The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
On October 24, 2008, petitioner William Prosdocimo ("petitioner" or "Prosdocimo"), by his counsel, the Federal Public Defender for the Western District of Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of first degree murder and the life sentence imposed on November 7, 1983, at No. CC198104540, in the Court of Common Pleas of Allegheny County, Pennsylvania, arising out of the September 25, 1979 shooting death of Thomas Sacco. On August 10, 2009, Prosdocimo, now represented by the Federal Community Defender Office for the Eastern District of Pennsylvania, filed a counseled amended petition (ECF No. 55) and moved to stay the case so that he could exhaust state court remedies. On July 8, 2010, the case was reopened, but petitioner did not elect to amend the petition further. Respondents filed an answer on August 12, 2010 (ECF Nos. 60-66) and petitioner filed a reply brief on September 9, 2010 (ECF No. 68).
On October 4, 2010, United States Magistrate Judge Robert C. Mitchell filed a Report and Recommendation ("R&R")(ECF No. 69), recommending that the amended petition be dismissed and that a certificate of appealability be denied. Service of the R&R was made on the parties, and petitioner filed objections (ECF No. 70) on October 18, 2010. In response to those objections, the magistrate judge filed a supplement to the R&R (ECF No. 71), specifically to address petitioner's contention that, pursuant to Schlup v. Delo, 513 U.S. 298 (1995), he had asserted an "actual innocence" gateway claim that allowed his procedurally defaulted claims to be considered on the merits. In the supplement the magistrate judge concluded that petitioner's claim did not meet the standard of Schlup. On November 19, 2010, petitioner filed objections to the supplement (ECF No. 72).
In his objections, petitioner raises a number of issues, some of which will be discussed herein. Any issues raised by petitioner and not discussed herein are summarily overruled because the issues were adequately addressed in the R&R.
Petitioner argues that the magistrate erred in concluding that claim I (that he was denied his right to due process, to confront his accusers and to the effective assistance of counsel when the prosecution and trial counsel failed to correct materially false testimony by key Commonwealth witnesses, Charles Rossi ("Rossi") and Anthony Faiello ("Faiello")) was procedurally defaulted. The magistrate judge found that claim had not been presented to the Pennsylvania Supreme Court in 1990 on appeal from the denial of Prosdocimo's Post Conviction Hearing Act ("PCHA") petition (R&R at 17-18). It would appear that petitioner is correct, but only with respect to the claim involving Rossi's testimony. See Answer Ex. 26 at 37-39. Nevertheless, the R&R contained a review of this claim on the merits. The magistrate judge concluded that Rossi explained the immunity agreement as he claimed to have understood it and that the trial court's instructions adequately informed the jury about how to make credibility determinations, specifically addressing the conflicting testimony of Faiello, Rossi and Charles Kellington ("Kellington"). (R&R at 18.)
With respect to the claim involving false testimony by Faiello, petitioner never raised it in his state court proceedings. In his direct appeal, he argued that the Commonwealth intentionally circumvented the version of the Pennsylvania Disqualification Act in effect at the time, 1976 PA. LAWS 720-21,*fn1 by dismissing perjury charges against Faiello in exchange for his testimony. (Answer Ex. 10 at 30-31.) The superior court rejected this claim (Answer Ex. 12 at 14-15). The superior court affirmed the trial court's holding that Faiello was competent to testify because, although he had been charged with perjury, he had not been convicted of the charges (Answer Ex. 9 at 25). This claim was raised solely under state law and it is not the issue petitioner raises herein.
In his PCHA petition and on appeal, petitioner raised claims involving the Commonwealth's use of false testimony in three instances (regarding the "Magee Field" incident, Rossi's testimony and the "Pilardi Report"), but he did not contend that the Commonwealth had failed to correct Faiello's statements regarding his criminal record, or allege that trial counsel was ineffective for failing to raise this issue. See Answer Ex. 17 at 2. Therefore, this portion of claim I is unexhausted and procedurally defaulted. In his reply brief, petitioner argued that his Schlup evidence allowed the court to reach the merits of this claim. For the reasons explained below, this argument is without merit.
Petitioner argues that the magistrate judge applied the wrong standard to claim I, which is raised under Napue v. Illinois, 360 U.S. 264 (1959). Petitioner asserts he does not have to establish that he suffered "actual prejudice" as a result of Rossi's testimony (R&R at 18), but only the existence of "any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976).
As an initial matter, petitioner is incorrect about the standard. The Supreme Court had utilized three different standards depending upon the type of claim involving the discovery after trial of information favorable to the accused that had been known to the prosecution, but not the defense, as recognized in Agurs. The Court rejected this approach in United States v. Bagley, 473 U.S. 667 (1985), however, and held that a single standard applies: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682.
More importantly, petitioner did not demonstrate that he meets this standard. On direct examination by Assistant District Attorney James Lees, Rossi stated that he entered into a plea bargain with the District Attorney of Allegheny County and the United States Attorney for the Western District of Pennsylvania in which he pleaded guilty to participating in two murders and provided information regarding the Sacco murder and three others. (TT8 at 79-80, 82.) During cross-examination by petitioner's trial counsel, Gary Zimmerman, Rossi testified as follows:
Q: Now, sir, you have told us that you have pled guilty in Federal Court to a racketeering statute, and the basis or predicate for that was two murders. Is that correct?
Q. And have you received immunity from the Federal Government?
Q. Yes, from prosecution to other crimes that you are testifying about. In other words, have you been granted immunity by the Federal Government?
A. Well, there is an immunity, from what I understand, on the one crime, and that's the Mitchell case.
Q. Has the Commonwealth of Pennsylvania granted you immunity against the use of your testimony or your words which you may speak in court or in interviews so that they won't be used against you in any subsequent prosecution of you?
A. Not that I know of. It's never been brought up to me.
Q. Has there been any promises made to you by Mr. Lees or anybody form the District Attorney's Office that you wouldn't be prosecuted in the State of ...