The opinion of the court was delivered by: Judge Caldwell
Joseph A. Mirarchi, incarcerated at SCI-Houtzdale in Houtzdale, Pennsylvania, has filed a counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mirarchi is challenging his 2000 convictions in the Court of Common Pleas of Northumberland County, Pennsylvania, for third-degree murder, aggravated assault, and reckless endangerment. He was convicted at a jury trial and is serving a twenty- to forty-year term of imprisonment.
The petition makes two claims for relief. First, trial counsel was ineffective in not objecting when the prosecutor violated Petitioner's Fifth Amendment right to remain silent. This claim is based on testimony the prosecutor elicited at trial from two police officers that Petitioner refused to give a written statement that would have reduced to writing the voluntary oral statement Petitioner had already given. Second, trial counsel was ineffective in failing to object to the prosecutor's remarks during closing argument that violated Petitioner's Fifth Amendment right to remain silent and his Sixth Amendment right to counsel. This claim is based on the prosecutor's references in his closing both to the testimony of the two police officers and to Petitioner's request for a lawyer while giving his oral statement.
In opposing the petition, Respondents run the gamut of objections to a habeas petition; it is barred by the statute of limitations; Petitioner failed to exhaust his state-court remedies; Petitioner has presented a mixed petition (which contradicts the previous argument); Petitioner procedurally defaulted his claims; and the claims lack merit in any event.
We conclude that we can reach the merits of Petitioner's claims but that the petition must be denied.
Petitioner does not dispute that he fired the shot that
killed Robert Deitz in the early morning hours of September 3, 1999, after a physical altercation in a Mount Carmel bar, with the deadly encounter happening on the street minutes afterward. But as he testified at his September 2000 trial, he alleged that the gun went off accidentally. The jury did not believe him and found him guilty of third-degree murder, aggravated assault, and reckless endangerment.*fn1 He was sentenced to twenty- to forty-years imprisonment, with the judgment of sentence entered on January 12, 2001. (Doc. 1, Ex. A, Mirarchi's Direct Appeal, CM/ECF p. 1).*fn2
Shortly after the shooting, Petitioner was arrested at his house and was taken to the Mount Carmel police department. He was mirandized and agreed to give an oral statement. Lt. Blaine Handerhan of the Mount Carmel police conducted the interview and Todd Owens, a Mount Carmel police officer, was an observer. Petitioner had paper bags over each hand so that he could be tested for gunshot residue.
At the trial, as part of the Commonwealth's case, the prosecutor presented the testimony of these two officers concerning the interview. In pertinent part, Owens testified that Petitioner said the following. Petitioner was at the bar on the night of September 2 with his .40-caliber Glock handgun on him. (Doc. 18-2, CM/ECF pp. 63-64).*fn3 The victim beat him up and knocked him to the floor. (Id., p. 63).*fn4 When he was knocked to the floor, his gun fell out. (Id. p. 64). Petitioner left the bar, and the victim followed him to an alley. (Id. pp. 63, 64). In the alley, the victim knocked him to the ground, and the gun fell out again. (Id., p. 64). "[A]s he was getting up off of the ground and attempting to put the gun away, the gun discharged striking Mr. Deitz." (Id., p. 65). Petitioner said the gun was in his hand when it went off. (Id.).
Petitioner also said the gun was at his house and that the police could go get it. (Id.). He then signed a consent to search his house for the gun. (Id.).*fn5 The following exchange then took place on direct examination:
Q: Was there any further questioning with regard to the incident that you recall?
A: After the permission to search form was signed, it was somewhere around there that Lieutenant Handerhan asked him to put down his statement in writing of what he had just told us.
Q: Lieutenant Handerhan asked the defendant to give a written statement?
A: Yes, or he also gave him the option that if he did not want -- if he could not write it, that Lieutenant Handerhan would write it. He could read it and sign it.
Q: What was Mr. Mirarchi's response to the request to do a written statement?
A: He said he just told Lieutenant Handerhan what had happened, and he wasn't going to put anything in writing. (Doc. 18-2, p. 66).
On cross-examination, trial counsel brought up the issue of a written statement. Owens acknowledged that he had not noted in his written report a refusal by Petitioner to give a written statement. (Id. p. 93). He also acknowledged that when he testified at Petitioner's preliminary hearing, he said that Petitioner had complied with all of his commands that night, without qualifying it by noting an exception for not making a written statement. (Id. p. 92). Owens explained that the preliminary-hearing question was in a different context. (Id. p. 92). The same topic was addressed during Handerhan's testimony. Handerhan gave essentially the same account of Petitioner's statement as recounted by Owens. Handerhan testified that Petitioner said that Deitz hit him in the bar and knocked him to the floor. His gun fell out and Petitioner picked it up and put it back in his coat. Petitioner left the bar and then Deitz did. Deitz followed him to the alley where Deitz hit him again and knocked him to the ground. The gun fell out of his coat pocket again and while Petitioner was attempting to pick the gun up, it went off, striking Deitz. (Doc. 19, CM/ECF pp. 42-43, 65-66). Petitioner admitted the gun was in his hand when it went off. (Id. p. 43).
The following exchange took place on direct examination:
Q: Was there any other questioning of him at that point?
A: I then asked him if he would want to write us a statement, and he indicated no. I said, Well, you know, we could write the statement for you, and then you could sign it. And he said, Blaine, I told you what happened. And he sort of leaned back in his chair, he said, Blaine, I told you what happened, you know what happened, and I'm not going to tell you it again. And at that point, I ended my questioning . . . . (Doc. 19, p. 44).
Trial counsel again cross-examined about a written statement, and Handerhan admitted that he testified at the preliminary hearing that he "did not bother to have" Petitioner "write anything out," but stated that he meant that he did not have Petitioner write anything out at the beginning of the interview, "right after the Miranda" warnings, because his hands were bagged. (Id., p. 75). On redirect examination, Handerhan read from a supplemental report he had made about Petitioner's oral statement in which Handerhan wrote that ...