JACOBS v. HORN

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

In this habeas corpus action, we are asked to determine the constitutionality of Petitioner Daniel Jacobs' conviction of first degree murder and his sentence of death. The respondents are Martin Horn, Commissioner, Pennsylvania Department of Corrections; Conner Blaine, Jr., Superintendent of the State Correctional Institution, Greene County; and Joseph P. Mazurkiewicz, Superintendent of the State Correctional Institution at Rockview. The petitioner raises a multitude of issues involving alleged errors of the trial court and ineffectiveness of counsel. With one exception, we find all of petitioner's arguments to be either without merit or moot. However, because we find, for the reasons which follow, that the petitioner's death sentence violates the Constitution of the United States, we will conditionally grant the petition for a writ of habeas corpus.

Background

In 1992, a York County Court of Common Pleas jury convicted the petitioner of two counts of first degree murder for the slaying of his girlfriend, Tammy Mock, and their infant daughter, Holly Jacobs. The victims' bodies were found in the apartment where they had lived with the petitioner. Tammy Mock had been stabbed over 200 times and Holly Jacobs, who was seven months old, drowned in the bathtub. For Tammy Mock's death, petitioner was sentenced to die. He received a life sentence for Holly Jacobs' death. The facts are addressed with more particularity where appropriate below.

Standard of Review

Petitioner is seeking a writ of habeas corpus. A district court's power to grant habeas corpus relief to a state prisoner is outlined in 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 2254(a), a federal court is required to consider only petitions which challenge a state court judgment based upon a violation of the Constitution or the laws or treaties of the United States. In addition, it is required that the petitioner exhaust his state court remedies before bringing a federal habeas corpus action. 28 U.S.C. § 2254(b), Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). This exhaustion requirement does not apply where there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(B)(i) and (ii).

Section 2254 proceeds to state:

28 U.S.C. § 2254(d).

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA") went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. The above-quoted language is part of the amendment. Because Jacobs filed his petition on July 9, 1999, after the effective date of the AEDPA, we are required to apply the amended standards to his claim for federal habeas corpus relief. Werts, 228 F.3d at 195.

The Third Circuit has discussed the standard of review as follows:

Id. at 196.

In Williams v. Taylor, the United States Supreme Court provided the following interpretation to the habeas corpus § 2254(d)(1) standard of review:

Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

By way of explanation, Third Circuit Court of Appeals has held the § 2254(d)(1) requires a federal habeas court to make two inquiries:

Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 891 (3d Cir. 1999) cert. denied sub nom Matteo v. Brennan, 528 U.S. 824, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999) quoted in Werts, 228 F.3d at 196-97.

Consequently, two distinct steps are necessary for our analysis of the petitioner's claims. First, we examine the claims under the "contrary to" provision. We must identify the applicable Supreme Court precedent and determine whether it resolves the petitioner's claim. In Matteo, the Third Circuit Court of Appeals held:

Matteo, 171 F.3d at 888.

If it is determined that the state court's decision is not "contrary to" the applicable United States Supreme Court precedent, we move on to the second step of the analysis, that is whether the state court decision was based on an "unreasonable application of" Supreme Court precedent. This step requires more than a disagreement with the state court's decision or ruling because we would have reached a different result. Werts, 228 F.3d at 197. The AEDPA prohibits such de novo review. Id. Rather, we must determine whether the state court's application of United States Supreme Court precedent was objectively unreasonable. Id. That is, we must decide whether the state court's application of Supreme Court precedent, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. Id.

To summarize, we are empowered to grant relief only in the following two instances: 1) the petitioner demonstrates that Supreme Court precedent requires an outcome contrary to that reached by the state court; or 2) the state court decision represents an unreasonable application of Supreme Court precedent.*fn1 In other words, the state court opinion, when evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified. Matteo, 171 F.3d 877, 891 (3d Cir. 1999). With this analytical framework in place, we will address the petitioner's claims.

Procedural history

The procedure for capital cases in Pennsylvania is for the defendant to be tried in a county court of common pleas. The defendant is able to file post-trial motions with the trial court. Then the defendant is entitled to an automatic direct appeal to the Pennsylvania Supreme Court. After the direct appeal, the defendant can seek relief under the Post Conviction Relief Act, (hereinafter "PCRA"). PCRA relief is first addressed by the court of common pleas and is then appealable to the Pennsylvania Supreme Court.

In the instant case, the petitioner followed the above procedure as follows: The verdict invoking the death penalty was entered on September 18, 1992. Trial counsel filed a motion for a new trial with the trial court. Doc. 13, Respondents' Appendix (hereinafter "Res.App.") 10. The trial court denied the motion with a written opinion on January 14, 1993, and formally imposed the death sentence on January 28, 1993. Res.App. 11, 12. The judgment of sentence was affirmed by the Pennsylvania Supreme Court. Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786 (1994).

The current petitioner then filed a pro se PCRA petition on January 13, 1997. Res.App. 14. On January 24, 1997, J. Richard Robinson, Esquire was appointed counsel for Jacobs, and a supplemental PCRA petition was filed on May 23, 1997. Res.App. 14, 15. The supplemental PCRA petition was orally amended at the PCRA hearing on May 29, 1997. Doc. 10, Response to petition for writ of habeas corpus, ¶ 15. The trial court denied the PCRA petition on June 13, 1997. Res. App. 17. On that same day, a notice of appeal to the Pennsylvania Supreme Court was filed. Subsequently, Robert Dunham, Esquire, of the Center for Legal Education Advocacy and Defense Assistance entered his appearance on behalf of petitioner. The Pennsylvania Supreme Court affirmed the trial court's denial of PCRA relief on March 26, 1999. Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d 545 (1999). On July 8, 1999, Matthew Lawry, Esquire, and Stuart Lev, Esquire, of the Defender Association of Philadelphia entered their appearances on behalf of the petitioner, and the instant petition for a writ of habeas corpus was filed on November 16, 1999.

Petitioner raises the following fifteen issues: 1) Counsel was ineffective for failing to investigate and present mental health mitigating evidence concerning petitioner's cognitive and emotional impairments and evidence that he suffers from the effects of a traumatic and neglectful childhood; 2) The trial court and trial counsel failed to ensure through voir dire that petitioner would be tried by a fair and impartial jury, and trial counsel was ineffective for failing to request a change of venue despite pretrial publicity; 3) Counsel was ineffective for failing to adequately investigate and present evidence supporting the diminished capacity defense; 4) Counsel was ineffective for failing to impeach the testimony of petitioner's mother with evidence that she had a long history of alcoholism and was intoxicated when purported admissions were made; 5) Petitioner was denied a fair trial and effective assistance of counsel when the trial court permitted lay opinion testimony from a police officer that all of petitioner's wounds were self-inflicted; 6) The trial court erred in failing to instruct the jury that it must find independent evidence that corpus delicti exists beyond a reasonable doubt prior to considering petitioner's statements, and prior counsel was ineffective for not raising this issue; 7) The Commonwealth failed to prove beyond a reasonable doubt that the petitioner murdered Holly Jacobs; 8) The prosecutor engaged in improper argument, defense counsel ineffectively failed to object, and the court took no action to cure the error; 9) The trial court's instructions on the torture aggravating circumstance were vague, over broad, and in violation of petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; 10) The court's charge prevented the jury from considering and giving full effect to the mitigating evidence regarding age in violation of the Eighth and Fourteenth Amendments; 11) The trial court erred in failing to instruct the sentencing jury that, if sentenced to life, petitioner would be ineligible for parole; 12) The prosecutor improperly told the jury that it should show petitioner the same mercy he showed the two decedents, misstated the evidence regarding remorse and urged the jury to rely upon the prosecutor's personal opinion regarding what the evidence showed; 13) Petitioner's death sentence is invalid because he did not receive the meaningful "proportionality review" mandated by 42 Pa.C.S.A § 9711(h)(3)(iii) and the Eighth and Fourteenth Amendments; 14) To the extent that state court counsel failed to raise and/or properly litigate the issues discussed in his habeas corpus petition, they were ineffective; and 15) Petitioner is entitled to relief because of the cumulative prejudicial effect of the errors in this case.

According to the respondents these claims can be broken down into three kinds: 1) claims that are exhausted, having been presented to and addressed by the Pennsylvania Supreme Court; 2) claims that were raised for the first time in state court on appeal to the Pennsylvania Supreme Court from the trial court's denial of PCRA relief, which the court found to be waived as a matter of state procedural law; and 3) unexhausted claims that were never presented to the state court for review and are procedurally barred from being raised at the current time.

Exhaustion analysis

Initially, therefore, it is important to address the issue of which claims the petitioner is entitled to bring in a habeas corpus petition. The law provides as follows:

28 U.S.C. § 2254(b)(1).

"In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Accordingly, for a habeas corpus claim to be heard on its merits in federal court, the petitioner must first exhaust his state court remedies. "This exhaustion requirement is predicated on the principle of comity which ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Werts, 228 F.3d at 192.

In the instant case, the Pennsylvania Supreme Court found that some of the petitioner's claims were waived and therefore, did not address their merits. The claims were considered waived because the Supreme Court found that they were not raised in the lower court PCRA proceeding. Commonwealth v. Jacobs, 556 Pa. 138, 727 A.2d 545, 549-50 n. 9 (1999).*fn2 The first question we are faced with is whether the federal courts can address the merits of the issues that were procedurally defaulted in state court.

To decide whether the merits of constitutional claims that were waived in state court can be heard in federal court, it must be ascertained whether the state procedural rule (that barred review in state court) is "adequate" to support the court's decision "independent" of the merits of the federal claim. Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This "adequate and independent" analysis requires us to determine whether the rule is a firmly established and regularly followed state practice because only such a rule can be interposed by a state to prevent subsequent federal review of constitutional claims. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997). The Third Circuit Court of Appeals has held that state procedural rules provide independent and adequate basis for precluding federal review of a state prisoner's habeas corpus claims only if the following three criteria are met: 1) the state procedural rule speaks in unmistakable terms; 2) all state appellate courts refused to review petitioner's claims on the merits; and 3) the state courts' refusal is consistent with other decisions — that is, the state rule is consistently and regularly applied. Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). In the instant case, the first two factors are clearly met, and the third factor is the only one we need discuss.

Accordingly, we must determine whether the state rule in the instant case was a firmly established and regularly followed state practice. The Pennsylvania Supreme Court did not provide a detailed analysis of the waiver rule it was applying in the instant case. It merely stated as follows: "The remainder of the claims raised by Appellant were not asserted before the PCRA court. Accordingly, they are waived." Jacobs, 727 A.2d at 549. Thus, we must turn our attention elsewhere to find a discussion of the waiver rule that was applied.

We find that the most relevant case to examine is Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), which extensively discusses Pennsylvania's waiver rule. In Albrecht, the Pennsylvania Supreme Court noted that it had been its practice to relax waiver rules in capital cases. Albrecht, 720 A.2d at 700. That is, the court would entertain claims that were actually waived under the law. (With regard to this practice, the Third Circuit Court of Appeals has noted that the Pennsylvania Supreme Court "looks beyond" procedural waiver rules in death penalty cases. Banks v. Horn, 126 F.3d at 213 (3d Cir. 1997)). The Pennsylvania relaxed waiver rule was created to prevent the court from being instrumental in an unconstitutional execution. Albrecht, 720 A.2d at 700 ( Pa. 1998).

However, the Albrecht court held that waiver must necessarily be recognized at some point in the criminal process in order that finality be eventually achieved, and to that end it decided that relaxed waiver would no longer be applied by the court in capital PCRA proceedings. Id. Although Albrecht is not specifically cited by the court in petitioner's Supreme Court opinion, it can be assumed the court applied this rule in deciding that several of the petitioner's claims were waived.

In considering whether this waiver rule was a firmly established and regularly followed state practice at the time it was applied in the instant case, we do not examine the law to ascertain if the rule was firmly established at the time it was applied, but at the time that the petitioner's alleged waiver occurred. Id. at 684, 720 A.2d 693. After a careful review, we find that the rule was not firmly established and regularly followed state practice at the time of Jacobs' alleged waiver.

This case is akin to the Third Circuit Court of Appeals case Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996). Doctor was a federal habeas corpus case dealing with a Pennsylvania Supreme Court opinion that quashed a defendant's appeal by applying a fugitive forfeiture law. Under the fugitive forfeiture law if a defendant became a fugitive, his appeal would be quashed, that is forfeited. In that case, the Pennsylvania Supreme Court used the rule to quash the defendant's appeal in 1993 even though the defendant became a fugitive several years earlier, in 1986. An issue in the subsequent federal habeas corpus action was whether the state court default was independent and adequate to foreclose federal review of the merits of the defendant's appeal.

The Third Circuit examined the case to determine the law with regard to fugitive forfeiture at the time that the defendant became a fugitive in 1986, not at the time the Supreme Court made its decision in 1993. After reviewing the law, the court found that in 1986, the law that the Penn sylvania Supreme Court used to quash the defendant's appeal had not yet been firmly established. Therefore, the court had no relied on an "adequate" procedural rule to deny review of his appeal on the merits and federal review of the merits of his claim was not precluded. Id. at 684-86

Likewise, in the instant case, the relevant time to examine the waiver issue is not when the petitioner's Supreme Court decision was handed down, but rather at the time that the petition was filed and briefed. Relaxed waiver was the general rule when the petitioner filed and briefed his PCRA appeal. Jacobs' brief in support of his PCRA appeal before the Pennsylvania Supreme Court is dated January 30, 1998, and the reply brief is dated May 4, 1998. See Res.App. 18 and 19. The Albrecht opinion, dispensing with the relaxed waiver rule, was filed nearly eleven months later on November 23, 1998. We find, therefore, that the strict application of waiver principles was not firmly established and regularly followed state practice at the time of petitioner's PCRA appeal. Consequently, the strict waiver rule applied by the Pennsylvania Supreme Court is not an adequate and independent state procedural bar to federal court entertainment of constitutional claims, and we can appropriately address the merits of the petitioner's contentions.

The above analysis applies to claims that the Pennsylvania Supreme Court found were waived. We shall therefore address the merits of these claims, infra, where appropriate.*fn3

As a preliminary matter, the respondents note that the instant habeas corpus petition is not in compliance with Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. Rule 2(c) provides that the petition shall be signed under penalty of perjury by the petitioner. The original habeas corpus petition filed in this case was not signed by the petitioner. We find that the petitioner has remedied this defect by attaching a verification to his reply brief, verifying that the facts asserted in the habeas corpus petition are true. See Attachment "A" to Petitioner's Reply Memorandum in Support of Petition for a Writ of Habeas Corpus.

Many of petitioner's claims are raised in terms of in effectiveness of counsel. Accordingly, before discussing the merits of any of the issues, we will discuss the general law regarding ineffectiveness of counsel as set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Strickland

A two-part test for judging ineffectiveness of counsel claims was developed in Strickland. First, the defendant must show that counsel's performance was deficient. This requirement involves demonstrating that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Id. at 687, 104 S.Ct. 2052; Flamer v. State of Delaware, 68 F.3d 710, 727-28 (3d Cir. 1995) cert. denied 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996). Proof must exist that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 728.

The second prong of the ineffectiveness of counsel claim that a habeas corpus petitioner must establish is that counsel's ineffectiveness was prejudicial. Id. at 728. The Supreme Court has held that "when a defendant challenges a death sentence . . ., the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. 2052, quoted in Flamer, 68 F.3d at 728.

We must be highly deferential to counsel's decisions as there is a strong presumption that counsel's performance was reasonable. Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. 2052. "The defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" U.S. v. Kauffman, 109 F.3d 186, 189 (3d Cir. 1997) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Moreover, the Third Circuit Court of Appeals has held that "[i]t is only the rare claim of ineffective assistance of counsel that should succeed under the properly deferential standard to be applied in scrutinizing counsel's performance." Id. at 190 (quoting United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)).

Bearing in mind this law with respect to ineffectiveness of counsel and the analytical framework that applies to habeas corpus cases, we now turn to the issues raised by the petitioner.

1. Mental health mitigating evidence

First, the petitioner alleges that trial counsel was ineffective for failing to investigate and present mental health mitigating evidence concerning the following: petitioner's cognitive and emotional impairments; and evidence that he suffers from the effects of a traumatic and neglectful childhood. The respondents contend that the Pennsylvania Supreme Court properly denied this claim.

Before examining the manner in which the Pennsylvania Supreme Court dealt with the instant issue, it is important to understand the sentencing procedure for first degree murder in Pennsylvania state court and to review the evidence that was not presented at the sentencing hearing.

A. Sentencing procedure

After a first degree murder verdict is recorded and before the jury is discharged, the court conducts a separate sentencing hearing in which the jury determines whether the defendant shall be sentenced to death or life imprisonment. 42 Pa.C.S.A. § 9701(a). During the sentencing hearing, evidence is presented regarding aggravating circumstances (those circumstances favoring death) and mitigating circumstances (those circumstances favoring life imprisonment). The jury is then instructed that the verdict must be a sentence of death if it unanimously finds at least one aggravating circumstance and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases. 42 Pa.C.S.A. § 9711(c)(iv).

At Jacobs' sentencing hearing, the prosecution simply presented the evidence from the guilt phase of the trial. Res.App. 8, N.T. 9/18/92 at 833-34. The defense merely called one witness in addition to the petitioner.*fn4 The first witness was Delois Jacobs, the petitioner's mother, who testified about the petitioner's relationship with his younger sister; that he loved his daughter, Holly Jacobs; and that he was sorry that it had happened. Id. at 835-37.

The petitioner then testified to the following: he was twenty-one years old when the crime occurred; he felt remorseful; he attempted to cut his wrists after the killings; he had strong feelings for his daughter, even after her death; and he had a good relationship with his five year old sister. Id. at 838-39.

After this brief testimony, the lawyers presented arguments on the aggravating and mitigating circumstances. The jury's verdict was a death sentence for the murder of Tammy Mock and life imprisonment for Holly Jacobs' death. As to Tammy Mock, the jury found the following aggravating circumstances: the offense was committed by means of torture; and the defendant was convicted of another murder committed either before or at the time of the offense at issue. The jury found the following to be mitigating factors: that the defendant was under an emotional disturbance; and his record. Ultimately, the jury concluded that the mitigating circumstances were outweighed by the aggravating circumstances and a death sentence was imposed for the murder of Tammy Mock.*fn5

B. The evidence

Petitioner now claims that powerful mitigation evidence was available. However, because trial counsel failed to investigate, he was not aware of it and did not present it at the sentencing hearing. A summary of what an investigation into the petitioner's background would have revealed follows:

Petitioner does not have a stable family background. Petitioner's mother was a heavy drinker and drank while she was pregnant with him. She was beaten by his alcoholic father in front of their children, including the petitioner. App. Ex. 4, Declaration/Affidavit of Marjorie Winston, ¶ 8. See also App. Ex. 5, Declaration/Affidavit of Hazel Jacobs Hinson, ¶ 10 and App. Ex. 6, Affidavit/Declaration of Lois Jacobs, ¶ 9. (Hereinafter "Ex. 4", "Ex. 5" and "Ex. 6" respectively).

Petitioner was afraid of his father because of the beatings he gave his mother. Ex. 4, 8; Ex. 5, ¶ 11. The beatings would sometimes leave her bloodied and bruised. Ex. 5, ¶ 11; App. Ex. 7, Declaration/Affidavit of Delois Jacobs, ¶ 2 (hereinafter "Ex. 7"). Eventually, petitioner's mother left her husband, and she and her children never saw him again. Accordingly, the petitioner never had any kind of real relationship with his father. Id.; Ex. 4 ¶ 8.

Moreover, petitioner's mother allowed him to drink in bars from a young age, and he began drinking at home by the age of twelve. His mother gave him money to buy beer. His aunt came to his house several times to find ...