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Abdul-Salaam v. Beard

July 7, 2008

SEIFULLAH ABDUL-SALAAM, PETITIONER
v.
JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; WILLIAM S. STICKMAN, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; AND JOSEPH P. MAZURKIEWICZ, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW, RESPONDENTS



MEMORANDUM

(Judge Jones)

THIS IS A CAPITAL CASE

Pending before the Court is Petitioner Seifullah Abdul-Salaam's ("Abdul-Salaam" or "Petitioner") Motion for Relief on the Merits ("Merits Motion"), filed on April 6, 2007. (Doc. 118.) Abdul-Salaam is seeking relief on the merits of two of the claims presented in his previously-filed petition for writ of habeas corpus. (See Doc. 8.) The Court has jurisdiction to review these habeas claims pursuant to 28 U.S.C. § 1331 and the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified at 28 U.S.C. § 2254), and we have reviewed the submissions of the parties as well as heard oral argument. For the reasons set forth below, the Merits Motion will be denied and the Court will stay these federal habeas proceedings and place them in abeyance pending exhaustion of the claims presented in Abdul-Salaam's newly-filed third state post-conviction petition, (Doc. 109).

I. FACTUAL AND PROCEDURAL HISTORY

The intricate facts underlying this death penalty homicide case, which is before the Court pursuant to Abdul-Salaam's petition for writ of habeas corpus (Doc. 8), are well known to the parties and need not be restated in detail here. As such, this brief summary of the factual and procedural background follows.*fn1

On the morning of August 19, 1994, Abdul-Salaam and Scott Anderson traveled to the town of New Cumberland, Pennsylvania in a borrowed Suzuki Sidekick. When they reached New Cumberland, they parked their vehicle in an alley around the corner from the D & S Coin Shop, which was located on Fourth Street and owned by Dale Rishel. Abdul-Salaam approached the coin shop, knocked on the front door and entered. Anderson followed and entered the shop shortly thereafter. Mr. Vinh Tran, a Fourth Street resident, observed these events.

Once inside the shop, Abdul-Salaam asked Mr. Rishel about gold coins he believed were located there. Mr. Rishel informed him that he did not carry such coins and suggested another dealer. Abdul-Salaam then pulled a revolver from under his shirt and he and Anderson attempted to subdue Mr. Rishel. The front window of the shop was broken in the process. Mr. Rishel, however, was overcome by the men, who taped his face and legs and tied his arms behind his back.

When Mr. Tran heard the shop's front window break, he alerted his landlord, who subsequently called 911. Officer Willis Cole of the New Cumberland Police Department responded to the call. He parked his squad car on Fourth Street and approached the coin shop on foot. As he did so, Abdul-Salaam and Anderson apparently became aware of his presence, and finding no rear door to the shop, exited the front door.

Abdul-Salaam was able to flee the scene, but Officer Cole intercepted Anderson. As he prepared to handcuff Anderson, Abdul-Salaam reappeared from the alley where the Suzuki Sidekick was parked. He sprinted towards Officer Cole, shooting as he ran. Officer Cole was able to return fire, hitting Abdul-Salaam in the leg. However, Abdul-Salaam continued to shoot at Officer Cole. Officer Cole then staggered into Fourth Street and collapsed after receiving a bullet through his heart. Various witnesses who lived and/or worked in the neighborhood witnessed these events as they unfolded.

After the shooting, Abdul-Salaam and Anderson fled the scene, dropping the revolver used to shoot Officer Cole as they ran. They reached the Suzuki and proceeded in the direction of Harrisburg. However, police were soon able to pursue them after receiving a description of the Suzuki and the perpetrators on police radio. A high speed chase ensued, but Abdul-Salaam and Anderson lost control of the Suzuki and had to abandon the vehicle, fleeing on foot. Anderson was apprehended several blocks from the abandoned vehicle. Abdul-Salaam was arrested later that morning near the home of his girlfriend while the two were walking her dog.

Upon his arrest, Abdul-Salaam requested treatment for his leg wound and was transported to a local hospital and accompanied by a police officer. Abdul-Salaam asked the officer, "What are my options?" After readvising Abdul-Salaam of his right to remain silent and right to counsel, the officer told Abdul-Salaam to speak with an attorney. Abdul-Salaam then stated, "All I'm going to say is that 'Scotty Love' did it." "Scotty Love" is an alias for Scott Anderson.

Abdul-Salaam's trial commenced on March 9, 1995, in the Court of Common Pleas for Cumberland County, Pennsylvania ("trial court" or "Cumberland County court") after jury selection. Among other things, various witnesses testified as to the events surrounding the robbery and killing of Officer Cole. On March 15, 1995, after a six day trial, Abdul-Salaam was convicted of robbery, conspiracy, and the first degree murder of Officer Cole. The following day the trial court reconvened for the sentencing hearing. After concluding that the aggravating circumstances proven by the Commonwealth outweighed the mitigating circumstances proven by the defense, the jury unanimously sentenced Abdul-Salaam to death. Accordingly, on March 24, 1995, the trial court imposed the sentence of death rendered by the jury.

On direct appeal, the Pennsylvania Supreme Court affirmed Abdul-Salaam's conviction and sentence by its order of June 18, 1996. Commonwealth v. Abdul-Salaam, 678 A.2d 342 (Pa. 1996) ("Abdul-Salaam I"). Following the conclusion of the direct appeal, then-Governor Thomas J. Ridge signed a warrant scheduling Abdul-Salaam's execution for the week of October 27, 1996. Abdul-Salaam then filed a motion for a stay of execution in the Pennsylvania Supreme Court on October 10, 1996, and a stay was issued on October 25, 1996, see Commonwealth v. Abdul-Salaam, 684 A.2d 539 (Pa. 1996), pending the resolution of AbdulSalaam's petition for writ of certiorari by the United States Supreme Court. That petition was denied on March 31, 1997. Abdul-Salaam v. Pennsylvania, 520 U.S. 1157 (1997).

On April 29, 1997, then-Governor Ridge signed a second warrant scheduling Abdul-Salaam's execution for the week of May 25, 1997. Abdul-Salaam filed a motion for a stay of execution in the trial court in order to obtain state post-conviction review of his conviction and sentence. The Honorable Kevin A. Hess of the Cumberland County court issued a stay of execution on May 22, 1997.

In addition to filing the motion for a stay of execution, on May 13, 1997, Abdul-Salaam filed a pro se petition ("First PCRA Petition") for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Counsel was appointed to represent Abdul-Salaam and an amended petition was filed on September 23, 1997. Following hearings in late 1997 and early 1998, the trial court, now serving as PCRA court, denied all of Abdul-Salaam's claims for relief on November 12, 1998. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Post-Conviction Relief Hearing (filed Nov. 12, 1998) (Hess, J.) (Doc. 19-2 at 108-123) ("PCRA Op."). The Pennsylvania Supreme Court affirmed that decision on December 31, 2001. Commonwealth v. Abdul-Salaam, 808 A.2d 558 (Pa. 2001) ("Abdul-Salaam II"). On January 10, 2002, Abdul-Salaam filed an application for reconsideration of Pennsylvania Supreme Court's December 31, 2001, decision.

While this application was pending, Abdul-Salaam filed a second state post- conviction petition ("Second PCRA Petition") in the trial court on February 28, 2002. On July 10, 2002, the PCRA court issued a notice of its intention to dismiss the Second PCRA Petition, and on July 18, 2002, it entered an order giving Abdul-Salaam twenty (20) days within which to show cause why his Second PCRA Petition should not be dismissed without a hearing. In response to that order, Abdul-Salaam asserted, inter alia, that any dismissal of his Second PCRA Petition while his request for re-argument was pending on his First PCRA Petition would be premature. The PCRA court agreed and withheld judgment in the case pending disposition of the First PCRA Petition. Subsequently, on September 20, 2002, the Pennsylvania Supreme Court denied Abdul-Salaam's application for reconsideration of his First PCRA Petition.

On October 22, 2002, then-Governor Mark Schweiker signed AbdulSalaam's third death warrant, scheduling his execution for December 12, 2002. Because the PCRA court had not yet acted on the Second PCRA Petition and given the imminent execution date, on November 8, 2002, Abdul-Salaam filed an emergency motion for a stay of execution in the Pennsylvania Supreme Court. On that same day, the PCRA court filed its opinion pursuant to Pa. R. App. P. 1925 in support of its denial of the Second PCRA Petition. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Opinion Pursuant to Rule 1925 (filed Nov. 8, 2002) (Hess, J.). After hearing oral argument on one of Abdul-Salaam's claims presented in his Second PCRA Petition, on December 4, 2002, the Pennsylvania Supreme Court issued an order denying Abdul-Salaam's November 8, 2002, request for a stay of execution. An opinion followed on December 12, 2002. Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002) ("Abdul-Salaam III").

In the meantime, on November 25, 2002, Abdul-Salaam filed in this Court a motion for a stay of execution, as well as for appointment of counsel and leave to proceed in forma pauperis. (Doc. 1.) The Court granted the motion by Order dated December 9, 2002, staying Abdul-Salaam's execution pending disposition of the forthcoming habeas petition. (Doc. 6.)

Abdul-Salaam filed his habeas petition on March 25, 2003. (Doc. 8.) Respondents, represented by the Cumberland County District Attorney, filed a response to the petition on August 11, 2003. (Doc. 19.) On October 27, 2003, Abdul-Salaam filed his reply memorandum. (Doc. 23.)

On that same day, Abdul-Salaam filed a motion for omnibus intermediate relief in habeas corpus proceedings, requesting various forms of relief, including the right to conduct additional discovery and to have the Court conduct an evidentiary hearing on a number of his claims. (Doc. 22.) Following responsive and reply briefing, the Court granted in part and denied in part the motion on July 26, 2004. (Doc. 33.) Specifically, among other things, the Court denied AbdulSalaam's request for an evidentiary hearing, but permitted Abdul-Salaam to conduct limited discovery.

In permitting limited discovery, the Court allowed Abdul-Salaam to: (1) propound an interrogatory regarding whether the Commonwealth had provided the so-called Harlacker Report (which contains information about one Tony Clifton) to trial or appellate defense counsel, (2) inspect certain biological evidence, and (3) take limited depositions. (See Doc. 33 at 8-10.) Subsequent to the Court's determination, the parties reached a stipulation, filed August 11, 2004, (Doc. 35), in lieu of the interrogatory regarding the Harlacker Report. The stipulation stated, in relevant part:

[T]he parties agree that based upon the state of the full record before this Court that there is no evidence that the Harlacker Report was provided to Petitioner's counsel at any time prior to April 16, 1998, and Respondents do not contend to the contrary. (Doc. 35.)

The Court also permitted Abdul-Salaam to inspect all remaining biological evidence in order to determine whether additional discovery and/or scientific testing of such would be appropriate. (Doc. 9-10.) Following that inspection, Abdul-Salaam filed a second motion for discovery on March 1, 2005, seeking the Court's permission to conduct DNA testing of apparent blood found on the steering wheel of the Suzuki sport utility vehicle, presented by the Commonwealth as the getaway vehicle. (Doc. 43.)

Following additional briefing on the motion, oral argument, and an evidentiary hearing, on August 11, 2005, the Court granted in part Abdul-Salaam's motion and allowed his expert to gather the apparent blood evidence from the steering wheel and to conduct DNA testing. (See Doc. 77.) Respondents took an interlocutory appeal of that Order to the United States Court of Appeals for the Third Circuit. (See Doc. 78.) On October 6, 2005, the Third Circuit Court dismissed the appeal for lack of appellate jurisdiction. (See Doc. 83.) Respondents then filed in this Court a motion for a stay of the Court's August 11, 2005, Order, (Doc. 85), which the Court granted on January 2, 2006, (Doc. 87). The Court also stayed the August 11, 2005, Order, pending Respondents' appeal to the United States Supreme Court. (Id.) Respondents' petition for writ of certiorari was denied on May 22, 2006. Beard v. Abdul-Salaam, 126 S.Ct. 2295 (May 22, 2006).

Following these interlocutory appellate proceedings, biological evidence from the steering wheel was gathered and DNA testing was conducted. The results of testing established that the blood gathered from the steering wheel was not Abdul-Salaam's; rather, the blood on the wheel was that of the co-defendant, Scott Anderson. Respondents do not contest the results of this DNA testing.

On January 16, 2007, while the instant action remained pending, Abdul-Salaam protectively filed a third state post-conviction petition ("Third PCRA Petition") in the Cumberland County court. (See Doc. 109.) In the petition, Abdul-Salaam presented the results of his expert Dr. Blake's testing of the steering wheel. Additionally, Abdul-Salaam requested that the court hold the petition in abeyance pending this Court's disposition of the instant motion. To date, the PCRA court has taken no action on the Third PCRA Petition.

In the instant motion, Abdul-Salaam has presented the Court with a rather unique scenario. Rather than asking the Court to consider the entire habeas corpus petition (Doc. 8), Abdul-Salaam now requests that the Court bypass many of the issues presented in the petition and instead grant relief on the merits of only two of his habeas claims.*fn2 In the first of the two claims Abdul-Salaam wishes the Court to consider,*fn3 set forth in his habeas petition as Claim IV, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),*fn4 when it failed to disclose the existence of blood remaining on the steering wheel which, after subsequent DNA testing, proved to be that of Scott Anderson and not Abdul-Salaam. In his second claim, set forth in his habeas petition as Claim I, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady when it failed to provide to defense counsel the Harlacker Report containing information from Tony Clifton, which report suggests that Abdul-Salaam was not the man discussing a robbery with Scott Anderson in a vehicle the night before the robbery and killing of Officer Cole. We will now turn to the factual background underpinning each claim.

A. Brady-Blood Claim

At Abdul-Salaam's original 1995 trial in the Cumberland County court, Donald P. Bloser, Jr., a forensic scientist with the Pennsylvania State Police Crime Laboratory, testified on behalf of the Commonwealth that when he tested the Suzuki steering wheel for the presence of blood he found Type B blood, which matched Abdul-Salaam's blood type to within ten percent (10%) of the population.*fn5 (Trial, Notes of Testimony ("NT") 3/14/95 at 125.) Mr. Bloser, however, performed this testing without using DNA testing modalities. (Id. at 118.) Rather, he separated the Type B blood to identify enzymes which would further narrow the results. (Id. at 120-21.) When the Commonwealth asked why he did not get results on two enzymes he had tested, Mr. Bloser stated,

A: I did not get a result. There was not enough blood there to do those two.

Q: Not enough blood on the steering wheel?

A: Yes. (Id. at 121.) On cross examination, Mr. Bloser further testified:

Q: Now, can you recognize on that photograph [of the steering wheel] discolored areas on the steering wheel consistent with the blood which you found when it was delivered to you for testing?

A: Yes.

Q: And your testimony is that even with this quantity of discoloration that we see, there was insufficient blood for the purposes of doing the Isoenzyme tests?

A: On some I got three of the five enzymes. So I used most of it for the three. And I did not have enough - - what I used for the last two did not give me results.

Q: And I guess you tried to remove all of the blood from the wheel?

A: As much as I could. (Id. at 124, 128.)

In light of Mr. Bloser's trial testimony, before the PCRA court Abdul-Salaam asserted that the Commonwealth violated his due process rights in violation of Arizona v. Youngblood, 488 U.S. 51 (1988),*fn6 when it consumed the entire blood sample for testing. In relying on Youngblood, Abdul-Salaam contended that the police had destroyed the entire blood sample in bad faith. The PCRA court disagreed, however, finding that Abdul-Salaam had failed to offer evidence that the blood sample was in fact destroyed in bad faith. PCRA Op. at 16. Noting that "[t]he presence or absence of bad faith by the police must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed," Youngblood, 488 U.S. at 56 n.1, the PCRA court denied Abdul-Salaam's claim that his due process rights were violated when the entire blood sample was used. PCRA Op. at 16.

In his habeas petition filed in this Court, Abdul-Salaam originally raised this same claim regarding the blood evidence pursuant to Youngblood. (See Doc. 8 at 84-88.) In support of that claim, at the hearing on Abdul-Salaam's second motion for discovery, the Court heard testimony from Mr. Bloser. Specifically, Mr. Bloser read from his lab notes which had been generated contemporaneously with his work on the case. His notes read, in pertinent part,

Inside [an evidence box] is one dark green steering wheel with suspected blood. Lots of blood, but on different areas. (Discovery Hearing, Notes of Testimony ("NT") 8/2/05 at 36-37, Doc. 107.) He also testified as follows:

Q: Do I understand your testimony to be, sir, that when you handed off the wheel to the fingerprint folks, that in your view there ...


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