The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On July 28, 2005, Petitioner Anil Homily ("Petitioner" or "Homily") an inmate at the State Correctional Institution at Laurel Highlands ("SCI-Lauren Highlands") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"). (Rec. Doc. 1).
On July 28, 2006, Magistrate Judge Mannion issued a Report and Recommendation (doc. 36) recommending that the Petition be denied. Objections have been filed to the Magistrate Judge's report (docs. 47, 48, 51 and 52) and therefore the matter is ripe for our review.
The procedural history in the above-captioned matter is lengthy and detailed.
Our summary tracks Magistrate Judge Mannion's inclusive and detailed recitation of the procedural history underlying the matter. Neither the Petitioner nor the Respondents objected to this portion of Magistrate Judge Mannion's report, therefore we find it entirely appropriate to borrow heavily from that portion of the Magistrate Judge's report. (Rec. Doc. 38, pp. 1-11).
On May 11, 2000, following a trial to a jury in the Court of Common Pleas of Susquehanna County, Pennsylvania, Petitioner was convicted on one count of murder in the third degree for the death of his girlfriend. (Rec. Doc. 31, Ex. 3). On June 22, 2000, the trial court sentenced Homily to a term of imprisonment of ten to twenty years, a $5,000 fine, the costs of prosecution, and restitution to the victim's family for burial expenses. (Rec. Doc. 31, Exs. 1 and 2).
Petitioner, represented by counsel, appealed the conviction to the Pennsylvania Superior Court. He raised five issues. First, he contended that the trial court erred by admitting into evidence hearsay statements by the decedent concerning Homily's abusive behavior. Second, he contended that the medical evidence -- the testimony of a medical examiner who had performed the decedent's autopsy and two other medical experts -- was not sufficient as a matter of law to support the charge of homicide. According to Homily, none of the medical experts could state to a reasonable degree of medical certainty that the cause of death was homicide.*fn1 Third, Homily contended that the delay between the decedent's death and the Petitioner's indictment prejudiced Homily's right to a fair trial. Fourth, Petitioner contended that the trial court erred in sentencing him by deviating from the sentencing guidelines. Finally, Homily contended that the trial court erred in instructing the jury that it could consider his flight. (Rec. Doc. 31, Ex. 5).
The Superior Court affirmed the Petitioner's conviction on November 20, 2001. In denying the Petitioner's second claim, the Superior Court found that the medical examiner "expressed with a reasonable degree of medical certainty that [the decedent's] death was a homicide," which was, consequently, sufficient for the jury to find beyond a reasonable doubt that the death was a homicide. (Rec. Doc. 31, Ex. 9).
The Petitioner, represented by counsel, then petitioned the Pennsylvania Supreme Court for allowance of appeal, raising four issues. First, he contended that the trial court abused its discretion by allowing the Commonwealth to use the decedent's hearsay statements as substantive evidence of the Petitioner's guilt instead of to show her state of mind. Second, Homily contended that the trial court abused its discretion by allowing "voluminous and cumulative" testimony of the decedent's hearsay statements that prejudiced him. Third, reiterating the arguments presented to the Superior Court, he contended that the medical evidence was not sufficient to support the charge of homicide. Finally, he contended that the delay between the decedent's death and his indictment prejudiced his right to a fair trial. (Rec. Doc. 31, Ex. 10). The Supreme Court denied allocator on May 20, 2002. (Rec. Doc. 31, Ex. 12).
On July 16, 2002, Petitioner, proceeding pro se,*fn2 petitioned for relief under the Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541, et seq., in the Court of Common Pleas, alleging ineffective assistance of counsel and violations of the United States and Pennsylvania Constitutions. First, Petitioner contended that the trial court abused its discretion by not allowing the Petitioner's counsel to cross-examine a Commonwealth witness concerning the witness's prior convictions. Second, Homily contended that counsel were in effective for "failing to preserve and raise on direct appeal the constructive denial of petitioner's right to confrontation" with respect to the Commonwealth witness's cross-examination. (Rec. Doc. 31, Ex. 13). Third, the Petitioner contended that counsel were ineffective for failing to call his parents as witnesses. Finally, Homily contended that counsel were ineffective for failing to show that the medical evidence was insufficient to support the charge of homicide and in addition that it was false. The Petitioner reiterated the arguments raised in his direct appeal and further posited that the cause of death could have been an ectopic pregnancy, which had been raised -- and dismissed by the medical examiner -- at trial. Petitioner argued that his counsel were ineffective because they did not show that the medical examiner's opinions were unsubstantiated and perjurious because there was no pathology report and no laboratory tests on blood or tissue to confirm his findings and exclude an ectopic pregnancy. Petitioner submitted that had the medical examiner or the other medical experts provided a pathology report or laboratory tests, the evidence would then have shown that an ectopic pregnancy was a more likely cause of death than homicide.*fn3 Petitioner also alleged that his counsel put an unqualified expert on the stand, whose testimony was allegedly detrimental to the Petitioner's case. (Rec. Doc. 31, Exs. 13, 17 and 18).
The Court of Common Pleas denied the petition without a hearing on April 17, 2003. In rejecting Petitioner's final claim, the court made two findings. First, the court found that Homily was not entitled to PCRA review on his claim concerning the medical examiner's testimony because it had been previously litigated on direct appeal. Second, the court found that the Petitioner's medical expert had not prejudiced his case by misdiagnosing the cause of death and was a qualified medical expert against whom the jury had no reason to be biased. (Rec. Doc. 31, Ex. 19).
On May 16, 2003, the Petitioner appealed, pro se, the lower court's denial of his post-conviction petition to the Superior Court. (Rec. Doc. 31, Ex. 20). The Petitioner raised three claims. First, Homily contended that the Court of Common Pleas abused its discretion in finding that the issue of counsel's ineffectiveness for failing to argue that the medical testimony was insufficient had been previously litigated. Second, the Petitioner contended that the Court of Common Pleas erred "by failing to address the claims of trial counsel's ineffectiveness in an evidentiary hearing due to [Petitioner's] use of numerous extra record facts." (Rec. Doc. 31, Ex. 23). The second claim consisted of two allegations: first, that counsel failed to obtain from the Commonwealth a pathology report that would have shown that the decedent had died of an ectopic pregnancy and the medical examiner had perjured himself,*fn4 and second, that counsel were ineffective for hiring an incompetent expert. As part of the second argument, Petitioner claimed that had his expert been competent, he would have testified that the medical examiner should have conducted laboratory tests to determine whether there was an ectopic pregnancy. In his third claim, Homily contended that the Court of Common Pleas erred in not holding an evidentiary hearing on the Commonwealth's use of false testimony. (Rec. Doc. 31, Ex. 23).
The Superior Court affirmed the denial on October 21, 2004. In rejecting Homily's first claim, the court found it unreviewable even though it was raised as a claim of ineffective assistance of counsel. "[C]laims that are finally litigated cannot be reexamined under the guise of ineffectiveness of counsel." (Rec. Doc. 31, Ex. 23). In rejecting Homily's second claim, the court first found that he had waived it by not raising it in his PCRA petition. However, the court then went on to discuss the claim's lack of merit. The Petitioner had failed to show a Brady violation because it was "mere supposition" that a pathology report existed. (Rec. Doc. 31, Ex. 23). There being no actual evidence that there was a pathology report in the hands of the Commonwealth, the Commonwealth could not have then suppressed it in the court's view. The court, adopting the reasoning of the lower court, next found that the Petitioner's medical expert was qualified. It refused to address the issue of whether the medical examiner should have performed laboratory tests because it had not been raised in the lower court. (Rec. Doc. 31, Ex. 23).
Homily did not petition for allowance of appeal to the Pennsylvania Supreme Court. (Rec. Doc. 29). "No further relief was sought in the State Court where, it appears ...