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LAIRD v. HORN
September 5, 2001
RICHARD LAIRD, PETITIONER,
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.
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
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
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.
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
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,
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
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.
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.
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
(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
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
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
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
"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
`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").
In examining the state of Pennsylvania procedural law applicable to
cases as of November, 1997, the Third Circuit described the procedural
terrain as "inhibitively opaque," in part because the Pennsylvania
Supreme Court had not yet announced in Albrecht that it would no longer
observe the relaxed waiver rule in capital cases. Fahy v. Horn,
240 F.3d 239, 245 (3d Cir. 2001), petition for cert. filed, 70 U.S.L.W.
3074 (U.S. June 25, 2001) (No. 01-17). As found by the district court in
Bronshtein v. Horn, 240 F. Supp.2d 239, 245 2001 WL 767593, at *8 n. 17
(E.D.Pa. July 5, 2001), "[b]ecause it is clear that the relaxed waiver
doctrine did not fall out of favor in the PCRA context until after the
waiver in the instant case occurred [on October, 20, 1998],
[petitioner's] second PCRA petition was not dismissed on the basis of an
adequate state ground."
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
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
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
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  arrives
at a conclusion opposite to that reached by this Court on a question of
law or  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,
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
1. Jury and Prosecutorial Irregularities
a. Jury and Prosecutorial 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
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
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.
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
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
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
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
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
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.
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
Accordingly, a jury charge that relieves the prosecution of the need to
prove specific intent to kill in a first degree murder case is
impermissible. In the context of accomplice liability, this rule was
explained by the
Pennsylvania Supreme Court in Commonwealth v. Bachert, 499 Pa. 398, 406,
453 A.2d 931, 935 (1982): "[t]o determine the kind of homicide of which
the accomplice 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." See also Commonwealth v. Huffman,
536 Pa. 196, 198-99, 638 A.2d 961, 962 (1994) (concluding that a jury
instruction on accomplice liability was a misstatement of the law when
the charge informed the jury it could find an accomplice guilty of first
degree murder without finding that the accomplice had specific intent to
kill); Commonwealth v. Wayne, 553 Pa. 614, 632, 720 A.2d 456, 464 (1998)
("To allow a conviction for first degree murder to stand without proof
beyond a reasonable doubt establishing that the accused actually harbored
the specific intent to kill, would be unconscionable."), cert. denied,
528 U.S. 834 (1999).
The charge that the Pennsylvania Supreme Court rejected in Huffman
[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 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
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
You may find a defendant guilty of a crime without
finding that he personally engaged in the conduct
required for commission of that crime.
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.
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
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.
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 ...