Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LAIRD v. HORN

September 5, 2001

RICHARD LAIRD, PETITIONER,
v.
MARTIN HORN, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; GREGORY WHITE, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT PITTSBURGH; AND JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, RESPONDENTS.



The opinion of the court was delivered by: Jan E. Dubois, J.

            MEMORANDUM

I. INTRODUCTION

Currently before the court is the petition for a writ of habeas corpus filed by Richard Laird ("Laird" or "petitioner"). Laird, along with co-defendant Frank Chester ("Chester"), was convicted of first degree murder, kidnapping, and a number of other offenses on May 19, 1988 in the Court of Common Pleas of Bucks County, Pennsylvania. The jury returned a verdict of death on May 21, 1988; on July 19, 1989, the trial court sentenced petitioner to death and to a consecutive sentence of 10 to 20 years on the kidnapping charge.

For the reasons that follow, Laird's petition for a writ of habeas corpus will be granted in part and his first degree murder conviction and death sentence will be vacated and set aside without prejudice to the right of the Commonwealth of Pennsylvania to grant petitioner, within 180 days, a new trial on the first degree murder charge and, if petitioner is found guilty, a new sentencing on that charge, and/or a sentencing on the convictions as to which the trial court did not impose sentence. The petition for a writ of habeas corpus will be denied in all other respects.

The facts underlying petitioner's conviction, as summarized by the Pennsylvania Supreme Court on direct appeal, Commonwealth v. Chester, 526 Pa. 578, 586-90, 587 A.2d 1367, 1371-72 (1991) ("Chester"), are as follows:

The deceased, Anthony Milano ("Milano," the "deceased" or "decedent") arrived at the Edgely Inn on December 14, 1987 some time after 11:15 p.m. in a 1976 Chevrolet Nova registered in the name of Rose Milano, decedent's mother. Petitioner and Chester had been at the tavern at the Edgely Inn for quite some time prior to Milano's arrival. Both petitioner and Chester had exhibited quarrelsome and aggressive behavior prior to the deceased's arrival — Chester had threatened to assault one of the male guests at the establishment; petitioner was loud and argumentative. At one point during the time the three men were in the tavern, petitioner and Chester taunted Milano as to his masculinity.

At approximately 1:30 a.m. on December 15, Officer Charles McGuigan ("Officer McGuigan") responded, with two fellow officers, to a report of a stolen car found in the parking lot of the Edgely Inn. They began their investigation by interrogating the customers at the Edgely Inn. During that investigation, Officer McGuigan observed Chester, Laird and decedent at the bar. Officer McGuigan requested identification from each of these individuals and was satisfied that they were not involved in the car theft. At approximately 2:10 a.m., while he was still in the parking lot, he observed the deceased, Chester and Laird leave the Edgely Inn together. This testimony was confirmed by the two officers who responded with Officer McGuigan to the stolen car complaint. The three men were last observed leaving the parking lot of the Edgely Inn in the Chevrolet Nova with Milano driving.

On the evening of December 15, 1987, Officer McGuigan responded to a report of a car fire. When he arrived at the scene, he observed a vehicle ablaze and assisted in extinguishing the fire. The vehicle was identified as the 1976 Chevrolet Nova registered in the name of Rose Milano, decedent's mother. A search of a wooded area adjacent to where the automobile was located resulted in the discovery of the body of the deceased. The body was lying face up with the left eye partially open, contusions in the facial area, and multiple slashings of the neck and throat. Police records established that Rose Milano had reported the deceased as a missing person when he failed to return to the family home in the early morning hours of December 15.

A postmortem examination revealed that decedent had been assaulted about the face and had sustained lacerations about the face, throat, neck, and shoulder. A pathologist concluded that Milano had been kicked and/or punched in both the right and left temple areas and the chin; a hairline fracture at the base of the skull resulted from a blunt instrument striking decedent's head; the lacerations were made by a sharp instrument, consistent with a utility knife; the slashings were hard enough and deep enough to sever the fifth and sixth vertebrae and were too numerous to count; and decedent aspirated on his own blood for five to ten minutes before expiring.

The fire marshal for the township testified that in his opinion, the Milano vehicle fire was deliberately and intentionally ignited. In addition, the Commonwealth presented evidence to establish that at approximately 4:00 a.m., December 15, Chester and Laird approached, on foot, the apartment of a friend of Chester's — Richard Griscavage ("Griscavage"). Griscavage's apartment was located less than a mile from the murder scene. Griscavage testified that both were visibly agitated and covered with blood. Chester attempted to explain their condition by stating that there had been a fight and "the dude is dead." Griscavage took both men to Laird's apartment where they attempted to remove and conceal their bloody clothing. The Commonwealth also produced other witnesses to whom petitioner and Chester made incriminating statements and actions that reflected their complicity in the murder.

The Commonwealth also produced a transcript of a telephone call between Chester and Laird, during which Laird suggested that Chester leave town, recommended ways Chester could pass a polygraph examination, and commented on the Commonwealth's inability to prove a case without evidence. Both defendants testified at trial and admitted to being at the scene.

II. PROCEDURAL HISTORY

On May 19, 1988, Petitioner Laird and his co-defendant Chester were convicted of first degree murder in the Court of Common Pleas of Bucks County; the jury returned a verdict of death against both defendants on May 21, 1988. In addition to first degree murder, petitioner and Chester were convicted of second and third degree murder; kidnapping, 18 Pa. Cons. Stat. Ann. § 2901; aggravated assault, 18 Pa. Cons. Stat. Ann. § 2702; unlawful restraint, 18 Pa. Cons. Stat. Ann. § 2902; false imprisonment, 18 Pa. Cons. Stat. Ann. § 2903; conspiracy, 18 Pa. Cons. Stat. Ann. § 903; and possession of an instrument of crime, 18 Pa. Cons. Stat. Ann. § 907. Chester, 526 Pa. at 586 n. 1, 587 A.2d at 1371 n. 1. Petitioner filed post-verdict motions in the trial court on May 31, 1988, which were denied by opinion and order dated June 29, 1989.

On July 19, 1989, the trial court sentenced petitioner to death on the first degree murder charge and to a "consecutive sentence of not less than 10 nor more than 20 years" on the kidnapping charge. Sentencing Tr. at 6 (July 19, 1989). It does not appear that petitioner was sentenced on any other crimes of which he was found guilty. The Pennsylvania Supreme Court affirmed petitioner's conviction and sentence on direct appeal on March 20, 1991. Chester, 526 Pa. 578, 587 A.2d 1367. Laird filed a petition for writ of certiorari to the United States Supreme Court on June 18, 1991; it was denied by order dated October 7, 1991. Laird v. Pennsylvania, 502 U.S. 849 (1991).

Petitioner then filed a pro se petition for collateral review pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, in the Bucks County Court of Common Pleas on July 22, 1993. The Court of Common Pleas appointed counsel to represent petitioner and an amended petition was filed on January 12, 1995. That court held an evidentiary hearing regarding some of the claims raised in the PCRA petition on May 25, 1995 and concluded the hearing on April 1, 1996. New counsel entered an appearance on July 19, 1996 and additional testimony in support of the petition was heard January 21-28, 1997. The Court of Common Pleas issued an opinion and order denying PCRA relief on September 2, 1997. The Pennsylvania Supreme Court affirmed the order. Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346 (1999) ("Laird").

Petitioner filed a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 on May 5, 1999. Counsel was thereafter appointed and on September 7, 1999, a counseled Petition for Writ of Habeas Corpus was filed. A supporting Memorandum of Law was filed on December 17, 1999. On February 18, 2000, respondents filed their answer to the petition. A reply was filed on March 23, 2000.

The counseled Petition for Writ of Habeas Corpus superseded the pro se petition. Accordingly, in this Memorandum, the Court will only address the claims raised in the counseled petition. For the reasons that follow, the petition will be granted in part.

III. APPLICATION OF 28 U.S.C. § 2254

A. The Exhaustion Requirement of § 2254 and Procedural Default

1. Exhaustion

A federal writ of habeas corpus may not be granted to a person incarcerated pursuant to a state court judgment unless he or she has first exhausted the remedies available in state court. As amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254 provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1) (Supp. V 1999).

To satisfy this exhaustion requirement, the petitioner must "afford each level of the state courts a fair opportunity to address the claim." Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996); see McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). More specifically, a habeas petitioner "must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." Id. at 261 (citing Anderson v. Harless, 459 U.S. 4, 6 (1982)). Making a "somewhat similar state-law claim" is insufficient. See id.

The Third Circuit has identified some of the ways in which petitioners may present a federal claim in state court without specifically invoking a portion of the federal constitution or federal statutes. In Evans v. Court of Common Pleas, 959 F.2d 1227 (3d Cir. 1992), the court observed that a petitioner can assert a claim through "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id. at 1232, quoted in McCandless, 172 F.3d at 261-62.

2. Procedural Default

When a claim is not exhausted because it was not fairly presented to the state courts, but state procedural rules bar further state relief, the exhaustion requirement is satisfied because "there is an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i) (Supp. V 1999); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 785 (2001). However, "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Coleman v. Thompson, 501 U.S. 722, 750 (1991) ("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. . . .").

Although procedurally defaulted claims are barred as a general rule, a federal court may reach such claims upon a showing of cause and prejudice or a fundamental miscarriage of justice. As explained by the Third Circuit, "claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner establishes cause and prejudice or a fundamental miscarriage of justice to excuse the default." Lines, 208 F.3d at 160 (internal quotation omitted) (citing Coleman, 501 U.S. at 731).

To establish "cause" for procedural default, "the petitioner must `show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.'" Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), cert. denied, ___ U.S. ___, 121 S.Ct. 1621 (2001). As explained by the Third Circuit, the Murray Court opined that if a petitioner could, for example, "show[] [that] a factual or legal basis for a claim was not reasonably available to counsel or show[] interference by government officials sufficient to make compliance impracticable," this would constitute acceptable cause for federal habeas review of the defaulted claim. Id. at 193 (citing Murray, 477 U.S. at 488).

To show "prejudice," the petitioner must prove "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). In essence, this standard requires a petitioner to prove that he was denied "fundamental fairness" at trial. Werts, 228 F.3d at 193.

The Court now turns to the way in which these procedural requirements apply in conjunction with Pennsylvania state law, first addressing the question whether certain of petitioner's claims were exhausted by virtue of Pennsylvania's mandatory appellate review of capital cases. The Court will then analyze the independent and adequate state ground doctrine, examining whether two Pennsylvania rules — (1) the rule announced in Commonwealth v. Albrecht, in which the Pennsylvania Supreme Court concluded that it would no longer apply a relaxed waiver rule in capital cases and (2) the rule that previously litigated claims are not available for review during PCRA proceedings — act as procedural bars to federal habeas relief. Finally, the Court will turn to the application of § 2254.

B. Automatic Exhaustion Under the Pennsylvania Supreme Court's

Mandatory Appellate Review

Petitioner contends that certain of his claims*fn1 were exhausted in state court by virtue of Pennsylvania's mandatory appellate review of capital cases under 42 Pa. Cons. Stat. Ann. § 9711(h), which provided, at the time of petitioner's sentencing, as follows:

(1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings as provided in paragraph (4).
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d);

42 Pa. Cons. Stat. Ann. § 9711(h) (West 1982 & Supp. 1991).

Pursuant to this statute, the Pennsylvania Supreme Court must conduct a review of the record in all capital cases, regardless of whether the defendant has preserved particular issues for appeal. Petitioner contends that this mandatory appellate review by the Pennsylvania Supreme Court exhausted his record-based claims of constitutional error — specifically, his claims related to the following issues: (1) verdict coercion (Claim V; Claim IV in petitioner's Reply); (2) improper application of the aggravating circumstance of torture (Claim XI; Claim IX in petitioner's Reply); (3) improper prosecutorial argument (Claim XIII; Claim X in petitioner's Reply); (4) improper jury instructions on first degree murder (Claim X; Claim XIII in petitioner's Reply); (5) insufficient evidence of kidnapping (Claim XVI; Claim XV in petitioner's Reply); (6) the trial court's failure to sever petitioner's trial from the trial of his co-defendant (Claim XVIII; Claim XVII in petitioner's Reply); and (7) improper exclusion of exculpatory evidence (Claim XIX; Claim XVIII in petitioner's Reply).

In support of his argument that these claims are exhausted due to the Pennsylvania Supreme Court's mandatory appellate review, petitioner cites Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993). In Beam, the Ninth Circuit, in considering the Idaho mandatory appellate review statute, which is nearly identical to the Pennsylvania statute at issue in this case,*fn2 concluded as follows:

Because the reviewing court has statutory notice of the types of errors for which it is required to examine the record, it is presumed that it has carried out its statutory obligations even when it does not expressly indicate in its opinion that it has done so. As a result, the court's affirmance of the defendant's sentence after mandatory review constitutes at least an implicit rejection of claims of error that fall within its obligatory review even if the defendant has not raised those claims with specificity.

Id. at 1306.

The decision of the Beam court was based, in part, on Ake v. Oklahoma, 470 U.S. 68 (1985), in which the Supreme Court of the United States concluded that the state procedural requirement that the Oklahoma Supreme Court examine the trial record for "fundamental error" did not constitute an independent and adequate state procedural rule as the application of the state requirement was necessarily dependent "on an antecedent ruling on federal law." Id. at 75. By concluding that "fundamental error" included federal constitutional error under Oklahoma law, the Supreme Court determined that, in conducting its mandatory appellate review, "the state court must rule, either explicitly or implicitly, on the merits of [a] constitutional question." Id.

Accordingly, a state court's mandatory appellate review may serve to exhaust federal constitutional claims when the disposition of a claim is dependent upon an antecedent ruling on federal law.

However, not all potential constitutional claims are automatically exhausted by virtue of Pennsylvania's mandatory appellate review. As explained by a judge in the Middle District of Pennsylvania, "the Supreme Court of Pennsylvania has never held that, if it affirms a conviction and sentence under [§ 9711(h)(3)], all constitutional claims should be deemed to have been resolved against the defendant. Rather, its mandatory review generally seems to be for a sufficiency of the evidence." Banks v. Horn, 49 F. Supp.2d 400, 406 (M.D.Pa. 1999). In addition, it is significant that federal constitutional claims are enumerated grounds for PCRA relief. See id.; 42 Pa. Cons. Stat. Ann. § 9543(a)(2)(i) (West 1998). As observed by the Banks court, "[a] reading that all constitutional claims are deemed presented on direct appeal would obviate the need to present such claims on collateral review, a reading at odds with the express language of the PCRA." Banks, 49 F. Supp.2d at 406.

Likewise, in Holland v. Horn, 2001 WL 704493 (E.D.Pa. Apr. 25, 2001), the court rejected petitioner's contention that the Pennsylvania statute resulted in automatic exhaustion of all potential claims, concluding that the "mandatory state supreme court review of death sentences for `passion, prejudice or any other arbitrary factor' does not constitute a review on the merits of all of Petitioner's potential constitutional claims." Id. at *9. However, in Bronshtein v. Horn, 2001 WL 767593, at *10 n. 19 (E.D.Pa. July 5, 2001), the court noted that the Supreme Court of Pennsylvania is required by statute and precedent to conduct a thorough review of the conviction and sentence in capital cases to determine whether there were any fundamental errors. Even when a petitioner fails to raise a particular constitutional issue, the mandatory review of capital convictions and sentencings required in Pennsylvania is sufficient to exhaust fundamental constitutional claims of the kind raised here by [petitioner].

Upon consideration of the text of the PCRA statute and relevant precedent, this Court concludes that the Pennsylvania mandatory appellate review pursuant to § 9711(h)(3) does not exhaust all possible constitutional claims, but only those claims of fundamental constitutional error that implicate the grounds for relief set forth in § 9711(h)(3) — (1) that the verdict was the product of passion, prejudice or any other arbitrary factor; or (2) that the evidence fails to support the finding of at least one aggravating circumstance. As in Bronshtein, some of petitioner's claims constitute fundamental constitutional claims and were thus exhausted by this procedure; petitioner's claim regarding the improper application of the aggravating circumstance of torture, for example, constitutes the type of claim that the Pennsylvania Supreme Court is statutorily required to review. In the discussion of petitioner's claims below, the Court will analyze each claim identified by petitioner as automatically exhausted to determine whether that claim was exhausted by the state supreme court's mandatory review or some other means.

C. Independent and Adequate Procedural Grounds

1. Introduction

"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." Coleman v. Thompson, 501 U.S. 722, 750 (1991). As explained by the Third Circuit, for a state rule to provide an adequate basis for precluding federal review of a state prisoner's habeas claim, the rule must have the following attributes: "(1) the state procedural rule speaks in unmistakable terms; (2) all state appellate courts refused to review the petitioner's claims on the merits; and (3) the state courts' refusal in this instance is consistent with other decisions." Doctor v. Walters, 96 F.3d 675, 683-84 (3d Cir. 1996). See generally James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 26.1 (1998 & Supp. 1999) (discussing the criteria used to determine whether a state procedural rule constitutes an independent and adequate state ground). Such a rule is independent "when resolution of the state procedural law question [does not] depend[] on a federal constitutional ruling." Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

However, a state procedural rule will not bar federal review of a habeas claim unless that rule was firmly established and regularly followed at the time the default occurred. See Ford v. Georgia, 498 U.S. 411, 424 (1991) (holding that "an adequate and independent state procedural bar to the entertainment of constitutional claims must have been firmly established and regularly followed by the time as of which it is to be applied" in order to preclude federal habeas review) (quotation marks omitted); Doctor, 96 F.3d at 684 ("A state rule is adequate only if it is `consistently and regularly applied.'" (quoting Johnson v. Mississippi, 486 U.S. 578, 587 (1988)). As such, in determining whether a particular state rule is independent and adequate, the Court must identify the state procedural rule, ascertain the time at which the alleged default occurred and then decide whether the rule was firmly established and regularly and consistently applied at the time the alleged default occurred.

The time period on which the Court must focus in this case is not clearly defined due to the complex procedural history of the state PCRA proceedings. As discussed in Part II, the jury returned a verdict of death on May 21, 1988; petitioner was sentenced to death by the trial court on July 19, 1989; his conviction and sentence were affirmed on direct appeal March 20, 1991. Petitioner then filed a pro se PCRA petition on July 22, 1993; the PCRA court appointed counsel and an amended petition was filed on January 12, 1995. After an evidentiary hearing and appearance of new counsel, the trial court issued an opinion and order denying PCRA relief on September 2, 1997. Petitioner's initial appellate brief was filed with the Pennsylvania Supreme Court on February 25, 1998. Given the range of dates during which proceedings occurred in this case, the Court must determine whether state procedural rules were firmly established and regularly followed from May 21, 1988 through February 25, 1998. Focusing on this time frame, the Court now turns to two of the state procedural rules at issue in this case — the Pennsylvania relaxed waiver rule and the bar on PCRA relief for previously litigated claims.

2. The Pennsylvania "Relaxed Waiver" Rule

The Commonwealth of Pennsylvania formerly applied a relaxed waiver rule during PCRA review of capital convictions, whereby the Pennsylvania Supreme Court's "practice [was] to address all issues arising in a death penalty case irrespective of a finding of waiver." Commonwealth v. Morris, 546 Pa. 296, 306 n. 11, 684 A.2d 1037, 1042 n. 11 (1996). This relaxed waiver rule was reversed in Commonwealth v. Albrecht, 554 Pa. 31, 44, 720 A.2d 693, 700 (1998) as follows: "While it has been our `practice' to decline to apply ordinary waiver principles in capital cases . . . we will no longer do so in PCRA appeals." (internal citation omitted). In this case, as discussed supra, petitioner filed his direct appeal and all submissions related to his PCRA petition before the Albrecht rule was clearly established; it thus does not serve to bar federal habeas review as an adequate state procedural ground. Prior to the Pennsylvania Supreme Court's decision in Albrecht, the rule applied by the state courts explicitly allowed the Pennsylvania Supreme Court to reach the merits of PCRA petitions in capital cases regardless of whether a claim was previously waived.

In Commonwealth v. DeHart, 539 Pa. 5, 25, 650 A.2d 38, 48 (1994), for example, the Pennsylvania Supreme Court explained that although "[a]ppellant concedes that this issue is technically waived because it was not previously raised below, we will nonetheless address it because we have not been strict in applying our waiver rules in death penalty cases." See also Commonwealth v. Beasley, 544 Pa. 554, 563, 678 A.2d 773, 777 (1996) (writing that, in spite of the fact that petitioner failed to comply with applicable PCRA rules, and that the claim should be dismissed without a hearing on the merits, "since this is a capital case, this court will address appellant's claims").

Since petitioner had no way of knowing throughout the pendency of his PCRA proceedings that the Pennsylvania Supreme Court was going to change course and decline to apply the relaxed waiver rule in his case, the Court concludes that the Pennsylvania Supreme Court's decision in Albrecht is not a state procedural bar that is adequate to preclude habeas review and that any state court findings of default based on Albrecht will not foreclose review by this Court. Rather, the older relaxed waiver rule applies to petitioner in analyzing state procedural default as a bar to federal habeas relief. See Ford, 498 U.S. at 424; Doctor, 96 F.3d at 683-84. Furthermore, as discussed supra, since the Pennsylvania Supreme Court has clearly stated that Albrecht applies retroactively, the Court concludes that "there is an absence of available State corrective process," 28 U.S.C. § 2254(b)(1)(B)(i), with respect to claims that petitioner may have inadvertently waived, and this Court will treat any such claims as if they were exhausted.

3. "Previously Litigated"

To be eligible for state post-conviction relief in Pennsylvania, a PCRA applicant must establish that the issues raised in his or her PCRA petition have not been previously litigated. Albrecht, 554 Pa. at 41, 720 A.2d at 698. See 42 Pa. Cons. Stat. Ann. § 9543(a) (West 1998) ("To be eligible for [PCRA] relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence . . . (3) That the allegation of error has not been previously litigated or waived."). As set forth in the version of the Pennsylvania PCRA statute that applies to petitioner:

For the purpose of this subchapter, an issue has been previously litigated if: (1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal; (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.

42 Pa. Cons. Stat. Ann. § 9544(a) (West 1982 & 1995 Supp.).*fn3 The Pennsylvania Supreme Court has explained that "[a]n issue has been previously litigated if the highest appellate court in which an appellant could have had review as a matter of right has ruled on the merits of the issue, or the issue has been raised and decided in a proceeding collaterally attacking the conviction or sentence." Albrecht, 554 Pa. at 41, 720 A.2d at 698.

This state rule may constitute an adequate and independent state procedural ground such that a claim that was previously litigated by petitioner on direct appeal as a state issue and which was subsequently barred on PCRA review as previously litigated is procedurally defaulted and thus unavailable for review by the federal courts unless petitioner is able to demonstrate cause and prejudice, as discussed supra. See, e.g., Blackwell v. Larkins, 1998 WL 401752, at *4-5 (E.D.Pa. July 6, 1998) (concluding that a claim previously litigated on state grounds and thus not reviewable during PCRA proceedings is procedurally defaulted); Commonwealth v. Szuchon, 548 Pa. 37, 693 A.2d 959 (1997) (holding that petitioner is ineligible for PCRA relief on those claims that were previously litigated).

Finally, the Court notes that, in order to preserve a claim for federal habeas review, "a petitioner who has raised the claim on direct appeal need not raise it again in a state post-conviction proceeding." Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992) (citing Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984)). Thus, petitioner's claims that were properly presented as federal claims either on direct appeal or during his PCRA proceedings are preserved for federal habeas review.

D. Application of § 2254

Once a federal habeas court finds that a petitioner has exhausted state remedies and that a claim is not procedurally defaulted, the court must determine whether the claim was adjudicated on the merits in state court. As explained by the Third Circuit in Hameen v. Delaware, 212 F.3d 226 (3d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1365 (2001), to constitute an adjudication on the merits, the state supreme court must apply controlling United States Supreme Court precedent. In Hameen, the Third Circuit concluded that the Delaware Supreme Court did not rule on one of petitioner's arguments even though it had an opportunity to do so, writing that "we cannot say that the Delaware Supreme Court took into account controlling Supreme Court decisions. This point is critical because under the AEDPA the limitation on the granting of an application for a writ of habeas corpus is only with respect to any claim that was adjudicated on the merits in State court proceedings." Id. at 248 (internal quotation omitted).

If the state court resolved the issue on the merits, § 2254 defines two categories of cases in which a state prisoner may obtain federal habeas relief as follows:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . .

28 U.S.C. § 2254(d) (Supp. V 1999).

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court, interpreting § 2254 as amended by the AEDPA, explained that the "contrary to" clause implicates two different types of cases as follows: "a federal habeas court may grant the writ if the state court [1] arrives at a conclusion opposite to that reached by this Court on a question of law or [2] if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 413.

Under the "unreasonable application" clause, a federal writ may issue when the state court identifies the correct legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of a particular case. Id. In addition, a state court's determination may be set aside as unreasonable where the state court "unreasonably refuses to extend the governing legal principle to a context in which the principle should control or unreasonably extends the principle to a new context where it should not apply." Hardcastle v. Horn, 2001 WL 722781, at *5 (E.D.Pa. June 27, 2001) (citing Ramdass v. Angelone, 530 U.S. 156, 166 (2000)); see also Williams, 529 U.S. at 407.

The Supreme Court drew a distinction between incorrect application and unreasonable application of federal law in Williams, concluding that "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. When inquiring into whether the application of law was unreasonable in a particular case, the federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. In determining whether the state court applied Supreme Court precedent reasonably, habeas courts may consider the decisions of the inferior federal courts. Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir.), cert. denied sub nom. Matteo v. Brennan, 528 U.S. 824 (1999); Hardcastle, 2001 WL 722781, at *5.

In the event that a claim was not adjudicated on the merits by the state courts, the Court will exercise "pre-AEDPA independent judgment." Hameen, 212 F.3d at 248. See 28 U.S.C. § 2254(d) (Supp. V 1999) (limiting the grant of the writ "with respect to any claim that was adjudicated on the merits in State court proceedings"). In its exercise of independent judgment, "the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact, as a court would have done prior to the enactment of AEDPA." Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001); Bronshtein v. Horn, 2001 WL 767593, at *11 (E.D.Pa. July 5, 2001).

Against this doctrinal backdrop, the Court now turns to the merits of petitioner's claims.*fn4

IV. DISCUSSION

A. Guilt Phase Claims

1. Jury and Prosecutorial Irregularities

a. Jury and Prosecutorial Misconduct

Petitioner claims a variety of irregularities, including jury and prosecutorial misconduct, and jury tampering in violation of the Sixth, Eighth and Fourteenth Amendments (Claim VI). The misconduct claim is based on the following events: during trial, the court admitted an up-close photograph of the victim's body.*fn5 The trial court had ordered that the photograph be cropped by stapling a piece of blue paper over the most gruesome portion of the photo; however, when the photograph came back from the jury room after deliberations, it appeared that the jury had removed the paper and therefore viewed the rest of the photograph.*fn6 Petitioner contends that this incident constitutes jury misconduct.

Petitioner also contends that these events warrant a finding of prosecutorial misconduct. During a post-trial proceeding to address this issue, the prosecution admitted that when the photo was returned after the guilt phase, the blue paper had been bent to one side and two of the staples holding the paper in place had been removed. Post-trial H'rg Tr. at 3-5 (November 3, 1988). Petitioner claims that the prosecutor's failure to disclose his knowledge of the jury's misconduct to the court constituted prosecutorial misconduct as prosecutors generally have a duty to disclose evidence which is exculpatory and to correct errors that may harm a defendant. See Giglio v. United States, 405 U.S. 150, 153-55 (1972); Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264, 269 (1959).

This claim, however, is procedurally defaulted and cannot be reached by this Court on federal habeas review. Petitioner presented this claim on direct appeal as a matter of state evidence law, not as a federal constitutional issue. See Chester, 526 Pa. at 592-93, 587 A.2d at 1374 (discussing the admissibility of photographs of a murder victim under state law; concluding that the admission of several photographs of the deceased was not an abuse of discretion). As a result, the PCRA court concluded that the claim had been previously litigated and that the court was thus barred from addressing the claim on collateral review as a matter of state procedure. Laird, 555 Pa. at 650, 720 A.2d at 356 (holding that petitioner's claim of jury and prosecutorial misconduct "has been finally litigated and petitioner cannot obtain post-conviction relief on this basis") (citing 42 Pa. Cons. Stat. Ann. § 9544(a)(2)); see supra Part III(C)(3) (discussing state procedural rule preventing PCRA review of previously litigated claims). In addition, the PCRA court observed that the "trial court found any error in the jury's viewing of the cropped photo harmless in light of the other photos [admitted at trial]." Laird, 555 Pa. at 649, 726 A.2d at 355.

Petitioner attempts to excuse the failure to raise the claim as a federal issue on the ground that his appellate counsel was inadequate. In evaluating an ineffective assistance of appellate counsel claim, this Court applies the standards of Strickland v. Washington, 466 U.S. 668 (1984), which requires a showing that counsel was objectively unreasonable and that counsel's deficient performance prejudiced the defense such that there is a reasonable probability that but for counsel's inadequacies, the outcome of the prior proceeding would have been different. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (stating that the "proper standard for evaluating [petitioner's] claim that appellate counsel was ineffective in neglecting to file a merits brief is that enunciated in Strickland v. Washington").

Under Strickland, judicial review of counsel's performance is highly deferential; the Court must indulge a strong presumption that counsel's performance falls within the wide range of that which constitutes reasonable professional assistance. See Strickland, 466 U.S. at 689. Counsel did raise this issue on appeal, but did not present it as a federal constitutional issue. Under those circumstances, counsel's performance was not objectively unreasonable as required under Strickland.

The Court concludes that it is precluded from reaching this claim as it was never fairly presented to the state court as a federal issue and petitioner cannot excuse his procedural default.

b. Jury Tampering

Petitioner alleges that jury tampering occurred on the morning of May 21, 1988 when the sequestered jury was returning to court to continue its deliberations during the penalty phase. In 1995, one of the jurors, Mr. Maurizzio, reported that, as they were leaving the hotel at which they were sequestered, he commented to another juror that he hoped they would be able to reach a verdict. In response, he heard the following remark, possibly made by a tipstaff or deputy clerk: "[W]ell there's only one decision you can make." Laird, 555 Pa. at 650, 726 A.2d at 356. The PCRA court held an evidentiary hearing on this issue on May 25, 1995 in which Mr. Maurizzio recounted the above exchange. An additional hearing was then held April 1, 1996 in which all but two of the remaining jurors were questioned about the exchange, and Mr. Maurizzio was recalled for additional questioning.*fn7

Petitioner argues that this statement improperly forced the jury to reach a verdict of death; and the fact that the comment could have been delivered by a court officer heightens the possible prejudice. Further, petitioner argues, the inability of the PCRA court to question two of the jurors makes it impossible to assess whether the comment was harmless. Respondents argue in response that the remark was ambiguous*fn8 and cannot be used as a reason to overturn the verdict; it was not clear who had made the statement; and that none of the jurors testified that they were influenced in any way by the comment.

When faced with evidence of a private communication, contact, or tampering directly or indirectly with a juror during trial, the trial court is required to conduct a hearing to determine the prejudicial effect, if any, of such an occurrence. Remmer v. United States, 347 U.S. 227, 229 (1954). In reviewing a federal habeas challenge to a state court conviction on the basis of jury tampering, the Court must determine whether the state trial court conducted a hearing to address such allegations. See Smith v. Phillips, 455 U.S. 209, 215-17 (1982).

As discussed supra, petitioner's claim based on the photograph is procedurally defaulted; the claim of jury tampering does not entitle petitioner to relief. Accordingly, this claim (Claim VI) does not provide a basis for federal habeas relief.

2. Jury Instructions on Accomplice Liability

a. Procedural History

Petitioner claims that the jury instruction given on accomplice liability at trial was improper, arguing that the instruction unconstitutionally relieved the prosecution of its burden of proving all elements of first degree murder (Claim X). As a preliminary matter, respondents contend that this claim is procedurally defaulted as it was not raised on direct appeal. Although it is true that this claim was first raised during petitioner's PCRA proceeding, the procedural history of this claim is complex and warrants explanation.

A similar claim to the one petitioner now raises was raised on direct appeal by petitioner's co-defendant Chester; petitioner did not personally raise this claim until PCRA review. Laird's and Chester's direct appeals were consolidated for review by the Pennsylvania Supreme Court. See Chester, 526 Pa. at 613, 587 A.2d at 1384 ("Appellant [Chester] submits that counsel was ineffective for failing to object to the trial court's failure to instruct the jury to find specific intent as a prerequisite for accomplice liability.").

Apparently as a result of Chester having raised the claim on direct appeal, when petitioner raised it during PCRA review, the Pennsylvania Supreme Court rejected the claim as follows:

Petitioner next claims that the trial court erroneously charged the jury on the issue of specific intent for first degree murder where the defendant is charged as an accomplice. This issue was presented on direct appeal as an allegation of ineffectiveness of trial counsel for failure to object to the charge as given. . . . Petitioner attempts to relitigate this claim by attacking appellate counsel's ineffectiveness for failing to prevail on this claim in the direct appeal. Post-conviction relief cannot be obtained on a previously litigated claim merely by arguing appellate counsel's ineffectiveness and presenting new theories of relief.

Laird, 555 Pa. at 646, 726 A.2d at 354. Notwithstanding the fact that Chester, not Laird, raised this claim on direct appeal, the Pennsylvania Supreme Court treated the claim as previously litigated and thus barred from review in PCRA proceedings. In doing so, the state court disposed of this claim quite differently from another claim raised by Chester and not Laird on direct appeal, about which the PCRA court wrote: "as noted in the trial court opinion disposing of post-trial motions, only co-defendant Chester raised this issue [on direct appeal], it has not been finally litigated by petitioner." Laird, 555 Pa. at 647, 726 A.2d at 354-55.

Despite respondents' contention that Laird's failure to raise this claim during his direct appeal constitutes procedural default, the Court concludes that this claim is not procedurally defaulted and that it may review the claim on the merits.*fn9 As an initial matter, the Court finds that this claim is exhausted; the Pennsylvania Supreme Court rejected the claim on PCRA review, there is thus "an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i) (Supp. V 1999). In addition, there was no procedural default due to waiver. As discussed supra Part III(C)(2), petitioner filed his direct appeal and PCRA petition at a time when Pennsylvania applied a relaxed waiver rule in capital cases. Since Albrecht's rejection of the relaxed waiver rule as a state procedural bar was not clearly established at the time petitioner filed his direct appeal, this Court does not consider the Albrecht rule as a state procedural bar to federal habeas review in this case.

Because the Pennsylvania Supreme Court rejected this claim without ever having reviewed it, the AEDPA does not limit the grant of the writ with respect to this claim.*fn10 28 U.S.C. § 2254(d) (Supp. V 1999) (limiting the grant of a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings"). Accordingly, this Court will use pre-AEDPA independent judgment in analyzing the merits of this claim. See Appel v. Horn, 250 F.3d 203, 210-12 (3d Cir. 2001); Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1365 (2001). As jury instruction issues present pure questions of law, the Court reviews this claim de novo. Appel, 250 F.3d at 210.

b. Analysis

Pennsylvania law requires the prosecution to prove specific intent to kill beyond a reasonable doubt in order to convict a defendant of first degree murder. See 18 Pa. Cons. Stat. Ann. § 2502 (West 1998) (last amended Apr. 28, 1978).*fn11

The charge that the Pennsylvania Supreme Court rejected in Huffman provided:

[I]n order to find a Defendant guilty of murder in the first degree, you must find that the Defendant caused the death of another person, or that an accomplice or co-conspirator caused the death of another person. That is, you must find that the Defendant's act or the act of an accomplice or co-conspirator is the legal cause of death of [the victim], and thereafter you must determine if the killing was intentional.

Huffman, 536 Pa. at 198-99, 638 A.2d at 962. In evaluating this instruction, the Huffman court concluded that this charge is "a patently erroneous statement of the law," Huffman 536 Pa. at 199, 638 A.2d at 962, because the charge allowed the jury to reach a verdict of first-degree murder without a finding of the requisite mental state — specific intent to kill — on the part of the accomplice. Id. The Court thus concluded that "[a]n inaccurate jury instruction, such as the accessorial and co-conspiratorial liability instruction in the case sub judice, is obviously no less questionable than was the inaccurate instruction as to the burden of proof which we found was not harmless error [in another case]. . . ." Id. at 200, 638 A.2d at 963.

The Third Circuit has held that improper jury instructions on the specific intent requirement of first degree murder under Pennsylvania law may result in a violation of a petitioner's right to a fair trial pursuant to the Due Process Clause of the Fourteenth Amendment. Smith v. Horn, 120 F.3d 400, 410 (3d Cir. 1997). In Smith, upon concluding "from a fair reading of the jury instructions that there is a reasonable likelihood that the jury convicted [petitioner] of first-degree murder without finding beyond a reasonable doubt that [petitioner] intended that [the victim] be killed," the court found the charge impermissible. Id.

As explained by the Third Circuit, under Pennsylvania law today, and at the time of Laird's conviction, "an accomplice or co-conspirator in a crime during which a killing occurs may not be convicted of first-degree murder unless the Commonwealth proves that he harbored the specific intent to kill." Smith, 120 F.3d at 410 (citing 18 Pa. Cons. Stat. Ann. § 2502(a) (West 1983)); Wayne, 553 Pa. at 632, 720 A.2d at 464; Huffman, 536 Pa. at 199, 638 A.2d at 962; Bachert, 499 Pa. at 406, 453 A.2d at 935. Significantly, "[t]his is so even where the identity of the actual killer is unknown." Smith, 120 F.3d at 410.

In evaluating a claim that a jury instruction was improper, the Court must determine whether the challenged instruction created a situation where the "jury is clearly instructed by the court that it may convict a defendant on an impermissible legal theory, as well as on a proper theory or theories," or a case in which an "instruction is ambiguous and therefore subject to an erroneous interpretation." Boyde v. California, 494 U.S. 370, 380 (1990). With respect to the accomplice liability instruction given by the trial court in this case, the Court concludes that the jury instruction falls into the latter `ambiguous' category.*fn12

In evaluating a jury instruction, the Court's analysis "`must focus initially on the specific language challenged.'" Smith, 120 F.3d at 411 (quoting Francis v. Franklin, 471 U.S. 307, 315 (1985)). The Court then considers the allegedly constitutionally infirm language in the context of the jury charge as a whole. Id. (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991); Flamer v. Delaware, 68 F.3d 736, 752 (3d Cir. 1995); Kontakis v. Beyer, 19 F.3d 110, 115-16 (3d Cir. 1994)). The central inquiry is "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. at 72 (quoting Boyde v. California, 494 U.S. 370, 380 (1990)).

The Court first turns to the specific language of the charge challenged by petitioner. At the close of the guilt/innocence phase of petitioner's trial, the trial court instructed the jury on accomplice liability as follows:

You may find a defendant guilty of a crime without finding that he personally engaged in the conduct required for commission of that crime.
A person is guilty of a particular crime if he is an accomplice of another person who commits that crime. A defendant does not become an accomplice merely by being present at the scene or knowing about a crime. He is an accomplice, however, if with the intent of promotion or facilitating commission of a crime he solicits, or commands or encourages or requests the other person to commit it or if he aids, agrees to aid, or attempts to aid the other person in planning the crime or committing the crime. . . . You may find the defendant guilty of a particular crime on the theory that he was an accomplice so long as you are satisfied beyond a reasonable doubt that the crime was committed and the defendant was an accomplice of the person who committed it.

Trial Tr. at 664-65 (May 19, 1988) (emphasis added).

The Court subsequently instructed the jury on the specific elements of first degree murder under Pennsylvania law:

Murder in the first degree. You may find a defendant guilty of first degree murder if you are satisfied that the following four elements have been proved beyond a reasonable doubt:

First, that Anthony Milano is dead.

Second, that a defendant or an accomplice of the defendant killed him.

Third, that that killing was with specific intent to kill.

And, fourth, that the killing was with malice as I have defined that term for you.
A killing is with specific intent to kill if it is willful, deliberate, and pre-meditated; that is, if it is committed by a person who has a fully informed intent to kill and is conscious of his own intent.

Trial Tr. at 686-87 (May 19, 1988).

Upon reviewing the jury instructions in their entirety, the Court concludes that there is a reasonable likelihood that the jury applied the court's instructions in a way that relieved the prosecution of establishing beyond a reasonable doubt that Laird individually harbored a specific intent to kill Milano. See Smith, 120 F.3d at 410. As discussed supra, `"[t]o determine the kind of homicide of which the accomplice [defendant] is guilty, it is necessary to look to his state of mind; the requisite mental state must be proved beyond a reasonable doubt to be one which the accomplice harbored and cannot depend upon proof of intent to kill only in the principal.'" Id. (emphasis in original) (quoting Bachert, 499 Pa. at 406, 453 A.2d at 935).

In petitioner's case, the jury was not specifically instructed that it needed to find that both defendants harbored specific intent to kill in order to convict them both of first degree murder. Rather, the instruction on accomplice liability was reasonably likely to lead the jury to conclude that it need only find that petitioner solicited, commanded, encouraged or requested the facilitation of a crime and the crime of first degree murder was committed — by either defendant. In essence, the first degree murder charge given by the trial court in this case required only that the jury find that (1) the victim died; (2) a defendant or his accomplice killed the victim; (3) "that killing was with specific intent to kill"; and (4) the killing was with malice. Although this is a correct statement of the law when applied to an individual defendant, the charge did not explain to the jury that, in order to convict both petitioner and his co-defendant of first degree murder, it had to find that each defendant harbored specific intent to kill. See Bachert, 499 Pa. at 406, 453 A.2d at 935; Huffman, 536 Pa. at 199, 638 A.2d at 962.

A recent case in this district concerned a similarly defective conspiracy charge in which the jury was instructed that it could find the defendant guilty of first degree murder if he "was a co-conspirator of one who had the specific intent to kill." Bronshtein v. Horn, 2001 WL 767593, at *13, 14 (E.D.Pa. July 5, 2001). In Bronshtein, the court determined that this instruction "allowed the defendant to be convicted without proof of his specific intent." Id. at *17. Accordingly, the Bronshtein court held that the instructions given at trial impermissibly relieved the prosecution's burden of proving every element of first degree murder beyond a reasonable doubt in violation of the Fourteenth Amendment Due Process Clause and that petitioner was entitled to habeas relief as a matter of law. Id. at *17.

Although the charge given in this case was different from the charge in Bronshtein, both charges suffer from the same deficiency — they erroneously instructed the jury that a defendant could be found guilty upon concluding that he had the intent to commit a crime with his accomplice or co-conspirator; it was not made clear to the jurors that they must find that a defendant had specific intent to kill in order to convict that defendant of first degree murder. The Court concludes that this error was not harmless. Upon a review of the record, it cannot be said that "the error had no substantial and injurious effect or influence on the jury's verdict." Smith, 120 F.3d at 419 (quotation marks omitted).

Given the reasonable likelihood that the jury applied the trial court's instructions in a way that relieved the prosecution of proving every element of first degree murder beyond a reasonable doubt, due process requires that defendant's first degree murder conviction be overturned. Thus, petitioner is entitled to habeas relief on this claim (Claim X) as a matter of law and his first degree murder conviction will be vacated and set aside without prejudice to the right of the Commonwealth of Pennsylvania to grant petitioner, within 180 days, a new trial on the first degree murder charge and, if petitioner is found guilty, a new sentencing on that charge, and/or a sentencing on the convictions as to which the trial court did not impose sentence.

3. Ineffective Assistance of Counsel in Preparing a Defense

Petitioner argues that his trial counsel was ineffective by admitting defendant's presence at the crime scene, but denying his culpability by characterizing him as an innocent bystander and placing blame for the murder on Chester, petitioner's co-defendant (Claim XII). It is petitioner's contention that this approach amounted to ineffective assistance of counsel in violation of the Sixth, Eighth and Fourteenth Amendments, as the defense presented at trial conceded much of the prosecution's case. Laird also argues that counsel should have pursued a diminished capacity defense based on petitioner's intoxication and/or his mental impairments, including Post-Traumatic Stress Disorder, Attention Deficit Disorder, and organic brain damage at the time of the murder.

Respondents contend that counsel's tactics were not only reasonable but necessary, given that petitioner consistently maintained his innocence. Further, respondents aver that a diminished capacity defense is extremely hard to assert in Pennsylvania and there was no need for defense counsel to present expert testimony about petitioner's intoxication due to the amount of testimony at trial regarding the defendants' heavy drinking on the night of the murder.

To establish ineffective assistance of trial counsel, petitioner must demonstrate that counsel's performance was objectively unreasonable and that petitioner was prejudiced as a result — that but for counsel's deficiencies, the outcome of the prior proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, judicial review of counsel's performance is highly deferential; the Court must indulge a strong presumption that counsel's performance falls within the wide range of that which constitutes reasonable professional assistance. See id. at 689. Further, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions with the exercise of reasonable professional judgment. See id. at 690.

The Pennsylvania Supreme Court found that petitioner failed to demonstrate that his trial counsel's actions were objectively unreasonable. Rather, that court concluded that, in order to present a diminished capacity defense, trial counsel would have had to put on a defense that contradicted petitioner's own testimony and that counsel cannot be required to do so. See Laird, 555 Pa. at 645-46, 726 A.2d at 353-54. The Pennsylvania Supreme Court further concluded that, to the extent trial counsel failed to investigate a possible diminished capacity defense, such lack of investigation was reasonable in light of the strategic choices made at trial. See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.").

The Pennsylvania Supreme Court applied the correct rule of law with respect to this claim in a reasonable manner. This Court thus concludes that this claim (Claim XII) does not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.