The opinion of the court was delivered by: Goldberg, J.
On July 2, 1985, Petitioner, Robert Wharton, was convicted of two counts of first degree murder for the brutal killing of Bradley and Ferne Hart. Petitioner was subsequently sentenced to death and his conviction and sentence were affirmed by the Pennsylvania Supreme Court.
Petitioner has filed a petition for the issuance of a writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254, seeking relief from his convictions and death sentence. He brings twenty-three claims for relief, challenging the constitutionality of his trial and sentencing hearings. For the reasons set forth below, and after careful consideration of his petition, we conclude that Petitioner's claims are untimely, procedurally defaulted and/or without merit.
I. Factual & Procedural History................................................................................................4
II. Legal Standards.......................................................................................................................8
A. Timeliness of a Federal Habeas Petition ..................................................................8
B. Exhaustion of State Remedies; Procedural Default ................................................9
C. Standard for Issuance of the Writ............................ ..............................................10
III. Analysis of Procedural Issues & Standard of Review........................................................11
A. Timeliness of Claims Raised.....................................................................................12
B. Exhaustion, Procedural Default & AEDPA Deference.........................................16
IV. Development of the Factual Record in Federal Court.......................................................24
A. Standards Governing Requests for an Evidentiary Hearing & Discovery..........25
B. Petitioner's Requests for an Evidentiary Hearing & Discovery...........................27
IV. Analysis of the Merits............................................................................................................33
A. Claim I -- Did the Prosecution use Peremptory Strikes in a Racially Discriminatory Manner?..........................................................................................33
B. Claim II -- Was Petitioner's Trial Counsel Ineffective for Failing to Discover and Utilize Available Evidence to Demonstrate his Confession was Involuntary?..............................................................................................................34
C. Claim III -- Was Petitioner's Confession Admitted Against him in Violation of the Fifth, Sixth and Fourteenth Amendments?...........................................71
D. Claim XVIII -- Was Trial Counsel Ineffective for Failing to Impeach the Testimony of Robert Hart?......................................................................................81
E. Claim VI -- Did the Admission of the Confession of Petitioner's Co-defendant Violate the Sixth Amendment's Confrontation Clause?.......................................82
F. Claim XIV -- Did The Trial Court's Reasonable Doubt Instruction Violate Due Process?......................................................................................................................97
G. Claim XV -- Did the Prosecution Suppress Exculpatory Evidence at Petitioner's First Penalty Hearing and his Trial in Violation of Due Process?......................................................................................................................98
H. Claim VII -- Did Petitioner's Second Penalty Hearing Violate the Double Jeopardy Clause?...............................................................................................102
I. Claim IV -- Was Petitioner's Counsel Ineffective at his Second Penalty Hearing for Failing to Offer Available Mitigation Evidence?...........................................104
J. Claim XII -- Did Admission of "Victim Impact" Evidence and Other "Prejudicial" Evidence During Petitioner's Guilt Phase and Second Penalty Hearing Violate Due Process?................................................................................112
K. Claim XVI -- Did the Court's Refusal to Allow Testimony Regarding Petitioner's Religious Beliefs and his Co-defendant's Life Sentence During the Second Penalty Hearing Violate Due Process?.....................................................126
L. Claim VIII -- Did the Prosecutor's Conduct During Petitioner's Second Penalty Hearing Violate Due Process?................................................................................130
M. Claim X -- Did The Court's Refusal to Allow Petitioner's Counsel to Argue that the Jury's Verdict would be "Basically Irreversible" During the Second Death Penalty Hearing Violate Due Process?..................................................................136
N. Claim XI -- Did the Court Violate Petitioner's Due Process Rights During the Second Penalty Hearing by Failing to Instruct the Jury that, if Sentenced to Life, Petitioner would Never be Eligible for Parole?...........................................137
O. Claim XIII -- Did the Pennsylvania Supreme Court's Review of Petitioner's Death Sentence Violate Due Process?...................................................................144
P. Claim V -- Does Petitioner's Death Sentence Violate the Ex Post Facto Clause or Due Process?.......................................................................................................148
Q. Cumulative Effect of All Errors............................................................................155
I. FACTUAL & PROCEDURAL HISTORY
The facts supporting Petitioner's convictions for first degree murder were described by the Pennsylvania Supreme Court as follows:
The murders of Bradley Hart and his wife Fern[e] were the culmination of a series of crimes committed by Petitioner and his cohorts against the Hart family in retribution for a dispute over the quality of home improvement work Petitioner performed in the summer of 1983 at the Harts' residence and at a radio station owned by Hart's father, the Reverend Samuel Hart. When Hart refused to pay Petitioner's employer for the work, Petitioner complained bitterly and blamed Bradley Hart for his lost wages. He vowed to make the Hart family pay.
Petitioner began victimizing the Harts by burglarizing their home with Larue Owens on Sunday, August 14, 1983, at a time when Petitioner and Owens knew the Harts would be at church. Petitioner returned the following week with Owens and Eric Mason, and stole additional property. This time they also vandalized the Harts' home by slashing furniture; ransacking closets; mutilating family photographs; pouring different liquids such as bleach, paint, and oil throughout the house; and, defecating and urinating on the floors. On September 4, 1983, Petitioner burglarized Reverend Hart's church, stole cash and computer equipment, and pinned a photograph of Bradley Hart to a wall with a letter opener. Then, in early January of 1984, Petitioner, Mason and Thomas Nixon went to the Harts' home intending to rob them. The men abandoned their plan when they discovered the Harts had another person visiting in the house.
Finally, in the late evening of January 30, 1984, while Bradley and Fern[e] Hart were home alone with their seven-month-old daughter, Petitioner and Mason came to the Harts' home. When Bradley Hart answered the door, Petitioner and Mason forced their way in at knifepoint. Initially, they coerced Bradley Hart into writing Petitioner a check for nine hundred and thirty four dollars as settlement for the debt Petitioner felt was owed to him. Next, the two men tied up the Harts on a couch holding them captive, while the intruders watched television and talked for several hours. Eventually, they decided to separate the couple. Petitioner took Fern[e] Hart upstairs where he bound her hands and legs; covered her eyes, nose, and mouth with duct tape; strangled her with a necktie; and ultimately drowned her in a bathtub. Meanwhile, Mason took Bradley Hart to the basement where Mason forced Bradley Hart to lie with his face in a pan of water; placed his foot on Bradley Hart's back; and strangled him to death with an electrical cord. Petitioner and Mason fled, but not before they turned off the heat in the house and abandoned the Harts' infant child on a bed in an upstairs bedroom.
On February 2, 1984, concerned that he had not heard from his son or daughter-in-law, Reverend Hart went to the home and discovered their bodies. When he found the infant, she was suffering from dehydration and neglect. She was immediately transported to a hospital where she experienced respiratory arrest brought on by shock and hypothermia. She eventually recovered.
An investigation immediately led police to suspect Petitioner. When police executed search warrants on his girlfriend's house, they discovered items belonging to the Harts and obtained a warrant for Petitioner's arrest. When he was taken into custody on February 7, 1984, he confessed and named Eric Mason as his accomplice in the murders.[*fn1 ]
Commonwealth v. Wharton (Wharton V), 886 A.2d 1120, 1121-22 (Pa. 2005).
On July 2, 1985, a jury sitting before the Honorable Francis Biunno convicted Petitioner and his co-defendant, Eric Mason, of two counts of murder in the first degree and related offenses. Following a penalty hearing on July 5, 1985, the jury returned a verdict of death against Petitioner for each count of murder.*fn2 On September 24, 1986, the trial court officially imposed the sentences of death against Petitioner.
Petitioner filed a direct appeal to the Pennsylvania Supreme Court, challenging his convictions and sentence. On April 28, 1992, the Supreme Court affirmed his convictions, but reversed the death sentences and remanded the case for a second penalty hearing. See Wharton I, 607 A.2d 710, 721-24 (Pa. 1992) (holding that the trial court's failure to properly instruct the jury on torture during the penalty hearing was prejudicially deficient and remanding for a second penalty hearing).
The trial court held a second penalty hearing beginning on November 30, 1992. The jury returned its verdict on December 23, 1992, again determining that Petitioner should be sentenced to death on both counts of murder.*fn3 Petitioner's motions to set aside the verdict were argued before the trial court and ultimately denied. On August 18, 1993, the trial court again formally sentenced Petitioner to death. On September 29, 1995, the Supreme Court of Pennsylvania affirmed the judgment of sentence, Commonwealth v. Wharton (Wharton II), 665 A.2d 458 (Pa. 1995), and the United States Supreme Court denied certiorari on June 10, 1996. See Wharton v. Pennsylvania, 517 U.S. 1247 (1996).
On June 28, 1996, Petitioner file a pro se petition under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546. Counsel entered his appearance on behalf of Petitioner and filed an amended PCRA petition on January 21, 1997. On June 10, 1997, the Honorable Gary S. Glazer of the Court of Common Pleas of Philadelphia County ("PCRA court") issued a notice of intent to dismiss the amended petition without a hearing, and on June 23, 1997, the PCRA court denied relief. On PCRA appeal, the Pennsylvania Supreme Court remanded the case to the PCRA court with instructions to file a more substantial opinion, as its initial opinion simply "adopt[ed] the reasoning of the Commonwealth." After the PCRA court issued its opinion on November 25, 2002, the Supreme Court affirmed denial of Petitioner's PCRA petition. Commonwealth v. Wharton (Wharton III), 811 A.2d 978 (Pa. 2002).
On December 16, 2002, Pennsylvania Governor Mark S. Schweiker signed a
scheduling Petitioner's execution for February 13, 2003.*fn4
On January 15, 2003, Petitioner filed an unopposed stay of
execution with this Court, and on January 21, 2003, the Honorable
James T. Giles stayed the warrant of execution, pending the duration
of the federal proceeding. (Doc. No. 12.) On October 7, 2003,
Petitioner filed a Petition for Writ of Habeas Corpus and Consolidated
Memorandum of Law, pursuant to 28 U.S.C. § 2254. (Doc. No. 22
(hereinafter "Pet.").) On August 2, 2004, Petitioner filed an
"Amendment to Petition For a Writ of Habeas Corpus." (Doc. No. 33
(hereinafter "Am. Pet.").) Judge Giles held oral argument on the
petition on October 10, 2006.*fn5
On November 13, 2008, this case was reassigned to the undersigned, and on January 5, 2009, a status conference was held. On February 17, 2009, Petitioner filed a motion to amend Claim I in his petition, which was granted on June 2, 2009. Oral argument on the amendment to the petition was scheduled for September 18, 2009, but on the request of Petitioner, argument was cancelled.*fn6
On February 16, 2010, Petitioner filed a motion for discovery in support of his petition. On October 12, 2011, we held oral argument on Petitioner's motion as well as his request for an evidentiary hearing on Claims II and III in his petition. We granted Petitioner's motion for discovery in part, but left the scope of the discovery exchanged up to the attorneys, and granted his request for an evidentiary hearing on Claims II and III. The evidentiary hearing was held on February 8 and 10, 2012. On February 13, 2012, we entered a supplemental briefing schedule. The petition, and the amendments thereto, are now fully briefed and ready for disposition.
A. Timeliness of a Federal Habeas Petition
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one-year period of limitations for filing an application for the issuance of a writ. See 28 U.S.C. § 2244(d)(1). The statute provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
The statute of limitations for filing a federal habeas petition is tolled during the time when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. 2244(d)(2). In addition, the limitation period may be equitably tolled in capital cases where a petitioner: (1) has been diligent in asserting his claims; and (2) rigid application of the statute would be unfair. Baker v. Horn, 383 F.Supp.2d 720, 744-45 (E.D.Pa. 2005) (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)).
B. Exhaustion of State Remedies; Procedural Default
Under AEDPA, a prerequisite to the issuance of a writ of habeas corpus on behalf of a person in state custody pursuant to a state court judgment is that the petitioner must have "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). In order to satisfy this requirement, a petitioner must have "fairly presented" the merits of his federal claims during "one complete round of the established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A federal claim is fairly presented to the state courts where the petitioner has raised "the same factual and legal basis for the claim to the state courts." See Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir. 2007).
If a petitioner fairly presents a claim to the state courts, but it was denied on a state-law ground that is "independent of the federal question and adequate to support the judgment," the claim is procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991). A claim is also procedurally defaulted if the petitioner failed to present it in state court and would now be barred from doing so under state procedural rules. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Where a claim is procedurally defaulted, it cannot provide a basis for federal habeas relief unless the petitioner shows "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
C. Standard for Issuance of the Writ
Where the federal court reviews a claim that has been adjudicated on the merits by the state court, § 2254(d) permits the federal court to grant a petition for habeas corpus only if: (1) the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or if (2) the adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2); see Parker v. Matthews, 132 S.Ct. 2148, 2151-53 (2012) (reiterating that the standard under 2254(d)(1) is highly deferential to state court decisions, and overturning Sixth Circuit decision granting habeas relief because the state courts decision denying relief was not objectively unreasonable).Factual determinations made by the state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)); Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010) (same).
Interpreting this statutory language, the Supreme Court explained that "[u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With respect to "the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.at 413. The "unreasonable application" inquiry thus requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id.at 409. As the Third Circuit has noted, "an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Williams, 529 U.S. at 411).
Where the state court decision does not constitute an "adjudication on the merits," but the petitioner's claim is ripe for habeas review, § 2254 does not apply and instead the federal court applies the pre-AEDPA standard, reviewing pure legal questions and mixed question of law and fact de novo. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). The state court's factual determinations, however, are still presumed correct pursuant to § 2254(e)(1).
III. ANALYSIS OF PROCEDURAL ISSUES & STANDARD OF REVIEW
Before addressing the merits of Petitioner's claims or his requests for an evidentiary hearing and discovery, we must first determine whether Petitioner's claims were timely filed and properly exhausted. In addition, as to the claims subject to review on the merits, we must determine whether the standard of review set forth in 28 U.S.C. § 2254 applies.
A. Timeliness of Claims Raised
Petitioner's conviction became "final," pursuant to § 2244(d)(1)(A), on June 10, 1996, the date his petition for writ of certiorari to the United States Supreme Court was denied. Wharton v. Pennsylvania, 517 U.S. 1247 (1996). On June 18, 1996, Petitioner initiated a pro se PCRA action, tolling the limitation period until the Pennsylvania Supreme Court affirmed the PCRA court's denial of his petition on December 16, 2002.*fn7 See 28 U.S.C. § 2244(d)(2) (providing that the limitations period for filing a federal habeas petition is tolled during the time when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending"). Petitioner then filed a timely federal habeas petition on October 6, 2003, approximately 312 days into his one-year limitations period.
On August 2, 2004, Petitioner filed an amended federal habeas petition, which added eight "new" claims,*fn8 approximately six months after his limitations period expired under § 2244(d). (Am. Pet. at 1.) Petitioner filed this amended petition prior to Respondent's response to his initial petition, and therefore, did not require leave of court to do so. Respondent contends that Petitioner's "new" claims are time-barred under § 2244(d). While Petitioner's amended petition was clearly filed beyond the limitations period, we may still review the "new" claims contained therein if they "relate back" to a claim contained in his original petition or are subject to equitable tolling. See Henderson v. DiGuglielmo, 138 Fed.Appx. 463, 465-67 & n.5 (3d Cir. 2005) (considering timeliness question in light of whether the amended petition included claims that "related back" to the original petition or were subject to "equitable tolling").
Federal Rule of Civil Procedure 15 applies to federal habeas petitions pursuant to 28 U.S.C. § 2242, and allows petitioners to file amendments that "relate back to the date of the original pleading[.]" See Mayle v. Felix, 545 U.S. 644, 655 (2005). Therefore, a claim in an amended petition that is filed outside of the statute of limitations is considered timely if it "arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading." FED. R. CIV. P. 15 (c); see
id. In Mayle, the United States Supreme Court directed that, under this standard, relation back is appropriate "[s]o long as the original and amended petitions state claims that are tied to a common core of operative fact[.]" Id. at 664 & n.7 (articulating standard and pointing to cases from circuit courts that determined an amended petition "related back" to an original petition where the amendment included claims arising from the same facts, but stated a different legal theory).
In light of this standard, we conclude that four of the "new" claims contained in Petitioner's amendment relate back to his original petition. Claims XVII and XIX each pertain to facts underlying Petitioner's arrest and confession, specifically the testimony of police officers regarding the manner in which he was apprehended and questioned on February 7, 1984. These operative facts are subject to Claims II and III of Petitioner's original petition. Similarly, Claim XX challenges the performance of Petitioner's trial counsel for failing to utilize a mental health professional and for failing to call Petitioner during his suppression hearing to advance his theory that his confession was psychologically coerced. These underlying facts are also related to Claims II and III. Compare (Am. Pet. at 6-7) with (Pet. at 40-53.)
Lastly, in Claim XXII, Petitioner alleges that his appellate counsel was ineffective for failing to "request re-argument from the Pennsylvania Supreme Court's denial of relief in the severance and Bruton claims raised on direct appeal." (Am. Pet. at 9.) This claim is predicated upon the factual and legal issues he raised in Claim VI of his original petition, which deals with whether Petitioner's rights under the Sixth Amendment were violated when the confession of his co-defendant was presented at their joint trial. See (Pet. at 86-93.)
However, the other "new" claims raised in Petitioner's amendment do not relate back to his original petition. Specifically, in Claim XVIII, Petitioner alleged that his trial counsel was ineffective for failing to impeach the testimony of Robert Hart, brother of Bradley Hart. By way of background, Robert Hart testified that, prior to the murders of Bradley and Ferne Hart, Petitioner told him he was "going to get" Bradley if he did not satisfy an alleged debt. (N.T., 6/18/85, p. 77.) Petitioner claims that this testimony "conflicted with his police statement," in which he did not disclose this information. (Am. Pet. at 6-7.) Neither Robert Hart's testimony nor his statement to police, however, are subject to a claim in Petitioner's original petition.
Similarly, in Claim XXI, Petitioner alleges that the prosecution improperly suppressed evidence of a "size eleven shoe print" found in the Harts' backyard until his 1992 penalty hearing. Petitioner claims that this "shoe print" could not have belonged to him or his co-defendant and would have provided him with a basis to assert that he was not one of "the actual killers." He further states that these facts, if disclosed, "could have supported his argument that his alleged confession to the killings was not true and was in fact, coerced." (Am. Pet. at 8-9.) The facts that form the basis of this argument, however, are not mentioned in Petitioner's original petition and are not subject to any claim contained therein.
Lastly, Petitioner contends that his trial attorney was deficient in failing to challenge the "affidavit of probable cause" for the issuance of a search warrant on his home and the sufficiency of the evidence for his conviction of burglary and conspiracy to burglarize the "Germantown Christian Assembly." (Am. Pet. at 10-11.) These two new claims, labeled XXIII and XXIV, respectively, raise factual issues that are outside of those presented in Petitioner's original petition. Indeed, Petitioner raised no allegations or legal argument addressing the facts underlying the issuance of the search warrant on his home or any of his burglary and conspiracy convictions.
Therefore, Claims XVIII, XXI, XXIII and XXIV are untimely and cannot provide the basis for federal habeas relief, unless Petitioner is entitled to equitable tolling of the limitations period. Equitable tolling is appropriate where a petitioner: (1) has been diligent in asserting his claims; and (2) rigid application of the statute would be unfair. Baker v. Horn, 383 F.Supp.2d 720, 744-45 (E.D.Pa. 2005) (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)). Given the procedural history of this case, we are unable to conclude that Petitioner has been diligent in asserting these claims. Petitioner filed his amended petition one year and eight months after the Pennsylvania Supreme Court affirmed the PCRA court's denial of his state petition and ten months after he filed his original federal petition. The "new claims" he included are based upon factual and legal theories that were previously available, but not raised within the federal limitations period. Further, Petitioner never submitted a memorandum or brief in support of his amended petition, although Respondent challenged each of these claims as untimely.
Moreover, even if Petitioner was entitled to equitable tolling, Claims XVIII, XXI, XXIII and XXIV are procedurally defaulted and/or without merit. For the sake of completeness, we will also consider these claims in connection with our full analysis of procedural default and the merits of the original petition.
B. Exhaustion, Procedural Default & AEDPA Deference
Petitioner raises twenty-three claims for relief, four of which are subject to review on the merits under 28 U.S.C. § 2254, because these claims were presented to the Pennsylvania Supreme Court on direct or collateral appeal and disposed of on the merits.*fn9 The parties disagree on several levels, however, as to whether we can reach the merits of Petitioner's remaining claims, and if so, whether our review should be governed by the principles of AEDPA deference set out in 28 U.S.C. § 2254.
First, Respondent contends that eleven of Petitioner's claims are procedurally defaulted because they were dismissed by the Pennsylvania Supreme Court on "independent and adequate" state waiver grounds.*fn10 Petitioner contends, however, that the Supreme Court's rejection of these claims rested upon inadequate state waiver grounds. (Resp. at 13-14; Pet'r's Reply at 3-6.)
Second, Respondent asserts that, even if we were to reach the merits of these eleven claims, we would be required to apply AEDPA deference to the opinion of the PCRA court, which denied each of these claims on the merits. Petitioner responds that he is entitled to de novo review of these claims. (Resp. at 13-14; Pet'r's Reply at 3-6.)
Third, Respondent asserts that Petitioner's remaining claims are also defaulted because he never "fairly presented them to the state courts and would be procedurally barred from doing so now." (Resp. at 11-12; Resp. to Am. Pet. at 6-7, 10-11, 13, 16-20.) Petitioner contends that he satisfied the "fair presentation" requirement with respect to one of these claims (Claim V), and that the claims he did not "present to the state courts" are automatically exhausted by operation of 42 Pa.C.S. § 9711(h)(3)(1), which requires the Pennsylvania Supreme Court to determine whether a sentence of death was the product of passion, prejudice or another improper factor. (Pet. at 5-6; Pet'r's Reply at 3-6.)
We address each of these issues in turn.
1. Are the Eleven Claims Dismissed by the Pennsylvania Supreme Court on Waiver Grounds Procedurally Defaulted?
On collateral review, the Pennsylvania Supreme Court determined that
nine of Petitioner's current claims were "defaulted under the PCRA
waiver provision, 42 Pa.C.S. § 9544(b)," because Petitioner failed to
present them on direct appeal.*fn11 Wharton III, 811
A.2d 978, 984-85, 989-90 (Pa. 2002). The Court also determined that
two other claims were waived pursuant to Pa.R.A.P. 302(a), because
Petitioner failed to present them in his PCRA petition.*fn12
Id. at 987. These eleven claims
are procedurally defaulted, therefore, provided that the procedural
rules the Supreme Court relied upon are "independent" of federal law
and an "adequate" basis for its determination. See Coleman
v. Thompson, 501 U.S. 722, 729, 730-31 (1991) (directing that the
independent and adequate state grounds doctrine is "jurisdictional,"
and can bar federal review of claims denied on the basis of state
procedural rules). Because these state procedural rules are clearly
independent of federal law, we turn to whether they are
A state procedural rule is adequate when it is "firmly established and regularly followed" at the time of the alleged procedural default. Ford v. Georgia, 498 U.S. 411, 424 (1991). From 1978 until 1998, the Pennsylvania Supreme Court applied the "relaxed waiver" rule in capital cases on PCRA appeal, whereby it reached the merits of claims in PCRA petitions "regardless of the failure of the petition to meet the appropriate procedural criteria." Banks v. Horn, 126 F.3d 206, 214 (3d Cir. 1997); see Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005). Applying this doctrine, the Pennsylvania Supreme Court did not consistently apply 42 Pa.C.S. § 9544(b) or Pa.R.A.P. 302(a), in capital cases prior to 1998.*fn13 We conclude, therefore, that these procedural rules are inadequate to bar our review, as each of Petitioner's eleven claims were allegedly defaulted when the relaxed waiver rule was still in effect.*fn14 See Wharton III, 811 A.2d at 981-82 (reflecting that Petitioner's direct appeal was disposed of in 1992, and that his state post-conviction petition was filed in 1996 and amended in 1997.)
2. Are these Eleven Claims Subject to De Novo Review, or must we Defer to the Opinion of the PCRA Court?
Pursuant to 28 U.S.C. § 2254(d), we may only grant habeas relief on claims "adjudicated on the merits in State court proceedings," if the state court's decision was contrary to, or an unreasonable application of, clearly established federal law or "based on an unreasonable determination of the facts" in light of evidence presented in state court. Respondent contends that we should apply this deferential standard to our consideration of these eleven claims, because the PCRA court's opinion of January 6, 2000, disposing of these claims on substantive grounds, constitutes an "adjudication on the merits" under § 2254(d).
A PCRA court's opinion, however, is only subject to AEDPA deference if it "finally resolves" a petitioner's claim, such that it has preclusive effect. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). Such a decision is "stripped" of preclusive effect where the Pennsylvania Supreme Court ultimately disposes of the claim on purely procedural grounds. Id. Therefore, because the Supreme Court ultimately denied each of Petitioner's eleven claims on procedural grounds, the PCRA court's decision is not subject to AEDPA deference. Accordingly, as to these claims, we must review legal questions and mixed questions of law and fact de novo. We still, however, must presume the correctness of any factual conclusions made by the state courts.*fn15 See id. at 115-17.
3. Was Petitioner Required to "Fairly Present" his Remaining Claims to the State Courts, and if so, did he Satisfy this Requirement?
Petitioner claims that all of his remaining claims are "record-based claims" that were automatically exhausted by virtue of the Pennsylvania Supreme Court's mandatory review procedure in capital cases. Under 42 Pa.C.S. § 9711(h)(3)(i), the Supreme Court is required to review the record in death penalty cases to determine whether "the sentence of death was the product of passion, prejudice or any other arbitrary factor[.]" Petitioner claims that this provision made it unnecessary for him to fairly present any of his "record-based claims" to the state courts, as is generally required under the exhaustion requirement set out in 28 U.S.C. § 2254(b)(1)(A).
Petitioner's argument, however, was rejected by the Third Circuit in Bronshtein v. Horn, which held that § 9711(h)(3)(i) does not circumvent the exhaustion requirement. 404 F.3d 700, 726-28 (3d Cir. 2005). In Bronshtein, the Court determined that a rule of "automatic exhaustion" of "record-based claim" in capital cases would be inconsistent with Pennsylvania's scheme of post-conviction review and the federal habeas scheme. Id. Indeed, if all "record-based claims" were effectively exhausted in capital cases, petitioners would be entitled to federal review of all possible constitutional claims supported in the record, regardless of whether or not the state court was even aware of these claims. Petitioner's argument, therefore, is without merit and we will proceed to consider whether he has satisfied the exhaustion requirement, or is otherwise entitled to review of his remaining claims.
Initially, Respondent urges that Petitioner has failed to exhaust a portion of Claim V in which he asserts that the imposition of a death sentence after his second penalty hearing violated the Due Process Clause of the Fourteenth Amendment. (Pet. at 74-86.) This claim pertains to Pennsylvania's death penalty statute, 42 Pa.C.S. § 9711(h)(2), which until 1988, required the Pennsylvania Supreme Court to "either affirm [a] sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence." In 1988, however, this provision was amended such that the Court could remand a defendant's case for a second sentencing hearing, which could ultimately result in another death sentence. See Commonwealth v. Young, 637 A.2d 1313, 1316 (Pa. 1993). Petitioner claims that the Supreme Court intentionally refused to issue an opinion remanding his case until the amendment passed, so that the effect of vacating his sentence would not foreclose the imposition of the death penalty. He claims the Court's reluctance to issue an opinion violated "fundamental notices of due process." (Pet. at 83-85.)
Respondent asserts that Petitioner never "fairly presented" this claim to the state courts. (Reply at 30.) Petitioner disagrees, pointing to the brief he submitted to the Pennsylvania Supreme Court on his initial PCRA appeal, which identified the Supreme Court's "delay" in deciding his direct appeal as a basis for a "due process" violation. See (Pet. at 74-86; Pet'r's Reply at 30; Tr. Or. Arg., 10/10/06, pp. 128-31.)
To fairly present a claim, a "petitioner must present a federal claim's 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. Vauhgn, 172 F.3d 255, 261 (3d Cir. 1999). In Evans, the Third Circuit held that a petitioner could alert a state court of the presence of a federal claim, without "citing chapter and verse of the constitution," by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Evans v. Court of Common Pleas, Del. Cty., Pa., 959 F.2d 1227, 1232 (3d Cir. 1992); see also Johnson v. Mechling, 541 F.Supp.2d 651, 659-61 (M.D.Pa. 2008) (providing a detailed review of Third Circuit and Supreme Court cases interpreting the "fair presentation" requirement).
In his PCRA petition and his submission to the Pennsylvania Supreme Court on PCRA appeal, Petitioner included a "due process" claim alleging that the Supreme Court purposely delayed resolution of his claim in anticipation of the pending amendment to § 9711(h)(2).*fn16 As such, we conclude that Petitioner presented the factual outline of a federal claim, which "call[ed] to mind a specific right protected by the Constitution" and placed the state courts on notice that he was asserting a constitutional violation. Cf. Nara v. Frank, 488 F.3d 188, 198-99 (3d Cir. 2007) (holding that petitioner "consistently presented the factual outline of a federal claim" and that the "Pennsylvania courts were not required to search beyond the pleading for a federal issue"). Because this claim was never addressed by the Pennsylvania courts on either substantive or procedural grounds, we must reach the merits of this claim and our review of all "legal questions and mixed questions of law and fact" is de novo. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001).
Respondent also contends that Claims XX, XXI, XXII, XXIII, and XXIV were not presented to the state courts and are now procedurally defaulted. Petitioner does not contest this argument and our review of the record reflects that he did not present these claims at any level of the state review process. Because Petitioner is now "clearly foreclosed" from exhausting these claims by the PCRA statute of limitations, see 42 Pa.C.S. § 9545(b), the claims are procedurally defaulted. See Bronshtein v. Horn, 404 F.3d 700, 726-28 (3d Cir. 2005) (citing Whitney v. Horn, 280 F.3d 240, 250-52 (3d Cir. 2002)). This default remains unless Petitioner demonstrates "cause and prejudice" for the default or that a "fundamental miscarriage of justice" will result if the claims are not reviewed on the merits. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner did not, however, submit a brief in support of his amended petition and has not provided any basis for the Court to conclude that this standard is satisfied. These claims are therefore procedurally defaulted and may not give rise to habeas relief.*fn17
Respondent asserts that the same conclusion is warranted with respect to: (1) an ineffective assistance of counsel claim included in Claim V; (2) an aspect of Claim I, in which Petitioner asserts that the prosecution used its peremptory strikes in a discriminatory manner prior to his second penalty hearing; (3) Claim XIX, which alleges that "counsel was ineffective in the guilt phase and penalty hearings for his abject failure to conduct any investigation;" and (4) Claim XVII, which alleges that the prosecution failed to correct false testimony during Petitioner's suppression hearing and trial. (Resp. at 30; Resp. to Am. Pet. at 6-7, 9-10, 16-17.) For the reasons stated infra, these claims are without merit and, thus, we need not address Respondent's procedural challenges.
To summarize our procedural rulings, of Petitioner's twenty-three
claims: (1) Claims XVIII, XXI, XXIII and XXIV are
untimely;*fn18 (2) Claims XX, XXI, XXII, XXIII, and
XXIV are procedurally defaulted; (3) Claims IV, V,*fn19
VI and XIII are timely, properly exhausted and subject to
AEDPA deference, because the Pennsylvania Supreme Court denied these
claims on the merits; (3) an aspect of Claim I and all of Claims II,
III, VII, VIII, X, XI, XII, XIV, XV, and XVI are timely, properly
exhausted and subject to de novo review, because the Pennsylvania
Supreme Court denied them on "inadequate" state procedural grounds;
and (4) aspects of Claims I and V, and all of Claims XIX and XVII are
likely defaulted, but will be considered in connection with our merits
IV. DEVELOPMENT OF THE FACTUAL RECORD IN FEDERAL COURT
Before examining the substantive grounds raised in the petition, we address Petitioner's requests for an evidentiary hearing and discovery. Petitioner requested an evidentiary hearing to develop the factual record in support of certain aspects of Claims II, III, IV, and V,*fn20 (Tr. Or. Arg., 10/10/06, p. 16), and filed a motion for discovery regarding Claims II, III, IV, V, XV, XVIII, XXI and XXII. (Doc. No. 97.) After oral argument, and for the reasons set out below, we granted Petitioner an evidentiary hearing and discovery as to Claims II and III, exclusively, and denied his motion for discovery in all other respects. See (Doc. Nos. 103, 106, 109.)
A. Standards Governing Requests for an Evidentiary Hearing & Discovery
A petitioner's request for an evidentiary hearing in a federal habeas proceeding is generally governed by 28 U.S.C. § 2254(e)(2). This provision provides that "[i]f the [petitioner] has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim," unless certain conditions are satisfied.*fn21 Where there is a deficiency in the factual record that is not attributable to the petitioner or petitioner's counsel, however, the requirements of § 2254(e)(2) do not apply and a federal court may hold an evidentiary hearing. Section 2254(e)(2), therefore, generally precludes federal courts from holding an evidentiary hearing where the factual record is undeveloped as a result of "a lack of due diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." SeeWilliams v. Taylor, 529 U.S. 420, 432 (2000). Diligence "depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court[.]" Id. at 435. Typically, this standard requires Petitioner to "request an evidentiary hearing in state court as required by state law." Id.
Where a petitioner has pursued a claim with diligence in state court, a district court has discretion to hold an evidentiary hearing. In exercising this discretion, the court "must consider whether such a hearing could enable an applicant to prove [his or her] factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007). This requires a petitioner to make a prima facie showing, which if proven, "would enable the petitioner to prevail on the merits of the asserted claim." Palmer v. Hendricks, 592 F.3d 386, 393 (3d Cir. 2010). If the "record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." See Schriro, 550 U.S. at 474.
A petitioner's request for discovery invokes Rule 6 of the Rules Governing Section 2254 cases. Understanding that a habeas petitioner, "unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course[,]" Bracy v. Gramley, 520 U.S. 899, 904 (1997), the Rule provides that:
A party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise. 28 U.S.C. § 2254 Rule 6(a). Good cause can be established only where a petitioner sets forth "specific allegations" that lead the Court to believe that, if the facts where fully developed, he may be entitled to relief. Marshall v. Beard, 2004 WL 1925141 at *1 (E.D.Pa. Aug. 27, 2004). This standard requires that a petitioner provide more than "bald assertions" or "conclusory allegations" in support of a discovery request. Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991). Once good cause is shown, the scope and extent of discovery is left to the discretion of the district court. Bracy, 520 U.S. at 909.
B. Petitioner's Requests for an Evidentiary Hearing & Discovery
Petitioner requested an evidentiary hearing to develop the facts surrounding his arrest and statement to police, and claimed that: (1) his trial counsel was constitutionally ineffective for failing to call available witnesses and present impeachment evidence to demonstrate that his "confession" was the product of physical coercion (Claim II);*fn22 and (2) his "confession" was improperly admitted against him, in violation of the Fifth, Sixth and Fourteenth Amendments (Claim III). (Pet'r's Reply at 9-18; Tr. Or. Arg., 10/10/06, p. 16.) As a preliminary matter, to be eligible for a federal hearing, Petitioner must have exercised "due diligence" in developing the factual basis for these claims in state court, pursuant to § 2254(e)(2). See Williams, 529 U.S. at 432, 435.
Petitioner did not raise these claims in his initial or amended PCRA petition. Rather, these claims were raised for the first time in a "Motion to Reargue," following the PCRA court's order dismissing his petition, in which Petitioner asserted he was entitled to relief, or in the alternative, an evidentiary hearing. Petitioner reasserted these claims in his "Initial Brief" to the Pennsylvania Supreme Court and requested remand for an evidentiary hearing. (Initial Br. of Appellant to Pa. Sup. Ct., Jun. 29, 1998, at 100 & Exs. 9, 10.)
The Pennsylvania Supreme Court ultimately denied these claims, concluding that they were waived under Pa.R.A.P. 302(a) and Pa.R.C.P. 902(B). See Wharton III, 811 A.2d 978, 982-983 (Pa. 2002). As noted previously, these procedural rules were applied inconsistently at the time of Petitioner's alleged "waiver" and are not adequate to support a procedural default. Although "procedural default" and the "due diligence" requirement are distinct concepts, the Third Circuit has held that a district court is not precluded from holding an evidentiary hearing under § 2254(e)(2) "for lack of diligence where the only reason a state court gives for denying an evidentiary hearing is . . . [an inadequate] state procedural rule." Lark v. Sec'y Pennsylvania Dept. of Corr., 645 F.3d 596, 614-17 (3d Cir. 2011).
Other than the Supreme Court's waiver ruling, there is no indication as to why Petitioner was denied an evidentiary hearing on these claims. We, therefore, concluded that § 2254(e)(2) did not bar an evidentiary hearing.*fn23 Further, Petitioner raised allegations in his petition that, if proven, "would entitle the applicant to federal habeas relief" on these claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Therefore, an evidentiary hearing was held on February 8 and 10, 2012 (discussed infra). We also concluded that Petitioner had established "good cause" in support of his discovery requests as to these claims, and directed the parties to meet and confer to determine the appropriate scope of discovery.*fn24 (Doc. No. 106.)
Petitioner also requested an evidentiary hearing to develop his claim that his Sixth Amendment right to counsel was violated during the second penalty hearing in 1992, when his attorney failed to obtain and introduce mitigating evidence contained in his prison files for the seven years following his 1985 conviction. (Pet. at 54-74.) The Pennsylvania Supreme Court denied this claim on the merits, holding that Petitioner had failed to demonstrate that his counsel's performance was deficient or that he was prejudiced by his performance. Wharton III, 811 A.2d 978, 988-89 (Pa. 2002). Regardless of whether Petitioner was diligent in presenting this claim to the state courts, an evidentiary hearing on this claim is not warranted.
In Cullen v. Pinholster, the United States Supreme Court held that "[i]f a claim is adjudicated on the merits by a state court, a federal habeas petition[er] must overcome the limitation of § 2254(d)(1) on the record before that state court." 131 S.Ct. 1388, 1400 (2011). In light of this decision, "district courts cannot conduct evidentiary hearings to supplement the existing state court record under 28 U.S.C. § 2254(d)." Brown v. Wenerowicz, 663 F.3d 619, 629 (3d Cir. 2011). Therefore, a petitioner is not entitled to an evidentiary hearing on claims that were "adjudicated on the merits" in state court and disposed of in a manner that satisfies the deferential standards set forth in § 2254(d)(1).
As reflected in our discussion of the merits of this claim, Petitioner has not demonstrated that the state court's conclusion resulted in a decision that was contrary to, or an unreasonable application of, clearly established federal law under § 2254(d)(1). His request for an evidentiary hearing on this claim is therefore denied. Further, even viewing Petitioner's allegations in his favor, he has not put forth a prima facie showing, which if proven, would enable him to prevail on the merits of this claim.*fn25
Petitioner claims he is entitled to an evidentiary hearing on Claim V, where he alleges a due process violation based upon the Pennsylvania Supreme Court's "delayed" resolution of his direct appeal in anticipation of an amendment to the Pennsylvania Death Penalty statute.*fn26 Petitioner also asserts that the application of the amendment to his case violated the Ex Post Facto Clause. (Pet. at 74-85.)
Although Petitioner fairly presented this claim to the state courts, and requested an evidentiary hearing as to "all claims" in his state petition, he did not specifically request a hearing on this claim or identify a material fact issue that had to be resolved.*fn27 We seriously question, therefore, whether Petitioner has exercised the due diligence required to be eligible for a federal evidentiary hearing. We further deny Petitioner's request for an evidentiary hearing because he has not indicated how such a hearing could advance his claim, which is based upon the alleged delay of the Pennsylvania Supreme Court in issuing a decision in his case. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (holding that in deciding to grant an evidentiary hearing, the court "must consider whether such a hearing could enable an applicant to prove the petitioner's factual allegations, which, if true, would entitle the applicant to federal habeas relief.").
Petitioner also filed a motion for discovery, requesting "draft opinions, internal memoranda and bench notes maintained by the Administrative Office of Pennsylvania Courts[,]" which were "generated by the Pennsylvania Supreme Court related to Petitioner's 1992 direct appeal" or which "relat[e] to the 1988 amendment of Pennsylvania's death penalty statute[.]" (Doc. No. 97 at 16-17.) Petitioner has failed to demonstrate "good cause" to warrant such discovery.
To demonstrate "good cause," a petitioner must set forth "specific allegations" that would lead the Court to believe that, if the facts where fully developed, he may be entitled to relief. Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). A petitioner may not engage in a "fishing expedition," and "bald and conclusory allegations do not provide sufficient ground to warrant requiring a state to respond to discovery." Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994).
Here, Petitioner alleges that "the Court" was "reluctant" to resolve his appeal, based upon the procedural history of his case, as well as the "tone" of Pennsylvania Supreme Court opinions decided while the previous version of the death penalty statute was in place. See (Pet. at 84; Tr. Or. Arg., 10/10/06, p. 121.) These generalized allegations do not provide sufficient grounds to justify discovery of the internal documents of the Pennsylvania Supreme Court, particularly considering that "[o]rdinarily, we presume that public officials have 'properly discharged their duties.'" Bracy, 520 U.S. at 909 (citation omitted) (noting that in cases where it is possible to "indulge" in the "presumption" that a judge properly discharged his or her duty, petitioner's claim "may be too speculative to warrant discovery").
In Bracy, the United States Supreme Court held that a petitioner had established good cause for discovery on a due process claim based upon judicial bias. 520 U.S. at 901, 908-09. In reaching this conclusion, the Court explained that the petitioner had "supported his discovery request by not only pointing to [the judge's] conviction for bribe taking in other cases, but also to additional evidence . . . that lends support to his claim that [the judge] was actually biased in petitioner's own case[, including] 'specific allegations' that his trial attorney" may have agreed to take his capital case to trial quickly to quiet suspicion over two "rigged" cases the judge had recently presided over. 520 U.S. at 908-09. Here, there are no allegations or evidence even approaching the situation described in Bracy, and we thus find that Petitioner has failed to demonstrate "good cause" to justify his discovery request.
Petitioner also requests discovery on Claim XV, in which he alleges that the prosecution failed to produce medical records regarding the infant daughter of Bradley and Ferne Hart, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and due process. (Pet. at 157-60; Am. Pet. at 5-6.) Petitioner has not established good cause for discovery on this claim. As discussed in our consideration of the merits, Petitioner has not provided any allegations that lead the Court to believe that, if the facts where fully developed, he may be entitled to relief.*fn28
V. ANALYSIS OF THE MERITS
As previously detailed, we must reach the merits of eighteen of Petitioner's twenty-three claims. Rather than discuss these claims in numerical order, we will first review the claims that relate to the guilt phase of the trial and then proceed to consider the claims that deal exclusively with the penalty hearings and the Pennsylvania Supreme Court's review of Petitioner's death sentence.
A. Claim I -- Did the Prosecution Use Peremptory Strikes in a Racially Discriminatory Manner?
Petitioner contends that the prosecution used its peremptory strikes
in a racially discriminatory manner during jury selection prior to his
1985 trial and prior to his 1992 penalty hearing, in violation of
Batson v. Kentucky, 479 U.S. 79 (1986). (Pet'r's Reply at 44-45.)In a
letter to the Court, however, Petitioner acknowledged that Third
Circuit precedent precludes his Batson claims, because there is no
evidence that counsel objected to the jury selection process at the
time of his 1985 trial or his 1992 penalty hearing.*fn29
(Doc. No. 95) (citing Lewis v. Horn, 581 F.3d 92, 102 (3d
Cir. 2009) (requiring a contemporaneous objection "as a prerequisite
to raising a Batson challenge"). Further, Petitioner does not allege
that such an objection was made at either of these
proceedings. (Pet. at 11-40.) This claim will therefore be
B. Claim II -- Was Petitioner's Trial Counsel Ineffective for Failing to Discover and Utilize Available Evidence to Demonstrate his Confession was Involuntary?
1. General Background Regarding Ineffective Assistance Claims and
Petitioner claims that his trial counsel was ineffective for failing to present evidence to demonstrate that his confession and the waiver of his Miranda rights were the product of physical coercion. In support of this claim, Petitioner primarily focuses on injuries he sustained to his head and neck. These injuries were described in a medical report, dated February 7, 1984, as a "[s]mall laceration on scalp [without] gaping, [without] bleeding," and "[a]brasions on right side of neck[.]" (Resp't's Evid. Hearing Ex. 4); see (N.T., 6/28/85, pp. 32-33.) Petitioner urges that his trial counsel failed to utilize available evidence to undermine the prosecution's contention that he sustained the injuries during his arrest -- a position that was based primarily upon the testimony of the assigned detective, Charles Brown. (Pet. at 40-42; N.T., 6/28/85, pp. 176-77, 180.) Before fully addressing this allegation, we will provide the necessary factual background on this issue.
On February 7, 1984, Detective Brown participated in the execution of an arrest warrant for Petitioner. At Petitioner's trial and pre-trial suppression hearing, Brown testified that he approached the front door of Petitioner's home at approximately 1:15 a.m. with his partner, Detective Frank Miller, and a uniformed officer, while other officers either went to the back of the residence or remained in front. Brown stated that he "knocked several times" on the door, until he saw Petitioner descend the staircase from the second floor and say "who is it[.]" Brown testified that when he announced it was the police, Petitioner "turned and started running back up the steps." Brown then "kicked the door in" and chased Petitioner up the stairs to a second floor hallway, where he was able to "grab him by the back of his neck" and "tackle" him. Brown then led Petitioner up to his third floor bedroom, where his girlfriend, Tywana Wilson-Carter,*fn31 was in bed. Brown testified that he then noticed that Petitioner had a "bruise or slight abrasion" on the "top portion of his head." (N.T., 6/21/85, pp. 72-73, 82-91; N.T., 6/24/85, pp. 101-15); see (N.T., 5/23/85, pp. 54-58, 60-61, 94-103.)
Brown further testified that the police took Petitioner into custody,
and brought him to the Police Administration Building for questioning.
Petitioner ultimately waived his Miranda rights and provided a
detailed confession, which Brown read to the jury.*fn32
Brown denied using any physical force, threats or promises to
obtain the statement. After providing the statement, Brown explained
that Petitioner asked to see Wilson-Carter and the two spent "several
moments" alone together in the interrogation room. Brown testified
that he then escorted Petitioner to "Arraignment Court," where he was
arraigned on charges of "murder; two counts, robbery, burglary,
At trial, Brown indicated that Petitioner was then "photographed and fingerprinted[.]" Three of these photographs were entered into evidence at trial, including two depicting Petitioner's face and profile, and another depicting the "length of the [Petitioner] from his knees up[.]" (N.T., 6/21/85, pp. 88-90, 93-100; N.T., 6/24/85, pp. 50, 66-68, 72-74); see (N.T., 5/23/85, pp. 61-84, 104-33.)
Petitioner's trial counsel, William T. Cannon, challenged the voluntariness of the confession at the suppression hearing and at trial. At an evidentiary hearing held before this Court on February 10, 2012, trial counsel confirmed that he filed a motion to suppress, asserting that Petitioner did not voluntarily waive his Miranda rights and that his statement was coerced by police. At the close of the suppression hearing, however, trial counsel decided to concede that Petitioner's statement was voluntary because he believed that he did not have sufficient evidence to support his motion and "it was pretty obvious to [him] . . . that [the trial judge] was going to deny the motion to suppress." (N.T., 2/10/12, pp. 81-83, 108); see (N.T., 5/23/85, pp. 146-47) (reflecting that, at the close of the suppression hearing, trial counsel stated that "[t]here is no basis for this court for making any conclusion other than those statements were obtained in a voluntary manner so I'm not going to address myself any further on the issue of the admissibility of the statements."). Following the suppression hearing, and based on Brown's testimony, the trial court determined that Petitioner's statement was admissible and found that "no physical force was used by the police to obtain [the] statement." (Resp., Ex. A at 24.)
Trial counsel did, however, argue before the jury that Petitioner's confession was involuntary because "there was really no other defense." (N.T., 2/10/12, pp. 80, 109.) Counsel urged the jury to discredit Brown's testimony about the manner of Petitioner's arrest and the timing of his injuries, and asserted that Petitioner was "struck in that interrogation room" and that his statement "flow[ed] . . . from physical coercion." (N.T., 6/28/85, pp. 125, 133, 138, 142.) At the close of Petitioner's trial, the court instructed the jury that it was required to disregard Petitioner's statement in evaluating his guilt if it determined that the statement was involuntary under the totality of circumstances. (N.T., 7/1/85, pp. 27-28.)
In an attempt to impeach Detective Brown's account at trial, Petitioner's counsel offered the testimony of Petitioner's eighteen-year-old sister, Beverly Young Tyler (Young). Young testified that on the night of Petitioner's arrest, she was on the phone in her second floor bedroom when she "heard a loud banging on [the] front door[,]" about "five knocks," and then a "loud boom," signifying that the front door had been forced open. Young explained that a "minute or two" after she first heard knocking, she "hung up the phone," opened her bedroom door, and saw police officers "coming up the first floor staircase[,]" including Brown. She claimed that, before Brown proceeded to the third floor, she asked him "what was going on" and he said "We come to arrest Robert Wharton." Contrary to Brown's version of events, Young testified that she never saw a "scuffle" in the second floor hallway. (N.T., 6/28/85, pp. 19, 23-24, 27-28.)
During Young's testimony, it was revealed that she was present in the courtroom during the first day of Brown's trial testimony. Young testified that she approached trial counsel following Brown's testimony and informed him "that what [Brown] testified to was not true about scuffling my brother Robert Wharton on the second floor by the back of his neck [sic]." This was the first time she spoke to trial counsel about this issue, and he was not planning to offer her as a witness. Trial counsel, therefore, did not "sequester" her in accordance with a court order. Although the court permitted Young to testify, the jury was instructed that witnesses were not ...