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Steven Duffey v. Jeffrey Beard

September 12, 2011


The opinion of the court was delivered by: Hon. John E. Jones III



This matter is before the Court on the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 of Steven Duffey ("Duffey").*fn1 Duffey seeks relief from his convictions for first degree murder and related robbery charge and sentence to death, imposed by the Court of Common Pleas of Lackawanna County, Pennsylvania ("trial court"). For the reasons set forth below, the petition shall be denied.


Following a jury trial in February of 1985, Duffey was convicted of first degree murder*fn2 and robbery*fn3 in the death of Kathy Kurmchak. The Pennsylvania Supreme Court summarized the relevant facts of the proseuction in Commonwealth v. Duffey, 548 A.2d 1178 (Pa. 1988) ("Duffey-I") and they shall not be repeated here save for when relevant to our analysis. Following deliberations, the jury found one aggravating circumstance; that Duffey committed a killing while in the perpetration of a felony.*fn4 Four mitigating circumstances were proffered by the defense: (1) Duffey was under the influence of extreme mental or emotional disturbance; (2) Duffey's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; (3) Duffey's age at the time of the crime; and (4) any other evidence of mitigation concerning his character, his record and the circumstances of his offense.*fn5 The verdict slip did not indicate which mitigating circumstances were found, only that the aggravating circumstance outweighed any mitigating circumstances. State Court Record ("SCR") 83 (Verdict Form).

Following the trial and post trial motions, the trial court appointed new counsel to Duffey for the appellate stage and the case proceeded to the Pennsylvania Supreme Court for automatic review.*fn6 The Pennsylvania Supreme Court denied Duffey's appeal in 1988. Further, the Pennsylvania Supreme Court conducted a proportionality review and determined that the jury found one aggravating circumstance and no mitigating circumstances in this case; therefore, a death sentence was properly imposed.*fn7 Judgment of the sentence of death entered by the trial court was affirmed. Duffey-I. No further activity occurred in any court on this case until late 1994.

On September 22, 1994, the Governor of the Commonwealth of Pennsylvania signed a death warrant scheduling Duffey's execution for the week of December 4, 1994. Duffey filed a pro se motion for stay of execution in order to permit counsel to be appointed for him and a Post Conviction Relief Act ("PCRA") petition to be filed. After an arduous and convoluted process through the Pennsylvania and Federal Courts, the case was remanded back to the PCRA Court for a review of the PCRA petition on the merits.*fn8

Duffey raised several issues concerning trial and sentencing errors in his Amended PCRA petition. Ultimately, the PCRA Court denied his Amended PCRA petition. Duffey timely appealed to the Pennsylvania Supreme Court.

In 2004, the Pennsylvania Supreme Court made several findings as to trial phase claims in Duffey's Amended PCRA appeal.*fn9 However, the Court did not have enough information in the record to rule on the sentencing phase claims. While maintaining jurisdiction, the Pennsylvania Supreme Court remanded the case back to the PCRA Court with specific instructions. Duffey-II. The PCRA Court made several findings and returned the case for disposition. Ultimately, the Pennsylvania Supreme Court denied relief on all claims. Duffey-III.

Duffey filed the instant Amended Petition for Writ of Habeas Corpus in 2006. (Dkt 91). Respondents filed a motion for an order to dismiss Duffey's amended petition.*fn10 (Dkt 96). Duffey then filed his memorandum of law. (Dkt 117).

Respondents filed a response to the memorandum in 2007. (Dkt 122). Duffey filed a reply memorandum of law. (Dkt 123). This matter is now ripe for disposition.


A habeas corpus petition is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement pursuant to 28 U.S.C. § 2254. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (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 67-68; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

It is also "well settled that the fact that constitutional error occurred in the proceedings that led to a state-court conviction may not alone be sufficient reason for concluding that a prisoner is entitled to the remedy of habeas." Williams v. Taylor, 529 U.S. 362, 407 (2000) (internal citations omitted). "On the other hand, errors that undermine the confidence in the fundamental fairness of the state adjudication certainly justify the issuance of a federal writ." Id.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect on April 24, 1996 and amended the standards for reviewing state court adjudications in federal habeas petitions filed under 28 U.S.C. § 2254. Duffey filed his first petition in 1997. After filing this petition, Duffey asked for, and was subsequently granted, a stay of the federal proceedings while he pursued exhaustion of his state court remedies. After exhausting his state court remedies in 2006, Duffey returned to this court and filed an Amended Petition for Writ of Habeas Corpus. Since Duffey's petition was filed after the effective date of the AEDPA, this Court is required to apply the amended standards to his claims for federal habeas corpus relief. See Werts v. Vaughn, 228 F.3d 178, 195 (3rd Cir. 2000) (citing Lindh v. Murphy, 521 U.S. 320, 336 (1997)).

A. Exhaustion

Under the AEDPA, a federal court cannot consider a writ of habeas corpus unless the petitioner has first exhausted all state court remedies, there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the petitioner. See 28 U.S.C. §2254(b)(1). The exhaustion requirement is not a mere formality. It serves the interests of comity between federal and state systems by allowing the state an initial opportunity to determine and correct any violation of a prisoner's federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).

This statutory provision has been interpreted to require the federal habeas petitioner to present both the facts and legal theory associated with each claim through "one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-845 (1999); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). In addition, the state court must be put on notice that a federal claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). To satisfy this requirement, a petitioner must demonstrate that the claim raised was fairly presented to the state's highest court, either on direct appeal or in a state post-conviction proceeding. In the matter sub judice,Duffey has exhausted all of his claims in the Pennsylvania Supreme Court in Duffey-II and Duffey-III.

B. Merits

Once it is established that the habeas claims have been exhausted and are not procedurally defaulted, a federal court may reach the merits of a habeas corpus petition. The AEDPA restricts a federal court's authority to grant relief when a state court has previously considered and rejected the petitioner's federal constitutional claims on the merits, unless the state adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the Untied States; or

(2) 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). We will more fully describe these alternative touchstones in turn.

(1) Contrary to / Unreasonable Application of Federal Law

The Supreme Court first interpreted the standard set forth in §2254(d)(1) in Williams v. Taylor, supra. The Court instructed that federal courts must first decide exactly what constitutes the applicable clearly established law determined by the Supreme Court. Id. at 389-91; see also Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000). Next, the federal court must determine whether the state court's decision was "contrary to" or "an unreasonable application of" that law. 28 U.S.C. § 2254(d)(1).

"[C]learly established Federal law, as determined by the Supreme Court of the United States" refers to the Court's holdings, as opposed to dicta, and applies as of the time of the relevant state court decision. Williams, 529 U.S. at 412. The Third Circuit has held that a federal court's analysis of whether a state court's decision is "contrary to" or an "unreasonable application of" Supreme Court precedent under § 2254 (d) may be amplified by decisions of inferior federal courts evaluating that Supreme Court precedent. Hardcastle v. Horn, 368 F.3d 246, 256 n.3 (3d Cir. 2004) (citing Matteo v. Superintendent, 171 F.3d 877, 890 (3d Cir. 1999).

The AEDPA "directs federal courts to attend to every state court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody -- or. . . his sentence of death -- violates the Constitution, that independent judgment should prevail." Williams, 529 U.S. at 415-16.

To establish that the state court decision was contrary to federal law, "it is not sufficient for the petitioner to show merely that his interpretation of the Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Matteo, 171 F.3d at 888. Additionally, a federal court will only find a state court decision to be an unreasonable application of federal law if the decision, "evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Id. at 890.

"An unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410. "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." Id. at 411. Rather, that application must be "objectively unreasonable." Id. Thus, the AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh, 521 U.S. at 333 n.7, and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).

When assessing whether a state court's application of federal law is unreasonable, "the range of reasonable judgment can depend in part on the nature of the relevant rule" that the state court must apply. Renico v. Lett, 130 S.Ct. 1855, 2010 U.S. LEXIS 3675 (2010) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Because the AEDPA authorizes federal courts to grant relief only when state courts act unreasonably, it follows that the more general the rule at issue, the greater the reasoned disagreement among fair-minded judges will occur, the more leeway the state courts have in reaching outcomes in case-by-case determinations. Renico, 130 S. Ct. at 19. Whether the trial judge was right or wrong is not the pertinent question under the AEDPA, it is whether the decision was reasonable. The "AEDPA prevents defendants -- and federal courts -- from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Id. at 25.

"Under 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." Williams, 529 U.S. at 412-413. "Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

(2) Unreasonable Determination of Facts

A federal court may also grant relief under § 2254(d)(2) where the state court's decision is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

A factual determination should be adjudged "unreasonable" under § 2254(d)(2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. Porter v. Horn, 276 F.Supp 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307 (1979). "This provision essentially requires the district court to step into the shoes of an appellate tribunal, examining the record below to ascertain whether sufficient evidence existed to support the findings of fact material to the conviction." Breighner v. Chesney, 301 F. Supp 2d 354, 364 (M.D. Pa. 2004) (citing 28 U.S.C. § 2254 (d)(2) and (f)). Mere disagreement with an inferential leap or credibility judgment of the state court is insufficient to permit relief. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 410; Hurtado v. Tucker, 245 F.3d 7, 16 (1st Cir. 2001). Only when the finding lacks evidentiary support in the state court record, or is plainly controverted by evidence therein, should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-10.

The standard set forth in 28 U.S.C. § 2254(d)(2) should not be confused with the standard in § 2254(e). Section 2254(d) dictates the terms under which a federal court will grant relief while § 2254(e) deals with a standard of proof. Under 28 U.S.C. § 2254(e)(1), a federal court is required to presume that a state court's findings of fact are correct and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. The clear and convincing evidence standard as found in § 2254(e)(1) only pertains to state-court determinations of factual issues, rather than decisions. Miller-El v. Cockrell, 537 U.S. 322, 341 (2003) (stating that the clear and convincing standard in § 2254(e)(1) applies to factual issues, whereas the unreasonable application standard of § 2254(d)(2) applies to factual decisions); Matteo, 171 F.3d at 888; Thomas v. Varner, 428 F.3d 491, 497-98 (3d Cir. 2005). Although § 2254(e)(1) has a heightened standard of clear and convincing evidence for reviewing factual determinations, this standard is not insurmountable. The Supreme Court has stated:

Even in the context of federal habeas, deference does not imply the abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.

Miller-El, 537 U.S. at 340 (2003); see also Wiggins v. Smith, 539 U.S. 510, 528 (2003) (rejecting state court's factual determination under § 2254(e)(1) and § 2254(d)(2)).


Duffey's habeas petition contains nine claims with many sub-claims that deal with ineffectiveness of trial counsel and direct appellate counsel. For clarity and purposes of discussion, the Court will address Duffey's claims in the order presented in his petition; first setting forth the standard for effective assistance of counsel, since it is involved as either a primary or secondary issue in many of Duffey's claims. Other standards will be presented when that particular issue is addressed, as needed. CLAIM I: Petitioner's death sentence should be vacated because counsel was ineffective at capital sentencing

The Sixth Amendment guarantees criminal defendants the "effective assistance of counsel," which is representation that does not fall "below an objective standard of reasonableness" in light of "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

In Strickland, the United States Supreme Court established the federal standard for ineffective assistance claims. In the two prong test established by the Court, a defendant's claim of counsel's ineffectiveness must first establish that the attorney's representation was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. If this is established, the defendant must then show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious that defendant was deprived of a fair trial. Strickland, 466 U.S. at 687. Unless a defendant meets both of these requirements, it cannot be argued that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. Id. The focus of the inquiry must be on the fundamental fairness of the proceeding. There is no need to approach the ineffectiveness claim in a particular manner since insufficiency to either prong defeats the entire claim. Therefore, if it is easier to dispose of the claim with no prejudice, then that course should be followed. Id. at 697.

The proper standard by which to measure attorney performance remains reasonableness under prevailing professional norms. Id. at 688. This standard is a general one. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-698. The Supreme Court has recognized the American Bar Association standards and restatements of professional standards as "guides" as to what is reasonable, but they are "only guides" to the extent they describe the professional norms prevailing when the representation took place. Id. at 688. These guides should not be so detailed that they "interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions." Id. at 689. Nor shall these guides be an exhaustive list of obligations of counsel or a checklist for judicial evaluation of attorney performance. Id. The inquiry remains whether counsel's assistance was reasonable considering all of the circumstances. Id. at 687.

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and 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." Id. at 689 citing Engle v. Isaac, 456 U.S. 107, 133-134 (1982). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689. The presumption can be rebutted by showing "that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Thomas v. Varner, 428 F.3d 491, 499-500 (3d Cir. 2005).

"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in the light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment... [A]ny deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution...It is not enough for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding...The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 691-694.

"When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When challenging a death sentence, as in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer --to include an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695.

Although the Supreme Court decided Strickland in 1984, the same year as Duffey's trial and sentencing, this Court applies Strickland as the benchmark for assessing trial counsel's performance; by 1983, "all the Federal Courts of Appeals . . . held, the proper standard for attorney performance is that of reasonably effective assistance," which is the standard that Strickland reiterated. Morris v. Beard, 2007 U.S. Dist. LEXIS 44707 (E.D. Pa. June 20, 2007) citing Strickland, 466 U.S. at 687.

Pennsylvania Law

Under Pennsylvania law, a three-prong test is utilized for ineffective assistance of counsel claims, but it is, in effect, identical to Strickland. Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987). Under the Pierce test, a defendant must show 1) that the claim has arguable merit; 2) that counsel lacked a reasonable basis for his or her chosen course; and 3) that the petitioner was prejudiced thereby. Id. at 975. The Third Circuit has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts v. Vaughn, 228 F.3d at 204 (3d Cir. 2000). Thus, under 28 U.S.C. § 2254(d)(1), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits, is whether the state court's decision involved an unreasonable application of Strickland and further, under 28 U.S.C. § 2254(d)(2), whether the petitioner received constitutionally effective counsel. Bond v. Beard, 539 F.3d 256, 279 (3d Cir. 2008).

Professional norms Under Strickland, this Court's first function is to identify the prevailing professional norms that existed at the time of Duffey's trial and sentencing, determine whether trial counsel's conduct fell below these norms and, if so, whether the petitioner suffered prejudice thereby.

The American Bar Association ("ABA") standards in effect during Duffey's 1984 trial described defense counsel's duty to investigate both the merits and mitigating circumstances in general terms: "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." ABA Standards for Criminal Justice 4-4.1 at 4-53 (2d ed. 1980) ("1980 ABA Standards"). The two page commentary noted defense counsel's role in regard to mitigating factors that "[i]nformation concerning the defendant's background, education, employment record, mental and emotional stability, family relationship, and the like, will be relevant, as will mitigating circumstances surrounding the commission of the offense itself." Id. at 4-55.

The first ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases was published in 1989, five years after Duffey's conviction ("1989 ABA Guidelines"). The guide was updated in 2003 to reflect the sweeping changes to federal habeas corpus laws with the enactment of the AEDPA. ("2003 ABA Guidelines"). In the 2003 revision, the ABA compiled a team of experts to evaluate standards, review best practices and identify necessary revisions.*fn11 Notably, the 2003 ABA Guidelines consists of 131 pages of substance, a stark contrast to the standards applied in the mid-1980s when Duffey was convicted. "Judging counsel's conduct in the 1980's on the basis of the 2003 ABA Guidelines, without even pausing to consider whether they reflected the prevailing professional practice at the time of the trial, is error." Bobby v. Van Hook, 130 S. Ct. 13, 17, 2009 U.S. LEXIS 7976 (2009). Therefore, we will use the 1980 ABA Standards and the 1989 ABA Guidelines as more appropriate guides representative of reasonable performance of counsel at the time of Duffey's trial.*fn12

The aforementioned 1989 ABA Guidelines gives us a more detailed view of acceptable attorney norms at the time of Duffey's trial and expands the short commentary noted in the 1980 ABA Standards. Under the 1989 ABA Guidelines, counsel representing a defendant faced with the death penalty had a duty to ensure that all reasonably available mitigating evidence was presented to the jury in the most effective possible way. 1989 ABA Guidelines, 11.8.2(D). Preparation for the sentencing phase was to begin immediately upon counsel's entry into the case, and the preparation was to include thorough discussions with the client about the penalty strategy. Counsel should have prepared by investigating the following witnesses and evidence: (1) witnesses familiar with and evidence relating to the client's life and development, from birth to the time of sentencing, who would be favorable to the client; (2) expert witnesses to provide medical, psychological, sociological or other explanations for the offense for which the client was being sentenced, to give a favorable opinion as to the client's capacity for rehabilitation, etc.; (3) witnesses with knowledge and opinions about the lack of effectiveness of the death penalty itself; and (4) witnesses drawn from the victim's family or intimates who would be willing to speak against killing the client. Wiggins, 539 U.S. at 524 (citing 1989 ABA Guideline 11.8.3. and 11.8.6.)

In Duffey's case, the Pennsylvania Supreme Court affirmed the PCRA Court's conclusion that trial counsel's actions were reasonable. Since the deferential AEDPA standard of review applies, our task is to address whether the Pennsylvania Supreme Court unreasonably applied Strickland when it decided that Duffey received constitutionally effective counsel. Bond, 539 F.3d at 280. Having articulated the general standards for ineffectiveness claims, we now turn to applying those standards to the facts in the matter sub judice.

Claim I.B.*fn13 Counsel's Failure to Investigate, Develop and Present Mitigating Evidence

As previously noted, Duffey claims his death sentence should be vacated because his trial counsel provided ineffective assistance at capital sentencing. Duffey contends that counsel failed to adequately establish his poverty-stricken childhood, including his exposure to toxic chemicals, the extreme mental and physical abuse he suffered at the hands of his father, his poor performance at school, and the development of his mental and emotional disorders. Accordingly, Duffey's ineffectiveness claim has several sub-parts and they will be addressed in order.

(1) Childhood Exposure to Toxic Substances

Duffey argues that trial counsel failed to uncover information related to the fact that he lived in an EPA Superfund area from the ages three to nine. The site was declared a Superfund area in 1983 and was known to contain toxic elements, including lead. Duffey cites the 2003 ABA Guidelines in support of his argument that a reasonable attorney would have uncovered this information. (2003 ABA Guideline 11.8.6.(B) (counsel should investigate client's "medical history" and "social history," including "neighborhood surroundings," and prepare "expert testimony" concerning these matters.))

State Court

The PCRA Court concluded that Duffey's claim failed since he never established whether the facts and circumstances to be investigated were within counsel's knowledge. The Pennsylvania Supreme Court agreed. Duffey-III at 64. The Court found there was no reason for counsel to conceive that Duffey had ever been exposed to lead, other than the fact that Duffey lived in a town that was declared to be a Superfund site in 1983. Id.

Further, there was no evidence to suggest that any of Duffey's family knew at the time of trial that he had been exposed to lead or other toxins. There were no childhood medical records documenting that Duffey had been exposed to lead, or that he had high levels of lead in his blood. Even as late as the PCRA hearing (15 years after his trial), it was unclear whether the technology existed at the time of trial which would have established Duffey's claim of childhood exposure to lead. See SCR 145 at 180-2 (Tr. of PCRA, Dec. 13, 1999). Specifically, expert testimony was presented by Dr. Rosen during cross-examination indicating that testing Duffey's blood for lead in 1984 could not establish how much lead was from his exposure to the Superfund site, and that current technology for assessing past lead exposure was unavailable in the U.S. in 1984. Duffey-III at 64-65.


While as noted Duffey tries to rely on the 2003 ABA Guidelines, he fails to show any authority to support his contention that investigating "neighborhood surroundings" reflected the prevailing professional practice at the time of his trial. Without such authority, it would be error to hold his counsel to the 2003 ABA Guidelines in this respect. See Van Hook, supra.

Evidence of Duffey's exposure to lead is speculative at best. If current counsel cannot show that trial counsel knew or should have known of this mitigating evidence, then trial counsel cannot be found ineffective for failing to present it to the court. Duffey's trial counsel undertook sufficient efforts to investigate and procure mitigating evidence. This search did not produce evidence of any lead exposures by Duffey as a child. We find that trial counsel's efforts were entirely reasonable. See 1989 ABA Guidelines 11.8.6. Trial counsel's conduct falls within the wide range of reasonable professional assistance. Strickland at 689. Therefore this sub-part of Claim I.B. fails.

(2) Family Witnesses

Duffey acknowledges that trial counsel offered family witnesses in an effort to mitigate; however, he challenges the quality and quantity of this evidence. At the penalty phase, trial counsel presented the testimony of Duffey's mother, sister and a school counselor showing his childhood history in support of the catchall mitigator.*fn14

Duffey's mother testified to the family's financial circumstances and the physical abuse perpetrated by Duffey's father. SCR 89 at 137-140 (Tr. of Penalty Phase, Feb. 7, 1985). She gave specific examples of the abuse and testified that Duffey "got the worst of it." Id. at 141. Further, she testified about the physical traumas that Duffey suffered as well as seizures he began to have at age nine. Id. at 145-147. Duffey's sister also offered testimony regarding the abuse inflicted by the father, and also reiterated that Duffey sustained the worst of it. Id. at 152. The school counselor presented various school records that supported his testimony that Duffey performed poorly in school, had both academic and disciplinary problems at school, and had received mental health counseling which he was encouraged to continue "because of the difficulties he was experiencing." Id. at 58.

State Court

The PCRA Court concluded that trial counsel presented adequate testimony regarding Duffey's childhood. Here again, the Pennsylvania Supreme Court agreed. Duffey-III at 66. The Court noted that Duffey did not suggest that alternative evidence could have been presented in support of the mitigating factor, but merely asserted that more evidence of his dysfunctional childhood could have been offered. Id.


While not cited in Duffey-II or Duffey-III, Pennsylvania has consistently held that failure to present cumulative evidence is not ineffective assistance of counsel. Commonwealth v. Gorby, 900 A.2d 346 (Pa. 2006); Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997); Commonwealth v. Cross, 634 A.2d 173 (Pa. 1993); see also Cruz v. McGrady, 2010 U.S. Dist. LEXIS 125123 (E.D. Pa. 2010); see also Van Hook, 130 S. Ct. at 19. It is well settled that the weighing of mitigating circumstances is a qualitative and not quantitative procedure. Commonwealth v. Dennis Miller, 724 A.2d 895 (Pa. 1999), cert. denied, 528 U.S. 903 (1999); see also Commonwealth v. Kenneth Miller, 819 A.2d 504, 518-19 (Pa. 2002); Commonwealth v. Brown, 648 A.2d 1177, 1186 (Pa. 1994) (balancing aggravating against mitigating circumstances is not a quantitative process--that is, if more aggravating than mitigating circumstances are found, the jury is not required to impose a death sentence; likewise, if more mitigating than aggravating circumstances are found, the jury is not necessarily precluded from imposing a death sentence.") Since Duffey has failed to demonstrate that trial counsel was ineffective for failing to present what would clearly have been cumulative evidence, we find no reason to question the Pennsylvania Supreme Court's denial of this claim. Accordingly, this sub-claim fails.

(3) The documented history of mental impairments and the relationship between the history of abuse and mental deficiency and Duffey's behavior

Duffey contends that trial counsel failed to make a sufficient causal connection between his history of abuse, his mental deficiency and his behavior. Duffey claims that if the causal ties were adequately presented and explained to the jury, this would have given the jury substantial mitigation to outweigh the aggravation. Additionally, Duffey argues that he suffered from organic brain damage and that there was significant evidence to support such a diagnosis at the time of the penalty hearing. At the PCRA hearing, Duffey presented extensive expert testimony in support of his contention of brain damage, mental illness, psychological deficiencies, physical abuse and intellectual impairment. Duffey does not argue that trial counsel failed to present this information, but rather, that the testimony, as offered, was ineffective. Duffey claims his trial counsel should have presented more evidence relating to the circumstances he faced while growing up.

State Court

Trial counsel offered the testimony of four experts in support of two mental health mitigators.*fn15 Two of the doctors testified as to Duffey's seizure disorder and the other two doctors testified as to Duffey's mental health. Both of the mental health experts acknowledged the possibility that Duffey suffered from some type of organic brain disorder, but their testimony focused largely on Duffey's antisocial personality disorder. Duffey-III at 67; see SCR 89 at 78-79 (Tr. of Penalty Phase, Feb. 2, 1985). (Dr. Brennan testifying that he diagnosed Duffey with organic personality syndrome or disorder) id. at 83; (Dr. Lesniak stating that there was a possibility of organic impairment.) Id. at 162.

Dr. Brennan utilized Duffey's childhood history in formulating his diagnosis, acknowledging that there was evidence of abuse, learning problems, disciplinary problems and epilepsy. Id. at 158-59. He also reviewed the facts in Duffey's case, supporting materials, and the statutes regarding aggravating and mitigating circumstances. Dr. Brennan informed trial counsel that he could diagnose Duffey with organic brain syndrome, but ultimately said it [organic brain syndrome] would not help at all. SCR 151 at 68 (Tr. of PCRA, Dec. 17, 1999). Dr. Brennan further explained that he felt the proper diagnosis was "personality disorder, antisocial personality." Id. At 69. Counsel discussed Duffey's diagnosis with Dr. Brennan and how the abuse Duffey suffered affected him.

Based on his discussions with the experts, it was trial counsel's belief that he had to focus on the antisocial personality diagnosis since it gave him a way to "back door an additional element of Duffey's mental capacity." Id. at 79. The PCRA Court credited trial counsel's testimony and ultimately concluded that "the fact that the appellant had found experts who now claim he has brain damage does not negate the fact that his trial counsel investigated his cognitive abilities and discussed it with the trial experts." Duffey-III at 67-68.

The PCRA Court concluded that trial counsel presented adequate testimony of Duffey's childhood. Once again, the Pennsylvania Supreme Court agreed. Duffey-III at 66. The PCRA Court further concluded that counsel effectuated a reasonable trial strategy in presenting mental health evidence, a determination with which the Pennsylvania Supreme Court also agreed. Id.

The Pennsylvania Supreme Court ultimately concluded that sufficient evidence was presented in regard to mitigating factors including information regarding Duffey's background, education, employment record, mental and emotional stability, and family relationship. Id. Trial counsel investigated and presented evidence of Duffey's familial situation, including the abuse he suffered as a child, his medical issues, which included traumas and mental health issues, and finally, his educational struggles. Because it was evident that there were potential mental health issues, trial counsel began investigating those issues very early on in the representation*fn16 .


Trial counsel relied on the reports and conversations he had with the four experts who testified on Duffey's behalf. Defense counsel was not ineffective for relying on the opinions of these experts. Clark v. Mitchell, 425 F.3d 270 (6th Cir. 2005). Further, by utilizing defense experts, trial counsel was acting in conformity with the ABA Guidelines. Id. at 286 n.5.

"Investigations into mitigating evidence 'should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.'" Wiggins, 539 U.S. at 524 (quoting 1989 ABA Guidelines Section 11.4.1(c)), at 93 (emphasis omitted). Strickland announced that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. In Wiggins, the Supreme Court elaborated on an attorney's duty to investigate. 539 U.S. at 523. The Court explained that the relevant inquiry is "whether the investigation supporting counsel's decision not to introduce mitigating evidence of [the defendant's] background was itself reasonable." Id. Moreover, "in assessing the reasonableness of an attorney's investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Id. at 527.

Presenting cumulative evidence, or evidence that Duffey now claims would have made a stronger case, does not rise to the level of ineffectiveness. In Hedrick v. True, the Fourth Circuit concluded that "even though the trial counsel did not uncover and present all evidence of Hedrick's family history of drug and alcohol abuse, incompetent parenting, and his mother's criminal record (welfare fraud), this did not arise to the level of ineffective assistance of counsel. 443 F.3d 342, 351 (4th Cir. 2006). There "comes a point at which evidence ... can reasonably be expected to be only cumulative, and the search for it distractive from more important duties." Van Hook, 130 S. Ct. at 19. As with Strickland and Van Hook, trial counsel's "decision not to seek more" mitigating evidence from the defendant's background "than was already in hand" fell "well within the range of professionally reasonable judgments." Van Hook quoting Strickland, 466 U.S. at 699.

This is not a case in which the Duffey's attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S. at 525, or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393 (2005). Instead, it is analogous to Strickland, where defense counsel's decision not to seek more mitigating evidence was reasonable.

Duffey's counsel acted well within reasonable professional bounds as set by the Supreme Court of the United States. Therefore, the Pennsylvania Supreme Court's decision is not contrary to, or an unreasonable application of, clearly established federal law in this sub-claim, and therefore it fails.

Claim I.C. Counsel Elicitation of Prejudicial and Misleading Testimony from his own Witness

Trial counsel called Thomas Gilhooley, a prison social worker, to testify during the penalty phase. Gilhooley testified that Duffey told him details of the murder, and then Gilhooley described those details in his testimony. Duffey contends that calling Gilhooley to testify further inflamed the jury with gruesome details of the murder.

Duffey believes Gilhooley's testimony further undermined his defense by negating mental health mitigation.

State Court

Trial counsel was able to articulate his reasoning for calling Gilhooley and how that testimony supported his trial strategy. The PCRA Court credited trial counsel's testimony, concluding that counsel acted in his client's best interest since he used Gilhooley's testimony to raise questions about Duffey's mental state. Duffey-III at 69. The Pennsylvania Supreme Court agreed with the PCRA Court, concluding "counsel's assistance is deemed constitutionally effective if he chose a particular course that had some reasonable basis designed to effectuate his client's interests." Id. citing Kenneth Miller, 819 A.2d at 517.


Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. Strickland, 466 U.S. at 690. As stated earlier, it is easy to second-guess counsel's strategy after it has proved unsuccessful. Id. at 466 U.S. at 689. Trial counsel used Gilhooley's testimony to support his overarching trial strategy. Gilhooley was called as a defense witness during the sentencing hearing. At that point, the jury had already heard Duffey's multiple confessions and had already found him guilty of murder. Trial counsel believed that Gilhooley could provide beneficial testimony as to Duffey's mental health while his testimony on Duffey's confession would be negligible. SCR 151 at 126-128 (Tr. of PCRA, Dec. 17, 1999). Specifically, trial counsel used Gilhooley's testimony to counter the Commonwealth's argument that Duffey killed the victim because he did not want to go back to jail. Trial counsel's position was that if Duffey did not want to return to jail, he would not have confessed six times (one of those times to Gilhooley) in such a short time after the murder. Id. at 133.

Trial counsel also used Gilhooley's testimony to show Duffey's confused mental state. Gilhooley had issued a report describing Duffey's irrational behavior, hallucinations and voices he was hearing prior to the murder. Id. at 124, 126 and 128. This report helped to support trial counsel's strategy to create reasonable doubt as to Duffey's mental health that he could not obtain from the mental health experts appointed to the case. Id. at 127-128 and 131.

Trial counsel's actions had a reasonable basis designed to effectuate his client's interests. Duffey has failed to show that trial counsel's strategy was unsound. Thomas v. Varner, 428 F.3d at 499-500. Counsel's conduct fell within the wide range of reasonable professional assistance. The Pennsylvania Supreme Court reasonably applied ...

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