The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus (Doc. 1) in which petitioner, Tyrone Moore ("Moore"), challenges his Pennsylvania state convictions. Petitioner is represented by counsel. He asserts that he was convicted in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. For the reasons that follow, the petition will be denied.
I. State Court Proceedings
Moore was initially tried in the Court of Common Pleas of Luzerne County in May 1983, on charges of first degree murder, criminal conspiracy, robbery, theft by unlawful taking or disposition, and recklessly endangering another person. Moore was represented by two court-appointed attorneys. That trial ended in a mistrial because photographs, used during a suppression hearing but not introduced at trial, were inadvertently given to the jury at the time it commenced deliberations. Commonwealth v. Moore, 534 Pa. 527, 633 A.2d 1119, 1122, n. 2 (1993).
The same two court-appointed attorneys represented Moore when he was retried in September 1983, and convicted of all charges, including first degree murder, based on the following conduct:
On October 1, 1982, at approximately 8:00 p.m., Nicholas Romanchick and his spouse, Karen Ann Marie Romanchick, arrived at the Forty-Fort Animal Hospital located in the Borough of Wyoming, Luzerne County, Pennsylvania. The Romanchicks were greeted by Dr. Joseph Lopotofsky, who directed them to an examination room and commenced an examination of their cat. Dr. Lopotofsky's examination was interrupted when [Moore] and Ricardo Scott entered the entrance area of the animal hospital claiming that they had hit a dog with their vehicle. Dr. Lopotofsky directed them to bring the dog in, and returned to his examination of the Romanchick's cat. [Moore] then entered the examination room holding a gun and ordered Dr. Lopotofsky and the Romanchicks to lie on the floor, while Scott, who was also brandishing a firearm, brought Dr. Lopotofsky's assistant, Barbara Nowakowski, to the examination room and forced her to the floor with the others. Scott then began tying up the victims with adhesive tape under the watchful eye of [Moore]. After Scott had completed taping Lopotofsky and while he was taping Ms. Nowakowski, Nicholas Romanchich was shot once in the back. [Moore] and Scott immediately fled the animal hospital with Mrs. Romanchick's purse.
Shortly thereafter, [Moore], Scott and a third man, Anthony Jones, arrived at the residence of Kenneth McGoy in Wilkes Barre, Pennsylvania, and upon departing, they left behind numerous items from Mrs. Romanchick's purse. These items were subsequently disposed of in a storm drain by Mr. McGoy and later recovered by the authorities with the help of Mr. McGoy's girlfriend/roommate.
As a result of the gunshot wound to his back, Nicholas Romanchick suffered extreme trauma to his pulmonary artery and superior pulmonary vein, coma, and death thirteen days later, resulting from brain damage caused by lack of oxygen.
Moore, 633 A.2d at 1123-24.
Post-trial motions for a new trial and arrest of judgment were denied on October 15, 1987. (Doc. 29-4, p. 2; Doc. 33, Ex. 10). Moore then filed an interlocutory appeal on the issue of double jeopardy. (Doc. 29-4, p. 2). The superior court quashed the appeal on July 27, 1988. (Id.) On September 23, 1988, the Pennsylvania Supreme Court denied his petition for allowance of appeal. (Id.) After a penalty hearing, on September 27, 1988, Moore was sentenced by the Court of Common Pleas of Luzerne County to: death on the criminal homicide; ten to twenty years imprisonment on the criminal conspiracy, consecutive to the sentence of death; and ten to twenty years imprisonment on the second robbery count, concurrent with the sentence for criminal conspiracy. (Id.) The trial court suspended sentences on the first robbery count and on the count of recklessly endangering another person, and did not sentence Moore on the theft by unlawful taking because it merged with the second count of robbery. Moore, 633 A.2d at 1122-23. He filed an automatic direct appeal to the Supreme Court of Pennsylvania, raising a number of issues. On November 9, 1993, the sentence of death was affirmed. (Id. at 1122). Moore's application for reargument was denied on February 23, 1994. (Doc. 29-2, p. 1).
He filed a petition for writ of certiorari to the United States Supreme Court, which was denied on January 17, 1995. Moore v. Pennsylvania, 513 U.S. 1114 (1995). Rehearing was denied on March 6, 1995. Moore v. Pennsylvania, 514 U.S. 1010 (1995).
On January 10, 1997, he filed a petition pursuant to the Post Conviction Collateral Relief Act, 42 Pa.C.S. §§ 9541-9546 "(PCRA"). On January 17, 1997, the PCRA court entered a Notice of Intention to Dismiss the motion. At this juncture, the Center for Legal Education, Advocacy & Defense Assistance ("LEADA") entered its appearance and sought leave to amend the PCRA petition. The request to amend was granted and, following investigation, LEADA filed an amended PCRA petition. After an evidentiary hearing, the PCRA court concluded that the legal representation at sentencing was ineffective, vacated the death sentence and granted Moore a new penalty hearing. The Supreme Court of Pennsylvania affirmed. Commonwealth v. Moore, 580 Pa. 279, 860 A.2d 88 (Pa. 2004).*fn1 Rehearing was denied. Moore was re-sentenced to life imprisonment without parole on December 14, 2004.
II. Claims Presented in Federal Petition
All of the issues presented during the direct appeal, with the exception of those challenging the penalty phase, and a number of issues raised in the PCRA proceedings are pursued in the instant federal petition. The claims can be broken down into the following categories:
1. Motions for Mistrial and Double Jeopardy Issues
a. Ineffective Assistance of Counsel
1. Sufficiency of the Evidence
3. Ineffective Assistance of Counsel
5. After Discovered Evidence
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-8 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation also requires the petitioner to raise the claim in a procedural context in which the state courts can consider it on the merits. Id.
If a petitioner presents unexhausted habeas claims to a federal court, but state procedural rules bar further state court review, the federal court will excuse the failure to exhaust and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed exhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at 160.
A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Coleman, 501 U.S. at 750-51; Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992). To demonstrate cause for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate actual prejudice, the petitioner must show "not merely that the errors created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire proceeding with error of constitutional dimensions." See United States v. Frady, 456 U.S. 152, 170 (1982).
Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger, 266 at 224. The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496.
In the matter sub judice, Moore has exhausted all but one of his claims. He failed to present to the state courts the claim that the "[t]rial court erred in denying to petitioner, through present counsel, permission to retain expert services for investigation of various issues." (Doc. 1, Issue IX, pp. 48-49). Thus, this claim is unexhausted. Because procedural rules bar him from pursuing this unexhausted issue in state court, he has procedurally defaulted on this claim.*fn2 He has not averred cause for or prejudice by the default. He has not demonstrated his actual innocence such that a lack of review by the court would constitute a fundamental miscarriage of justice. See McCandless, 172 F.3d at 260. Consequently, he is precluded from pursuing federal habeas corpus relief with regard to this issue. The remaining claims will be considered on the merits.
Section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:
(1) [the decision] 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) [the decision] 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). To establish that the decision was contrary to federal law "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999). Similarly, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id.
Further, under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions) Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 492, 497-98 (3d Cir. 2005). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 597-98 (1st Cir. 2001).
Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254(d)(2) and (f)*fn3 ). Mere disagreement with an inferential leap or credibility judgment of the state court is insufficient to permit relief. Porter, 276 F. Supp 2d at 296; see also Williams v. Taylor, 529 U.S. 362, 408-09 (2000); Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding lacks evidentiary support in the state court record or is plainly controverted by evidence therein should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp 2d at 296; see also Williams, 529 U.S. at 408-09.
1. Motions for Mistrial and Double Jeopardy Issues
Moore claims that his "Constitutional rights not to be placed twice in jeopardy were violated by his proceeding twice to trial. . . ." (Doc. 1, Issue V, pp. 34-39; Issue III(C), pp. 29-30). During jury deliberations, counsel became aware that the jury was in possession of two photographs of Moore that had not been introduced into evidence, let alone admitted during trial. (Doc. 33, Ex. 10, p. 8). One photo was a mug shot of Moore and the other purported to be Moore participating in a robbery and holding a revolver. (Doc. 31, N.T. Trial #1, p. 684). Trial counsel moved for a mistrial, which the court initially denied because there was nothing of record to substantiate that the photos were actually in the possession of the jury. (Id. at p. 685). After confirming that the photos were in fact in the jury room, trial counsel renewed their motion for a mistrial. (Id.) After being fully advised that he would be subject to retrial, Moore consented to the mistrial.
(Id. at pp. 686-87). The judge then declared a mistrial. (Id. at pp.686-92; Doc. 33, Ex. 10, p. 9).
Moore argues: (1) that his trial counsel were ineffective for moving for a mistrial a second time, (2) that the trial court erred when it made a sua sponte declaration of mistrial following his first trial, and (3) that the Commonwealth was grossly negligent in allowing the photographs to be included in the jury exhibit package, precluding retrial of the charges. (Doc. 1, Issue V, pp. 35-39; Issue III(C), pp. 29-30). When Moore presented these issues in his post-trial motions, the trial court concluded that these circumstances would not preclude a retrial. (Doc. 33, Ex. 10, pp. 10, 27). Moore's claims were dismissed on direct appeal by the Supreme Court without elaboration. Moore, 633 A.2d at 1124, n. 11.
a. Ineffective Assistance of Counsel
To sustain a claim for ineffective assistance of counsel, a petitioner must show that counsel's performance was objectively deficient and that this deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).*fn4 The court must defer to counsel's tactical decisions, avoiding "the distorting effects of hindsight," and give counsel the benefit of a strong presumption of reasonableness. See id. at 689; Gov't of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1431 (3d Cir. 1996). As noted above, the trial court found nothing that would preclude a retrial. (Doc. 33, Ex. 10, pp. 10, 27). Considering the double jeopardy claim in the context of ineffective assistance of counsel, the Pennsylvania Supreme Court articulated a standard which is clearly in line with prevailing federal law:
In order for [Moore] to prevail on a claim of ineffectiveness he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel's ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Furthermore, counsel can never be found ineffective for having elected not to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980).
Moore, 633 A.2d at 1131. Moore does not argue that this decision was contrary to, or involved an unreasonable application of, clearly established federal law.
Moore contends that the state courts' conclusion that counsel was not ineffective is insupportable and based on an unreasonable determination of the facts in light of the evidence presented. (Doc. 1, Issue III(C), p. 29). Specifically, he argues that there was no reason for counsel to move for a mistrial on a second occasion because counsel had already protected Moore's rights with his initial motion for a mistrial.*fn5 Although the supreme court dismissed this contention without elaboration, Moore, 633 A.2d at 1124, n. 11, the trial court addressed the issue at length. As a threshold matter, the trial court recognized the applicable standard: "[a] Defendant who asserts that there has been ineffective assistance at trial must prove not only that counsel made an error in judgment, but also that that error prejudiced the outcome of the case." Thereafter, the trial court found that there were no grounds for an ineffectiveness claim because the jury's possession of the nocent photographs provided "an exceedingly strong reason for granting a mistrial" and Moore "personally consented to the renewal of the Motion after having been fully advised of the consequences thereof." (Doc. 33, Ex. 10, pp.7, 9-10)(citations omitted). This decision is wholly supported by the record. Trial counsel were faced with the fact that two "manifestly prejudicial" photos of Moore were inadvertently placed in the hands of the jury. (Doc. 33, Ex. 10, p. 10). Upon becoming aware of this, trial counsel notified Moore of the need to move for a mistrial and clearly informed him that it was not grounds for double jeopardy and the case would be rescheduled at a later time. (Doc. 33, N.T. Trial #1, p. 687). Counsel also gave Moore the option of not proceeding with the motion for mistrial and informed him of the consequences of that alternative. (Id. at p. 688). Moore chose to proceed with the motion for a mistrial. (Id.) During the colloquy on the subject, Moore indicated that he agreed with counsel that he would be tried again and stated that he would not raise the defense of double jeopardy. (Id.) There is no question that the state court decision was based on a reasonable determination of the facts in light of the evidence presented.
Moore also argues that "the record indicates that it was the Court which encouraged the second motion [for a mistrial], thus making the Court's action a sua sponte declaration of mistrial." (Doc. 1, Issue V, p. 35) (emphasis in original). He further contends that "Since this declaration of mistrial was entirely the Court's own doing, then any acquiescence by Petitioner is irrelevant. . . . Since there was no 'manifest necessity' in the Court declaring a mistrial at that time, after first having refused to do so, then retrial of Petitioner is barred. Jorn v. U.S. [sic], 400 U.S. 470 (1971)." (Id.)
In considering this claim, the state court found as follows:
A sua sponte declaration of mistrial by the Court constitutes a bar to retrial unless there was an exceedingly strong reason for granting the mistrial. U.S. v. Jorn, 400 U.S. 470 (1971). We do not accept the argument of Defendant's present counsel that there was a sua sponte declaration in this instance, it being evident from the record that Defendant's trial counsel renewed their Motion for Mistrial, and that Defendant personally consented to the renewal of that Motion after having been fully advised of the consequences thereof. However, even if we were to accept the argument that the declaration of a mistrial in this instance was made sua sponte, it is apparent to us that there was an exceedingly strong reason for granting a mistrial. The Court, after having heard all of the ...