The opinion of the court was delivered by: Judge Caldwell
The pro se petitioner, Juan Soto-Echevarria, shot Tyree Beard to death on a street corner in York, Pennsylvania. He was placed on trial in the Court of Common Pleas of York County for first-degree murder and criminal conspiracy to commit first-degree murder. Soto-Echevarria admitted killing the victim, but at his trial presented a voluntary intoxication defense, testifying that he had ingested so much alcohol and drugs on the day and night before the killing that he was guilty only of third-degree murder. The jury disagreed and decided that the murder had been in the first degree. When the jury could not decide on the death penalty, he was sentenced to life imprisonment without possibility of parole.
Soto-Echevarria's 28 U.S.C. § 2254 petition challenging his conviction makes the following claims: (1) the trial court abused its discretion by permitting the Commonwealth to introduce evidence of his gang-related activity with the Latin Kings because its probative value was outweighed by its prejudicial effect; (2) the prosecutor improperly elicited from Petitioner on cross-examination that Petitioner supported himself by drug dealing and trial counsel was ineffective in not objecting to the questioning; (3) the trial court abused its discretion when it failed to declare a mistrial after counsel for a co-defendant violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), by identifying Petitioner as the "other person" mentioned in a co-defendant's statement placed in evidence by a Commonwealth witness; (4) trial counsel was ineffective when he failed to object, or move for a mistrial, when the prosecutor made inflammatory comments about Petitioner's gang membership that were not based on evidence in the record; and (5) trial counsel was ineffective in failing to directly ask Petitioner's toxicology expert, who was testifying as part of Petitioner's voluntary intoxication defense, whether Petitioner could form the specific intent to kill, given the amount of dugs and alcohol he had ingested, when the expert would have stated his opinion that Petitioner could not have formed that intent.*fn1
Petitioner unsuccessfully presented all of his claims either on direct appeal or by way of a petition under the Pennsylvania Post Conviction Relief Act (PCRA). 42 Pa. Con. Stat. Ann. §§ 9541-9546 (West 2007 & Supp. 2011). The Pennsylvania Superior Court issued unpublished opinions on both direct appeal, (doc. 19-2, CM/ECF p. 59, Commonwealth v. Soto-Echevarria, No. 1457 MDA 2005 (Pa. Super Ct. Mar. 31, 2006)), and on appeal from denial of Petitioner's PCRA petition. (Doc. 19-3, CM/ECF p. 12, Commonwealth v. Soto-Echevarria, No. 2119 MDA 2008 (Pa. Super. Ct. Oct. 15, 2009)). In one-line orders, the Pennsylvania Supreme Court denied review on direct appeal, (Doc. 19-2, CM/ECF p. 105, Commonwealth v. Soto-Echevarria, No. 316 MAL 2006 (Pa. Nov. 1, 2006)), and on appeal in the PCRA proceedings. (Doc. 19-3, CM/ECF p. 69, Commonwealth v. Soto-Echevarria, No. 803 MAL 2009 (Pa. April 14, 2010)).
Petitioner asserts that the state courts' resolution of his claims was contrary to clearly established Supreme Court precedent or an unreasonable application of that precedent. See 28 U.S.C. § 2254(d)(1). A state court judgment is "contrary to" Supreme Court precedent when it is "diametrically different, opposite in character or nature, or mutually opposed" to "clearly established" decisions of the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[A] state court ruling is considered an 'unreasonable application' if the state court unreasonably applies the correct legal rule to the particular facts, unreasonably extends a legal principle to a new context, or unreasonably refuses to extend the principle to a new context where it should apply." McMullin v. Tennis, 562 F.3d 231, 236 (3d Cir. 2009) (cited cases omitted). "The unreasonable application test is an objective one-a federal court may not grant habeas relief merely because it concludes that the state court applied federal law erroneously or incorrectly." Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005) (cited cases omitted). If "'fairminded jurists could disagree' on the correctness of the state court's decision," habeas relief cannot be granted. Harrington v. Richter, U.S. , , 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011)(quoted case omitted).
In addition, the claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, , 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). Thus habeas review of a Strickland claim is "doubly deferential." Id. at , 129 S.Ct. at 1420.
A. The Admission of Evidence of Petitioner's Gang-Related
Activity with the Latin Kings Did Not Violate Due Process Petitioner claims that the trial court abused its discretion by permitting the Commonwealth to introduce evidence of his gang-related activity with the Latin Kings because its probative value was outweighed by its prejudicial effect.*fn2
We disagree. Petitioner was charged, along with Maximino Hernandez and
Axel Rivera-Rodriguez, with conspiracy to commit murder. The evidence
established that Petitioner was a member of the Latin Kings and that
Hernandez was at least a former member of the gang.*fn3
Evidence of "gang-related activity" (most of the references
were to gang membership, not to specific acts of gang activity) was
relevant to conspiracy. See Reid v. Beard, No. 04-2924, 2009 WL
2876206, at *6 (E.D. Pa. Sept. 2, 2009) (evidence that the petitioner
was a member of the Junior Black Mafia was relevant to establish
conspiracy and its admission at the petitioner's trial for murder and
criminal conspiracy was not a federal constitutional violation),
aff'd, 420 F. App'x 156 (3d Cir. 2011) (nonprecedential); Ford v.
Stepanik, 1998 WL 297626, at *6 (E.D. Pa. June 2, 1998) (evidence that
the petitioner was a leader in the "Taylor Street gang" was admissible
to show conspiracy). Evidence of gang membership was also relevant
show Petitioner's motive. Reid, 2009 WL 2876206, at *6.*fn4
Based on the foregoing, we cannot conclude that the admission
of the gang-related activity violated due process. A due process
violation requires not just mere error on the part of the trial judge
in balancing the admission of the prejudicial evidence. Instead, "the
evidence's probative value" must be "conspicuously outweighed by its
inflammatory content . . . ." Bronshtein
v. Horn, 404 F.3d 700, 730 (3d Cir. 2005)(quoting Lesko, 881 F.2d at
B. Trial Counsel Was Not Ineffective in Failing to Object
When the Prosecutor Improperly Elicited From Petitioner on Cross-Examination that Petitioner Supported Himself by Drug Dealing
At the trial, Petitioner took the stand in his own defense. On cross-examination, the prosecutor asked him how he earned his money at a certain period of time. Petitioner replied that he "sold weed." Without objection from counsel, the prosecutor then asked if he was a "drug dealer," and Petitioner answered yes. (Doc. 19-1, CM/ECF p. 123).
Petitioner claims his lawyer was ineffective in not objecting to this questioning, which was intended to prejudice the jury against him. As noted, claims of ineffective assistance of counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-prong test to establish ineffective assistance of counsel. First, counsel's performance must be deficient. Trial counsel's representation must have fallen "below an objective standard of reasonableness considering all the circumstances." Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005)(citing Strickland). "Counsel's reasonableness must be assessed on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Second, counsel's deficient performance must have prejudiced the defense. Id. (quoting Strickland). 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 105 (quoting Strickland). A petitioner "need not show that counsel's deficient ...