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Antyane Robinson v. Jeffrey Beard

September 30, 2011

ANTYANE ROBINSON, PETITIONER
v.
JEFFREY BEARD, COMMISSIONER, PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL.,
RESPONDENTS



The opinion of the court was delivered by: Chief Judge Kane

THIS IS A CAPITAL CASE

MEMORANDUM

I. INTRODUCTION

Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by petitioner Antyane Robinson ("Robinson"), an inmate currently incarcerated at the State Correctional Institution at Greene ("SCI-Greene"), in Waynesburg, Pennsylvania. Robinson challenges his 1997 conviction and sentence in the Court of Common Pleas of Cumberland County, Pennsylvania. For the reasons that follow, the petition will be denied.

II. BACKGROUND

On March 13, 1997, Robinson was found guilty of first degree murder, attempted criminal homicide, and related charges following a jury trial in the Court of Common Pleas of Cumberland County, Pennsylvania ("trial court" or "Cumberland county court"). The Pennsylvania Supreme Court summarized the relevant facts as follows:

[Robinson] dated Tara Hodge on and off during the time period beginning in early 1993 until February 1995, when Hodge discovered that [Robinson] had another girlfriend. They did not see each other for over a year, until March 30, 1996, when [Robinson] re-established an intimate relationship with Hodge. Between March 30, 1996 and the night of the incident in question, Hodge was with [Robinson] for one night on both March 30 and April 30, four days between May 10 and 13, and one night on June 1, 1996. Hodge met Rashawn Bass on May 26, 1996, after she responded to a personal ad in the local paper. On June 10, 1996, Hodge broke off the relationship with [Robinson] by letter.

On the evening of June 29, 1996 Hodge worked the 2 p.m. to 10 p.m. shift at Wal-Mart. Following her shift, Hodge met Bass at her apartment, located in Carlisle, Pennsylvania, where they had a pizza delivered. After eating the pizza, Bass took a shower. Shortly after midnight, while Bass was in the shower, [Robinson] arrived at the apartment of Tara Hodge. Hodge let him into her apartment. Upon finding that Hodge had a guest at her apartment [Robinson] and Hodge had an argument. [Robinson] requested that Hodge ask Bass to leave. When Hodge refused to ask Bass to leave, [Robinson] pulled a gun out of his "sweats," which he pointed at Hodge and shot her. Hodge heard three shots. [Robinson] ran by Hodge, and she fell to the floor, unconscious.

At about 1 a.m. on the morning of June 30, 1996, Hodge regained consciousness in a pool of her own blood. She then entered the bathroom where she saw that Bass was dead inside the shower stall. She was able to drag herself to her next door neighbor's home. The police arrived at the neighbor's house and saw that Hodge had a head wound. Unable to speak, Hodge wrote a note directing the police to her apartment. The ambulance arrived and took Hodge to the hospital. The officer went to Hodge's apartment and found Bass' body in the shower. After leaving the apartment, the officer went to the hospital to speak with Tara Hodge. At the hospital, Hodge identified [Robinson] as the person who had shot her.

Rashawn Bass had been shot seven times and died almost instantly from multiple gunshot wounds. Bass was shot in the ear, the left side of his head, his upper and lower right chest, the lower left chest, the side of his left arm, and the back of his right hand. Twelve empty 9 millimeter shell casings were found in the apartment. The bullets from the empty shell casings were all fired from the same gun, which was manufactured by one of four possible companies, one of which was Lorcin. In Tara Hodge's apartment, the police found a notebook containing [Robinson's] pager number. Following this, the police obtained an arrest warrant charging [Robinson] with criminal homicide of Rashawn Bass, attempted criminal homicide of Tara Hodge and other related charges. The arrest warrant was forwarded to Prince George's County, Maryland, where [Robinson] was residing at his parents' home. The following day, July 1, the Prince George's County police paged [Robinson]. Twenty minutes later, [Robinson] returned the call from a local shopping center. The police did not answer the call, but proceeded directly to the shopping center where they observed [Robinson] playing video games. The police then arrested [Robinson] at 4:00 p.m.

At the time of arrest, [Robinson] identified himself as Joseph Smith. The police took [Robinson] to the homicide unit of the Prince George's County police department, where they were met by Detective David Fones and Corporal Hayes of the Carlisle police department at 5:30 p.m. They identified themselves to [Robinson] as police officers from the Borough of Carlisle and told him they wished to question him about an incident that occurred there. [Robinson] was advised of his Miranda rights and signed a written waiver. [Robinson] told police that he had last been in Carlisle at the end of May or beginning of June. In response to whether he knew anyone in Carlisle, [Robinson] stated that he knew Tara Hodge and her family. [Robinson] also told police that he had spent June 29 through the afternoon of June 30 in Washington, D.C., Maryland and Virginia. [Robinson] also told police that he had owned a 9 millimeter handgun, which had been stolen by his niece's boyfriend before June, and 380 handgun, which he had sold. At 6:00 p.m., Detective Fones told [Robinson] he was charged with criminal homicide in Carlisle and read a portion of the arrest warrant to him. [Robinson] then asked whether "Tara is okay." The detective told [Robinson] that she was okay and that she had identified [Robinson] as the shooter. [Robinson] then dropped his head and moved it side to side. He denied any involvement in the shootings.

The police conducted a search of [Robinson's] room in his parents' home in Fort Washington, Maryland. In the bedroom, they found documents in a locked safe relating to a 9 millimeter Lorcin handgun. They did not find the weapon. They also found a picture of [Robinson] holding a 9 millimeter Star handgun, as well as a Federal 44 SPL revolver with ammunition. The police also found the letter from Tara Hodge postmarked June 10, 1996. The police also searched the residence of a woman whom [Robinson] was dating. They found some of [Robinson's] belongings at her house, including 9 millimeter ammunition.

Commonwealth v. Robinson, 721 A.2d 344, 349-50 (Pa. 1998) ("Robinson-I"). As stated above, the jury found Robinson guilty of all the charges on March 13, 1997. The penalty phase commenced on the following day, March 14, 1997. During the penalty phase, the jury found two aggravating circumstances: (1) Robinson knowingly created a grave risk of death to another, see 42 Pa. Cons. Stat. § 9711(d)(7); and (2) Robinson committed a killing while in the perpetration of a felony, see 42 Pa. Cons. Stat. § 9711(d)(6). The jury also found two mitigating circumstances: (1) Robinson's youth, see 42 Pa. Cons. Stat. § 9711(e)(4); and (2) Robinson's future contributions to society, see 42 Pa. Cons. Stat. § 9711(e)(8). The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and returned a verdict of death, see 42 Pa. Cons. Stat. § 9711(c)(1)(iv). On April 1, 1997, the trial court formally imposed a sentence of death for first degree murder and a consecutive term of imprisonment of six years, nine months to twenty years for aggravated assault.

Following the judgment of sentence, the trial court appointed collateral counsel, David J. Foster, Esquire, pursuant to the Capital Unitary Review Act, 42 Pa. Cons. Stat. §§ 9570 et seq. However, on August 11, 1997, the Supreme Court of Pennsylvania permanently suspended most sections of that Act. Consequently, the trial court vacated the appointment of collateral counsel and directed Robinson's trial counsel to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. By opinion dated November 13, 1997, the trial court denied all issues presented in that appeal.

Represented by trial counsel, Arla M. Waller, Esquire, and Ellen K. Barry, Esquire, Robinson timely filed a direct appeal to the Pennsylvania Supreme Court, raising six (6) claims of trial court error. Specifically, Robinson asserted that the trial court (1) erroneously admitted several pieces of irrelevant evidence at trial; (2) erred in not allowing Robinson's mother to testify as to why Robinson had guns in the house; (3) erred in refusing to give a jury instruction on voluntary manslaughter; (4) erred in failing to include any life qualification questions during voir dire of potential jurors; (5) failed to rehabilitate certain jurors after it was established that they would not vote to impose the death penalty; and (6) failed to give a jury instruction that a life sentence in the Commonwealth of Pennsylvania means life without the possibility of parole, see Simmons v. South Carolina, 512 U.S. 154 (1994). See Robinson-I. The Pennsylvania Supreme Court affirmed the judgment of sentence upon direct appeal in an opinion dated November 24, 1998, and reargument was denied on January 26, 1999. Id.

Following disposition of the direct appeal, on March 2, 1999, the trial court again appointed Attorney Foster for the purpose of filing a petition for collateral relief on behalf of Robinson under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541 et seq. Thereafter, then-Governor of Pennsylvania Thomas Ridge signed a warrant, scheduling Robinson's execution for May 12, 1999. On April 20, 1999, the Pennsylvania Supreme Court granted Robinson's emergency request for a stay of execution pending the filing and consideration of a petition for writ of certiorari before the United States Supreme Court.

On January 10, 2000, the United States Supreme Court denied Robinson's petition for writ of certiorari. Robinson v. Pennsylvania, 528 U.S. 1082 (2000). Thereafter, then-Governor Ridge signed a second warrant, scheduling Robinson's execution for March 28, 2000. However, by order dated March 10, 2000, the trial court granted Robinson's motion for a stay of execution.

On October 16, 2000, Robinson timely filed a PCRA petition. In that petition, Robinson raised claims relating to the following areas: (1) pretrial issues; (2) trial issues; (3) jury charge issues; (4) penalty phase issues; and (5) sentencing issues. (See Doc. No. 33-5, Ex. 5, Commonwealth v. Robinson, No. 96-1183 (Cumb. Co. Apr. 22, 2002).) A full evidentiary hearing on the PCRA petition was held before the trial court, now acting as PCRA court, on October 10 and 18, November 29, and December 14, 2001. (See id.) On April 22, 2002, the PCRA court denied the PCRA petition. (See id.)

Robinson's timely appeal to the Pennsylvania Supreme Court raised the following issues:

1. Trial counsel was ineffective for failing to develop and introduce evidence warranting a voluntary manslaughter charge and verdict and for failing to properly argue on direct appeal that [Robinson] was entitled to an instruction on voluntary manslaughter.

2. His death sentence is based upon an improper application of the perpetration of a felony aggravating circumstance and counsel was ineffective in failing to litigate claims about this aggravator.

3. Trial counsel's failure to investigate and present at sentencing the readily available evidence of [Robinson's] increasingly paranoid behavior, paranoid schizophrenia, family dysfunction and abuse, diminished capacity and emotional trauma at the time of the offenses deprived him of his constitutional right to effective assistance of counsel.

4. The sentencing jury, after hearing argument about his future dangerousness, was never instructed that, if sentenced to life, [Robinson] would be ineligible for parole.

5. Trial counsel was ineffective for failing to object to the Commonwealth's cross-examination of [Robinson's] mother at the penalty phase.

6. [Robinson] was tried while incompetent and his counsel was ineffective.

7. The Commonwealth's continuous misconduct throughout [Robinson's] capital trial and sentencing prejudiced [Robinson].

8. Defense counsel failed to object to irrelevant and improper victim impact testimony and argument.

9. Trial counsel was ineffective for failing to object to the court's erroneous charge during the guilt phase wherein the court repeatedly stated if [Robinson] had specific intent to kill, the killing was with malice.

10. There was insufficient evidence to support the jury's finding of the (d)(7) aggravating circumstance, and the trial court failed to include the required limiting instruction rendering the (d)(7) aggravating circumstance vague and overbroad, and counsel was ineffective in failing to litigate these.

11. Trial counsel was ineffective for failing to effectively argue on direct appeal that the court's refusal to admit testimony of [Robinson's] mother about why he had guns violated [Robinson's] constitutional rights to due process and fair trial, and the refusal to admit this testimony prejudiced [Robinson].

12. The proportionality review performed by this Court was constitutionally defective.

Commonwealth v. Robinson, 877 A.2d 433, 438 n.1 (Pa. 2005) ("Robinson-II").

On June 22, 2005, the Pennsylvania Supreme Court affirmed the judgment of the PCRA court. Id. The supreme court concluded that five of Robinson's issues constituted attempts to re-litigate claims that the court had dismissed in his direct appeal. Specifically, the court found that Robinson's newly-raised assertion of ineffectiveness of counsel for failing to litigate those claims would not revive the underlying claims. See id. at 438-49. The court found Robinson's remaining issues to be without merit and affirmed the PCRA court's decision.

On August 8, 2005, Robinson timely filed the instant petition for writ of habeas corpus (Doc. No. 1), as amended on January 19, 2006 (Doc. No. 21), in which he alleges eighteen (18) claims for relief. Specifically, those claims are set forth as follows:

1. Petitioner's trial counsel were ineffective for failing to develop and introduce available evidence supporting a voluntary manslaughter charge and verdict and for failing to properly argue on direct appeal that Petitioner was entitled to an instruction on voluntary manslaughter; the trial court erred when it refused to give a defense requested jury instruction on the charge of voluntary manslaughter;

2. Because of the Commonwealth's continuous misconduct throughout Petitioner's capital trial and sentencing, Petitioner was prejudiced and a new trial and sentencing proceeding must be granted;

3. Trial counsel's failure to investigate and present at sentencing the readily available evidence of Mr. Robinson's increasingly paranoid behavior, paranoid schizophrenia, family dysfunction and abuse, diminished capacity and emotional trauma at the time of the offenses deprived him of his constitutional right to the effective assistance of counsel; trial counsel was laboring under an impermissible conflict of interest;

4. Petitioner's conviction should be vacated because he was tried while incompetent and his counsel were ineffective;

5. Mr. Robinson is entitled to relief because his death sentence is based upon an improper application of the "perpetration of a felony" aggravating circumstance and counsel were ineffective in failing to litigate claims about this aggravator;

6. Petitioner is entitled to relief from his death sentence because there was insufficient evidence to support the jury's finding of the (d)(7) aggravating circumstance, and the trial court failed to include the required limiting construction, rendering the (d)(7) aggravating circumstance vague and overbroad, and counsel were ineffective in failing to litigate these claims;

7. Trial counsel's failure to object to the introduction of irrelevant and otherwise inadmissible evidence of uncharged crimes, failure to ask for a cautionary instruction, and the trial court's failure to give such an instruction, violated Mr. Robinson's constitutional rights;

8. Mr. Robinson's death sentence must be vacated under the Sixth, Eighth, and Fourteenth Amendments because the sentencing jury, after hearing argument about his future dangerousness, was never instructed that, if sentenced to life, Mr. Robinson would be ineligible for parole;

9. Defense counsel failed to object to irrelevant and improper victim impact testimony and argument;

10. The court's refusal to admit the testimony of Petitioner's mother about why Petitioner had guns violated Petitioner's constitutional rights to due process and a fair trial and Petitioner was prejudiced as a result;

11. Mr. Robinson's rights guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated when defense counsel ineffectively failed to object to the Commonwealth's irrelevant, prejudicial and inflammatory cross-examination of Mr. Robinson's mother at the penalty phase;

12. Defense counsel were ineffective for failing to object to the court's erroneous charge during the guilt/degree-ofguilt/innocence phase of trial wherein the court repeatedly stated that if Mr. Robinson had a specific intent to kill, the killing was with malice;

13. Petitioner's death sentence must be vacated because the Pennsylvania Supreme Court failed to provide him meaningful proportionality review in violation of his statutory rights and rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;

14. The trial court improperly excluded prospective jurors who expressed an opposition to the death penalty, in violation of Petitioner's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments;

15. Petitioner was denied important rights during the extradition process from Maryland, including his right to counsel;

16. Lethal injection in Pennsylvania violates the First, Eighth and Fourteenth Amendments to United States Constitution;

17. Ineffective assistance and preservation;

18. Petitioner is entitled to relief because of the cumulative prejudicial effect of the errors in this case.

(Doc. No. 21.) Respondents responded to the habeas petition on March 20, 2006. (Doc. No. 22.) Robinson filed his reply brief on April 18, 2006. (Doc. No. 28.) This matter is now ripe for disposition.

III. STANDARDS OF REVIEW

On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (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 68.

A. Exhaustion and Procedural Default

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts."*fn1 Castille v. Peoples, 489 U.S. 346, 351 (1989). To "fairly present" a claim, a petitioner must present its "factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite "book and verse" of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278 (1971), he must "give the State 'the opportunity to pass upon and correct' alleged violations of its prisoners' federal rights" before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard, 404 U.S. at 275).

Under this exhaustion rule, a federal court must dismiss without prejudice habeas petitions that contain any unexhausted claims. Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). This dismissal requirement does not apply, however, in cases where the state courts would not consider the unexhausted claims because they are procedurally barred by state law. Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). However, in that situation the petitioner must still overcome the concomitant doctrine of procedural default. Id. at 683.

The doctrine of procedural default bars federal habeas relief when a state prisoner has defaulted on his federal claims in state court pursuant to an independent and adequate state procedural rule. Id. For example, failure to present federal habeas claims to the state courts in a timely fashion results in procedural default. See O'Sullivan, 526 U.S at 848 (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). Like a state prisoner who has failed to exhaust his state remedies, "a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Coleman, 501 U.S. at 732. The doctrine of procedural default therefore ensures that a state prisoner cannot evade the exhaustion requirement of § 2254 by defaulting his federal claims in state court. Id.

However, a federal habeas court can review the merits of procedurally defaulted claims if the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will result if the court does not review the claims. See McCandless, 172 F.3d at 260; Coleman, 501 U.S. at 750-51; Caswell v. Ryan, 953 F.2d 853, 861-62 (3d Cir. 1992). To demonstrate "cause" for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). To demonstrate "actual prejudice," the petitioner must show "not merely that the errors . . . created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions."United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

Alternatively, a federal court may excuse a procedural default if the petitioner demonstrates that failure to review the claim will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 224 (3d Cir. 2001). The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). To establish such a claim, a petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Further, actual innocence "does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty." Id. at 329.

In the present case, Robinson asserts in Claim 16 that lethal injection in Pennsylvania violates the First, Eighth, and Fourteenth Amendments to the United States Constitution. Upon review of the record, the Court finds that this claim is procedurally defaulted. As discussed above, a claim is procedurally defaulted if the petitioner failed to exhaust his state court remedies and is barred from presenting his claim to the state courts due to an independent and adequate state procedural rule. Coleman, 502 U.S. at 732. Robinson's claim relating to the administration of lethal injection is unexhausted because he never presented it to the state courts, either on direct appeal or collateral attack. However, a new state habeas petition would be deemed time-barred under Pennsylvania law, see 42 Pa. Cons. Stat. § 9545(b) (requiring the filing of any petition for post conviction relief, including a second or successive petition, within one year of the date the judgment becomes final),*fn2 and thus exhaustion is excused, but the claim is deemed procedurally defaulted. In order to have the Court consider the merits of his claim, Robinson must show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse default. Here, Robinson claims that his failure to develop this claim in state court was the result of "the state court's clear and unequivocal precedent precluding disclosure of the Department of Corrections protocol for conducting lethal injection." (Doc. No. 27 at 58.) While this assertion may provide an explanation as to why a state court may deny such a claim, the Court fails to understand how it explains why Robinson failed to even raise it in state court. Further and without elaboration, Robinson claims in the alternative that Pennsylvania's refusal to disclose the lethal injection protocols demonstrates cause and prejudice to excuse procedural default, and that his execution under the present system constitutes a miscarriage of justice.*fn3 (Id.) The Court rejects these contentions and thus will deny habeas relief on this claim.*fn4

Nevertheless, the Court is not precluded from addressing the merits of the exhausted claims. See Wenger, 266 F.3d at 227-28 ("A petition containing unexhausted but procedurally barred claims in addition to exhausted claims, is not a mixed petition requiring dismissal under Rose [v. Lundy, 455 U.S. 509 (1982)]. Although the unexhausted claims may not have been presented to the highest state court, exhaustion is not possible because the state court would find the claims procedurally defaulted. The district court may not go to the merits of the barred claims, but must decide the merits of the claims that are exhausted and not barred.") (quoting Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).

B. Merits

Section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits in state court shall not be granted unless:

(1) [the decision] was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) [the decision] 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). To establish that the decision was contrary to federal law, "it is not sufficient for the petitioner to show merely that his interpretation of 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 v. Superintendent, 171 F.3d 877, 888 (3d Cir. 1999) (emphasis in original). Similarly, 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.

Further, 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. A petitioner may only rebut this presumption with clear and convincing evidence of the state court's error. § 2254(e)(1); 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). This presumption of correctness applies to both explicit and implicit findings of fact. Campbell v. Vaughn, 209 F.3d 280, 285-86 (3d Cir. 2000). Consequently, a habeas petitioner "must clear a high hurdle before a federal court will set aside any of the state court's factual findings." Mastracchio v. Vose, 274 F.3d 590, 598 (1st Cir. 2000).

Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (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. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see alsoTorres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 317 (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)*fn5 ). 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 v. Taylor, 529 U.S. 362, 410 (2000); 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 alsoWilliams, 529 U.S. at 408-10.

Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:

[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the Court concludes that constitutional error occurred in the state court, the Court may not grant relief unless the error "had a substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 631; see also Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008). See also O'Neal v. McAninch, 513 U.S. 432, 436 (1995) ("When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless.") (quotations omitted).

Of course, AEDPA scrutiny is applicable only if the state court adjudicated the petitioner's claims "on the merits." 28 U.S.C. § 2254(d); see Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). " An 'adjudication on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev'd on other grounds, Rompilla v. Beard, 545 U.S. 374 (2005) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). Further, an "adjudication on the merits" can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). However, "to qualify as an 'adjudication on the merits,' the state court decision must finally resolve the claim. This means that the state court's resolution of the claim must have preclusive effect." Id.*fn6

(citing Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311)). Where a state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential AEDPA standards do not apply, and the federal court must exercise de novo review over pure legal questions and mixed questions of law and fact. Simmons v. Beard, No. 05-9001, 2009 WL 2902251, at *6 (3d Cir. Sept. 11, 2009) (citing Appel, 250 F.3d at 210) (precedential). However, the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence.*fn7 Simmons, 2009 WL 2902251, at *6 (citing Appel, 150 F.3d at 210).

IV. DISCUSSION

Robinson's habeas petition contains eighteen claims for relief and involves each phase of the state court proceedings: (1) pretrial; (2) trial; (3) penalty; and (4) claims relating to proceedings generally.*fn8 Five of these issues assert ineffective assistance of trial counsel. For clarity and for purposes of discussion, the Court will address Robinson's ineffective assistance claims, as well as his other claims, in chronological order, first setting forth the standard for ineffective assistance of counsel and then addressing the merits of the claims. Any other relevant standards will be presented at the time the particular relevant issue is addressed.

A. Ineffective Assistance of Counsel

The Sixth Amendment guarantees an accused in a criminal prosecution the right to assistance of counsel for his defense. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See alsoWiggins v. Smith, 539 U.S. at 510, 521 (2003) (setting out the Strickland test); Williams, 529 U.S. at 390-91 (same). The first prong of the Stricklandtest requires a defendant to establish that his attorney's representation fell below an objective standard of reasonableness by committing errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. It follows that when a petitioner claims that his counsel failed to raise a claim that the court determines to be meritless, habeas relief under Stricklandis not available. SeeStrickland, 466 U.S.at 691 (failure to pursue "fruitless" claims "may not be challenged as unreasonable.") A court must indulge a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;" that is, the petitioner must overcome the presumption that, under the totality of the circumstances, the challenged action "might be considered sound trial strategy." Id. at 688-89, 690-92. The question is not whether counsel did not err, but whether counsel exercised the customary skill and knowledge that normally prevailed at the time and place of counsel's conduct. Id. To that end, a court must conduct an objective review of counsel's performance measured for reasonableness under prevailing professional norms, including a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time. Id. at 686; Wiggins, 539 U.S. at 522-27; see also Bobby v. Van Hook, - U.S. -, 130 S. Ct. 13, 16-20 (2009).

The second prong of Stricklandrequires a petitioner to show that "the deficient performance prejudiced the defense." Id. at 687. To prove prejudice, a petitioner "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 694. This standard "is not a stringent one;" it is less demanding than the preponderance standard. Baker v. Barbo, 177 F.3d 149, 154 (3d Cir. 1999). Further, a reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. Strickland, 466 U.S. at 697. If it is easier to dispose of an ineffectiveness claim for lack of requisite prejudice, that course should be followed. Id.

Further, the reviewing court must evaluate counsel's performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see alsoJacobs v. Horn, 395 F.3d 92, 106-07 (3d Cir. 2005). It is the petitioner's burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see alsoJacobs, 395 F.3d at 102.

At the time the state courts reviewed the claims that Robinson's counsel was arguably ineffective, Strickland's familiar two-pronged test was the "clearly established federal law" applicable to ineffective assistance of counsel claims. Under Pennsylvania state jurisprudence, a three-prong test is applied to ineffective assistance of counsel claims, but is, in substance, identical to the Strickland test. See, e.g., Commonwealth v. Pierce, 527 A.2d 973, 975-77 (Pa. 1987). The Third Circuit Court of Appeals has held that Pennsylvania's test for assessing ineffective assistance of counsel claims is not contrary to Strickland. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Thus, under § 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. Jacobs, 395 F.3d at 107 n.9; Werts, 228 F.3d at 204. Further, under § 2254(d)(2), the relevant inquiry is whether the state court made unreasonable factual determinations when deciding whether the petitioner received constitutionally effective counsel. Bond, 539 F.3d at 279.

Finally, Robinson's claims of ineffective assistance of appellate counsel must be examined under the same Stricklandstandards cited above: 1) whether counsel's performance was unreasonable; and 2) whether counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. If a court finds no merit in a claim of ineffective assistance by trial counsel, appellate counsel cannot be found ineffective for failing to raise those same meritless issues on appeal. SeeUnited States v. Cook, 45 F.3d 388, 392-93 (10th Cir. 1995) ("When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue. If the omitted issue is without merit, counsel's failure to raise it does not constitute constitutionally ineffective assistance of counsel.") (citations and quotations omitted). Stated otherwise, if there is no ineffective assistance of counsel at the trial level, there can be no ineffective assistance of counsel on appeal for failure to raise the same issue. SeeJones v. Barnes, 463 U.S. 745, 754 (1983) (finding a criminal defendant has no constitutional right to insist that appellate counsel advance every non-frivolous argument the defendant wants raised); Sistrunk v. Vaughn, 96 F.3d 666, 670 (3d Cir. 1996) (holding appellate counsel does not have a duty to raise every possible claim).

B. Pretrial Issue - Claim Fifteen - Robinson's Constitutional Rights Were Violated During the Extradition Process from Maryland

Robinson contends that he is entitled to habeas relief because his constitutional rights were violated when Maryland State officials violated the terms of the Uniform Criminal Extradition Act during Robinson's extradition process from Maryland to Pennsylvania. Specifically, Robinson asserts that he should have received an extradition hearing with a court-appointed attorney in Maryland prior to being transported to Pennsylvania. Robinson raised this issue in his PCRA petition. In the instant petition, he raises this claim in the context of counsel's ineffectiveness for failing to properly litigate it prior to trial and on direct appeal.

The background of this claim is as follows. At 8:30 a.m. on June 30, 1996, the day of the shootings, an arrest warrant was issued for Robinson charging him with criminal homicide, attempted criminal homicide, and other charges.*fn9 (Doc. No. 33-4, Ex. 4, Op. on Mot. to Suppress Evidence, Feb. 14, 1997, 2.) Pennsylvania police suspected that Robinson had fled the Commonwealth to his home in Maryland. (Id.) As a result, a fugitive warrant was entered into the National Crime Information System at 2:41 p.m. that same day. (Id.) Maryland police arrested Robinson on that warrant at 4:00 p.m. the next day, July 1, 1996. (Id.)

Robinson was taken to the homicide unit of the Prince George's County, Maryland office, and interviewed by two Pennsylvania police officers at 5:30 p.m. that same day. (Id.) The officers identified themselves as Carlisle, Pennsylvania police officers and informed him that they were investigating the June 30, 1996 incident. (Id.) Robinson was advised of his Miranda rights and signed a written waiver. (Id.) The officers then questioned him about his involvement in the June 30, 1996 incident, and at 6:00 p.m., told Robinson that he was charged with criminal homicide in Carlisle, Pennsylvania. (Id. at 2, 3.) One of the officers read the arrest warrant to Robinson, who denied any knowledge of the shootings. (Id. at 3.)

Robinson was then booked and processed by Maryland authorities. (Doc. No. 21 at 210.) On July 2, 1996, before a Maryland judge he was formally arraigned on all the charges and the fugitive warrant. (Id.) Robinson was not represented by an attorney during this proceeding. (Id.) After the arraignment, Robinson was held by Maryland authorities until sometime between July 10 and 12, 1996, at which time Pennsylvania authorities extradited him to the Commonwealth. (Id.)

As stated above, Robinson raised this claim on collateral review. The PCRA court denied the claim, finding that any remedy Robinson may have had as a result of a denial of constitutional rights by the Maryland court would have been in Maryland, not Pennsylvania. (Doc. No. 33-5 at 11.) In support, the court stated, The Uniform Extradition Act allows a detainee in the arresting state to test the legality of his arrest and transfer to another state. See Commonwealth v. Jacobs, 319 Pa. Super. 531 (1983). Once Pennsylvania received [Robinson] under a Maryland court order of extradition, [Robinson] may not challenge the extradition proceedings in this state. This is not a situation where a person was arrested in another state on a warrant issued in Pennsylvania, and returned to Pennsylvania without the benefit of legal process in the state where the arrest was made. (Id. at 10-11.)

Upon review, the Court finds this claim to be without merit. The United States Supreme Court has held that under the Extradition Clause of the United States Constitution, Article IV, § 2, cl. 2, and the Extradition Act of 1793, 18 U.S.C. § 3182, the asylum state (here Maryland) must deliver a fugitive to the demanding state's agent (here Pennsylvania) if a properly certified indictment or affidavit charging a crime is lodged against the fugitive. California v. Superior Court, 482 U.S. 400, 407 (1987). At a pre-extradition hearing, the asylum state may do no more that ascertain whether the requisites of the Extradition Act have been met; the asylum state may make only four inquiries:

(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is a person named in the request for extradition; and (d) whether the petitioner is a fugitive.

Id. at 408 (quoting Michigan v. Doran, 439 U.S. 282, 289 (1978)). In the context of a later habeas corpus proceeding, the individual being extradited is only permitted these same inquiries. Morrison v. Stepanski, 839 F. Supp. 1130, 1142 (M.D. Pa. 1993).

A fugitive may challenge the legality of extradition proceedings by filing a habeas corpus petition in either a state or federal court located in the asylum state. U.S. ex rel. Davis v. Camden County Jail, 413 F. Supp. 1265, 1268 (D. N.J. 1976) (citing U.S. ex rel. Darcy v. Superintendent of County Prisons of Philadelphia, 111 F.2d 409, 411 (3d Cir. 1940)). Thus, while Robinson was detained in Maryland, he could have filed a petition for writ of habeas corpus with the United States District Court for the District of Maryland in order to test the validity of the extradition process under Article 4, section 2, clause 2 of the United States Constitution and the Extradition Act. Once extradited, however, habeas corpus relief is not available to a state prisoner from a federal district court in the demanding state on the grounds that the extradition process in the asylum state was unlawful. Camden County Jail, 413 F. Supp. at 1268 (citing Hunt v. Eyman, 405 F.2d 384 (9th Cir. 1968)).

The record demonstrates that Robinson did not challenge his extradition proceedings prior to being transported to Pennsylvania. The PCRA court determined that once Robinson was received in Pennsylvania under a Maryland court order of extradition, he could not challenge those extradition proceedings in Pennsylvania. The court stated that, "[a]ny remedy [Robinson] may have had if there was a violation of his rights by the court in Maryland, would have been in Maryland." (Doc. No. 33-5 at 10.) In light of the relevant case law, the PCRA court's determination that this claim has no merit is neither contrary to nor an unreasonable application of the law. See 28 U.S.C. § 2254(d)(1)-(2). Further, because this underlying claim has no merit, Robinson's instant claim of ineffectiveness of trial and appellate counsel fails.

C. Pretrial Issue - Claim Four - Ineffective Assistance of Counsel for Failure to Litigate Robinson's Competency to Stand Trial and Ability to Participate in His Defense

Robinson contends that trial counsel were ineffective when, prior to trial, they failed to litigate his competency to stand trial and ability to participate in his defense. As relief, he seeks a new trial. The Pennsylvania Supreme Court addressed this claim on review of the PCRA court's decision denying relief. See Robinson-II, 877 A.2d at 439-41. Thus, the claim is exhausted and not procedurally defaulted, and the Court will apply § 2254(d) to the state court decision.

1. Background

a. Pretrial and Trial

Following Robinson's arrest in Maryland and subsequent return to Cumberland County, Pennsylvania, the trial court appointed the Public Defender to represent Robinson. (Doc. No. 33-10, Trial Ct. Order, Sept. 24, 1996, 31.) The Chief Public Defender, Taylor Andrews, Esquire, subsequently assigned Assistant Public Defenders Arla Waller, Esquire, and Ellen Barry, Esquire, to represent Robinson.*fn10 While each attorney had at least five years of experience in the Public Defender's office, neither attorney had previously participated in a capital case that went to trial. (Doc. No. 37, Notes of Testimony, PCRA Hearing, 10/10/2001 ("PCRA NT 10/10/01") 52, 124.)

At the PCRA hearing, Attorney Andrews testified that he was in contact on a regular basis with Attorneys Waller and Barry about the preparation of Robinson's case. (PCRA NT 10/10/01 9-10.) Attorney Andrews approved the hiring of Stephen Ragusea, Ph.D., a board-certified clinical psychologist, to evaluate Robinson for mental issues. (Id.) Dr. Ragusea met with Robinson at Cumberland County Prison for approximately ten to fifteen minutes in November 1996.*fn11 (Notes of Testimony, PCRA Hearing, 10/18/2001 (Doc. No. 37, Notes of Testimony, PCRA Hearing 10/18/01 ("PCRA NT 10/18/01") 7-8.) At first, Robinson was open and interactive with Dr. Ragusea, but when he discovered that Dr. Ragusea was a psychologist, he immediately acted "haute, . . . elevated, better, holier than thou, and then asked that he speak with his lawyer and refused to talk with me any further." (Id. at 8.) Dr. Ragusea also observed Robinson acting overly suspicious and overly guarded. (Id. at 9.) Overall, Dr. Ragusea considered this interaction with Robinson evaluative in nature even though it was minimal. (Id. at 13.) However, because of this minimal interaction with, and lack of cooperation from, Robinson, defense counsel relied solely upon a report from the supervising psychiatrist at Norristown State Hospital, where Robinson was involuntarily committed. (PCRA NT 10/10/01 33, 135; PCRA NT 10/18/01 10.)

By November 1996, the relationship between Robinson and Attorneys Waller and Barry had begun to deteriorate to the point where Robinson was "totally uncooperative." (Id. at 53.) At that point, he was either walking out in the middle of meetings with his attorneys, or not coming to scheduled meetings at all. (Id. at 53-54.) To his attorneys, Robinson appeared paranoid and untrusting of counsel. (Id. at 54.) According to Attorney Barry, when we were dealing with [Robinson] in 1996 we were viewing his contumacy and difficulties with us as being volitional and that his choice to deal - - he was choosing not to deal with us and to walk away from us and to be obstinate and difficult, and that viewed through a different glass, and had we sent the information to a psychiatrist, we may have learned that it was not volitional, that he did not have a choice, that he was so ill that he would - - that he was not able to cooperate with us, which is the second prong of the competency issue.

I believe he understood what the charges were against him, and then the second prong of that is whether you can cooperate in your defense. We viewed his lack of cooperation as being volitional. Now, looking at it differently, it may not have been.

(Id. at 125.) Additionally, Attorney Barry admitted that because she viewed his behavior as volitional rather than a type of psychiatric problem, she became frustrated and at times angry with Robinson. (Id. at 125-26.) She also claimed that because she could not persuade him to talk to her, to sign any releases for information, and to see the psychologist, Dr. Ragusea, "we had nothing to work with." (Id. at 126.) However, the record reflects that Robinson did sign a general release in October 1996 authorizing the release of any information related to his background, including psychiatric mental health or psychological reports. (Id. at 128.) Attorney Barry did not recall using the release to obtain any records she believed they were having difficulty obtaining. (Id. at 129.)

Attorneys Waller and Barry informed Attorney Andrews of their difficulties in communicating with Robinson. As a result, on December 9, 1996, Attorney Andrews went to the Cumberland County Prison to interview Robinson about his lack of cooperation and dissatisfaction with the representation by Attorneys Waller and Barry. (Id. at 12,15.) When he asked Robinson why he was dissatisfied, Robinson told him that they had "broken their promises" by not delivering certain unnamed documents. (Id.) Further, even though Robinson asked Attorney Andrews to return the next day to discuss the case, this meeting was the only contact Attorney Andrews had with Robinson prior to trial. (Id. at 16, 48.)

Two days after meeting with Attorney Andrews, on December 11, 1996, Robinson stopped eating properly at Cumberland County Prison, claiming that he could only eat food that was sealed or packaged because all other food in the prison was poisoned. (Doc. No. 33-10, Pet. for Involuntary Treatment, Dec. 16, 1996, 58-66.) On December 16, 1996, Mark A. Zengerle, M.S., a psychologist from Cumberland County Prison, petitioned the trial court for the involuntary commitment of Robinson based on his behaviors and physical complaints while incarcerated at the prison. (Id. at 58-62.) Zengerle concluded that there was a "reasonable probability that death, serious bodily injury, or serious physical debilitation would ensue within 30 days unless treatment is afforded." (Id. at 60.) Furthermore, Rocco Manfredi, M.D., a psychiatrist, evaluated Robinson at the prison to determine if he was severely mentally disabled and in need of treatment. (Doc. No. 33-10, Manfredi Examination, Dec. 16, 1996, 63.) After examining Robinson, Dr. Manfredi found him mentally disabled, diagnosed him with paranoid ideation, and suggested that he receive inpatient psychiatric hospitalization to prevent starvation and stabilize his condition. (Id.)

The trial court conducted a civil commitment proceeding on December 16, 1996, based on the petition for involuntary commitment. (See Doc. No. 33-10 at 64-65.) After reviewing the petition, the trial court ordered Robinson involuntarily committed to the Norristown State Hospital.*fn12 (Id.)

Thereafter, on December 17, 1996, the Commonwealth filed a motion for determination of Robinson's competency to stand trial and assist in his defense pursuant to sections 402 and 403 of the Pennsylvania's Mental Health Procedures Act, 50 Pa. Cons. Stat. Ann. §§ 402, 403. (Doc. No. 33-10, Application for Ct. Determination of Def's Competency, 67-68.) In response, the trial court issued an order on January 3, 1997, directing Norristown State Hospital to evaluate Robinson in order to provide the court with (1) a diagnosis of Robinson's mental condition, and (2) an opinion as to the capacity of Robinson to understand the nature and object of the criminal proceedings against him and to assist in his defense. (Doc. No. 33-10, Trial Ct. Order, Jan. 3, 1997, 71-72.)

Robinson refused to participate in any evaluations at Norristown State Hospital. (Doc. No. 38, PCRA Pet., Attach. 23, Norristown Hospital Records.) However, staff at the hospital did record their observations of Robinson. (Id.) In a January 3, 1997, progress note, Murray Caplan, M.D., the supervising psychiatrist, noted "Robinson is aloof and feels superior to staff and peers and refuses to disclose information of a personal nature instead preferring to argue every question in a condescending manner." (Id.) In another entry dated February 4, 1997, it was noted that "[p]atient needs further, active, inpatient care." (Id.) However, in a February 7, 1997 letter to the trial court, Dr. Caplan concluded that it was possible that Robinson was malingering. (Id.) He stated that Robinson "did demonstrate a haughty, disdainful attitude," "remains arrogant and condescending," and "was guarded and evasive, especially when discussing his charges."*fn13 (Id.) With respect to his opinion on Robinson's capacity to understand the criminal proceedings and the ability to assist in his defense, Dr. Caplan cited no specific findings, but stated the following:

Concerning competency, Mr. Robinson will not talk about his charges without a lawyer present. His behavior on the ward and his lack of psychiatric symptomatology give us no indication that he is incompetent due to a psychiatric illness. His refusal to talk is a willing and deliberate attempt to delay his going to trial. Team members feel that Mr. Robinson can return to court for trial and no longer requires in-patient care.

(Id.)

The trial court considered Dr. Caplan's letter and the report from Norristown State Hospital at a pre-trial suppression hearing not specifically related to Robinson's competency held on February 11, 1997. (Doc. No. 33-10, Notes of Testimony, Suppression Hearing, 2/11/1997 ("Suppression NT 2/11/97").) At that time, defense counsel stated, "We're not in a position to stipulate to the findings of Dr. Caplan which are stated in the report." (Suppression NT 2/11/97 5.) The trial court responded by admitting into evidence the report and later issued an order deeming Robinson competent to stand trial, based solely on the Norristown State Hospital records and report. (Id. at 5-6.) Defense counsel did not request a competency hearing in order to challenge those findings.

Robinson was discharged from Norristown State Hospital on February 11, 1997, and returned to Cumberland County Prison. A pre-trial conference was held on February 18, 1997. (See Doc. No. 33-11, Trial Ct. Order, Feb. 18, 1997.) At that conference, Robinson made an oral motion to represent himself at trial. (See id.) On February 20, 1997, the trial court conducted a colloquy of Robinson on his waiver of representation by the Public Defender's office. (Doc. No. 33-11, Notes of Testimony, Proceedings re. Waiver of Counsel Representation, 2/20/97 ("Waiver NT")). When asked why he wanted to represent himself, Robinson replied that he was not getting adequate representation from his public defenders. (Waiver NT 3.) After advising Robinson of his right to waive representation, explaining the repercussions of doing so, and explaining the role of standby counsel, the trial court granted Robinson's motion, vacated the appointment of the Public Defender, and appointed the Public Defender's office (again, Attorneys Waller and Barry) to act as stand-by counsel. (Id. at 12.)

Robinson's trial began on March 10, 1997. At the beginning of the proceedings, the trial court confirmed with Robinson that he in fact did want to proceed pro se. (Doc. No. 33-12, Notes of Testimony, Trial, 3/10/97 ("Trial NT 3/10/97") 3-4.) On March 12, 1997, Robinson, proceeding pro se, made an opening statement.*fn14 However, after the Commonwealth's second

b. Post-Conviction Proceedings

At the PCRA hearing, Robinson presented the testimony of Dr. Ragusea, the clinical psychologist who had attempted to interview him in October 1996. In preparation for the hearing, Dr. Ragusea examined a number of records, including the Norristown State Hospital report, correspondence from Hodge, police reports, parts of the trial transcript, and affidavits of family members. (PCRA NT 10/18/01 11-12.) Dr. Ragusea did not attempt to interview Robinson again before his PCRA testimony. (Id. at 52.) Based on his review of the documentation, Dr. Ragusea concluded that Robinson was not competent to stand trial in 1997 because he was most likely suffering from paranoid schizophrenia.*fn15 (Id. at 14.) Further, Dr. Ragusea was "appalled" by the Norristown State Hospital report which labeled Robinson as a malingerer. (Id. at 21.) From his review, Dr. Ragusea believed that the doctors at Norristown State Hospital did not have enough information available to them to support a diagnosis of malingering, and that the most they should have said about Robinson was that no opinion could be made as to his mental condition because he had refused to be evaluated. (Id. at 22, 24.)

Robinson also presented the testimony of Larry Rotenberg, M.D., a board certified psychiatrist. Robinson's PCRA counsel asked Dr. Rotenberg to interview and evaluate Robinson at SCI-Greene in September 2000. (PCRA NT 10/18/01 56.) However, Robinson refused to see him at that time. (Id. at 56-57.) Dr. Rotenberg did, however, review the record from Norristown State Hospital, parts of the trial transcript, correspondence between Robinson and his attorneys, correspondence between his attorneys and the psychiatrists at Norristown State Hospital, internal memoranda between Robinson's attorneys, correspondence from Hodge, affidavits of family members, and documents relating to his commitment from Cumberland County Prison to Norristown State Hospital. (Id. at 57-58.)

After reviewing the documentation, Dr. Rotenberg was able to make a differential diagnosis*fn16 that at the time of the killing of Bass and shooting of Hodge, Robinson "fit[] some of the criteria of paranoid schizophrenia, he fit[] many of the criteria of a delusional disorder and many of the criteria of a so-called psychosis NOS ["not otherwise specified"]."*fn17 (Id. at 59.) He further concluded that Robinson's mental disorder distorted his reality and distorted his ability to make appropriate decisions to the extent that he was not competent to stand trial in 1997. (Id. at 65.) He also described the evaluation of Robinson performed at Norristown State Hospital as "appallingly bad." (Id. at 68.) In the six weeks that Robinson spent at the hospital, he did not have an actual sit-down evaluation with a psychiatrist, rather "what we have are the superficial observations of a whole bunch of professionals without anyone really ever having done an evaluation." (Id. at 69.) He admitted that it was Robinson who refused to speak with doctors, but explained that, due to his mental illness, in order to properly evaluate him "[y]ou had to meet him every day on his level. You have to attempt to access him. You have to get him." (Id.) According to Dr. Rotenberg's review of the records, doctors at Norristown State Hospital made no such efforts to access Robinson. (Id.)

The Commonwealth presented the testimony of John O'Brien, M.D., a forensic psychiatrist. Dr. O'Brien did not examine or interview Robinson in preparation for his testimony, nor did he review the trial transcript, including Robinson's opening statement, or testimony or affidavits from Robinson's family members.*fn18 (Doc. No. 37, Notes of Testimony, PCRA Hearing, 12/14/2001 ("PCRA NT 12/14/01") 44, 57, 70.) He did, however, review background materials such as the reports from Cumberland County Prison, Norristown State Hospital, Drs. Ragusea and Rotenberg, and various correspondence between the individuals involved in the case. (PCRA NT 12/14/01 11-12.) After reviewing that documentation, Dr. O'Brien opined that the determination by Norristown State Hospital that Robinson was competent to stand trial was reasonable and supported by the record. (Id. at 55.) In support, Dr. O'Brien noted that while incarcerated at the Cumberland County Prison Robinson initially cooperated with the Public Defender's office, providing his attorneys with some background information and information related to the crimes. (Id. at 13.) However, after Robinson requested copies of all documents filed to date in his case, his attorneys questioned whether he was planning to file a lawsuit against them. (Id. at 17.) Dr. O'Brien noted that after this exchange, Robinson became "progressively less and less cooperative." (Id.) Dr. O'Brien also believed that Robinson's refusal to shower or come out of his cell, and his concern that his food was poisoned, were reality-based concerns because he was told that friends of Hodge's brother were also incarcerated at Cumberland County Prison. (Id. at 19-20.) What confirms that belief for Dr. O'Brien was that Robinson began eating again when he arrived at Norristown State Hospital. (Id. at 20.)

According to Dr. O'Brien, when Robinson arrived at Norristown State Hospital, he was initially standoffish, but eventually developed relationships and friendships with certain other patients. (Id. at 31-32.) Further, Dr. O'Brien stated that Robinson engaged in those activities he wished to engage in, such as playing cards, chess, billiards, basketball, and lifting weights. (Id. at 32.) Further, he was cooperative with the ward routine. (Id.) Staff members observed Robinson for nearly six weeks, yet were unable to persuade Robinson to participate in a psychiatric evaluation. (Id. at 29.) Staff members noted that he displayed no bizarre behavior or peculiar verbalizations. (Id. at 36.) He did not display any indicia of psychotic delusions, auditory hallucinations or other psychiatrically treatable behaviors. (Id. at 51.) As a result, Robinson was not treated with medication for psychotic symptoms at any time. (Id. at 51.)

Dr. O'Brien also opined that although one of Robinson's sisters suffers from paranoid schizophrenia and another sister died of a possible suicide, Robinson's family history was not significant if he himself was not displaying symptoms of mental illness. (Id. at 52-53.) Only if there are symptoms in an individual can the family history aid in diagnosing that individual. (Id.) In addition, some individuals diagnosed as paranoid schizophrenics may be competent to stand trial to the extent that they understand the circumstances and cooperate with counsel. (Id. at 42-43.) Dr. O'Brien concluded by stating that he does not believe he is in a position to state of his own opinion that Robinson was competent to stand trial in 1997, rather he simply agrees with the conclusions of the Norristown State Hospital officials and the materials provided to him by the Public Defender's office. (Id. at 88.)

Further, Robinson's PCRA counsel presented the testimony of Lori James Monroe, the mitigation specialist hired by defense counsel prior to trial. Monroe met with Robinson on two occasions in 1996 prior to trial. (Doc. No. 37, Notes of Testimony, PCRA Hearing, 11/29/2001 ("PCRA NT 11/29/01") 8.) On the first occasion, Monroe recalled that Robinson was not very cooperative, and that his primary concern was not having someone looking into his history or talking to family members. (Id.) Robinson, however, did provide her with some preliminary background information. (Id.) When she met with him again prior to the civil commitment hearing, "[Robinson's] behavior appeared more hostile, not towards me but just in general, some paranoid thoughts. His thoughts were sort of flighty ideas, all over the place, really not making much sense at all at that time." (Id.)

Robinson's family members informed Monroe of the family's history of schizophrenia in late 1996.*fn19 (Id. at 10.) Monroe, in turn, told counsel about this history, but counsel decided not to pursue mental health issues because the court had already determined, based on the Norristown State Hospital report, that Robinson was competent to stand trial. (Id. at 11.)

With the exception of Dr. O'Brien, the above-referenced mental health experts relied on background information on Robinson supplied by various family members. These family members not only provided sworn affidavits, but also testified at the PCRA hearing. Robinson's mother testified that Robinson had a seizure when he was five which required several days of hospitalization. (PCRA NT 10/10/01 212.) The cause of the seizure was never determined, but Robinson was prescribed phenobarbital for a year and had several follow-up appointments with doctors. (Id.) Lorenzo Robinson, Sr., Robinson's father, testified that Robinson's sister, Eulana, had been diagnosed as a paranoid schizophrenic at the age of twenty, and eventually required placement in a group home for mentally ill individuals. (Id. at 166.) Prior to her placement in a group home, Eulana engaged in violent or threatening behavior at times, and in one instance wielded a knife against her siblings. (Id. at 164-65.) Robinson's cousin, Rhonda Brewington, noticed signs of schizophrenia in Eulana, such as severe mood swings: at one moment Eulana would be calm, but would suddenly enter into rage if she believed people were talking about her. (PCRA NT 10/18/01 129.) Robinson's other sister, Diondalo, died when Robinson was a teenager. (PCRA NT 10/10/01 167.) Some family members believed she had been murdered, but there was also evidence that she committed suicide. (Id.) Robinson's brother, Lorenzo Robinson, Jr., testified that Diondalo had suffered a nervous breakdown prior to leaving the family home. (Id. at 197.)

Robinson observed many arguments between his parents, mainly over the infidelity of Lorenzo Robinson, Sr. (Id. at 172-73.) As Robinson reached young adulthood, Lorenzo Robinson, Sr. noticed that Robinson was becoming more belligerent and refused to take orders.

(Id. at 170-71.) In fact, Robinson had two fist fights with his father, and at one point pulled a gun during an argument. (Id. at 183-85.)

When Lorenzo Robinson, Sr. visited Robinson at the Cumberland County Prison after his arrest, Robinson was sensitive about verbally communicating with his family members because he believed others were listening to their conversations. (Id. at 177.) Lorenzo Robinson, Jr. recalled Robinson expressing dissatisfaction with his counsel's representation. (Id. at 201.) When Robinson's uncle, Dudley Williams, visited Robinson at the Cumberland County Prison after his arrest, Robinson told him the phones were bugged. (PCRA NT 10/18/01 137.) None of this testimony was provided to the trial court prior to its decision on Robinson's competency to stand trial.

The prosecuting officer, Detective Ronald Egolf, also testified about Robinson's behavior while incarcerated at the Cumberland County Prison. (PCRA NT 11/29/01 72-88.) In December 1996, both Attorney Barry and Robinson himself asked that Detective Egolf come to the prison to speak with Robinson. (Id. at 74.) Attorney Barry wanted Detective Egolf to persuade Robinson to cooperate with his attorneys. (Id. at 72-73.) However, when Robinson spoke with Detective Egolf at the prison, he spoke only of his fears that his food was being poisoned by Hodge's associates also incarcerated at the Cumberland County Prison. (Id. at 73-74.) He also wanted to see a doctor outside the prison because he believed he was ill. (Id. at 75.) After Detective Egolf met with Robinson, he told Attorney Waller that Robinson was getting very paranoid, "like he is getting ready to crack or something." (Id. at 85.)

2. State Court Decisions

The PCRA court denied the ineffective assistance claim, finding instead that trial counsel could reasonably rely on the findings of the Norristown State Hospital evaluation which concluded that Robinson was competent to stand trial, that he was not mentally ill, and that his lack of cooperation with his attorneys was a result of malingering. (Doc. No. 33-5 at 18.) The Pennsylvania Supreme Court affirmed the denial of the ineffectiveness claim. Robinson-II, 877 A.2d at 439-441. It agreed with the PCRA court that trial counsel reasonably relied on the mental health evaluation performed at the Norristown State Hospital. Id. at 440. It further stated that "[a]lthough [Robinson] offered testimony of two different psychiatrists in support of his claim, this testimony was negated by the evaluation done less than a year after the murder, which concluded [Robinson] was competent." Id. As a result, the state supreme court found that Robinson had failed to establish the ineffectiveness of counsel by showing counsel's performance was unreasonable. Id. at 440-41.

3. Analysis of Ineffective Assistance of Counsel

In considering whether the deficient performance of Robinson's counsel was prejudicial with respect to litigating Robinson's competency to stand trial, the Court must first briefly outline the relevant law regarding competency to stand trial. However, the Court stresses that it is not determining whether Robinson was competent to stand trial. Rather, the issue here is whether there is a reasonable probability that he would have been found incompetent to stand trial if not for the ineffective assistance of trial counsel.

A defendant has a due process right not to be tried while incompetent. Drope v. Missouri, 420 U.S. 162, 171-72 (1975); Pate v. Robinson, 383 U.S. 375, 385 (1966). To be competent to stand trial, a defendant must have a "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and must possess "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). Accord Drope, 420 U.S. at 171 ("[A] person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial").

In assessing whether there were sufficient indicia of Robinson's incompetency to warrant a competency hearing, "we must consider the nature and quality of the facts known to the court." Jermyn v. Horn, 266 F.3d 257, 292 (3d Cir. 2001). "[E]vidence of a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but . . . even one of these factors standing alone may, in some circumstances, be sufficient." Drope, 420 U.S. at 180.

Further, as stated above, Strickland imposes a two-part test for ineffective assistance of counsel claims. First, it asks whether counsel performed deficiently. Strickland, 466 U.S. at 687. This measures deficiency against the standard of "reasonably effective assistance," as defined by "prevailing professional norms." Id. at 687-88. Second, a petitioner must show that "the deficient performance prejudiced the defense." Id. at 687. To prove prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

It is well established that an attorney would render ineffective assistance of counsel if he failed to inquire into a defendant's competency and failed to request a competency hearing, despite indicia of incompetence that would provide reasonable counsel "reason to doubt" the defendant's ability to understand the proceedings, communicate with counsel, and assist in his own defense. See Hull v. Kyler, 190 F.3d 88, 106 (3d Cir. 1999) (noting that defendant could establish an ineffectiveness claim if there were sufficient indicia of incompetence and counsel failed to request a competency hearing); Hull v. Freeman, 932 F.2d 159, 169 (3d Cir. 1991) (stating that counsel has independent professional responsibility to "put government to its proof" at a competency hearing when there exists serious doubt as to the defendant's competence), overruled on other grounds as stated in Caswell v. Ryan, 953 F.2d 853, 859 (3d Cir. 1992).

The issue of whether there was such indicia of incompetency that, in failing to request a competency hearing or evaluation on behalf of Robinson, defense counsel's representation "fell below an objective standard of reasonableness" can only be assessed by examining what counsel did, and what facts counsel knew at the time that would bear on the issue of Robinson's competency to stand trial. See Porter, 276 F. Supp. 2d at 331 (citing Jermyn, 266 F.3d at 300). See also Strickland, 466 U.S. at 690 ("[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."). Thus, the testimony of Attorneys Waller and Barry, as well as that of Attorney Andrews, about what they did and what facts they knew regarding Robinson's understanding of the proceedings is crucial.

The record reflects that Robinson was able to communicate initially in order to provide basic background information and even sign a general release for collecting more information. However, all communication with his attorneys broke down in the fall of 1996 while he was still at Cumberland County Prison. Trial counsel hired Dr. Ragusea to evaluate Robinson at that time, but Robinson refused to be evaluated by a mental health professional. As a result, defense counsel released Dr. Ragusea and did not seek further evaluation from him or any other mental health expert at that time. Instead, after Robinson was committed to Norristown State Hospital, his counsel made a judgment call to "wait and see" what resulted from the Norristown State Hospital evaluation, an evaluation to be performed by a team of mental health professionals observing Robinson over a six-week period of time. The staff at the hospital, like Dr. Ragusea before them, were unable to persuade Robinson to actively participate in a face-to-face evaluation. As a result, the only method by which to evaluate Robinson was through observation. There is nothing in the record to suggest that he could have been evaluated in any other way at that time or any other time in the future. Further, there is nothing in the record to suggest that defense counsel had reason to second-guess the evaluation of the Norristown State Hospital staff. As a result, the Court fails to understand what would have triggered defense counsel to further investigate Robinson's competency at the time he was committed to Norristown State Hospital.

Dr. Caplan's report, presented to the trial court for a determination on competency, suggested that malingering may have been the cause of Robinson's behavior. Viewing the entire record compiled by the Norristown State Hospital with the evidence from other witnesses at the PCRA hearing which could have been available prior to trial, the Court agrees with the Pennsylvania Supreme Court's decision that counsel could reasonably rely on the Norristown State Hospital evaluation that Robinson's uncooperative, manipulative behavior did not amount to incompetence to stand trial. Thus, the Court finds that the Pennsylvania Supreme Court properly applied Strickland in concluding that counsel performed reasonably. See 28 U.S.C. § 2254(d)(1). Further, the Court concludes that the state court's holding rest in part on the appropriate factual determination that trial counsel reasonably relied solely on the mental health evaluation from Norristown State Hospital rather than gathering their own evidence as to Robinson's competency. See 28 U.S.C. § 2254(d)(2).

Having found no deficient performance on the part of counsel, the Court need not address the prejudice prong of Strickland. Further, as Robinson has failed to establish ineffectiveness of trial counsel with respect to this claim, it follows that defense counsel were not ineffective for failing to raise this meritless claim on direct appeal.

D. Guilt Phase Issue - Claim One - Ineffective Assistance of Counsel for Failure to Develop and Present Evidence in Support of a Voluntary Manslaughter Charge Robinson contends that he is entitled to a new trial because trial counsel was ineffective for failing to develop and introduce available evidence in support of a voluntary manslaughter charge to the jury, specifically a charge that he was acting under a heat of passion.*fn20 Before turning to an analysis of this claim, the Court will first recount the relevant background as it relates to a voluntary manslaughter charge.

1. Background

In support of this claim, Robinson contends that the following evidence could have been presented to show the cumulative impact of a series of related events supporting the heat of passion charge: (1) testimony and correspondence of Hodge, along with certain other evidence, detailing how the depth and emotional intensity of the relationship between Robinson and Hodge led Robinson to act in the heat of passion; (2) expert testimony detailing Robinson's mental health issues; and (3) evidence relating to Robinson's frequent habit of carrying of a gun and the ballistics evidence relating to the gun used to commit the offenses. Robinson contends that had his counsel properly used and developed this evidence at the guilt phase, there is a reasonable probability that at least one juror would have found him guilty of third degree murder. The evidence of record in support of Robinson's position is as follows.

a. Tara Hodge

At trial, the Commonwealth presented the testimony of Hodge. On direct examination, Hodge stated that she and Robinson began their relationship in the middle of 1993, after her former boyfriend, Anthony Locke, introduced them. (Trial NT 3/12/1997 60, 90.) Hodge was living in Carlisle, Pennsylvania at that time, while Robinson was located in Maryland. (Id. at 60.) During their relationship, Robinson visited Hodge regularly in Carlisle. (Id. at 63.)

In February 1995, Hodge received a telephone call from another woman who claimed to be Robinson's girlfriend. (Id. at 62.) Hodge did not see Robinson again until the spring of 1996, when he began visiting her again in Carlisle. (Id. at 66.) Hodge, however, did not consider them to be in a romantic relationship at that point; rather, she characterized their interaction as "intimate friends." (Id. at 69.)

In May 1996, Hodge began a relationship with Bass. (Id. at 69-71.) As a result, she sent a letter to Robinson on June 10, 1996, terminating their relationship. (Id. at 73-75.) She read the letter aloud at trial:

Hi. How's life treating you? I would hope well. I'm pretty much the same. I'm not sure if you will like what you are about to ...


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