The opinion of the court was delivered by: Judge Vanaskie
Petitioner Richard Young, an inmate currently confined at the State Correctional Institution at Huntingdon, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting twelve claims for relief in 186 numbered paragraphs. (Dkt. Entry 1.) Petitioner asserts that his 2003 first degree murder conviction is unconstitutional based on numerous errors. Respondents have filed a Motion to Dismiss the habeas corpus petition. (Dkt. Entry 11, at 2.) Because it does not plainly appear that Petitioner is not entitled to relief, Respondents' Motion to Dismiss will be denied.
The following background has been extracted fromthe Habeas Petition. On April 14, 1979, two trout fisherman discovered the body of Russell Loomis on a wooded mountainside. (Dkt. Entry 1, at ¶ 14.) Loomis had been shot to death and it was the prosecution's theory that Richard Young, William Slick, George Cornell, and Ronald Hull had lured Loomis to the area on April 11, 1979, and shot him to prevent him from testifying before a grand jury investigating fraud charges against Young and others. (Id.) A shovel and a come-a-long found near the body were the only pieces of physical evidence taken from the scene -- no tracks, footprints, or other physical evidence were preserved. (Id. at ¶ 17.)
At the time, Richard Young owned numerous businesses, including John's Liquidations and John's Automotive; these businesses were the subject of a federal white-collar investigation. (Id. at ¶ 18.) Retired FBI Agent Daniel Glasgow "testified that in the fall of 1978 he received a complaint concerning Richard Young's business practices from a man who did not get paid by a business called Brown's Wholesale." (Id. at ¶ 23.) Glasgow's investigation allegedly revealed that Brown's Wholesale was part of a "bust out" scheme involving Joseph Brizinski, Hull, Young, Cornell, and "hundreds" of other suppliers. (Id.) The scheme involved the setting up of fraudulent lines of credit at various trade shows for ordering merchandise that the participants had no intention to pay for. (Id. at ¶ 24.) In April 1979, Loomis was allegedly scheduled to appear before a federal grand jury in connection with the "bust out" scheme. (Id.)
The "bust out" scheme claims were allegedly corroborated by Loomis' girlfriend, Theresa Slick Hoffman. (Id. at ¶ 26.) As a result of hypnosis, Hoffman was able to testify that Loomis had told her that Young had faked a burglary at his store, that Young had allegedly planned to set a fire at Brown's Wholesale Liquidation Center, and that on April 11, 1979, Loomis called and told her he was going with Young to retrieve a Jeep that was stuck in some mud. (Id. at ¶ 27.) The prosecution, over defense objection, also offered evidence from several witnesses that at "some time prior to his death, Loomis had told them about his plan to get a Jeep that was stuck in the mud someplace," and Loomis' fear that "Young might harm his family." (Id. at ¶ 31.)
Petitioner asserts that the testimony of Ronald Hull was the only evidence that directly connected him to the murder. (Id. at ¶ 18.) Hull worked with the Petitioner in his businesses, and testified that "a few weeks prior to the offense, he participated in a conversation between Richard Young and George Cornell concerning their belief that Russell Loomis was planning to cooperate with federal investigators." (Id. at ¶ 19.) Hull claimed that Petitioner, George Cornell, Russell Loomis, and he "drove into the woods off Aston Mountain Road in Loomis' Ford LTD to retrieve a Jeep that was stuck in the mud on the mountainside." (Id.) Hull claimed that the men parked the Ford fifty (50) yards from where Loomis' body was eventually found. (Id.) The men walked into the woods and passed an old foundation, which Hull claims Cornell identified as Loomis' "grave." (Id.) As Loomis crossed a stream, Hull claims that Young took out a handgun and fired two-to-three times at Loomis' back, at which point, Loomis turned and started towards the others, yelling and cursing, and Cornell grabbed the gun and fired three more times until Loomis collapsed on a log with one leg extended into the creek. (Id.)
Hull alleged that he, Young, and William Slick were unable to pull the body from the creek, and therefore left it and returned to the vehicles. (Id. at ¶ 20.) Slick, Young, and Cornell allegedly left in the Jeep and met on the road to do some repairs, and Hull drove Loomis' Ford to the Wyoming Valley Mall, where he abandoned it. (Id.)
During the course of the homicide trial, Dr. Robert Catherman, a forensic pathologist, "concluded that based on his autopsy, as well as the photographs and reports of the initial autopsy, Loomis could not have behaved as Hull had claimed." (Id. at ¶ 43.) Dr. Catherman stated that "the bullet that fractured, but did not displace, two thoracic vertebrae, would have had a concussive effect rendering the individual almost immediately paralyzed," which is in contrast to Hull's statement that Loomis ran along a log towards the shooter. (Id.) Moreover, the autopsy concluded that the bullet damaged Loomis' trachea in such a way that it would have made it impossible for him to scream as described by Hull. This evidence was rebutted by the prosecution through testimony of pathologist Isidore Mihalakis, who agreed that Loomis would not have been able to shout, but disagreed with the conclusion that paralysis would have resulted. (Id. at ¶ 43 n.13.)
It was also Catherman's opinion that "Russell Loomis was dead no more than 12 hours when his body was found on April 14, 1979." (Id.) Therefore, the April 11, 1979, time of death was arguably incorrect. The defense additionally presented experts who testified that: (a) the April 11, 1979, time of death was wrong because there was no insect infestation of the body; (b) soil samples taken from the bottom of Loomis' Ford could not have come from the same mountain his body was found on; (c) Loomis' Ford could not have maneuvered in the remote area described by Hull; and (d) the trajectory of Loomis' wounds did not indicate that the shooter was directly behind Loomis as Hull testified. (Id. at ¶¶ 44 - 46.)
In addition to the testimony of Hull, the prosecution presented the testimony of Harold Litts, who resided at the base of the mountain where Loomis' body was found. (Id. at ¶ 28.) Litts testified that on the evening of April 11, 1979, between 7:30 p.m. and 8:00 p.m., he and his brother heard noises that sounded like a woman screaming and fireworks; about a half hour later, Litts' brother, Gary, saw a car parked near their gas storage and saw a truck pull up and then leave. (Id. at ¶ 28.) The brothers, concerned about gas theft, got into their mother's vehicle and drove past the parked car. (Id.) The parked car was jacked up, the trunk was open, the trunk light was on, and men stood by the trunk. (Id.) After driving past the parked car, the brothers turned the car around and, as they drove back, one of the men stepped in front of the vehicle, and Litts was forced to drive around him. (Id. at ¶ 29.) When later describing the man to police, Litts stated that he was "large, like a body builder (6'2" or more and weighing over 250 lbs.), but could provide no description of the other man at the car, other than to say that he was also large in nature." (Id.)
Six years later, in 1985, Litts was shown a photo array that included nine (9) photographs. (Id. at ¶ 30.) Of the nine photographs, two pictures were of Young, and there were pictures of Slick, Cornell, Hull, Loomis, and three others. Hull identified the picture of Slick as the man who had stepped in front of the car, but made no further identification. (Id.) During the course of the next seven (7) years, numerous photographs of Young were published in the local media and in February 1999, nearly thirteen (13) years after the homicide, Litts, his brother, and his attorney, met with state troopers and reviewed a second photo array, which "included five of the original nine photos, including the same two pictures of Young." (Id.) The photograph of Slick and one of the photographs of Young was a mug shot with tape on it. (Id.) After leaving the room to discuss matters with his attorney, Litts returned and identified the mug shot of Young as the man who had been standing by the car trunk thirteen (13) years earlier. (Id.) Litts' brother, Gary, who had been in the vehicle with Litts the entire time, never made an identification. (Id.)
It was the prosecution's theory that Loomis' homicide was the result of his cooperation with federal agents regarding Young's business practices. Thus, the prosecution's witnesses were permitted to introduce evidence of Mr. Young's "bust out" scheme at trial. (Id. at ¶ 22.) The prosecution presented Andrew Halupke, a member of the "bust out" scheme, as a witness, but Halupke could not remember, even after attempts to refresh his recollection, the details of statements he made to the police in February of 1981. (Id. at ¶ 32.) Thus, over defense objection, the prosecution was permitted to read the police statement into evidence, and the jury heard Halupke's account that Young had advised him not to testify in front of a grand jury, and that "Young had told Cornell not to worry, that they would get Loomis." (Id.) Moreover, the police statement revealed that Halupke, Young, and Ron Hull "spent several hours driving around the area, looking for a place to ...