The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Petitioner Judy Ann Showers ("Showers"), an inmate currently incarcerated at the State Correctional Institution in Muncy, Pennsylvania, commenced this action by filing a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Showers is challenging her conviction and sentence in the Court of Common Pleas of Northumberland County, Pennsylvania, with claims of ineffective assistance of counsel and trial court error. For the reasons that follow, the petition will be granted as to Claim I, which relates to ineffective assistance of trial counsel for failing to present rebuttal expert testimony. The case will be remanded to the Commonwealth of Pennsylvania to conduct further proceedings in a manner consistent with this Memorandum.
On March 23, 1994, Showers was found guilty of first degree murder following a jury trial in the Court of Common Pleas of Northumberland County, Pennsylvania ("trial court" or "Northumberland county court"). The relevant facts were summarized by the Pennsylvania Superior Court as follows:
On September 2, 1992, state police Trooper Robert McBride responded to the scene of an apparent suicide at the residence of [Showers] and her husband, Delbert Showers, whose body was found lying on their couch. Norman Showers, the deceased's brother, had already arrived on the scene and discovered what appeared to be a suicide note under the body. The note explained the deceased's reasons for committing suicide and what drugs he took to accomplish it. The deceased died of an oral overdose of a mixture of Serax, an anti-depressant drug, and liquid morphine. The Serax was obtained by prescription, while the morphine had been taken from Helen Wolfe, a friend of the Showers and the former lover of the deceased.
On the day of her husband's death, [Showers], a licensed practical nurse, had been alone in the house with him. During Trooper McBride's investigation, the police determined that the note was not written by the deceased. In February of 1993, Trooper McBride again interviewed [Showers] who admitted that she wrote the note because she feared she would be accused of killing her husband. Based upon inconsistencies in her story and other information which she provided, [Showers] was charged with first degree murder.
At trial, the Commonwealth introduced evidence of [Showers'] motive for the killing. At the time of his death, the deceased was romantically involved with Sylvia Knecht, the younger sister of Helen Wolfe. [Showers] knew of this affair. Years earlier, [Showers] had also discovered his affair with Helen Wolfe. In addition, there was evidence that [Showers] herself had in the past been involved in extramarital relations. There were also indications of a financial motive, evidence to the effect that although the deceased was financially well-off, he was "tight" with money.
[Showers] attempted to establish that the death was a suicide by evidence that the deceased had sought treatment for depression in the past, and that he had discussed suicide.
Commonwealth v. Showers, 681 A.2d 746, 749 (Pa. Super. 1996) ("Showers-I"). Immediately following the announcement of the verdict, Showers was sentenced by the trial court to a term of life imprisonment without parole. On April 4, 1994, she filed post- sentencing motions, which were denied. After obtaining new appellate counsel, on May 4, 1995, Showers filed a concise statement of matters complained of on appeal pursuant to the trial court's order under Pennsylvania Rule of Appellate Procedure 1925(b). By opinion dated September 12, 1995, the trial court denied all issues presented in that appeal.
Represented by new appellate counsel, William C. Costopoulos, Esquire, Showers timely filed a direct appeal to the Pennsylvania Superior Court, raising eight (8) issues total. Six of those issues pertained to trial court error during the guilt phase of the trial. In particular, Showers claimed the trial court erred in permitting the Commonwealth to introduce evidence of her bad reputation for truthfulness. Showers-I, 681 A.2d at 749. Further, Showers set forth one ineffective assistance of counsel claim alleging that trial counsel did not extensively cross-examine the Commonwealth's expert witness who had testified that the deceased was not a suicide risk. Id.
The Superior Court affirmed the judgment of sentence upon direct appeal in an opinion dated June 20, 1996. Id. A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on November 27, 1996. Commonwealth v. Showers, 685 A.2d 544 (Pa. 1996). The United States Supreme Court denied a petition for writ of certiorari on May 12, 1997. Showers v. Pennsylvania, 520 U.S. 1213 (1997).
On May 11, 1998, new appellate counsel, Caroline M. Roberto, Esquire, filed a petition for collateral relief on behalf of Showers under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. ANN. §§ 9541 et seq. In her PCRA petition, Showers raised claims of ineffective assistance of trial counsel for: (1) failing to present expert testimony to rebut the Commonwealth's expert testimony regarding: the ability to disguise the taste of liquid morphine; the voluntary and physiological characteristics of swallowing; and results of the autopsy; (2) failing to object to the impermissible opinion testimony of the coroner that the manner of death was homicide; (3) failing to object to the Commonwealth's expert reading verbatim into the record the "criminal history" provided to him by the coroner; (4) failing to object to the testimony of Trooper Robert McBride regarding his growing "suspicions" that the case was not a suicide; and (5) failing to file a motion to suppress evidence of bank records and tax returns. (Doc. 1 at 5.) Showers also set forth an underlying claim of ineffectiveness of appellate counsel for failing to raise any of the foregoing issues on direct appeal.
A full evidentiary hearing on the PCRA petition was held before the Honorable Samuel C. Ranck in the Northumberland county court on August 11 and September 24, 1998. On January 7, 2000, the PCRA court denied the PCRA petition.*fn1 (Doc 23 at 2-11.)
Showers' timely appeal to the Pennsylvania Superior Court raised the following issues:
[1.] Whether trial counsel provided ineffective assistance of counsel under the state and federal constitutions where he failed to: (A) investigate and pursue a forensic, medical - scientific defense and call an available forensic pathologist to establish that the prosecution's theory of homicide was impossible in light of forensic analysis of its own immutable physical evidence, which also proved the manner of death was suicide; (B) object to the Coroner's improper expert opinion that the manner of death was homicide, based upon his detailed recap of the police investigation and ongoing thought processes of investigator's; (C) object to the prosecution's pathologist's improper so-called "clinical history" of the case, another "recap" of the investigation; (D) object to yet another "recap" of the investigation by the final witness, a state trooper, whose recap and explanation of his thought processes was essentially a preview of closing argument, but, largely, not evidence; and (E) to move to suppress illegally obtained bank records and tax returns.
[2.] Whether new appellate counsel provided ineffective assistance of counsel under the state and federal constitutions where he failed to raise any of the foregoing instances of trial counsel's constitutionally inadequate representation, which appellate counsel correctly believed to be of arguable merit.
Showers' Brief to the Pennsylvania Superior Court, 2000 WL 34486395, at *3 (Sept. 15, 2000).
On August 20, 2001, the Superior Court affirmed the judgment of the PCRA court. Commonwealth v. Showers, 782 A.2d 1010 (Pa. Super. 2001) ("Showers-II"). In its discussion, the Superior Court initially addressed the standard for demonstrating appellate counsel's ineffectiveness, stating that "[u]nless [Showers] proves by a preponderance of the evidence that Mr. Costopoulos was ineffective for not raising the five issues identified in this appeal, she is entitled to no relief." Id. at 1015. Further, the court stated that under 42 PA. CONS. STAT. ANN. § 9543(a)(4), it was Showers' burden to show that Mr. Costopoulos' decision to raise only eight issues for review on direct appeal could not have been the result of "any rational, strategic or tactical decision by him." Id. After reviewing the issues raised by Mr. Costopoulos and his PCRA testimony regarding his reasons for not including certain issues in the direct appeal, the Superior Court determined that Showers had not sustained her burden of proof under the PCRA to show that Mr. Costopoulos' course of action did not have a "rational, strategic, or tactical" basis. Id. at 1019. The court further found that none of the allegations of error raised in the additional claims presented "an issue of significant arguable merit." Id. In doing so, the court addressed the merits of those claims. Id. at 1019-1022. Consequently, the court concluded that appellate counsel could properly choose not to pursue those issues through the "exercise of valid tactical strategy." Id. at 1019. Showers filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was denied by order dated December 30, 2002. Commonwealth v. Showers, 814 A.2d 677 (Pa. 2002).
On December 11, 2003, Showers timely filed the instant petition for writ of habeas corpus in which she alleges four claims of ineffective assistance of counsel and one claim of trial court error. Specifically, those claims are set forth as follows:
A. Ineffective assistance of counsel in violation of the Sixth Amendment of the Constitution of the United States, in that:
1. Trial counsel failed to present at trial expert testimony from an available forensic pathologist to rebut testimony by prosecution expert, Isidore Mihalikis, M.D., regarding the ability to disguise the liquid morphine Roxanol, which caused the death of Delbert Showers; to explain to the jury the voluntary nature and physiological characteristics of swallowing; and to explain that the autopsy results failed to support either surreptitious oral administration of Roxanol or forced swallowing, and appellate counsel failed to preserve the issue on appeal,
2. Counsel failed to object to the impermissible opinion testimony of Northumberland County Coroner Richard Ulrich that the manner of death in this case was homicide, and appellate counsel failed to preserve on appeal,
3. Counsel failed to object to and raise on appeal Dr. Mihalikis' testimony wherein he reviewed for the jury and read verbatim the "criminal history" which was provided to him by Coroner Ulrich and which contained triple hearsay; was completely irrelevant to the determination of the cause of death,
4. Counsel failed to object to and raise on appeal the testimony of Trooper Robert McBride regarding his growing "suspicions" that the case was not a suicide and regarding his irrelevant, prejudicial and impermissible editorial comments on the evidence as "curious" and "suspicious," and
B. The trial court erred by permitting the prosecution to call several character reputation witnesses to testify that the petitioner had a reputation for dishonesty when she did not place the honesty of her character into evidence; where the testimony was based on knowledge 10 to 15 years old and thus remote; and one witness improperly and prejudicially testified that petitioner was fired from her nursing job and was not trusted by the hospital staff.
(Doc. 1.) Respondents responded to the habeas petition on February 5, 2004. (Doc. 9.) Showers filed her reply brief on February 26, 2004. (Doc. 13.) This matter is now ripe for disposition.
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 her confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (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, 67-68 (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 67-68; see also Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997).
Before a court may review a § 2254 petition, the petitioner must demonstrate exhaustion of state court remedies and lack of procedural default.*fn2 Only then may the court examine the merits of the petition.
A. Exhaustion and Procedural Default
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).
To satisfy the statutory requirements, a federal habeas petitioner must have presented the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984).
A petitioner bears the burden of demonstrating that he has "fairly presented" his claims to the state's highest court, either on direct appeal or in a state post conviction proceeding.*fn3 Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997); see also McMahon v. Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987). A petitioner fairly presents his claim when he presents the same factual and legal basis for the claim to the state courts. Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007); see also Duncan v. Henry, 513 U.S. 364, 366 (1995). In addition, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001).
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; Caswell v. Ryan, 953 F.2d 853, 857, 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." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
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 F.3d 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.
Even when a petitioner properly exhausts a claim, a federal court may not review it on the merits if a state court's decision rests on a violation of a state procedural rule that is independent of the federal question presented and adequate to support the judgment. Whitney v. Horn, 280 F.3d 240, ...