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November 7, 2001


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


Upon remand of this 28 U.S.C. § 2254 habeas corpus petition,*fn1 the Court of Appeals held that an incorrect standard had been applied in granting relief for ineffective assistance of counsel on petitioner's direct appeal*fn2 of his Pennsylvania convictions for first degree murder and possessing an instrument of crime.*fn3 Accordingly, the habeas petition was referred again to Magistrate Judge Charles B. Smith, of this court, for a Revised Report and Recommendation utilizing the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2261 et seq., as directed by the Court of Appeals decision. In his Revised Report and Recommendation, Judge Smith reached the same result as he had in the original one — specifically that the Commonwealth should either afford petitioner a new trial within 120 days or vacate his conviction and release him from custody. That relief, upon careful consideration, will now be re-ordered. The Commonwealth's objections will be overruled; and the Revised Report and Recommendation will be adopted and approved subject to what is set forth in this memorandum.

I. Ineffective assistance: failure to contest trial ruling on direct appeal

At trial, petitioner offered to present the alibi testimony of his father, Robert Kane, having given requisite pretrial notice. Asserting that his father had become non-ambulatory for medical reasons, petitioner made a sidebar request, in the alternative, for either a continuance; an authorization for an ambulance; or leave to videotape the father at his home.*fn4 The trial judge (Honorable George J. Ivins of the Philadelphia Court of Common Pleas) denied the request without making a record. Revised Report and Recommendation at 16. Respondent's position, which also represents the view implicitly adopted by the state courts on collateral appeal, is that the ruling was justified because the father's testimony would have been cumulative of alibi testimony to be given by petitioner's wife. See Respondent's Objections to Revised Report and Recommendation at 18-20; Commonwealth v. Kane, No. 2827-29, slip op. at 8-9 (Phila. C.P. Ct., February 27, 1995) ("PCRA Op.").

Robert Kane's alibi testimony, however, was not cumulative.*fn5 As discussed in the Revised Report and Recommendation, his testimony, from the defense standpoint, was vitally necessary because of a gap of approximately 20 to 45 minutes in the alibi testimony of petitioner's wife. Revised Report and Recommendation at 21-22. The murder, according to the prosecution, occurred during that hiatus. Testifying in his own defense, petitioner denied having been the perpetrator and stated that he was at home with his father and, for a time, with his wife, when the crime was committed. Only Robert Kane's unreceived testimony would have placed petitioner with him at the time of the murder and fully substantiated his alibi. Id.

Moreover, the prosecutor knew 1) of the father's purported indisposition; and 2) that the jury was unaware of it; as well as 3) of the trial judge's refusal to facilitate the presentation of his testimony. Nevertheless, the prosecutor argued to the jury in her summation: "Now the person who might have [provided an alibi covering the time of the shooting], if you believe the defendant and if you believe Denise Kane [the wife], would have been Mark Kane's father." N.T. 9/29/87 at 56. In sustaining the defense objection, Judge Ivins, an inveterate homicide trial judge, instructed the jury, somewhat opaquely, "None of this is material because none of it is evidentiary. . . . [Y]our function is to determine the facts, no ifs upon ifs — if someone, if someone, if someone. That is not your function, because that is only guesswork. That is why you are here. That's why we had a rather lengthy trial." N.T. 9/29/87 at 56-57. The defense also moved for a mistrial, which the trial judge denied, admonishing the prosecutor: "please don't do that again. . . . [P]roceed along the lines of what you know is required." Id. at 57.

Still, despite the explicit enjoinder, the prosecutor once more drew the jury's attention to the lack of an "alibi for the period of time of the shooting." Id. at 58. Upon sidebar, Judge Ivins denied defense's renewed motion for a mistrial, but noted: "For the record, I'm not certain that the district attorney has not gone beyond the pale, to use the old phrase. Namely, I think she has passed what she is permitted to do." Id. Yet the effect was that the prosecutor succeeded in advising — and reminding — the jury "not to look at the elephant" in the courtroom after the trial judge had refused to permit the defense to show that there was no "elephant" — i.e., that there was, indeed, a complete alibi in the form of a witness whom, inferentially at least, the defense should have been able to call, namely, petitioner's father.

II. Standard of review

As Magistrate Judge Smith articulated in his Revised Report and Recommendation, state court decisions are entitled to deferential habeas review under the AEDPA.*fn6 See Revised Report and Recommendation at 8-11. Our Court of Appeals, in an exposition of Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), observed that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (quoting Williams, 529 U.S. at 412-13, 120 S.Ct. 1495). Moreover: "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495.

III. Ineffective assistance of counsel: Strickland

Here, the state collateral courts — i.e., the two PCRA reviews of the denial of the direct appeal by the Pennsylvania Superior Court — "unreasonably applied" the established precedent of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by denying petitioner's claim*fn7 of ineffective assistance of appellate counsel.*fn8 Under Strickland, ineffective assistance requires a showing that: 1) "counsel's representation fell below an objective standard of [professional] reasonableness;" and 2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694, 104 S.Ct. 2052. The "unreasonable application" clause of 28 U.S.C. § 2254(d)(1) applies to the state collateral courts' analysis of both parts of the Strickland test.*fn9

a. Reasonableness of counsel's representation

Assuming Pennsylvania's "three-prong test" can be equated to the two-part Strickland test,*fn10 the state's collateral courts "unreasonably applied" the first part. "[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances . . . . [making every effort] to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 688-89, 104 S.Ct. 2052.*fn11

Here, the state collateral courts did not make a particularized inquiry into the reasonableness, at the time, of appellate counsel's decision not to contest the ruling that resulted in the exclusion of the father's alibi testimony. Instead, they relied on a per se rule, not found in Strickland, that if a ruling does not constitute an abuse of discretion, there can be no arguable merit to an appeal.*fn12 This approach vitiates Strickland's ...

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