The opinion of the court was delivered by: Judge Muir
Petition Filed 10/29/2008
Petitioner, Han Tak Lee, filed the instant counseled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He attacks a conviction imposed by the Court of Common Pleas for Monroe County, Pennsylvania. (Doc. 1). For the reasons that follow, the Court will deny the petition.
The following background has been extracted from the Pennsylvania Superior Court's August 17, 2006 Opinion affirming the denial of Lee's petition pursuant to the Post Conviction Relief Act (PCRA).
On September 17, 1990, a jury convicted Han Tak Lee of first degree murder and arson in connection with a fire that occurred at a religious retreat in the Pocono Mountains. Lee, his 20-year-old daughter, and a minister went to the retreat on July 28, 1989 to help Lee's daughter resolve psychiatric problems she was experiencing. In the early morning hours on July 29, 1989, a fire erupted at the retreat, killing Lee's daughter. Police suspected Lee's involvement in the fire and arrested him on the basis that preliminary evidence suggested the fire was of incendiary origin. Lee's defense was that his daughter was mentally disturbed and suicidal and set the fire intentionally in order to kill herself. The Commonwealth's theory was that Lee intentionally set the fire that killed his daughter.
At trial, the Commonwealth presented the testimony of three experts to establish that the fire was incendiary in origin; Fire Marshall Thomas Jones, Thomas Pacewicz (a State Police Crime Lab chemist), and Daniel Aston. The conclusion of the Commonwealth's experts that the fire was intentionally set was not disputed by Lee. Instead, Lee argued that he was not the guilty party and that the evidence would just as likely establish that his daughter set the fire. Lee's original trial counsel did not put an arson expert on the stand at trial, because his consulting expert, Dr. De Forest, could not rule out arson or state that it was an electrical fire.
After Lee was convicted of first degree murder and arson, the trial judge sentenced him to a mandatory term of life imprisonment without parole. Lee appealed his convictions to this Court, arguing among other things, that his trial counsel was ineffective for failing to present Dr. De Forest or an arson expert to refute the Commonwealth's experts' opinion that the fire was intentionally set.*fn1 On November 23, 1993, this Court rejected Lee's ineffective assistance of counsel arguments and affirmed Lee's conviction. See Commonwealth v. Lee, 639 A.2d 840 (Pa. Super. 1993)(mem. adopting trial court's opinion).*fn2 The Supreme Court subsequently denied Lee's petition for allowance of appeal in Lee v. Commonwealth, 645 A.2d 1317 (Pa. 1994)(per curiam). On August 31, 1995, Lee filed his first PCRA petition. Due to changes of counsel and other factors, an Amended Petition for Relief was not filed until May 2, 2005. In his amended petition, Lee attached the affidavit of John Lentini, an arson expert. Mr. Lentini's affidavit detailed certain scientific advances in the field of arson investigation, beginning in 1992 and continuing until the present day, and concluded that the evidence presented by the Commonwealth's experts at Lee's trial is consistent with an accidental fire. See Affidavit of John J. Lentini, 02/15/05, (Affidavit). Lee relied upon Mr. Lentini's affidavit to argue claims of after-discovered exculpatory evidence and ineffective assistance of appellate counsel. On November 1, 2005, the PCRA court denied Lee's claims. Lee now appeals to this Court, raising the following questions for our review:
1. Did appellant's after-discovered exculpatory evidence reflecting scientific advances, show by at least a preponderance that the outcome at trial would have been affected, by eviscerating the conclusion that arson was committed?
a. Does the presentation of evidence of exculpatory scientific discoveries, post-dating the trial, constitute a mere credibility challenge to the trial witnesses?
b. Does the presentation of evidence of now-generally accepted scientific understandings about the behavior of fires, which post-date the trial and post-trial motions, constitute a different claim from the assertion on appeal of ineffective assistance of trial counsel?
c. Did the PCRA court err in dismissing (without any record or factual foundation) defendant's nationally renowned expert as someone simply "willing to take a fee" for a favorable opinion, and therefore discounting his uncontradicted information?
d. Did the PCRA court err in holding petitioner to a higher standard than the statute requires for the granting of a new trial based on after-discovered evidence?
2. Did the PCRA Court misapprehend Petitioner's claim of ineffective assistance of direct appeal counsel, where a claim of after-discovered evidence made on direct appeal would have been stronger than the related and meritless trial counsel ineffectiveness claim which counsel did raise?
Commonwealth v. Lee, 911 A.2d 182 (Pa. Super. 2006) (unpublished memorandum). By Memorandum Order filed August 17, 2006, the Pennsylvania Superior Court affirmed the PCRA court's denial of Lee's PCRA petition. Id.*fn3 Petitioner filed for allowance of appeal to the Pennsylvania Supreme Court, which was denied on October 30, 2007. Commonwealth v. Lee, 594 Pa. 695, 934 A.2d 1276 (Pa. Oct 30, 2007) (Table, No. 1008 MAL 2006).
On October 29, 2008, Lee filed the instant petition for writ of habeas corpus in which he raises the following challenges to his conviction and sentence:
1. Counsel on direct appeal rendered ineffective assistance to petitioner, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States.
2. Petitioner's convictions were based upon inaccurate and unreliable evidence, in violation of his right to Due Process under the Fourteenth Amendment to the United States Constitution, because his convictions were based on evidence premised on beliefs and practices of arson investigation which have, since the time of trial, been discovered and proven to be scientifically invalid.
3. Petitioner is incarcerated based upon a conviction for a crime of which newly developed scientific evidence persuasively shows he is probably innocent, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Testimony for the Commonwealth presented at trial that purported to be scientific is now known to be erroneous. There is no other substantial evidence of guilt. With the benefit of accurate scientific information about fires, it is more likely than not that no reasonable juror would have found the evidence sufficient to find guilt beyond a reasonable doubt.
4. Petitioner's trial counsel rendered ineffective assistance in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), the Court issued formal notice to Lee that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeal, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Doc. 2). On December 23, 2008, Lee returned the notice of election form, indicating that he wished to proceed with the petition for writ of habeas corpus as filed. (Doc. 3). Thus, a Show Cause Order was issued on December 30, 2008. (Doc. 4). A response and traverse having been filed, the petition 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 his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (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, 67-8 (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 67-8 (1991); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
"A federal court may not grant a writ of habeas corpus unless (1) 'the applicant has exhausted the remedies available in the courts of the state', (2) no such state remedy is available or (3) available remedies are ineffective to protect the applicant's rights. 28 U.S.C. § 2254(b)(1)." Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998). "The exhaustion requirement is satisfied when the state courts have had an opportunity to pass upon and correct alleged constitutional violations." Evans v. Court of Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). The exhaustion requirement "is not a mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a federal prisoner's federal rights." Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). "Unless it would be patently futile to do so [state prisoners] must seek relief in state court before filing a federal habeas petition...." Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982).
The habeas corpus petitioner shoulders the burden of establishing exhaustion of state court remedies. McMahon v. Fulcomer, 821 F.2d 934, 940 (3d Cir. 1987). The threshold inquiry in the exhaustion analysis is whether the claims asserted in the habeas corpus petition have been "fairly presented" to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971). "All claims that a petitioner in state custody attempts to present to a federal court for habeas review must have been fairly presented to each level of the state courts." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001). Fair presentation requires that the "substantial equivalent" of a petitioner's federal habeas claims be presented to the state courts. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
The respondent concedes that Petitioner has exhausted his state court remedies. The merits of the claims ...