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November 6, 2001


The opinion of the court was delivered by: J. Curtis Joyner, J.


This case is once again before this Court for consideration and disposition of Otis Peterkin's Petition for Writ of Habeas Corpus. For the reasons set forth below, the petition shall be granted.

History of the Case

The instant petition arises out of a series of events which began on November 29, 1981 with the robbery of the Sunoco Service Station located at Broad and Catherine Streets in South Philadelphia and the murder of two of its employees. On December 2, 1981, the petitioner, Otis Peterkin, turned himself into the police after learning that a warrant had been issued for his arrest for the crimes. Petitioner was subsequently tried and convicted in September, 1982 of two counts of first degree murder for the shooting deaths of station manager John Smith and attendant Ronald Presbery, as well as one count each of robbery and possession of an instrument of crime. Petitioner's post-trial motions were denied and he was sentenced to death on the murder convictions, ten to twenty years' imprisonment on the robbery conviction, and two and one-half to five years on the conviction for possession of an instrument of crime.

Thereafter, Mr. Peterkin appealed his convictions and sentences to the Pennsylvania Supreme Court, making the following arguments on direct appeal:

1. That the Pennsylvania Death Penalty Statute is unconstitutional because it creates a conclusive presumption favoring death.
2. That he received ineffective assistance from his trial counsel in that counsel failed to investigate, research and apply the law, failed to interview witnesses, failed to object to the exclusion of those potential jurors who expressed opposition to the death penalty and to the death qualification of the jury, failed to raise constitutional challenges to the death penalty and failed to present evidence of mitigating circumstances and factors.
3. That the trial court erred in allowing the admission of irrelevant and hearsay testimony from, inter alia, Stanley Trader, Maurice Rogers, Diana Dunning and Clarence Sears and in denying petitioner standing to challenge the search of Sherry Diggins' apartment.
4. That trial counsel was further ineffective in: introducing himself to the jury as petitioner's "court-appointed" counsel; delivering a closing argument to the jury that was not based on the evidence presented; failing to prepare for sentencing and failing to present mitigation evidence at the penalty stage of the trial.
5. That a proportionality review reflects that the sentence of death was inappropriate and disproportionate in his case.

With the exception of finding that the testimony of Diana Dunning was irrelevant and that the hearsay statements made by Ronald Presbery to Stanley Trader and Clarence Sears were improperly admitted but were nonetheless harmless error, the Pennsylvania Supreme Court rejected petitioner's assignments of error and upheld his convictions and sentences. See: Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). Mr. Peterkin appealed to the U.S. Supreme Court, which denied certiorari in 1987. Peterkin v. Pennsylvania, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987).

Petitioner then sought relief pro se under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. § 9541, et. seq. Counsel was appointed for him, but after reviewing the issues which Mr. Peterkin sought to raise, concluded that they either lacked merit or had been litigated earlier. Appointed counsel therefore filed a "no-merit" letter and requested permission to withdraw his appearance. The trial court granted counsel leave to withdraw and denied the PCRA petition without a hearing. Mr. Peterkin then appealed pro se to the Pennsylvania Superior Court which transferred the appeal to the Pennsylvania Supreme Court in accord with 42 Pa.C.S. § 9546(d). The Supreme Court remanded the case to the trial court to determine whether Mr. Peterkin was eligible for appointed counsel. Another attorney was subsequently appointed to represent the petitioner and the Pennsylvania Supreme Court then considered whether his convictions and sentences should be set aside on any of the following grounds:

1. He was denied his constitutional right to effective assistance of counsel where trial counsel failed to present character witnesses on his behalf at trial and where post-trial counsel failed to properly raise and argue this issue on direct appeal and in the court below on his PCRA petition.
2. He was denied his constitutional right to a fair trial and to due process of law where the prosecutor engaged in gross misconduct in his closing argument at trial and that both trial and post-trial counsel were ineffective in failing to raise and preserve this issue for appeal purposes.
3. The court failed to advise the jury that mitigating circumstances need not be found unanimously to be weighed and considered by individual jurors and prior counsel were ineffective in failing to raise and previously litigate this issue.
4. No sentence of death was imposed by the jury on either bill of information upon which he was found guilty of murder in the first degree, as both murder bills were submitted jointly to the jury for a single consideration and imposition of penalty.
5. Trial counsel failed to present available evidence in mitigation and an inadequate closing argument at sentencing thereby depriving him of his constitutional right to effective representation and post-trial counsel were ineffective in failing to properly raise this issue on direct appeal and to the court below on his PCRA petition.
6. He was denied his constitutional right to a fair trial and to due process of law as a result of prosecutorial misconduct in the sentencing argument and trial and post-trial counsel were ineffective in failing to object and preserve this error on direct appeal or in the court below on PCRA petition.

The Supreme Court found that the prosecutor may have committed error in requesting the jury to be as cold and ruthless as Petitioner had been when he murdered the victims and in telling the jury that the "best witnesses," i.e., the victims, "are not here," but if they were, he was "sure" that "they would tell you that it was not my choice to go this way, it was not my choice to go in that kind of pain." Nevertheless, the Supreme Court found that petitioner had failed to demonstrate that these remarks prejudiced the jury or that if they did, this error was also harmless given the overwhelming evidence of Petitioner's guilt. Accordingly, the trial court's denial of Petitioner's PCRA petition was affirmed.

By way of the petition for writ of habeas corpus which is now before this Court, Mr. Peterkin continues to seek to have his convictions and sentences overturned. In addition to reiterating the claims which he raised on direct appeal and in his initial PCRA petition, however, Mr. Peterkin now also asserts the following grounds*fn1 for the relief sought:

1. That the Commonwealth improperly withheld exculpatory evidence and presented inaccurate, misleading and false evidence and argument to the jury (with regard to the testimony of Sherry Diggins and Officers McCabe and Kane, to the statements of Arlene Foster, to fingerprint evidence and the results of the polygraph examination given to Stanley Trader).

2. That trial counsel was ineffective at the pre-trial stage in:

— failing to conduct proper discovery;

— failing to investigate the crime scene;

— failing to review fingerprint and ballistic evidence;

— failing to consult and retain forensic experts;

— failing to investigate the background and potential involvement of Stanley Trader;
— failing to investigate the background and potential involvement of Leroy Little;
— failing to investigate previous crimes and incidents at the Sunoco Service Station at Broad and Catherine Streets;

— failing to request a bill of particulars;

— failing to request or move for disclosure from the prosecution;

— failing to provide notice of an alibi defense; and

— failing to challenge the affidavits in support of the warrants pursuant to Franks v. Delaware.

3. That trial counsel was ineffective at the trial stage in:

— failing to make an effective opening statement;

— failing to humanize petitioner;

— failing to even suggest the remote possibility to the jury that petitioner was innocent;
— failing to cross-examine prosecution witnesses Stanley Trader, Clarence Sears, Sherry Diggins, Alex Charyton, Detective Kane, Officer McCabe, Assistant Medical Examiner Paul Hoyer and Ballistics expert William Fort;
— failing to effectively cross-examine the prosecution witnesses that were cross-examined;
— failing to present a single witness for the defense, including alibi witnesses; and

— failing to present an effective closing argument.

4. That numerous instances of prosecutorial misconduct occurred entitling him to relief from his convictions, including:
— despite the fact that he had no prior criminal record, the prosecutor erred in producing three witnesses who testified that petitioner received public assistance payments at a vacant lot address, that he was registered to vote under two different names (Otis Loach and Otis Peterkin), and that he owned two firearms, neither of which were used in the crimes at issue;
— the prosecutor improperly vouched for the strength and veracity of the Commonwealth's witnesses and case;
— the prosecutor improperly urged the jury in his closing argument to "[r]eturn to the values of yester-year";
— the prosecutor improperly used the hearsay testimony of Stanley Trader and Maurice Rogers as substantive evidence in his closing argument.
5. That the trial court gave a defective instruction on "reasonable doubt."
6. That the evidence properly admitted was insufficient to convince any rational trier of fact that Petitioner was guilty of first degree murder beyond a reasonable doubt.

7. That he is innocent.

8. That there was insufficient evidence that Petitioner robbed John Smith. If anything, it was the Sunoco station that was robbed.
9. That the jury's declaration upon and issuance of a single death sentence for two capital murder convictions was in violation of the 8th and 14th Amendments.
10. There were no aggravating factors since the only aggravating factor found, i.e., killing in perpetration of a felony was improper given that there was no evidence that Smith was killed in the course of himself being robbed.
11. The Commonwealth failed to provide adequate notice that it would seek the death penalty as such notice was not given until jury selection.
12. The trial court failed to properly instruct the jury on mitigating factors and how to balance them against the aggravating factors.
13. The trial court failed to explain to the jury that in Pennsylvania a life sentence means a life sentence with no possibility of parole.
14. That the trial court's penalty phase instructions were insufficient and were invalid in that they failed to describe and define the aggravating and mitigating circumstances involved in petitioner's case and how to weigh or balance the factors.
15. That the trial court's sentencing instructions and verdict form created a substantial probability that the jurors thought they would be precluded from considering mitigating matters upon which they were not unanimous.

Previously, via Memorandum and Order dated December 29, 1998, we had dismissed Mr. Peterkin's habeas corpus petition without prejudice as mixed (i.e. containing both exhausted and unexhausted claims) and to allow him the opportunity to raise these last issues before the Pennsylvania state courts by affording the Pennsylvania Supreme Court the time to rule on the propriety of the Philadelphia Common Pleas Court's decision to dismiss his second PCRA petition.*fn2 The Court of Common Pleas dismissed the petition as premature due to Peterkin's having filed a petition for writ of habeas corpus in this Court. The Pennsylvania Supreme Court, in turn, upheld the decision to dismiss the petition on the grounds that as it was Peterkin's second PCRA petition, it was untimely filed.*fn3

Shortly after the Supreme Court issued its most recent decision affirming the dismissal of Petitioner's second PCRA petition, Mr. Peterkin moved to reinstate his federal habeas corpus petition. We granted this request and gave the parties leave to file supplemental briefs on the effect of the Pennsylvania Supreme Court's decision on the now-reinstated federal petition. Not surprisingly, it remains the respondents' position that this Court is barred from considering those issues raised for the first time in Mr. Peterkin's second PCRA petition as those claims have been procedurally defaulted. It is to this argument that we now turn first.


• Procedural Default of Mr. Peterkin's Claims.

As we discussed in our December, 1998 Memorandum dismissing Mr. Peterkin's habeas corpus petition without prejudice, in the absence of a valid excuse, a prisoner must first present all federal claims to all levels of the state courts before a district court may entertain a federal habeas petition. Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992), cert. denied, 504 U.S. 944, 112 S.Ct. 2283, 119 L.Ed.2d 208 (1992), citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights. Id. Where, however, state procedural rules bar a petitioner from seeking further relief in the state courts, the exhaustion requirement is satisfied because there is an absence of available state corrective process. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). See Also: Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996).

However, this is not to say that a federal court may without more, then proceed to consider the merits. To the contrary, claims deemed exhausted because of a state procedural rule are procedurally defaulted, and federal courts may not consider their merits unless the petitioner demonstrates that (1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or (3) that a fundamental miscarriage of justice will occur if not considered. See: Edwards v. Carpenter, 529 U.S. 446, 551, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 1041-1042, 103 L.Ed.2d 308 (1989); Wenger v. Frank, 2001 U.S. App. LEXIS 19817 (3d Cir. 2001); Lines v. Larkin, supra; Doctor v. Walters, 96 F.3d 675, 683 (3d Cir. 1996).

A state rule provides an independent and adequate basis for precluding federal review of a state prisoner's habeas claims only if: (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. Doctors v. Walters, 96 F.3d at 683-684. A state procedural ground is not "adequate" unless the procedural rule is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 1987, 100 L.Ed.2d 575 (1988); Doctor v. Walters, supra. See Also: Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991). Nevertheless, the Supreme Court has held that if a state supreme court faithfully has applied a procedural rule in "the vast majority" of cases, its willingness in a few cases to overlook the rule and address a claim on the merits does not mean that it does not apply the procedural rule regularly or consistently. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997), citing Dugger v. Adams, 489 U.S. 401, 410, n. 6, 109 S.Ct. 1211, 1217, n. 6, 103 L.Ed.2d 435 (1989). Accordingly, an occasional act of grace by a state court in excusing or disregarding a state procedural rule does not render the rule inadequate to procedurally bar advancing a habeas corpus claim in a district court. Id. See Also: Cabrera v. Barbo, 175 F.3d 307, 313 (3d Cir. 1999). Federal courts should generally determine questions of procedural default according to the habeas waiver law in effect at the time of the asserted waiver. Doctor v. Walters, 96 F.3d at 694, citing Reynolds v. Ellingsworth, 843 F.2d 712, 722 (3d Cir. 1988). See Also: Banks v. Horn, 126 F.3d at 212-213.

In this case, Mr. Peterkin filed what was his second*fn4 petition for relief under the Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. § 9541, et. seq. on January 13, 1997, some one month after he filed his petition for habeas corpus in this Court. Section 9545(b)(1) of the PCRA clearly and unmistakably provides that "[a]ny petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final . . ." In its decision of December 21, 1998, the Pennsylvania Supreme Court, in reliance upon 42 Pa.C.S. § 9545(b)(1), reasoned that it could not consider the merits of Mr. Peterkin's PCRA petition given that the judgment in his case became final on January 27, 1987 when the U.S. Supreme Court denied certiorari on his direct appeal and he was proceeding on his second PCRA application. Thus, the Pennsylvania Supreme Court found that Petitioner was not eligible for the exception to the requirement that the petition be filed within one year of the effective date of the act. See: Commonwealth v. Peterkin, 554 Pa. 547, 554-555, 722 A.2d 638, 641 (1998).

Prior to the issuance of this decision however, and as recognized by the U.S. Court of Appeals for the Third Circuit, it was difficult to predict whether the Pennsylvania Supreme Court would disregard the waiver and thus nevertheless consider on the merits claims seeking collateral relief in capital cases.*fn5 Indeed, in Banks v. Horn, supra, a capital case from the Middle District of Pennsylvania decided some nine months after Petitioner here filed his second PCRA, the Third Circuit held that the district court had erred in holding that the petitioner's unexhausted claims were procedurally barred. In so holding, the Court noted:

126 F.3d at 212-213. Hence, while the Commonwealth appears to be correct that since the Pennsylvania Supreme Court declined to review this petitioner's second PCRA on the merits it has consistently applied the waiver and time bar provisions of the PCRA,*fn6 we cannot find that at the time Mr. Peterkin filed his second petition, these provisions were strictly or regularly followed. We therefore must conclude that the waiver and bar provisions of the PCRA were not, at the time of the filing of the petition at issue in this case, adequate and independent procedural rules. In accord, Jermyn v. Horn, No. 98-9012 (3d Cir. filed Sept. 21, 2001). Accordingly on this habeas petition, we shall consider the merits of the additional claims which Mr. Peterkin raised in his second PCRA application.*fn7

B. Applicability of AEDPA.

As a threshold matter, we must determine whether the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") should be applied in this case. In this regard, Petitioner contends that the Act is inapplicable to his request for habeas relief because he initiated his habeas proceedings on June 27, 1995 when he filed his Motion for Appointment of Federal Habeas Corpus Counsel and to Proceed In Forma Pauperis. Thus, Petitioner argues, his habeas case was pending on April 24, 1996, the date that AEDPA became effective. It is the Commonwealth's position that it is the date on which Mr. Peterkin actually filed his habeas corpus petition which governs the applicability of AEDPA. Since the petition itself was not filed until December 5, 1996, some six months after the Act's effective date, AEDPA applies here.

In essence, AEDPA extensively amended the statutory provisions that regulate federal habeas corpus proceedings, most particularly § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions which govern all habeas proceedings in the federal courts.*fn8 These new provisions of chapter 153, however, were to be applied only to cases filed after the Act became effective. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997).

It is on the basis of Lindh and McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) that Petitioner argues the inapplicability of AEDPA to this habeas case. In McFarland, the U.S. Supreme Court ruled that a capital defendant need not file a formal habeas corpus petition in order to invoke his right to counsel under 21 U.S.C. § 848(q)(4)(B) and to establish a federal court's jurisdiction to enter a stay of execution. The Court therefore concluded that a "post conviction proceeding" within the meaning of § 848(q)(4)(B) is commenced by the filing of a death row defendant's motion requesting the appointment of counsel for his federal habeas corpus proceeding. 512 U.S. 856, 114 S.Ct. at 2572-2563.

Although this appears to be an issue of first impression in the Third Circuit, since the Lindh and McFarland decisions, a number of courts outside of the Third Circuit have been confronted with the very same argument advanced by Petitioner here. With the exception of the Ninth Circuit, those Courts of Appeals which have had occasion to address the issue of whether the filing by a capital defendant of a Motion for Appointment of Counsel "commences" a habeas corpus proceeding within the meaning of 28 U.S.C. § 2251, et. seq. have all uniformly held that the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed — not the date on which the motion for appointment of counsel is filed. See, e.g.: Foster v. Schomig, 223 F.3d 626, 631 (7th Cir. 2000); Moore v. Gibson, 195 F.3d 1152 (10th Cir. 1999); Gosier v. Welborn, 175 F.3d 504 (7th Cir. 1999), cert. denied, 528 U.S. 1005, 120 S.Ct. 502, 145 L.Ed.2d 387 (1999); Williams v. Coyle, 167 F.3d 1036 (6th Cir. 1999); Calderon v. U.S. District Court for the Central District of California, 163 F.3d 530 (9th Cir. 1998), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999); Nobles v. Johnson, 127 F.3d 409 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). We agree with the rationale advanced in Moore, Williams and Nobles, that, in ordinary usage, a case is pending after it is commenced by either filing a complaint or by the service of a summons. Indeed, the filing of a habeas corpus petition is analogous to the filing of a civil complaint in that the Rules of Civil Procedure apply to habeas proceedings to the extent that those rules do not conflict with the specific rules governing § 2254 cases. Likewise, we find that Mr. Peterkin's habeas action was not "pending" until he filed his formal petition for a writ of habeas corpus. See, Williams v. Coyle, 167 F.3d at 1038; BLACK'S LAW DICTIONARY 1134 (6th Ed. 1990). Accordingly, AEDPA shall be applied in this case.

C. Standards Governing Habeas Corpus Petitions.

Under 28 U.S.C. § 2254(d),

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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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