The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.
Presently before the Court is a counseled Amended Petition for Writ of Habeas Corpus filed by James William McBride ("Petitioner") pursuant to 28 U.S.C. § 2254. (Doc. Nos. 1, 24 and 25). The Petitioner is currently incarcerated at the State Correctional Institution located in Houtzdale, Pennsylvania. For the reasons that follow, the petition will be denied.
I. FACTS AND PROCEDURAL HISTORY:*fn1
James and Kelly McBride had a party at their home on February 17, 1984. According to Petitioner, Kelly McBride left home on the morning of February 18, 1984, and he never saw her again. Kelly McBride was reported missing in March 1984 by her parents, (N.T.*fn2 5/8/01, at 127), and neither she nor her body has been found. The McBrides' neighbor, Judith Seagraves, testified that on May 25, 1984, she observed Petitioner's father and his landlord removing a bloody mattress from the apartment. (N.T. 5/8/01, at 156-58). After conducting a search of the McBride home, police found a bureau which had been nailed shut with boards. (N.T. 5/8/01, at 167-168). The insides of the bureau had been removed and traces of blood and hair were found inside. Id. In 1993, through the use of DNA technology, police were able to connect Kelly McBride with blood found on the mattress and the bureau seized from the McBrides' residence. (N.T. 5/8/11, at 152-153; 5/9/11, at 84-95; 5/14/01, at 16-17, 21-22). On November 4, 1999, an investigative grand jury was convened and investigated Kelly McBride's disappearance. On March 6, 2000, the Grand Jury recommended charging Petitioner with Kelly McBride's murder. Sixteen (16) years after Kelly McBride's disappearance, Petitioner was arrested in Florida, where he was remarried and living under a different name. (N.T. 5/10/01, at 87-92).
On May 15, 2001, following a jury trial before the Honorable Robert Simpson of the Northampton County Court of Common Pleas, Petitioner was convicted of first-degree murder and subsequently sentenced to life imprisonment. Petitioner's conviction was affirmed by the Superior Court of Pennsylvania on October 23, 2002. Commonwealth v. McBride, 815 A.2d 1129 (Pa. Super. 2002); No. 2939 EDA 2001 (Pa. Super. 2002) (unpublished memorandum). Petitioner's petition for allowance of appeal to the Pennsylvania Supreme Court was denied on May 6, 2003. Commonwealth v. McBride, 821 A.2d 586 (Pa. 2003); No. 956 MAL 2002 (Pa. 2003).
On June 25, 2003, Petitioner filed a pro se petition in the state court seeking relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Following the appointment of counsel and the filing of an amended petition, the PCRA Court held a hearing on February 2, 2004, and held a second hearing on March 12, 2004. The Court denied the PCRA petition on August 5, 2004.*fn3 Commonwealth v. McBride, No. 1319-2000 (PCRA Ct. Aug. 5, 2004). On October 25, 2005, the Superior Court affirmed the denial of the PCRA petition. Commonwealth v. McBride, 889 A.2d 115 (Pa. Super. 2005); No. 2521 EDA 2004 (Pa. Super. 2005) (unpublished memorandum). Petitioner's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on April 25, 2006. Commonwealth v. McBride, 898 A.2d 1070 (Pa. 2006); No. 1012 MAL (2005).
Petitioner filed a pro se Petition for a Writ of Habeas Corpus on May 1, 2006.*fn4 (Doc. No. 1). The original Petition alleged numerous claims of ineffective assistance by Petitioner's trial and appellate counsel. The case was assigned to the docket of the Honorable Anita B. Brody, United States District Court Judge for the Eastern District of Pennsylvania. On May 24, 2006, Judge Brody referred the petition to former Magistrate Judge Charles B. Smith for preparation of a Report and Recommendation ("R&R"). (Doc. No. 2). On July 27, 2006, Judge Smith issued his R&R recommending denial of the petition. (Doc. No. 7). On August 9, 2006, Petitioner filed objections to the R&R, and on August 23, 2006, Petitioner filed corrections to the objections. (Doc. Nos. 8, 9).
On December 15, 2006, Judge Brody appointed counsel to represent Petitioner. (Doc. No. 11). On January 15, 2008, counsel filed an amended habeas petition on Petitioner's behalf. (Doc. Nos. 24, 25). On February 7, 2008, Judge Brody denied Judge Smith's R&R as moot due to the Amended Petition. (Doc. No. 26).
On March 11, 2008, Respondents filed an answer to Petitioner's amended petition. (Doc. No. 31). Petitioner filed a reply on April 17, 2008. (Doc. No. 34). The case was reassigned to the undersigned on February 25, 2009. (Doc. No. 35).
In his amended petition, Petitioner claims that trial counsel was ineffective for:
(1) failing to object to numerous references to Petitioner's constitutionally protected post-Miranda silences;
(2) failing to object to the admission of videotaped testimony of a critical witness for the prosecution, despite the availability of that witness to testify at trial; and
(3) failing to object to material misstatements of fact and improper testimonial arguments by the prosecution.
Respondents contend that each of these claims is meritless and the amended petition must be denied.
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." 529 U.S. at 412-413 (quoted in Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2000)). The Court in Williams further stated that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. "In further delineating the 'unreasonable application of' component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 411).
Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.
"It is past question that the rule set forth in Strickland qualifies as 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams,529 U.S. at 391. Thus, Petitioner is entitled to relief if the Pennsylvania courts' decision rejecting his claims of ineffective assistance of counsel was either "contrary to, or involved an unreasonable application of," that established law. Id.; see also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002); Bell v. Cone, 535 U.S. 685, 698-699 (2002) ("It is not enough to convince a federal habeas court that, in its independent judgment, the state--court decision applied Strickland incorrectly." ).
A. Whether Certain Statements of Fact As Related By the Pennsylvania Superior Court Are Entitled to Deference.
As a threshold matter, Petitioner first contends that this Court should not give deference to three alleged incorrect factual findings by the Pennsylvania Superior Court. As Petitioner correctly notes, 28 U.S.C. § 2254(e)(1) requires that "a determination of a factual issue made by a State court shall be presumed to be correct" unless the petitioner rebuts "the presumption of correctness by clear and convincing evidence." Taylor v. Horn, 504 F.3d 416, 429 (3d Cir. 2007) (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)); Meyers v. Gillis, 142 F.3d 664, 667 (3d Cir. 1998) (holding that the district court properly refused to apply presumption of correctness to state court finding of fact when the state court's factual conclusion was clearly inconsistent with the state court record).
Petitioner first challenges the state courts' inclusion of the alleged testimony of Ms. Dawn DeLong in its factual summary of Petitioner's appeals. Ms. DeLong testified at Petitioner's preliminary hearing, but the prosecution did not call her as a witness at trial. (N.T. 5/9/01, at 4-8). In both its opinion on Petitioner's direct appeal from his judgment of sentence and on collateral appeal, the Superior Court included a lengthy paragraph purportedly summarizing Ms. DeLong's testimony at trial. Commonwealth v. McBride, No. 2939 EDA 2001, at 3 (Pa. Super. Oct. 23, 2002); Commonwealth v. McBride, No. 2521 EDA 2004, at 11 (Pa. Super. Oct. 25, 2005). Because Ms. Delong did not testify at trial, the state court erroneously included her testimony in its factual summary. It would thus be improper for any court to use evidence derived from that testimony in the disposition of Petitioner's claims. I note that the state courts have not explicitly relied upon this testimony in denying Petitioner's claims.*fn5 I stress, however, that this Court is not required to rely upon, nor has it relied upon, Ms. DeLong's testimony when considering any aspect of the instant petition. See 28 U.S.C. § 2254(e)(1).
In his second challenge, Petitioner properly points out that the
Superior Court of Pennsylvania incorrectly found that Petitioner's
neighbor, Judith Seagraves, testified that on May 25, 1984, she
witnessed Petitioner help his father remove a mattress from his
apartment. Commonwealth v. McBride, No. 2939 EDA 2001, at 2 (Pa.
Super. Oct. 23, 2002); Commonwealth v. McBride, No. 2521 EDA 2004, at
10 (Pa. Super. Oct. 25, 2005) (N.T. 5/8/01, at 156-58). Review of the
trial transcript reveals that Ms. Seagraves actually testified that
she witnessed Petitioner's father and landlord removing a mattress
from his apartment on that date. (N.T. 5/8/01, at 157-58). Indeed, the
parties stipulated at trial that Petitioner was incarcerated on
unrelated charges on May 25, 1984. (N.T. 5/14/01, at 53). As a result,
it would not have been possible for Petitioner to remove the mattress
on that date. As with Petitioner's previous claim, the state courts did not explicitly rely
upon this testimony in denying Petitioner's claims.*fn6
However, I note that this Court is not required to presume
that Petitioner helped to remove the mattress from his apartment when
reviewing Petitioner's claims. See 28 U.S.C. § 2254(e)(1).
Finally, Petitioner contends that the Superior Court misconstrued the testimony of Annette Beck because the court focused only on the portion of her testimony in which she indicated that Petitioner told her that he had killed Kelly McBride. Commonwealth v. McBride, No. 2939 EDA 2001, at 4 (Pa. Super. Oct. 23, 2002); Commonwealth v. McBride, No. 2521 EDA 2004, at 11 (Pa. Super. Oct. 25, 2005). On collateral appeal, the Superior Court used this testimony as conclusive evidence of guilt, concluding that challenged references to Petitioner's post-Miranda silence were not prejudicial because they were "merely cumulative of the testimony of Annette Beck, to whom [Petitioner] repeatedly admitted his guilt." Commonwealth v. McBride, No. 2521 EDA 2004, at 12 (Pa. Super. Oct. 25, 2005). Petitioner argues that the Superior Court failed to provide the proper context for the testimony. More specifically, Petitioner contends that the court failed to note that, according to Ms. Beck's testimony, Petitioner made each alleged confession in a joking manner, and that Ms. Beck understood each statement to be a joke. (N.T. 5/9/01, at 112, 114, 116-18). Moreover, as Petitioner notes, Ms. Beck's cousin, Denise Bickford, the only witness to Petitioner's conversation with Ms. Beck, also testified that these alleged comments came up "[i]n conversation. In joking around . . . He seemed like he was joking around."*fn7 (N.T. 8/9/01, at 125-26). Based upon these statements, Petitioner contends that the record indicates that he never "confessed" to Annette Beck that he murdered Kelly McBride, but instead, made a few joking comments, albeit in bad taste, in response to repeated "nagging" inquiries from his girlfriend. Thus, Petitioner contends that this Court is not required to presume that Petitioner "confessed" to Ms. Beck that he killed Kelly McBride.
I conclude that the state courts unreasonably characterized Ms. Beck's testimony as a straightforward confession to the murder of Kelly McBride. Review of the testimony clearly indicates that the statements were understood to be delivered in a joking manner. Consequently, the state court's determination on this factual issue is not entitled to deference by this Court. See 28 U.S.C. § 2254(e)(1).
B. Whether Trial Counsel Was Ineffective for Failing to Object to the Prosecution's References to Petitioner's Exercise of His Fifth Amendment Right to Remain Silent.
In his first claim, Petitioner claims that trial counsel was ineffective for failing to object when the prosecution improperly referred to occasions when Petitioner exercised his Fifth Amendment right to remain silent. Petitioner also alleges that trial counsel erroneously referenced his post-arrest silence during his cross examination.
The Third Circuit has recently set forth the law governing a claim of a Fifth Amendment violation:
Once a criminal defendant receives the prophylactic warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), it is improper under Doyle [v. Ohio, 426 U.S. 610 (1976)] "for a prosecutor to cause the jury to draw an impermissible inference of guilt from a defendant's post-arrest silence." Hassine v. Zimmerman, 160 F.3d 941, 947 (3d Cir. 1998). This is so because Miranda warnings carry the Government's "implicit assurance" that an arrestee's invocation of the Fifth Amendment right to remain silent will not later be used against him. [Gov't of the V.I. v. ] Davis, 561 F.3d [159,] 163-64 [(3d Cir. 2009)] quoting Wainwright v. Greenfield, 474 U.S. 284, 290-91 (1986)); United States v. Johnson, 302 F.3d 139, 146 (3d Cir. 2002). Because a defendant's post-Miranda warning silence could be nothing more than an invocation of his right to silence, it would be fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to why he failed to give an exculpatory account to the police after receiving the warnings. See Davis, 561 F.3d at 163. Not every reference to a defendant's silence, however, results in a Doyle violation. Where "no governmental action induce[s] the defendant to remain silent," Fletcher v. Weir, 455 U.S. 603, 606 (1982), the Miranda-based fairness rationale does not control. Consequently, the Government permissibly may impeach a defendant's testimony using his pre-arrest silence, Jenkins v. Anderson, 447 U.S. 231, 240 (1980); his post-arrest, preMiranda warning silence, Fletcher, 455 U.S. at 605-07; and any voluntary post-Miranda warning statements, Anderson v. Charles, 447 U.S. 404, 408-09 (1980). Additionally, under Greer v. Miller, 483 U.S. 756 (1987), "there may be no Doyle violation where the trial court sustains an objection to the improper question and provides a curative instruction to the jury, thereby barring the prosecutor from using the silence for impeachment." Davis, 561 F.3d at 164 (citing Greer, 483 U.S. at 764-65).
Virgin Islands v. Martinez, 620 F.3d 321, 335 (3d Cir. (Virgin Islands) 2010) (footnote excluded).
In the instant case, Petitioner contends that his counsel was ineffective for allowing the admission of the following three references to Petitioner's post-Miranda silences: (1) during the prosecution's direct examination of Agent Fritz; (2) during trial counsel's cross-examination of Agent Fritz; and (3) during the prosecution's cross-examination of Petitioner.
1. References During the Prosecution's Direct Examination of Agent Fritz.
Petitioner contends that the prosecution first infringed upon his Fifth Amendment rights during its direct examination of FBI Agent Fritz. (N.T. 5/10/01, at 4-36). Agent Fritz testified that he interviewed Petitioner twice. The first interview was on May 1, 1984, when Petitioner voluntarily appeared at the office of the FBI in Allentown to provide information regarding the disappearance of Kelly McBride. (Id. at 12-23). The second interview occurred on May 30, 1984, when Agent Fritz interviewed Petitioner at the Lehigh County Prison, where Petitioner was incarcerated on an unrelated matter.*fn8 (Id. at 26-36).
At trial, the prosecution asked Agent Fritz to read aloud portions of
his report that had been highlighted by the prosecution. (N.T.
5/10/01, at 13). After Agent Fritz provided his account of the May 1, 1984 interview, trial counsel presented a
hearsay objection to Agent Fritz reading aloud portions of
Petitioner's second interview from May 30, 1984. (N.T. 5/10/01, at
23-24). After overruling trial counsel's objection, the trial judge
admitted the testimony from the May 30th
interview for "the effect on the hearer," and gave a limiting
instruction that specifically directed the jury to focus on
Petitioner's reaction to his interrogator, which in this case,
included his silence in response to certain questions.*fn9
(N.T. 5/10/01, at 24-26). Agent Fritz then read his notes from his interview
with Petitioner on May 30th, which stated,
When specifically asked whether he had been in the company of one -- blacked out -- the day following his wife's disappearance, McBride would not answer.
McBride was asked if he was aware of the fact that a large amount of blood, appeared to be blood, had been found on a mattress in his apartment. McBride would not respond.
McBride was asked whether he had any knowledge of a foot locker or a trunk previously located in his attic, and McBride stated he had no such knowledge. He asked whether he knew where a sleeping bag of his was located, and he would not answer.
McBride was asked whether he had ever been involved in the assault or murder of his wife. McBride denied any such knowledge, indicated that he loved his wife. McBride was asked whether the blood located in his apartment could have been caused by the death of his wife or an assault on her person. McBride did not respond.
McBride then sat in complete silence for several moments and then indicated that he did not wish to continue the interview. McBride abruptly left the interview space, and the interview was terminated.
(N.T. 5/10/01, at 32-33). Counsel did not object to the testimony on Fifth Amendment grounds, did not request a mistrial on those grounds and did not request limiting instructions thereto. (N.T. 2/2/04, at 55-56).
In reviewing this claim, the state court first determined that Petitioner had asserted his Fifth Amendment right to silence and then concluded that the prosecution had improperly introduced Petitioner's silence in its case-in-chief.*fn10 The state court then examined whether trial counsel had a reasonable basis for not objecting to the testimony:
Attorney Lauer testified at the PCRA hearing that he did not object to the testimony because it was a theory of the defense. Attorney Lauer testified that his strategy was to show that the Petitioner cooperated with law enforcement in the investigation of his missing wife, and to show that the police failed to properly investigate the matter and that they hadn't looked much further than the Petitioner. (N.T., 2/2/04, at 116-118).
After a review of the testimony and trial strategy, we cannot find that Attorney Lauer's actions were without a reasonable basis to effectuate his client's interests. Attorney Lauer is a well known and very experienced criminal defense attorney in Northampton County and he made some strategic choices in furtherance of the defense theme. The mere fact that Attorney Lauer's trial strategy was ultimately ...