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DUNLAVEY v. COURT OF COMMON PLEAS

July 12, 2004.

JAMES DUNLAVEY, Petitioner
v.
COURT OF COMMON PLEAS AND PROBATION OFFICE OF BUCKS COUNTY, et al., Respondents.



The opinion of the court was delivered by: WILLIAM YOHN, JR., District Judge

Memorandum and Order

Presently before this court is James Dunlavey's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. United States Magistrate Judge Carol Sandra Moore Wells filed a Report and Recommendation (Report & Recommendation") (Doc. #10) recommending denial of the petition. Petitioner filed objections to the Report & Recommendation ("Objections") (Doc. #13). For the following reasons, petitioner's objections will be overruled, this court will adopt the Report & Recommendation as supplemented herein, and the petition will be denied.

I. BACKGROUND*fn1

  On November 14, 1995, following a jury trial in the Bucks County Court of Common Pleas before the Honorable Ward F. Clark, petitioner James Dunlavey was convicted of aggravated assault, simple assault, recklessly endangering another person, and disorderly conduct.*fn2 On January 4, 1996, Dunlavey was sentenced to 7-20 years imprisonment.*fn3

  Petitioner filed a timely direct appeal in the Superior Court of Pennsylvania, in which he raised six issues:
1.) Was the jury's verdict against the weight and sufficiency of the evidence, particularly since the Commonwealth failed to negate self defense or to prove that Dunlavey acted with the requisite intent?
2.) Was trial counsel constitutionally ineffective?*fn4
3.) Did the prosecutor's remarks concerning the Warlocks Motorcycle Club ("WMC") deny Dunlavey a fair trial?
4.) Did the trial court err in admitting testimony relating to the WMC?
5.) Were the trial court's instructions regarding provocation and self defense in error?
6.) Did the trial court err in refusing to charge the jury on recklessness in accordance with O'Hanlon, 539 Pa. 478 (1995)?
The Superior Court — in an 18-page opinion affirming the judgment of conviction — addressed each of petitioner's claims. See Superior Court Opinion, 8/19/1997 (attached to Respondent's Answer to Pet. for Writ of Habeas Corpus, Doc. #4, as Exhibit A) [hereinafter "Super. Ct. Op. 8/19/97"]. On March 9, 1998, the Pennsylvania Supreme Court denied Dunlavey's petition for allowance to appeal, see Com. v. Dunlavey, 716 A.2d 1247 (Pa. 1998), in which he had raised the same six issues as he had before the Superior Court. See Table of Contents of Petitioner's Pet. for Allowance of Appeal (attached to Objections (Doc. #13) as Exhibit B-1).

  On October 2, 1998, Petitioner filed a timely*fn5 pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., which was denied by the PCRA court on November 4, 1998.*fn6 On appeal, the Superior Court vacated and remanded for the appointment of counsel. Com. v. Dunlavey, 750 A.2d 367 ( Pa. Super. 1999) (unpub. mem.). Following an evidentiary hearing — at which petitioner was represented by counsel — the PCRA court denied relief.*fn7 PCRA Court Op. 01/09/01 (unpub. mem.). Petitioner filed a timely appeal in the Superior Court of Pennsylvania, alleging that his prior counsel was constitutionally ineffective.*fn8 After addressing each of petitioner's arguments, the Superior Court affirmed the PCRA's court's denial of relief on October 26, 2001. Super. Ct. PCRA Op. 10/26/01. The Pennsylvania Supreme Court denied allocatur on April 17, 2002, and Petitioner filed the instant § 2254 petition on June 12, 2002.

  In his habeas petition, Dunlavey asserts nine grounds on which he believes he is entitled to relief, each of which sounds in ineffective assistance of counsel:
1.) trial and appellate counsel were ineffective for failing to raise the issue of trial court's failure to instruct the jury regarding the level of intent and the degree of recklessness necessary to sustain a conviction for aggravated assault;
2.) trial and appellate counsel were ineffective due to their failure to object to the trial court's jury instruction relating to provocation;
3.) trial and appellate counsel were ineffective for failing to introduce medical evidence of injury to petitioner's "only eye;"
4.) trial counsel was ineffective because he failed to introduce evidence of petitioner's broken glasses in support of his self defense and lack of intent claims;
5.) trial and appellate counsel were ineffective for their failure to object to the trial court's instructions regarding the re-reading of testimony;
6.) trial and appellate counsel were ineffective for failing to introduce evidence of the victim's intoxication at the time of the incident;
7.) trial counsel was ineffective for advising petitioner not to testify on his own behalf;
8.) trial counsel was ineffective for his failure to object to the court's "gross misinterpretation" of the defendant's statement to the police; and
9.) trial counsel was ineffective for failing to argue relevant points of law during his closing argument. See Pet. Writ of Habeas Corpus (Doc. #1).
II. STANDARD OF REVIEW
  Where a habeas petition has been referred to a Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), this court's review of "those portions of the report or specified proposed findings or recommendations to which objection is made" is de novo. Id. at § 636(b).

  III. TIMELINESS

  Dunlavey's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996*fn9 ("AEDPA"), P.L. 104-132, 110 Stat. 1214. Under the AEDPA, a state prisoner seeking federal habeas relief must file his habeas petition within one year of the date on which his judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1). Because petitioner's habeas petition was filed prior to the expiration of the one year statute of limitations,*fn10 it is timely under § 2244(d)(1).

  IV. EXHAUSTION AND PROCEDURAL DEFAULT

  Federal habeas relief pursuant to 28 U.S.C. § 2254 is available to a state prisoner only where he has exhausted his remedies in state court; "[i]n other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). This exhaustion rule requires petitioner to "fairly present" each of his federal claims to the state courts. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing cases). To "fairly present" a claim, petitioner must present its "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 (citations omitted). While petitioner need not cite "book and verse" of the federal constitution, Picard v. Connor, 404 U.S. 270, 277 (1971), he must "give the State `the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims to this court. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard, 404 U.S. at 275).

  The Report & Recommendation found that petitioner's first eight claims have been properly exhausted and should be addressed on their merits. See Report & Recommendation at 9. With respect to petitioner's ninth claim, however — that trial counsel was ineffective for failing to argue relevant points of law during his closing argument — the Report & Recommendation found this claim to have been procedurally defaulted and therefore recommended dismissal. According to the Report & Recommendation, "[p]etitioner never properly raised this claim in state court, thus, it is unexhausted." Id. at 7. Respondent espouses this position in its Answer as well, asserting that "[t]his claim was not raised in Petitioner's direct appeal nor in Petitioner's [PCRA] petition and appeal thereto." Second Answer (Doc. #15) at 23.

  As petitioner correctly points out in his objections, however, this issue was raised on both direct appeal to the Pennsylvania Superior Court and to the Pennsylvania Supreme Court in the petition for allocatur. Objections at 6. It is evident from the briefs submitted by petitioner on direct appeal and in support of his petition for discretionary review that he raised the issue of counsel's alleged failure to argue relevant points of fact and law during closing argument. See Exhibit A-1 to Objections ("Trial counsel was ineffective for failing to argue relevant points of law and fact during closing argument"); Exhibit B-1 to Objections ("The Superior Court erred in not finding that trial counsel was ineffective for failing to argue relevant points of law and fact in the closing argument.") Moreover, the Superior Court of Pennsylvania specifically acknowledged — and addressed — this issue in its August 19, 1997 opinion. See Super. Ct. Op. 8/19/1997 at 14 ("As to Appellant's claim that counsel failed to argue relevant points of fact, our review is hampered by Appellant's failure on appeal to either request transcription of the arguments or otherwise reconstruct the record. Moreover, our review of trial counsel's recollection regarding his closing argument to the jury indicates the `chosen course [had some reasonable basis] designed to effectuate [Appellant's] interests.") (emphasis in original). Petitioner's ninth claim, therefore, is exhausted*fn11 and has not been procedurally defaulted. While the Superior Court's analysis may have been brief, it nonetheless addressed the merits of petitioner's claim and determined that trial counsel's closing argument was reasonably designed to further the interests of his client.*fn12 The state courts have had an opportunity to review petitioner's ninth claim, thus furthering the principles underlying 28 U.S.C. § 2254. See O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) ("Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief. This rule of comity reduces friction between the state and federal court systems by avoiding the `unseem[liness]' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.") (citations omitted).

  V. AEDPA STANDARDS

  Section 2254 allows federal courts to grant habeas corpus relief to a prisoner "in custody pursuant to the judgment of a State court" where his custody violates the Constitution of the United States of America. 28 U.S.C. § 2254(a). Under the AEDPA, petitioner is entitled to habeas relief only where the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1).

  A state court decision may be "contrary to" clearly established federal law in one of two ways. First, a state court decision is contrary to clearly established precedent where "the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405 (2000). Second, a state court decision will be "contrary to" the Supreme Court's clearly established precedent "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the] precedent." Id. at 406. A state court decision involves an "unreasonable application" of federal law, on the other hand, where it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08.

  Habeas relief will also be granted where a state court decision is "based on an unreasonable determination of the facts." Under the AEDPA, however, factual determinations made by the state court are accorded a presumption of correctness: "a federal court must presume that the factual findings of both state trial and appellate courts are correct, a presumption that can only be overcome on the basis of clear and convincing evidence to the contrary." Stevens v. Del. Correctional Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing 28 U.S.C. § 2254(e)(1)). To prevail under this "unreasonable determination" prong, therefore, petitioner must demonstrate that the state court's determination of the facts was objectively unreasonable in light of the evidence available; mere disagreement with the state court — or even a showing of erroneous factfinding by the state court — will be insufficient to warrant relief, provided that the state court acted reasonably. See Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001) (citing Williams v. Taylor, 529 U.S. at 409); Torres v. Prunty, 223 F.3d 1103, 1007-08 (9th Cir. 2000) (citing same).

  VI. LEGAL STANDARD

  Petitioner objects to the Report & Recommendation with respect to all nine claims, each of which arises from a determination as to the effectiveness of petitioner's counsel. The applicable "clearly established federal law," therefore, is the well-settled two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, in order to merit habeas relief based on a claim of ineffectiveness of counsel petitioner must demonstrate that: (1) his attorney's performance was deficient, and (2) he was prejudiced by this deficiency. Strickland, 466 U.S. at 687.

  To demonstrate deficiency, petitioner must establish that counsel's performance "fell below an objective standard of reasonableness." Id. at 688. To overcome the presumption that counsel was effective, petitioner bears the burden of establishing that counsel's performance was unreasonable under "prevailing professional norms." Id. at 688; see also Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir. 1999) (citing Strickland, 466 U.S. at 689) ("In evaluating counsel's performance, we are `highly deferential' and `indulge a strong presumption' that, under the circumstances, counsel's challenged actions `might be considered sound . . . strategy."). To demonstrate prejudice, petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Ultimately, the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id.

  VII. "CONTRARY TO" ANALYSIS

  Each of petitioner's nine habeas claims raises the issue of his counsel's effectiveness. The relevant "clearly established" federal precedent for an ineffectiveness claim is Strickland The question before this court, therefore, is whether the Superior Court's decision was "contrary to" the Strickland standard, involved "an unreasonable application" of Strickland, or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1).

  The Pennsylvania Supreme Court has articulated an ineffective assistance standard, upon which the Superior Court relied in this case, see Super. Ct. PCRA Op. 10/26/01 at 3-4, which requires petitioner to demonstrate that (1) the underlying claim is of arguable merit, (2) counsel had no reasonable basis for the act or omission in question, and (3) there exists a reasonable probability that, but for counsel's act or omission, the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, 312, 724 A.2d 326 (1999). Both the Third Circuit and the Pennsylvania Supreme Court have held that this standard is materially identical to that set forth in Strickland See Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) (finding that the Pennsylvania standard is "not contrary to" the Strickland test); Commonwealth v. Pierce, 515 Pa. 153, 161, 527 A.2d 973 (1987) (holding that Pennsylvania's ineffectiveness standard and the Strickland test "constitute the same rule"). Given that the Superior Court applied the correct standard at the outset — and to each of petitioner's claims — "contrary to" analysis is not the appropriate lens through which to view Dunlavey's habeas petition. Instead, this court's inquiry must focus on whether the Superior Court's decision involved "an unreasonable application" of Strickland or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(1).

  VIII. DISCUSSION

  A. The trial court's jury instruction relating to the level of intent and degree of recklessness necessary to sustain a conviction for aggravated assault. Petitioner asserts that his trial counsel was ineffective for his failure to object to the trial court's refusal to instruct the jury on the level of intent and the degree of recklessness allegedly required to sustain a conviction for aggravated assault under Pennsylvania law. The Superior Court of Pennsylvania reviewed this claim on PCRA appeal and affirmed the trial court's judgment on the merits.*fn13

  With respect to this first claim, petitioner does not allege that the Pennsylvania courts have made an unreasonable factual determination, nor does he present clear and convincing evidence to support such a claim. Analysis under the "unreasonable factual determination" prong of section 2254(D)(1), therefore, is not appropriate. Rather, petitioner's contention appears to be that the Superior Court's analysis was an unreasonable application of the law of ineffective assistance. Ultimately, petitioner claims that the Superior Court should have found trial counsel's failure to request an instruction pursuant to Commonwealth v. O'Hanlon to constitute deficient performance because it enabled the jury to find him guilty of aggravated assault without requiring a finding of a heightened level of recklessness.

  This court's inquiry, therefore, is "whether the Pennsylvania courts' application of Strickland to [petitioner's] ineffectiveness claim was objectively unreasonable, i.e., the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under Strickland" Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000). Before turning to the Superior Court's analysis of this first claim, it seems worthwhile to review the holding of the O'Hanlon Court which forms the legal backdrop against which the trial court's jury instruction must be measured.

  Under Pennsylvania law, a person commits aggravated assault where he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa. Cons. Stat. Ann. § 2702(a)(1). It is the phrase "recklessly under circumstances manifesting extreme indifference to the value of human life" which concerns the court today.

  Pennsylvania's statutory definition of recklessness states that an individual "acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation." 18 Pa. Cons. Stat. Ann. § 302(b)(3). In Commonwealth v. O'Hanlon, 653 A.2d 616 (Pa. 1995), however, the Pennsylvania Supreme Court held that a higher degree of recklessness is required — under section 2702(a)(1) — to support a conviction for aggravated assault:
[M]ere recklessness is insufficient to support a conviction for aggravated assault, which requires a higher degree of culpability, i.e., that which considers and then disregards the threat necessarily posed to human life by the offending conduct. There must be an element of deliberation or conscious disregard of danger not present to the same extent in, e.g., either reckless endangerment, to which appellant admits, or driving while intoxicated.
[F]or the degree of recklessness contained in the aggravated assault statute to occur, the offensive act must be performed under circumstances which almost assure that injury or death will ensue. The recklessness must, therefore, be such that life threatening injury is essentially certain to occur. This state of mind is, accordingly, equivalent to that which seeks to cause injury. . . . Aggravated assault is, indeed, the functional equivalent of a murder in which, for some reason, death fails to occur.
O'Hanlon, 653 A.2d at 618. In O'Hanlon, the driver ran a red light while driving drunk and hit another vehicle, seriously injuring the other driver. The Pennsylvania Supreme Court found that defendant's behavior, "while worthy of criminal penalty," did not rise to the level of aggravated assault because defendant lacked the requisite mens rea. Id.
  O'Hanlon, therefore, stands for the proposition that "mere recklessness," as defined by section 302(b)(3), is insufficient to support an aggravated assault conviction. See also Orban v. Vaughn, 123 F.3d 727, 732 (3d Cir. 1997) (recognizing that O'Hanlon "sets forth the degree of recklessness required to support an aggravated assault conviction under Pennsylvania law"). When charging the jury following Dunlavey's trial, however, the trial court did not define the recklessness requirement in accordance with O'Hanlon but, rather, relied upon the § 302(b)(3) definition of recklessness:
Now the first charge of aggravated assault, I think everybody concedes in this case this young lady was hit on the side of the head with either that motorcycle helmet or one similar to it. That is for your determination. And you heard testimony concerning the fact that she was in the hospital for a number of days and heard the testimony of the neurosurgeon concerning what surgical procedures were needed to be done, as I understand it, but that's for your understanding, in effect to save her life.
And then you have been provided with testimony concerning what the effects are from all of that she has sustained. What she is sustaining today in terms of residual damage to her as a result of having been struck by a motorcycle helmet. So while I think it's conceded that she was indeed struck by a motorcycle helmet, your responsibility has to be to determine whether or not that was an accident or whether it was justified or whether it was intentionally, knowingly done to her in an effort to injure her.
Aggravated assault is defined in the criminal law of Pennsylvania as follows: A person is guilty of aggravated assault, if he attempts to cause serious bodily injury to another or causes serious bodily injury to another intentionally, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life.
So there are different facets to this crime. One can be found guilty of aggravated assault, if one attempts to cause serious bodily injury to another. And one can be found guilty of aggravated assault, if one causes serious injury to another and does so intentionally, knowingly or does so recklessly under circumstances manifesting extreme indifference to the value of human life.
The statutory definition of recklessness is as follows: "A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial unjustified risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree, that considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
Transcript 11/14/95 at 105-07 (attached to Doc. #4 as Ex. C). The trial judge then went on to define "serious bodily injury" in the context of the aggravated assault statute. He did not, however, further define recklessness.

  The trial court's instruction should have been more specific in light of the Pennsylvania Supreme Court's holding in O'Hanlon. In fact, the trial court's instruction appears to have been legally incomplete in view of the then-recent Pennsylvania Supreme Court holding. This court's inquiry in an ineffective assistance claim pursuant to § 2254, however, is not whether a trial judge should or should not have been more specific; rather, my inquiry is limited to asking whether the Pennsylvania state courts, in analyzing petitioner's first claim, properly applied federal law. Because the Superior Court has had a full and fair opportunity to pass on this claim, the ...


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