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CARPENTER v. VAUGHN

November 28, 1994

JAMES HENRY CARPENTER, Petitioner
v.
DONALD T. VAUGHN, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION AT GRATERFORD, PENNSYLVANIA, Respondent



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 November 28, 1994

 BACKGROUND:

 This case involves a petition for a writ of habeas corpus originally filed by James Henry Carpenter on July 23, 1991. The filing of the original petition for a writ of habeas corpus by petitioner's then-counsel coincided with the pro se filing by petitioner of a petition for a stay of execution, docketed to No. 3:CV-91-0943. A stay of execution was issued by the court, and the cases were consolidated to No. 3:CV-91-0934. The case then was stayed pending disposition of petitioner's state court appeal.

 Petitioner was convicted of first degree murder in the Court of Common Pleas of York County, Pennsylvania, on January 20, 1984, and was sentenced to death. On November 19, 1992, the Supreme Court of Pennsylvania affirmed the denial of relief under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. Com. v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (Pa. 1992).

 New counsel was appointed to represent petitioner, and counsel has filed an amended petition for a writ of habeas corpus which incorporates by reference the original petition. Counsel also has been granted leave to conduct discovery in the form of taking of depositions.

 Before the court is a motion by the Commonwealth *fn1" for reconsideration of our Order of Court dated July 21, 1994, in which we granted a motion to postpone a deposition of plaintiff's PCRA counsel for mental health reasons, and plaintiff's motion to dismiss the motion for reconsideration. Also, the court will review the issues raised by petitioner in his original petition and his amended petition for a writ of habeas corpus, for the purpose of narrowing the issues before us.

 STATEMENT OF FACTS/PROCEDURAL HISTORY:

 On September 30, 1983, *fn2" at approximately 9:30 p.m., petitioner was with his girlfriend, Ruth Emmil, and another couple on South Penn Street in the City of York. The group was approached by Jimmie Lee Taylor, a former boyfriend of Emmil, with whom petitioner had a turbulent history. Fearing an altercation, the other couple continued to their destination, a nearby bar. Moments later, Taylor was stabbed in the heart. He was pronounced dead at the York Hospital at 10:58 p.m. Taylor was intoxicated at the time of the stabbing, having a blood alcohol content of .356 per cent.

 At trial, the question was one of witness credibility. Emmil testified that respondent had stabbed Taylor without provocation, wiped the blood from the knife with a handkerchief, and tossed both the knife and the handkerchief over a fence into the backyard of a nearby house. Petitioner testified that Emmil had done the stabbing and had disposed of the knife. Emmil's testimony was bolstered by the testimony of another witness who testified that petitioner had offered to pay the witness $ 500.00 to kill Taylor.

 The jury believed Emmil's version of events and found petitioner guilty of first degree murder, and sentenced him to death. The Supreme Court of Pennsylvania heard the direct appeal of petitioner's conviction, and affirmed. Com. v. Carpenter, 511 Pa. 429, 515 A.2d 531 (Pa. 1986) ("Carpenter I"). The case was then remanded to the Court of Common Pleas of York County for proceedings under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. The Court of Common Pleas denied relief, and the Supreme Court of Pennsylvania again affirmed. Com. v. Carpenter, 533 Pa. 40, 617 A.2d 1263 (Pa. 1992) ("Carpenter II").

 On July 23, 1991, while petitioner's appeal of the PCRA proceedings was still pending, petitioner filed his petition for a writ of habeas corpus and a motion for a stay of execution. The latter motion indicated that a death warrant had been signed by the Governor of Pennsylvania, and that the Supreme Court would not issue a stay of execution. We therefore ordered a stay of execution, see generally McFarland v. Scott, 129 L. Ed. 2d 666, 677, 114 S. Ct. 2568 (1994) (federal district court has jurisdiction to enter stay of execution prior to filing of petition for writ of habeas corpus in order to protect right to file petition and statutory right to appointed counsel in federal habeas proceedings), but stayed the habeas action pending disposition of the PCRA appeal.

 On November 19, 1992, the Supreme Court issued its ruling affirming the denial of relief under the PCRA, and the stay of the instant proceedings was lifted. It then was brought to the court's attention that petitioner and his counsel had no meaningful relationship, and counsel was permitted to withdraw. Because of the dearth of attorneys experienced in the handling of this type of case in the Middle District, some delay occurred while counsel was located. Counsel now has filed an amended petition and conducted discovery, though not all of the discovery requested.

 ISSUES PRESENTED:

 In his original petition for a writ of habeas corpus, which was incorporated by reference in the amended petition, see Amended Petition for Writ of Habeas Corpus (record document no. 18) at 1 P 1, petitioner raised the following grounds as cause for issuance of the writ:

 (1) ineffective assistance of counsel for allowing the jury to hear that petitioner had a prior criminal record;

 (2) ineffective assistance of counsel for failure, during jury selection, to question several jurors concerning their attitudes toward the death penalty;

 (3) ineffective assistance of counsel for failure to present mitigating evidence of petitioner's background during the penalty phase of the trial;

 (4) ineffective assistance of counsel for failure to object to an erroneous instruction concerning duress during the penalty phase of the trial;

 (5) ineffective assistance of counsel for failure to object to the trial court's answer to a jury question;

 (6) ineffective assistance of counsel for failure to object to testimony of Emmil that she had no criminal record and had never been arrested;

 (7) ineffective assistance of counsel for failure to prepare petitioner for his trial testimony;

 (8) ineffective assistance of counsel for failure to object to a reference by the prosecutor to a lie detector test;

 (9) ineffective assistance of counsel for failure to object to a statement by the prosecutor in his closing argument that defense counsel and the District Attorney were in agreement that whoever killed Taylor was guilty of first degree murder;

 (10) ineffective assistance of counsel for failure to object to the trial court's omission of a charge on a potential verdict of second degree murder;

 (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 *fn3" 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.

 DISCUSSION:

 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. *fn4" 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). *fn5" 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.

 C. Exhaustion

 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. *fn6" 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)). *fn7"

 After a review of the development of the procedural default doctrine and the policies which underlie the ...


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