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May 30, 1995


James F. McClure, Jr., United States District Judge

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

May 30, 1995


 Petitioner James Henry Carpenter, an inmate at the State Correctional Institution at Graterford, Montgomery County, Pennsylvania, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 20, 1984, petitioner was convicted by a jury in York County, Pennsylvania, and was sentenced to death. A direct appeal to the Supreme Court of Pennsylvania followed, as well as proceedings under the Ann. §§ 9541 et seq. Petitioner's conviction has been affirmed in all proceedings.

 While petitioner's appeal to the Supreme Court of the denial of post-conviction relief was pending, a death warrant was issued. This court issued a stay of execution, then stayed proceedings in this court pending disposition of the state appeal. On November 28, 1994, we issued a memorandum and order intended to narrow the issues before this court, and dismissed all of the claims raised by petitioner save two, those being:

(5) ineffective assistance of counsel for failure to object to the trial court's answer to a jury question; [and]
(16) ineffective assistance of counsel for failure to call for testimony at trial an eyewitness who would have corroborated petitioner's version of events; . . .

 Memorandum dated November 28, 1994 (record document no. 57), at 5, 6; Order of Court dated November 28, 1994, at 1 P 1. We then directed further briefing on specified issues.

 Later, on February 8, 1995, we directed briefing on the issue of a miscarriage of justice for the purpose of avoiding a procedural bar in a habeas corpus action, to be based upon the opinion of the Supreme Court of the United States in Schlup v. Delo, 130 L. Ed. 2d 808, 115 S. Ct. 851 (1995).

 All briefs now having been filed, the remaining matters are ripe for disposition. *fn1"



 In our prior memorandum, we discussed at length the standard governing consideration by this court of the issue of ineffective assistance of counsel for failure to call an eyewitness whose testimony would have corroborated that of petitioner. Since the issue had never been raised in prior proceedings, petitioner failed to exhaust his remedies in the state courts pursuant to 28 U.S.C. § 2254(b). We determined that a "cause and prejudice" standard would apply, but that petitioner had failed to demonstrate cause for the failure.

 Despite an inability to show cause and prejudice, a petitioner may raise an unexhausted claim "if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim." Memorandum dated November 28, 1994, at 37-38 (quoting McCleskey v. Zant, 499 U.S. 467, 494-495, 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)). As noted, in Schlup, the Supreme Court revisited the standard governing a "fundamental miscarriage of justice" for purposes of avoiding a procedural bar to habeas corpus relief. We turn first to the standard governing effective assistance of counsel.

 A. Effective Assistance of Counsel

 Reversal of a conviction or death sentence is warranted when the petitioner is able to establish that (1) the performance of counsel fell below an objective standard of reasonableness, and (2) the errors of counsel prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-688, 691-692, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

 Id. at 690. As to the prejudice prong of this test:

The defendant 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.

 The burden of proving a claim of ineffective assistance of counsel is on the petitioner.

In a collateral attack pursuant to 28 U.S.C. § 2254 on a state criminal conviction, the ultimate burden of establishing that the state proceeding that resulted in the conviction violated the constitution remains on the petitioner. When, as here, the petition is based on an allegation that, in the state proceedings, the petitioner was denied his sixth amendment right to the effective assistance of counsel, it is the burden of the petitioner to establish both components of the Strickland inquiry. . . .

 United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1015 (7th Cir. 1987), cert. denied, 498 U.S. 842, 112 L. Ed. 2d 91, 111 S. Ct. 122 (1990).

 With respect to a claim of ineffective assistance for failing to call a witness, the petitioner must show that (1) defense counsel knew or should have known about the testimony and (2) the testimony is truly exculpatory. "Defense counsel has no obligation to call, or even to interview, a witness whose testimony would not have exculpated the defendant or would have been inconsistent with the theory of the defense." United States v. Jones, 785 F. Supp. 1181, 1183 (E.D. Pa.)(citations omitted), aff'd, 980 F.2d 725 (3d Cir. 1992) (table). See also Reese v. Fulcomer, 946 F.2d 247, 257 (3d Cir. 1991) (no ineffectiveness in failing to call an alibi witness when witness' testimony could have been damaging to defense), cert. denied, 503 U.S. 988, 118 L. Ed. 2d 396, 112 S. Ct. 1679 (1992).

 In order to be entitled to an evidentiary hearing on a petition for a writ of habeas corpus, the petitioner has the burden to allege facts which, if proven, would entitle him or her to relief. Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.), cert. denied, 493 U.S. 970, 107 L. Ed. 2d 384, 110 S. Ct. 419 (1989). A hearing is not required when the record is complete or when the petitioner raises only legal claims for which no evidence is necessary. Id.

 In order to establish his claim of ineffective assistance of counsel based upon the failure to call a witness, petitioner must show that a witness not called by counsel would have offered exculpatory evidence, and that absence of the testimony is sufficient to undermine confidence in the outcome of the trial.

 It should be noted, however, that petitioner in this case bears an extra burden, that of demonstrating a basis for avoiding the procedural bar of failure to exhaust his state court remedies. We turn next to the standard for establishing a miscarriage of justice sufficient to avoid a procedural bar to habeas corpus relief.

 B. Failure to Exhaust

 As noted, the Supreme Court of the United States discussed at length the standard for avoiding a procedural bar to consideration of the merits of a petition for a writ of habeas corpus in Schlup v. Delo.2 The Court held that, when a petitioner seeks to avoid a procedural bar, he or she must demonstrate that failure to consider the merits of a claim would result in a fundamental miscarriage of justice, which is tied to the petitioner's actual innocence. 130 L. Ed. 2d at 832. Relying upon Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986), the Court held that the miscarriage of justice exception applies when the petitioner shows

. . . that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." [ Carrier, 477 U.S. at 496]. To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.

 Schlup, 130 L. Ed. 2d at 836. The reviewing court makes its determination in light of all of the evidence, including "relevant evidence that was either excluded or unavailable at trial[,]" i.e. the "new evidence." Id.

 C. Petitioner's "New Evidence "

 Petitioner in this case argues that he is actually innocent of the crime for which he was convicted. In fact, his argument in this respect has been consistent from the time of trial and throughout his appeals: petitioner was present at the time of the murder, but it was his girlfriend, Ruth Emmil, that committed the crime.

 The "new evidence" presented by petitioner is the testimony of Frankie Stewart, a purported eyewitness to the murder. Trial counsel for petitioner did not call Stewart at the time of trial, despite the fact that Stewart made statements which may indicate that petitioner was not guilty of the crime. No recent affidavit from Stewart has been presented; petitioner relies upon the statements which Stewart made to the police in the immediate aftermath of the crime.

 The first of these is set forth in the report of a police officer named Stabley. That report states:

This officer and Officer Levinsky were on routine patrol and were flagged down by the witness at 50 S. Penn St. The witness was yelling that the victim "Has a hole in his chest!" The victim was lying on his back with his feet on the sidewalk and his head on the roadway directly in front of 50 S. Penn St. This officer got out and approached the victim and observed a small amount of blood on the front of the victim's shirt.
The victim was unresponsive and this officer lifted the shirt to find a large quantity of blood coming from the chest of the victim. This officer observed the victim gasp slightly then make no further sounds or movements. This officer summoned medical assistance and more police units for assist.
Officer Levinsky spoke with the witness while this officer stayed with the victim. There was a bag lying near the victim which was opened by Det. Williams upon his arrival. (The bag contained a 6 pack of beer)
This officer relayed the above information to Det. Williams who continued the interview of the witness from that point.

 Plaintiff's Exhibit 23, appended to Deposition of John D. Flinchbaugh, Esquire (record document no. 62); also appended to Respondent's Brief in Opposition to Petition for Writ of Habeas Corpus (record document no. 65).

 A second statement by Stewart is set forth in a report which appears to have been completed by a Detective Smallwood. As related to Stewart, the report states:

FRANKIE STEWART, 479 W. King St., 3rd floor, was leaving her parents' home located directly across from 50 S. Penn St. when she observed the victim fall over backwards to the sidewalk and observed two persons walking away from the victim. Frankie Stewart stated that she had had [sic] seen the two actors in the area before and that she could i.d. the two actors if she saw them again. She stated that she knew the one actor as BOB - that he's always down at PAUL BROWN'S place on W. Princess St.
Frankie was brought to the police department by this officer and shown some photos of possible suspects. She could not i.d. anyone at that time.

 Police File, Report dated 10/3/83, p. 28 of Plaintiff's Exhibit 22, appended to Deposition of Dennis Williams (record document no. 63); also appended to Respondent's Brief in Opposition to Petition for Writ of Habeas Corpus (record document no. 65).

 Finally, a verbatim statement was taken from Stewart by Detective Smallwood. It reads:

Statement taken from FRANKIE STEWART, 487 W. King St., York, Pa., concerning the James Lee Taylor Homicide which occurred 9/30/83, in the first block South Penn St., in the presence of Detective William H. ...

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