The opinion of the court was delivered by: THOMAS HARDIMAN, District Judge
The subject of this Memorandum Opinion is a petition for writ
of habeas corpus filed by Petitioner Ambrose Junior Sample, II
(Sample). In a Report and Recommendation dated October 28, 2005,
Magistrate Judge Robert C. Mitchell recommended that Sample's
petition be dismissed and that a certificate of appealability be
denied for lack of a viable federal constitutional issue. The
Court agrees with Magistrate Judge Mitchell's Recommendation, but
writes separately to expound upon the reasons why the
Recommendation should be adopted.
Petitioner Sample, an inmate at the State Correctional
Institution at Graterford, executed his petition for a writ of
habeas corpus on September 1, 2005 and filed it on September 13,
2005. In an Order dated September 19, 2005, the Respondents were
directed to answer and show cause, if any, why the relief sought
should not be granted. Respondents answered Sample's petition on
October 26, 2005, arguing that it should be denied in its
entirety. After a trial in the Court of Common Pleas of Westmoreland
County, a jury convicted Sample of third degree murder and he was
sentenced to a twelve to twenty-five year sentence on December 6,
1999. Sample appealed his conviction and sentence and submitted
the following claims of error to the Superior Court:
I. Whether the trial court erred in admitting the
autopsy report into evidence over objection of
defense counsel when the pathologist already
testified at trial and there was information in the
autopsy report that the pathologist did not testify
II. Whether trial counsel was ineffective for failing
to request that the trial court dismiss a juror who
during the course of the trial had contact with a
witness who was a friend of the appellant and the
juror told the trial court that said contact made her
III. Whether the verdict of third degree murder
against the appellant was against the weight of the
evidence offered at the trial of this matter; and
IV. Whether trial counsel was ineffective for failing
to object to the preliminary hearing testimony of
Shermaine Alford being read to the jury.
On March 13, 2001, the Superior Court affirmed the judgment of
sentence, and on August 8, 2001, the Pennsylvania Supreme Court
denied Sample's petition for allowance of appeal.
Sample submitted a post-conviction petition to the Court of
Common Pleas of Westmoreland County on May 13, 2002, which was
dismissed on November 21, 2002. In his post-conviction appeal to
the Superior Court, Sample presented the following issues:
1. Whether the Commonwealth's closing argument
deprived Defendant of due process.
2. Whether trial and appellate counsel provided
ineffective assistance by failing to allege
prosecutorial misconduct regarding the Commonwealth's
closing argument. On January 5, 2005, the Superior Court affirmed the denial of
post-conviction relief. Sample's petition for allowance of appeal
to the Pennsylvania Supreme Court was denied on August 23, 2005.
In his petition now pending before this Court, Sample claims
entitlement to habeas relief because:
1. His Sixth Amendment rights w[ere] violated by
permitting the autopsy report of the victim prepared
by Dr. Leon Rozin to be viewed by the jury during the
Commonwealth's closing argument and jury
2. The Commonwealth's closing argument deprived him
of due process as guaranteed by Article I, Section 9,
of the Constitution of the Commonwealth of
Pennsylvania and the Fifth and Fourteenth Amendments
of the Constitution of the United States, in that it
expressed the Assistant District Attorney's personal
opinion and inflamed the passion of the jury.
Federal law requires that a habeas petitioner must exhaust
state court remedies before seeking federal review:
An application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears
that the applicant has exhausted the remedies
available in the courts of the State, or that there
is either an absence of available State corrective
process or the existence of circumstances rendering
such process ineffective to protect the rights of the
28 U.S.C. § 2254(b). See also Preiser v. Rodriguez,
411 U.S. 475
(1973); Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484
(1973); Doctor v. Walters, 96 F.3d 675
1996). Thus, a petitioner is relieved of the exhaustion
requirement only when he shows that the available corrective
process would be ineffective. Preiser, 411 U.S. at 483; Walker
v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). When viable state court remedies
exist, the court must determine whether a procedural default has
occurred. When a procedural default has occurred, the petition
must be denied unless (1) cause or prejudice exists for the
default, or (2) whether a fundamental miscarriage of justice
would result from a failure to consider the claims. Carter v.
Vaughn, 62 F.3d 591
(3d Cir. 1995).
In construing § 2254(d)(1), the Supreme Court in Williams v.
Taylor, 529 U.S. 362
, 412-413 (2000), stated:
Under § 2254(d)(1), the writ may issue only if one of
the following two conditions is satisfied the
state-court adjudication resulted in a decision that
(1) "was contrary to . . . clearly established
Federal law, as determined by the Supreme Court of
the United States," or (2) "involved an unreasonable
application of . . . clearly established Federal law,
as determined by the Supreme Court of the United
States." Under 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
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. Under the
"unreasonable application" clause, a federal habeas
court may grant the writ if the state court
identifies the correct governing legal principle from
this Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.
Interpreting the Supreme Court's decision in Williams v.
Taylor, the Court of Appeals for the Third Circuit wrote in
Hameen v. Delaware, 212 F.3d 226
, 235 (3d Cir. 2000):
The Court in Williams v. Taylor held 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 Supreme]
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." Williams
v. Taylor further held that "[u]nder the
`unreasonable application' clause, a federal habeas
court may grant the writ if the state court
identifies the correct legal principle from [the
Supreme] Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case."
The "unreasonable application" inquiry requires the
habeas court to "ask whether the state court's
application of clearly established federal law was
objectively unreasonable." Thus, under the
"unreasonable application" clause, "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.
Rather, that application must also be unreasonable."
The Court in Williams v. Taylor made it clear that
the "contrary to" and "unreasonable application"
clauses have independent meaning.
In the instant case, Sample claims he is entitled to habeas
relief because the autopsy report should not have been viewed by
the jury and that it was improper for the prosecutor to interject
his personal views during closing argument.
With regard to the presentation of the autopsy report to the
jury, in his direct appeal to the State courts Sample argued that
the autopsy report was improperly introduced into evidence over
the objection of his counsel. Although Sample did not explicitly
indicate in his State court appeal that the report was viewed by
the jury, the logical assumption here is that the jury viewed the
autopsy report because it was admitted into evidence. This is
especially true because Sample has alleged here that the jury
viewed the autopsy report both during the prosecutor's closing
argument and during jury deliberations. Accordingly, the Court
finds that Sample has properly raised the autopsy issue in his
pending petition for writ of habeas corpus. Similarly, the record
demonstrates that Sample's claim that he was deprived of due
process when the prosecutor introduced his personal feelings
during closing argument was exhausted in the State courts and is
properly before this Court.
The factual background to this case is set forth in the
Memorandum of the Superior Court filed in response to the direct
appeal, where it is noted:
[O]n December 29, 1998, Sample twice discharged a
shotgun at a range of one hundred feet in the
direction of the victim, thereby killing him. Sample
claims that he acted upon the belief that the victim
was going to kill Sample's friend, Brian Wade. A jury
convicted Sample of third degree murder, and the
court sentenced Sample to twelve to twenty-five
years' imprisonment. Turning to the merits of Sample's first claim, the Court notes
at the outset that unlike state courts, federal habeas courts do
not grant relief simply because a state trial judge made an
evidentiary error. As the Supreme Court stated in Estelle v.
McGuire, 502 U.S. 62 (1991): "it is not the province of a
federal habeas court to reexamine state court determinations on
state law questions. In conducting habeas review, a federal court
is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Id. at
67-8. Here, Sample claims that his Sixth Amendment right was
violated when the jury viewed the autopsy report during the
prosecutor's closing arguments and during jury deliberations.
This argument is specious for two reasons. First, as Sample's
post-conviction arguments to the State courts made clear, his
counsel objected to the admission into evidence of the autopsy
report. Second, it is axiomatic that once admitted into evidence,
it was entirely proper for the jury to view that evidence during
the prosecutor's summation and during its deliberations. "Absent
some effect of challenged conduct on the reliability of the trial
process, the Sixth Amendment guarantee is generally not
implicated." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
Therefore, Sample's first argument is without merit.
Sample next argues that he was denied a fair trial when the
prosecutor injected his personal feelings into his closing
argument. Specifically, Sample objects to references made by the
prosecutor regarding matters set forth in the autopsy report
about which no testimony was presented. In the "Defendant's
Concise Statement of Matters Complained of on Appeal" filed
following the denial of post-conviction relief, Sample cited as
objectionable the following excerpt from the prosecutor's closing
argument: He could have picked up a stone himself. He could
have run and tackled him. But to crank off two rounds
from a shotgun . . . No, no. There is no way. He did
not believe at all. (at 444).
So now Phillip [the victim], who never had a gun, and
now doesn't even have a stone, is completely unarmed,
is shot in the back. And what does he (defendant) do?
Calmly, just like that guy in "Hard to Kill" no
doubt, racks another one. Pumps, cranks another one
off. (at 445).
Third and last. Stand corrected when I said to you a
minute ago, you will find it out for the first time
downstairs. You haven't found it out yet because you
haven't seen it yet, but I am going to show you in
just a second. This Doctor Rozin's autopsy report,
Commonwealth Exhibit 20, which the judge admitted
into evidence, but I haven't gone through the whole
thing yet. Some things in here that are in here you
already heard the doctor testify to. But there are
other things in here. And turning to Page 7, and I
will just put it up on the TV. Can you all see that?
While you are reading that and thinking about it, no
doubt some of you are thinking, why is that so
important. Maybe some of you have already figured out
why. Those who may have not, again I will try to be
of assistance . . . (at 447).
I can understand why my opponent is objecting. This
hurts. This hurts her case real bad. (at 448).
At that point, even if you are willing to throw him a
bone and give him the benefit of the doubt that he
may have had some immature reaction to the situation
in cranking off that first round, that was all he
needed to do. (at 449).
As a general proposition, any actions of the prosecutor must be
viewed in the context of the trial as a whole. Moore v. Morton,
255 F.3d 95
(3d Cir. 2001). As the Court of Appeals stated in
Moore: "The conduct of the trial, including closing arguments,
is regulated under the sound discretion of the trial judge. But
prosecutorial misconduct may `so infect the trial with
unfairness as to make the resulting conviction a denial of due
process.' Such misconduct must constitute a "failure to observe
that fundamental fairness essential to the very concept of
justice."' Id. at 105 (internal ...