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Terrance Williams v. Jeffrey Beard

March 9, 2011

TERRANCE WILLIAMS, APPELLANT
v.
JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; LOUIS B. FOLINO, SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; FRANK TENNIS, ACTING SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT ROCKVIEW; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



On appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 05-cv-03486 District Judge: The Honorable Michael M. Baylson

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Argued December 7, 2010

Before: SMITH, CHAGARES, and ALDISERT, Circuit Judges

OPINION

Twenty-five years ago, petitioner Terrance Williams was tried and convicted of first degree murder for the killing of Amos Norwood. A jury then returned a sentence of death.

After two decades of appeals in the Pennsylvania state courts, Williams filed a petition for federal habeas review pursuant to 28 U.S.C. § 2254. The District Court denied the petition but certified two questions for our review, to wit: (1) whether trial counsel was constitutionally ineffective during the penalty phase of trial, and (2) whether the Commonwealth exercised its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We permitted Williams to expand the certificate of appealability to include a question regarding the constitutional propriety of the trial court's accomplice liability instructions. We conclude that each issue is without merit and will affirm.

I The story of Terrance Williams is reminiscent of Dr. Jekyll and Mr. Hyde. As Dr. Jekyll, Williams was a local football star, the quarterback of the Germantown High School team that won the Philadelphia Public League championship in 1982. He was presented with the sportsman of the year award by the Philadelphia Board of Sports Officials, and he was recruited by at least eight different collegiate institutions. Nearly all of Williams' coaches and teachers described him as mild-mannered, law-abiding, and honest. In 1983, Williams graduated from Germantown High and matriculated to Cheney State College in Philadelphia. In the estimation of one of his instructors, Williams was "highly respected and admired by his teacher[s] and all of his classmates." He was "[n]ot only . . . the star of the school's football team, but [was] also . . . a classmate and student who showed respect for others and accepted his popularity with modesty."

But apparently Terrance Williams had a sinister side. In the dead of night on Christmas Eve in 1982, a sixteen-year-old Williams broke into the Philadelphia residence of Don and Hilda Dorfman, aged sixty-nine and sixty-four, respectively. He entered Mrs. Dorfman's bedroom, wakened her by pressing a .22 caliber Winchester rifle to her neck, and then pulled a bedsheet over her face. When Mrs. Dorfman attempted to remove the sheet, Williams ordered her to stop "or her fucking head would be blown off." Williams then fired the rifle three times into the wall to show the victims he was serious. Williams and an accomplice ransacked the home before making off with cash, jewelry, and the Dorfmans' automobile.

It was not long before Williams was apprehended and criminally charged for robbing and terrorizing the Dorfmans. Although his age placed him under the jurisdiction of the juvenile court, the Commonwealth moved to certify Williams as an adult. In an attempt to avoid certification, Williams produced no fewer than eight witnesses who attested to his stable home life, loving parents, and supportive extended family. Every character witness interviewed by the Commonwealth believed Williams to be innocent. Even his own attorney would testify years later, "I didn't feel in my own mind of mind[s] and heart of hearts that [Williams] was involved in the matter." Such was the nature of Williams' dual existence.

In spite of the efforts to avoid it, Williams was certified to stand trial as an adult. He was released pending trial, however, and in January of 1984, he embarked in earnest on a crime spree that would continue for the better part of six months. Williams' next victim was a fifty-one-year-old man named Herbert Hamilton, an individual from whom Williams had been receiving money in exchange for sex. This relationship, like much else in Williams' life, was kept hidden from most who knew him. Hamilton apparently threatened to publicize the secret, so Williams took action.

On January 26, 1984, Williams called on Hamilton at his home. The two eventually retired to the bedroom and, as they proceeded toward the bed, Williams withdrew a concealed ten-inch butcher knife and attempted to stab Hamilton. Hamilton fought back, wrestled the knife from Williams, and stabbed Williams in the chest. Hamilton then dropped the knife and ran into the kitchen to telephone for assistance. Meanwhile, Williams retrieved a nearby baseball bat, chased after Hamilton, and beat him with the bat until Hamilton was bloody and severely wounded. Williams then recovered the butcher knife and stabbed Hamilton approximately twenty times-twice in the head, ten times in the back, once in the neck, four times in the chest, and once each in the abdomen, arm, and thumb. Finally, Williams drove the butcher knife through the back of Hamilton's neck until it protruded through the other side. He then doused Hamilton's body with kerosene and unsuccessfully attempted to set fire to it. When police officers later entered the apartment, they found Hamilton's kerosene-soaked body with the knife jammed through his neck; on the bathroom mirror, the phrase "I loved you" was scrawled in toothpaste. Williams was then seventeen.

The Hamilton murder remained unsolved at the time that Williams went to trial for the Dorfman robbery in February of 1984. Williams maintained his innocence of the robbery throughout trial. He and his counsel mustered at least nine character witnesses who testified that Williams was a peaceful, law-abiding, and honest young man. The jury was not persuaded. They returned a conviction for two counts of robbery as felonies of the first degree, one count of burglary, one count of simple assault, one count of unauthorized use of an automobile, and one count of conspiracy. Williams was nevertheless released pending sentencing. Tragically, his crime spree continued.

On June 11, 1984, Williams and a friend, Marc Draper, were gambling with several others on a street corner in the West Mount Airy neighborhood of Philadelphia. It was not long before both young men lost all of their money. While brainstorming potential means by which to recoup their losses, Williams said that he knew a man who lived nearby from whom they could extort cash.*fn1 According to Williams, this individual-fifty-six-year-old Amos Norwood-was a closeted homosexual. With a plan that they would threaten to reveal Norwood's secret to his wife, Draper and Williams set off for Norwood's apartment.

When they arrived at Norwood's residence, Williams told Draper to wait outside. Williams emerged with $10 in cash approximately twenty minutes later. Williams and Draper were apparently satisfied with this amount because they returned to the street corner to resume gambling. A short time later, Norwood drove by the corner in his blue Chrysler LeBaron. When he spotted the vehicle, Williams said, "There goes my uncle," flagged down the car, and entered via the passenger side door. Norwood then drove away.

The blue LeBaron returned to the intersection several minutes later, whereupon Williams exited the vehicle, approached Draper, and said quietly, "Play it off like you going home, like you want a ride home, and we gonna take some money." Draper understood Williams to be proposing a robbery. The two then got inside Norwood's automobile and Draper began to provide false directions to his "home." In reality, Draper's directions led Norwood to a secluded area adjacent to the Ivy Hill Cemetery. Once there, Draper reached over the backseat, grabbed Norwood from behind and ordered him "to be quiet and get out of the car." Norwood stopped the vehicle and complied.

Williams and Draper then led Norwood into the cemetery and ordered him to lie facedown near a tombstone.

A quick search of Norwood's person revealed $20 hidden in his sock. At this point, Norwood began to plead for his life. The two assailants responded by removing Norwood's clothing and tying him up; Norwood's hands were bound behind his back with his shirt, his legs were bound together with his pants, and his socks were forcefully jammed into his mouth. Once Norwood was bound, Williams said to Draper, "Wait, I'm going to the car. We're getting ready to do something." And he walked off.

Williams returned with a tire iron and a socket wrench, the latter of which he gave to Draper. Draper, seemingly having second thoughts, urged Williams to leave. Williams replied, "I know what I'm doin, I know what I'm doin. Don't worry about it, I know what I'm doin." He then began battering Norwood's head with the tire iron. When he noticed that Draper was frozen in place, Williams said, "Man, you with me[?] We got to do this together." Draper then sprung into action himself, striking Norwood repeatedly with the socket wrench. This violent scene continued until Norwood lay motionless and dead. Draper later recalled that there was blood everywhere. On the day of his second murder, Williams was four months past his eighteenth birthday.

Williams and Draper soon parted ways. Draper reported to work, while Williams took Norwood's automobile downtown to meet a friend, Ronald Rucker. Rucker noticed that Williams was "hyper" and asked him if everything was okay. Williams then disclosed that he had just "offed a guy" named Amos. Although Rucker initially did not believe his friend, he began to reconsider after observing blood stains on Williams' shoes. Later that night, Williams told Rucker he was "going to get some gas from a gas station to go back to the scene of the crime." Rucker surmised that Williams intended to burn Norwood's body. That is precisely what Williams did.

Williams and Draper were eventually undone by their use of a credit card and telephone calling card-both in Norwood's name-that they had taken from Norwood's automobile. Philadelphia police traced use of the calling card back to Rucker; upon questioning, he implicated Williams and Draper. When his interview with law enforcement concluded, Rucker informed Williams that he had provided police with Williams' last name. Panicked, Williams boarded a bus bound for San Francisco. In the meantime, Draper was arrested and promptly confessed. He also told police about the Herbert Hamilton killing. With this information, officers proceeded to obtain a warrant for Williams' arrest.

Approximately halfway through his cross-country bus ride, Williams telephoned his girlfriend, Marlene Rogers. Rogers informed him about the outstanding arrest warrant, and urged her boyfriend to return to Philadelphia so that he could defend the charges against him. Her entreaty was apparently convincing, for Williams promptly boarded an airplane and returned east. On July 23, 1984, he arranged to be arrested in the Philadelphia office of his attorney, Ronald White. Williams' mother notified a reporter from the Daily News that her son would surrender to authorities in White's office. Before his arrest, Williams told the newspaper, "I wanted to come back and clear my name." The reporter snapped photographs as Williams was led out of White's office in handcuffs.

Two days later, Williams was sentenced to twelve-and-a-half to twenty years' imprisonment for his participation in the Dorfman robbery. In February 1985, he was tried and convicted of third degree murder for the Hamilton killing. Finally, a jury trial for the Norwood murder commenced in January of 1986 in the Philadelphia Court of Common Pleas. Draper testified for the Commonwealth and detailed the manner in which he and Williams guided Norwood to the Ivy Hill Cemetery, robbed and bound him, and then beat him to death. Williams later took the stand in his own defense and pinned the murder on Draper and another individual, Michael Hopkins. The jury rejected Williams' testimony and returned a conviction for first degree murder, robbery, and conspiracy.

The trial's penalty phase began immediately after the jury announced its verdict.*fn2 The Commonwealth introduced evidence that Williams was recently convicted of armed robbery and third degree murder. Williams, in turn, presented three witnesses in mitigation. His mother, Patricia Kemp, described her son's athletic success and testified that he was well-liked and respected by those who knew him. She also characterized Williams' stepfather as a verbally abusive alcoholic who routinely berated her son and once pushed him down a flight of stairs. Ms. Kemp denied participating in any abuse herself. Marlene Rogers, Williams' girlfriend and the mother of his thirteen-month-old child, said that Williams was a "very supportive father" and had never been violent towards her or anyone she knew. The defendant's last mitigation witness added little, rambling that "we all have sinned and come short of the glory of God . . . . We all have committed murder. We all have stolen some things that we should not have done. We all have committed adultery. I don't believe you should kill another person. Blood will be on your hands."

After witness testimony was complete, Williams' trial counsel, Nicholas Panarella, closed by emphasizing the defendant's youth at the time of the murder and by urging the jury to find that age was a mitigating factor in the offense. He then asked that they consider any residual doubt remaining from the guilt phase and argued that a sentence of life imprisonment was sufficiently severe, for it would subject Williams to "all of the brutalities that are associated with prison life." Panarella concluded by pleading for mercy. His plea was rejected. The jury found two aggravating circumstances, namely (1) that the murder occurred during commission of a felony (robbery), 42 Pa. Cons. Stat. § 9711(d)(6), and (2) that Williams had a significant history of felony convictions involving the use or threat of violence, 42 Pa. Cons. Stat. § 9711(d)(9). The jury found that there were no mitigating circumstances present in the case. They returned a sentence of death.

II Williams has been contesting the jury's death sentence almost from the moment it was announced on February 4, 1986. Shortly after trial, he dismissed Panarella and obtained new counsel, Norris Gelman. Gelman promptly filed a motion for a new trial on ineffective assistance of counsel grounds. On April 24 and July 1, 1987, the trial court held hearings on the motion during which Panarella was called to the stand to provide testimony on his mitigation strategy. He indicated that his central focus was Williams' youth, which he believed to be the mitigating factor most applicable under § 9711 of the Pennsylvania Consolidated Statutes. Panarella also explained that Williams provided him little, if any, assistance, which frustrated efforts to present a strong cadre of character witnesses on the defendant's behalf. Finally, when asked why he did not proffer evidence that Williams was psychologically damaged, Panarella was frank:

My own personal observations of Mr. Williams were and are that he is a very cold, calculating person. I did not discern any area where there was any doubt in my mind or that would have caused me to consider the fact that he was either not qualified or incapable of standing trial or facing punishment.

At the conclusion of the hearing on July 1, 1987, Williams' motion for a new trial was denied. The trial court thereafter sentenced him to death on the first degree murder conviction.

On February 8, 1990, the Pennsylvania Supreme Court affirmed the trial court's judgment and conviction. See Commonwealth v. Williams (Williams I), 570 A.2d 75 (Pa. 1990). Williams did not petition for certiorari in the United States Supreme Court. He did, however, timely file a pro se petition for relief under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq.*fn3 New counsel was appointed and filed an amended petition raising twenty-three separate claims for relief.*fn4 Among them, Williams argued that the Commonwealth exercised its peremptory strikes in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and that Panarella provided constitutionally ineffective assistance during the trial's penalty phase. The Court of Common Pleas denied relief on October 20, 1998, and on December 22, 2004, the Pennsylvania Supreme Court affirmed over the dissent of two justices.*fn5 See Commonwealth v. Williams (Williams II), 863 A.2d 505 (Pa. 2004).

In July of 2005, Williams filed a timely petition for a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. He therein raised a total of twenty-one claims, most of them not pertinent to the instant appeal. The District Court denied the petition in a thorough memorandum dated May 8, 2007, but granted Williams a certificate of appealability on two issues: (1) whether the Commonwealth exercised its peremptory strikes in a racially discriminatory manner, and (2) whether trial counsel was constitutionally ineffective during the penalty phase. We later granted Williams' motion to expand the certificate of appealability, permitting him to contest the constitutionality of the trial court's jury instructions on accomplice liability.*fn6 We address each of these issues in turn.

III The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The District Court did not conduct an evidentiary hearing in this case, instead limiting itself to the evidence contained in the state court record. Our review of the District Court's legal conclusions is therefore plenary, and we evaluate "'the state courts' determinations under the same standard that the District Court was required to apply.'" Lewis v. Horn, 581 F.3d 92, 100 (3d Cir. 2009) (quoting Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009)).

Review of the instant petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq. Hardcastle v. Horn, 368 F.3d 246, 254 (3d Cir. 2004) (petitions filed after April 1996 subject to AEDPA standards). For inmates such as Williams, who are incarcerated by the state, AEDPA prohibits federal court relief on claims which have not been presented to the state's tribunals. See 28 U.S.C. § 2254(b). If a petitioner's claim has been adjudicated on the merits in state court, habeas relief is precluded unless the state court's decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d). Thus, AEDPA erects "'a substantially higher threshold' for obtaining relief than de novo review." Renico v. Lett, --- U.S. ---, 130 S. Ct. 1855, 1862 (2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly," Williams v. Taylor, 529 U.S. 362, 411 (2000); relief instead requires a determination that the state court's application was unreasonable, Renico, --- U.S. ---, 130 S. Ct. at 1862.

In addition, AEDPA endows a state tribunal's findings of fact with a "presumption of correctness," and this presumption extends "to the factual determinations of state trial and appellate courts." Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (citing 28 U.S.C. § 2254(e)(1) and Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). To overcome the presumption, a habeas petitioner must proffer clear and convincing evidence to show that a factual determination is "objectively unreasonable in light of the evidence presented in the state-court proceeding."*fn7 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Our review proceeds under this AEDPA rubric.

A Batson Claim

Williams, who is an African American male, argues that the Commonwealth's use of peremptory challenges during jury selection violated Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court held that deliberate or purposeful exclusion of African Americans from jury service violates the Equal Protection Clause. Batson, 476 U.S. at 84. The decision set forth a three-step procedure for evaluating claims of discrimination in the jury selection process:

First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.

Miller-El, 537 U.S. at 328--29 (discussing three-step inquiry and citing Batson, 476 U.S. at 96--98). Batson was handed down in April 1986-four months after the jury was empaneled to hear the Norwood murder trial. However, because Williams' conviction was pending on direct review at the time Batson was decided, its holding applies retroactively to jury selection in the Norwood case. See Griffith v. Kentucky, 479 U.S. 314, 328 (1987). We thus begin our review of Williams' Batson claim by reconstructing the voir dire, which commenced on January 6, 1986.

Each party was afforded a total of twenty peremptory challenges. The Commonwealth exercised its first two strikes on African American venirepersons; this prompted Panarella to object and led to the following exchange:

MR. PANARELLA: Your Honor, I'm not sure of the case but there was a recent case which dealt with an attempt by the State or the Commonwealth to systematically exclude blacks from the jury. I think it would be appropriate if we were to ask the Commonwealth on what basis they exercised the peremptory challenge.

THE COURT: Anything you want to say?

[PROSECUTOR]: No, your Honor, and I might point out that the defense has exercised its peremptory challenges. I believe that this may be only the first challenge that I have exercised at all.

THE COURT: So far, the defense has challenged peremptorily two persons who, incidentally, both of whom were white. The Commonwealth has peremptorily challenged two persons who, incidentally, both of whom are black. The Court is very cognizant of the law in that area; however, at this point, I can see nothing that suggests that the peremptory challenges are being based on race alone. I'm not going to ask the Commonwealth to set forth the reason; however, I will ask Miss Foulkes if the peremptory challenges are being based on race alone?

[PROSECUTOR]: Absolutely not, your Honor. I might suggest they are not being based on race at all.

THE COURT: Thank you very much. The record will reflect your objection.

The Commonwealth then used its next two peremptory challenges to strike two more African American members of the venire. Panarella objected a second time, stating, "I have raised an objection with respect to how she has raised her peremptory challenges."*fn8 The trial judge then stated, With respect to your objection concerning the use of peremptory challenges, that is your right and if there's anything you want to say further regarding that, you are free to say it. . . . You made your position plain the last time, Miss Foulkes, and I continue to accept that you are challenging people without respect to race but with respect to what other determinations you choose to make which you believe to be right under the law.

In response, the prosecutor, Andrea Foulkes, simply noted that "the record will speak for itself."

The Commonwealth thereafter struck ten additional African American venirepersons. Panarella did not object to the exercise of any of these strikes. In sum, fourteen of the sixteen peremptory challenges exercised by the prosecutor were utilized to dismiss African Americans. She struck fourteen of the nineteen African American venire members that she had the opportunity to peremptorily dismiss. In contrast, Foulkes struck only two of the twenty-one white individuals she had the opportunity to peremptorily excuse.

At the conclusion of voir dire, the trial court empaneled a jury composed of five black jurors and seven white jurors.

Williams did not advance a Batson challenge on direct appeal. He did, however, raise the issue in his PCRA petition. Williams' petition also asserted that his trial counsel was ineffective "for failing to insist that [the prosecutor] provide race neutral reasons for her challenges," and that appellate counsel was ineffective for neglecting to raise a Batson claim on direct appeal. In April 1998, twelve years after jury selection in the Norwood murder trial, the PCRA court held an evidentiary hearing on the issue.

At the outset of the hearing, the PCRA court provided Williams with several pages of notes that the judge had taken during voir dire.*fn9 The court summarized its notes for the record:

There were 111 prospective jurors called. That's [the] total composition of the jury panel from which the jury was selected. Of those 111, 68 were white and 43 were black. The composition of the jury, the 12 principal jurors, was 7 white and 5 black. Total perempts-neither side used the full quota of 20 perempts. The total perempts were 35, 18 of which were applied to white prospective jurors, 17 to black prospective jurors.

The Commonwealth utilized 16 peremptory challenges, 2 of white jurors, 14 of black jurors. The defense used 19 peremptory challenges, 16 of white jurors, 3 of black jurors.

Williams then called Foulkes to the stand. She provided an explanation for each of her peremptory challenges and stated that she "categorically did not" strike any venireperson on the basis of race. Foulkes also testified that in order to prepare for the PCRA hearing, she reviewed a transcript of voir dire as well as the handwritten notes that she took during jury selection. After reviewing both the transcript and the notes, Foulkes created a one-page document that summarized, to the best of her recollection, the rationale behind each peremptory challenge. She used this summary to aid her PCRA testimony, though she acknowledged that she was unable to ...


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