venue changed to county with similar racial composition because defendant "failed to cite any authority to support his argument."); Epps v. Iowa, 901 F.2d 1481, 1483 (8th Cir. 1990) (noting that it was "troubled by the state trial court's decision . . . to change venue to a county with such a small black population," but holding that "we are unaware of any authority to support a conclusion that [defendant's] constitutional rights were thereby violated."); Mallett v. Bowersox, 160 F.3d 456 (8th Cir. 1998) (rejecting Sixth Amendment fair cross-section claim when change of venue resulted in defendant being tried in county with smaller percentage of blacks than where crime was committed, but explaining that "[n]o authority exists for the proposition that the term `community' . . . means any place other than . . . the county from which Mallett's venire ultimately was drawn."); Commonwealth v. Rankins, 709 N.E.2d 405, 476 (Ma. 1999) (rejecting claim and noting that attempts to challenge change of venue decisions "have been notably unsuccessful.").

In fact, just months after Wallace's conviction became final, the United States Supreme Court denied a petition for certiorari presenting the very claim that Wallace now raises. Three Justices dissented from that denial, arguing vigorously that the Supreme Court should grant the petition and resolve the issue presented. Nevertheless, even these dissenters recognized that the Sixth Amendment issue presented was basically unresolved. "Although the jury pool may have been representative of Schuyler County, it was not representative of the community in which Mallett was charged, or even of the broader community comprised of the counties to which he sought transfer," Justice Marshall wrote. "In such a situation, determining which community defines the relevant universe for Sixth Amendment purposes is crucial to the adjudication of claims like Mallett's. I would grant the petition to resolve this issue as well." Mallett v. Missouri, 494 U.S. 1009, 1011 (1990).

Today, I am asked to resolve the same issue that the United States Supreme Court refused to when it denied certiorari in Mallett. And today, there is just as little support for the claim Wallace raises as there was in 1989. Accordingly, Wallace relies on a "new" rule of constitutional law that can proceed only if one of Teague's two exceptions applies. Neither one does. The first exception, for new rules "forbidding criminal punishment of certain primary conduct," id. at 156-57 (citations omitted), is completely inapplicable. The rule sought by Wallace today is a procedural one that has no bearing on any of the underlying crimes that he was convicted of committing. The second exception is also inapplicable. This exception is for new rules that are "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. (citations omitted). This exception is extremely narrow and the Supreme Court has never found it satisfied. I do not intend to be the first one to do so. For this reason, I conclude that Wallace's claim is barred by Teague.

(b) Equal Protection Claim

I reach the same conclusion with regard to his claim under the equal protection clause. In 1986, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986), holding that the equal protection clause forbids a prosecutor from using peremptory challenges to strike jurors because of their race. The Batson decision was a "substantial break with prior precedent," and, in reaching its holding, the Court had to overturn longstanding case law. Allen v. Hardy, 478 U.S. 255, 258-59 (1986). The issue before me today is whether, at the time that Wallace's conviction became final, an "objectively reasonable jurist" would have felt "compelled by [Batson]," Saffle 494 U.S. at 488, to apply its holding to cases like the present one. For a number of reasons, I conclude that he would not.

For one, nothing in Batson itself suggests that its holding extends beyond the area of peremptory challenges. As ground breaking as the holding in Batson was, its reach was limited: it applied only to the prosecution's use of peremptory challenges to exclude members of the defendant's race from his petit jury. Batson, 476 U.S. at 82. Granted, the Batson court discussed at length the long history of discrimination against African-Americans in the selection of the jury venire, id. at 85-89, but it never once suggested that its holding applied in cases where the trial court changed venire from one county to another. Indeed, in the sixteen years since Batson, the Supreme Court has never extended its holding to cases like the present one, and, in fact, specifically denied certiorari in a case presenting precisely the claim that I now confront. Mallett, 494 U.S. at 1009.

Second, at the time Wallace's conviction became final, nearly every court rejected the idea that the equal protection clause was somehow violated under the circumstances present in this case. Brown, 295 F. Supp. at 82; Keys, 260 S.E.2d at 838; Mallett v. Missouri, 769 S.W.2d 77, 79-81 (Mo. 1989) (holding that change of venue to county with significantly fewer African Americans did not violate the equal protection clause of the Fourteenth Amendments). In fact, even today, most courts refuse to extend Batson's holding to the facts of Wallace's case. Epps, 901 F.2d at 1483 (rejecting claim under the equal protection clause when state trial court transferred venue from county with high percentage of African-Americans to one with low percentage); Mallett, 160 F.3d at 460 (rejecting equal protection case and holding that Batson v. Kentucky was simply "inapplicable" to a case where the trial court transfers venue to a county with a smaller percentage of blacks).

It is not surprising that the weight of authority is against Wallace because the Batson Court was concerned with the unlawful exclusion of individual jurors solely on the basis of race, an evil that simply was not present in Wallace's case. "[B]y denying a person participation in jury service on account of his race," the Batson Court explained, "the State unconstitutionally discriminate[s] against the excluded juror." Batson, 476 U.S. at 87. In Wallace's case, however, no one was actually excluded from jury service because of his or her race. Certainly, the jurors in Somerset County weren't excluded. And while Washington County jurors were excluded from serving on Wallace's trial, this exclusion applied to all potential jurors, regardless of their race.

All of these factors would have cautioned a state court reviewing Wallace's claim at the time from granting him the relief he now seeks. Perhaps this is why the only court to have addressed the issue has held that the rule now sought by Wallace is a "new rule" under Teague. Epps, 901 F.2d at 1483. Because neither one of Teague's exceptions applies in the present case, I conclude that Wallace's equal protection claim is barred.

(c) Due Process Claim

Finally, Wallace's claim that his due process right to a fundamentally fair trial was violated, Duncan v. Louisiana, 391 U.S. 145, 149 (1968); Alvarado, 486 P.2d at 901; Turner v. Murray, 476 U.S. 28, 35 (1986), runs into the same fate as his other claims. While a number of Supreme Court cases at the time set forth the basic principle of "fundamental fairness," such a rule is far too broad for purposes of a Teague analysis. Sawyer, 497 U.S. at 236. Instead, for Teague purposes, Wallace's claim must be defined more narrowly. Butler, 494 U.S. at 415. In particular, Wallace claims the following: that the due process clause of the Fourteenth Amendment is violated when the trial court changes venire in a way that has a significant effect on the representation of African-Americans in the jury pool.

The support for such a claim is exceedingly sparse. No Supreme Court cases directly address this issue. And no federal cases, either in the courts of appeals or the federal district courts, adopt such a rule. Indeed, nearly every court to have addressed the question has rejected it outright. Mallett, 769 S.W.2d at 79 (rejecting due process claim when trial court transfers case from county with high percentage of African-Americans to one with almost none); Mallett, 160 F.3d at 460-61 (same); Brown, 295 F.2d at 82 (same); Prejean v. Smith, 889 F.2d 1391, 1404 (5th Cir. 1989) (rejecting claim that trial court's transfer to parish with a "recent history of racism" was "arbitrary" in violation of the Constitution). Once again, the only case that supports Wallace is the Alaska Supreme Court's decision in Alvarado, 486 P.2d at 905. Nevertheless, as I have already discussed, that case is hardly sufficient grounds upon which to grant relief in the present case. At the time Wallace's conviction became final, a state court judge would have found very little to support a decision vacating Wallace's conviction and death sentence under the due process clause of the Fourteenth Amendment. Because neither of Teague's exceptions applies to the present case, Wallace's claim is barred.

(d) PostScript to Teague Analysis

Perhaps a postscript is needed to place this Teague analysis in some context. There is no question that the issue now raised by Wallace is an important one, posing interesting questions of federal constitutional law and presenting serious problems about the impartial administration of justice. But, our concern with this issue is really of recent vintage, arising, for the most part, out of the trial of the police officers who beat Rodney King. Note, Out of the Frying Pan or into the Fire? Race and Choice of Venue after Rodney King, 106 Harv.L.Rev. 705 (1993). In that case, the shift of the King trial from Los Angeles to Simi Valley effectively eliminated African-Americas from the jury venire. Id. at 705-06. And that case caused a public outcry. Newspaper editorials criticized the decision to transfer the King trial and lamented the verdict. See, e.g., Robert Akerman, Where did [the] system err in Rodney King's case?, Atlanta Journal and Constitution, May 6, 1992. Law review articles sprung up discussing the question of whether such changes of venue violated the federal constitution, mostly concluding that they did not. Note, 106 Harv.L.Rev., at 711-19; Comment, Change of Venue in Criminal Trials: Should Trial Courts Be Required to Consider Demographic Factors When Choosing a New Location for a Criminal Trial?, 98 Dick.L.Rev. 107 (1993). And a number of state legislatures actually proposed bills that would require trial courts to consider race when making change of venue and venire decisions. Note, 106 Harv.L.Rev., at 719-21. All of this — the King trial, the articles exploring its implications, and the state legislative response to the change of venue issue — came well after Wallace's conviction became final. The issue was "new" then, and it was certainly "new," as a matter of federal constitutional law, in 1989. Back then, no Supreme Court cases addressed the claims now raised, and most lower courts rejected them entirely. For these reasons, I conclude that Wallace's claims are barred by Teague.

(4) The Merits of the Claims

While my analysis of the Teague bar disposes of Wallace's claims, I nonetheless briefly discuss them on their merits. Even if the Teague bar does not apply, Wallace is still not entitled to the relief he seeks.

(a) Fair Cross-Section Claim

First, Wallace cannot make out a prima facie case for relief under the fair cross-section provision of the Sixth Amendment. In order to make out such a case, he must show that African-Americans were underrepresented in his jury pool "due to systematic exclusion of the group in the jury-selection process." Duren, 439 U.S. at 364. This prong has a temporal element to it. It can be shown only by proof of a "substantial underrepresentation over a significant period of time." Ramseur v. Beyer, 983 F.2d 1215, 1234 (3d Cir. 1992) (emphasis added). It requires "a large discrepancy repeated over time such that the system must be said to bring about the underrepresentation." Weaver, 237 F.3d at 244 (emphasis added). And, it mandates that the "discrepancy occurred not just occasionally" but repeatedly for some period of time. Duren, 439 U.S. at 366 (emphasis added). In the present case, Wallace has come forward with no evidence in support of this prong of his prima facie case. He has not shown that the state courts repeatedly changed venue or venire, resulting in a dramatic reduction of the number of African Americans in the jury pool. For this reason, his claim is without merit.

Even if he could make out a prima facie case, however, he is still not entitled to relief. The prima facie case is not the end of the inquiry in a fair cross-section claim. In fact, once the petitioner makes a prima facie case, the state may rebut that case with "a significant state interest." Id. at 368; see also Weaver, 267 F.3d at 237. In the present case, the Commonwealth has come forward with just such an interest: Wallace's right to a fair and impartial trial. Wallace himself moved for change of venire, arguing that the pretrial publicity in Washington County was such that no impartial jury could be chosen from within its borders. The trial court agreed and the Pennsylvania Supreme Court, through preestablished procedures, chose Somerset County as the situs for jury selection. In the present case, this reason is sufficient to justify any purported infringement on Wallace's rights under the fair cross-section provision of the Sixth Amendment. Accordingly, for this reason, and the reasons already given, see supra § III.D(3)(a)(d), I recommend that Wallace's claim be denied.

(b) Equal Protection Claim

For the same reason, I recommend denying Wallace's equal protection claim as well. Just as with the fair cross-section claim, the Commonwealth has come forward with a "neutral explanation" for the alleged discriminatory conduct at issue here. Batson, 476 U.S. at 97. Motivated by Wallace's request for a change of venire, the Pennsylvania Supreme Court ordered that Wallace's jury would be picked from Somerset County. The purpose of Wallace's request, and the Supreme Court's decision, was to provide Wallace with a jury pool untainted by pretrial publicity. Wallace has come forward with no evidence to undermine the neutral, non-discriminatory reason for changing the venire in this case. Thus, for this reason and the reasons already given, see supra § III.D(3)(b)(d), I recommend that Wallace's claim be denied.

(c) Due Process Claim

Finally, Wallace's claim under the due process clause should be denied as well. From the start, this claim faces a number of obstacles. First, I am not even sure that this is a separate constitutional claim at all, rather than just a rehash of his Sixth Amendment fair-cross section claim. The Supreme Court has repeatedly cautioned courts about creating new constitutional rights under the guise of the due process clause of the Fourteenth Amendment.

In the field of criminal law, we "have defined the category of infractions that violate `fundamental fairness' very narrowly" based on the recognition that, "[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." The Bill of Rights speaks in explicit terms to many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites undue interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order.

Medina v. California, 505 U.S. 437, 443 (1992) (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)) (internal citations omitted). I have already discussed why Wallace's claim under the fair cross-section provision of the Sixth Amendment should be dismissed on the merits and the same reasoning applies here as well. Nonetheless, even assuming that a due process claim exists separate and apart from the Sixth Amendment, I would also deny that claim.

A petitioner cannot make out a due process claim without showing that he was prejudiced in some way by the conduct at issue. Irvin v. Dowd, 366 U.S. 717, 723 (1961). While prejudice can be presumed in some cases, Estes v. Texas, 381 U.S. 532, 542-43 (1965), this rule only applies in exceedingly rare cases. Mallett, 160 F.3d at 461 n. 8. In the present case, there is little evidence that Wallace was prejudiced by the conduct at issue. He has not shown that the jury that heard his case was impartial. Further, I refuse to presume prejudice simply because the jury was picked from a county with fewer African-Americans than the county where the crime occurred. To do so, would be to presume that Wallace is prejudiced unless African-Americans actually serve on his jury. But, such a presumption is contrary to two different constitutional rules: 1) the equal protection clause's admonition that race is not a proxy for viewpoint, Batson, 476 U.S. at 97 (holding that the equal protection clause "forbids that the State to strike black venireman on the assumption that they will be biased . . . simply because the defendant is black."); and 2) the Sixth Amendment's rule that defendants are not entitled to have members of any particular race on their jury, Taylor, 419 U.S. at 538. In the present case, Wallace's failure to come forward with any evidence of prejudice dooms his claim under the due process clause.

In fact, it is hard to imagine how the conduct in the present case could have been "fundamentally unfair" when it was initiated by Wallace himself and motivated by the need to provide him with a trial that was free of unfair prejudice. No due process cases that I know of, and none that have been cited by Wallace, go so far as to find a violation in a case like the present one. Indeed, even Alvarado, the case upon which Wallace hangs his entire claim, was a case in which the government itself had initiated and established the purported discriminatory mechanism. Even there, the court acknowledged that the circumstances under which the jury was empaneled in the Wallace's case are sometimes appropriate. Alvarado, 486 P.2d at 904 (explaining that "under certain circumstances it may be permissible to exclude the area of the crime from the source of the jury selection."). For these reasons, and the ones already given, see supra § III.D(3)(c)(d), Wallace's current claim is without merit and should be dismissed.

(5) Conclusion

For foregoing reasons, I recommend denying Wallace's claims under the Sixth and Fourteenth Amendments and denying him a certificate of appealability on these claims as well.

E. Olen Clay Gorby's Statement That He Met Wallace in Jail

Wallace next claims that his rights under Fifth, Sixth, and Fourteenth Amendments were violated when the Commonwealth deliberately elicited Olen Clay Gorby's testimony that he had met Wallace in jail in 1973, and the trial court failed to grant a mistrial. Although the Pennsylvania Supreme Court reviewed this claim under state law, Wallace II, 561 A.2d at 724-25, it did not address the federal constitutional claim that I will address today. Accordingly, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

This is Claim V in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim V, at 46).

(1) Exhaustion and Procedural Default

I have already recited the factual allegations surrounding this claim, see supra § III. C(10)(a), and will not detail those allegations here. At their core, they focus on a statement made by Commonwealth witness Olen Clay Gorby shortly after he took the stand at Wallace's third trial.

Q. Where did you first meet the defendant Wallace?

A. I met him in West Virginia State Penitentiary, 1973.

(Third Trial Tr., at 722-23). Wallace's counsel immediately objected and moved for a mistrial. Id. at 723. After breaking for the night, the trial court denied this motion. Id. at 736-39.

Soon after he was convicted and sentenced to death, Wallace raised a challenge to the trial court's ruling in his motion for new trial. (Post Trial Motion, 11/8/85, ¶ 10). The Commonwealth responded to Wallace's claim, viewing it strictly as a state law issue. (Brief in Opp. to Post Trial Motion, at 17). The trial court denied the claim, also viewing it as a matter of state law, and limiting its analysis to the law "in this jurisdiction." (New Trial Op., 4/27/87, at 12). On appeal, Wallace raised the same state law issue, (Direct Appeal Brief, at 22) (referring to the "well established common law rule" at issue in the case), and the Pennsylvania Supreme Court rejected it, citing cases that relied solely on state law. Wallace II, 561 A.2d at 724-25 (citing Commonwealth v. Morris, 519 A.2d 374, 376-77 (1986)). Wallace did not raise the claim during the PCRA proceedings in his case.

Wallace's immediate problem is that he failed to properly exhaust this claim in state court. Every time that he raised his challenge to the trial court's failure to grant a mistrial, he did so entirely as a matter of state law. And, each time that the state courts addressed the claim, they limited themselves to an examination of state law. Not once did Wallace claim that Gorby's statement violated his rights under the federal constitution, as he does today. He never cited state law cases that incorporated federal constitutional standards, and he never used constitutional `buzz words' to put the state court on notice that he was raising a federal constitutional claim. Because the state courts were not given "fair notice" of Wallace's constitutional claim, McCandless, 172 F.3d at 261-62, that claim is not exhausted. Although it is now "futile" for Wallace to return to state court, see supra §§ III.A.(2)(b) III.C(5)(b), I still cannot review his claim. For reasons already explained, this claim is now procedurally defaulted. Id. Because Wallace has not shown "cause and prejudice" to overcome his default, Whitney, 280 F.3d at 252-53, his claim is barred from federal review.

(2) Legal Analysis

Even if Wallace's claim is reviewable on the merits, I would still deny him the relief he seeks. While Wallace claims that his rights under the Fifth, Sixth, and Fourteenth Amendments were violated by Gorby's statement, his claim is really styled as one for prosecutorial misconduct. For instance, he alleges that the "prosecution had no reasonable basis for asking this question." Dkt. no. 20, at 66. He claims that the prosecutor's "sole purpose for asking the question was to elicit evidence of other crimes . . ." Id. at 67; see also id. at 68 ("the prosecutor was seeking evidence of un uncharged crimes."). He contends that "[t]he prosecutor's conduct far exceeded the standards of acceptable advocacy," id. at 68, and that "[t]he prosecutor's asking of the question in itself constitutes prosecutorial misconduct." Id. at 69. Finally, he ends his argument with a string of allegations against the Commonwealth, accusing it of engaging in "a pattern and policy of deception, over-zealous advocacy and complete disregard for [Wallace's] rights to due process, a fair trial, and a fair and impartial jury." Id.

I have little trouble disposing of the thrust of Wallace's allegations — that the Commonwealth somehow deliberately tried to pollute the mind of the jury with evidence of Wallace's prior criminal record. The trial court specifically rejected this proposition, as a matter of fact. "I find that . . . the remark was not deliberately and intentionally introduced or elicited by the Commonwealth," the trial court stated. "I don't think there was any intent on the part of the Commonwealth to do that." (Third Trial Tr., at 736-37).

Under AEDPA, such factual determinations are "presumed to be correct," 28 U.S.C. § 2254(e)(1), and a petitioner, like Wallace, bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1). While Wallace aggressively seeks to overcome AEDPA's presumption, he falls short of meeting his burden. The trial court had ample support for its conclusion. (Third Trial Tr., at 729-30). At trial, the District Attorney himself explained that he "was in no way looking or wanting to elicit anything of past criminal conduct." Id. at 730. In a personal interview with the District Attorney less than twenty-four hours before he testified, Gorby answered the same question in a completely different way, explaining that he and Wallace grew up just a few miles from one another. Id. at 729-30. It was that answer that the District Attorney sought when he asked Gorby where he first met Wallace, and not the damaging answer that was given. Id. Such evidence was sufficient to support the trial court's conclusion. Thus, AEDPA's presumption of correctness applies.

Regardless of the Commonwealth's motivation, however, Gorby's statement did not tip the scales to such an extent that it resulted in a fundamentally unfair trial. Smith, 455 U.S. at 219 ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor."). The statement was brief and consumed but a small part of the trial itself. In a transcript that ran over 1000 pages and a trial that lasted nearly a week, this statement consumed only a few seconds. Wallace argues that the statement was stressed when the trial court recessed for the night immediately after it was made, but I refuse to draw that inference from the cold record before me. Defense counsel's objection certainly didn't draw attention to the statement. It was made at side bar, out of the hearing of the jury. (Third Trial Tr., at 723). And the trial court never stressed it, choosing not to give a cautionary instruction after defense counsel warned that such an instruction could "unduly emphasize the testimony over again[.]" Id. at 744. In fact, with the exception of this brief statement, the jury never heard anything about Wallace's prior time in jail. Even the prosecutor's alleged reference to it in closing was so ambiguous and so buried in a string of questions, id. at 921, that it hardly could have evoked memories of the improper testimony now at issue.

Second, the comment was exceedingly ambiguous. While the statement certainly "created an inference to the jury that [Wallace] had been involved in prior criminal activity," Wallace II, 561 A.2d at 724, it "did not relate to any specific past criminal act. . ." Id. As the United States Supreme Court has explained, the overriding fear of prior crimes evidence is that the jury will "generaliz[e] a defendant's earlier bad act into bad character and tak[e] that as raising the odds that he did the later bad act now charged." Old Chief v. United States, 519 U.S. 172, 180 (1997). But, such fear is greatly diminished when the jury simply does not know what, if any, bad act the defendant committed in the past. Here, Wallace's jury never specifically learned that he had a prior record. It did learn, however, in great detail, about the prior records of Henry Brown, Olen Clay Gorby, and Ronald Van Ostran. (Third Trial Tr., at 634-72, 764, 849, 952-53). These prior records, and not Wallace's, were the focus of the trial. Brown, Gorby, and Van Ostran were each questioned at length about their prior criminal behavior. In closing, counsel for each side discussed these prior records. And even the trial court stressed the prior records when it instructed the jury on the manner in which it should consider this evidence. After hearing specific and detailed testimony about the prior records of Brown, Gorby, and Van Ostran, the jury could hardly have remembered the highly cryptic reference to Wallace's time in jail.

Third, there is little case law to support Wallace's claim that reference to his prior time in jail somehow violates the United States Constitution in this case. Two cases cited by Wallace, Commonwealth v. Spruill, 391 A.2d 1048 (Pa. 1978) and Old Chief v. United States, provide him with little support. Neither dealt with the federal constitution. Spruill turned on an interpretation of Pennsylvania law, Spruill, 391 A.2d at 1049-50, while Old Chief concerned the Federal Rules of Evidence, Old Chief, 519 U.S. at 178-85. In fact, the only case on point is the Third Circuit's opinion in United States v. Gray, 468 F.2d 257 (3d Cir. 1972). There, the Court vacated a conviction when the prosecution elicited testimony that the defendant had spent some earlier time in jail. Id. at 263. "It is well-settled," the Court explained, "that the government may not, in its case-in-chief, adduce testimony of a defendant's imprisonment." Id. at 260. Nevertheless, Gray was a much stronger case for relief than Wallace's case. There, the jury heard three different times that the defendant had spent some prior time in jail, id. at 258, thus placing far greater emphasis on the testimony than was present in Wallace's case. Further, the prosecutor in Gray expressly accused the defendant of murdering his own wife. Id. at 259. Therefore, the Gray jury knew that the defendant was in jail at an earlier time and had good grounds to speculate on the reason for his incarceration. The error in Wallace's case was pale in comparison.

At bottom, claims like the present one are exceedingly fact specific. Donnelly, 416 U.S. at 642; Greer v. Miller, 483 U.S. 756, 765 (1987) Dowling, 493 U.S. at 354-55; Estelle v. McGuire, 502 U.S. 62, 75 (1991). Resolving them requires a review of the trial transcripts and an assessment of the error's impact on the entire trial. Moore, 255 F.3d at 108. Here, the facts show that no relief is required. The Commonwealth did not intentionally seek to introduce Gorby's statement and the statement itself had a limited effect on the trial as a whole. Accordingly, I recommend denying Wallace's claim for relief and denying him a certificate of appealability as well.

F. Massiah Claim

Wallace next claims that his Sixth Amendment right to counsel was violated when the Commonwealth employed Olen Clay Gorby as an agent to deliberately elicit incriminating statements from him concerning the murders of Tina Spalla and Carl Luisi, Sr. The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

This is Claim VI in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim VI, at 49).

(1) Factual Background

On November 30, 1979, shortly after Wallace was arrested for the murders of Spalla and Luisi, Olen Clay Gorby was arrested in Pennsylvania and charged with multiple offenses, unrelated to Wallace's crime. Dkt. no. 20 at 72. Gorby agreed to testify against his co-defendants in all of the cases brought against him, and he began cooperating with the Commonwealth, working particularly with Trooper William Cunningham. Id. at 72. A month later, Gorby met assistant district attorney Daniel Chunko, the prosecutor on Wallace's trial, id., and told him that he knew Wallace from having been incarcerated with him in the West Virginia Penitentiary. Id. In fact, Gorby even admitted that the two were "pretty good friends." Id. at 72-73 n. 3 (quoting Gorby Statement, 7/14/80).

Cunningham was also the lead investigator on Wallace's case.

In January 1980, Gorby was released from jail to work as an informant for the Federal Bureau of Alcohol, Tobacco, and Firearms ("ATF"). Id. at 73. When this stint was over, Trooper Cunningham arrested Gorby — at Gorby's request — to get him "off the street" and thus protect him from reprisals. Id. At the time, Gorby was placed in the Washington County jail. But Gorby's fear of retaliation due to his role as a government informant did not dissipate. In May 1980, the Commonwealth stepped in again to protect him. This time, he was transferred from the Washington County jail to the Greene County jail. Id. at 73. The individual who requested the transfer was Trooper William Cunningham. Id.

A few months later, Gorby was back in Washington County. Id. at 73-74. Shortly thereafter, on July 11, 1980, Wallace himself was extradited from West Virginia and placed in the Washington County jail in a cell next to Gorby. Id. at 74. Two days later, on July 14, 1980, Gorby gave a formal statement to Trooper Cunningham, prosecutor Chunko, and District Attorney Bigi, implicating Wallace in the robbery of Carl's Cleaners and the murders of Spalla and Luisi. Id. Gorby then testified at each of Wallace's three trials, explaining that Wallace himself confessed to firing the gun that killed both Spalla and Luisi. (Third Trial Tr., at 759-60).

In May 1981, after the first two trials but before the Pennsylvania Supreme Court had remanded for a third, Gorby was sentenced on the multiple charges that had been pending against him for his November 1979 arrest. (Trial Ct. Op., 11/20/81, at 528E). Although Gorby originally agreed to a sentence of five to ten years on these charges, id., the trial court, at the recommendation of the Commonwealth, sentenced him to a term of probation. Id. He was immediately released from jail.

Today, Wallace claims that Gorby's testimony was inadmissible under Massiah v. United States, 377 U.S. 201 (1964). In that case, the Supreme Court held that the government violates a criminal defendant's Sixth Amendment right to counsel whenever it "deliberately elicit[s]" incriminating statements from him, through the use of a government agent, "after he ha[s] been indicted and in the absence of counsel." Id. at 206.

(2) Exhaustion and Procedural Default

Wallace raised this identical claim during his PCRA proceedings in state court, (Second Amended PCRA Petition, ¶ VI; PCRA Appeal Brief, at 43-46), but the Pennsylvania Supreme Court held that the claim was waived. Wallace III, 724 A.2d at 921 n. 5. Because Wallace "fairly presented" his claim to the state courts during the PCRA proceedings, the claim is exhausted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. Thus, the only question is whether the Pennsylvania Supreme Court's holding that Wallace waived the claim amounts to an independent and adequate state law ground barring federal review. I have already held that the waiver rule in Pennsylvania was not "firmly established and regularly followed" at the time of the direct review of Wallace's conviction. See supra III.D(2). Accordingly, Wallace's claim is not defaulted and I can review its merits.

(3) Legal Analysis

In Massiah, the defendant was indicted for violating the federal narcotics laws and was released on bail pending trial. Massiah, 377 U.S. at 201. While free on bail, one of Massiah's co-defendants decided to cooperate with the government and permitted federal agents to install a listening device under the front seat of his car. Id. at 202-23. A short time later, Massiah and the co-defendant had a lengthy conversation while sitting in the co-defendant's car. Id. at 203. Unbeknownst to Massiah, a federal agent sat in a parked car a short distance away and listened to the conversation between the two men. Id. Massiah made several incriminating statements, and these statements were brought to the jury's attention through the testimony of the federal agent. Id. The jury convicted Massiah and the conviction was affirmed in the Court of Appeals. On appeal, the United States Supreme Court reversed. In particular, the Court held that the government violated Massiah's Sixth Amendment right to counsel when it "deliberately elicited" incriminating statements from him "after he had been indicted and in the absence of counsel." Id. at 206.

The rule in Massiah was refined in the years following the Supreme Court's decision in that case. First, in United States v. Henry, 447 U.S. 264 (1980), the Court held that Massiah applies to statements made to a cellmate. Key to the decision in Henry was the fact that the cellmate was more than just "a passive listener," id. at 271, who overheard a confession. Second, in Kuhlmann v. Wilson, 477 U.S. 436 (1986), the Court followed-through on its distinction in Henry, holding that the Sixth Amendment is not violated when a defendant makes incriminating statements to someone who is a mere passive listener.

[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since "the Sixth Amendment is not violated whenever — by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached," a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.

Id. at 459 (internal citations omitted).

Whether an informant's testimony violates the Sixth Amendment turns on the existence of three factors. First, the right to counsel must have attached at the time that the alleged incriminating statements were made to the informant. Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 892 (3d Cir. 1999) (en banc). This right attaches at the initiation of adversarial judicial proceedings "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion). Second, the informant must have been working as a government agent. Matteo, 171 F.3d at 892. At a minimum, this requires some evidence, express or implied, that an agreement existed between the informant and the government at the time the incriminating statements were made. Id. at 893. Finally, the informant must have "deliberately elicited" incriminating information from the defendant. Id. at 892. To satisfy this prong, the defendant must show more than just the fact that an informant reported his statements to the police. Kuhlmann, 477 U.S. at 459; Matteo, 171 F.3d at 895. Rather, he must show that the informant "affirmatively [sought] to induce [incriminating statements]." Matteo, 171 F.3d at 895-96.

In the present case, there is no doubt that Wallace has satisfied the first prong of his claim under Massiah. When Wallace confessed to Gorby, his right to counsel had attached. Kirby, 406 U.S. at 689. Thus, the only questions before me are whether the facts as alleged satisfy Massiah's second and third prongs. For the following reasons, I conclude that they do not.

In analyzing this claim, I rely on the facts alleged in Wallace's amended petition, even though Wallace has not provided support for these allegations in the record of this case. Because I conclude that the facts alleged do not merit relief under Massiah, Wallace's request for an evidentiary hearing should be denied as well. Townsend v. Sain, 372 U.S. 293, 312-13 (1963); Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989).

(a) Was Gorby an Agent Under Massiah?

First, Wallace cannot show that Gorby was a government agent under Massiah at the time that the incriminatory statements in question were made. "The Supreme Court has not formally defined the term `government agent' for Sixth Amendment purposes." Matteo, 171 F.3d at 893. Nevertheless, the Third Circuit has noted, along with most other circuits, that "[a]t a minimum . . . there must be some evidence that an agreement, express or implied, between the individual and a government official existed at the time the elicitation takes place." Id.; see also United States v. Brink, 39 F.3d 419, 423 (3d Cir. 1994) (requiring a "tacit agreement" between the informant and the government).

In Matteo, the Third Circuit pointed to a number of different factors that should be considered when deciding whether such an agreement exists. First, was the informant "acting under instructions" from the government to obtain information from the defendant? Matteo, 171 F.3d at 893-94. Second, was there a "quid pro quo — in which the informant receive[d] some type of benefit, even if nonpecuniary, in exchange for assisting the authorities[?]" Id. at 894. Third, was there a past agency relationship between the informant and the government? Id. at 893; Brink, 39 F.3d at 423. Fourth, was the informant "ostensibly a mere fellow inmate . . ." Matteo, 171 F.3d at 893, thus, hiding from the defendant the fact that he is talking to a government agent? Henry, 447 U.S. at 272-73. Fifth, was the defendant "in custody at the time" and, therefore, subject to the "`subtle influences that will make him particularly susceptible to the ploys of undercover [g]overnment agents[?]'" Matteo, 171 F.3d at 895 (quoting Henry, 477 U.S. at 274). Finally, was the informant a "trusted friend" and, therefore "more likely to" obtain "incriminating statements" from the defendant? Matteo, 171 F.3d at 894-95.

The Matteo Court did not list these factors as I have here, and it did not address each factor in reaching its decision in that case. Nonetheless, a fair reading of that case suggests that a court should consider at least some of these factors when deciding whether an informant is an agent under Massiah.

During the state court proceedings in this case, the trial court made specific factual findings that easily dispose the first two Matteo factors. For instance, during those proceedings, Gorby testified that he was never "instructed by the police to get information about [Wallace]." United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997).

Q. Were you put in the Washington County Jail for the purpose of getting information from Wallace to testify against him?

A. No, sir.

Q. Did any police officer say to you, now I want you to talk to Wallace and get some statement out of him?

A. No, sir.

Q. Did the District Attorney ever say that to you?

A. No, sir.

(PCRA Ct. Op., 12/5/95, at 14-15) (quoting Supression Hearing Transcript, at 3-4). The trial court credited this testimony and specifically found that Wallace was "not a police agent or informant for the purposes of interviewing Wallace." (Third Trial Tr., at 777); see also (PCRA Ct. Op., 12/5/95, at 14-15). Accordingly, this fact is subject to AEDPA's presumption of correctness. 28 U.S.C. § 2254(e)(1).

Second, the trial court also found that there was no "quid pro quo" between Gorby and the Commonwealth. In an opinion filed shortly after Wallace's second trial, the trial court exhaustively explored this issue, rejecting, as a matter of fact, all of the same allegations that Wallace now raises. (Trial Court Op., 11/20/81, at 528F-G). First, it found that Gorby's "recommended probationary sentence was not connected in any way with the testimony given in the Wallace case." Id. at 528G. Second, it found that Wallace did not receive any money in exchange for his testimony. Id. Even statements made by Gorby or the District Attorney did not prove "that a secret bargain was entered into to secure testimony from Mr. Gorby." Id. Once again, I am bound by these factual-findings. 28 U.S.C. § 2254(e)(1).

Although some of the trial court's factual-findings were later brought into question by the Pennsylvania Supreme Court's decision in Wallace I, 455 A.2d at 1187, that court left the factual-findings now at issue undisturbed. Indeed, the court cited the specific findings that I now find conclusive and noted that they "are supported by the record." Id. at 1191 n. 5.

Granted, there is a significant amount of evidence suggesting that Gorby was a government agent for the purpose of extracting a confession from Wallace. To begin, Gorby had a meeting with the Commonwealth long before Wallace was transferred to Pennsylvania, at which time Wallace was a topic of conversation. At that time, Gorby told the Commonwealth that he and Wallace were "pretty good friends." Dkt. no. 20, at 72-73 n. 3 (quoting Gorby Statement, 7/14/80). Knowing this, the Commonwealth suspiciously transferred Gorby to the Washington County jail just days before Wallace himself arrived there. And when Wallace finally arrived, he was placed in a cell right next to Gorby.

Additionally, there is evidence implying that Gorby was actually rewarded for his testimony in Wallace's case. Gorby had worked for the government in the past and knew precisely what he would receive for favorable assistance on an important case. In fact, during the third trial, he admitted that he "hoped that the Commonwealth would take into consideration [his] cooperation . . . when it came time to sentencing[.]" (Third Trial Tr., at 780). Later, after Gorby helped the Commonwealth obtain a death sentence against Wallace, Gorby's original five to ten year sentence was reduced, upon a recommendation of the Commonwealth, to a term of probation. (Trial Ct. Op., 11/20/81, at 528E).

The state trial court knew this information when it made the factual-findings that are now at issue. It held a hearing, heard testimony from Gorby, Van Ostran, the Washington County District Attorney, and others, and determined that there was no deal, express or implied, between Gorby and the Commonwealth, that the Commonwealth never told Gorby to seek out Wallace, and that Gorby received nothing of benefit for his testimony in the Wallace case. (Trial Ct. Op., 11/20/81, at 528F-G). These findings find ample support in the record. Id.; see also (PCRA Ct. Op., 12/5/95, at 14-15 (quoting Supression Hearing Transcript, at 3-4). And, although there is evidence in the record that casts doubt on them, I simply do not find this evidence sufficient to meet the high standard for rebutting AEDPA's presumption of correctness. 28 U.S.C. § 2254(e)(1).

Apparently, even Gorby's statement that he "hoped" that his cooperation would be considered at sentencing, (Third Trial Tr., at 780), was in front of the trial court at the time it made its fact-findings. In Brink, the Third Circuit focused on similar testimony as "suggesting that [the informant] may have had a tacit agreement with the government." Brink, 39 F.3d at 424. But, Brink does not control my disposition of Wallace's claim for two reasons. First, the Brink Court remanded for an evidentiary hearing to explore the existence of a tacit agreement. Brink, 39 F.3d at 424. Wallace's case, on the other hand, has already had such a hearing, during which the trial court heard evidence about the existence of an agreement between Gorby and the Commonwealth and rejected that argument, as a matter of fact. Second, no matter what Gorby might have "hoped" for in exchange for his testimony, he received nothing. The trial court found this expressly. (Trial Court Op., 11/20/81, at 528F-G).

One point bears mentioning at this time. In his brief, Wallace claims that Gorby met with the police on July 14, 1980, during which he signed a statement implicating Wallace in the crime. After returning to his cell, Gorby obtained more incriminating information from Wallace. At a minimum, Wallace argues, Gorby was an agent at that time. Not so. The state court clearly knew of this sequence of events when it found that Gorby had not obtained statements from Wallace at the behest of the government. And Wallace has come forward with no evidence that suggests that Gorby somehow became a government agent after July 14, 1980. Further, Massiah does not prevent the government from using agents to obtain incriminating statements. It only bars the government from using the statements that it obtains through these agents at trial. Here, however, there is no proof that the Commonwealth used information obtained from Wallace after July 14, 1980 at the trial now at issue. In fact, in support of his claim, Wallace alleges that such evidence only came in at the first trial, dkt. no. 20, at 75, a trial that is not at issue in this habeas petition.

The importance of the state court fact-findings cannot be overlooked. In Kuhlmann, for instance, the Supreme Court took a lower federal court to task for failing to defer to state court findings in a Massiah case. Kuhlmann, 477 U.S. at 460. Such a failure, the Court noted, was a "fundamental mistake," id. at 459, even though the record contained evidence questioning their reliability, id. at 439-40, 459, 473. I do not intend to make the same mistake today. Unlike the lower court in Kuhlmann, I will rely on the state court fact-findings in this case. As a result of these findings, Wallace cannot satisfy either of the first two factors of the Matteo test.

What makes this case complicated, however, is that each of the remaining four factors have been satisfied in this case. First, Gorby worked as an agent for both the state and federal government in the past. In fact, at the time that Wallace was placed next to his cell, Gorby was cooperating with the Washington County District Attorney's office and was preparing to testify against his co-defendants. Second, Gorby appeared to Wallace as a "mere fellow inmate" and not a government agent. Third, Wallace was in "custody" at the time he made his statements to Gorby. Finally, while Gorby may not have been a "trusted friend" of Wallace's, he was far from an unfamiliar face. The two men had spent time together in jail years earlier and were "pretty good friends." Dkt. no. 20, at 72-73 n. 3 (quoting Gorby Statement, 7/14/80). The Commonwealth knew this, and, no doubt, thought that Wallace was "more likely to make incriminating statements to [Gorby]" than to some other inmate. Matteo, 171 F.3d at 895.

Even when taken together, however, these factors are insufficient to prove that Gorby was a government agent under Massiah. For starters, the strength of these factors is undermined by the state court's factual-finding that the Commonwealth had no deal with Gorby. The factors listed above are not an end in themselves. They are a means through which the court can shed light on the ultimate inquiry here: whether there was an "express or implied agreement" between Gorby and the Commonwealth. Id. at 893. But here, that issue has generally been resolved by the state trial court. (PCRA Ct. Op., 12/5/95, at 14-15); (Third Trial Tr., at 777); (Trial Ct. Op., 11/20/81, at 528G). In fact, the trial court knew all of the information gleaned from these factors when it made its factual findings now at issue. It was well aware of Gorby's past relationship with the Commonwealth, his prior friendship with Wallace, and the fact that he appeared to Wallace as a mere fellow inmate. It also knew that Wallace was in custody at the time his incriminating statements were made. Nevertheless, the trial court concluded that there was no agreement between Gorby and the Commonwealth. Wallace has presented no new information to rebut the presumption that this finding is correct. 28 U.S.C. § 2254(e)(1).

Second, with the exception of Gorby's prior stint as an informant, the remaining factors do little to prove that Gorby was a government agent. United States v. Johnson, 196 F. Supp.2d 795, 855, 860 (N.D.Iowa 2002). Agency, both at common law and under Massiah, requires some relationship between the agent and the principal. Restatement (Second) of Agency §§ 1, 14 (1958) (stating that an agent is one who acts for another by agreement and whose work is subject to control by the principal); Matteo, 171 F.3d at 894. Factors four through six, however, do nothing to move the ball forward. They focus on the mental state of the defendant, his vulnerability while incarcerated, his susceptibility to artifice, and the likelihood that he will expose incriminating information to others. None of this demonstrates any link between Gorby and the Commonwealth and is arguably irrelevant to the government agency inquiry.

If anything, these factors are only relevant to the deliberate elicitation prong of the Massiah test. Henry, 477 U.S. at 270 (relying on some of these factors and stating that the issue in the case was deliberate elicitation); id. at 275 (Powell, J., concurring) (same); id. at 278 (Blackmun, J., dissenting) (same); id. at 289 (Rehnquist, J., dissenting) (same); Kuhlmann, 477 U.S. at 474-75 (Brennan, J., dissenting) (explaining that these factors were relevant to the question of deliberate elicitation); see also Brink, 39 F.3d at 423. Wallace himself seems to agree, because he only discusses them in the deliberate elicitation section of his brief. Dkt. no. 20, at 76-77.

Finally, the Third Circuit has found the existence of the third, fourth, and fifth factors, taken together, insufficient to satisfy government agency under Massiah. In Brink, for instance, the defendant had proven that: 1) the informant "presented himself as just another inmate"; 2) the defendant "was in custody at the time the informant engaged him in conversations"; and 3) the informant acted "as a government agent in other cases. . ." Brink, 39 F.3d at 423-24. The Court explained, however, that these factors, without more, were insufficient to demonstrate government agency under Massiah. Id. With regard to the fact that the informant had worked as a government agent in the past, the Court expressly held that "[a]n inmate who voluntarily furnishes information without instruction from the government is not a government agent, even if the information had been an agent in the past." Id. at 423; see also United States v. Van Scoy, 654 F.2d 257, 260 (3d Cir. 1981). What the defendant in Brink needed to show in order to prove the government agency prong under Massiah was something more — that there was a "tacit agreement" between the government and the informant. Brink, 39 F.3d at 424.

I have already concluded that there was no "tacit agreement" between Gorby and the Commonwealth, either before, during, or after Wallace's trial. While I admit the closeness of the question now at issue, I see no alternative to the path that I have chosen. Granted, I could ignore the state court's fact-findings, but a journey along that route would be contrary to AEDPA's presumption of correctness. 28 U.S.C. § 2254(e)(1); Kuhlmann, 477 U.S. at 460. I could find that the four Matteo factors that exist here outweigh the two that do not. But, such a decision would undermine the fact-findings made by the state court, place too much stress on arguably irrelevant factors, and run counter to Third Circuit case law. Brink, 39 F.3d at 423-24. Finally, I could order an evidentiary hearing to explore, in more detail, Wallace's allegations. But, such a hearing has already been held, testimony already introduced, credibility determinations already made, and fact-findings already issued. All these hurdles stand in the way of a favorable ruling for Wallace. For this reason, and the ones set out above, I conclude that Gorby is not a government agent under Massiah.

(b) Were Wallace's Statements Deliberately Elicited?

Wallace also cannot prove that Gorby deliberately elicited any statements from him. The primary concern of Massiah "is secret interrogation by investigatory techniques that are the equivalent of direct police investigation." Kuhlmann, 477 U.S. at 459. For this reason, a defendant cannot prove deliberate elicitation "simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond mere listening that was designed deliberately to elicit incriminating remarks." Id. Thus, the use of an informant is proper under Massiah, "as long as the informant merely listens to and reports the incriminating statements, rather than affirmatively seek[s] to induce them." Matteo, 171 F.3d at 895. In other words, the government may provide criminal defendants with "opportunities" to confess, but it may not strive to make them do so. Id. at 896.

In the present case, there is no evidence that Gorby deliberately elicited statements from Wallace. In fact, the only evidence presented at trial suggests just the opposite. Wallace initiated the conversation with Gorby and voluntarily confessed his crime. Gorby explained that the conversation "started out" with Wallace asking Gorby "to smuggle a gun in through the window of a jail so he could make the escape and get to a guy by the name of Henry Eugene Brown." (Third Trial Tr., at 759). Gorby apparently agreed to help Wallace obtain the gun. Id. at 791. At that point, Wallace told Gorby about the facts surrounding the murders of Spalla and Luisi and admitted to killing them both. Id. Gorby did not initiate the conversation with Wallace. He did not suggest the scheme to kill Henry Brown. And he did not prompt Wallace to talk about the crime. Indeed, Wallace has presented no evidence demonstrating that Gorby tried to elicit incriminating remarks. As far as I can tell, Gorby sat and listened, while Wallace talked. In such circumstances, an informant cannot be said to have deliberately elicited information within the meaning of Massiah. Matteo, 171 F.3d at 896.

In many respects, Wallace's claim is much like the one rejected by the Supreme Court in Kuhlmann. In neither case was the informant instructed by the government to actively obtain a confession. And in neither case did the informant encourage the defendant to talk. Admittedly, Gorby did say that he would help Wallace smuggle a gun into the jail, a statement that may have lulled Wallace into a false sense of security. Nonetheless, this helping hand was no different from the one offered by the informant in Kuhlmann. "[L]ook," he said after the defendant lied about his involvement in the crime, "you better come up with a better story than that because that one doesn't sound too cool to me . . ." Kuhlmann, 477 U.S. at 440 n. 1. Without question, the informant in Kuhlmann was helping the defendant concoct his story for trial, just as Gorby was helping Wallace. In Kuhlmann, however, the assistance was much more than that offered by Gorby. It was the catalyst that sparked the defendant's confession: an unspoken request for the truth about the crime, and an implicit offer to help fabricate a defense. If that conduct was not deliberate elicitation in Kuhlmann, then Gorby's conduct was wholly proper as well.

Other factors cut in Wallace's favor, but none of them are sufficient to show deliberate elicitation. No doubt, Wallace was "susceptible to the ploys of undercover Government agents." Matteo, 171 F.3d at 895. He was in custody, awaiting trial on two counts of first-degree murder, and was housed next to a good friend, who looked to be just another inmate himself. Id. But even Henry, perhaps the most lenient of the Massiah cases, requires something more. Henry, 447 U.S. at 271. It requires, at a minimum, that the informant "[take] some action" in an effort to obtain the incriminating statement. Kuhlmann, 477 U.S. at 459; Henry, 447 U.S. at 21. Placing the defendant in a jail cell is not enough. Kuhlmann, 477 U.S. at 459. Nor is using a close friend in an effort to obtain a confession. Matteo, 171 F.3d at 895-96 (holding that defendant could not make out deliberate elicitation prong, even though defendant made incriminating statements to trusted friend.). Here, Gorby did not take any action, "beyond mere listening," that was designed to elicit the statements now at issue. Under such circumstances, Massiah simply is not violated.

Wallace's Massiah claims fails, therefore, because of lack of evidence. In some respects, this problem is inevitable in a case like the present one. Wallace denies ever having discussed his case with Gorby and denies having made the confession now at issue. Under such circumstances, therefore, it is extremely difficult for Wallace to prove that a confession he never made, during a conversation he never had, was somehow deliberately elicited. I understand the problem, but "I can't make bricks without clay." Arthur Conan Doyle, "The Adventure of The Copper Beeches," The Adventures of Sherlock Holmes (1892). To grant Wallace the relief he now seeks, I need a much sturdier foundation.

(c) Harmless Error

No matter how the merits of Wallace's Sixth Amendment claim are resolved, I would still deny him relief because the state court's failure to exclude Gorby's testimony was harmless. As I explained before, a writ of habeas corpus may issue only if the constitutional error at issue "`had a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776). Massiah errors are subject to harmless error review, Brink, 39 F.3d at 424 n. 9; Matteo, 171 F.3d at 898, and, in assessing their impact, the court must judge how the jury would reasonably perceive the case without the constitutional error. Hassine, 160 F.3d at 955.

Here, Gorby's testimony was more trouble than it was worth. On two prior occasions, the Commonwealth tried to convict Wallace on Gorby's word alone, and both times it failed to attain a conviction that could withstand appellate review. Wallace I, 455 A.2d at 1188, id. at 1191-93. Even the Commonwealth recognized the limited value of Gorby's testimony. In fact, it never intended put him on the stand in the first place. From the start, it wanted to pursue its case against Wallace using Brown's testimony alone. (Trial Ct. Op., 6/8/83, at 528R). It was only at the eleventh hour, after Brown refused to testify, that the Commonwealth had no choice but to put Gorby on the stand. Id. It did so, and he testified at the first and second trials. Id. When the third trial approached, the Commonwealth decided use him once again.

But, even in that third trial, Gorby's testimony added little of value to the Commonwealth's case. It was riddled with inconsistencies and undermined by the testimony of Ronald Van Ostran — a man who claimed that Gorby was lying. (Third Trial Tr., at 837-45); see also id. at 825-27 (testimony of Deputy Warden of Washington County jail). To make matters worse, Gorby had a string of prior convictions, id. at 764-65, 785, 787-88, 790-91, a history of run-ins with the law, id. at 786-91, and a habit of using fictitious names, id. at 785, 795-96, all of which must have cast an uncomfortable pall over his credibility.

In fact, the only benefit to Gorby's testimony was that it corroborated the testimony of Henry Brown. But Brown's testimony was so sufficiently corroborated by other witnesses that Gorby's testimony hardly mattered. Hard evidence, such as fingerprints, id. at 244-45, and Brown's own car, id. at 535-36 357-59, 376-78, 384-87, 392-95, 461, tied Brown to the scene of the crime. Witnesses connected Wallace with Brown on the day of the murder, id. at 535-41, tied him to the scene of the crime, id. at 291-92, 535-36 357-59, 376-78, 384-87, 392-95, 461, 535-41, and demonstrated that Wallace was still nervous days after the murders, id. at 543. Although Brown's credibility had also been undermined, id. at 634-88, the jury still credited his testimony. Under the present circumstances, Gorby's testimony certainly would have been missed, but its absence in all reasonable likelihood would not have made a difference. Even without him, Wallace would have been convicted. The error was harmless.

(4) Conclusion

For the foregoing reasons, I recommend that Wallace's Massiah claim be denied. Because Wallace has made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), however, I recommend that he be granted a certificate of appealability on this claim.

G. Fourth Amendment Claim

Wallace next claims that his Fourth Amendment rights were violated when he was arrested without a warrant and probable cause. The Pennsylvania Supreme Court did not address the merits of this claim and, therefore, my review is de novo. Appel, 250 F.3d at 210. Wallace exhausted this claim when he raised it in the trial court prior to his first and second trial, (Tr. Ct. Op., 2/11/82, at 528J), and then on direct review from his first conviction, dkt. no. 20, at 82. The state courts never applied any state law bar to this claim and I can think of none that applies. Thus, exhaustion and procedural default do not appear to prohibit review of this claim on its merits.

This is Claim VII in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim VII, at 51).

Nonetheless, Wallace's claim should be denied for another reason. Fourth Amendment claims, like the one now before me, are not cognizable in habeas corpus when the petitioner has a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82 (1976); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994). Wallace had just such an opportunity in this case. (Tr. Ct. Op., 2/11/82, at 528J); dkt. no. 20, at 82 n. 47. For this reason, I recommend denying this claim and denying a certificate of appealability as well.

H. Double Jeopardy Claim

Wallace next raises two claims that stem from the double jeopardy clause of the Fifth Amendment. First, he argues that his Fifth Amendment rights were violated when he was retried after the prosecution had deliberately and intentionally engaged in misconduct aimed at forcing a mistrial. Second, he claims that his counsel was ineffective for failing to raise this double jeopardy claim on direct appeal of his conviction. Because the Pennsylvania Court of Common Pleas addressed the merits of this claim, my review is limited under AEDPA's deferential standard. 28 U.S.C. § 2254(d)(1). For the following reasons, I recommend that Wallace's claim be denied.

This is Claim VIII in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim VII, at 52).

(1) Exhaustion and Procedural Default

In December 1980, Wallace was tried in the deaths of Tina Spalla and Carl Luisi, Sr. On the first day of this trial, the Commonwealth announced that it was going to introduce the testimony of Olen Clay Gorby, a cellmate of Wallace's who claimed that Wallace had confessed to the crime. Wallace had no notice of Gorby's testimony. (Trial Ct. Op., 6/8/83, at 528R). Immediately, he objected to it, but the trial court denied his objection. Id. Although the trial proceeded, the trial court declared a mistrial after the jury was unable to reach a verdict. Wallace I, 455 A.2d at 1188. Wallace immediately moved for dismissal on double jeopardy grounds, but the motion was denied. (Trial Ct. Op., 6/8/83, at 528R-528S).

A few months later, a second trial was held, and, this time, Wallace was convicted. Wallace I, 455 A.2d at 1188. He appealed that conviction to the Pennsylvania Supreme Court, which vacated it on two grounds. First, the Commonwealth had elicited "certain testimony from Olen Clay Gorby which [it] knew, or should have known, was false . . ." Id. at 1191. Second, the Commonwealth "concealed exculpatory evidence" concerning Gorby, namely "substantial portions of his criminal record . . ." Id.

(a) Double Jeopardy Claim

During that appeal, Wallace also raised a claim under the double jeopardy clause of the Fifth Amendment, arguing that further prosecution was unconstitutional. Id. at 1193. Rather than grant him the relief he requested, however, the Pennsylvania Supreme Court held off ruling on the claim for another day.

[Wallace] requests this Court to discharge him on double jeopardy grounds as, he asserts, the conduct of the district attorney's office amounted to intentional, bad faith, misrepresentations, or "prosecutorial overreaching." We believe that such a drastic remedy would be premature at this time, and that the award of a new trial is sufficient.

* * * *

. . . [O]ur grant of a new trial is without prejudice to appellant's right to petition the lower court for discharge on double jeopardy grounds (this issue has been preserved throughout these proceedings) prior to reprosecution, if any, at which time that issue would be considered in light of all the evidence adduced at the after-discovered evidence hearing.

Id. at 1193 (internal citations omitted). In particular, the Pennsylvania Supreme Court was reluctant to review the double jeopardy claim until the lower court made a "finding . . . as to the intentions/motives of the district attorney's office" when it failed to disclose the fact that Gorby had obtained a confession from Wallace. Id.

On remand, Wallace raised his double jeopardy claim again, and the trial court denied it. (Trial Ct. Op., 6/8/83, at 528U). In its opinion, the trial court specifically found that the Commonwealth did not intend to deceive Wallace when it withheld Gorby's identity from him. Id. at 528T-U. Wallace appealed to the Pennsylvania Superior Court, which also denied relief. (State Docket Entry, 9/20/85, at 528W). Wallace did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

Exhaustion is satisfied under 28 U.S.C. § 2254 only if "state prisoners . . . give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845 (emphasis added). This means that state prisoners must "file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. at 847. In the present case, Wallace failed to file a petition for allowance of appeal with the Pennsylvania Supreme Court after the Superior Court denied his double jeopardy claim. Under these circumstances, the claim was not fairly presented to the Pennsylvania Supreme Court and, therefore, was not exhausted. Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001).

I realize that Wallace did raise his claim in the Pennsylvania Supreme Court at the close of his second trial, but I find this insufficient. O'Sullivan expressly requires a petitioner to raise his constitutional claims within "one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845. While Wallace's double jeopardy claim hit every level of the state courts, it did so only through two different rounds of litigation. From the clear language of O'Sullivan, this is insufficient. As the facts in Wallace's own case demonstrate, this apparently draconian rule makes perfect sense. When Wallace first raised his claim before the Pennsylvania Supreme Court, the trial court had yet to make factual findings concerning some key issues. The Pennsylvania Supreme Court recognized this problem and deferred ruling on the claim until such findings had been made. Wallace I, 455 A.2d at 1193. After the trial court developed the factual record, however, Wallace failed to provide the Pennsylvania Supreme Court with the chance to review his claim in light of these findings. If nothing else, comity and federalism suggest that the Pennsylvania Supreme Court should have been given the chance to review the claim under these new circumstances.

Although it is now "futile" for Wallace to return to state court, see supra §§ III.A.(2)(b) III.C(5)(b), I still cannot review his claim. For reasons already explained, Wallace's double jeopardy claim is now procedurally defaulted. Id. Because Wallace has not shown "cause and prejudice" to overcome his default, Whitney, 280 F.3d at 252-53, his claim is barred from federal review.

(b) Ineffective Assistance Claim

I reach the same conclusion with Wallace's claim for ineffective assistance of counsel. Throughout the proceedings in state court, this claim was only raised once, in a pro se petition for extraordinary relief filed with the Pennsylvania Supreme Court. Dkt. no. 20, at 86. Because Wallace did not raise his claim during "one complete round of the State's established appellate review process . . .," O'Sullivan, 526 U.S. at 845, it is not exhausted. Once again, exhaustion is futile, but a procedural bar prevents me from reviewing this claim on its merits. See supra §§ III.A.(2)(b) III.C(5)(b).

(2) Legal Merits

Even if Wallace's claims weren't procedurally barred, however, they should still be denied because they are without merit.

(a) Double Jeopardy

The double jeopardy clause of the Fifth Amendment provides that no personal shall "be subject for the same offence to be twice put in jeopardy of life or limb . . ." U.S. Const. Amend. V. As a general rule, a criminal defendant who successfully appeals a conviction may be subject to retrial without running afoul of the double jeopardy clause. "It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to convictions." Burks v. United States, 427 U.S. 1, 15 (1978) (citation omitted). At present, in fact, the Supreme Court has carved out only one exception to the rule that retrial is permissible after reversal by an appellate court. When a conviction is reversed because of insufficient evidence, the double jeopardy clause prevents the government from taking another bite at the apple. Id. at 16.

Courts of Appeals, however, have not been so shy. Indeed, almost universally, they have recognized another exception to the general rule permitting retrial under the double jeopardy clause. Relying on the Supreme Court's case in Oregon v. Kennedy, 456 U.S. 667, 678 (1982), these courts have held that a defendant may invoke the double jeopardy clause when the reason for the reversal is prosecutorial misconduct that was intended to "provoke the defendant into moving for a mistrial." See, e.g., United States v. Curtis, 683 F.2d 769, 774-776 (3d Cir. 1982); Greyson v. Kellam, 937 F.2d 1409, 1414 (9th Cir. 1991) (collecting cases). This standard requires more than just prosecutorial overreaching that violates the due process clause. Greyson, 937 F.2d at 1415. Rather, it focuses on the "intent of the prosecutor," Kennedy, 456 U.S. at 675, and it "calls for the court to make a finding of fact," id., as to whether the prosecutorial misconduct at issue was "intended to `goad' the defendant into moving for a mistrial." Id. at 676.

In the present case, the state trial court made just such a finding of fact. In a lengthy opinion, it found that the Commonwealth did not intend to deceive Wallace when it withheld information about Gorby's testimony, (Trial Ct. Op., 6/8/83, at 528T-U), and that it did not seek "to provoke a mistrial or to prejudice [Wallace]" in any way. Id. at 528U. This finding is supported by the record in this case and is entitled to a presumption of correctness. 28 U.S.C. § 2254(e)(1). For this reason, Wallace cannot make out a claim under the double jeopardy clause of the Fifth Amendment, Kennedy, 456 U.S. at 675, 678, and should be denied relief, Franklin, 290 F.3d at 1233 (holding that if the state court reaches the correct result, then AEDPA's deferential standard of review is satisfied as well).

I recognize that Wallace's current claim is broader than the one he raised in state court back in 1983, (compare dkt. no. 20, at 83-87 with Trial Ct. Op., 6/8/83, at 528R), but this difference does not alter my conclusion. Despite his current allegations of prosecutorial misconduct, Wallace still has not come forward with any evidence on the crucial issue before me today: the intent of the prosecutor. As far as I can tell, this case is no different than Kennedy itself. Even if the Commonwealth's conduct here could be categorized as "harassing or overreaching," Kennedy, 456 U.S. at 675, there is no proof that it was intentionally carried out "to subvert the protections afforded by the Double Jeopardy Clause." Id. at 676. Accordingly, I recommend denying this claim for relief.

(b) Ineffective Assistance

Wallace's second claim is that his counsel was ineffective when he failed to raise the double jeopardy claim now at issue after the close of Wallace's third trial in 1987. As I have already discussed, a Strickland claim requires a showing that counsel acted unreasonably and that his client was prejudiced by his conduct. Strickland, 466 U.S. at 687-89, 694. In the present case, Wallace cannot satisfy the first prong of Strickland.

For starters, Wallace's double jeopardy claim — whether raised as a matter of state or federal law — was without merit in 1987. I have already explained why Wallace's federal constitutional claim lacked merit at the time, and will not revisit that issue. The merits of Wallace's state law claim were no better. Commonwealth v. Smith, 615 A.2d 321, 322 (Pa. 1992). At the time, the Pennsylvania Supreme Court had expressly adopted the federal constitutional standard set forth in Kennedy, holding that "double jeopardy will attach only to those mistrials which have been intentionally caused by prosecutorial misconduct." Commonwealth v. Simons, 522 A.2d 537, 540 (1987). The federal claim was without merit; and the state law claim would have been subject to the same fate. Because counsel is not required to raise a losing claim, Mannino, 212 F.3d at 840, Wallace's counsel was simply not deficient.

I recognize that Pennsylvania law is more favorable to Wallace today. In fact, in Smith, the Pennsylvania Supreme Court held that the double jeopardy clause of the Pennsylvania Constitution provided more protection to criminal defendants than did the similar provision under the United States Constitution.

We now hold that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of fair trial.

Smith, 615 A.2d at 325. It is questionable whether Wallace could even obtain relief under this standard, but I need not address that issue. At the time of his appeal, a different standard applied. As "there is no general duty on the part of defense counsel to anticipate changes in the law," Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989) (citation omitted), Wallace's claim that his counsel was somehow deficient should be denied.

(3) Conclusion

For the foregoing reasons, I recommend denying Wallace's claims under the Fifth and Sixth Amendments and denying him a certificate of appealability as well.

I. Trial Court's Instruction Concerning Prior Criminal Records

Wallace next alleges that he was denied due process when the trial court gave instructions concerning the prior criminal records of three witnesses that were incomplete and biased in favor of the Commonwealth. The Pennsylvania Supreme Court denied this claim in Wallace II, 561 A.2d at 727-28. Accordingly, the only question that I confront is whether that decision was "contrary to" or "an unreasonable application of" "clearly established Federal law." 28 U.S.C. § 2254(d)(1). For the following reasons, I conclude that it was not.

This is Claim IX in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim IX, at 54).

(1) Factual Background

During trial, three witnesses testified who had prior criminal records: Henry Brown, Olen Clay Gorby, and Ronald Van Ostran. Two of these witnesses, Brown and Gorby, testified on behalf of the Commonwealth. Brown was the most important witness in the trial, and he claimed that Wallace had killed both Luisi and Spalla. Gorby corroborated much of Brown's testimony, explaining that Wallace had confessed to committing the murders in question. (Third Trial Tr., at 602-17, 758-60). The final witness, Van Ostran, testified for Wallace, and he claimed that Gorby had fabricated his entire testimony in exchange for a $1,000 payment from the Commonwealth. Id. at 842-45.

(a) Brown's Criminal Record

Each man had a lengthy and troubling criminal record. Brown, for instance, was convicted of forgery and robbery in 1971. Id. at 634-35, 44. In 1974, he was convicted of receiving stolen property, petty theft, and selling drugs. Id. at 645-47. In 1975, he was convicted of selling drugs. Id. at 647. In 1976, he was convicted of receiving stolen property. Id. at 651. And, finally, he pled guilty three different times in Wallace's case, the first two times to second-degree murder and the last time to third-degree murder. Id. at 653.

(b) Gorby's Criminal Record

Gorby had a lengthy criminal record as well. In 1968, he was convicted of armed robbery and burglary. Id. at 779. In 1973, he was convicted of breaking and entering. Id. In 1979, he pled guilty to nine burglaries, criminal attempt to commit homicide, reckless endangerment, and nine conspiracy counts. Id. at 780; see also id. at 768. At some point, he also pled guilty to drug possession. Id. at 769.

(c) Van Ostran's Criminal Record

Finally, Ronald Van Ostran also had a prior record at the time he testified in Wallace's defense. In the early 1980s, he was convicted of unarmed bank robbery and receiving stolen property. Id. at 840-41. A few years earlier, in 1978, he was convicted of assault. Id. at 849. Immediately after evidence of this assault was introduced, however, the trial court instructed the jury to disregard it. Id. at 851-52. "Assault you do not take into consideration as to the credibility of this [witness] to believe him or not believe him. . . . This is not crimen falsi, which means a crime involving dishonesty, untruthfulness. . . . Someone can commit an assault and be a very truthful person." Id.

Apparently, Van Ostran was also convicted of burglary at some point, id. at 851, though neither counsel ever elicited this fact during either direct or cross-examination.

(d) The Trial Court's Instruction

At the end of the trial, the trial court instructed the jury on how it should consider the prior crimes evidence introduced against Brown, Gorby, and Van Ostran. And it is this instruction that is at issue today.

You have heard evidence that three of the witnesses in this case, namely Henry Eugene Brown, Olen Gorby and Ronald Eugene Van Ostran have been convicted of various crimes. Mr. Brown has been convicted of the crimes of robbery, receiving stolen property, sale of drugs and petty theft. Mr. Gorby has been convicted of the crimes of robbery, a number of burglaries, breaking and entering, not related to this case. Mr. Van Ostran has been convicted of the crimes of robbery and receiving stolen property, not related to this case.
The only purpose for which you may consider this evidence of prior convictions is in determining whether or not to believe all or part of Brown's testimony, Gorby's testimony and Van Ostran's testimony. In doing so, you may consider the type of crime committed, how long ago it was committed and how the convictions may affect the likelihood that Brown, Gorby and Van Ostran have testified truthfully in this case.

Id. at 952-53. Shortly thereafter, the trial court focused on Brown's testimony alone.

When a Commonwealth witness was so involved in the crime charged that he was an accomplice, his testimony has to be judged by special precautionary rules. Experience shows that an accomplice, when caught, will often try to place the blame falsely on someone else. He may testify falsely in the hope of obtaining favorable treatment or some corrupt or wicked motive. On the other hand, an accomplice may be a perfectly truthful witness. The special rules that I shall give you are meant to help you distinguish between truthful and false accomplice testimony.
In view of the evidence of Henry Eugene Brown's criminal involvement in this case, you must regard him as an accomplice in the crime charged and apply the special rules to his testimony. These are the special rules that apply to accomplice testimony: one, you should view the testimony of an accomplice with disfavor because it comes from a corrupt and polluted source. Two, you should examine the testimony of an accomplice closely and accept it only with care and caution. Three, you should consider whether the testimony of an accomplice is supported in whole or in part by other evidence. Accomplice testimony is more dependable if supported by independent evidence. However, even if there is not independent supporting evidence, you may still find the defendant guilty solely on the basis of an accomplice's testimony if, after using the special rules that I have just told you about, you are satisfied beyond a reasonable doubt that the accomplice testified truthfully and the defendant is guilty.

Id. at 953-54. Today, Wallace claims that these instructions were biased in favor of the Commonwealth, thereby violating the due process clause of the Fourteenth Amendment.

(2) Exhaustion and Procedural Default

Wallace raised a similar claim on direct review of his conviction and death sentence. (Post Trial Motion, ¶ 19; Direct Appeal Brief, at 59-61). Although he did not specifically style the claim as one for relief under the due process clause, he nonetheless alleged that the trial court's instructions "deprived [him] of a fair and impartial trial." (Direct Appeal Brief, at 60). The Pennsylvania Supreme Court denied relief, citing no case law. Wallace II, 561 A.2d at 727-28.

I find the exhaustion question raised by this claim to be a difficult one. At no time during his state court proceedings did Wallace cite any provision of the federal constitution in support of his claim, and he never cited state law cases that incorporated federal constitutional standards. Granted, on more than one occasion, Wallace claimed that the trial court's instruction "deprived [him] of a fair and impartial trial," (Direct Appeal Brief, at 60), a similar standard to that under the due process clause. In re Murchison, 349 U.S. 133, 136 (1955) ("a fair trial in a fair tribunal is a basic requirement of due process."). But, United States Supreme Court cases have held that state law claims raised just like the present one do not satisfy the exhaustion requirement. In Duncan v. Henry, 513 U.S. 364, 365-66 (1995), for example, the Court held that a petitioner had failed to exhaust a due process claim, even though he had asserted that the error at issue was a "miscarriage of justice." Id. at 364. "If a habeas petitioner wishes to claim that [a state court ruling] denied him the due process of law guaranteed under the Fourteenth Amendment," the Court stressed, "he must say so, not only in federal court, but in state court." Id. at 366. "[M]ere similarity of claims is insufficient to exhaust." Id. For this reason, I conclude that Wallace has not exhausted his claim. This means, as I have already discussed in detail, that Wallace's claim is now procedurally defaulted. See supra §§ III.A.(2)(b) III.C(5)(b).

(3) Legal Analysis

My resolution of the exhaustion issue is really insignificant, however, because Wallace is not entitled to relief on his claim under the due process clause of the Fourteenth Amendment. There is no question that the due process clause requires "a fair trial in a fair tribunal" with a fair judge. Murchison, 349 U.S. at 136. Nonetheless, in the present case, Wallace has not proven that the trial judge's instructions on prior criminal records were slanted in the least.

At the time of Wallace's trial, a witness could be impeached with evidence that he had a prior criminal record. Commonwealth v. Randall, 528 A.2d 1326, 1329 (Pa. 1987). And, in such a case, it was proper for a trial judge to instruct the jury on how to consider that prior crimes evidence. Wallace does not dispute these basic rules of law. This does not mean, however, that the trial judge must bring all of a witness's prior crimes to the attention of the jury in his closing instructions. As the Pennsylvania Supreme Court explained at the time,

evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of the conviction or the last day of confinement is within ten years of the trial date. If a period greater than ten years has expired the presiding judge must determine whether the value of the evidence substantially outweighs its prejudicial effect.

Id. (emphasis added).

For the most part, the trial court's instructions were consistent with this Pennsylvania law. For Van Ostran, the trial judge included only those prior convictions that were crimen falsi under Pennsylvania law. Id. 840-41, 952-53. Although the Commonwealth sought to introduce evidence of Van Ostran's prior assault conviction, the trial court specifically told the jury to disregard it, id. at 851-52, a correct instruction because assault was not crimen falsi, Allen v. Kaplan, 653 A.2d 1249, 1253 (Pa.Super.Ct. 1995). The instruction on Gorby was accurate as well. (Third Trial Tr. at 952). While the trial judge did not mention Gorby's prior convictions for criminal attempt to homicide, reckless endangerment, conspiracy, or drug possession, id. at 768-69, 780, 952-53, none of these crimes were crimen falsi and admissible under Pennsylvania law. Allen, 653 A.2d at 1253.

In fact, it was only the instruction on Henry Brown that was in any way inconsistent with the requirements of Pennsylvania law. The trial court mentioned Brown's prior convictions for "robbery, receiving stolen property, sale of drugs and petty theft," (Third Trial Tr., at 952), but it left out his prior convictions for forgery, id. at 634-35, 44, a crime that is certainly one of crimen falsi. Allen, 653 A.2d at 1253.

But, this lapse does not show that the trial judge's instructions were biased or that the trial itself was unfair. First, the trial judge did not have to instruct on Wallace's prior forgery convictions at all. Under Pennsylvania law, evidence of prior crimes was only admissible if the crimes were both crimen falsi and within ten years of the date of the trial. Randall, 528 A.2d at 1329 (requiring that "the date of the conviction or the last day of confinement is within ten years of the trial date."). Brown's forgery convictions, however, came in 1971, well before that date. (Third Trial Tr., at 634-35, 644). In fact, Brown was out of jail on these charges by 1972, more than three years before the ten year window for prior convictions had even opened. Id. at 644. Although the trial judge had discretion to instruct on these prior crimes, he was not, under Pennsylvania law, required to do so. Thus, by excluding them, he was hardly being unfair to Wallace.

Second, the trial judge gave a lengthy and detailed instruction on Henry Brown that cautioned the jury about his credibility. Id. at 953-54. In it, he told the jurors that witnesses like Brown will "often try to place the blame falsely on someone else" and may even "testify falsely in the hope of obtaining favorable treatment . . ." Id. at 953. He advised them to "view the testimony of an accomplice with disfavor because it comes from a corrupt and polluted source." Id. And, he warned them to examine Brown's testimony "closely and accept it only with care and caution." Id. No other witness received such an instruction. At a minimum, this instruction must have given the jurors some pause before crediting Brown's testimony and convicting Wallace of the charges against him.

If anything, the trial judge's instructions showed a bias in favor of Wallace, and not the Commonwealth. All of Ronald Van Ostran's convictions fell well within the ten year window for prior crimes evidence and were clearly admissible. The trial judge, therefore, was required to instruct on these crimes. Randall, 528 A.2d at 1329. Such was not the case with Brown's and Gorby's prior crimes. In fact, most of Brown's crimes fell well outside of the ten-year period, while a majority of Gorby's did as well. The trial judge was not, in any way, required to admit evidence of these crimes or instruct the jury on their import. Nevertheless, he did so, a decision that clearly redounded to Wallace's benefit.

(4) Conclusion

For these reasons, I recommend denying Wallace's claim under the due process clause of the Fourteenth Amendment. The trial judge's instructions were fair, impartial, and in accordance with Pennsylvania law. For the same reasons, I recommend denying Wallace a certificate of appealability on this claim as well.

J. Trial Court Precluded Wallace From Calling Defense Witnesses

This leaves Wallace with only one remaining claim in an effort to overturn his convictions for second-degree murder, robbery, and conspiracy. In particular, he alleges that his Sixth and Fourteenth Amendment rights were violated when the trial court prevented him from introducing the testimony of two defense witnesses, namely Jon Stevens and the trial judge himself, Judge John Bell. The Pennsylvania Supreme Court did not address the merits of this claim and, thus, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

This is Claim X in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim X, at 56).

(1) Factual Background

On the eve of his third trial, Wallace learned that Henry Brown had cut a deal with the Commonwealth and was prepared to testify against him. In exchange for Brown's agreement to testify, the Commonwealth agreed not to contest Brown's petition to withdraw his earlier guilty plea for second-degree murder. In addition, the Commonwealth agreed to Brown entering a new plea for third-degree murder, resulting in his almost immediate release from jail. See supra III.B(1).

(a) Attempt to Call Judge John Bell

As soon as he learned of Brown's deal, Wallace's defense counsel said that he wanted to call the trial judge himself, Judge John F. Bell, as a witness in the case. (Third Trial Tr., at 115). Although counsel did not immediately tell the judge why he sought his testimony, the reasons were obvious. Judge Bell had presided over Brown's initial plea for second-degree murder and had sentenced Brown to life in prison. Better than anyone else, Judge Bell could attest to the legality of that proceeding and the reliability of Brown's second plea. In fact, during that earlier proceeding, Judge Bell had indicated that a life sentence was the only appropriate one for Brown "[i]n the eyes of the law." Id. at 110 (quoting Plea Tr., 10/24/80). "[A]ny sentence that did not require a life sentence," he explained, "would be detrimental to society and to the general public." Id. (emphasis added). By testifying on behalf of Wallace, Judge Bell could have cast doubt on the legality of the agreement entered between Brown and the Commonwealth.

Wallace also wanted to introduce Judge Bell's testimony to undermine the impartiality of the judge himself and to cast a shadow over the integrity of Wallace's entire prosecution. Defense counsel explained this theory in detail.

[T]he Commonwealth wants to convict Mr. Wallace so badly that they will go to almost any lengths to do so. It is also our position that you, Judge Bell, are acting as a super prosecutor, have for a long time, and have been actively involved in assisting the Commonwealth, not only in the prosecution of the case, but preparation of the case. . . .
[W]e have reason to believe that the Commonwealth has met with you, Judge, on the question of Brown's plea for some period of time. . . . It is our position that one of the reasons that we can call you, just one of them is to show that you did indeed meet with the prosecutor, that you did indeed either agree with or approve in advance or think it would be appropriate that Mr. Brown would be allowed to withdraw the plea to second degree murder. . . . [B]y calling you as a witness, we can demonstrate that there is a concerted effort to do almost anything that can be legally contrived to convict him.

Id. at 142-43. The trial judge immediately noted that he didn't know anything about Brown's deal, "other than what was said at his plea and colloquy . . ." Id. at 144. When Wallace's counsel tried to make an additional point, the trial judge cut him off. "Saying things," he cautioned, "doesn't make it so." Id.

Obviously, Judge Bell rejected Wallace's attempt to put himself on the stand. Id. at 866-67. His reasoning was straightforward: the jury's only job is to assess Brown's credibility, not determine the "legality" of Brown's deal. Id. at 866. The legality of Brown's deal was a "collateral" matter, id., and simply "irrelevant." Id. at 867. In spite of this ruling, the trial judge did permit Wallace to introduce the transcripts of Brown's earlier plea hearings for purposes of impeachment. Id. at 155-56.

(b) Attempt to Call Jon Stevens

Wallace also tried to introduce the testimony of Jon Stevens. Id. at 829-30. At the time, Stevens was a newspaper reporter for the Washington Observer, and he had received a letter from Ronald Van Ostran shortly after the first trial. Id. at 829. In that letter, Van Ostran alleged that Gorby was lying when he claimed that Wallace had confessed to the crimes in question. Wallace intended to put Stevens on the stand for the limited purpose of explaining that he received a letter from Van Ostran and then handed that letter over to Wallace's counsel. Id. In other words, Wallace's counsel wanted to "give an orderly, chronological presentation of the testimony. The letter was received by Mr. Stevens, he turned it over to us. We contacted Van Ostran." Id. at 830-31.

Once again, the trial court denied Wallace's request, deeming the testimony "irrelevant." Id. at 832, 835.

It only becomes relevant if they tear down [Van Ostran's] credibility that it's recently fabricated testimony, then you can come back and say in 1981 didn't you write a letter to the Washington Observer saying exactly the same thing you are saying today, and he will say yes, then it's relevant.

Id. at 836. After Van Ostran testified, Wallace tried to admit Stevens' testimony once again. Id. at 853. Again, defense counsel argued that the testimony would be limited: "[j]ust to state that he received the letter from Mr. Van Ostran." Id. And, again, the trial court rejected Wallace's request. Id. at 853-54. The court held that Van Ostran's credibility concerning the sending of a letter to the newspaper was not challenged and, thus, the testimony was "irrelevant." Id.

(2) Exhaustion and Procedural Default

After his conviction and death sentence, Wallace challenged the trial court's failure to admit the above-mentioned testimony. (Post Trial Motion, ¶ 11(a) (c); Direct Appeal Brief, Claim VI, at 51-58). Ultimately, the Pennsylvania Supreme Court denied the claim on the ground that the proffered evidence was irrelevant. Wallace II, 561 A.2d at 727. Wallace's problem today is the same one that he has had with many of the claims in this case. In state court, he raised this claim as strictly a violation of state evidence law. He never cited the federal constitution in asserting his claim and never referenced state cases that incorporated federal constitutional standards. The closest Wallace came to raising a federal constitutional claim was at the end of his appeal papers when he mentioned his "right to present a defense in his own behalf." (Direct Appeal Brief, at 58). Once again, however, this is not sufficient to exhaust the federal constitutional claim that Wallace raises today. Duncan, 513 U.S. at 364-66. Wallace has not exhausted his claim. And, for the reasons I have already discussed, that claim is now procedurally defaulted. See supra §§ III.A.(2)(b) III.C(5)(b).

(3) Legal Merits

Even if the claim is not barred, however, I would still recommend that it be denied. In support of his claim, Wallace cites Crane v. Kentucky, 476 U.S. 683 (1986), a case in which the Supreme Court held that "the Constitution guarantees criminal defendants `a meaningful opportunity to present a complete defense.'" Crane, 476 U.S. at 690 (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). In reaching its decision, the Court relied on three separate constitutional provisions: the confrontation clause of the Sixth Amendment; the compulsory process clause of the Sixth Amendment; and the due process clause of the Fourteenth Amendment. Crane, 476 U.S. at 690. For the following reasons, I conclude that Wallace is not entitled to relief under any of these provisions.

(a) Confrontation Clause Claim

First, I have little trouble rejecting his claim under the confrontation clause. That provision gives a criminal defendant the right to face or "confront" those who testify against him. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). The problem here is that Judge Bell and Jon Stevens were not witnesses against Wallace. They were in favor of him. Because the confrontation clause does not give criminal defendants the "right to elicit friendly testimony," United States v. Crockett, 813 F.2d 1310, 1313 (4th Cir. 1987), Wallace's claim should be denied.

(b) Compulsory Process Claim

Second, Wallace cannot make out a claim under the compulsory process clause of the Sixth Amendment. Under that provision, an accused in a criminal case has the right to offer the testimony of favorable witnesses and "to have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI. To make out a claim under the compulsory process clause, Wallace must prove three factors. First, he must show that he was deprived of the opportunity to present evidence in his favor. Gov't of Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992). Second, he must prove that the excluded testimony would have been material to his defense. Id. To satisfy this prong, Wallace must show that there is a "reasonable likelihood" that the excluded testimony "could have affected the judgment of the trier of fact." United States v. Valenzuela-Bernal, 458 U.S. 858, 874 (1982). Finally, he must prove that the deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purpose. Mills, 956 F.2d at 446. For present purposes, I will assume that the testimony of Judge Bell and Jon Stevens would have been favorable to Wallace. Wallace still cannot make out his claim, however, because he cannot prove either of the final two prongs that are listed above.

First, neither Judge Bell nor Jon Stevens would have provided testimony that was material to Wallace's defense. While Judge Bell would have shown the jury that Brown's deal was potentially illegal, the questionable propriety of Brown's deal was already before the jury. (Third Trial Tr., at 651-89, 901-02, 930-32). In fact, the jury knew that Wallace had challenged Brown's second guilty plea and that the challenge had been rejected by Judge John Bell himself. Id. at 684. Even with this evidence before it, however, the jury still credited Brown's testimony and convicted Wallace of all counts against him. No doubt, Judge Bell's testimony would have put added pressure on Brown's credibility. Nonetheless, this added pressure simply would not have been enough to alter the outcome of this trial.

Jon Stevens' testimony was even less material to Wallace's defense. In fact, if offered for the limited purpose of showing that Van Ostran had sent a letter to the newspaper, this testimony would have likely had no effect on the trial at all. Only if the letter was somehow used to bolster Van Ostran's credibility did it have the potential to help Wallace. But, even then, the testimony was of such marginal value that it would likely have had little, if any, effect on Wallace's trial.

Second, the trial court's decision to exclude the testimony of both men was hardly "arbitrary." Mills, 956 F.2d at 447. In fact, the testimony of both men was probably inadmissible under Pennsylvania law. Admission of Judge Bell's testimony was more likely to confuse the jury than to inform it. It ran the risk of diverting the jury from the issues in the case and creating a mini-trial on the legality of Brown's PCHA petition. Further, it ran the obvious risk of forcing a mistrial, because Judge Bell would have been forced to step down so that a new judge could preside over the proceedings. If the testimony at issue would have been clearly relevant and crucial to Wallace's defense, such drastic steps may have been necessary. In the present case, however, Judge Bell's testimony was "collateral" to the issues at hand. (Third Trial Tr., at 866). Thus, the trial court was correct in ruling the way that it did. Mills, 956 F.2d at 447.

The trial court was also correct when it rejected Stevens' testimony in Wallace's case-in-chief. As Wallace himself now admits, the only purpose to Stevens' testimony was to bolster the credibility of Ronald Van Ostran. Dkt. no. 20, at 94. It is unlikely, however, that Stevens' testimony would have been admissible. Under Pennsylvania law, a prior consistent statement is only admissible if it is alleged that the witness recently fabricated his testimony, and the prior statement was made before the time when the motive to fabricate arose. Commonwealth v. Gore, 396 A.2d 1302, 1307 (Pa. 1978); Commonwealth v. Gaddy, 362 A.2d 217, 223 (Pa. 1976); Keefer v. Byers, 159 A.2d 477 (Pa. 1960); Ribson v. Cottom, 127 A.2d 101, 105 (Pa. 1956); Craig v. Craig, 5 Rawle 91, 97-98 (Pa. 1835). Under these rules, if the Commonwealth had claimed that Van Ostran's story was a recent fabrication, then Wallace could have introduced Stevens' testimony to show that Van Ostran had earlier made the same allegations. But, no such allegations were ever raised. Accordingly, the trial court's ruling was correct and certainly not "arbitrary." Mills, 956 F.2d at 447. For these reasons, I recommend denying Wallace's claim under the compulsory process clause.

(c) Due Process Claim

Finally, I recommend denying his claim under the due process clause as well. As the Court of Appeals for the Third Circuit has held, "[t]here is apparently little, if any, difference" between the scope of the compulsory process and due process clauses in cases like the present one. Mills, 956 F.2d at 445 n. 4; see also Ritchie, 480 U.S. at 56 (stating that the compulsory process clause "provides no greater protections . . . than those afforded by due process . . .") (emphasis in original). In fact, in a similar case, the Court of Appeals analyzed a defendant's claim under the standards set forth under the compulsory process clause of the Sixth Amendment, not under the due process clause. Mills, 956 F.2d at 445. I have already concluded that Wallace cannot make out a compulsory process claim. That decision disposes of his due process claim as well.

(4) Conclusion

For the foregoing reasons, I recommend denying Wallace's claim for relief under the Sixth and Fourteenth Amendments. Likewise, I recommend denying him a certificate of appealability as well.

IV. SENTENCING-PHASE CLAIMS

With Wallace's guilt-phase claims put to rest, all that remains are his two claims for a new sentencing hearing. Technically, I do not need to address these claims at all. I have already recommended granting Wallace relief from his conviction for first-degree murder, the conviction upon which his death sentence depends. Nonetheless, because this decision is merely a recommendation to the district court, I include all of Wallace's claims here. As the below discussion indicates, I recommend that both of Wallace's sentencing-phase claims be denied.

A psychological report on Wallace prepared after the third trial indicated that he is borderline mentally retarded with an IQ of 75. (Psychological Report on William Wallace, Jr., 5/22/87). Nonetheless, Wallace did not raise a claim under Atkins v. Virginia, ___ U.S. ___, 122 S.Ct. 2242 (2002), so I will not address this issue here.

A. Jury Instruction on Mitigating Evidence

Wallace first alleges that his Eighth and Fourteenth Amendment rights were violated when the trial court provided ambiguous instructions, suggesting that the jury had to unanimously find any mitigating evidence. The Pennsylvania Supreme Court did not address the merits of this claim and, accordingly, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

(1) Factual Background

At the time of Wallace's trial, Pennsylvania law provided for the death penalty for a defendant convicted of first degree murder if certain requirements were met. 42 Pa. Cons. Stat. Ann. § 9711. First, at a separate sentencing hearing, the Commonwealth had the burden of proving beyond a reasonable doubt that at least one statutorily-defined aggravating factor accompanied the murder. Id. § 9711(c)(1)(iii). Second, at this hearing, the defendant could introduce, and the jury could consider, mitigating evidence. Id. § 9711(c)(1)(ii). Third, after all the evidence was in, the jury could impose the death penalty only if it found that the statutorily-defined aggravating circumstances proven by the government outweighed any mitigating circumstances presented by the defendant. Id. § 9711(c)(1)(iv). Finally, in cases where the jury found the existence of one or more aggravating circumstances but no mitigating circumstances, the death penalty was mandatory. Id.; see also Blystone v. Pennsylvania, 494 U.S. 299, 301 (1990).

In Wallace's case, he faced a possible death sentence only because he was convicted of first-degree murder in the death of Tina Spalla. His conviction in the death of Carl Luisi, Sr. was for second-degree murder and, under Pennsylvania law, the death sentence was not proper for second-degree murder convictions. 42 Pa. Cons. Stat. Ann. § 9711.

Wallace's sentencing hearing was hardly typical. The Commonwealth relied on one statutorily-defined aggravating circumstance: that the killing was done during the commission of a felony. (Third Trial Tr., at 998). "[T]he felony being the robbery," as the District Attorney explained. Id. Nevertheless, Wallace himself did not put up a fight for his life. "I don't intend to argue for my life in prison whatsoever," Wallace informed the trial court at a conference outside the presence of the jury. "I'm not guilty of anything. I don't want life in prison or the death penalty. I want [to be] acquitted." Id. at 999. Wallace specifically instructed his lawyer not to present any evidence or make any argument during the sentencing-phase of the trial. Id. at 992-93. As a general matter, defense counsel complied with this request. No mitigating, or any other evidence, was presented by Wallace during the sentencing hearing. Id. at 1008. And his counsel never gave either an opening or a closing statement. Id.

This does not mean that defense counsel sat mute. In fact, he specifically informed the court of the case he would like to present, if only given the chance.

Your Honor, if we were allowed and permitted by the defendant to argue in his behalf, we would present mitigating circumstances that the age that he was at the time of the commission of the crime was a young age, I believe the age of 25 years old, and also, that he does not have a prior history, significant prior history as far as criminal record is concerned. I believe his criminal record involves only one prior event as an adult. And those are the two things.

Id. at 998. And when it came time for Wallace to present his case during the sentencing hearing, defense counsel made a brief statement to the court. "I believe the Court is aware of certain mitigating circumstances which have already been made part of the record," defense counsel stated. "[A]nd we would ask that the Court take those into cognizance at this time and pass it onto the jury in its instructions." Id. at 1008.

At the close of this brief hearing, the trial court gave the jury the instructions that are at issue today.

The sentence will depend upon your findings concerning aggravating and mitigating circumstances. The Crimes Code provides that the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstances; or if the jury unanimously finds one or more aggravating circumstance which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
The Crimes Code defines aggravating and mitigating circumstances. For purposes of this case only the following matters, if proven beyond a reasonable doubt, can constitute an aggravating circumstance, and that's in this particular case that the defendant, William Wallace, committed a killing while in the perpetration of a felony, being the robbery[. F]or the purposes of this case the following matters, if proven by a preponderance of the evidence, can constitute mitigating circumstances: that the defendant has no significant history of prior criminal convictions, and the defendant, I believe, was 25 years of age at the time of the commission of the crimes. The Commonwealth has the burden of proving aggravating circumstances beyond a reasonable doubt, as I defined that term to you yesterday. The defendant has the burden of proving mitigating circumstances, but only by preponderance of the evidence.

* * * *

Remember again, that your verdict must be unanimous. It cannot be reached by a majority vote or by a percentage. It must be the verdict of each and every one of you. Remember that your verdict must be a death sentence if you unanimously find at least one aggravating circumstance and no mitigating circumstances; or if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances. In all other cases, your verdict must be a sentence of life imprisonment.

Id. at 1008-11. After deliberating for less than two hours, the jury returned a sentence of death. Id. at 1017. The jury found one aggravating circumstance — "robbery with intent to do bodily harm." Id. It then balanced this aggravating circumstance against mitigating circumstances that it apparently found, but did not expressly list, id., unanimously agreeing that death was the appropriate sentence. Id.; see also (Verdict Slip, 10/31/85, Appendix A).

Today, Wallace claims that the trial court's instructions violated the Eighth and Fourteenth Amendments of the Constitution. In particular, he alleges that these instructions made the jurors believe that they had to be unanimous in finding mitigating circumstances — a clear violation of the rule handed down in Mills v. Maryland, 486 U.S. 367 (1988).

(2) Exhaustion and Procedural Default

Wallace raised this identical claim during the PCRA proceedings in state court, (Second Amended PCRA Petition, ¶ 12; PCRA Appeal Brief, at 50-52), but the Pennsylvania Supreme Court deemed it waived because it was not raised on direct appeal. Wallace III, 724 A.2d at 921 n. 5. Because Wallace "fairly presented" his claim to the state courts, the claim is exhausted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. The remaining question, however, is whether the Pennsylvania Supreme Court's holding that Wallace waived the claim amounts to an independent and adequate state law ground barring federal review. I have already examined this question in detail, determining that the state law waiver rule was not an adequate bar at the time of Wallace's direct appeal. See supra III.D(2). At that time, the Pennsylvania Supreme Court applied a "relaxed waiver rule" in capital cases. Id. Accordingly, I will address the merits of Wallace's claim.

(3) Legal Analysis

Under the Eighth and Fourteenth Amendments to the Constitution, the jury in a death penalty case may not be precluded from considering and giving full effect to any mitigating evidence put forward by the defendant at trial. Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978); Skipper v. South Carolina, 476 U.S. 1 (1986). In Mills, the Supreme Court interpreted these precedents to establish a simple rule: all twelve jurors need not be unanimous on the finding of mitigating circumstances in a death penalty case. Mills, 486 U.S. at 384; McKoy v. North Carolina, 494 U.S. 433, 444 (1990). In fact, a death sentence must be vacated whenever the trial court's instructions create a "substantial possibility that reasonable jurors" may have thought that they were barred from considering a mitigating circumstance unless all twelve of them agreed on its existence. Mills, 486 U.S. at 384. Allowing a single "holdout" juror "to prevent the other jurors from considering mitigating evidence" violated the Eighth and Fourteenth Amendments. McKoy, 494 U.S. at 438.

The importance of the rule in Mills is obvious, particularly in state's like Pennsylvania where jurors are required to balance aggravating and mitigating circumstances before subjecting a defendant to a death sentence. The Supreme Court described the issue in Mills through a hypothetical.

All 12 jurors might agree that some mitigating circumstances were present, and even that those mitigating circumstances were significant enough to outweigh any aggravating circumstance found to exist. But unless all 12 could agree that the same mitigating circumstance was present, they would never be permitted to engage in the weighing process or any deliberation on the appropriateness of the death penalty.

Mills, 486 U.S. at 374. In such a case, death would be automatic, 42 Pa. Cons. Stat. Ann. § 9711(c)(1)(iv); Blystone, 494 U.S. at 301, even though twelve jurors believed that the defendant's life must be spared. "[I]t would certainly be the height of arbitrariness to allow or require the imposition of the death penalty" in just such a situation. Mills, 486 U.S. at 374.

In the years since its decision in Mills, the Supreme Court has refined the standard to be applied in cases like the present one, without altering the general rule. In Mills itself, the issue was whether the jury instructions created a "substantial possibility that reasonable jurors" may have applied the instruction in a way that barred the consideration of mitigating circumstance. Id. at 384. Today, however, the standard is slightly different. In Boyde v. California, 494 U.S. 370, 380 (1990), the Court held that the proper standard is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde, 494 U.S. at 380. While Mills focused on how a single juror might have reacted to the instruction, Frey v. Fulcomer, 132 F.3d 916, 921 (3d Cir. 1997), under Boyde the "focus should be on the reasonable likelihood that the entire jury applied the instruction in an improper manner." Id. (citing Boyde, 494 U.S. at 380).

The Court of Appeals for the Third Circuit has addressed the rule in Mills on a number of occasions. See, e.g., Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991); Frey, 132 F.3d at 916; Banks v. Horn, 271 F.3d 527 (3d Cir. 2001), rev'd on other grounds, Horn v. Banks, ___ U.S. ___, 122 S.Ct. 2147 (2002). For present purposes, the most important case is Frey v. Fulcomer. There, the trial court instructed the jury on mitigating circumstances in a way that was almost identical to the instruction at issue in Wallace's case. A brief side-by-side comparison of the two demonstrates the point.

132 F.3d at 922 132 F.3d at 923 132 F.3d at 922

Wallace Instruction Frey Instruction The sentence will depend upon your findings The sentence will depend upon your findings concerning aggravating and mitigating concerning aggravating and mitigating circumstances. The Crimes Code provides that circumstances. The Crimes Code provides that the verdict must be a sentence of death if the jury the verdict must be a sentence of death if the jury unanimously finds at least one aggravating unanimously finds at least one aggravating circumstance and no mitigating circumstances; or circumstance and no mitigating circumstance, or if the jury unanimously finds one or more if the jury unanimously aggravating circumstance which outweigh any finds one or more aggravating circumstances mitigating circumstances. The verdict must be a which outweigh any mitigating circumstances. sentence of life imprisonment in all other cases. The verdict must be a sentence of life (Third Trial Tr., at 1008). imprisonment in all other cases. Frey, . * * * * * * * * The Commonwealth has the burden of proving aggravating circumstances beyond a reasonable [T]he Commonwealth has the burden of proving doubt. . . . The defendant has the burden of aggravating circumstances beyond a reasonable proving mitigating circumstances, but only by doubt. . . . The defendant has the burden of preponderance of the evidence. proving mitigating circumstances but only by a (Third Trial Tr., at 1009). preponderance of the evidence. Frey, . * * * * * * * * Remember again, that your verdict must be unanimous. It cannot be reached by a majority Remember that your verdict must be a sentence vote or by a percentage. It must be the verdict of death if you unanimously find at least one of each and every one of you. Remember that aggravating circumstance and no mitigating your verdict must be a death sentence if you circumstances, or if you unanimously find one or unanimously find at least one aggravating more aggravating circumstances which outweigh circumstance and no mitigating circumstances; or any mitigating circumstances. In all other cases, if you unanimously find one or more aggravating your verdict must be a sentence of life circumstances which outweigh any mitigating imprisonment. circumstances. In all other cases, your verdict must be a sentence of life imprisonment. Frey, . (Third Trial Tr., at 1010-11).

The Frey Court ultimately held that the instruction at issue violated the principle of Mills. In reaching its decision, it gave three reasons. First, the jury charge itself "emphasize[d] the importance of a unanimous finding, using the phrase frequently and in close proximity to — within seven words of — the mitigating circumstances clause." Frey, 132 F.3d at 923. In particular, the Court believed that the phrase "if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance. . . ." was "one sound bite . . ." Id. And this "one sound bite" lingered in the minds and the ears of the jurors such that they would "believe that mitigating circumstances had to be found unanimously." Id.

Second, the trial court's instruction on the relevant burdens of proof only served to "increase the confusion rather than lessen it." Id. In instructing on the burden of proof, the trial court "did not stress that the different burdens that attach to aggravating and mitigating circumstances also entail different unanimity requirements." Id. at 924. Accordingly, "[a] lay jury might plausibly conclude . . . that aggravating and mitigating circumstances must be discussed and unanimously agreed to, as is typically the case when considering whether a burden of proof has been met." Id. Such an understanding, however, "is plainly inconsistent with the requirements of Mills[.]" Id.

Finally, changes in Pennsylvania law made after Frey's trial seemed to acknowledge the ambiguity in the instruction at issue. The verdict slip was changed in a way that made clear to the jury that it need not be unanimous with respect to mitigating circumstances. Pa.R.Crim.P. 358A (1989) (referring to the "mitigating circumstance(s) found by one or more of us (is) (are)."). Additionally, the instruction itself was changed to eliminate the ambiguity. The Pennsylvania Standard Criminal Jury

Pa.R.Crim.P. 358A has since been renumbered as Rule 807. While that Rule has been slightly amended, the substance of the section at issue has not changed. See Pa.R.Crim.P. 807.

Instruction, in fact, now recommends the instruction which follows:

When voting on general findings, you are to regard a particular aggravating circumstance as present only if you all agree that it is present. On the other hand, each of you is free to regard a particular mitigating circumstance as present despite what other jurors may believe.

Pa. Standard Crim. Jury Instruction 15.2502H(2). While these "well-meant efforts to remove ambiguity from the State's capital sentencing scheme" did not prove Frey's claim, they did raise "at least some concern" on the part of the state, "that juries could misunderstand the previous instructions as to unanimity and the consideration of mitigating evidence by individual jurors." Frey, 132 F.3d at 924 (quoting Mills, 486 U.S. at 382).

There can be little doubt that the instruction given in Wallace's case violates the Eighth and Fourteenth Amendments for just the same reasons as those given in Frey. When placed side-by-side, the two instructions are virtually a mirror image. Both contain the same ambiguous unanimity language. (Third Trial Tr., at 1008); Frey, 132 F.3d at 922. Both contain the same troublesome language on burden of proof. (Third Trial Tr., at 1009); Frey, 132 F.3d at 923. Both fail to mention that the different burdens of proof for aggravating and mitigating circumstances also contain different unanimity requirements. (Third Trial Tr., at 1009); Frey, 132 F.3d at 923. And the ambiguity in both instructions was subsequently removed by amendments to the Pennsylvania standard jury instructions. Pa. Standard Crim. Jury Instruction 15.2502H(2); Pa.R.Crim.P. 358A.

Wallace's instruction is even worse than the one in Frey for two reasons. First, the trial judge in Wallace's case stressed the need for unanimity in his instructions in a way that the judge in Frey's case did not. "Remember again," Wallace's trial judge instructed, "that your verdict must be unanimous. It cannot be reached by a majority vote or by a percentage. It must be the verdict of each and every one of you." (Third Trial Tr., at 1010). This statement, coming as it did just seconds before the unanimity instruction that the Third Circuit found so troubling in Frey, id. at 1010-11, must have made the jury think, quite logically, that it had to be unanimous on everything: aggravating circumstances; mitigating circumstances; and death.

Second, throughout the instruction, the trial court repeatedly used the word "you" to refer to the unanimous jury as an entity. At the opening of the penalty phase, for instance, the court instructed as follows:

Ladies and gentlemen of the jury, you have found the defendant, William Wallace, guilty of first degree murder of the death of Tina Spalla. And, as you know, your verdict was recorded last evening. We are now going to hold a sentencing hearing, during which counsel may present additional evidence and arguments, and then you will decide whether the defendant is to be sentenced to death or life imprisonment. Whether you sentence the defendant to death or life imprisonment will depend upon what, if any[,] aggravating or mitigating circumstances you find are present.

(Third Trial Tr., at 1001-02). This stress on "you" as the unanimous jury was repeated throughout the trial court's closing instructions. Id. at 1008, 1010. When these references were placed alongside the trial court's other instructions, the jury likely would have believed that it had to be unanimous on mitigating circumstances, just as it had to be unanimous on everything else.

Frey is not the only Third Circuit case, however, that has found the instruction at issue in violation of the Eighth and Fourteenth Amendments. In Banks, for instance, that Court analyzed a similar instruction and found it wanting. Banks, 271 F.3d at 547. Indeed, in that case, the Court even held that the Pennsylvania Supreme Court's decision upholding the very instruction at issue was "unreasonable." Id. at 551. I recognize that the Banks decision was reversed by the Supreme Court on other grounds, Banks, ___ U.S. at ___, 122 S.Ct. at 2148, but this reversal does not remove Banks' persuasive authority on the issue I now confront. There can be no mistake about it. The Third Circuit has spoken more than once on the substance of the issue now before me. The instruction given in Wallace's case violates the Constitution.

In Banks, the Third Circuit found it unnecessary to evaluate whether Mills applied retroactively under Teague because the Pennsylvania Supreme Court had not ruled on retroactivity. Banks, 271 F.3d at 541-543. The Supreme Court held that avoiding the Teague issue was error. Banks, ___ U.S. at ___, 122 S.Ct. at 2148. In Wallace's case, there is no Teague issue because Mills was decided in 1988, a full year before Wallace's conviction became final.

(4) Harmless Error Analysis

Despite the constitutional error that occurred in this case, Wallace is not entitled to sentencing relief because the error was harmless. In Calderon v. Coleman, 525 U.S. 141, 146-47 (1998), the United States Supreme Court held that the Brecht harmless error test applied to Boyde errors, like the one at issue in this case. Under Brecht, a writ of habeas corpus may issue only if the reviewing court finds that the constitutional error "`had a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776). In making its assessment, the court must consider the "impact of the error on the minds of the jurors in the total setting." Yohn, 76 F.3d at 523. It must weigh the impact of the evidence on the jury and must judge how the jury would reasonably perceive the case without the constitutional error. Hassine, 160 F.3d at 955. For the following reasons, I conclude that the Mills error at issue was harmless.

At first, it may seem like an error under Boyde, 494 U.S. at 380 (requiring a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."), satisfies the harmless error test under Brecht, 507 U.S. at 637 (requiring a "a substantial and injurious effect or influence" on the jury's verdict). But, the Supreme Court has held otherwise. "The Boyde analysis does not inquire into the actual effect of the error on the jury's verdict; it merely asks whether a constitutional error has occurred." Calderon, 525 U.S. at 147.

First, Wallace put on no defense during the sentencing hearing and, thus, gave the jury no reason to spare his life. Though he had a significant amount of mitigating evidence at his disposal, including testimony from friends and family members, he refused to introduce this testimony. Instead, he sat mute throughout the proceedings, permitting the Commonwealth to argue its case without opposition. Had Wallace put on a defense, the trial court's instruction might have had a more lasting effect on the jury's deliberations. The instruction might have led the jury to disregard mitigating evidence that called for mercy. But, in the present, Wallace put on no such defense. His failure to do so made the trial court's instruction on mitigating circumstances arguably insignificant and likely even irrelevant. The fear in Mills was that the jury would disregard relevant mitigating evidence simply because it felt it had to find that evidence by a unanimous vote. That fear does not extend to Wallace's case. A jury cannot disregard that which it has not been asked to regard in the first place.

Second, the jury in Wallace's case actually found mitigating circumstances, even after hearing the unconstitutional instruction on that issue. (Third Trial Tr., at 1017); (Verdict Slip, 10/31/85, Appendix A). While the jury did not list the mitigating circumstances that it found, only a brief review of the record demonstrates that there were likely two: Wallace's young age at the time of the crime; and his lack of a significant prior record. After all, the Commonwealth never disputed the existence of these mitigators. These were precisely the kinds of mitigating circumstances that are easily proven and likely to be undisputed. And the trial court's instruction on them, after no proof was even offered, gave them an air of reliability that made them seem like fact. (Third Trial Tr., at 1009). The jury clearly found them proven, considered them mitigating circumstances, and weighed them against the Commonwealth's aggravating circumstance. It's ultimate sentence suggests precisely that.

At the end of the day, then, Wallace has proven a constitutional error that had little effect on his ultimate death sentence. In the present case, the error at issue was harmless.

(5) Conclusion

For the foregoing reasons, I recommend that Wallace's claim for relief under the Eighth and Fourteenth Amendments be denied. However, because Wallace has made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), he is entitled to a certificate of appealability on this claim.

B. Jury's Reliance on Non-Statutory Aggravating Circumstance

Finally, Wallace claims that his death sentence was imposed in violation of the Eighth Amendment because the jury relied on a non-statutory aggravating circumstance. The Pennsylvania Supreme Court did not address the merits of this claim and, accordingly, my review is de novo. Appel, 250 F.3d at 210. For the following reasons, I recommend that Wallace's claim be denied.

This is Claim XII in Wallace's Amended Petition. (Amended Petition, dkt. no. 12, Claim XII, at 62).

(1) Factual Background

During the sentencing hearing, the Commonwealth relied on one statutorily-defined aggravating circumstance: that the killing took place during the commission of a felony. (Third Trial Tr., at 998). "[T]he felony being the robbery." Id. This issue was really a rehash of the guilt-phase of the trial where the jury had already convicted Wallace of "robbery with the intent to inflict serious bodily injury." Id. at 988. In fact, during his closing argument at the sentencing hearing, the District Attorney told the jury as much.

We are here to talk this morning about aggravating circumstances. We are suggesting to you that that decision has already been made also. You have made it. You have found the defendant guilty of robbery, a felony, and the law will be given to you by Judge Bell, that an aggravating circumstance is when one commits a killing while in the perpetration of a felony, in this case, we had two killings in the commission of a robbery. Robbery is a felony. So that you have already returned your verdict of first degree murder, so that tells us that the defendant did, in fact, kill someone. You have already returned your verdict of robbery, so that that killing took place during the perpetration of a felony. So that in accordance with the law, we already have the aggravating circumstance that makes this an appropriate case.

Id. at 1004-05.

After hearing this argument, the jury returned a sentence of death. Id. at 1017. On its verdict slip, it listed one aggravating circumstance — "robbery with intent to do bodily harm." Id.; see also (Verdict Slip, 10/31/85, Appendix A). Today, Wallace claims that this aggravating circumstance was not a permissible one under Pennsylvania law and, accordingly, he claims that his death sentence, resting as it did on a non-statutory aggravating factor, violated the Eighth Amendment.

(2) Exhaustion and Procedural Default

Wallace raised this exact claim during the PCRA proceeding in state court, (Second Amended PCRA Petition, ¶ XI; PCRA Appeal Brief, at 52-53), but the Pennsylvania Supreme Court deemed the claim waived because it was not raised on direct appeal. Wallace III, 724 A.2d at 921 n. 5. Because Wallace "fairly presented" his claim to the state courts during the PCRA proceedings, the claim is exhausted. Evans, 959 F.2d at 1231; McCandless, 172 F.3d at 261-62. All that remains is whether the claim is somehow procedurally defaulted. I have already examined that question in detail, determining that the state law waiver rule was not an adequate bar at the time of Wallace's direct appeal. See supra III.D(2). At that time, the Pennsylvania Supreme Court applied a "relaxed waiver rule" in capital cases. Id. For this reason, I can address the merits of Wallace's claim.

(3) Legal Analysis

In one respect, Wallace is certainly correct. Under the Eighth Amendment of the Constitution, a death sentence may not rest solely on a non-statutory aggravating circumstance. Barclay v. Florida, 463 U.S. 939, 966-67 (1983) (Stevens, J., concurring). Thus, if the jury in this case relied on such a circumstance, I would have little choice but to grant Wallace the relief he now seeks.

The problem with Wallace's claim, however, is not the law; it's the facts. There is simply no evidence that the jury here relied on a non-statutory aggravating factor. The aggravating factor at issue in this case was the following: that "[t]he defendant committed a killing while in the perpetration of a felony." 42 Pa. Cons. Stat. Ann. § 9711(d)(6). Had the jury merely parroted this language on the verdict slip, there would be no issue today. It did not. But, its failure was not because it ignored Pennsylvania law. It was because it tried too scrupulously to follow that law. Rather than list the word "felony" on the verdict slip, the jury listed exactly which felony it found proven, including all of its elements. (Third Trial Tr., at 1017); (Verdict Slip, 10/31/85, Appendix A) (listing "robbery with intent to do bodily harm" as the aggravating factor). I can hardly fault its precision.

After all, throughout the trial, the jury was told that robbery was the felony it had to find in order to sentence Wallace to death. The District Attorney said this during his closing argument. (Third Trial Tr., at 1005). And the trial court said it as well. Id. at 1009. In fact, during its instructions at the close of the guilt-phase of Wallace's trial, the trial court defined this felony as robbery with the intent to inflict serious bodily harm, id. at 944, 969-70, exactly the same way that Wallace's jury ultimately did when it listed its aggravating circumstance on the verdict slip. Id. at 1017; (Verdict Slip, 10/31/85, Appendix A).

Granted, in listing its aggravating circumstance on the verdict slip, the jury did not expressly state that it found that a killing occurred during the robbery, a basic requirement for the death penalty under Pennsylvania law. 42 Pa. Cons. Stat. Ann. § 9711(d)(6) (requiring that "[t]he defendant committed a killing while in the perpetration of a felony."). But, this failure does not transform the jury's aggravating circumstance into a non-statutory one, as Wallace now claims. The jury clearly found that Wallace had killed Tina Spalla during the commission of this robbery, as it convicted him of precisely that crime. (Third Trial Tr., at 988). Its listed aggravating circumstance does not detract from that earlier finding, nor does it contradict it. If anything, it incorporates it. The jury found exactly what it was required to find under Pennsylvania law: that Wallace killed Spalla while committing a felony. While it expressed this finding in different words than Wallace would have liked, there is no denying that the jury's finding complied with Pennsylvania law. Wallace's claim should be denied. I recommend denying him a certificate of appealability on this claim as well.

V. CONCLUSION

Justice Robert Jackson once wrote that habeas corpus petitions, like the one before me today, are "as a class, . . . peculiarly undeserving." Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring). For nearly a decade, I have handled hundreds of these petitions and can count on less than one hand those for which I have recommended relief. This is a rare case, a "needle," as Justice Jackson put it, "buried in a . . . haystack" of otherwise worthless petitions. Id. For the reasons already given, I recommend granting Wallace's petition to the extent that he seeks relief from his conviction for first-degree murder. The trial court failed to admit evidence that Henry Brown, the Commonwealth's star witness, confessed that he, and not Wallace, shot Tina Spalla. If admitted, this evidence could have altered the jury's verdict and spared Wallace's life. Unfortunately for Wallace, it was not. This failure violated the Sixth and Fourteenth Amendments to the Constitution. Because Wallace's death sentence hung on his first-degree murder conviction alone, my decision would grant him relief from that sentence as well. In all other respects, the petition should be denied.

RECOMMENDATION

AND NOW this 1st day of October 2002, upon consideration of petitioner's amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, dkt. no. 12, it is hereby RECOMMENDED that:

1. To the extent that petitioner seeks relief from his conviction for first-degree murder, his amended petition for habeas corpus relief, dkt. no. 12, is GRANTED;

2. To the extent that petitioner seeks relief from his remaining convictions, his amended petition for habeas corpus relief, dkt. no. 12, is DENIED;

3. The execution of the writ of habeas corpus is STAYED for 180 days from the date of this Order, during which time the Commonwealth of Pennsylvania may conduct a new trial in a manner consistent with this opinion;

4. After 180 days, should the Commonwealth of Pennsylvania not conduct a new trial, the writ shall issue and the Commonwealth shall release petitioner on his conviction for first-degree murder; on all other convictions, he shall remain imprisoned;

5. In accordance with 28 U.S.C. § 2253(c)(2) and W.D. Pa. Local R. 9.4(L), a certificate of appealability is GRANTED on claims III.A, III.B, III.F, and IV.A in the Report and Recommendation, and DENIED in all other respects;

6. If either party files an appeal to the United States Court of Appeals for the Third Circuit, this Order will be stayed pursuant to W.D. Pa. Local R. 9.4(L);

7. In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to timely file objections may constitute a waiver of any appellate rights;

8. The Clerk of Court shall mark this CASE CLOSED.


Summaries of

Wallace v. Price

United States District Court, W.D. Pennsylvania
Oct 1, 2002
Civil Action No. 99-231 (W.D. Pa. Oct. 1, 2002)
Case details for

Wallace v. Price

Case Details

Full title:WILLIAM WALLACE, JR, Petitioner, v. JAMES PRICE, Superintendent of the…

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

Date published: Oct 1, 2002

Citations

Civil Action No. 99-231 (W.D. Pa. Oct. 1, 2002)

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