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January 17, 2001


The opinion of the court was delivered by: Van Antwerpen, District Judge.


I. Facts and Procedural History

We have before us objections to the Report and Recommendation of a Magistrate Judge. To resolve this matter, we are called upon to review a new Order No. 218 of the Supreme Court of Pennsylvania. On December 22, 1999, petitioner Trevor Mattis, through counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Mattis was convicted on July 20, 1990, in the Court of Common Pleas for Philadelphia, in a non-jury bench trial before Judge David N. Savitt, of first degree murder, criminal conspiracy, possession of an instrument of a crime, and a violation of the Uniform Firearms Act. (Information Nos. 2008, 2012, October Term, 1989.) Judge Savitt sentenced Mattis to life in prison for first degree murder and to concurrent terms of five to ten years for conspiracy, two and one-half to five years for possession of an instrument of a crime, and six to twelve months for the firearms violation.

At Mattis's bench trial, the Commonwealth proved the following facts. In September 1988, Franklin Watson, a/k/a Troop, flew from Ft. Lauderdale, Florida to Philadelphia, Pennsylvania at the request of petitioner Trevor Mattis, a/k/a Anton Ford,*fn1 a/k/a Too Strong, a/k/a Two Strand, to assist Mattis in selling drugs in Philadelphia. Mattis and a person known as "Mikey" or "Donovan" met Watson at the airport on September 13, 1988 and drove him to 7116 Louise Road in Philadelphia. Mattis, Donovan, and Watson arrived at that address at approximately 11:00 p.m. Four other persons were already present at that address: "Kurt," "Smackeroo," "Kid," and Elaine Jenkins. During the early morning hours of September 14, 1988, Mattis and Donovan left the house, and the decedent, Everton Mead Johnson, a/k/a "Meadie," decedent's brother, Paul White, and a third person, "Gary," arrived. At some time thereafter, Mattis and Donovan returned to the house, and an argument arose between them and Johnson as to who would sell drugs out of the house. A poor relationship already existed between Mattis and Johnson due to a prior disagreement. During the argument, Mattis drew a nine millimeter handgun and threatened Johnson. Mattis and Johnson then left the house. Johnson, who followed Mattis and Donovan out the front door of the house, went to the rear of his car to retrieve some clothing from the trunk. Mattis, with Donovan nearby, grabbed Johnson and the two struggled. Mattis drew his gun again and shot Johnson seven times from behind at a distance of less than two feet, killing him. After the shooting, Watson did not report the crime to the police or come forward as a witness because he was afraid that his life would be in danger if he testified. (N.T., 7/19/90, at 70, 92-96, 99, 101-07, 157-59, 123-24; 7/20/90, at 304.)

Several days before Mattis's bench trial, the prosecutor handling the case, Assistant District Attorney ("ADA") Richard Sax, learned from a Philadelphia detective that Watson, who had returned to Florida, might have information regarding the case. Sax had Watson flown to Philadelphia and met with him the night before the trial. Watson testified at the bench trial that Mattis shot Johnson. There was, however, other evidence of Mattis's guilt, including eyewitness testimony by Paul White. Mattis was convicted by the judge at the bench trial.

After his conviction, Mattis learned of an inconsistent statement Watson had made during an interview by federal agents on June 25 and June 26, 1990, prior to Mattis's July bench trial.*fn2 The interview conducted by the federal authorities was unrelated to Mattis's homicide case; instead it was part of the investigation of a drug sales operation that implicated both Mattis and Watson, along with approximately forty other persons. Assistant United States Attorney ("AUSA") Thomas H. Suddath, Jr. conducted the interview along with Philadelphia police officer Allan Ventour, ATF Special Agent Thomas Stankiewicz, and INS Special Agent Matthew Czaplicki.*fn3 (N.T., 7/23/91, at 5.) According to a document known as a DEA-6, which was created from rough notes taken by Agent Czaplicki during the interview,*fn4 Watson claimed at that time that Donovan killed Johnson while Mattis stood by, and then the two fled together.*fn5 Paragraphs 25 and 26 of the DEA-6 described the events leading up to the shooting, and paragraph 27 described the shooting itself and identified Donovan as the shooter. At no time before or after the bench trial did the federal authorities send a copy of the notes or DEA-6 to the Philadelphia District Attorney's Office.

Represented by new counsel, Mattis filed post-sentence motions pursuant to Pa. R.Crim. P. 1410, now Rule 720, and Judge Savitt held evidentiary hearings. At a post-sentence evidentiary hearing, AUSA Suddath testified that he related by telephone the information that Watson had given to federal investigators to an ADA in the Philadelphia County District Attorney's Office shortly before Mattis's bench trial. (N.T., 7/23/91, at 9-10). AUSA Suddath could not recall, however, to which ADA he spoke or all of the details of the conversation. (N.T., 7/23/91, at 10, 16-17.) AUSA Thomas J. Eicher testified that after he learned of AUSA Suddath's interview of Watson, he spoke with ADA Sax, but the most that he would have told ADA Sax was that Watson was a potential witness. (N.T., 7/23/91, at 25.) ADA Sax testified that he did not know of the existence of Watson as a potential witness until a few days prior to the first day of Mattis's bench trial, and had not spoken to either AUSA Suddath or AUSA Eicher before trial. (N.T., 7/12/91, at 51, 55-56, 59-63.)

Judge Savitt denied the post-sentence motions and Mattis appealed to the Pennsylvania Superior Court raising nine claims:

(1) trial counsel (Daniel Preminger, Esquire) was ineffective in failing to fully investigate information as to how, when, and where the Commonwealth located Watson;
(2) trial counsel was ineffective in failing to ask for a continuance prior to Watson's testimony to ask how Watson became available to the Commonwealth and whether the Office of the United States Attorney had any statements the defense could use on cross-examination;
(3) trial counsel was ineffective in failing to introduce character testimony;
(4) trial counsel was ineffective in failing to ascertain whether Paul White had incentive to testify, and why he was incarcerated;
(5) trial counsel was ineffective in failing to call as a witness the police officer who searched the decedent's car in an effort to obtain testimony to undermine the credibility of White;
(6) trial counsel erred in conducting the examination of Detective Floyd Gallo;
(7) the district attorney committed prosecutorial misconduct by (i) misleading the court as to the information he had about Watson, (ii) failing to turn over all relevant discovery information as to Watson, and (iii) permitting Watson to present perjured testimony;
(8) the Commonwealth committed prosecutorial misconduct by interfering with defense counsel's ability to interview Watson; and
(9) the Commonwealth suppressed exculpatory evidence relating to Watson and failed to correct false testimony rendered by Watson.

(Resp. Ex. B (Pet.'s Br. on Direct Appeal to Pa.Super. Ct.).) The Superior Court denied the appeal and affirmed the convictions in a memorandum opinion. Commonwealth v. Mattis, 423 Pa. Super. 636, 616 A.2d 717 (1992) (table). Unfortunately for Mattis this was not further appealed to the Pennsylvania Supreme Court.

Represented by present counsel, on December 22, 1996, Mattis filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9541, et seq., raising the following three claims:

(1) appellate counsel (John Griffin, Esquire) was ineffective for failing to urge reversal at the post trial motions stage and on appeal based on the Commonwealth's Brady violation;
(2) the Watson statements made to federal officials prior to petitioner's trial comprise Brady material; and
(3) the instant Brady claim was not raised and was not previously litigated on direct appeal and if mentioned was presented as an improper prosecutor misconduct argument by ineffective appellate counsel and can be raised on this appeal.

(Resp. Ex. A (Pet.'s Br. on PCRA Appeal to Super. Ct.).) By an Order dated December 12, 1997, Judge Savitt dismissed the appeal, finding that Mattis had previously raised his PCRA claims on direct appeal. Commonwealth v. Mattis, No. 2008-2012, October Term, 1989 (Dec. 12, 1997). Mattis appealed the dismissal of the PCRA petition to the Superior Court, claiming that he had not previously litigated his PCRA Brady claims because trial counsel had failed to raise them properly. (Resp.Ex. B.) The Superior Court affirmed the trial judge's dismissal of the PCRA petition in a memorandum opinion. Commonwealth v. Mattis, 742 A.2d 207 (Pa.Super. 1999). Mattis then filed a petition for allowance of an appeal to the Pennsylvania Supreme Court raising the same claims. The Pennsylvania Supreme Court denied review. Commonwealth v. Mattis, 560 Pa. 701, 743 A.2d 917 (1999) (table).

In his present federal petition for a writ of habeas corpus, Mattis raises the following three claims:

(1) appellate counsel, John Griffin, Esquire, was ineffective for failing to raise a Brady claim in post-trial motions and on direct appeal;
(2) the Pennsylvania courts did not provide a forum where the issues Mattis raised in his PCRA petition could receive a full and fair hearing; and
(3) in finding that Mattis's claims were previously litigated, the Superior Court effectively ruled on the antecedent claim that counsel was ineffective and found him not to have been ineffective; Mattis claims this ineffectiveness ...

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