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July 13, 1994

COMMER GLASS, Petitioner
DONALD T. VAUGHN, et al., Respondents

The opinion of the court was delivered by: WILLIAM H. YOHN, JR.

 Yohn, J.

 Petitioner, Commer Glass, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner asserts that he is entitled to habeas corpus relief because his trial counsel was constitutionally ineffective. The reason alleged for the ineffectiveness is that counsel failed to investigate and pursue a defense that petitioner's post-traumatic stress disorder ("PTSD") negated his ability to form the requisite criminal intent for the charge of murder in the first degree of which he was convicted.

 After receiving an initial report and recommendation, the court ordered the magistrate judge to whom this matter was referred to conduct an evidentiary hearing on whether petitioner's trial counsel was constitutionally ineffective and, if so, whether this ineffectiveness was a miscarriage of justice. The magistrate judge held the evidentiary hearing and issued a report and recommendation which concluded that petitioner's trial counsel rendered constitutionally ineffective assistance and that petitioner suffered a fundamental miscarriage of justice therefrom. As a result of this conclusion, the magistrate judge recommended that the petition for habeas corpus be granted.

 The respondents filed objections to the report and recommendation requesting that the court reject the report and recommendation and deny the petition. An evidentiary hearing was held by the court on February 18, 1994 in order to aid the court in its review of the report and recommendation. At that hearing, the court heard petitioner's testimony. The parties considered the possibility of additional psychiatric testing by Dr. Sadoff and requested that the court delay its decision pending an agreement concerning the terms and conditions of such testing. Subsequently the parties advised the court that they could not agree on those terms and conditions and that the court should proceed with its disposition of the petition.


 This matter was referred to the magistrate judge for a report and recommendation pursuant to Rule 7(I)(e) of the Local Rules of Civil Procedure and 28 U.S.C. § 636(b)(1)(B). When a district court reviews rulings of a magistrate judge made pursuant to 28 U.S.C. § 636(b)(1)(B), it conducts a de novo review of the proposed findings and recommendations of the magistrate judge. Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir. 1992); 28 U.S.C. § 636(b)(1)(C); L.R.Civ.P. 7(IV)(b). When conducting its review, the court may accept, reject or modify, in whole or in part, the findings and recommendations of the magistrate judge. Id. The district court can also receive further evidence or recall witnesses if it deems it necessary. Id.


 The respondents do not object to the majority of the findings of fact in the report and recommendation. Instead, they object to the inferences that the magistrate judge drew from these findings. Based on the complete record before the court, it hereby makes the following findings of fact:

 On November 30, 1976, a jury in the Court of Common Pleas, Philadelphia County found petitioner guilty of murder in the first degree for the stabbing death of Billie Ann Morris. (Pl.'s Ex. 1 at 403). Petitioner was sentenced to life imprisonment. (Id., 4/7/77 Tr. at 26).

 On the night the victim was killed, petitioner was arrested and charged with her murder. (Tr. 5/26/93 at 59). Petitioner denied killing Ms. Morris in a statement given to the police the morning after his arrest. Petitioner stated to the police that he went to Deborah Young's apartment in search of marijuana and unexpectedly saw the victim. *fn1" (Pl.'s Ex. 13; Tr. 5/26/93 at 115). Petitioner further stated to the police that he agreed to go to the victim's apartment to get some drugs and that each was going to take their own car. (Id.). Petitioner told

 the police that he drove to the victim's apartment but that she failed to appear. Petitioner stated that he then returned approximately twelve minutes later to where he had last seen the victim and found her stabbed and bleeding. (Id.). Petitioner picked up the victim and took her to the hospital. (Id.).

 After a preliminary hearing, the charges against petitioner were dismissed. (Tr. 5/26/93 at 60). However, petitioner was re-arrested. (Id.). Petitioner's wife, Phyllis Glass, *fn2" retained Barry Denker, Esquire for petitioner's bail hearing. (860 F. Supp. at 204-07). When Phyllis Glass initially met with Denker, they failed to talk about petitioner's case. ( Id. at 204). Instead, Denker advised Phyllis Glass where she could sell her valuables in order to pay his fee. (Id.). Phyllis Glass never spoke to Denker again. ( Id. at 205).

 Denker represented petitioner at the second preliminary hearing on May 26, 1976 and May 27, 1976. During the preliminary hearing, petitioner told Denker that he should speak with his wife and Stephanie Hill in order to find out about the type of person he was. (Id. at 62). Denker never attempted to interview these two people.

 The victim's sister, Evelyn Jones, testified at the second preliminary hearing that she was involved in a physical relationship with petitioner in Philadelphia during 1969 or 1970. (Pl.'s Ex. 1, Tr. 5/27/76 at A-37). In response to this testimony, petitioner informed Denker that he was "in the service" at that time. (Tr. 5/26/93 at 128; Tr. 2/18/94 at 14). Even though petitioner informed Denker that he was in the service, he did not tell Denker that he served in Vietnam or about his combat experiences there because he was not proud of these experiences and he was not asked. (Id. at 129).

 Petitioner saw significant combat duty in Vietnam. During combat, he saw many soldiers, including some close friends, in his outfit killed. There are two experiences which. continue to stand out in petitioner's mind. One experience involved petitioner's shooting a grenade into an area where he had seen movement after a close friend was killed in a firefight. Upon investigation of the area where he had shot, petitioner learned he had killed a woman and some children. (Tr. 5/26/93 at 31-33). The other experience involved petitioner and some other soldiers being approached by some Vietnamese women while on a patrol to setup an outpost. After having a sexual encounter with one of the Vietnamese women, petitioner thought he saw another woman make a threatening gesture toward another soldier. Reacting instinctively, petitioner killed the woman. (Id. at 30).

 Following the second preliminary hearing, petitioner was released from prison on bail. Petitioner proceeded to pay Denker directly for his services on a weekly basis. (Tr. 5/26/93 at 61-62, 205). The weekly payments usually involved a brief meeting with Denker during which time Denker would advise petitioner not to worry and that everything was "all right." (Id. at 137, 139). *fn3" In total, petitioner estimates he paid Denker between $ 4,000 and $ 5,000 for his services. (Tr. 2/18/94 at 17).

 Before and during trial, petitioner provided Denker with a version of his movements on the night of the murder consistent with his previous police statement. (Tr. 5/26/93 at 115; Tr. 2/18/94 at 11-12). Petitioner never told Denker a different story in spite of the fact he believed it may have been possible he committed the murder. (Tr. 5/26/93 at 123). Petitioner also never told Denker of his episodes of bizarre behavior, including blacking-out, after returning home from Vietnam. (Id. at 117; Tr. 2/18/94 at 14). Moreover, none of petitioner's relatives or friends ever attempted to contact Denker in order to provide him with any information that may have been relevant to some form of psychiatric defense. In essence, no person volunteered any information to Denker and Denker never sought any information that would have alerted him to the possibility of a psychiatric defense.

 Denker's investigation into petitioner's case was limited to the events of the day that the murder occurred. (Tr. 2/18/94 at 14). The investigation consisted of speaking with petitioner about the crime on no more than three occasions and driving petitioner along the route described in his police statement. (Tr. 5/26/93 at 137, 139). There are a number of things that Denker failed to do prior to trial. These included: (1) failing to discuss trial strategy with petitioner (Id. at 62); (2) failing to discuss the possible defenses from which petitioner could choose (Tr. 2/18/94 at 16); (3) failing to discuss the various degrees of murder that existed at that time and the possible penalties petitioner could face if convicted of each degree of murder (Id.); (4) failing to discuss or investigate petitioner's relationship with the victim (Tr. 5/26/93 at 62); (5) failing to discuss or investigate petitioner's personal background, including his military experiences (Id. at 62); (6) failing to speak with petitioner's wife, Stephanie Hill or Calvin Pompei about petitioner's behavior, even though petitioner asked Denker to speak with these three people (Id. at 62-63); (7) failing to speak with or investigate petitioner's behavior with other friends such as John Turner, James Curry and Janice Walker even though all three were available to testify and would have done so if asked (Id. at 141-178); and (8) failing to investigate petitioner's mental status despite the fact that the victim's diary, which was read at the second preliminary hearing, included a passage that petitioner "is losing his mind and it scares me to death." (Pl.'s Ex. 1, Tr. 5/27/76 at A-33).

 The case proceeded to trial with Denker representing petitioner. When Denker reported to the trial court on November 18, 1976 he stated that because of another trial he was not prepared to start and that he had not looked at this case. (Pl.'s Ex. 1. Tr. 11/18/76 at 3-5).

 Petitioner's trial began five days later on November 23, 1976. At trial, the prosecution presented thirteen witnesses. Among the testimony heard was that of the three women who were in the house with the victim prior to her death. These three women testified that they received a phone call alerting them to the stabbing a few minutes after the victim and petitioner left the apartment. When the women investigated outside, they discovered the victim's car keys and a pool of blood. (Pl.'s Ex. 1 at 119, 155). Two residents across the street from the stabbing testified that after hearing a scream, they went to their window and saw a man place or help a woman into a car which matched the description of the car petitioner was driving. (Id. at 215, 222). Finally, a nurse at Germantown Hospital testified that a black male brought the victim into the hospital. This man responded to all of her questions about the incident by saying "I don't know." (Id. at 182-83).

 The defense offered no witnesses at trial. Petitioner states that Denker told him not to testify. (Tr. 5/26/93 at 66). Instead, Denker presented an argument that was consistent with petitioner's police statement. Denker's argument was that when the victim was killed, petitioner was at her house waiting for her and upon his return, he found the victim with a stab wound. (Pl.'s Ex. 1, Tr. 11/29/76 at 325-342). The jury obviously did not agree with Denker's argument since it found the defendant guilty of murder in the first degree.

 After being found guilty, petitioner brought numerous appeals and challenges, including the present petition for habeas corpus. *fn4" Petitioner's trial attorney, Barry Denker, was not involved in any of these appeals. Some years after representing petitioner, Denker was convicted of federal criminal offenses and placed in the witness protection program. Petitioner's counsel was unable to secure Denker's testimony for this habeas corpus proceeding. However, petitioner was able to locate some files kept by Denker regarding petitioner's case. The court does not attach any significance to these files since it cannot be sure that these files represent the entirety of Denker's work product in regard to petitioner's case.

 Since being found guilty, petitioner has been diagnosed as suffering from PTSD. This diagnosis was initially made by Doctor Van Wye at Graterford prison in 1979 or 1980. (Tr. 5/26/93 at 64). Since 1980, petitioner has been considered thirty percent disabled by the Veteran's Administration due to his PTSD from his Vietnam service. (Id. at 65). In petitioner's present habeas corpus petition, he asserts that Denker was constitutionally ineffective because he failed to investigate and pursue a defense that the requisite intent for murder in the first degree was lacking because of his PTSD.

 PTSD is the name given for a pattern of symptoms which affect people who have suffered a life-threatening traumatic event that is outside the normal range of human experience. (Tr. 6/7/93 at 82; Tr. 6/14/93 at 25; Tr. 6/16/93 at 21; Tr. 6/17/93 at 9-10). The symptoms of PTSD can vary from mild to severe and include intrusive recall through either daydreams, nightmares or physiological arousal (Tr. 6/14/93 at 26-27; Tr. 6/16/93 at 25.; Tr. 6/17/93 at 10), avoidance reactions like emotional numbing (Tr. 6/14/93 at 27; Tr. 6/16/93 at 24-25; Tr. 6/17/93 at 10), hyperarousal, unusual startle responses, sleep disturbances (Tr. 6/14/93 at 30-31; Tr. 6/16/93 at 23), excessive sweating, rage reactions, violence, anxiety, depression and irritability (Tr. 6/7/93 at 82; Tr. 6/16/93 at 24; Tr. 6/17/93 at 10). Flashbacks, blackouts or dissociative states can impair a person's ability to deliberate or premeditate because a person in one of these states is acting with no conscious awareness of what he or she is doing. (Tr. 6/7/93 at 98-99; Tr. 6/14/93 at 27, 49-50; Tr. 6/16/93 at 27-28, 40-42, 62-64, 85; Tr. 6/17/93 at 14-20, 39-40).

 Four medical witnesses testified at the evidentiary hearing before the magistrate judge on the present habeas corpus petition. Three experts were called by petitioner (Drs. Williams, Winter and Bjornson) and one was called by the respondents (Dr. Sadoff). Of these four experts, Drs. Bjornson and Sadoff were practicing mental health professionals in the Philadelphia area in 1976 who would have been available to assist and testify for the defense if Denker had chosen to pursue this strategy. All four experts agreed that sufficient information existed in psychiatric, mental health literature about what is now called PTSD *fn5" and that a mental health professional could have diagnosed and testified about PTSD at the time of trial. (Tr. 6/7/93 at 80-83; Tr. 6/14/93 at 37; Tr. 6/16/93 at 30-33; Tr. 6/17/93 at 38-39).

 The respondents' expert, Dr. Sadoff, does not directly contradict the conclusion reached by petitioner's experts. In fact, he concedes that petitioner may have lacked the specific intent to commit murder in the first degree. (Tr. 6/17/93 at 39-40). Dr. Sadoff stated that he could not render a professional opinion on petitioner's ability to deliberate and premeditate at the time of the murder without further testing. (Tr. 23-24). This testing would include conducting a polygraph exam to measure petitioner's truthfulness about not remembering the murder and if he passed this test, conducting a sodium amytal interview to try to recapture the memory lost at the time of the murder. (Id.). This testing was never done since the parties could not agree upon the terms for performing this testing.

 Phyllis Glass, petitioner's wife, testified at the evidentiary hearing before the magistrate judge. Ms. Glass testified about the bizarre behavior exhibited by petitioner prior to the murder. This behavior included spending a large amount of time in the basement of their house. Ms. Glass described the basement as a dark and dreary place with a painted window. Petitioner would go down to the basement with his dogs so that he could spend time with his snakes, pigs, white mice, a frog and various other animals. Ms. Glass testified that she would attempt to locate petitioner in the basement but was never successful because he would be hiding. (Tr. 5/26/93 at 192-193.)

 Ms. Glass also testified about other bizarre behavior exhibited by petitioner. He claimed to have no memory of some of this. This behavior included petitioner's swinging a packing hook into a table and sticking her head in the oven. Petitioner's behavior also included nightmares which at times were "vicious"; his inability to sleep; running up and down the stairs and around the house until he became calm; jumping out of the bed after hearing a car backfire; and looking closely at her face to confirm it was Ms. Glass. Moreover, Ms. Glass testified that petitioner had crying spells and suffered strange reactions to rain. (Tr. 5/26/93 at 193-197.) Ms. Glass further testified that she had asked petitioner to ...

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