The opinion of the court was delivered by: (Judge Conner)
Petitioner Henry Christopher Stubbs, III ("petitioner"), a Pennsylvania state inmate, initiated this action with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the following 2003 Court of Common Pleas of Luzerne County convictions: two counts of First-Degree Murder of Elena Herring ("Herring") and her six-year-old daughter Viktoria Ivanova ("Ivanova"); Rape; Burglary; two counts of Theft by Unlawful Taking or Disposition; Robbery; Persons Not to Possess, Use, Manufacture, Control, Sell or Transfer Firearms; two counts of Access Device Fraud. (Doc. 1; Doc. 21-8, at 1.) In his petition, he raises a number of ineffective assistance of counsel claims, argues that the Commonwealth violated the dictates of Brady v. Maryland,373 U.S. 83 (1963), and asserts that the PCRA court's denial of relief constituted a due process violation. (Doc. 1, at 7.)
For the reasons that follow, a de novo review will be conducted with respect to the "sink traps and washer trap" claim raised in petitioner's argument that counsel was ineffective in failing to present items of scientific value which would have been helpful to his defense. (Doc. 1, at 68.) Relief will be denied as to all other claims.
I. Background & Procedural History
The following comprises the "approximate account of the facts underlying Stubbs's conviction." (Doc. 21-8, at 2.)
In December 2001, Herring and her daughter occupied a 'double-block' building in Wilkes-Barre, the other half of which was occupied at that time by Stubbs and his mother, Frances Guerrero. The evening of December 6, Stubbs complained to his girlfriend, Tammy Carroway, that he wanted money, and that he had seen some in Herring's house. He departed, and Carroway fell asleep. At approximately 1:30 A.M., Carroway testified, she awakened to the sound of Herring's and her daughter's voice; Herring sounded as though she was pleading for her life. Silence fell, and Carroway returned to sleep.
Around 2:30 A.M., Carroway awakened and went looking for Stubbs. She went outside to Stubbs's car, and set off its alarm. She then saw Stubbs running from the direction of Herring's half of the building. He was carrying firearms wrapped in a blue blanket. He placed these in Herring's vehicle and drove off. The next morning at 7:30, Stubbs returned home and awakened Carroway. He left late on the evening of December 7.
At approximately 9:30 P.M., concerns grew when
Herring did not answer her phone. Herring's brother-inlaw went to her home, retrieved a hidden key, and entered the apartment. Inside, he found Herring's dead body lying on the living room floor. He found Herring's daughter's dead body hanging by the neck from the basement ceiling.
At approximately 11:00 P.M., Stubbs picked up another girlfriend, Tawanda Maddox, in Philadelphia. He immediately drove her and her children back to Wilkes-Barre, arriving at approximately 3:00 A.M. on December 8. When they arrived at Maddox's apartment she overheard Stubbs tell his brother-in-law that someone had been killed on Stubbs's mother's block. He carried into Maddox's apartment items wrapped in a blue blanket. Next, Maddox escorted Stubbs to another location, where he moved a gold vehicle. Eventually, they went to a local hotel; Stubbs still had possession of the blue blanket and its contents. A few days later, on December 12, Stubbs was apprehended by Philadelphia police on a warrant unrelated to the above-related events. Wilkes-Barre detectives drove to Philadelphia to interrogate Stubbs and then escorted him back to Wilkes-Barre.
Expert testimony established that both Herring and her daughter were killed by ligature strangulation, Herring by a shoe lace and Ivanova by hanging. Ivanova also suffered blunt-force traumas to the face. Herring had been raped at approximately the same time as she had been killed. Genetic evidence indicated that Stubbs had had recent sexual contact with Herring. He conceded that contact, but contended that it had been consensual, and that he and Herring, who was married, had been carrying on a discreet relationship. The jury found Stubbs guilty of two counts of first-degree murder, and various related charges. When the jury failed to impose the death penalty, the trial court sentenced Stubbs to two life sentences for the murders of Herring and Ivanova. On a later date, the court imposed sentences on the other charges. (Doc. 21-8, at 2-4.)
Stubbs filed a timely post-trial motion, which was denied on February 26, 2004. (Doc. 21-4.) A timely notice of appeal to the Superior Court of Pennsylvania was filed raising issues pertaining to pre-trial matters of voir dire, the trial court's refusal to change venue due to pre-trial publicity, the trial court's refusal to sequester the jurors to the extent Stubbs requested, and the admissibility and sufficiency of the evidence. (Doc. 21-8, at 4-5.) On April 4, 2005, the judgment of sentence was affirmed. (Id. at 30.) A petition for allowance of appeal was filed in the Supreme Court of Pennsylvania. (Doc. 21-9). It was denied on December 12, 2005. (Doc. 21-10, at 4; Commonwealth v. Stubbs, 876 A.2d 470 (Pa. Super. 2005 (unpublished memorandum), appeal denied, 586 Pa. 726, 890 A.2d 1058 (2002).) Thereafter, Stubbs filed a petition for writ of certiorari with the Supreme Court of the United States, which was denied on May 22, 2006. (Doc. 21-10; Stubbs v. Pennsylvania, 547 U.S. 1152 (2006).)
On May 17, 2007, Stubbs filed a Motion for Post Conviction Collateral Relief under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. § 9541 et. seq. (Doc. 21-11.) An evidentiary haring was held and, on November 29, 2007, PCRA relief was denied. (Doc. 21-16, at 7.) A timely appeal was filed raising four grounds of ineffective assistance of counsel, a claim that his due process rights were violated when the Commonwealth suppressed evidence favorable to the defense in contravention of Brady v. Maryland, 373 U.S. 83 (1963) claim, and a claim that the PCRA court's denial of relief was an abuse of discretion that violated due process. (Doc. 21-16, at 7, 9.) The superior court affirmed the PCRA court's Order denying relief on March 24, 2010. No further review was sought.
On September 2, 2010, the instant petition for writ of habeas corpus was filed seeking relief on the following grounds:
1. Whether trial counsel provided effective assistance of counsel under the federal Constitution where counsel failed to:
A) challenge the Commonwealth's misrepresentation of DNA evidence;
B) challenge the Commonwealth's misrepresentation of material evidence;
C) present evidence of scientific relevance which would have been helpful to the defense;
D) object to prosecutor's improper comment during closing arguments.
2. Whether the Commonwealth violated the dictates of Brady v. Maryland by withholding the fugitive felony arrest warrant of one of its witnesses.
3. Whether the PCRA court's denial of (PCRA) relief is an abuse of discretion that violates due process.
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (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, 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petitioner has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). In the case at hand, it is undisputed that the issues raised by petitioner have been fully exhausted.
Once a court is satisfied that the exhaustion requirement has been met, and a merits review of a claim is warranted, as is the case here, section 2254(d) of Title 28 of the United States Code provides, in pertinent part, that an application for a writ of habeas corpus premised on a claim previously adjudicated on the merits shall not be granted unless the decision is contrary to, or involves an unreasonable application of, clearly established federal law, or is 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). AEDPA thus limits a federal court's authority to grant habeas relief when a state court has previously considered and rejected the federal claim on the merits.
The United States Court of Appeals for the Third Circuit recently set forth the following analyses applicable to the three legal inquiries:
Consistent with Supreme Court precedent, we read § 2254(d) to require three distinct legal inquiries. See, e.g., Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 785 (2011). The first is whether the state court decision was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). The second is whether the state court decision "involved an unreasonable application of" such law. § 2254(d)(1). And the third is whether the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented" to the state court. § 2254(d)(2).
The test for § 2254(d)(1)"s "unreasonable application of" clause is as follows: "[a]n 'unreasonable application' occurs when a state court 'identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts' of petitioner's case." Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 519, 520 (2003)). For purposes of § 2254(d)(1), "[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal quotations omitted). "Under § 2254(d)(1)'s 'unreasonable application' clause . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 75-76 (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). Rather, "[t]he state court's application of clearly established law must be objectively unreasonable" before a federal court may grant the writ. Andrade, 538 U.S. at 75.
The test for § 2254(d)(1)'s "contrary to" clause is whether the state court decision "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable from a decision of [the Supreme] Court but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405, and Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)). Of course, a state court's resolution of a question that the Supreme Court has not resolved can be neither contrary to, nor an unreasonable application of, the Court's precedent. See Kane v. Garcia Espitia, 546 U.S. 9 (2005).
The test for § 2254(d)(2)'s "unreasonable determination of facts" clause is whether the petitioner has demonstrated by "clear and convincing evidence," § 2254(e)(1), that the state court's determination of the facts was unreasonable in light of the record. See Rice v. Collins, 546 U.S. 333, 338-339 (2006) ("State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by 'clear and convincing evidence.'") (quoting § 2254(e)(1)) (citing Miller-El v. Dretke, 545 U.S. 231, 240 (2005))); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) ("Under the § 2254 standard, a district court is bound to presume that the state court's factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence."). Importantly, the evidence against which a federal court measures the reasonableness of the state court's factual findings is the record evidence at the time of the state court's adjudication. Cullen v. Pinholster, --- U.S. ---, 2011 WL 1225705, at *11 (Apr. 4, 2011).
Rountree v. Balicki, 640 F.3d 530, 537-38 (3d Cir. 2011). Like the "unreasonable application" prong of paragraph (1), a factual determination should be adjudged "unreasonable" under paragraph (2) only if the court finds that a rational jurist could not reach the same finding on the basis of the evidence in the record. 28 U.S.C. § 2254(d)(2); Porter v. Horn, 276 F. Supp. 2d 278, 296 (E.D. Pa. 2003); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000); cf. Jackson v. Virginia, 443 U.S. 307, 316 (1979). Only when the finding lacks evidentiary support in the state court record, or is plainly controverted by the evidence, should the federal habeas court overturn a state court's factual determination. Porter, 276 F. Supp. 2d at 296; see also Williams, 529 U.S. at 408-09.
Significantly, the AEDPA precludes habeas relief on a "claim that was adjudicated on the merits in State court proceedings" unless the petitioner has shown that the state court proceedings "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 . . . 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). By its own terms, § 2254(d) applies only to claims already "adjudicated on the merits in State court proceedings." If the court determines that the state courts have not reached the merits of the claim, the deferential standards provided by AEDPA do not apply. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). "In such an instance, the federal habeas court must conduct a de novo review over pure legal questions and mixed question of law and fact, as a court would have done prior to the enactment of the AEDPA." Id. (citing McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).
The merits of the claims presented by petitioner will now be analyzed in accordance with these standards.
A. Ineffective Assistance of Trial Counsel
Petitioner argues that he was provided ineffective assistance when counsel failed to challenge the Commonwealth's misrepresentation of DNA evidence, failed to challenge the Commonwealth's misrepresentation of material evidence, failed to present scientifically relevant evidence, and failed to object to an improper comment made by the prosecution during closing arguments. These claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), which constitutes "clearly established Federal law" for AEDPA purposes. Williams v. Taylor, 529 U.S. 362, 391 (2000); Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010). A habeas petitioner asserting a claim under Strickland must establish two elements. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 689. Thus, counsel's performance will be deemed deficient only if it "fell below an objective standard of reasonableness." Id. at 688. The question ultimately is "whether, in light of all the circumstances, the [challenged] acts or omissions were outside the wide range of professionally competent assistance." Id. at 690.
"Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Id. at 687. To establish prejudice, "[t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Under the heading "Argument C) counsel's failure to present items of scientific value which would have been helpful to petitioner's defense" Stubbs includes a claim under the subheading "sink traps and washer trap" (Doc. 1, at 53, 68) that, for the reasons set forth below, is subject to Pre-AEDPA de novo review.
The PCRA court framed the issue as follows:*fn1
Appellant's next subheading is entitled 'Sink traps, washer trap and gloves'. In this context Appellant apparently claims Trial Counsel was ineffective in not challenging the Commonwealth's contention the Appellant washed a green sweater worn during the killings. It is noted that sink traps and contents from the kitchen and bathroom of the victim's residence, as well as the Appellant's gloves tested 'negative for the presence of blood'. " (Doc 21-13, at 16.) This issue was addressed as [sic] pages 59 through 61 of the PCRA transcript. In response, Trial Counsel stated:
Yeah, what he's referring to is in the closing argument, I believe, Attorney Lupas was eluding to the testimony of Tammy Carroway where she indicated sometime that morning Henry had come to her, insisted that she take this green sweater, that they put it in the wash and that she wash it, and that Henry on all prior occasions had usually sent the sweater out for dry cleaning but this time he was addiment (sic) that he wanted it washed. She related to him the fact that she couldn't throw it in with the white clothes she was washing. He wanted it thrown in anyway.
From that, Lupas was arguing an inference. The reason Henry wanted the sweater washed that morning was because he was concerned there may be blood on it. That's not to say necessarily there was blood on it. In fact, the Prosecution in their case never presented any evidence in particular that, in fact, there was blood actually found on the sweater. Their theory was if there was any blood on it, Henry put it in the washing machine to ensure that was eliminated. That's where Mr. Lupas was coming from, and, I think, it was fair argument. (PCRA N.T. pages 60-61).
We have reviewed then District Attorney Lupas' argument at pages 2269 through 2337 of the trial transcript. During the closing Mr. Lupas references the testimony of a Commonwealth witness, Tammy Carroway, establishing Mr. Stubbs demanded the green sweater be washed. . .
A prosecutor is permitted to respond to defense arguments with logical force and vigor. Commonwealth v. Judy, 978 A.2d 1015 (Pa. Super. 2009). Further a prosecutor may argue all reasonable inferences that find support in the evidence. Commonwealth v. Rios, 920 A.2d 790 (2007). A prosecutor may make any argument based upon the evidence as to the nature of the crime. A prosecutor may urge the jury to draw any inference that is reasonably supported by the evidence. Id., 920 A.2d at 808. We find the District Attorney's comment in no way improper and therefore Appellant's ineffectiveness claim fails. (Doc. 21-13, at 16-16.) Stubbs argues that "[t]he PCRA court completely misconstrued this issue and analyzed it as if Petitioner had raised a prosecution improper comment claim stemming from closing argument. See PCRA courts [sic] opinion at pages 15-17. Therefore, the PCRA court failed to address the merits of Petitioner's claim where Petitioner clearly argue[d] trial counsel's ineffectiveness due to counsel's failures to present scientific evidence, e.g., sink traps and washer trap, which held the principles to prove that Petitioner did not wash any crime scene blood from his hands or any other evidence. The state court's failure to find ineffective assistance of counsel on this claim 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." (Doc. 1, at 68.) He further states that his "claim on appeal was not then nor is it now based on the Commonwealth establishing that blood was 'found' on his clothing or property, because there was never any blood connecting petitioner to the crime(s)." (Id. at 72.) He is challenging "the Commonwealth 'establishing' the presumption' that petitioner washed blood evidence away, and trial counsel's failure to present the scientific evidence and conclusion in a defense effort to disarm that presumption." (Id.) Stubbs argues that the state courts failure to address trial counsel's effectiveness in the context of his failure to present scientific evidence concerning the lack of blood in the sink traps and washer trap requires this Court to conduct a de novo review of the issue based on the following:
The Petitioner must reiterate that; this claim is not based on the Petitioner's blood, or ineffective counsel for failing to challenge an improper comment by the prosecutor. As this Court will note, should it conduct its required de novo review; the Petitioner has preserved this claim repeatedly to challenge trial counsel's ineffectiveness for his failure to present sink traps, and washing machine trap evidence as a defense strategy to challenge the prosecutions [sic] evidence which suggested to the jury that Petitioner washed Viktoria Ivanova's blood from his hand(s), see (Petitioner's Habeas Corpus, pg. 43), and (PCRA hearing, pp. 51-54); and the prosecutions [sic] evidence which ...