The opinion of the court was delivered by: David Stewart Cercone United States District Judge
AND NOW, this 9th day of March 2010, after de novo review of the record and upon due consideration of  the magistrate judge's report and recommendation filed on September 18, 2009, and  petitioner's objections thereto, IT IS ORDERED that petitioner's objections are overruled, the Petition for Writ of Habeas Corpus is dismissed and the concomitant request for a certificate of appealability is denied. The report and recommendation as augmented below is adopted as the opinion of the court.
Petitioner's contention that applying 28 U.S.C. § 2254 (d)(2)'s "unreasonable determination of the facts" standard would produce a result different than (e)(1)'s "presumption of reasonableness" standard is unavailing. Under either approach petitioner has failed to establish a basis warranting further development of the record. Consequently, all of petitioner's grounds attacking the report and recommendation fall short of the mark.
As implicitly noted by petitioner, some circuit courts have determined that 28 U.S.C. § 2254 (d)(2) and (e)(1) were intended to address separate components or stages of review in assessing a state court conviction. See Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ((d)(2) applies to challenges mounted on intrinsic evidence); Valdez v. Cockrell, 274 F.3d 941, 951 (5th Cir. 2001) ((e)(1) applies to review of individual facts from the state court record and (d)(2) applies to the review of the entire factual basis on which the state court decision rests); Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003) (underlying factual determination are evaluated using (e)(1)). Other courts have declined to resolve the seemingly inconsistent text of the statute. See e.g. Teti v. Bender, 507 F.3d 50, 58 (1st Cir. 2007) (declining to resolve the issue).
In Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004), the United States Court of Appeals for the Third Circuit declined to adopt a talismanic approach to the application of each section. Instead, it opined that "[t]he fundamental prerequisite to granting the writ on factual grounds is consideration of the evidence relied upon in the state court proceeding. Section 2254(d)(2) mandates the federal habeas court to assess whether the state court's determination was reasonable or unreasonable given that evidence." Id at 235. It further explained:
In some circumstances, a federal court may wish to consider subsidiary challenges to individual fact-finding in the first instance applying the presumption of correctness as instructed by (e)(1). Then, after deciding these challenges, the court will view the record under (d)(2) in light of its subsidiary decisions on the individual challenges. In other instances, a federal court could conclude that even if petitioner prevailed on all of his individual factual challenges notwithstanding the (e)(1) presumption of their correctness, the remaining record might still uphold the state court's decision under the overarching standard of (d)(2). In that event, presumably the (d)(2) inquiry would come first.
Id at 236 n.19.*fn1 The Supreme Court recently took a very similar approach and declined to address the relationship between these two sections where the petitioner had failed to show that the state court's determination of the facts was unreasonable in any event. Wood v. Allen, -- U.S. -- , 2010 WL 173369 (Jan. 20, 2010); accord Rice v. Collins, 546 U.S. 333, 339 (2006).
Regardless of the order of application, in both approaches sanctioned by the Third Circuit two points are paramount: first, each section "express[es] the same fundamental principle of deference to state court findings," and second, "petitioner must show an unreasonable determination . . . in light of the entire record in the original state court trial." Lambert, 387 F.3d at 236 n.19. Petitioner cannot show that an unreasonable determination was made by the state court under an approach that accords only minimal deference to the state court findings. Thus, her attempt to seek shelter under the application of (d)(2) is misplaced.
The gravamen of petitioner's objections are that the state trial judge failed to credit certain evidence advanced to corroborate her testimony at a suppression hearing seeking to establish that her taped confession had not been made voluntarily. She contends that by failing to discuss this corroborating testimony, which was given by her initial state court attorney, the trial judge committed an error of sufficient magnitude to warrant the extraordinary relief she requests. But the corroborating evidence is not and cannot be the workhorse she makes it out to be under any permissible review of the trial judge's factual determinations.
The standards governing whether a confession was given voluntarily are well settled. The Third Circuit has observed that a statement will be found to have been given involuntarily where the defendant's "will was overborne in such a way as to render his confession the product of coercion." Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002) (quoting Arizona v. Fulminante, 499 U.S. 279, 288 (1991)). "In determining whether a statement is voluntary, Supreme Court precedent requires consideration of 'the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.'" Id. (quoting Dickerson v. United States, 530 U.S. 428, 434 (2000) and Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). These surrounding circumstances can include "not only the crucial element of police coercion, but may also include the length of the interrogation, its location, its continuity, [and] the defendant's maturity, education, physical condition, and mental health." Id. (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986), and Withrow v. Williams, 507 U.S. 680, 693 (1993) (internal citations omitted)).
It is clear that the trial judge focused his consideration on the totality of the circumstances surrounding the interrogation and the tape-recorded statement, and in doing so he considered and analyzed the critical aspects of the event as he found them to bear on petitioner's will in giving the statement. After considering the evidence that relayed or reflected a first-hand account of the event, he concluded that petitioner's statement was not the product of improper police coercion and as a result denied her motion to suppress. The intrinsic evidence from the event and the evidence relaying an account of what transpired based on personal knowledge was taken into account by the trial judge and provided ample support for his ruling on the motion.
The intrinsic evidence contained within petitioner's statement clearly provided what could be credited as direct insight into what had occurred prior to and was occurring during the time she made her statement. As noted by the state court trial judge and recounted in the Report and Recommendation, the intrinsic evidence from the recorded statement indicated petitioner was advised of her constitutional rights prior to beginning the tape-recorded interview, she stated during the interview that Detectives Freeman and McCabe had not threatened her nor promised her anything in exchange for her statement, and she expressly acknowledged during the interview that she was making it voluntarily. Furthermore, petitioner testified that she felt she was free to leave the police station prior to her initial confession. This in conjunction with the account relayed in the taped statement indicated not only a willingness to give the interview, but the lack of an overborne will, and the lack of coercion by the police detectives. Thus, the intrinsic evidence from the confession bearing on whether it was given voluntarily, knowingly and intelligently was at the very least forceful.
Both Detective Marraway and Detective Freeman testified in a manner that corroborated petitioner's tape-recorded statements and the inferences flowing therefrom. Detective Marraway recounted that petitioner agreed to go to the station, received Miranda warnings after she was brought to the interview room, signed an interrogation form, and appeared to be calm and collective during the interview, even when she was confronted about pawning the victim's rings. Detective Freeman testified that petitioner had agreed to give her tape-recorded statement voluntarily and that she had not been threatened or subjected to ...