The opinion of the court was delivered by: Chief Judge Kane
Petitioner Charles Howard Stinson ("Stinson"), an inmate presently confined at the Huntingdon State Correctional Institution ("SCI Huntingdon") in Huntingdon, Pennsylvania, initiated the above action pro se by filing a petition for writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The petition is fully briefed and ripe for disposition. For the reasons set forth herein, the petition will be denied.
A. State Court Proceedings
The relevant background of the circumstances surrounding Stinson's arrest, conviction, and sentencing, was summarized by the Pennsylvania Superior Court in its February 19, 1999 opinion disposing of his direct appeal nunc pro tunc from his judgment of sentence as follows:
The charges in this case arose out of a series of break-ins taking place at Tall Trees Apartments in the early morning hours of August 18, 1989. Sometime after midnight, Ralph Deleo heard noises coming from his bedroom at 1802 Tall Trees Apartments. N.T., 3/12-14/90, at 32, 33. When he entered the bedroom, Mr. Deleo saw the curtains moving in front of the window. Id. at 33. Suspecting someone was outside the window, he shouted a warning. Id. After hearing no other noises, he approached the window and saw that it had been broken and the screen was missing. Id. He telephoned the Dunmore police who arrived approximately fifteen minutes later. Id. at 36. The next day, Mr. Deleo discovered that a plant from the windowsill was missing. Id. at 39.
Dunmore Police Lieutenant William Gowden testified that he investigated several break-ins at Tall Trees Apartments. On the scene, Lieutenant Gowden observed the damage to Mr. Deleo's apartment, as well as damage to other apartments. Id. at 111. At 1701 Tall Trees, Lieutenant Gowden found a screen partially pried off the apartment's window. Id. at 111-12. At 1303 Tall Trees, Lieutenant Gowden found pry marks on a sliding glass door. Id. at 112. When he arrived at 1102, Lieutenant Gowden noticed that the window screen had been pried, but was not removed from the casing. Id.
At 1003 Tall Trees, the apartment of Elizabeth Barrett, Lieutenant Gowden observed that a screen had been pulled out and seriously damaged. Id. at 113. Once again, Lieutenant Gowden noticed pry marks on the screen. Id. Lieutenant Gowden also observed similar damage to screens and windows at apartment numbers 303, 203, 202 and 102. Id.
Elizabeth Barrett, a resident of Tall Trees, testified that in the early morning hours of August 18, 1989, she heard a noise that sounded similar to the wind blowing the window shade. Id. at 159. Elizabeth's mother, who uses a wheel chair, called out to her. At that time, Elizabeth told her mother that somebody was at the window. Id. When her mother started to get up, the women heard the sound of a tearing screen. Id. When they reached the window, the screen appeared 'pried up' but they could see no intruder. Id.
Elizabeth telephoned the residence of her brother Joseph Barrett, who lived in the next apartment. Id. Because Mr. Barrett was not available for trial, the Commonwealth presented his preliminary hearing testimony. According to Mr. Barrett's preliminary hearing testimony, his son received the telephone call. Mr. Barrett stated:
So I got up and I heard my wife say to my son, 'Where are you going?' And he said, 'somebody is trying to break into grandmon's [sic] apartment." Well, I threw on my pants and my shoes, I ran in -into -- I'm sorry. I ran into the living room, put on my shoes and my son was going to the front door and he stopped. And I can see there was somebody coming out of the woods in front of him, and I started saying, 'Get up there fast.'
So this guy is coming out of the woods towards my son, and I thought they were going to confront one another, and they got to the door, and the guy turned and started walking parallel with the tree line.
Mr. Barrett testified that he 'got a glimpse' of the person emerging from the woods. Id. at 154. When asked if he saw the person present at the preliminary hearing, Mr. Barrett responded "I see a guy that looks like him only he had longer hair, the guy I had seen . . . . I'd say he resembles him real good except for the fact that his hair was a lot longer. I only looked real quick and then he turned and walked sideways." Id. at 154, 157. Although he thought the person looked suspicious, Mr. Barrett stated that the person was not near the apartment of his mother and Elizabeth Barrett. Id. at 155. Finally, Mr. Barrett acknowledged that he could not state with 100 percent accuracy that [Stinson] was the man he saw on August 18, 1989. Id. at 157.
Another resident of Tall Trees, Edwin Blackburn, Ph.D., testified that he heard an intruder in the early morning hours of August 18, 1989. Id. at 198-99. Dr. Blackburn awoke when he heard his wife scream at which time he saw a man silhouetted in the bedroom. Id. Dr. Blackburn jumped out of bed, told the intruder to leave, and wrestled with the man. Id. When the two reached the living room, Dr. Blackburn maneuvered the intruder to the sliding glass door, then threw the man out of the door. Id. After the intruder left, Dr. Blackburn discovered that he had been stabbed. Id. at 200. As a result of the stabbing, Dr. Blackburn suffered injuries to his heart and left lung. Id. at 207. He continues to have difficulty breathing. Id. At the hospital, Dr. Blackburn described the intruder as an Hispanic looking male approximately five feet, ten inches tall. Id. at 202. In court, Mr. Blackburn identified [Stinson] as the intruder, but stated that since the incident, [Stinson] had cut his hair, cleaned, and shaved his face. Id. at 203. Dr. Blackburn had previously identified [Stinson] from a photo array presented by police. Id. To the best of his recollection, Dr. Blackburn viewed the photo array while he was in the intensive care unit at the hospital. Id. at 216.
During cross-examination, Dr. Blackburn admitted that he wears glasses, but did not have them on at the time of the incident. Id. at 211. Dr. Blackburn knew that the assailant's hair was longer than his own, but did not recall the hair being down to the assailant's shoulders. Id. at 214. Finally, Dr. Blackburn testified that he could not recall the specific hair color of the assailant. Id. at 213.
On March 14, 1990, Stinson was convicted by a jury sitting in the Court of Common Pleas of Lackawanna County, Pennsylvania, of aggravated assault, simple assault, recklessly endangering another person, three counts of burglary, eleven counts of criminal trespass, nine counts of criminal attempt to commit burglary, and loitering and prowling at night. (Doc. No. 39 at 4-5*fn1 .) He subsequently was sentenced to an aggregate term of imprisonment of not less than ten nor more than twenty years. (Id. at 10.)
As recounted by the Pennsylvania Superior Court in disposing of Stinson's appealnunc pro tunc from his judgment of sentence, his counsel filed a direct appeal on his behalf that ultimately was dismissed as a result of the failure to file a brief. (Id.at 36-37.) Stinson's newly appointed counsel then filed a petition to reinstate Stinson's direct appeal rights, which the Pennsylvania Superior Court granted, but the appeal again was dismissed for the failure to file a brief. (Id. at 37.) However, the dismissal was without prejudice to Stinson's ability to pursue a claim under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9546, and he subsequently filed a PCRA petition seeking the reinstatement of his direct appeal rights. (Id.; Doc. No. 39 at 9-14.) By order dated January 2, 1997, the trial court granted his petition. (Id. at 33.)
Stinson then filed a direct appeal nunc pro tunc from his judgment of sentence to the Pennsylvania Superior Court. (Id. at 34.) He raised the following issues for review:
[1.] Did the Trial Court err when it allowed hearsay testimony to be presented as to identification of the Defendant by Joseph Barrett and, thereafter, allowed the preliminary hearing testimony of Joseph Barrett to be presented to the jury as an unavailable witness under 42 Pa. C.S.A. § 5917 and, in the alternative, did Trial Counsel render ineffective assistance in failing to object to same.
[2.] Did the Trial Court err when it allowed the Commonwealth to introduce a fingerprint exhibit and a photo array into evidence or, in the alternative, did Trial Counsel render ineffective assistance sufficient to warrant a new trial?
[3.] Whether the evidence presented at the time of trial was sufficient to support the jury's verdict in the present manner?
[4.] Did Trial Counsel render ineffective assistance in failing to object and request a curative instruction as to improper and prejudicial comments rendered by Counsel for the Commonwealth during opening and closing statements.
[5.] Did Trial Counsel render ineffective assistance of counsel in failing to move to suppress the photographic identification and subsequent in-court identification of the Defendant by Dr. Blackburn and Mr. Barrett in that same was unreliable and tainted. (Id. at 41.) By memorandum and order dated February 19, 1999, the Pennsylvania Superior Court affirmed the judgment of sentence; however, the Superior Court concluded that the record was insufficient to dispose of all but one of Stinson's ineffective assistance claims*fn2 , and thus it remanded the case to the trial court for an evidentiary hearing on those claims. (Id. at 55.) The Court instructed that, if, on remand, the trial court found ineffectiveness, Stinson's sentence should be vacated and a new trial granted. (Id.)
Stinson filed a Petition for Allowance of Appeal from the Superior Court's February 19, 1999 decision, which was denied by the Pennsylvania Supreme Court on November 14, 2000. (Id. at 57.)
On October 18, 2006, the trial court conducted an evidentiary hearing on Stinson's ineffective assistance counsel claims in accordance with the Superior Court's decision remanding the case in 1999. (Doc. No. 53-2 at 45-100, Doc. No. 53-3.) Following that hearing, by memorandum and order dated January 22, 2007, the trial court denied Stinson's ineffective assistance claims. (Doc. No. 39 at 58-65.) In its memorandum, the trial court identified the issues presented by Stinson as follows:
1. Whether trial counsel was ineffective in supposedly failing to object to the testimony of Dunmore Police Lieutenant William Gowden concerning the photo array identification of Joseph Barrett?
2. Whether trial counsel was ineffective for allegedly failing to review the District Attorney's file to discover a second photo array, because it contained a photo of the Defendant's alibi witness, John Hellman?
3. Whether trial counsel was ineffective for supposedly failing to review the District Attorney's file to discover or obtain fingerprint evidence used at the time of trial?
4. Whether trial counsel was ineffective in not seeking suppression of the in-court identification of the Defendant by Edwin Blackburn and Joseph Barrett on grounds that the photo array used by the police was unduly suggestive? (Id. at 59.)*fn3
Stinson appealed from the denial of relief as to the above ineffective assistance claims, and on November 28, 2007, the Pennsylvania Superior Court affirmed the trial court's decision.
(Id. at 67-80.) In disposing of his appeal, the Pennsylvania Superior Court clarified that, procedurally, the appeal before it was from Stinson's judgment of sentence because he was appealing the disposition of his ineffective assistance claims by the trial court on the remand that arose from his appeal from his judgment of sentence. (Id. at 67 n.1.) On August 25, 2008, the Pennsylvania Supreme Court denied Stinson's Petition for Allowance of Appeal. (See Doc. No. 23.)
B. Stinson's Petition for Writ of Habeas Corpus
On July 9, 2007, while his appeal to the Pennsylvania Superior Court from the trial court's January 22, 2007 order denying his ineffective assistance claims was pending, Stinson filed the instant petition (Doc. No. 1) and a memorandum of law entitled "Memorandum I" (Doc. No. 5). Stinson simultaneously filed a motion requesting that this Court stay proceedings in this matter pending his exhaustion of four habeas corpus claims that he stated then were on review by the Pennsylvania Superior Court. (Doc. No. 4 ¶ A.)
On September 5, 2007, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Myers, 208 F.3d 414 (3d Cir. 2000), this Court issued a formal notice to Stinson that he either could have his petition ruled on as filed, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Doc. No. 10.) Stinson was directed to file his notice of election indicating his choice within forty-five days, and was warned that his failure to comply with the order would result in the Court ruling on his petition as filed. (Id.
In the ensuing time period, on September 11, 2007, Stinson filed two additional memoranda of law entitled "Memorandum II" and "Memorandum III." (Doc. No. 11.)
Stinson did not file his notice of election within the forty-five day time period. Accordingly, by order dated November 19, 2007, Stinson was directed to file a status report advising the Court as to whether he still was seeking a stay of the proceedings in this matter. (Doc. No. 13.)
In a status report filed on January 2, 2008, Stinson notified the Court that the Pennsylvania Superior Court had denied his appeal on November 28, 2007 and that he was doubtful that a petition for allowance of appeal to the Pennsylvania Supreme Court would be filed by his court appointed counsel. (Doc. No. 16.) On January 7, 2008, Stinson filed an additional status report indicating that his legal counsel had in fact timely filed a petition for allowance of appeal with the Pennsylvania Supreme Court on December 28, 2007. (Doc. No. 17.)
Accordingly, by memorandum and order dated January 23, 2008, this Court stated that, because Stinson had not responded to the Court's September 5, 2007 order within the forty-five day period, the Court would rule upon the petition as filed. (Doc. No. 19 at 1-2.) The Court also granted Stinson's motion to stay these proceedings, directed the Clerk of Court to administratively close this case, and directed Stinson to file written status reports with the Court at sixty day intervals until the conclusion of his state court exhaustion efforts. (Id. at 6.)
Stinson complied with the January 23, 2008 order by providing status reports on March 17, May 12, and July 9, 2008. (Doc. Nos. 20-22.) In those reports, he indicated that the Pennsylvania Supreme Court had not yet disposed of his petition for allowance of appeal. (Id.) In a report submitted on August 20, 2008, Stinson informed the Court that, on August 5, 2008, the Pennsylvania Supreme Court denied his petition for allowance of appeal. (Doc. No. 23.) In his final status report, submitted on August 22, 2008, he confirmed his receipt of the Pennsylvania Supreme Court order, and he attached the order to his report. (Doc. No. 24 at 6.) In this status report, Stinson also stated that he had other claims which he could raise in state courts through a PCRA petition, but opined that such efforts would be futile, and therefore moved for this Court to lift the stay of the instant proceedings. (Id. at 2.)
On September 15, 2008, Stinson submitted a memorandum of law entitled "Memorandum IV" in which he addresses the timeliness of his petition and argues that all of his habeas claims, including the four ineffective assistance of counsel claims that were under review in state court during the time that this action was stayed, are exhausted. (Doc. No. 25.) He also filed two supporting appendices (Doc. Nos. 26-27) along with a document purporting to make corrections to Memoranda II and IV (Doc. No. 28).
On November 10, 2008, Stinson filed a motion for partial summary judgment. (Doc. No. 29.) He also filed a supporting brief. (Doc. No. 30.) Stinson sought partial summary judgment as to his claim set forth in Ground 1 of his petition that "[t]he inordinate delay of over 7 years in remand proceedings has caused irreparable prejudice to the Petitioner's rights of substantive due process, procedural due process, equal protection of the laws, and a speedy direct appeal under the provisions of the United States Constitution, Amendments V, VI, XIV, § 1." (See Doc. No. 1 at 8, 11, 13.)
By order dated May 12, 2009, the Court granted Stinson's motion to lift the stay of these proceedings, directed service of the petition, and also directed Respondents to file their opposition to the motion for partial summary judgment that had been filed by Stinson on November 10, 2008. (Doc. No. 32.)
After obtaining an extension of time to file an answer to the petition, Respondents filed a motion to dismiss the petition (Doc. No. 37)and a motion to defer the filing of an answer until after disposition of the motion to dismiss (Doc. No. 36). On June 19, 2009, Respondents filed an appendix (Doc. No. 39) and supplemental appendix (Doc. No. 40) in support of their filings. By order dated June 30, 2009, the Court construed the motion to dismiss the petition as a proposed partial answer, and the supporting brief (Doc. No. 38) as a brief in support of the proposed partial answer. (Doc. No. 42.) The Court then granted the motion for leave to file a partial answer, and accepted the proposed partial answer. (Id.) The Court also ordered that Respondents would not be required to file their opposition to Stinson's motion for partial summary judgment until further order of court. (Id.)In response to correspondence filed by Stinson on July 1, 2009, by order dated July 2, 2009 (Doc. No. 45), the Court afforded him the opportunity to file a reply to the partial answer within fifteen days, and he subsequently filed a reply (Doc. No. 46), and supplement (Doc. No. 47).
By memorandum and order dated September 11, 2009, the Court concluded that Stinson's petition is timely, and therefore directed Respondents to file an answer to the petition, as well as a brief responsive to Stinson's motion for partial summary judgment, on or before October 13, 2009. (Doc. No. 48.) On October 9, 2009, Respondents filed a brief in opposition to the motion for partial summary judgment. (Doc. No. 51.)On October 13, 2009, Respondents filed a response to the petition (Doc. No. 52). Respondents subsequently filed a second supplemental appendix (Doc. No. 53), and a memorandum of law in support of the response (Doc. No. 54).
On October 26, 2009, Stinson filed a reply brief as to his motion for partial summary judgment*fn4 (Doc. No. 56), and also filed a motion requesting an extension of time to file his reply to the answer to the petition (Doc. No. 55). By order dated October 29, 2009, Stinson's motion was granted, Respondents were directed within seven days to file proof of service on Petitioner as to their most recent filings in accordance with Middle District of Pennsylvania Local Rule ("LR") 4.2, and Stinson was directed to file his reply within twenty days from the date of Respondents' filing of proof of service. (Doc. No. 57.) After the filing of a certificate of proof of service on November 5, 2009 (Doc. No. 58), Stinson filed his reply (Doc. No. 59) and accompanying exhibits (Doc. No. 59-2) on December 2, 2009.Accordingly, the petition is fully briefed and ripe for disposition.
II. CLAIMS PRESENTED IN FEDERAL PETITION
Stinson utilized a rather unconventional manner of presenting his grounds for relief, and thus it is necessary to begin by clarifying where in the record his grounds are located before setting forth the specific grounds.
Stinson presents a total of nine grounds for relief in the context of this habeas corpus action. However, at the time he filed his petition, he had not yet exhausted his four ineffective assistance of counsel claims that then were being reviewed in state court. Therefore, his petition only sets forth the five grounds that were exhausted at the time of filing the petition. Stinson stated his remaining four grounds for habeas relief in a submission entitled Memorandum IV, which he filed on September 15, 2008, after those issues had been exhausted in state court. (See Doc. No. 25.)
In setting forth Grounds 1 through 5 in his form petition, Stinson chose not to utilize the space provided on the form for setting forth grounds and supporting facts. Instead, he inserted references in that space to typewritten material on the backs of the form's pages containing his statement of grounds. Stinson also identifies his first five grounds in his submission entitled Memorandum I, which was filed with the petition on July 9, 2007. (See Doc. No. 5.) Therefore, in setting forth Stinson's grounds below, the Court first will provide a citation to the electronic page number of the petition containing the reference to the ground, followed by a citation to the electronic page number of the petition containing the actual statement of the ground, and finally to the electronic page number of Memorandum I where the statement of the ground is located.
In setting forth Grounds 6 through 9 below, the Court will provide citations to the electronic page numbers of Memorandum IV where Stinson states those grounds.
Having provided the foregoing clarification, the Court now sets forth Stinson's nine grounds upon which he seeks federal habeas relief:
(1) The inordinate delay of over 7 years in remand proceedings has caused irreparable prejudice to the Petitioner's rights of substantive due process, procedural due process, equal protection of the laws, and a speedy direct appeal under the provisions of the United States Constitution, Amendments V, VI, XIV, § 1 (Doc. No. 1, Pet., at 8; Doc. No. 1 at 11, 13; Doc. No. 5 at 4 § B ¶ 1);
(2) Did the Trial Court err when it allowed the preliminary hearing testimony of Joseph Barrett to be presented to the jury as an unavailable witness under 42 Pa. C.S.A. §5917? (Doc. No. 1 at 10; Doc. No. 1 at 3; Doc. No. 5 at 5 ¶ 3 (1));
(3) Did the Trial Court err when it allowed the Commonwealth to introduce a fingerprint exhibit and a photo array into evidence? (Doc. No. 1 at 14; Doc. No. 1 at 5; Doc. No. 5 at 5 ¶ 3 (2));
(4) Whether the evidence presented at the time of trial was sufficient to support the jury's verdict in the present manner? (Doc. No. 1 at 15; Doc. No. 1 at 5; Doc. No. 5 at 5 ¶ 3 (3));
(5) Did Trial Counsel render ineffective assistance in failing to object and request curative instruction as to improper and prejudicial comments rendered by Counsel for the Commonwealth during opening and closing statements? (Doc. No. 5 at 5 ¶ 3 (4));
(6) Whether Trial Counsel was ineffective in failing to object to the hearsay testimony of Lieutenant Gowden concerning the photo array identification of Joseph Barrett? (Doc. No. 25, Mem. IV, at 5 ¶ 1);
(7) Whether Trial Counsel was ineffective in failing to review the file of the District Attorney to discover the second photo array especially when the Commonwealth's exhibit No. 9 contained a photograph of Defendant's alibi witness, John Hellman? (Id. ¶ 2);
(8) Whether Trial Counsel was ineffective in failing to review the file of the District Attorney to discover or obtain copies of the fingerprint evidence utilized at the time of trial against the Defendant? (Id. ¶ 3*fn5 );
(9) Whether Trial Counsel was ineffective for failing to seek suppression of the in court identification of the Defendant by Edwin Blackburn and Joseph Barrett on grounds that the photo array used by police was unduly suggestive? (Id. ¶ 4).
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state 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 ...