The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Edgar Martin Hurlburt, Jr., an inmate confined at the State Correctional Institution in Huntingdon, Pennsylvania ("SCI-Huntingdon"), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondents are SCI-Huntingdon Superintendent Raymond Lawler, the District Attorney for Snyder County, Pennsylvania, and the Attorney General for the Commonwealth of Pennsylvania. In this memorandum, the court addresses whether Hurlburt's claims were properly exhausted in state court or procedurally defaulted. Because the court concludes that some claims were exhausted, Respondents will be ordered to respond on the merits. Hurlburt's unexhausted and procedurally defaulted claims will be dismissed with prejudice.
A. Procedural History in State Court
The following facts are extracted from the undisputed record. Hurlburt was charged with criminal homicide, robbery, aggravated assault, theft by unlawful taking and two counts of criminal conspiracy in the Court of Common Pleas for Snyder County, Pennsylvania ("trial court" or "Snyder County court"). The charges stemmed from the murder of 78-year-old Martin Beachy which occurred on May 23, 1993.
On February 16, 1994, Hurlburt entered a plea of guilty to a charge of first-degree murder, in exchange for the Commonwealth's agreement to withdraw the aggravating circumstances in support of the death penalty and to nol pros the remaining charges of robbery, aggravated assault, theft by unlawful taking, and criminal conspiracy. Hurlburt, who was represented by Snyder County Public Defender Ann Shapiro and court-appointed co-counsel Mark Lemon, executed a written guilty plea colloquy and a guilty plea hearing was conducted by the Court of Common Pleas, the Honorable P.J. Woelful presiding. On the same day that he entered his plea, Hurlburt was sentenced to serve a term of life imprisonment without parole.
2. The PCRA Process Begins
Although Hurlburt did not file a direct appeal, he did seek collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq., on April 28, 1994. (Doc. 18 at 6.) On May 2, 1994, the PCRA court (Judge Woelful presiding) appointed PCRA counsel Randall Zimmerman and issued an order that the Commonwealth show cause, within thirty days, why an evidentiary hearing should not be granted. The Commonwealth did not respond. (Id.) Zimmerman did nothing to establish a time for an evidentiary hearing because, it appears, he and Hurlburt were discussing whether and how to amend Hurlburt's PCRA petition. (See generally Doc. 15 Ex. 2.) In May 1998, PCRA counsel sent Hurlburt a proposed amended petition for his review and signature. (Id. at 30-31.)
The next document in the chronology is dated July 10, 2000, when Hurlburt wrote to Zimmerman stating that he had returned the signed amended petition but had not heard from Zimmerman since that time. (Id. at 32.) Zimmerman responded months later suggesting that they meet again to discuss yet another proposed amended petition. (Id. at 34-35.) Finally, on November 21, 2001, although Zimmerman was still noted as his attorney, Hurlburt filed a pro se amendment to his original PCRA petition. (Doc. 18 at 7.) The PCRA court rejected Hurlburt's submission because he was represented by counsel. (Id.) Hurlburt filed a pro se appeal of that decision and filed various pro se petitions with the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania. (Id. at 7-8.) All of his petitions to the appellate courts were denied. (Id.)
In July 2002, Hurlburt applied to the PCRA court to represent himself in his PCRA action. (Id. at 8.) Instead of granting the relief requested, in August 2002, the court terminated Zimmerman and appointed Stuart Cilo as Hurlburt's PCRA attorney. (Id.) In March 2003, Hurlburt again requested that he be allowed to represent himself and requested release from prison because of the delay in resolving his PCRA action. (Id.) After a hearing on both issues in May 2003, the PCRA court denied both motions. (Id. at 9.) At the same time, the PCRA court ordered an evidentiary hearing.
3. Arguments and Decision in the PCRA Court
The evidentiary hearing was held on July 17, 2003 and August 7, 2003. Evidence was taken on ineffective assistance of trial counsel and drew from Hurlburt's original PCRA petition and the pro se amended petition rejected by the PCRA court, but only to the extent that the amended petition alleged ineffective assistance of counsel. (Doc. 36 Ex. 6 at 4; Doc. 28 Ex. B at 1; Doc. 36 Ex. 6 at 6.)
The original petition stated a single ground for relief: ineffective assistance of trial counsel, particularly Public Defender Ann Shapiro. (Doc. 36 Ex. 6 at 54-60.) Hurlburt claimed Shapiro was ineffective because: 1) her case load was too heavy to assist him effectively; 2) she was not sufficiently experienced to navigate a murder case, never having tried one before; 3) she did not explain the law to him; 4) she did not pursue an effective pretrial strategy; and 5) she did not apprise Hurlburt of the proceedings. (Id. at 56.)
Hurlburt's pro se amended PCRA petition was far broader in scope. He argued: 1) ineffective assistance of plea counsel; 2) constitutional errors made by the trial court; 3) prosecutorial misconduct; and 4) constructive denial of counsel. (Doc. 15 Ex. 5.) The grounds for Hurlburt's claim of ineffective assistance of counsel were:
1) failure to conduct adequate pretrial investigation; 2) permitting a guilty plea without having received the results of the pretrial investigation; 3) failing to advise the trial court of a conflict of interest under which Skip Gochenour, investigator for the defense, was operating; 4) advising Hurlburt that he would be eligible for commutation of sentence after serving fifteen to twenty years; 5) permitting the guilty plea after the trial court failed to instruct Hurlburt as to the elements of first-, second-, and third-degree murder and voluntary and involuntary manslaughter; 6) making material misstatements to the trial court about her investigation into Hurlburt's defense and her communication with Hurlburt about his defense; 7) permitting the guilty plea after "proscribed inducements" by the prosecutor; 8) failing to file a motion to withdraw the guilty plea; and 9) failing to preserve meritorious issues for appeal; and 10) failing to file a direct appeal. (Id. at 4.)
Hurlburt's PCRA brief, filed by Cilo, focused solely on ineffective assistance of trial counsel. Certain arguments in support thereof were made contingent on the PCRA court's credibility finding; the remaining two arguments were based in the law. The credibility arguments focused on Hurlburt's testimony, all of which was contradicted by all testifying counsel. Hurlburt testified that 1) he was offered the ability to plead to third-degree murder, which he rejected because he thought third-degree murder was worse than first-degree murder; 2) Gochenour instructed Hurlburt to cease taking his medication before the guilty plea so that he could truthfully state that he was not on any medication; 3) Gochenour instructed Hurlburt to answer all questions at the guilty plea colloquy in such a way that the plea would be accepted, without regard for the truth; 4) the prosecuting attorney promised Hurlburt a "commutation letter" as an incentive for his guilty plea; 5) Shapiro had been contacted for representation by Hurlburt's co-defendant and thus operated under a conflict of interest while representing him; 6) Gochenour had been contacted by counsel for Hurlburt's co-defendant to act as an investigator for her, and thus was operating under a conflict of interest while investigating Hurlburt's defense; and 7) Gochenour brought counsel for Hurlburt's co-defendant to see him in prison prior to the entry of Hurlburt's guilty plea. (Doc. 28 Ex. B at 4-6.) The PCRA court found Hurlburt's testimony regarding these matters not credible. Shapiro, Lemon, and Gochenour testified that none of these events had occurred, and their version of events was adopted. (See generally Doc. 36 Ex. 2.)
In addition to cursory treatment of the questions of credibility, the brief in support of Hurlburt's PCRA petition argued that Shapiro and Lemon were not sufficiently experienced or qualified to represent Hurlburt in his capital homicide defense. By their own admissions during the PCRA hearing, they did not meet the Philadelphia County Rules for Appointment of Counsel in a capital case ("Philadelphia Standards"). Their work for Hurlburt reflected their ineffectiveness, he argued, in light of their performance during the pretrial hearing on their motion to suppress evidence. Hurlburt argued that his inculpatory statements to Tennessee police officers were made under the influence of drugs and, therefore, should have been suppressed. At the pretrial suppression hearing, counsel did not call Hurlburt to testify that he had used drugs to contradict the testimony of the police officers that he was not under the influence. "Without some testimony regarding drug use, it would be absolutely impossible for the court to make a determination that the statements may have been tainted by [Hurlburt's] drug use." (Doc. 28 Ex. B at 9.) Further, trial counsel did not wait for the trial court to decide the suppression issue before advising Hurlburt to plead guilty.
The PCRA court found that Shapiro and Lemon were sufficiently experienced and qualified to represent Hurlburt in Snyder County. Both attorneys were criminal defense litigators. Shapiro had practiced since 1990, after having clerked for a federal district court, the Snyder County court, and the Pennsylvania Superior Court. Lemon had been in practice since 1986. The court concluded that the Philadelphia County Rules for Appointment of Counsel in a capital case were not dispositive in Snyder County. Homicides were relatively infrequent in Snyder County, thus likely precluding local attorneys from appointment to a homicide case if the Philadelphia standards were adopted. (Doc. 36 Ex. 2 at 5.)
The Philadelphia standards not being dispositive, the PCRA court looked to trial counsel's actual work on the case to determine whether they rendered effective assistance. As an initial matter, the PCRA court determined that trial counsel were not "overwhelmed by the demands of their professional responsibilities," as Hurlburt had argued. (Id.) The court found that Shapiro and Lemon rendered appropriate advice and pursued a litigation strategy designed to serve Hurlburt's interests. (Id. at 5-7.) The court related the numerous motions filed by counsel, including petitions for the appointment of a criminal investigator, a forensic pathologist, a forensic psychologist, a hair analysis expert, and a blood spatter expert. All petitions were granted. Counsel also filed an omnibus pretrial motion, along with motions in limine to prohibit or limit the admission of specific items of physical evidence and to prohibit the death qualification of potential jurors. At the time appointed for a hearing on many of the pretrial motions however, the prosecutor and trial counsel confirmed that Hurlburt had entered a plea agreement with the government. He wished to plead guilty and be sentenced on that day and time. (See Doc. 15 Ex. 4 at 2-4.) The plea was taken and the sentence handed down.
The PCRA court found that trial counsel were not ineffective for not having postponed Hurlburt's plea until after a hearing on the outstanding motions and further briefing. (Doc. 36 Ex. 2 at 5.) The court noted that "all requests and motions were appropriate given the nature and factual circumstances" of the case. (Id.) It further observed that Hurlburt had failed to prove by a preponderance of the evidence that the outstanding motions would have been successful in strengthening his case or weakening the Commonwealth's case against him. (Id. at 8.) To the contrary, the PCRA court concluded that plea counsel chose a course designed to serve Hurlburt's interests. They were required to inform him of the plea offer to first-degree murder with life imprisonment. Shapiro conveyed her concern about the physical evidence against the defense and concluded, based on the reports of the forensic psychologist, that neither insanity nor diminished capacity were available as defenses. Hurlburt's intoxication and drug use would not negate the intent element required for first-degree murder, again in light of the physical evidence. Further, Hurlburt had made several inculpatory statements to police officers in Tennessee and had led the Pennsylvania state police to the spot where the murder weapons could be found. Because of all of this, the PCRA court found that plea counsel followed a prudent path to remove the death penalty from consideration by advising a guilty plea to first-degree murder with life imprisonment. (Doc. 36 Ex. 2 at 9.)
4. Arguments and Decision in the Superior Court
Cilo remained Hurlburt's appointed counsel for the appeal of the PCRA court's decision. On October 25, 2004, Cilo filed the brief in support of that appeal. The only issue Cilo found of sufficient merit on appeal was whether Shapiro and Lemon "were of sufficient education and experience to be qualified to represent [Hurlburt] in a capital homicide case." (Doc. 36 Ex. 6 at 4.) The brief states that "undersigned counsel believes and avers that all of the allegations but for competency qualifications of appointed counsel set ...