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MCNEIL v. CUYLER

December 20, 1983

ROBERT A. McNEIL
v.
JULIUS T. CUYLER, et al.



The opinion of the court was delivered by: FULLAM

 FULLAM, J.

 Robert A. McNeil, a state prisoner, has brought this action for habeas corpus relief. On June 28, 1974, petitioner was convicted, in the Court of Common Pleas of Chester County, Pennsylvania, of first-degree murder, aggravated assault and battery, carrying a firearm without a license, *fn1" and carrying a concealed deadly weapon. He was sentenced to life imprisonment, and his post-trial motions were denied. Up to that point, petitioner had been represented by privately retained counsel.

 Petitioner then filed a direct appeal to the Pennsylvania Supreme Court, with the aid of the Public Defender's Office. The Pennsylvania Supreme Court held, inter alia, that petitioner's claims of errors in the trial court's charge to the jury could not be considered, because trial counsel had not preserved those issues for review, inasmuch as he failed to object to the charge. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). However, the case was remanded for further proceedings to address petitioner's claims of ineffectiveness of counsel. Represented by still other counsel, petitioner sought relief under the Post-Conviction Hearing Act, 19 P.S. ┬ž 1180-1 et seq. ("PCHA"), asserting the ineffectiveness of trial counsel. The PCHA court determined that all claims of ineffectiveness had been waived, because those issues had not been raised on direct appeal, and petitioner failed to allege ineffectiveness on the part of his appellate counsel. This ruling was affirmed by the Pennsylvania Supreme Court. Commonwealth v. McNeil, 479 Pa. 382, 388 A.2d 707 (1978).

 Petitioner then filed a second PCHA petition, alleging ineffectiveness of trial counsel, counsel on direct appeal, and the first PCHA counsel. The PCHA court again denied relief. On appeal to the Pennsylvania Supreme Court, that court considered the merits of the ineffectiveness claims, and affirmed the denial of relief, two judges dissenting. Commonwealth v. McNeil, 497 Pa. 187, 439 A.2d 664 (1981). Petitioner then filed the present petition for habeas corpus.

 The United States Magistrate, to whom the case was referred for Report and Recommendation, suggests that the petition should be dismissed for failure to exhaust state remedies. For several reasons, I am constrained to disagree.

 It is clear that the principal thrust of the petition is the alleged ineffectiveness of petitioner's state court counsel. The ineffectiveness, all of which unquestionably have been presented to, and rejected by, the Pennsylvania Supreme Court. The petition also contains an eleventh charge, dealing with the admission in evidence of allegedly inflammatory photographs of the murder victim. There is an ambiguity as to whether the claim is that trial counsel's failure to preclude such evidence is an additional basis for deeming petitioner's trial representation ineffective, or that the admission of this evidence is an independent ground for overturning the conviction. The magistrate views it as a separate and independent ground for relief, but the petitioner appears to view it as simply another instance of his counsel's ineffectiveness. Under either view, however, I do not believe the presence of this claim renders this a case which, because of the presence of both exhausted and unexhausted claims, is subject to dismissal under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).

  In the first place, all that is required is that the petitioner "fairly presented" the claim or its substantial equivalent to the state court. Picard v. Connor, 404 U.S. 270, 277, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Anderson v. Harless, 459 U.S. 4, 103 S. Ct. 276, 74 L. Ed. 2d 3 (1982). In petitioner's first amended PCHA petition, he averred that his trial counsel was ineffective "as evidenced by the fact that: . . . counsel did fail to object to the introduction of photographic evidence offered by the Commonwealth . . . ."; and, in an addendum brief submitted to the Supreme Court of Pennsylvania in connection with the second PCHA petition, petitioner asserted "that the court errored [sic] in admitting the photographs into evidence" and that "trial counsel was ineffective for his failure to pursue the issue." The fact that the Pennsylvania Supreme Court did not specifically discuss this precise issue in its opinion is of no moment.

 Moreover, petitioner is required only to exhaust his available state remedies. It is very clear that, even if it should be determined that the petitioner did not adequately raise this issue before the state courts, he would now be deemed to have waived the issue.

 In the present case, it is unnecessary to dwell upon the question whether the waiver principle precludes this court from considering the merits of the claim relating to the photographic evidence, because, however interpreted, the claim is totally lacking in merit. All that needs to be decided is whether the inclusion of this claim in the petition requires dismissal for failure to exhaust available state remedies; I am satisfied that it does not.

 There is no conceivable basis for concluding that the trial court's discretionary ruling on the admission of photographic evidence, upheld on appeal, was a violation of petitioner's constitutional rights. And, on the issue of alleged ineffectiveness of trial counsel, it suffices to note that trial counsel succeeded in having several photographs of the victim excluded. The performance of counsel is not rendered constitutionally ineffective by failure to obtain a favorable ruling on every objection.

 I turn now to the 10 remaining points, all of which were specifically addressed by the Pennsylvania Supreme Court. The first eight issues relate to the performance of trial counsel. Of these, several can be disposed of readily, without extended discussion.

 The claim that trial counsel failed to consult with the petitioner adequately in advance of trial is foreclosed by state court findings to the contrary; needless to say, this court is bound by adequately supported findings of fact by the state courts, rendered after petitioner was afforded an adequate opportunity to develop the record. For essentially the same reason, petitioner's claims that trial counsel failed to pursue plea-bargaining or to advise him of the possibility of a favorable plea agreement, and the claim that petitioner was not advised that he could not be compelled to testify, cannot now be considered, in the face of post-trial testimony by petitioner's counsel, accepted as correct by the state courts, that the district attorney was unwilling to consider a plea agreement, and that petitioner was accurately informed of his right to testify or not.

 Petitioner next claims that his counsel was incompetent because, in the course of petitioner's direct examination at trial his counsel elicited testimony concerning petitioner's prior convictions, whereas a reasonably competent lawyer should have realized that the fact of these earlier convictions could not ...


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