The opinion of the court was delivered by: Eduardo C. Robreno, J.
Petitioner objects to the Magistrate Judge's Report and Recommendation, which concluded that certain claims in his habeas petition were procedurally defaulted. Petitioner asserts that he exhausted state remedies by raising his constitutional claims in his Post-Conviction Relief Act ("PCRA") Petition pursuant to 42 Pa. C.S. § 9541 et seq. For the reasons that follow, as to the claims of insufficiency of the evidence and trial court error, the objections will be overruled and the Magistrate Judge's Report and Recommendation will be adopted. As to the balance of the claims, those the Magistrate Judge found were not exhausted and procedurally defaulted, the objections will be sustained, and the Report and Recommendation disapproved. As to the latter claims, the habeas petition will be remanded for further proceedings in a manner consistent with this memorandum.
I. PROCEDURAL HISTORY*fn1
On September 27, 2001, following a jury trial before the Honorable Lynn Bennett-Hamlin in the Court of Common Pleas of Philadelphia County, Petitioner was convicted of voluntary manslaughter. On March 20, 2002, Judge Bennett-Hamlin sentenced Petitioner to seven and one-half to fifteen years imprisonment.
On April 13, 2004, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Johnson, 852 A.2d 1248 (Pa. Super. Ct. 2004). Petitioner filed a petition for allowance of appeal in the Supreme Court of Pennsylvania, which was denied on July 22, 2004. Commonwealth v. Johnson, 856 A.2d 833 (Pa. 2004). On June 28, 2005, Petitioner filed a PCRA Petition for collateral relief. Pet'r PCRA Pet. Counsel was appointed and subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), certifying that the entire record had been reviewed and that there were no meritorious issues to advance before the PCRA court. Counsel was then permitted to withdraw. Thereafter, Johnson retained private counsel and filed an amended PCRA Petition. Pet'r Am. PCRA Pet.
On December 8, 2006, the PCRA court dismissed the petition without a hearing, adopting the reasoning in the Commonwealth's motion to dismiss. Notice Pa. R. Crim. P. 907, Commonwealth v. Johnson, No. 9810-0075 1/2 (Pa. Ct. Com. P., PCRA Unit, Nov. 6, 2006) (citing Commw. Mot. Dismiss) ("PCRA Notice"). On appeal, Petitioner refuted the PCRA court's decision on two grounds: (1) prosecutorial misconduct; and (2) ineffective assistance of trial and appellate counsel. On December 31, 2007, the Superior Court affirmed the decision of the PCRA court, stating that the sole issue on appeal was ineffective assistance of counsel. Commonwealth v. Johnson, 945 A.2d 763 (Pa. Super. Ct. 2007). A petition for allowance of appeal was not filed with the Pennsylvania Supreme Court.
On January 25, 2008, Petitioner filed the instant petition claiming: (1) the evidence presented at trial was insufficient to sustain a guilty verdict for voluntary manslaughter; (2) trial court error for failing to sustain defense objections to the prosecutor's closing argument, which shifted the burden of proof and resulted in the denial of a fair and impartial jury and the denial of his constitutional rights under the 6th and 14th Amendments; (3) prosecutorial misconduct by vouching for the credibility of Commonwealth witnesses, offering personal opinions, and referring to Petitioner as "a thief in the cloak of darkness, stealing human life"; (4) ineffective assistance of trial counsel for failing to request that an identification instruction be given to the jury; (5) ineffective assistance of appellate counsel for failing to raise the claim that the prosecutor's closing argument was unduly prejudicial and that the trial court erred in failing to grant a mistrial; and (6) ineffective assistance of appellate counsel for failing to raise the claim that the trial court erred in allowing a witness to testify about prior crimes at sentencing. These same allegations were presented in Petitioner's first and amended PCRA Petitions, as well as in accompanying memoranda in support of his PCRA Petitions.
II. ANALYSIS OF CLAIMS THE MAGISTRATE JUDGE DEEMED UNEXHAUSTED AND PROCEDURALLY DEFAULTED
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a person in custody as a result of a state court judgment must "fairly present" his federal constitutional claims in state court, thus exhausting his state remedies, before filing his federal habeas petition. 28 U.S.C. §2254(b). The exhaustion requirement provides state courts an "initial opportunity to pass upon or correct alleged violations of its prisoner's federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 (1971). Petitioner bears the burden to show fair presentation of all claims, satisfied by demonstrating the claims brought in federal court are the "substantial equivalent" to those presented in state court. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983).
Failure to exhaust state remedies will prompt the federal court to dismiss the claim without prejudice, so as to allow the state courts the opportunity to first review the claim. Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
In order to "fairly present" his claim, a prisoner must present both the factual and legal substance of his federal claim in state court, in a manner that puts the state court on notice that a federal claim is asserted. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982)).
The Magistrate Judge found that Petitioner did not exhaust state remedies on certain claims due to his failure to present such claims to the state courts. See § 2254(b)(1)(A); see also Woodford v. Ngo, 548 U.S. 81, 92 (2006) (recognizing exhaustion requirement); Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007) (same). Specifically, the Magistrate Judge deemed that the following claims were not exhausted: (1) trial court error for failing to sustain objections to the prosecutor's closing argument, which shifted the burden of proof and resulted in the denial of a fair and impartial jury and the denial of his constitutional rights under the 6th and 14th Amendments; (2) prosecutorial misconduct by vouching for the credibility of Commonwealth witnesses; (3) prosecutorial misconduct by inflaming the passion/prejudice of the jury; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel for failing to raise a claim that the trial court erred in allowing a witness to testify about prior crimes at his sentencing.
After an analysis of whether exhaustion could be excused in Petitioner's case, the Magistrate Judge excused such claims because exhaustion would otherwise be futile. See Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (providing futility is an excuse to circumvent exhaustion); Szuchon v. Lehman, 273 F.3d 299, 324 n.14 (3d Cir. 2001) (same). Nevertheless, the Magistrate Judge recommended that those claims be dismissed as procedurally defaulted because state procedural rules bar Petitioner from seeking further relief in state courts. See 42 Pa. C.S. § 9545(b)(1) (providing for one year statute of limitations).
In Petitioner's objections, he argues that his claims are not procedurally barred because he did present his claims at the state level. In support of his objections, Petitioner points to his PCRA Petitions. In evaluating Petitioner's objections, the Court is guided by the Third Circuit's decisions in McCandless, 172 F.3d at 260 (citing Evans v. Court of Common Pleas, DE County, PA, 959 F.2d 1227 (3d Cir. 1992) (articulating "fair presentation" factors)), and Nara v. Frank, 488 F.3d 187, 198 (3d Cir. 2007) (citing Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)); see, e.g., Barros v. Beard, 2008 WL 4145522 (E.D. Pa., Sept. 5, 2008). To fairly present his claim, Petitioner may employ on or more of the following methods: (1) reliance upon pertinent federal cases; (2) reliance upon state cases employing constitutional analysis in like fact situations; (3) assertion ...