(11) ineffective assistance of counsel for failure to object to the trial court's omission of a charge on a potential verdict of third degree murder based upon voluntary intoxication; and
(12) ineffective assistance of counsel for failure to object to the trial court's instruction on aggravating and mitigating circumstances, and imposition of the death penalty.
In his amended petition for a writ of habeas corpus, petitioner sets forth the following grounds as cause for issuance of the writ:
(13) ineffective assistance of counsel for failure to request jury instructions on available mitigating circumstances, extreme mental or emotional disturbance (42 Pa. Cons. Stat. Ann. § 9711(e)(2), and duress § 9711(e)(5);
(14) ineffective assistance of counsel for failure to object to the trial court's instruction on duress as a mitigating factor, which erroneously applied the same standard for duress as that required for a complete defense to the crime;
(15) ineffective assistance of counsel for failure to object to the erroneous instruction in answer to the question from the jury (see Issue (5), above);
(16) ineffective assistance of counsel for failure to call for testimony at trial an eyewitness who would have corroborated petitioner's version of events;
(17) ineffective assistance of counsel for failure to object to a statement that petitioner was deserving of the death penalty because he "had his chance," having previously been released on parole after a conviction for third degree murder;
(18) the trial court's instructions failed to allow the jury to consider all of the relevant mitigating factors;
(19) the testimony of a parole officer during the sentencing phase improperly directed the jury's attention toward the possibility of parole;
(20) ineffective assistance of counsel for failure to argue available mitigating factors to the jury;
(21) ineffective assistance of counsel for failure to object to improper voir dire questions by the Commonwealth concerning prospective jurors' attitudes toward the death penalty;
(22) ineffective assistance of counsel for failure to challenge the Commonwealth's exercise of peremptory challenges
during jury selection (should investigation reveal improper challenges);
(23) ineffective assistance of counsel for failure to argue to the jury that Taylor's prior assault on petitioner constituted a mitigating circumstance;
(24) ineffective assistance of counsel for failure to present evidence, to argue to the jury, and to request a jury instruction regarding mitigating factors recognized in Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).
Petitioner also contends that "certain official documents including the trial transcript are incorrect and unreliable and do not accurately reflect the proceedings in the trial court." Amended Petition for Writ of Habeas Corpus at 8-9 P 3.
I. PRELIMINARY MATTERS
A. Issues Raised by Briefs
In its response to the petition for a writ of habeas corpus, the Commonwealth points out that a number of the issues raised by petitioner via his amended petition for a writ of habeas corpus were not presented in either petitioner's direct appeal or his appeal of the PCRA decision. Response at 4-5 P 7(a), (d), (e), (g), (i), (j), (k), and (l). The response later states: "With regard to petitioner's amended motion, Paragraph 5, those grounds that may be procedurally defaulted are noted previously." Response at 5 P 10 (emphasis added). In its memorandum, however, the Commonwealth discusses these issues in the context of exhaustion of remedies in the state courts. See Memorandum of Law at 1-2.
In his reply brief, petitioner argues that no issues have been procedurally defaulted or, alternatively, that any issues which have been procedurally defaulted should be excused for "cause and prejudice."
These arguments confuse the concepts of exhaustion and procedural default. In fact, there are three ways in which a person in state custody may waive the right to present federal constitutional issues via a petition for a writ of habeas corpus pursuant to § 2254. The facts and procedural posture of the instant case present a problem of exhaustion, not procedural default or the doctrine of abuse of the writ, the third form of bar to presentation of an issue through a petition under § 2254.
B. Petition for a Writ of Habeas Corpus Generally
The authority for and limitations upon issuance of a writ of habeas corpus such as that sought by petitioner are set forth in 28 U.S.C. § 2254.
A district court may entertain a petition for a writ of habeas corpus filed by a person in state custody "only on the ground that he [or she] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Habeas corpus relief may be considered only upon a showing by the petitioner that he or she has exhausted the remedies available in the state courts. 28 U.S.C. § 2254(b). Determinations made by a state court after a hearing on issues of fact are presumed to be correct, with specified exceptions. 28 U.S.C. § 2254(d). The district court may, however, direct expansion of the record with evidence relevant to the court's determination of the merits of the petition. Rule 7 of the Rules Governing § 2254 Cases in the United States District Courts, 28 U.S.C. following § 2254.
The requirement of exhaustion means that a state prisoner may initiate a federal habeas corpus action only after the state courts have had an opportunity to hear the claim the petitioner seeks to vindicate in federal court. Vasquez v. Hillery, 474 U.S. 254, 257, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986). The exhaustion doctrine requires the defendant to present the issue to any intermediate state appellate court, if applicable, and to the state's supreme court. Evans v. Court of Common Pleas of Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992)(citing Castille v. Peoples, 489 U.S. 346, 103 L. Ed. 2d 380, 109 S. Ct. 1056, reh'g denied, 490 U.S. 1076, 104 L. Ed. 2d 654, 109 S. Ct. 2091 (1989)), cert. dismissed, 122 L. Ed. 2d 498 (1993). The issue must be "fairly presented" to the state courts, meaning that "both the legal theory and the facts underpinning the federal claim must have been presented to the state courts, ... and the same method of legal analysis must be available to the state court as will be employed in the federal court..." Evans, 959 F.2d at 1231 (citing Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied, 459 U.S. 1115, 74 L. Ed. 2d 968, 103 S. Ct. 750 (1983); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)).
The provision of § 2254 relating to fair presentation of issues to the state courts reads:
An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he [or she] has the right under the law of the State to raise, by any available procedure, the question presented.
28 U.S.C. § 2254(c). A claim is not exhausted, then, until it has been presented to the highest court of the state either on direct appeal or by collateral review, if the latter is available under state law, although presentation of the claim on direct appeal obviates the need to present the issue on collateral review. Castille, 489 U.S. at 349-350.
See also Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 656-657, 111 S. Ct. 2546 ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims."; citations omitted), reh'g denied, 501 U.S. 1277, 115 L. Ed. 2d 1109, 112 S. Ct. 27 (1991).
The exhaustion doctrine is based upon notions of comity, and is not jurisdictional in nature. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994) (citing Rose v. Lundy, 455 U.S. 509, 515, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982)). Nevertheless, the exhaustion requirement is more than a mere formality: "It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights." Mayberry v. Petsock, 821 F.2d 179, 183 (3d Cir.)(citing Picard, supra), cert. denied, 484 U.S. 946, 98 L. Ed. 2d 362, 108 S. Ct. 336 (1987). "The requirement should be strictly adhered to because it expresses respect for our dual judicial system." Wise v. Fulcomer, 958 F.2d 30, 33 (3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir.), cert. denied, 498 U.S. 811, 112 L. Ed. 2d 23, 111 S. Ct. 46 (1990); also citing Rose, supra).
There are, however, certain instances in which a petitioner's failure to exhaust state remedies may be excused. The Third Circuit has not required exhaustion in instances when "the state corrective process is so deficient as to render any effort to obtain relief futile," when "the activities of the state authorities made the prisoner's resort to the state procedures in effect unavailable," and when "inordinate delay in state procedures ... render[s] state process ineffective." Wise, 958 F.2d at 33 n. 6 (quoting, respectively, Gibson, 805 F.2d at 138; Mayberry, 821 F.2d at 184; Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir. 1991)). Nonetheless, neither the Supreme Court nor the Third Circuit has held that the "cause and prejudice" standard applies to a failure to exhaust state remedies.
D. Procedural Default
Procedural default also is based upon notions of comity, both the authority of the state courts to resolve federal constitutional issues as well as a respect for the state courts' procedural rules. The concept of procedural default implicates the independent and adequate state ground doctrine. A lengthy discussion of procedural default is set forth in Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546, reh'g denied, 501 U.S. 1277, 115 L. Ed. 2d 1109, 112 S. Ct. 27 (1991).
Coleman involved a petition for a writ of habeas corpus filed by a defendant convicted of rape and murder, and sentenced to death. 115 L. Ed. 2d at 654. Coleman's conviction was affirmed by the Virginia Supreme Court, after which he filed a petition for a writ of habeas corpus in the lower state court, which denied the writ. Id. Coleman's appeal of the denial of habeas relief was dismissed as untimely by the Virginia Supreme Court. 115 L. Ed. 2d at 654-655. The Supreme Court of the United States denied certiorari for both the direct appeal and the appeal of the denial of habeas relief. Id.
Coleman then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Virginia which included four federal constitutional claims which had been raised on direct appeal and seven federal constitutional claims raised for the first time in the state habeas proceeding. 115 L. Ed. 2d at 655. Despite holding that the latter seven claims had been procedurally defaulted, the District Court addressed all eleven claims. Id. The Court of Appeals for the Fourth Circuit affirmed, also holding that Coleman procedurally defaulted all of the claims presented for the first time in the state habeas proceeding. Id. The United States Supreme Court also affirmed. Id.
The Supreme Court's opinion begins with a review of the independent and adequate state ground doctrine, under which a federal court will not review a question of federal law decided by a state court if the decision of the state court is based upon a state law ground that is independent of the federal question and adequate to support the judgment. Id. (citations omitted). The independent and adequate state ground doctrine applies whether the state ground is substantive or procedural, id. (citations omitted), and applies to petitions for writs of habeas corpus filed with federal courts. 115 L. Ed. 2d at 656. However, before a federal court will refuse to review the federal question, there must be a clear and express statement by the state court that its decision is based upon state law; the independent and adequate state ground doctrine does not apply when the state court's opinion is ambiguous as to the ground relied upon for its decision, as there is a conclusive presumption that the state court relied upon the federal question. 115 L. Ed. 2d at 657-659 (citing Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983); Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985); Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989)).
After a review of the development of the procedural default doctrine and the policies which underlie the doctrine, the Court stated:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. ... We now recognize the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them. ...
115 L. Ed. 2d at 669 (citation omitted).
Coleman argued, however, that the failure of his attorney to file an appeal of the state habeas petition constituted cause sufficient to excuse his default. 115 L. Ed. 2d at 670. While recognizing that performance of counsel which fails to meet the standard for effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984), may provide cause to excuse default, the Supreme Court noted that Coleman's default occurred in state collateral proceedings to which the right to counsel does not attach; since there is no right to counsel in such proceedings, ineffective assistance of counsel is not cause to excuse procedural default. 115 L. Ed. 2d at 670-671 (citing Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Murray v. Giarratano, 492 U.S. 1, 106 L. Ed. 2d 1, 109 S. Ct. 2765 (1989); Wainwright v. Torna, 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982)).
Moreover, the cause proffered by a petitioner to excuse default must be something external to the petitioner, and not something attributable to the petitioner. 115 L. Ed. 2d at 671 (citing Carrier, supra). Examples of cause may be the unavailability of the factual or legal basis for a claim, or interference by officials which makes compliance impracticable. Id. Principles of agency law do not operate so as to permit attorney inadvertence to constitute cause to excuse default, since the same principles operate so as to attribute the inadvertence to the petitioner, and the petitioner bears the burden of the failure to follow procedural rules because of the state interests discussed above. 115 L. Ed. 2d at 671-672 (citations omitted).
Finally, Coleman argued that he had a right to counsel in presenting his claims of ineffective assistance of counsel during trial, sentencing, and on appeal to the state habeas court because that was his first appeal as of right on these issues. 115 L. Ed. 2d at 672. Under Virginia law then in effect, Coleman was permitted to present claims of ineffective assistance of counsel only in the collateral, state habeas proceedings. Id. (citations omitted). The Supreme Court held that, even if this was the case, Coleman's first appeal of these issues was in the state habeas court itself, and that there was no right to counsel for further appeals of that court's determinations. 115 L. Ed. 2d at 673. The default occurred during the appeal of that determination, at a time when there was no constitutional right to counsel, and ineffective assistance of counsel therefore could not constitute cause for the default. 115 L. Ed. 2d at 673-674.
Succinctly stated, then, Coleman stands for the proposition that a criminal defendant's claims of federal constitutional error which, if proven, would invalidate a conviction must be presented to the state courts before federal habeas relief will be available. The federal constitutional issues must be presented in a manner consistent with the state's procedural rules. These rules are entitled to deference by the federal courts, and violation of a state's procedural rules constitutes an independent and adequate state ground for denial of claims of constitutional error. Federal habeas relief is not available to a petitioner whose federal constitutional claims have not been addressed on their merits due to a procedural default, absent a showing of cause and prejudice or a fundamental miscarriage of justice.
E. Abuse of the Writ
In McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454, reh'g denied, 501 U.S. 1224, 115 L. Ed. 2d 1010, 111 S. Ct. 2841 (1991), the Supreme Court reviewed the abuse of the writ doctrine. A petitioner for a writ of habeas corpus abuses the writ "by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice." 499 U.S. at 490 (citations omitted).
As with the exhaustion requirement and procedural default, abuse of the writ is based upon notions of comity; in fact, in McCleskey, the Court pointed out at length that procedural default and abuse of the writ are based upon nearly identical considerations, leading to its conclusion that the standard for excusing either should be the same.
We conclude from the unity of structure and purpose in the jurisprudence of state procedural defaults and abuse of the writ that the standard for excusing a failure to raise a claim at the appropriate time should be the same in both contexts. We have held that a procedural default will be excused upon a showing of cause and prejudice. Wainwright v. Sykes, supra. We now hold that the same standard applies to determine if there has been an abuse of the writ through inexcusable neglect.