The opinion of the court was delivered by: Hon. Joseph H. Rodriguez, United States District Judge
Presently before the Court is the Petition for a Writ of Habeas Corpus filed by Kelvin X. Morris ("Morris" or "Petitioner"). The factual and procedural history of this case has been the subject of numerous opinions by the state and federal courts. It has been nearly thirty years since Petitioner was before the trial court. For the sake of brevity, and efficiency, the Court direct's the readers' attention to the three federal opinions in this case, which comprehensively set forth the factual and procedural history of this case: Morris v. Beard, 01-CV-3070, 2007 WL 1795689 (E.D. Pa. June 20, 2007) (hereinafter "Morris -4"), Morris v. Beard, 01-CV-3070 (E.D. Pa. April 1, 2008) (hereinafter "Morris-5"), and Morris v. Beard, 633 F.3d 185 (3d Cir. 2011) (hereinafter "Morris-6").*fn1
On November 30, 1983, a jury convicted Morris of first-degree murder and robbery in the Court of Common Pleas of Philadelphia County. Following a penalty phase hearing, the same jury sentenced Morris to death. After denying post-trial motions, on September 8, 1987, the trial court imposed the death sentence and a consecutive sentence of ten to twenty years imprisonment on the robbery conviction. Over the subsequent 18 years, Morris filed appeals and petitions for post-conviction relief in Pennsylvania state courts, and two petitions for a writ of habeas corpus in federal court. The second federal petition was filed in June 2001, subjected to a temporary stay and subsequent orders for new and supplemental briefing and, ultimately, transferred to the United States District Court for the District of New Jersey in May 2006.
On June 20, 2007, this Court ruled that defense counsel's failure to conduct a reasonable investigation of mitigating evidence in anticipation of Morris's capital sentencing hearing, failure to present available mitigating evidence at that hearing, and failure to make a sufficient argument at that hearing violated Morris's Sixth Amendment right to effective assistance of counsel. The Court granted relief to Morris under 28 U.S.C. § 2254 by vacating the sentence of death. In addition, an evidentiary hearing on Morris's claim of ineffective assistance of counsel was ordered on Petitioner's claim that trial counsel operated under a conflict of interest depriving him of his Sixth Amendment right to the effective assistance of counsel.
On October 24, 2007, the Commonwealth of Pennsylvania and counsel for Petitioner questioned trial counsel, who was the only witness presented at the evidentiary hearing. Post-hearing briefing followed and, on April 1, 2008, this Court ruled that trial counsel's dual representation of Petitioner and Petitioner's brother, who was also a suspect in the murder, constituted an actual conflict and, therefore, granted Petitioner relief under 28 U.S.C. § 2254 by vacating the judgment of conviction. See Morris-5. The remainder of Petitioner's claims were dismissed as moot without prejudice. Id.
Although the Commonwealth did not challenge the Court's Order vacating the sentence of death, it did appeal on the grounds that the Court erred in holding the evidentiary hearing and in ordering a new trial. The Third Circuit Court of Appeals affirmed the decision to conduct an evidentiary hearing and also affirmed the Court's finding that Petitioner did not waive his Sixth Amendment right to conflict free counsel. See Morris-6, 633 F.3d at 196, 198. However, the Third Circuit vacated the order for a new trial and remanded for further development of the record on the issue of whether the conflict of interest adversely affected Petitioner. Id. at 201. In so ruling, the Third Circuit directed that a new evidentiary hearing be held consistent with the opinion. Id. Therefore, the Court will conduct an evidentiary hearing to determine the merits of Petitioner's claim in Count I.
There are several other claims advanced by Petitioner that challenge his conviction. These claims were not previously considered by this Court in Morris-4 or Morris-5 because they became moot when the Court granted relief on Count I. Now that the merits of Count I have been the subject of appeal and are now, again, before the Court for resolution, the parties agree that for the sake of completeness the remainder of the claims should be adjudicated, regardless of the Court's conclusion on the reevaluation of the merits of Count I. And so, the following claims are before the Court:
CLAIM I Petitioner's Claim That Trial Counsel Had a Conflict of Interest in That He Simultaneously Represented Petitioner and Petitioner's Brother; CLAIM III Whether Trial Counsel Was Ineffective in Failing to Investigate and Present Evidence That Petitioners Mental State Including His Brain Damage and Psychiatric Illnesses, Rendered Him Incapable of Intelligently and Voluntarily Waiving His Miranda Rights;
CLAIM IV Whether Petitioner's Conviction Was Based upon Constitutionally Reliable Identification Evidence; CLAIM V Whether Petitioner Trial and Appellate Counsel Ineffectively Failed to Conduct an Adequate Investigation And, Consequently, Failed to Discover Exculpatory Testimony;
CLAIM VI Whether Petitioner Was Denied His Confrontation and Due Process Rights When the Trial Court Precluded the Defense from Cross-examining a Prosecution Witness Concerning His Juvenile Record and Where the Prosecutor Allegedly Misrepresented the Witness' Record;
CLAIM VII Whether the Prosecution Failure to Disclose Exculpatory Evidence Is Defaulted;
CLAIM VIII Whether the Admission of Evidence of an Unrelated Offense Violated Petitioner's Sixth, Eighth, and Fourteenth Amendment Rights and His Corresponding Rights under the Pennsylvania Constitution;
CLAIM IX Whether the Prosecutor Made Improper Statements During Closing at the Guilt Phase;
CLAIM XII Whether Petitioner the Commonwealth Used its Preemptory Strikes in a Racially Discriminatory Manner;
CLAIM XVII Whether the Trial Court's Instructions Denied Petitioner a Fair Trial by Incorrectly Stating Pennsylvania Law Regarding the Use of Prior Statements of Identification and Failing to Provide an Adequate Cautionary Instruction on Identification Testimony;
CLAIM XVIII Whether Trial Counsel Was Ineffective in Failing to Investigate and Present Critical Impeachment Evidence;
CLAIM XIX Whether Trial Counsel Was Ineffective in Failing to Properly Investigate the Circumstances of Petitioner's Arrest and Statement to Police, And, as a Result, Failed to Impeach the Commonwealth Witnesses and Properly Prepare and Litigate a Motion to Suppress;
CLAIM XXI Whether Petitioner Was Entitled to Discovery and an Evidentiary Hearing Regarding Witness Participation in the Philadelphia District Attorney's Office Witness Security Program;
CLAIM XXII Whether the District Attorney Who Prosecuted the Case Had a Conflict of Interest Because He Was Related to the Owners of the Pep Boys Store Where the Murder Occurred;
CLAIM XXIV Whether the Cumulative Errors of Counsel.
All of the claims attacking the guilt phase of Morris' trial were set forth in Morris' Second Pennsylvania Post-Conviction Relief Act, 42 Pa. C. S. § 9541 et seq. ("PCRA") Petition and the Amended Supplement to that Petition (collectively "the Second PCRA Petition").*fn2 As explained in Morris-4, on December 21, 1999, the PCRA trial court found that it lacked jurisdiction to review the claims because the second petition had been filed beyond the one-year statute of limitation of the PCRA. Commonwealth v. Morris, No. 409-413, slip. op. (Pa. Commw. Ct. Dec. 21, 1999). Because the court concluded that it lacked jurisdiction, it did not address any claim on the merits.*fn3 After thorough consideration of whether Morris' claims were procedurally defaulted, this Court ruled, relying on Bronshtein v. Horn, 404 F.3d 700 (3d Cir. 2005), that the claims were not procedurally defaulted and could proceed because the one-year time limitation had not been firmly established or regularly applied at the time of Morris' default. Although the Third Circuit affirmed this portion of the Court's order in Morris-4, the Government contends that two recent Supreme Court decisions in Beard v. Kindler, 130 S.Ct. 612 (2009) and Walker v. Martin, 131 S.Ct. 1120 (2011), call this holding into question.
The Court will not revisit its prior holding that Morris' claims may proceed despite being filed beyond the one-year limitation period of the PCRA. In Lark v. Secretary of Pa. Dept. Of Corrections, 645 F.3d 596, 613 (3d Cir. 2011), the Third Circuit stated that "The Supreme court's holdings in Walker and Kindler have not affected our holding in Bronshtein that prior to 1998 capital petitioner's in Pennsylvania could rely on state courts to relax procedural rules, including the one-year PCRA time bar." Moreover, the Supreme Court recently denied certiori in Kindler. See Wetzel v. Kindler, No. 11-48, 2012 WL 117815 (U.S., Jan. 17, 2012). As a result, Morris' claims remain properly before this Court.
Before this Court can address the merits of the numerous claims listed above, it must first determine whether any of the claims present issues that warrant an evidentiary hearing. While the merits of Count I will be the subject of an evidentiary hearing, as directed by the Third Circuit, the parties disagree over whether there is any basis to grant an evidentiary hearing on the remainder of the guilt phase claims. Therefore, the Court must determine whether, as to each claim, there is a bar to holding an evidentiary hearing and, if not, whether an evidentiary hearing is merited. There are several considerations that are relevant.
A. Merits Analysis Under § 2254
As this Court previously explained in Morris-4, Petitioner exhausted the state remedies and a merits review on all of the claims is warranted despite the procedural default. The Court also established the standard of review for the pending claims. Where a state court has adjudicated the merits of a claim, the federal habeas court's standard of review is narrow; it must apply the deferential standards of the AEDPA. See Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000). Under those deferential standards, federal habeas relief must be denied unless the adjudication was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "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); Jacobs v. Horn, 395 F.3d 92, 99 (2005). A federal habeas court must presume that a state court's findings of fact are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
A state court decision is "contrary to" Supreme Court precedent under § 2254(d)(1) where the state court reached 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, 413 (2000). A state court decision is an "unreasonable application" under § 2254(d)(1) if the court "identifies the correct governing legal rule from the Supreme Court's cases, but unreasonably applies it to the facts of a particular case or if the state court either unreasonably extends a legal principle from the Supreme Court's 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. at 407; Jacobs, 395 F.3d at 100.
These deferential standards of review do not apply "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Jacobs, 395 F.3d at 100 (quoting Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002)). If it is not clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined under United States Supreme Court law, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 131 S.Ct. 770, 784-5 (2011) (citation omitted). But where it is clear that a procedural reason underscores the decision, federal habeas courts apply pre-AEDPA standards of review. Id.; see also Jacobs, 395 F.3d at 100. Prior to AEDPA, federal habeas courts conducted a de novo review over pure legal questions and mixed questions of law and fact. Jacobs, 395 F.3d at 100 (citing Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001)). The state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence under § 2254(e)(1). Jacobs, 395 F.3d at 100.
B. Claims Raised in Second PCRA
Petition and Federal Habeas Petition In this case, all of Morris's claims in his second PCRA petition were procedurally defaulted; the state court refused to review them based on Morris's failure to file those claims within Pennsylvania's PCRA one-year limitations period. (See Morris-4 Part I. E.) Ordinarily, this Court would consequently be barred from reviewing those claims. However, because the state procedural rule used to dismiss those claims was not an "independent and adequate" ground to bar federal habeas review, (see Morris-4 Part II. B.), a merits review by this Court is not barred. And because none of the claims presented for the first time in the second PCRA petition were reviewed by the state courts on the merits, this Court does not proceed under AEDPA's deferential standard of review for those claims. For any claim that had been previously litigated on the merits, either on direct appeal or in Morris's first PCRA petition, this Court will apply AEDPA's deferential standards.
Efficiency mandates that any other claim meriting an evidentiary hearing be presented during the evidentiary hearing on Count I. The purpose of this opinion is to identify those claims that fit into that category. Of course, where the state court's factual determinations are at issue, those findings are presumed to be correct; rebuttable only upon a showing of clear and convincing evidence to the contrary. 28 U.S.C. § 22549e)(1); Campbell v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000).
Under AEDPA, there are several considerations relevant to the propriety of an evidentiary hearing conducted by the federal habeas court. With certain exceptions, the federal habeas court retains discretion to hold an evidentiary hearing if doing so will advance petitioner's claim. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). The threshold inquiry, however, is whether or not the state court adjudicated petitioner's claim on the merits. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400-1, 179 L.Ed.2d 557 (2011).
1. Claims Not Adjudicated On the Merits
The guilt phase claims set forth in Counts III, IV, VII, XVII, XVIII, and XIX, that were not adjudicated on the merits, are reviewed de novo. Likewise, portions of the claims set forth in the following counts are also subject to review under this standard: Count V as to witnesses Stokes and Willie; Count VI as to the Brady violation, Count VII as to witness Handy, Count IX as to cumulative error and Count XXI in part. These claims are not subject to the "highly deferential," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002), and "difficult to meet," Harrington v. Richter, 562 U.S. --, --, 131 S.Ct. 770, 786 L.Ed.2d 624 (2011), standard espoused by 28 U.S.C. § 2254(d). See Pinholster, 131 S.Ct. at 1398. Rather, the relevant inquiry for an evidentiary hearing on these claims is whether such a hearing is prohibited by 28 U.S.C. § 2254(e)(2). See Morris v. Beard, 633 F.3d 185, 193 (3d Cir. 2011). That statute provides:
(e)(2) If the applicant 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 the applicant shows that--
(A) the claim relies on-- (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
Under 28 U.S.C. § 2254(e)(2), "a habeas court is barred from holding an evidentiary hearing unless the petitioner was diligent in his attempt to develop a factual basis for his claim in the state court." Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010); see also Williams v. Taylor, 529 U.S. 420, 435, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). In Morris-6, the Third Circuit recognized, in the technical sense, that Petitioner was "diligent" in advancing his claims set forth in Count I- and ostensibly all of the claims in Second PCRA- and that the claim, as set forth in the Second PCRA, adequately "develop[ed] a factual basis . . . in state court." Id. at 194-5. The Third Circuit's reasoning applies with equal force to all of Petitioner's claims that were similarly advanced in the Second PCRA Petition. As such, there is no procedural bar to holding an evidentiary hearing on these claims. Id.
For these claims, the Court's decision to hold an evidentiary hearing is dependent upon a determination that "such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474, 127 S.Ct. 1933. A hearing would advance a petitioner's claim where petitioner can make "a prima facie showing" that "would enable [him] to prevail on the merits of the asserted claim. Palmer, 592 F.3d at 393. No evidentiary hearing is required "if the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Landrigan, 550 U.S. at 474, 127 S.Ct. 1933.
Moreover, even though there is no procedural impediment to conducting an evidentiary hearing, AEDPA's statutory scheme is designed to strongly discourage "[f]ederal courts sitting in habeas [from being an] alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id., at 437, 120 S.Ct. 1479; see also Richter, 562 U.S., at --------, 131 S.Ct., at 787. ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions"); Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("[T]he state trial on the merits [should be] the 'main event,' so to speak, rather than a 'tryout on the road' for what will later be the determinative federal habeas hearing"). For the reasons that follow in Part IV, the Court will exercise its discretion to hold an evidentiary hearing on the claims in Counts III, V, XVIII, XIX and XXIV.
2. Claims Adjudicated on the Merits
The guilt phase claims set forth in Count VIII were adjudicated on the merits in the state court and are consequently reviewed under the AEDPA rubric of 28 U.S.C. § 2254(d). Portions of the claims set forth in the following counts are also subject to review under this standard: Count V as to witnesses Johnson and Flowers and Wise and Clark, Count VI as to the direct appeal, Count VII as to witness Johnson, portions of Count IX, Count XII as to the McMahon Tape, and portions of Counts XXII and XXIV.
Recent Supreme Court precedent directs that an evidentiary hearing on any claim adjudicated by the state court is improper. Pinholster, 131 S.Ct. at 1401. "If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254 (d)(1) on the record that was before that state court." Id. at 1400 (emphasis added). For Count VIII and portions of Counts V, VI, VII, IX, XII, this Court's review is limited to the record before the state court and no new evidence may be considered.
The parties agree that an evidentiary hearing would not be useful to resolve Counts IV, VI, and IX. The Court has reviewed the Petition and for the reasons that follow, will exercise its discretion to hold an evidentiary hearing on the claims set forth in Counts III, V, XVIII, XIX and portions of XXIV. The remaining claims will be decided on the papers in a decision issued at a later date, contemporaneous to resolution of the claims at issue in the evidentiary hearing.
A. Count I: Petitioner's Claim That Trial Counsel Had a Conflict of Interest in That He Simultaneously Represented ...