The opinion of the court was delivered by: (Judge Caldwell)
In January 2005, a jury in the Court of Common Pleas of York County, Pennsylvania, found the pro se petitioner, Thomas W. Thompson, Jr., guilty of attempted criminal homicide, aggravated assault, arson and possession of explosive/incendiary materials or devices. The convictions resulted from an arson fire that was set at the residence of Timothy Thompson and Ellen Thompson, husband and wife, and their son, Bradley Thompson.*fn1 In March 2005, Petitioner was sentenced to ten- to twenty-years imprisonment on the charge of attempted criminal homicide with the other counts merging for sentencing purposes.
Thompson is challenging his conviction under 28 U.S.C. § 2254 and makes the following claims. First, trial counsel was ineffective in not objecting to prosecutorial misconduct in his closing argument when the prosecutor: (1) argued that Petitioner had disappeared from his family and had run from the police when the record did not support these allegations and in fact the record shows no disappearance occurred; (2) argued that Petitioner was untruthful, and the Commonwealth's witnesses were truthful, based on the amount of eye contact the witnesses made with the jury; and (3) made an argument that ridiculed defense counsel's knowledge of the facts while attesting to the veracity of the Commonwealth's witnesses. As part of this claim, Petitioner argues that these incidents of prosecutorial misconduct "taken together" undermined the fairness of the trial and contributed to a miscarriage of justice.
Second, trial counsel was ineffective in not objecting to the trial court's instructions to the jury which: (1) improperly told the jury they could find Petitioner guilty of homicide simply upon a finding of malice; (2) told the jury all four offenses rose or fell upon whether Petitioner set the fire; (3) instructed on first-degree murder when Petitioner was not charged with first-degree murder; and (4) told the jury that the intentional setting of a fire near a dwelling could on its own establish an intent to kill. Taken as a whole, these instructions on attempted homicide improperly relieved the Commonwealth of the burden of establishing beyond a reasonable doubt that Petitioner acted with the specific intent to kill.
Third, trial counsel was ineffective in not conducting a reasonable investigation into whether Bradley Thompson had set the fire. Fourth, the evidence was insufficient to establish the offense of attempted homicide when there was no evidence that Petitioner knew there were individuals inside the residence or that he specifically intended to murder the occupants as a result of the fire.
Petitioner took a direct appeal. The Pennsylvania Superior Court affirmed his conviction in an unpublished opinion. Commonwealth v. Thompson, No. 717 MDA 2005 (Pa. Super. Ct. July 12, 2006), and the Pennsylvania Supreme Court denied a petition for review in a one-line order. Commonwealth v. Thompson, No. 612 MAL 2006 (Pa. Dec. 27, 2006). Petitioner also sought collateral relief under state law 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 trial court denied relief and the superior court affirmed in an unpublished opinion. Commonwealth v. Thompson, No. 1149 MDA 2008 (Pa. Super. Ct. Dec. 15, 2009). The Pennsylvania Supreme Court then denied a petition for review in a one-line order. Commonwealth v. Thompson, No. 193 MAL 2010 (Pa. Aug. 11, 2010).
Our habeas review of the state courts' resolution of Petitioner's claims is governed by 28 U.S.C. § 2254(d)(1) and (d)(2). Under subsection (d)(1), we may grant the writ if the state courts' adjudication of the claims was contrary to clearly established Supreme Court precedent or an unreasonable application of that precedent. 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, 405-06, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). "A state-court decision will also be contrary to" Supreme Court "precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the] precedent." Id. at 406, 120 S.Ct. 1519-20.
"[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).
Under subsection (d)(2), we may grant the writ if the state courts' adjudication of the claims "resulted in a decision that was based on a unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
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, 123, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). Thus habeas review of a Strickland claim is "doubly deferential." Id., 129 S.Ct. at 1420.
The trial testimony was as follows. At around 3:40 a.m. on December 9, 2003, an arson fire was set at the Thompsons' home. At that time, Timothy Thompson, Ellen Thompson and their son, Bradley Thompson, were asleep in the residence.
The house sits in a north-south direction with its front facing east. There is a small backyard with an underground tank that stores propane gas used to heat the house. There is a gap in the backyard fence, which allows a delivery person entry to fill the tank. An underground line runs from the tank to the southwest corner of the house. At that point, the line comes out of the ground, enters the house and connects to the furnace. The line also has a valve or regulator on it where it comes out of the ground. (Doc. 12-1, CM/ECF pp. 67-68).*fn2
At this corner of the house, there is also a basement room, where Timothy Thompson kept a quantity of gunpowder for making his own bullets. The furnace was in this room. (Id., CM/ECF p. 68). The room has a basement window with a window well.
(Id., CM/ECF pp. 68-69). The window opens from the inside. (Id., CM/ECF p. 90). The other room in the basement was Bradley Thompson's bedroom. (Id.). Both of the rooms have doors. (Id.).
Further north on the back of the house Bilco-type doors allow entry to the basement. (Id., CM/ECF p. 69). The house has a detached two-car garage on the northern part of the property. Ellen Thompson parks her car in the garage, and her husband and son park theirs in the driveway. (Id., CM/ECF p. 66). The garage was where the lawnmower was filled if it needed gasoline. (Id., CM/ECF p. 69).
Ellen Thompson testified that around 3:40 a.m. on December 9, 2003, she was awakened by the smell of wood smoke. As she checked the house, she entered the basement. The smell was constant all through the house but "was a little stronger in the basement." (Id., CM/ECF p. 71). She entered her son's basement bedroom, where he was in bed, (id.), sleeping. (Id., CM/ECF p. 89). She woke him up. (Id.). As she testified, "And I think I asked him if he smelled anything. And I thought I had smelled some gas. I thought maybe he had gotten gas and spilled some on his shoes." (Id., CM/ECF p. 71). She walked to the other basement room (where the gunpowder was kept) and saw through the window in that room "the fire, the flames in the window well." (Id., CM/ECF pp. 71-72). She ran outside and threw snow on the flames, which put the fire out. (Id., CM/ECF pp. 72, 73). Her son hooked up the garden hose and wet down the wall and the corner of the house. Still, "there were smoke curls coming out between" the seams in the siding, which was made of asbestos but might have appeared to be wood. The smoke was "coming out the bottom, curling out the bottom of the siding." (Id., CM/ECF p. 73). Ellen Thompson also observed that a bucket she had placed over the propane valve or regulator the previous day to protect it from snow melting off the roof was missing. It was never seen again. (Id., CM/ECF p. 75).
Ellen Thompson knew Petitioner, who was a friend of her son. Petitioner has been to her house, the last time being November 2002. When he came to the house, he would come inside and "walk around." (Id., CM/ECF p. 81). He "would have been familiar with the house." (Id., CM/ECF p. 82). Timothy Thompson testified that Petitioner had been "in the basement area." (Id., CM/ECF pp. 138-39).
Bradley A. Schriver, an arson investigator for the Pennsylvania State Police, investigated the fire. As part of his investigation, he took three samples. The first sample was of charred leaves and soil from the area of the propane regulator, at the southwest corner of the house. The second sample was from the area of the Bilco-type doors.*fn3 The third sample was from the rear of the house at the opposite corner. The third sample was a comparison sample, taken because it was not supposed to have any evidence relevant to the investigation. (Id., CM/ECF p. 113-14, 115). The first two samples "test[ed] positive for the presence of gasoline." The third sample "was found to have an ignitable liquid present but below measurable quantities." (Id., CM/ECF p. 116). The investigator opined that if the fire had reached the gunpowder or the propane gas, it would have been "extremely more intense." (Id., CM/ECF p. 118). He also opined that if the propane valve had failed, and the gas had ignited, "it would have been a really bad fire." (Id., CM/ECF p. 119).
Shawn Cuffley was the first police officer to respond. In part, he testified that he found a partially burned restaurant-type napkin near the southwest corner of the house and another partially burned napkin outside the gap in the back fence (Id., CM/ECF p. 126-129).
Bradley Thompson testified that at around 3:40 to 4:00 a.m. on December 9, 2003, he was asleep in his basement bedroom, but woke up to the sound of his mother moving around the house and coming downstairs. They found the fire at the southwest corner of the house and put it out. (Id., CM/ECF pp. 141-42). Bradley Thompson had given a written statement to the police in which he said he had been "lying in bed not sleeping" when his mother came into the basement. (Id., CM/ECF p. 148). At trial, he explained this discrepancy by stating that he had been asleep but was awakened by his mother coming downstairs. (Id., CM/ECF p. 148-49).
In January 2003, Bradley Thompson testified against Petitioner in a separate criminal proceeding, where Petitioner was charged with the unauthorized use of an automobile. (Id., CM/ECF p. 142; doc.12-2, CM/ECF p. 33). Petitioner spent about six months in jail as a result of those proceedings. (Doc. 12-2, CM/ECF p. 33). Bradley Thompson testified that Petitioner expressed his displeasure to him about the testimony. They stopped being friends after Bradley Thompson's involvement in those proceedings.
(Id., CM/ECF p. 143). Bradley Thompson saw Petitioner on the night of December 8, 2003, at around 10:00 or 11:00 p.m. at the restaurant where Bradley Thompson worked as a line cook, Damon's in Hanover. They did not talk. (Id., CM/ECF pp. 144-46, 149).
Joshua Lefevre, Petitioner's friend at the time, testified that Petitioner stopped by his house at around 9:00 or 10:00 p.m. on December 8, 2003. Petitioner wanted him to go out to a bar with him, but Lefevre declined. Petitioner went to Damon's by himself and returned around 11:30 p.m. According to Lefevre, Petitioner "was pretty drunk. He was talking about how he wanted to burn down Brad [Thompson's] house because of something Brad said." Lefevre said Petitioner stated that "[he] wanted to see his [Bradley Thompson's] family living in the Red Cross." (Id., CM/ECF pp. 168-69). This was the third or fourth time Petitioner had talked about burning down Thompson's house. (Id., CM/ECF p. 170). Petitioner made these statements after he had gotten out of jail on the previous prosecution, between June 2003 and December 8, 2003. (Id., CM/ECF p. 171).
Lefevre and Petitioner talked again the next day. Petitioner told him he went to Thompson's house, through the back entrance, "poured gas on the back wall," and "lit it on fire and left." He said he used matches and napkins. (Id., CM/ECF pp. 172-73). He said he was upset with Bradley Thompson because he had "testified against him." (Id., CM/ECF p. 174). The defense presented the testimony of two witnesses that Lefevre had a reputation in the community for being dishonest. (Doc. 12-2, CM/ECF pp. 6, 9).
Justin A. Murray was in jail from October 2003 through January 2004. Murray was a friend of Petitioner. He testified that Petitioner visited him in jail on December 20, 2003. Petitioner asked him what jail was like. Petitioner then stated "that he had done something really bad," that "he may have started a fire to someone's house," and "that it was in retaliation to something." (Doc. 12-1, CM/ECF pp. 203--04). In return for his testimony, Murray's term on a probation-violation sentence was shortened from six months to three months. (Id., CM/ECF pp. 200-01).
Jeffrey Knouse, the arresting police officer, testified about a written statement Petitioner had given in connection with the prior criminal matter in which Bradley Thompson testified against him. In the statement, Petitioner asserted that Bradley Thompson had set him up for the charges out of jealousy and rage. The statement blamed no one else. (Id., CM/ECF pp. 227-28).
Amy Nonemaker was involved personally with both Petitioner and Bradley Thompson at relevant times. At trial she testified that she also gave testimony against Petitioner in the prior criminal matter, but Petitioner never expressed any anger against her for doing so. (Doc. 12-2. CM/ECF p. 10). Bradley Thompson was upset with her about her relationship with Petitioner. (Id., CM/ECF p. 11).
She also testified that she and Bradley Thompson were having problems with Stevie Noel, that they owed him money for crack cocaine. Noel was after Bradley for the money. (Id., CM/ECF p. 12). Noel has been in and out of prison a couple of times. Bradley was afraid of him. (Id., CM/ECF p. 14). Noel "is really loud and he's one to speak his mind. If he has a problem with you, he'll tell you and approach it." (Id., CM/ECF p. 15). He has "a reputation for being a loud person." (Id.). Bradley Thompson has avoided places where Noel might be, such as Noel's house and bars he would be at. (Id.).
Petitioner testified in his own defense. He denied telling Bradley Thompson he was displeased about the testimony in the previous criminal matter (id., CM/ECF p. 34). In fact, he realized being in jail was his own fault, and he tried to contact Bradley after he got out of jail to reconcile. (Id., CM/ECF p. 35). Petitioner's father testified that after he got out of jail, Petitioner was still upset about his situation and that his father had advised him to let it go. (Doc. 12-1, CM/ECF pp. 164-65).
Petitioner denied telling Lefevre he wanted to start a fire at Bradley Thompson's home. (Doc. 12-2, CM/ECF p. 34). His relationship with Lefevre was not smooth. He had a disagreement with Levefre about a $50 drug debt Lefevre owed him, and admitted that he had had a sexual relationship with Lefevre's then girlfriend (now wife), and that Lefevre wanted to fight him. (Id., CM/ECF pp. 46-48). He admitted it was possible the subject of the fire came up in his prison conversation with Murray. (Id., CM/ECF p. 44). December 9, 2003, was just a regular day for him. (Id., CM/ECF p. 37). He said he was at home sleeping when the fire occurred. (Id., CM/ECF p. 38). He specifically denied going to the house on December 9 to set a fire to kill Bradley Thompson and his parents. (Id., CM/ECF p. 52).
Petitioner testified he has been in the Thompson house. He has been in every room except for the parents' bedroom and the father's "gun room." (Id., CM/ECF p. 42). Bradley had told him that was where his father kept his guns. Petitioner was curious about the room but ...