Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
PETERKIN v. HORN
November 6, 2001
MARTIN HORN, ET. AL.
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.
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
Thereafter, Mr. Peterkin appealed his convictions and sentences to
the Pennsylvania Supreme Court, making the following arguments on
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'
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.
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
given the overwhelming evidence of Petitioner's guilt.
Accordingly, the trial court's denial of Petitioner's PCRA petition was
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
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
— failing to conduct proper discovery;
— failing to investigate the crime scene;
— failing to review fingerprint and ballistic
— 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
— failing to request a bill of particulars;
— failing to request or move for disclosure
from the prosecution;
— failing to provide notice of an alibi
— failing to challenge the affidavits in
support of the warrants pursuant to Franks v.
3. That trial counsel was ineffective at the trial
— failing to make an effective opening statement;
— failing to humanize petitioner;
— failing to even suggest the remote
possibility to the jury that petitioner was
— 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
4. That numerous instances of prosecutorial misconduct
occurred entitling him to relief from his
— 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
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
— 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
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.
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
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
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
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
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:
"We conclude from [Commonwealth v. Szuchon,
534 Pa. 483,
633 A.2d 1098 (1993), Commonwealth v. Travaglia,
541 Pa. 108, 661 A.2d 352 (1995) and Commonwealth v.
Beasley, 544 Pa. 554, 678 A.2d 773 (1996)] that,
notwithstanding a procedural bar, it is possible that
in a death penalty case the Pennsylvania Supreme Court
will not refuse either to entertain a second PCRA
petition or to address the claims raised in it. As we
explained above, the common pleas court in Banks'
second petition apparently thought the same thing as
it indicated that despite its determination that the
petition was barred "it may well be that the Supreme
Court will review its merits. Accordingly, we conclude
that the district court erred in finding Banks'
unexhausted claims procedurally barred. Although the
district court correctly found in Banks III that
Banks' unexhausted claims do not meet the stated
criteria for Pennsylvania courts to consider a second
PCRA petition, we believe that Banks III did not give
adequate recognition to the Pennsylvania Supreme Court
cases demonstrating that it effectively looks beyond
those criteria in death penalty cases."
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 ...