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Luther Glenn v. Supt. James Wynder; District

September 19, 2012

LUTHER GLENN,
PETITIONER,
v.
SUPT. JAMES WYNDER; DISTRICT ATTORNEY FOR THE COUNTY OF ALLEGHENY; AND THE ATTORNEY GENERAL FOR THE STATE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM AND ORDER

Petitioner, Luther Glenn (hereinafter referred to as "Glenn" or "Petitioner"), a state prisoner currently incarcerated at the State Correctional Institution in Greensburg, Pennsylvania has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be denied.

A.Relevant Factual and Procedural History

The facts of the crimes as set forth by the Pennsylvania Superior Court in Petitioner's direct appeal from his judgment of sentence are as follows:

On December 17, 1997, at approximately 6:00 AM Officer Michael Kunsa of the City of Pittsburgh Police Department was on routine patrol in the Homewood section of the city when he was stopped by Georgianna ("Brandy") Cotton, who told him that a man had been shot in the doorway on Sterrett Street. The victim, who was pronounced dead at the scene, was identified as William Anthony Griffin. Detectives, after receiving information from a confidential informant that appellant had been involved in a shooting, placed appellant's photograph in a photo array, and on December 19, 1997, Ms. Cotton identified the appellant from the photo array as the man whom she saw commit the murder.

On December 22, 1997, Officer Douglas Drwal of the West View Police Department observed a vehicle driven by the appellant traveling at "an extremely high rate of speed." The officer followed, and when appellant's vehicle accelerated and crossed over the double yellow centerline, the officer activated his overhead lights and siren. After a vehicle pursuit of about three miles, during which appellant drove through five or six red lights and stop signs, the vehicle crashed. Appellant fled but was found lying in some weeds after he was chased for two city blocks. Charina Johnson, who was a passenger in appellant's vehicle at the time, gave a statement to police in which she said that appellant had attempted to get her to lie and say that he was at her house at 5:30 a.m. on the day of the murder.

The following month provided two events with a nexus to this Court. While in custody, on January 28, 1998, appellant told fellow inmate Jerry Pratt of his involvement in the murder and of his plans to have someone kill Georgianna Cotton. Appellant mentioned the name Monte Blair as the person who would "take care of" the witness. Two days earlier, on January 26, 1998, police officer Isadore Trunzo observed a vehicle traveling at a high rate of speed and failing to stop for two stop signs. Officer Trunzo, having activated overhead lights and sirens, pursued the vehicle, which ultimately crashed. After the driver fled, the officer discovered a Glock model 21 semi-automatic handgun with thirteen live rounds and a laser sight on it on the driver's seat. The automobile also contained mail addressed to Monte Blair and a photo of Blair, whom Officer Trunzo identified as the person who had fled the vehicle. Blair was apprehended several months later. (ECF No. 12-2 at 27-29.)

On January 21, 1998, a Coroner's Inquest was held with a sole witness, Cotton, who testified that she had been drinking since at least midnight and all through the early morning hours at the Aurora Club on the day of the homicide. (APP 694-698.)*fn1 She left the club at 4:30 a.m. and started walking down to Sterrett Street. (APP 698.) On the way, she saw "Ray-Ray" (Petitioner), "Tone" (the victim) and someone else. (APP 698.) Cotton testified that she saw Ray-Ray going into a house in the neighborhood and Tone standing outside. (APP 698.) At that point, Cotton went into an abandoned apartment to get high on crack and marijuana. (APP 703, 705-07.) Before she was able to assemble her paraphernalia, she heard arguing and so she walked onto the balcony. (APP 708-09.) She stated that she saw Ray-Ray and Tone arguing on the corner of Kelly and Starrett directly beneath her. (APP 709.) She further testified that she heard Ray-Ray say: "Nigga, I'm gonna kill you."*fn2 (APP 688, 712.) At that point, Cotton went back into the building to finish her business. (APP 714.) About ten to twenty seconds later, however, she heard a screech of tires and looked back outside and saw Ray-Ray jump out of a blue station wagon with a gun in his hand*fn3 and heard six gunshots being fired. (APP 714-16, 722.) She came downstairs from the building and saw Tone laying on the steps grasping for air and a lot of people running away on the street outside. (APP 719.) The very last thing that Cotton said in the coroner's inquest was this: "I don't know what the shooter looked like. The only thing I know is I know what he had on. Now I'm not answering no more questions." (APP 722.) Based on this testimony, the Court found that the Commonwealth had proved a prima facie case against Petitioner and held him over for trial. (APP 729.)

A week later, on January 28, 1998, Petitioner and fellow inmate Jerry Pratt were transferred from the State Correctional Institution at Pittsburgh (SCI-Pittsburgh) to the Allegheny County Jail where they were briefly held together in the same cell. (APP 425-26, 1251-52.) Pratt was transferred to be questioned regarding a credit card investigation while Petitioner was transferred for a preliminary hearing at Magistrate City Court based on the charge that he illegally possessed a firearm in connection with the Griffin homicide. (APP 426-27, 463.) During the time they shared a cell, Petitioner allegedly confessed to Pratt that he had committed the murder and further told him that a female witness, whose credibility was suspect anyway on the basis that she was a known crackhead, would be taken care of by a person known as Monte Blair. (APP 427-29, 434.)

At the time he was held with Glenn, Pratt was incarcerated as a parole violator based on his arrest for driving violations on December 8, 1997.*fn4 (APP 432-33.) Because he was on parole at the time of his arrest, he gave authorities his brother's name instead of his own. (APP 419.) As a result, he was arrested for falsification to authorities as well as other charges. (APP 418-19, 421-22.) On January 29, 1998, Pratt wrote a letter to the Allegheny County District Attorney Stephen Zappala offering his cooperation in the homicide case of Luther Glenn in exchange for a reduction of the charges currently pending against him. (APP 422, 424, 438-39.) In his letter to the District Attorney, Pratt related that he wanted his current charge of falsification to authorities reduced to a summary offense whereby he would pay only a fine and thus avoid the violation of his parole. (APP 424, 439.)

On February 23, 1998, Pratt was interviewed by Assistant District Attorney Ross Lenhardt and county detectives Dennis Logan and Jill Smallwood.*fn5 During the interview, Pratt explained that on Wednesday, January 28, 1998, he was in a holding cell at the Allegheny County Jail awaiting to be questioned by city detectives. (APP 1118.) Also in the same holding cell was Petitioner who told Pratt that he was there for a firearms violation. (APP 1118.) Petitioner further told Pratt that he had been at a deputy coroner's inquest for a body. (APP 1119.) He stated that a girl was the main witness and that she told detectives that she had seen him shoot a man. (APP 1119.) Petitioner further told Pratt that her credibility wouldn't stand up in trial because she was a drunk and a crackhead. (APP 1119.) Petitioner then related that the victim had accused him of robbing him and said that "he got out of line and I handled business." (APP 1120-21.) When Pratt asked him about the witness, Petitioner said that she could be handled too. (APP 1120-21.) When Pratt asked him how he was going to do that Petitioner identified Monte Blair and another individual as persons whom could take care of Cotton if the need arose. (APP 1120.) Petitioner also stated that Blair almost got "knocked" because he flipped a blue car that had some guns in it. (APP 1120.) When Pratt asked Petitioner if he had any conscience about the killing, Petitioner stated that when somebody gets out of line, he smokes them. (APP 1120.) After rendering this information to the authorities, the pending unsworn falsification charge against Pratt was dropped. (APP 431-32.)

On January 26, 1998, two days prior to the conversation between Pratt and Petitioner, police attempted to initiate an automobile stop on Perry Highway where the driver gave chase and ultimately crashed into a telephone pole before fleeing on foot. (APP 536-39.) While no one was apprehended at the scene, the police officer discovered a photograph of Monte Blair and mail addressed to him in the vehicle and a .45 Glock semi-automatic handgun with 13 rounds of ammunition and a laser sight on the driver's seat. (APP 540-41.) Police identified Blair as the individual who fled from the vehicle. (APP 541.) Blair was ultimately prosecuted in connection with this incident, at which time he testified that he was not the person driving the vehicle, but instead a passenger in the vehicle which was driven by Oronde Shelton. (App 1185-1244.) He further testified that the gun the police seized was not his. (APP 1185-1244.)

Cotton was the Commonwealth's main witness during trial. She testified that shortly before the murder, she saw Glenn on the corner of Kelly and Sterrett streets some distance from Griffin. (APP 270.) Cotton identified Glenn as going by the name "Ray Ray" and testified that he was talking with some friends and wearing a blue jacket with yellow letters on the back at the time. (APP 275.) She further testified that shortly before the murder she had gone to the upstairs area of the apartment building that overlooked the area and from there heard Glenn arguing with Griffin on the corner. (APP 271-72.) Specifically, Cottton testified that she heard Glenn say, "I'm going to kill you." (APP 271.) Cotton testified that Glenn then left and that Griffin came into the vestibule of the building. (APP 274-75.) According to Cotton, a couple of seconds later she heard gunshots and observed Glenn pull up in a blue station wagon, exit the vehicle, pull the hood of his blue jacket with yellow lettering up over his head and chase down Griffin, shooting him 6 times in the doorway from 5-6 feet away. (APP 275-79.) After the shooting, Cotton testified that she went to check on Griffin, at which time Dwayne Youngblood, the occupant of the downstairs apartment, told her not to say anything. (APP 279-80.)

Cotton was portrayed by the Commonwealth at trial as a habitual drug user, an individual who had been drinking heavily the night of the incident and was on the balcony overlooking the area where the shooting occurred smoking marijuana and crack cocaine. When confronted at trial about whether she had previously lied at a coroner's inquest as to whether she had actually seen the shooter's face, Cotton admitted that she identified the shooter from what people told her on the streets. (APP 311-12.) Cotton then changed her story again claiming that she witnessed the shooting but that she had been "threatened" at which point the Judge immediately recessed the proceedings to address the matter with Cotton in chambers. (APP 313.) Outside the presence of the jury, the Court attempted to ascertain the reasons behind the contradictions in Cotton's testimony. (APP 316-30.) The Court then recessed for the day so as to allow the Commonwealth to consider whether it would continue to prosecute Glenn for the murder of Griffin. (APP 330-31.) The Assistant District Attorney sought and received formal immunity for the further receipt of Cotton's testimony when the Court reconvened the next day. (APP 332.) After giving testimony totally inconsistent with her statements made in chambers, the Court, upon its own motion, struck Cotton's testimony and instructed the jury to disregard her testimony. (APP 342-57, 361-68.)

The Commonwealth next called Dwayne Youngblood who testified that he lived in the apartment building where Griffin was shot, identified Petitioner as going by the name "Ray-Ray" and testified that "Ray-Ray" had been at his residence earlier that day, about 6-7 hours prior to the murder. (APP 369-72.) Charina Johnson testified that she was a passenger in a vehicle driven by Petitioner on December 22, 1997, and that Petitioner fled from the police when the police tried to pull him over in the stolen car he was driving. (APP 375-77, 391.) She further testified that she had been involved in a physical relationship with Petitioner and that he kept clothes and other various items at her residence which he frequented while the two were together. (APP 375.) Finally, Johnson testified that Petitioner had asked her to testify for him that he was at her house on December 17, 1997, at the time when Griffin was shot, but she refused because she was not completely sure that he had been at her house at the precise time of the murder. (APP 377-82.)

The Commonwealth next elicited testimony from Pratt concerning Petitioner's jailhouse admission that he was the shooter. (APP 425-31.) Pratt also testified that Petitioner said a female had witnessed the shooting but stated that Petitioner was unafraid of her testimony because she was a crack addict who lacked credibility and further lacked the opportunity to actually witness the shooting. (APP 427-28.) Pratt further testified that Petitioner told him that he was not concerned about the eyewitness's testimony because he had a person who could take care of her if such became necessary, identifying Monte Blair and another individual. (APP 429.)

On June 10, 1999, next to the last day of trial, the Commonwealth used Pratt's reference to Monte Blair to introduce at trial evidence regarding the stop of a rental vehicle alleged to have been driven by Monte Blair on January 26, 1998, two days prior to Petitioner's jailhouse confession. (APP 536-41.) According to this testimony, when the police attempted to initiate an automobile stop, the driver attempted to flee, ultimately crashing into a telephone pole before fleeing on foot. (APP 537-39.) While no one was apprehended at the scene, the police officer who participated in the nighttime chase claimed at trial that Monte Blair was the sole occupant of the vehicle. (APP 540-41.) A search of the vehicle yielded a .45 Glock semi-automatic handgun with 13 rounds of ammunition and a laser sight on the driver's seat. (APP 540.) The Commonwealth argued to the jury in closing that Blair was on his way to kill Cotton when his automobile was apprehended. (APP 594-95.) On June 11, 1999, the jury returned a verdict of guilty of first degree murder and Petitioner was sentenced immediately to life incarceration without parole. (APP 632-33.)

Petitioner filed post-sentence motions on June 14, 1999 wherein he raised the following claims.

1. That the Court erred in permitting the Assistant District Attorney to prosecute the instant case when the prosecutor became a witness in the case, and the Court refusing to grant a mistrial so that the Assistant District Attorney could be called by the defense as a witness.

2. That the Court erred in not granting a mistrial when the entire testimony of Brandy Cotton was struck from the record, it being impossible for the defense to remove, from the jury's recollection, the testimony of Ms. Cotton even though it had been struck by the Court.

3. That the Court erred in admitting evidence concerning Monte Blair when that evidence was not disclosed to the defense until the third day of trial.

(APP 732-36.) A hearing was held on the motions on October 25, 1999, and the motions were denied on November 3, 1999. (APP 737.) Petitioner appealed and filed a Statement of Matters Complained of on Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). (APP 739-40.) The trial court filed its Opinion on July 17, 2000, finding the claims to be without merit. (APP 741-45.) Petitioner filed an appellate brief with the Pennsylvania Superior Court (APP 746-71), which affirmed the judgment of sentence on February 12, 2001 (APP 772-86). Thereafter, Petitioner filed a Petition for Allowance of Appeal (APP 787-824), which was denied by the Supreme Court of Pennsylvania on June 12, 2001 (APP 826).*fn6

On November 30, 2001, Petitioner filed a pro se petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. Const. Stat. § 9541, et seq. (APP 827-904.) The PCRA court appointed J. Richard Narvin, Esquire to represent Petitioner. Petitioner, through counsel, filed an amended PCRA petition on September 23, 2003, raising the following claims:

1. Ineffective assistance of trial counsel for advising petitioner to not testify at trial.

2. Ineffective assistance of trial counsel for failing to present the alibi testimony of Michelle Saula, an employee of Bondsman Steve Savor.

3. Actual innocence

4. Prosecutorial misconduct and ineffective assistance of trial counsel for failing to object to the prosecuting attorney's presentation of false testimony and improper comments.

5. Ineffective assistance of appellate counsel for failing to include challenges to the sufficiency and weight of the evidence in petitioner's direct appeal.

6. Ineffective assistance of trial counsel for failing to object to the admission of the photo arrays from which the defendant's photo was included because testimony from the identifying witness was subsequently stricken at trial. Ineffective assistance of appellate counsel for failing to preserve the issue for appeal.

(APP 905-60.) After the PCRA court filed a Notice of Intent to Dismiss (APP 961), Petitioner sought permission to file a second amended petition, which the PCRA court granted. (APP 970-72.) A second amended petition was filed on March 2, 2004, which added the following claim:

7. Trial counsel was ineffective in failing to challenge the affidavit in support of his arrest warrant either through evidentiary hearing or motion at trial after the testimony of Georgina Cotton was stricken.

(APP 962-65.)

The PCRA court dismissed the petitions without a hearing on April 8, 2004. (APP 973.) Petitioner filed a Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P 1925(b) (APP 974-77), and the PCRA court filed its Opinion on July 19, 2004, finding the issues raised to be without merit (APP 978-89). On June 20, 2005, the Superior Court affirmed the PCRA court's dismissal. (APP 1027-40.) The Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal on December 29, 2005. (APP 1093.)

On April 18, 2006, Petitioner filed his Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On June 19, 2006, the Court appointed the Federal Public Defender to represent Petitioner in this action. (ECF No. 15.) Following several motions for extensions of time, Petitioner's counsel filed a Motion for Discovery, (ECF No. 27), which this Court granted on March 7, 2007. The Court imposed a discovery deadline of June 1, 2007 and ordered the amended petition to be filed by August 1, 2007. Discovery was provided to Petitioner on July 6, 2007. Following this Court's grant of three more motions for extensions of time filed by Petitioner's counsel, the case was stayed by motion of Petitioner's counsel on November 19, 2007. (ECF No. 39.)

On April 29, 2009, Petitioner moved to reopen the case and his attorneys sought to withdraw based upon a conflict of interest. (ECF Nos. 41, 42.) On April 30, 2009, Attorney Adam Cogan was appointed to represent Petitioner. (ECF No. 44.) On February 3, 2010, Attorney Cogan filed an Amended Petition raising the following claims:

1. The trial court erred when it refused to grant a mistrial after striking Georgianna Cotton's testimony

2. The trial court erred when it refused to grant a mistrial when the prosecuting attorney became a witness in the case.

3. The trial court erred in permitting the Commonwealth to introduce evidence regarding Monte Blair.

4. Petitioner is entitled to a new trial based on the Commonwealth's failure to disclose the "fraudulent" transport order.

5. Petitioner's right to counsel under Messiah v. United States was violated and trial counsel was ineffective for failing to move to suppress or exclude Jerry Pratt's testimony as the fruit of an illegal interrogation.

6. Trial counsel was ineffective for failing to move to strike additional testimony that Georgianna Cotton identified the defendant from photo arrays and otherwise identified petitioner as the shooter.

7. The trial court and trial counsel failed to adequately advise petitioner about his right to testify at trial and petitioner's decision not to testify at trial was not knowing, intelligent and voluntary.

8. Appellate counsel was ineffective for failing to challenge the weight and the sufficiency of the evidence on appeal.

9. Trial counsel was ineffective for failing to conduct an adequate pretrial investigation into an alibi defense and for failing to present the defense at trial.

(ECF No. 52 at 5.) Respondents filed an Answer to the Amended Petition on June 10, 2010, (ECF No. 71), and Petitioner filed a Reply to the Answer on September 30, 2010 (ECF No. 74). By order of the Court, Respondents were directed to file a Supplemental Answer to address the applicability of Martinez v. Ryan, 132 S. Ct. 1309 (2012) to four specified claims within the Amended Petition. (ECF No. 97.) The Supplemental Answer was filed on August 1, 2012 (ECF No. 98), and a Reply to the Supplemental Answer was filed by Petitioner on August 9, 2012 (ECF No. 99). Petitioner's Amended Petition is now ripe for review.

B.Standards Governing Federal Habeas Corpus Review

1. Exhaustion Requirement

The provisions of the federal habeas corpus statute at 28 U.S.C. § 2254(b) require a state prisoner to exhaust available state court remedies before seeking federal habeas corpus relief. To comply with the exhaustion requirement, a state prisoner first must have fairly presented his constitutional and federal law issues to the state courts through direct appeal, collateral review, state habeas proceedings, mandamus proceedings, or other available procedures for judicial review. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996); Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996). Moreover, a petitioner must present every claim raised in the federal petition to the state's trial court, intermediate appellate court and highest court before exhaustion will be considered satisfied. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Petitioner has the burden of establishing that exhaustion has been satisfied. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O'Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).

Exhaustion is not a jurisdictional limitation, however, and federal courts may review the merits of a state prisoner's claims prior to exhaustion when no appropriate state remedy exists. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997); Doctor, 96 F.3d at 681; Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995). A petitioner shall not be deemed to have exhausted state remedies, however, if he has the right to raise his claims by any available state procedure. 28 U.S.C. § 2254(c). An application for a writ of habeas corpus may be denied on the merits, however, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254(b)(2).

2. Procedural Default Doctrine

Beyond questions of exhaustion, a federal court may be precluded from reviewing claims under the "procedural default doctrine." Gray v. Netherland, 518 U.S. 152 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991); Doctor, 96 F.3d at 678; Sistrunk v. Vaughn, 96 F.3d 666, 678 (3d Cir. 1996). Like the exhaustion requirement, the procedural default doctrine was developed to promote our dual judicial system and, in turn, it is based upon the "independent and adequate state law grounds" doctrine, which dictates that federal courts will not review a state court decision involving a question of federal law if the state court decision is based on state law that is "independent" of the federal question and "adequate" to support the judgment. Coleman, 501 U.S. at 750.

A state's procedural rules are entitled to deference by federal courts; a petitioner's violation of a state procedural rule may constitute an independent and adequate state law ground for denial of federal review of habeas claims under the procedural default doctrine. Id.; Sistrunk,

96 F.3d at 673. Moreover, violations of a state's procedural rules may constitute an independent and adequate state ground sufficient to invoke the procedural default doctrine even where no state court explicitly has concluded that a petitioner is procedurally barred from raising his claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 516 U.S. 1151 (1996); Carter, 62 F.3d at 595. However, the procedural default doctrine only applies when a state procedural rule is consistently or regularly applied. Banks v. Horn, 126 F.3d 206, 211 (3d Cir. 1997) (quoting Johnson v. Mississippi, 486 U.S. 578, 588-89 (1988)).*fn7 A petitioner whose constitutional claims have not been addressed on the merits due to procedural default can overcome the default, thereby allowing federal court review, if he or she can demonstrate either: 1) "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law; or 2) failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Carter, 62 F.3d at 595.

To satisfy the cause standard, a petitioner must demonstrate that some objective factor external to the defense impeded his or her efforts to raise the claim in state court. McCleskey v. Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). To show prejudice, a petitioner must demonstrate that the error worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions, not merely that the error created a "possibility of prejudice." Carrier, 477 U.S. at 494. Where a petitioner cannot make a showing of "cause and prejudice," a federal court may nevertheless consider the merits of his or her unexhausted claims under circumstances in which the failure to adjudicate such claims would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. This exception to the procedural default doctrine is based on the principle that, in certain circumstances, "the principles of comity and finality that inform the concepts of cause and prejudice 'must yield to the imperative of correcting a fundamentally unjust incarceration.'" Carrier, 477 U.S. at 495 (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)).

The "prototypical example" of a miscarriage of justice is a situation in which an underlying constitutional violation has led to the conviction of an innocent defendant. Sawyer v. Whitley, 505 U.S. 333, 340 (1992). In that instance, the merits of a petitioner's claims can be considered notwithstanding his or her failure to raise them before the state courts. In order to avail himself or herself of this exception to the procedural default rule, a petitioner must make a substantial showing that he or she is actually innocent of the crime for which he or she is incarcerated. Schlup v. Delo, 513 U.S. 298, 324 (1995). "To be credible, such a claim requires [the] petitioner to support his [or her] allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Id. If this requirement is satisfied, the federal court must consider "whether it is more likely than not that no reasonable juror would have convicted [the petitioner] in light of the new evidence." Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004). This standard "does not merely require a showing that a reasonable doubt [as to the petitioner's guilt] exists in the light of the new evidence, but rather that no reasonable juror would have found the [petitioner] guilty." Schlup, 513 U.S. at 329. "The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House v. Bell, 547 U.S. 518, 538 (2006).

While the petitioner's innocence need not be determined with "absolute certainty" at this "gateway stage," his or her burden is to demonstrate that, in light of the new evidence, it is more likely than not that any reasonable juror would have reasonable doubt as to his or her guilt. Id. In the habeas corpus context, a federal court sits to ensure that an individual is not imprisoned in violation of the Constitution and laws of the United States, "not to correct errors of fact." Herrera v. Collins, 506 U.S. 390, 400 (1993). Consequently, a finding of "actual innocence" is not an independent ground for habeas corpus relief, but rather a "gateway" through which a petitioner can pass to have a federal court consider underlying claims that would otherwise be subject to procedural default. Id. at 404. In the absence of new evidence of the petitioner's innocence, the existence of an underlying constitutional violation provides a federal court with no basis for adjudicating a procedurally defaulted claim. Goldblum v. Klem, 510 F.3d 204, 225-226 (3d Cir. 2007). Only after the presentation of new evidence may a federal court proceed to consider whether, in light of all relevant evidence, it is more likely than not that no reasonable juror would vote to convict the petitioner of the crime for which he or she is incarcerated. House, 547 U.S. at 537-39; Goldblum, 510 F.3d at 225-26.

Finally, the United States Court of Appeals for the Third Circuit has instructed that a petition containing exhausted and unexhausted but procedurally barred claims is not a mixed petition requiring dismissal under Rose v. Lundy, 455 U.S. 509 (1982). See Wenger v. Frank, 266 F.3d 218, 227 (3d Cir. 2001). Instead, the Court of Appeals held that the district court should review the merits of the exhausted claims but must not decide the merits of the claims that are barred under the procedural default doctrine. Id.

3. Standard of Review for Exhaustion (but not Procedurally Defaulted) Claims

In describing the role of federal habeas proceedings, the Supreme Court of the United

States, in Barefoot v. Estelle, 463 U.S. 880, 887 (1983), noted:

[I]t must be remembered that direct appeal is the primary avenue for review of a conviction or sentence . . . . The role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited. Federal courts are not forums in which to relitigate state trials.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 100 Stat. 1214, April 24, 1996, (AEDPA), which further "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).

Amended Section 2254 of the federal habeas corpus statute provides the standard of review for federal court review of state court criminal determinations and provides, in relevant part, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) 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

(2) 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). "A state-court decision is 'contrary to' clearly established federal law if the state court (1)

'contradicts the governing law set forth in [the Supreme] Court's cases or (2) 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a [different] result.'" Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Few state court decisions will be "contrary to" Supreme Court precedent. "Clearly established Federal law" should be determined as of the date of the relevant state-court decision. Greene v. Fisher, 606 F.3d 85, 95 (3d Cir. 2010), aff'd, Greene v. Fisher, 132 S. Ct. 38 (2011).

The federal habeas court more often must determine whether the state court adjudication was an "unreasonable application" of Supreme Court precedent. "A state-court decision 'involve[s] an unreasonable application' of clearly established federal law if the state court (1) 'identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case'; or (2) 'unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Id. (quoting Williams, 529 U.S. at 407).

A recent decision of the Supreme Court illustrates the deference that the federal courts must accord to state court decisions. In Renico v. Lett, 130 S. Ct. 1855 (2010), the Supreme Court reviewed the Court of Appeals for the Sixth Circuit's grant of a writ of habeas corpus to a defendant who was retried for murder following the trial judge's grant of a mistrial after the jury had deliberated for at least four hours following a relatively short, and far from complex, trial. The Michigan Supreme Court had concluded there was no violation of the Double Jeopardy Clause because the trial court exercised its sound discretion. The federal district court granted a writ of habeas corpus and the Sixth Circuit affirmed, both concluding that the trial court's declaration of a mistrial constituted an abuse of discretion because there was no manifest necessity. The Supreme Court reversed.

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not whether it was an abuse of discretion for her to have done so -- the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was "an unreasonable application of . . . clearly established Federal law." § 2254(d)(1). Lett, 130 S. Ct. at 1862. The Supreme Court further instructed:

It is not necessary for us to decide whether the Michigan Supreme Court's decision -- or, for that matter, the trial judge's declaration of a mistrial -- was right or wrong. The latter question, in particular, is a close one. As Lett points out, at a hearing before the Michigan Court of Appeals, the state prosecutor expressed the view that the judge had in fact erred in dismissing the jury and declaring a mistrial. The Michigan Supreme Court declined to accept this confession of error, People v. Lett, 463 Mich. 939, 620 N.W.2d 855 (2000), and in any event -- for the reasons we have explained -- whether the trial judge was right or wrong is not the pertinent question under AEDPA.

Id. at 1865, n.3 (emphasis added).

Moreover, a federal court must accord a presumption of correctness to a state court's factual findings, which a petitioner can rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not made explicit, a federal court's "duty is to begin with the [state] court's legal conclusion and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what implicit factual findings a state court made in reaching a conclusion, a federal court must infer that the state court applied federal law correctly. Id. (citing Marshall v. Longberger, 459 U.S. 422, 433 (1982)). Where the state court fails to adjudicate or address the merits of a petitioner's claims, unless procedurally defaulted, the federal habeas court must conduct a de novo review over pure legal questions and mixed questions of law and fact. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). Petitioner's claims will be reviewed in accordance with the standards set forth above.

C.Petitioner's Claims

1.The trial court erred when it refused to grant a mistrial after striking Georgianna Cotton's testimony.

In this claim, Petitioner complains that the trial court's denial of defense counsel's

motion for mistrial after striking Georgianna Cotton's testimony violated his due process rights. Contrary to Respondent's assertion, this claim has been exhausted as Petitioner raised it in his direct appeal on the basis that the court's denial to grant a mistrial denied him a fair trial.

A claim that one was denied "due process" is a claim that one was denied "fundamental fairness." See Riggins v. Nevada, 504 U.S. 127, 149 (1992) ("We have said that 'the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial'"); Lisenba v. California, 314 U.S. 219, 236 (1941) ("The aim of the requirement of due process is . . . to prevent fundamental unfairness"). When reviewing claims alleging the denial of due process, the Supreme Court has cautioned that:

[i]n the field of criminal law, we have defined the category of infractions that violate 'fundamental fairness' very narrowly based on the recognition that, beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. The Bill of Rights speaks in explicit terms of many aspects of criminal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Process Clause invites under interference with both considered legislative judgments and the careful balance that the Constitution strikes between liberty and order . . . [I]t has never been thought that decisions under the Due Process Clause establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.

Medina v. California, 505 U.S. 437, 443 (1992) (internal quotations and citations omitted).

Judges are not free, in defining 'due process,' to impose on law enforcement officials their personal and private notions of fairness and to disregard the limits that bind judges in their judicial function. They are to determine only whether the action complained of violates those fundamental conceptions of justice which lie at the base of our civil and political institutions, and which define the community's sense of fair play and decency.

Dowling v. United States, 493 U.S. 342, 353 (1990) (internal quotation and citations omitted).

Moreover, a federal court must keep in mind the standard of review to be applied to allegations of trial error. In this regard, criminal defendants in this country are entitled to a fair, but not a perfect, trial. "[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial," and the Constitution does not demand one. United States v. Hasting, 461 U.S. 499, 508 (1983) (internal citations omitted). The focus on fairness, rather than on perfections, protects society from individuals who have been duly and fairly convicted of crimes, thereby promoting "public respect for the criminal process." Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986).

The basis for Petitioner's first claim rests on the following set of events. At trial, the Commonwealth called Cotton, who testified that she had seen Petitioner shoot the victim six times in the early morning hours of December 17, 1997. (APP 278-79.) On cross-examination, Cotton said that she did not actually see Petitioner's face but had identified him based on what other people had told her. (APP 312.) Because of the conflicting nature of this testimony, Judge Zottola held an in camera hearing, in which Cotton stated that she was fearful as a result of death threats from Petitioner's family but that Petitioner did, in fact, shoot the victim. (APP 320-21.) However, upon further questioning, she said that she did not see the incident but was told that Petitioner had done the killing. (APP 324.) After she was granted immunity from perjury charges, Cotton was allowed to retake the stand, at which point she testified that she had heard six gunshots, that she had heard Petitioner's voice prior to the shooting and that she had seen Petitioner after the shooting jumping into a car. She also stated that the reason that she had not said some of these things before was because she was afraid for another person's life.

At this point, defense counsel requested a mistrial based on Cotton's conflicting testimony. (APP 351-54.) The trial court denied this request and instead, on its own motion, struck Cotton's testimony in its entirety. (APP 367-68.) Immediately upon his decision to strike Cotton's testimony, Judge Zottola instructed the jury to totally disregard her testimony.

In denying this claim, the Superior Court of Pennsylvania held as follows:

Appellant next contends that the trial court erred when it refused to grant a mistrial after the testimony of Georgianna ("Brandy") Cotton was stuck in its entirety from the record. Ms. Cotton provided conflicting accounts of the events in question and testified that she did not see who shot the victim, but was only told that the defendant had shot him. Furthermore, she indicated she was under the influence of both drugs and alcohol at the time of the shooting. According to the trial court's opinion, the following occurred at trial: "Measures were taken to scrutinize the extremely inconsistent statements given by the witness. She testified in camera, was granted immunity [by the prosecutor], and was given counsel." She then returned to the stand for redirect testimony but again provided a contradictory story. Based on these contradictory statements a mistrial was requested by defense counsel. The trial court refused the request for mistrial, but struck the testimony of Ms. Cotton based on her intoxication at the time of the incident and her inconsistent trial testimony.

We find no merit in the contention of appellant that "no curative instruction could inure to the benefit of [appellant]." It is well settled that a jury is presumed to follow the instructions of a trial court to disregard inadmissible evidence.

In this case the jury was instructed as follows:

THE COURT: Good afternoon, ladies and gentlemen. The Court has made the following ruling on its own motion: You are to completely [and] totally disregard the testimony of Ms. Cotton. Her testimony is not to play any part in your determination as to the facts in this case. It is as if she has not testified. Do you understand that, ladies and gentlemen?

THE JURY: Yes.

The trial judge reiterated this instruction in his closing charge:

THE COURT: [Y]ou must not consider any testimony . . . which I have ordered stricken from the record. So that it is clear, ladies and gentleman, I ordered st[r]icken from the record the testimony of Ms. Cotton. You must not, I repeat, must not, consider that testimony for any reason whatsoever. It should be as if that witness never took the witness stand.

These firm and certain and clear instructions to the jury not to consider the testimony of Ms. Cotton, in the light of our case law which presumes that the jury will follow the trial court's instructions, compel us to reject the contention of appellant that the trial court abused its discretion in denying his motion for a mistrial based on the contradictory statements of Ms. Cotton.

(APP 779-81) (internal citations omitted).

As stated above, this Court is required to review Petitioner's claims in accordance with the standard of review set forth in AEDPA. Specifically, in order to be entitled to relief, Petitioner must show that the Pennsylvania Court's decision upholding the denial of a mistrial in this instance was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.*fn8 This is a "difficult to meet," and "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given ...


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