The opinion of the court was delivered by: Anita B. Brody, J.
Presently before the Court is a petition for a writ of habeas corpus brought by Shawnfatee "Shawn" Bridges pursuant to 28 U.S.C. § 2254. On February 3, 1998, the petitioner was convicted of first-degree murder of Gregory and Damon Banks and other crimes in Pennsylvania state court. After a separate penalty hearing, the petitioner was sentenced to die. His death sentence has been stayed pending the resolution of these federal habeas proceedings. For the reasons that follow, I find that the Commonwealth's Brady violations entitle Bridges to a new trial. In addition, Bridges' ineffective assistance of counsel during the penalty phase entitle him to a new sentencing hearing. The petitioner raises numerous federal claims for relief, and the Court's discussion of those claims is necessarily lengthy and complex. To aid in the understanding of this Memorandum and Order, an Appendix is included listing the disposition of all claims. I will begin with a discussion of the two claims on which I am granting relief, to be followed by an examination of the remaining claims.
In brief, Bridges was tried in January and early February 1998 for the murder of cousins Gregory and Damon Banks in Exeter Township, Pennsylvania, on December 8, 1996. See Commonwealth v. Bridges (Bridges I), 757 A.2d 859, 865-66 (Pa. 2000) (affirming conviction). The evidence at trial showed that Bridges believed that the Banks cousins were responsible for a masked armed robbery of his home. Bridges was not present at the time of the break-in, but his girlfriend was. The prosecution's theory was that the Banks cousins had attempted to rob drugs from Bridges' home and that Bridges was motivated to kill them in part to cement or safeguard his drug-trafficking endeavors. The prosecution charged Bridges solely as an accomplice. It never formally alleged that Bridges had shot the victims himself.
I. BRADY CLAIM AND PENALTY PHASE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
A. Relevant Legal Standards
The state courts must have the first opportunity to redress any claimed violation of a habeas petitioner's federal rights. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The habeas statute codifies this principle by requiring that a petitioner "exhaust the remedies available in the courts of the State" before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1)(A). The statutory exhaustion requirement applies to each federal claim and is met only when the claim was "fairly presented to the state courts." Picard, 404 U.S. at 275. The Commonwealth alleges that Bridges did not fairly present any of the federal claims in his Third Amended Petition to the Pennsylvania courts when he had the opportunity to do so. Commw. Mem. in Support of Ans. 1-3 (Doc. No. 128).
To fairly present a federal claim, a petitioner must alert the state courts to the federal nature of the claim. McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). Citations to the federal Constitution or to federal case law can provide adequate notice of the federal character of the claim. Evans v. Court of Common Pleas, 959 F.2d 1227, 1232 (3d Cir. 1992). The petitioner may also alert the state courts to the federal nature of a claim in subtler ways, including "reliance on state cases employing [federal] constitutional analysis in like fact situations," or "assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution." Id. Thus, a federal claim may be fairly presented to the state courts even when the petitioner makes no express reference to federal law. McCandless, 172 F.3d at 261.
The federal claims made to the state courts need not be identical, word for word, with the claims now pursued in habeas. See Picard, 404 U.S. at 277 (petitioner is entitled to "variations in the legal theory or factual allegations used to support a claim"). But the exhaustion requirement would "serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts." Id. at 276. A petitioner has exhausted a federal claim only if he or she presented the "substantial equivalent" of the current claim to the state court. Id. at 278; see also McCandless, 172 F.3d at 261 (petitioner must present both "factual and legal substance" of claim to state courts). The claim also must be presented to the correct state courts:
Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, . . . state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process.
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In Pennsylvania, appeals in capital cases-both direct appeals and appeals in post-conviction collateral proceedings-are taken directly to the Supreme Court of Pennsylvania without any review in an intermediate appellate court. See 42 Pa. Cons. Stat. Ann. § 9711(h)(1) (direct appeal); id. § 9546(d) (appeal from denial of PCRA relief). Bridges has thus exhausted his available state-court remedies if he fairly presented his federal claims to the Pennsylvania Supreme Court either on direct appeal from his judgment of conviction and sentence or during collateral proceedings, pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9542 et. seq. Either one will suffice: Once a claim is presented to the state court in a direct appeal, it need not be repeated in later collateral proceedings. Castille v. Peoples, 489 U.S. 346, 350 (1989); Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984).
The opinions of the state courts are a natural starting point to determine which federal claims Bridges fairly presented. See Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982) (exhaustion may be shown "by demonstrating that a state court has expressly decided the issues . . . in [the] habeas petition"). But the exhaustion doctrine requires only that a petitioner's federal claims be "presented to the state courts; they need not have been considered or discussed by those courts." Swanger, 750 F.2d at 295 (emphasis in original). If the state court opinions contain no reference to a petitioner's federal claim, the habeas court must look instead to the petitioner's state-court submissions to determine if the claim was fairly presented. Brown, 669 F.2d at 158; cf. Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim is fairly presented when it appears within the petition or brief). Here, the relevant filings will be Bridges' appellate briefs to the Pennsylvania Supreme Court and his PCRA petitions.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a habeas court may not grant relief with respect to any claim adjudicated on the merits by the state courts unless the adjudication:
(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).
The Third Circuit has interpreted these statutory provisions as a three-step inquiry, looking first to the "contrary to" clause, second to the "unreasonable application" clause, and finally to the "unreasonable determination of the facts" clause. Blystone v. Horn, 664 F.3d 397, 417 (3d Cir. 2011). For these purposes, "clearly established federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
A state court decision is contrary to clearly established federal law under the first clause of § 2254(d)(1) when the state court "applies a rule that contradicts the governing law set forth" in a Supreme Court precedent, or when the state court "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a different result from [the Supreme Court's] precedent." Williams v. Taylor (Terry Williams), 529 U.S. 362, 406 (2000). In these cases, the federal court has de novoreview over the state court decision. Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013). When the state court correctly identifies the governing federal precedent but applies it in a debatable manner, the "contrary to" clause is not violated. Terry Williams, 529 U.S. at 405-06.
A state court decision is an unreasonable application of clearly established federal law when the state court "identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The habeas petitioner must show that the state court decision was objectively unreasonable and not merely incorrect. Id. at 410-411; Blystone, 664 F.3d at 417. "[S]o long as 'fairminded jurists could disagree' on the correctness of the state court's decision," the state court's application of federal law cannot be considered unreasonable. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
Id. at 786-87 (citations omitted). "The meaning of 'unreasonable' can depend in part on the specificity of the relevant legal rule. . . . The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations." Yarborough, 541 U.S. at 664.
Finally, a state court decision rests on an unreasonable determination of the facts only if the state court's findings of fact are objectively unreasonable in light of the evidence presented in state court at the time of the state court's adjudication. Blystone, 664 F.3d at 418; see also Cullen v. Pinholster, 131 S. Ct. 1388, 1401 (2011). In general, the state court's findings of fact are presumed to be correct, but the petitioner may rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
All three of these § 2254(d) inquiries-whether the state court's decision was contrary to federal law, an unreasonable application of federal law, or based on an unreasonable determination of the facts-apply only when the petitioner's federal claim has been "adjudicated on the merits in State court proceedings." If a claim has not been adjudicated on the merits, a federal court will apply de novo review to pure legal questions and to mixed questions of law and fact. Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009).
In Johnson v. Williams, the Supreme Court tackled the issue of whether a case had been adjudicated on merits "when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state court proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question." 133 S. Ct. 1088, 1091 (2013). In this circumstance, the Supreme Court held that the federal claim is presumed to have been adjudicated on the merits, unless the presumption is adequately rebutted. Id. The Ninth Circuit had held that petitioner's Sixth Amendment claim had not been adjudicated on the merits because the state court had overlooked it. Id. at 1094. While the Supreme Court disagreed with the Ninth Circuit's conclusion that petitioner's claim had not been adjudicated on the merits, it affirmed that the presumption of on-the-merits adjudication is successfully rebutted where it is established that a state court has overlooked the federal claim in question. Id. at 1097-98. As the Supreme Court explained:
A judgment is normally said to have been rendered "on the merits" only if it was delivered after the court ... heard and evaluated the evidence and the parties' substantive arguments. And as used in this context, the word "merits" is defined as the intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form. If a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter.
Id. at 1097 (citations omitted) (internal quotation marks omitted).
The Johnson v. Williams Court thus made clear that the deferential standards of § 2254(d) apply to any claim decided on the merits by the state courts, regardless of whether the claim was specifically decided in light of federal precedents. See also Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009) ("For purposes of § 2254(d), a claim has been 'adjudicated on the merits in State court proceedings' when a state court has made a decision that 1) finally resolves the claim, and 2) resolves the claim on the basis of its substance, rather than on a procedural, or other, ground."). As long as the state court resolves the petitioner's claim on the merits, it need not explicitly consider federal law. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Priester v. Vaughn, 382 F.3d 394, 397-98 (3d Cir. 2004) (holding that § 2254(d) applies "even if the state court does not cite to any federal law as long as the state court decision is consistent with federal law").
By contrast, § 2254(d) does not apply when a federal claim is fairly presented to the state courts and the state courts do not decide the claim on the merits. Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). Under those circumstances, the pre-AEDPA standard of review applies: The habeas court may make an independent judgment of the petitioner's claims, without deference to the decision of the state courts. Id.; see, e.g., Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (conducting de novo review where state court failed to decide federal claim on the merits). Even when § 2254(d) does not apply, "the state court's factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence." Appel, 250 F.3d at 210.
In his first claim for relief, Bridges argues in the main that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny by failing to disclose material impeachment evidence as to prosecution witness George Robles. Third Am. Pet. 9. The Pennsylvania Supreme Court, hearing Bridges' direct appeal, summarized key portions of George Robles' trial testimony as follows (the material in quotation marks comes verbatim from Robles):
At approximately 12 noon on Sunday, December 8, 1996, the [Appellant], Shawnfatee Bridges, and Co--Defendant Richard Morales drove the [Appellant]'s blue minivan to the home of a mutual friend, George Robles. Also present at the Robles' home that day was the third Co--Defendant, Roderick Johnson. When Bridges and Morales first arrived, they spoke with Co--Defendant Johnson, but soon thereafter, they called Robles downstairs. Robles testified at trial that Bridges explained, " . . . how the Banks' boys went in his house with guns to his girlfriend's head and his kid was there and how he was going to take care of them right now." During the same conversation, the [Appellant] said, "I gotta take them out. I am gonna get them and I'm gonna kill them and I'm going to put an end to this forever. Because if I let them get away with it now they are going to try to do it again so I'm going to have to do what I have to do." Then all three co-defendants tried, unsuccessfully, to convince Mr. Robles to join them. Despite Mr. Robles' refusal, the conversation continued with all three co-defendants saying, "we are gonna kill them. We are going to put an end to this." At approximately this point in the conversation, the [Appellant] pulled out a 9 mm. Glock handgun and continued to say how he was "gonna kill them."
Bridges I, 757 A.2d at 865 (internal record citations omitted).
In Bridges' own statement to the police-which was read in its entirety at trial-he admitted that he, Richard Morales, and Roderick Johnson sought out the Banks cousins on the night of the murder to "f- them up" in retaliation for what Bridges believed was the Banks cousins' earlier attempt to rob his home. Notes of Testimony ("N.T.") Vol. IV 1029. But Bridges maintained that he did not intend to kill the Banks cousins, that he was surprised when Johnson began to shoot them, and that he in fact fired a weapon that he found on the ground in the direction of Johnson in an effort to stop the shooting. Id. at 1030.
Against this theory of the defense, the significance of Robles' trial testimony is manifest. His story provided direct evidence that Bridges had the specific intent to kill, not merely to inflict some lesser harm. This was critical to prove the Commonwealth's charge of first-degree murder. As the Pennsylvania Supreme Court explained,
To sustain a conviction for first-degree murder, the Commonwealth must prove that the defendant acted with a specific intent to kill, . . . and that the killing was done with deliberation. It is the specific intent to kill that distinguishes murder in the first degree from lesser grades of murder.
Bridges I 757 A.2d at 864. It cited the state's accomplice liability law, which explains that a person is liable as an accomplice where, "with the intent of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it . . .". Robles' story also linked Bridges to one of the murder weapons: The evidence at trial showed that both Banks cousins were shot with a 9 millimeter Glock handgun. Id. at 866; see also N.T. Vol. V 1107-08, 1116-17 (evidence that Damon Banks was also shot with a .38 caliber handgun). The Commonwealth emphasized this despite the fact that it had not charged Bridges as the shooter.
In his habeas petition, Bridges points to other trial evidence that added further gravity to Robles' testimony about the Glock. Third Am. Pet. 12. Fire Marshal Terry Francis testified that during his after-the-fact examination of the van, he observed what appeared to be a bullet hole in the front passenger seat; when he placed a metal rod through the hole and followed the presumed trajectory of the bullet, he found a bullet fragment near the driver-side rear wheel well. N.T. Vol. IV 942. That linear path suggested that a bullet was fired from the direction of the front passenger side of the van towards the victims, seated in the van's middle seats. The projectile recovered by Francis was identified by another police witness as coming from a 9 millimeter handgun. N.T. Vol. V 1113. In Bridges' own statement to the police, he placed himself in the front passenger seat at the start of the shooting. N.T. Vol. IV 1032-33. The testimony from Fire Marshal Francis thus may have provided some support for Robles' story, in that the 9 millimeter bullet path from the front passenger seat towards the victims was consistent with Robles' claim that Bridges had a 9 millimeter Glock and intended to kill the Banks cousins that night. This is significant because Bridges was charged only as an accomplice.
b.Claim I.B.1: Withholding Material Impeachment Evidence as to Robles
The gravamen of Bridges' Brady claim is that the prosecution should
have disclosed several police reports that could have been used to
impeach George Robles' credibility by showing that "Robles had very
real motives to lie in any way necessary to curry the favor of the
prosecution and avoid further scrutiny of his own illegal activities."
Third Am. Pet. 11. Bridges believes that the police reports*fn1
could have been used to show that Robles was engaged in the
sale of drugs and other associated ills, like gun crimes, prior to
Bridges' trial; that Robles was not a reluctant witness, as the
prosecution claimed, but instead a willing cooperator who had
volunteered information in exchange for leniency in the past; and that
Robles' desire to protect his drug enterprise provided a strong
incentive for him to falsify his testimony to aid the prosecution. Id.
at 17-35; Pet'r Supp. Mem. in Support of Third Am. Pet. 5-6 (Doc. No.
Bridges argues that he exhausted this Brady claim in two steps. Pet'r Second Reply to Resp't Mem. 7-8 (Doc. No. 132). He maintains that the legal basis for this claim was first presented to the Pennsylvania Supreme Court on appeal from the denial of his first PCRA petition, while the factual basis for this claim-the allegedly withheld evidence-was submitted during his second PCRA proceeding. Id.
The first step is clearly borne out by the record. In his first PCRA petition, Bridges requested discovery of any police reports showing that Robles was a paid informant prior to trial or that Robles had dealt, possessed, or transported drugs prior to or during the trial. Am. Pet. for Habeas Corpus Relief and Statutory Post Conviction Collateral Relief of Dec. 12, 2003, at 18 (hereinafter "First PCRA Pet."). Bridges also requested funds to investigate evidence that might undermine Robles' credibility. Id. at 13-15. As to the latter request, Bridges advised the PCRA court that "[w]ithout said investigation, Petitioner is unable to determine whether he should properly plead and prove a Brady violation." Id. at 17. Both requests were denied by the PCRA court, and the denials were affirmed on appeal. Bridges II, 886 A.2d at 1130-31.
The Bridges II opinion of the Pennsylvania Supreme Court does not address the potential constitutional underpinnings of Bridges' claim. The state court merely held that Bridges had failed to show good cause for discovery under state law. Bridges II, 886 at 1131. But the constitutional claim was fairly presented in Bridges' briefing. First PCRA Br. 11-19 (Doc. No. 68 at A393, A415-23). Although Bridges framed his claim as a request for discovery, he also cited Brady and other federal cases to alert the state court that he believed the prosecution to be in possession of impeachment evidence that he had a constitutional right to receive prior to trial. Id. at 14, 16.
This first post-conviction trip through the state courts was sufficient to fairly present the legal basis for Bridges' Brady claim. As he points out, the Supreme Court has found exhaustion on similar facts. See Pet'r Second Reply 7-8 (citing Banks v. Dretke, 540 U.S. 668, 690 (2004)). In Banks, the Supreme Court held that the petitioner had fairly presented the legal basis for his claim by alleging that material impeachment evidence had been withheld in violation of Brady, even though the petitioner was not (yet) in possession of the allegedly withheld evidence. 540 U.S. at 690. Bridges' claim to the state courts was at least as specific and detailed in its allegations as was the claim in Banks.
Whether the state courts also had the opportunity to address the factual basis for the claim is more debatable. Both the "factual and legal substance" of a petitioner's claim must be presented to the state court to satisfy the exhaustion requirement. McCandless, 172 F.3d at 261 (emphasis added); cf. Banks, 540 U.S. at 690-91 (distinguishing between exhaustion of factual and legal basis for Brady claim). The factual basis for Bridges' Brady claim is a series of police reports concerning George Robles that he claims should have been disclosed as material impeachment evidence prior to trial. The Commonwealth stipulated that these documents were not disclosed during pre-trial discovery. N.T. PCRA Hearing 46-47, No. 117-97, Docket No. 181 (C.P. Berks County, Sept. 2, 2009) ("PCRA Hearing II"). These police reports first came to light during federal habeas proceedings, after I granted Bridges' requests for discovery.*fn2 After Bridges had received the police reports, he submitted a second PCRA petition. He relies on this second petition for exhaustion of the factual basis for his Brady claim. Pet'r Second Reply 8.
Bridges' presentation of the Brady claim to the state court was confusing, as Bridges offered somewhat conflicting arguments throughout the second PCRA proceedings. His second PCRA petition did indeed discuss the Robles police reports, which were attached as exhibits. See Pet. for Habeas Corpus Relief of Dec. 12, 2008, at 3, 14-26 (Doc. No. 123, Ex. 53) (hereinafter "Second PCRA Pet."). But Bridges did not ask the second PCRA court to re-examine his Brady claim in light of these reports. In fact, he erroneously advised the court that the Brady claim had already been litigated in his first PCRA petition. Id. at 14 n.4. Of course, this issue had not been previously litigated, as Bridges had only recently discovered the withheld police documents that formed the foundation of the Bradyclaim. Mysteriously, rather than presenting an independent Brady claim, Bridges presented this evidence as part of his claim that the Commonwealth acted in bad faith throughout Bridges' trial, and used the documents relating to Robles as evidence to buttress his claim of unconstitutional prosecutorial misconduct, under Youngblood v. Arizona, 588 U.S. 51 (1988). However, the petition repeatedly cited Brady. During the hearing held in the Berks County Court of Common Pleas, Bridges' attorney told the court,
There are two issues, as I see it, to be the subject of this hearing. The first is a destruction of evidence issue . . . The other issue deals with exculpatory material in the nature of police reports that deal with and involve the principle witness in the trial against Mr. Bridges, and that is Mr. George Robles.
N.T. PCRA Hearing II 6:10-2, 7:7-10. Bridges' attorney also discussed the elements of a Brady claim. He explained that the evidence "would be characterized as exculpatory material under the Brady case," Id. at 10:5-7. Alluding to prejudice, he explained that the evidence "would be significant, very significant in evaluating the credibility of this witness," Id. at 10:12-13, and would have "provide[d] ammunition for cross examination to demonstrate interest on the part of Robles and why Robles was such a cooperative witness with the prosecution in this case." Id. at 10:21-23. In its response, the Commonwealth specifically contested the existence of a Brady claim, arguing that the Robles documents had never been requested, "and so there can't be a Brady violation." Id. at 16:23.*fn3
In the post-hearing briefs submitted to the common pleas court, Bridges once again presented the Robles evidence in the context of a prosecutorial misconduct claim. But again, he repeatedly cited Brady. For example, he cited Brady to support his statement that "federal due process requires a prosecutor to disclose favorable evidence to the accused." Pet'r Post-Hearing Memorandum in Support of Petition for Habeas Corpus Relief 22, Nov. 25, 2009. He explained the prejudice resulting from the suppression of the Robles documents: "Had the police reports involving Robles been turned over to the defense, trial counsel would have been able to expose as false Robles' testimony-and the former District Attorney's argument-that Robles was not engaged in the drug trade and had no motive to testify favorably for the prosecution." Id. at 24. Further, the petition stated that none of the issues raised were previously litigated. Id. at 34. This suggests that Bridges recognized the omission in his earlier brief, and corrected it for the court during the hearing and the post-hearing briefing.
Bridges satisfied the requirement that he exhaust his state-court remedies as to the factual and legal bases of his Brady claim. He repeatedly cited Brady in his briefs and arguments to the court, and presented evidence relevant to the elements of a Brady claim. Although his first brief to the state court during his second PCRA proceedings mistakenly represented that the claim was previously litigated, his arguments during the hearing and his subsequent briefing put the court on notice of a potential Brady claim. Under the circumstances, the purpose of the exhaustion doctrine-ensuring that the state courts have a first chance to redress any claimed federal constitutional violations-was satisfied. See Harrington, 131 S. Ct. at 787 (describing the exhaustion requirement "as designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions").
In Claim I.B.1 of his Third Amended Petition before this Court, Bridges argues that the prosecution withheld police reports that constitute material impeachment evidence as to George Robles, in violation of the due process right recognized in Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Third Am. Pet. 11.
As a threshold matter, Bridges asserts that the deferential standard of review required by 28 U.S.C. § 2254(d) does not apply to his Brady claim because the state court failed to decide it despite two opportunities to do so. Pet'r Mem. in Support of Pet. 21; Pet'r Supp. Mem. 10. Bridges presented the legal basis for his Brady claim during his first PCRA proceeding, in the context of arguing that he was entitled to discovery of any evidence in the Commonwealth's possession that George Robles was a paid informant or a drug dealer. The Pennsylvania Supreme Court affirmed the denial of Bridges' discovery request without any discussion of the potential Brady issue:
We review the denial of a discovery request for an abuse of discretion. See Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167, 1175 n.5 (1999). Appellant has failed to prove a discovery violation where he has not identified specific documents that were withheld by the Commonwealth or other evidence that suggested Robles was a paid informant or a drug trafficker. See id., at 1175 (no abuse of discretion where appellant failed to identify specific documents not produced).
Appellant is not entitled to relief where he has made a general request for the discovery of documents without first proving their existence. As appellant has failed to make the requisite showing, we find no abuse of discretion in denying appellant's discovery request.
Bridges II, 886 A.2d at 1131.*fn4 Bridges later presented the factual basis for his Brady claim-the police reports-with his second PCRA petition, in the context of his Youngblood claim. The PCRA court devoted a single paragraph to the issue in its opinion, saying that the allegation of improper evidence suppression "appears to have needlessly reared its head in these proceedings."
Bridges III, slip op. at 15. It quoted the Commonwealth's discussion-which was also only one paragraph-nearly in full to say that the claim "in no way shape or form has anything to do with the allegation involving" the prosecutor's bad faith destruction of evidence. Id. The court concluded that"[t]he alleged withholding by the Commonwealth of impeaching documents concerning George Robles has already been litigated and we see no need to further discuss it here." Bridges III, slip op. at 15. The Pennsylvania Supreme Court denied leave for further review without explanation.
Notwithstanding the Court of Common Pleas' description of the issue as "already . . . litigated" in Bridges III, it does not appear that the state courts ever decided whether Bridges was entitled to receive these police reports under Brady. At most, in Bridges II the Pennsylvania Supreme Court determined that Bridges had failed to identify any specific withheld documents- a difficult showing to make without the actual documents, for obvious reasons-and thus was not entitled to discovery as a matter of state law.*fn5 The situation appears to be analogous to Cone v. Bell, 556 U.S. 449, 472 (2009), a habeas case in which the Supreme Court conducted de novo review of a Brady claim that the state courts had declined to address on the inaccurate view that the claim had already been litigated in prior state court proceedings. Here, by stating that the claim warranted no discussion, the state court made it explicit that that it was refusing to evaluate "the intrinsic rights and wrongs wrong of a case." Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013). As no state court has decided the legal merits of Bridges' Brady claim, federal habeas review is plenary.
b.The Undisclosed Evidence
The police reports at issue document five episodes involving George Robles prior to Bridges' trial in January 1998. None of the reports were disclosed to Bridges at the time of his trial. The first episode occurred in February and March 1996, nearly two years before Bridges' trial, when Robles came to the attention of the Reading police department after he was accused by relatives of his then-girlfriend, Lucy Cintron, of threatening them with a handgun during an altercation. Pet. Ex. 21, Doc. No. 55-1, at 37-38. Nothing came of the accusation after Robles denied it and the two complaining witnesses declined to press charges. Id. at 40. In the course of speaking to the police about the alleged incident, Robles volunteered to provide information in confidence to Criminal Investigator Angel Cabrera regarding the murder of a relative of Cintron in New York. Id. Cabrera arranged for Robles to speak with another officer, whom Robles told that Cintron's relative was murdered because of the relative's involvement in a scheme to deal cocaine in the Reading area. Pet. Ex. 48, Doc. No. 102-4, at 19.
The second episode began on April 25, 1996, roughly 18 months before Bridges' trial, when the Reading police responded to a shooting outside Robles' residence. Pet. Ex. 22, Doc. No. 55-1, at 42-44. Robles was neither a suspected shooter nor a victim; indeed, he told the police that he was inside his home smoking marijuana during the shooting and had not witnessed anything. Id. at 48-50. In the course of investigating the shooting, the police determined that a juvenile living with Robles-Edwin Ruiz, described as Robles' cousin-had stashed a red bag containing two handguns and numerous individually-packaged bags of crack cocaine in a nearby apartment shortly after the shooting. Pet. Ex. 23, Doc. No. 55-2, at 3-5. Some of the crack was stored inside a cigar box, and Robles' fingerprint was found on the box. Id. at 5-11, 28, 32. Ruiz was the only person arrested or charged in connection with the drugs. See id. at 36-39.
The April 1996 episode is significant, in Bridges' view, not just for the drugs charged to Ruiz but also for the police investigation of the apartment in which Ruiz tried to hide the red bag. Third Am. Pet. 26-28. The apartment was occupied by Amy Sell and her boyfriend, Rafael Melendez. Pet. Ex. 23, Doc. No. 55-2, at 15. A third man, Juan Rodriguez, was also present when the police arrived to recover the red bag. Pet Ex. 22, Doc. No. 55-1, at 49, 51. It was Sell who told the police that Edwin Ruiz had come to the residence and had asked to hide the red bag there, which Melendez agreed to do. Pet. Ex. 23, Doc. No. 55-2, at 6-7, 16.
Melendez told the police that he placed the red bag in a closet where he was keeping a safe for George Robles, who paid him $20 per week for the privilege. Pet. Ex. 23, Doc. No. 55-2, at 17. Melendez also told the police that, after the red bag had been seized, he asked Juan Rodriguez to remove the safe from the apartment. Id. Rodriguez confirmed this and told the police that he ultimately put the safe in a garage near his own residence. Pet. Ex. 22, Doc. No. 55-1, at 49. The police recovered the safe from there and returned it to Robles, who had reported it as stolen. Id. at 49, 52; Pet. Ex. 24, Doc. No. 55-2, at 42. The safe appears to have been open when the police recovered it. Pet. Ex. 22, Doc. No. 55-1, at 52. Robles told the police that the safe contained only some money and his birth certificate. Id. at 50; Pet. Ex. 24, Doc. No. 55-2, at 42. Amy Sell reported that Robles had told her the same thing when he asked to store the safe in the apartment where she and Melendez resided. Pet. Ex. 23, Doc. No. 55-2, at 18. But, according to the police reports, both Melendez and Sell told the police that they suspected Robles was a drug dealer, and Melendez claimed to have seen Robles use the safe to store crack cocaine, a mobile phone, cash, and a gun. Id. at 17-18. An acquaintance of Edwin Ruiz's mother also told the police during this investigation that she thought Robles was dealing drugs. Pet. Ex. 22, Doc. No. 55-1, at 50-51. He was not arrested or prosecuted.
The third episode occurred nearly a year later, in August 1997, about six months before Bridges' trial. Reading police responded to a report of gunfire and found Robles among a crowd of people at the scene. Pet. Ex. 34, Doc. No. 55-5, at 2-3. Robles was carrying a 9 millimeter handgun for which he had a valid permit. Id.*fn6 Shell casings found at the scene matched the ammunition in Robles' gun. Id. at 3. Robles had been drinking, and the police confiscated his gun. Id. at 4-5. Once again, he was neither arrested nor charged.
The fourth episode occurred in September 1997 and was similar to the August 1997 incident. The Reading police responded to a report of gunfire in an alley near 543 Cedar Street. Pet. Ex. 35, Doc. No. 55-5, at 9. The police questioned Robles-then apparently living at 545 Cedar Street with Lucy Cintron-and he denied hearing anything. Id. In a report of the incident, one of the responding police officers wrote that "Robles and another occupant.are involved in drug dealing at 10th and Elm Streets and possibly at 545 Cedar Street." Id. No arrests were made and no charges were filed.
The fifth and final episode occurred in November 1997, two months before Bridges' trial, when the police again responded to a report of gunfire in the vicinity of 545 Cedar Street. Pet.
Ex. 38, Doc. No. 55-6, at 3. Lucy Cintron told the police that shots were fired after a dispute over a bicycle. Id. at 8. The police confiscated a firearm that was legally registered to George Robles and that had been fired in the episode. Id. at 5-6, 8-10. But Robles told the police that he was at a nearby bar during the shooting, and nothing in the police records contradicts this story. Id. at 4, 8-9. In his report of the incident and subsequent investigation, Criminal Investigator Cabrera stated that Robles' gun permit should be revoked but that there was insufficient evidence to connect the seized handgun to any shooter. Id. at 9. Although some property was damaged, no one was hurt in the November 1997 incident and apparently no one was arrested or charged.
These were the undisclosed police reports regarding George Robles. Bridges has supplemented this presentation with some additional but distinct material-e.g., police reports of two arrests of Lucy Cintron in 1997 for drug charges, none of which mention Robles. Pet. Ex. 33, Doc. No. 55-4, at 39-41, 54; Pet. Ex. 36, Doc. No. 55-5, at 13-14. Bridges has also submitted records of Robles' illegal conduct after Bridges' trial-records which cannot possibly have been Brady material. See Pet. Ex. 7, Doc. No. 17-2 & 17-3 (affidavit of probable cause for search warrant in 2001 narcotics investigation); Pet. Ex. 8, Doc. No. 17-4, at 4 (Robles' guilty plea to various state drug charges in 2001); Pet. Ex. 9, Doc. No. 17-4, at 12 (state court order in 2002 sentencing Robles to a prison term of eleven to twenty-four months).
Finally, Bridges offers several affidavits from persons who knew Robles or from defense investigators who claim to have interviewed such persons; the gist of the affidavits is that it was a matter of common knowledge that Robles was a drug dealer. See Pet. Ex. 12, Doc. No. 17-4, at 42-44 (unsigned affidavit of Priscilla Cruz); id. at 50-52 (affidavit of Wilfredo Velez); Pet. Ex. 15, Doc. No. 29-13, at 6-8 (affidavit of Orlando Alvarado); id. at 15-16 (affidavit of Liz Ruiz); id. at 19-20 (affidavit of Allyn Ammons); id. at 21 (affidavit of Jamie Hess); Pet Ex. 16, Doc. No. 31, at 4-5 (affidavit of defense investigator as to statement by Carlos Diaz, former member of Robles' "Night Life Clique" gang); Pet. Ex. 47, Doc. No. 60-4, at 2-3 (affidavit of defense investigator as to statement by Dorothy Colona); Pet. Ex. 49, Doc. No. 102-4, at 33-34 (affidavit of defense investigator as to statement by former Det. Bruce Dietrich). Bridges does not give any reasons to suppose that these witnesses were suppressed or made unavailable to him at trial by the prosecution. Instead, his Brady theory appears to be that if the prosecution had disclosed the above-described police reports, the reports would have led his trial counsel to investigate and discover these witnesses. Third Am. Pet. 49.
"A Brady violation occurs if: (1) the evidence at issue is favorable to the accused, because either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was prejudiced because the evidence was 'material.'" Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011). "Evidence is material if there is a reasonable probability that, if the evidence had been disclosed, the result of the proceeding would have been different." Wilson v. Beard, 589 F.3d 651, 665 (3d Cir. 2009). "A 'reasonable probability' of a different result is shown when the government's suppression of evidence 'undermines confidence in the outcome of the trial.'" Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
There is no doubt that the police records relating to Robles are impeaching, and thus favorable to Bridges. They present evidence that Robles was involved in some way in at least four shooting incidents in an 18-month period. They also indicate a high probability that Robles was involved in the drug trade. Indeed, in at least one report, the police officer noted as a fact that Robles was dealing drugs in his neighborhood. Pennsylvania law bars the impeachment of witnesses with conduct that did not lead to a criminal conviction. Com. v. Crangle, 422 A.2d 547 (Pa. 1980). Similarly, a witness "may not be impeached by questions concerning criminal activity not resulting in arrest." Com. v. Taylor, 381 A.2d 418, 419 n. 4 (Pa. 1977). However, while evidence of uncharged crimes may not have been admissible to impeach Robles' character, his numerous run-ins with the law-none of which resulted in his arrest-could have been used to demonstrate his potential bias in favor of law enforcement. See U.S. v. Abel, 469 U.S. 45, 53 (1984) ("Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness's testimony"); Com. v. Evans, 512 A.2d 626, 631 (Pa. 1986) (a witness's potential bias in favor of the prosecution must be made known to the jury). Indeed, "it is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial." Id. at 632 (quoting Com. v. Cheatham, 239 A.2d 293, 296 (1968)).
The evidence regarding Robles' past run-ins with law enforcement point to a potential bias that Bridges had a right to examine during questioning of Robles. The documents suggest that Robles may have had a motivation to lie to curry favor with the police to protect this drug business and to stay out of police custody. The Pennsylvania Supreme Court explicitly acknowledged the potential for such a bias, when it declared its "willingness to acknowledge what we had previously thought was too speculative: that a prosecution witness may be biased because of the expectation of leniency in some pending matter even when no promises have been made." Evans, 512 A.2d at 632. The evidence therefore satisfies the first requirement of Brady, because it was favorable to the defendant as potential impeachment evidence.
It is also clear that the evidence was withheld from the defense. The evidence at issue was generated by police agencies and thus was undoubtedly in the constructive possession of the prosecution and subject to disclosure. Cf. Wilson, 589 F.3d at 659 (prosecution charged with disclosing evidence in possession of police agencies). The Commonwealth had an affirmative duty to disclose all potentially favorable evidence to Bridges. See Kyles v. Whitley, 514 U.S. 419, 432 (1995). The prosecution told Bridges' lawyers that it had given them "unlimited discovery." N.T. Omnibus Pretrial Hearing 2, No. 117-97, Docket No. 80 (C.P. Berks County, Sept. 19, 1997). It failed to meet its obligation when it failed to turn over the police records pertaining to Robles. See N.T. PCRA Hearing II 46-47 (Commonwealth stipulating that it did not provide the police reports regarding Robles to the defense during pre-trial discovery). Bridges had a right to cross-examine Robles on his potential bias in favor of the prosecution, and the withheld documents deprived him of the ability to meaningfully inquire about Robles' motive to testify.
As to the evidence's materiality under Brady, I must determine whether the suppression of these documents undermines confidence in the outcome of Bridges' trial. The Third Circuit recently evaluated these exact same documents in the context of an unrelated murder case in which Robles was also the star witness-and during which the prosecution similarly withheld the evidence about Robles' prior involvement with law enforcement. In that case, Johnson v. Folino, 705 F.3d 117 (3d Cir. 2013) ("Johnson"), the petitioner had procedurally defaulted on his Brady claim. The district court first determined that the evidence about Robles' repeated interactions with the police could not be prejudicial because they would have been inadmissible under state law to impeach his credibility. Johnson v. Folino, 671 F.Supp.2d 658, 669 (E.D. Pa. 2009). Even if the evidence were admissible, the district court determined that it was not material because it did not undermine confidence in the verdict. Id. at 670. On reconsideration, the district court determined that the evidence wouldhave been admissible to impeach Robles for bias, and could be deemed material, but that it would still be inadmissible because it was "extremely speculative, tangential to the issues . . . , and was likely to confuse the jury." Order Granting Pet'r Mot. for Partial Reconsideration 1 n.1, Johnson v. Folino, No. 04-2835, (Aug. 8, 2011). The court thus denied Johnson's habeas petition but granted a certificate of appealability on the Brady claim. Id.
On appeal, the Third Circuit disputed the lower court's determination of the evidence's admissibility, and emphasized that admissibility is not the touchstone of materiality:
The materiality standard, however, is not reducible to a simple determination of admissibility. Rather, we believe . . . that inadmissible evidence may be material if it could have led to the discovery of admissible evidence. . . . Furthermore, . . . we think that inadmissible evidence may be material if it could have been used effectively to impeach or corral witnesses during cross examination.
Johnson, 705 F.3d at 129-130. The Third Circuit instructed the district court, on remand, to "evaluate the materiality of each item of suppressed evidence individually, bearing in mind not only its content, but also where it might have led the defense in its efforts to undermine Robles." Id. at 131. In addition, the court emphasized that lower courts "must consider the cumulative effect of all the evidence that was suppressed and favorable to [petitioner]." Id. (citing Smith v. Sec'y, Dep't of Corr., 527 F.3d 1327, 1346 (11th Cir. 2009) ("Cumulative analysis of the force and effect of the undisclosed pieces of favorable evidence matters because the sum of the parts almost invariably will be greater than any individual part.")).
Although the court did not decide the ultimate question of whether the withheld evidence about Robles constituted Brady material that would entitle the petitioner to a new trial, it characterized the evidence as "substantial impeachment evidence." It advised the district court to carefully "consider all paths to materiality discussed above, in addition to any others that [petitioner] can identify." Id. at 132. The district court must address this ultimate question: "In light of this newly disclosed evidence, and the relative paucity of other evidence connecting [petitioner] to the murder., could confidence in the verdict be undermined?" Id.
Following the Third Circuit's instruction, I will examine the most salient pieces of evidence individually before looking at the cumulative effect of all the police reports, beginning with the February 1996 shooting incident. Pet. Ex. 21, Doc. No. 55. Robles was questioned by police after allegedly pulling a gun on someone and threatening to kill him. The officers reported that another witness accused Robles of pointing his gun to another woman's head as well. In denying the allegations, Robles told the investigator, Cabrera, that he had information about a murder that he would reveal in confidence. The police report notes that "there is enough to make an arrest," but the case was closed because the victims refused to file. This evidence shows Robles' willingness to provide police with information when he was confronted with his own misdeeds. Bridges could have used this police report to question Robles about his testimony in Bridges' trial, and whether it was similarly offered as a way to curry favor with the police. Bridges could have also used the police report to ask Robles about whether he lied to the police when he said he did not pull a gun on the victim.
Similarly, the police documents relating to the April 1996 shooting incident would have allowed Bridges to inquire into Robles' bias toward the prosecution. Police responded to reports of shots fired, and found that 11 bullets had hit the house that was rented at the time by Robles. During the investigation of that incident, police found a cigar box with Robles' fingerprint that contained drugs inside. Additionally, multiple witnesses told the police that Robles was a drug dealer. One explained that Robles had stashed a safe at her house, and another told police that Robles kept the crack he sold, along with a gun, in the safe. Once again, Robles was not arrested or charged with a crime.
Each of these reports individually would have provided Bridges an opportunity to inquire about Robles' bias or motive to lie, as each incident shows police officers who have reason to suspect that Robles was involved in criminal activity but who do not arrest or charge Robles. Robles' eagerness to provide information after the February shooting gives further ammunition to Bridges' theory that Robles was lying to the police-then and during his own trial-in order to curry their favor and protect his own criminal interests. Each of these police reports would have allowed Bridges to question Robles' motivation.
However, I need not determine whether the suppression of each report, on its own, undermines confidence in the trial, because the cumulative prejudicial effect of the numerous suppressed police reports about Robles shows that they are "material" under Brady. Robles' testimony constituted the only evidence that the prosecution presented to show that Bridges had the intent to kill-the necessary mens rea for first degree murder. Therefore, "the pivotal factor in the.trial was the credibility of the prosecution's chief witness." Com. v. Birch, 616 A.2d 977, 979 (Pa. 1992). Recognizing this, the District Attorney repeatedly emphasized Robles' trustworthiness. In his closing argument, the prosecutor asked the jury what Robles could possibly be gaining out of testifying, describing Robles as a reluctant witness: "George Robles didn't want to come in here, but George Robles came to court and told you what he knew about this case. . . . Would he make up this story?" N.T. Vol. V 1383. The defense attempted to poke holes in Robles' testimony during cross examination and closing arguments, but without the police reports, Bridges could not ask Robles about his motivation to testify. He could not ask the jury to consider why it was that Robles was known by the police to be a drug dealer, and to have been present at multiple shooting incidents, and yet had never been arrested or charged with a crime. Without the Brady material, Bridges could not counter the prosecution's claim that Robles had nothing to gain from cooperating with the police. Fundamentally, he could not meaningfully challenge the presentation of Robles as a trustworthy witness who should be believed. Considering the centrality of Robles' testimony to the Commonwealth's case, this information gap resulted in a serious disadvantage to Bridges.
Moreover, the police documents could have led Bridges' attorneys to other witnesses who could have testified about Robles' activities and his character. The Third Circuit, in Johnson, held that evidence that could lead to other impeaching or exculpatory evidence that could have changed the outcome of the trial would itself be Brady material. The Johnson court noted that cross-examination of Robles could have looked very different had this evidence been disclosed:
For example, Johnson could have cross-examined Robles about specific instances in which he was approached as a person of interest in several felonies. If, in the face of these pointed questions, Robles still maintained that he was a law-abiding citizen without a motivation to manufacture testimony against Johnson, Johnson suggests that he could have called police officers to testify that Robles was aware that he was under investigation . . . . Furthermore, Johnson urges that the District Attorney would not have been able to discount Johnson's attack on Robles's credibility in his closing argument had Johnson had access to all of the impeachment evidence in the possession of the Commonwealth.
Johnson, at 130. The arguments Johnson presented apply with equal force to Bridges: With this evidence, Bridges could have cross-examined Robles more fully and effectively; he could have called additional witnesses to testify about Robles' possible bias; and the Commonwealth would not have been able to brush aside Bridges' arguments about Robles' credibility so easily.
There is a reasonable probability that, had this evidence been disclosed, Bridges would not have been convicted of first degree murder. The prosecution charged him only as an accomplice, and Robles' testimony was the only evidence that pointed to Bridges' own intent to kill, a necessary element of first degree murder. Bridges' statement to the police, which was read to the jury, N.T. Vol. IV 1030, explained that he had not shot nor had he intended to shoot anyone, and had no idea that Johnson had planned to start shooting in the van. Bridges said that he grabbed a gun in the scuffle and fired in Johnson's direction in an attempt to get Johnson to stop shooting. Robles' testimony that Bridges had said he wanted to kill the Banks cousins was the only direct evidence the Commonwealth presented relevant to Bridges' intent to kill. As Bridges' attorneys revealed during cross examination, Robles' story as to Bridges' statements changed many times. In fact, Robles had never told the police in any of his many interviews that Bridges had said he intended to kill the Banks cousins. Bridges' lawyers attacked Robles' credibility as robustly as they could have. But without the police records demonstrating the likelihood that Robles was a drug dealer with an interest in currying favor with the police, Bridges could not fully impeach Robles. If the Commonwealth had not improperly withheld the numerous documents in its possession relating to Robles, there is a reasonable probability that the jury would have disbelieved Robles' testimony.
The evidence was favorable to Bridges, withheld by the prosecution, and material. The Commonwealth's failure to disclose it prejudiced Bridges. As the Third Circuit directed in Johnson, I must ask myself, "In light of this newly disclosed evidence, and the relative paucity of other evidence connecting [petitioner] to the murder., could confidence in the verdict be undermined?" Johnson, at 132. These violations of Brady v. Maryland undermine confidence in Bridges' verdict. He is therefore entitled to habeas relief, and a new trial.
C. Ineffective Assistance of Counsel
In Claim IV, Bridges argues that his counsel was ineffective during the penalty phase of the trial for failing to investigate, develop, or present mitigating evidence. Third Am. Pet. 79, 84-85. The factual and legal substance of this claim was fairly presented to the Pennsylvania Supreme Court during Bridges' first PCRA proceeding. See Commonwealth v. Bridges ("Bridges II"), 886 A.2d 1127, 1132-33 (Pa. 2005) (holding that trial counsel's performance at sentencing was not deficient); cf. id. at 1134-35 (Saylor, J., concurring) (finding that trial counsel's performance at sentencing was deficient but that Bridges failed to show sufficient prejudice to warrant relief).*fn7
In Claim IV of Bridges' Third Amended Petition, Bridges argues that his counsel provided ineffective assistance during the penalty phase of his trial by failing to investigate, develop, and present mitigating evidence. Third Am. Pet. 79. This claim was the centerpiece of his first PCRA petition. After an evidentiary hearing, the PCRA court denied relief, and a divided Pennsylvania Supreme Court affirmed. See Bridges II, 886 A.2d at 1132-33 (holding that counsel's performance was adequate and that counsel's apparent failure not to further investigate Bridges' childhood was "a reasonable strategic decision"); id. at 1134-35 (Saylor, J., concurring) (finding that counsel was deficient but that Bridges suffered no prejudice as a result). The ineffective-assistance claim was adjudicated on the merits.
At the penalty phase, the Commonwealth charged two aggravating factors: (i) that Bridges had been convicted of two murders; and (2) that the murder was committed in relation to drug trafficking.*fn8 The defense put forward four mitigating factors: (1) that Bridges acted under the influence of extreme emotional disturbance; (2) that he was only 19 at the time of the crime; (3) that his participation in the homicide was relatively minor; and (4) the catch-all mitigating factor.*fn9 Bridges' lawyer presented thirteen witnesses, nearly all of them family or acquaintances, who generally reported that Bridges was a good man who did not deserve to die. The defense presented no specific evidence demonstrating Bridges' extreme emotional distress, and discussed Bridges' relatively minor role in the homicide only in the closing argument. The defense never had an expert evaluate Bridges and presented no expert testimony, nor did the lawyer conduct an investigation into Bridges' life history. After deliberating for more than six hours, and after telling the court at one point that it was deadlocked, the jury eventually returned a verdict of death, finding only one aggravating factor (the multiple homicide factor) and no mitigating factors.
Under the Sixth and Fourteenth Amendments, a criminal defendant has the right to effective assistance of counsel, which is violated if the attorney's performance falls "below an objective standard of reasonableness" and "the petitioner suffer[s] prejudice as a result of the deficiency." Blystone, 664 F.3d at 418 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Once a Strickland claim has already been adjudicated on the merits by the state court, a habeas petitioner has the additional burden of showing that the state court's decision about the reasonableness of counsel's performance was itself unreasonable. Id. "The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." Harrington, 131 S. Ct. at 788. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690.
A successful claim of ineffective assistance of counsel requires proving both deficient performance and prejudice. In its examination of Strickland's two prongs, the Pennsylvania Supreme Court correctly identified the governing standard relating to deficient performance, but used the wrong standard for determining whether the defendant had been prejudiced. Therefore, while our review of the court's determination of deficient performance must apply § 2254(d) deference, our review of the prejudice prong is de novo. See Terry Williams, 529 U.S. at 405-06 (explaining that where a state court applies the wrong federal standard, the federal court is "unconstrained" by § 2254(d)(1)).
I find that Bridges' lawyer performed deficiently, and that the state court's finding otherwise was an unreasonable application of federal law. Further, Bridges suffered prejudice from his lawyer's poor performance. Therefore, Bridges is entitled to habeas relief.
To establish ineffectiveness, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. The Supreme Court explained a lawyer's duty to investigate and the deference owed to decisions surrounding that investigation:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
Id. at 690-91. The relevant inquiry here "is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [Bridges'] background was itself reasonable." Wiggins v. Smith, 539 U.S. 510, 523 (2003).
After properly identifying the Strickland standard, the Pennsylvania Supreme Court held that Bridges' lawyer had not performed deficiently. The court distinguished Wiggins, holding that Bridges "was unable to show trial counsel failed to properly investigate and present mitigating evidence because counsel did not have information relating to [Bridges'] childhood that should have led to further investigation." See Bridges II, 886 A.2d 1127, 1133 (Pa. 2005). The court found that counsel "made a reasonable strategic decision concerning what information to investigate and what to present as mitigating evidence" Id. Because the state court ruled on the merits and applied the appropriate federal law, Bridges can prevail on this claim only if he demonstrates that the state court's determination was "contrary to, or an unreasonable application of" Strickland, or that it rested "on an unreasonable determination of the facts in light of the evidence presented to the State court proceeding." 28 U.S.C. § 2254(d)(1).
During the penalty phase, the Commonwealth presented only one witness, Robles, who testified about Bridges' drug activity. N.T. Vol. VII, 1498-1536. Bridges' lawyer, Peter David Maynard, presented thirteen witnesses, nearly all of them family members or acquaintances, who spoke in general terms about Bridges' good character and asked the jury to spare his life. Id. at 1537-1623.*fn10 Bridges' mother's brief testimony-comprising only two pages of transcript- simply described her son as "a good boy" and proclaimed his innocence. Id. at 1545-47. Bridges' father provided a somewhat more detailed description of Bridges' childhood, mentioning Bridges' health problems that required regular visits to the hospital, but generally painted a positive picture of their family life. Id. at 1609-1618. He stated that his son and his family "were all kind of like a real close family type person," and asked the jury to spare Bridges' life. Id. at1614-15.
Maynard presented nothing beyond these generalized statements of Bridges' character. Despite the fact that the court approved funding for Maynard to hire a psychologist to assist with the penalty phase, N.T. Omnibus Pretrial Hearing 15, he never engaged an expert to evaluate Bridges, nor did he present any expert testimony whatsoever at sentencing. The entire penalty phase lasted only three hours. Thus, Maynard never presented any specific testimony that would have helped to prove any of the mitigating factors he argued; in closing, he simply told the jury, "there is more to this man that what you heard in this case." Id. at 1647.
Despite its availability, Maynard presented absolutely no evidence whatsoever that would have enabled the jury to learn what "more" there was to Bridges. Maynard admitted that he undertook "[n]o specific investigation" into Bridges' childhood or upbringing. N.T. PCRA Hearing 5:16-6:2, No. 117-97 (C.P. Berks County, April 26, 2004) ("PCRA Hearing I"). He admitted that he failed to retain an expert of any kind for the penalty phase, id. at 12:1-3, including an expert who would have discussed the effects of Bridges' childhood illness on his behavior. Id. at 11:1-5. He explained that his decision not to retain any expert was because he "didn't see that much evidence in terms of psychological disturbance," id. at 17:10-11, despite the fact that he had asked the jury to find, as a mitigating circumstance, that Bridges acted under extreme emotional disturbance. Importantly, Maynard made it clear that his failure to fully investigate Bridges' life history and to present a robust mitigation case was not a strategic decision: He testified that he understood that, as a defense lawyer in a death penalty case, "You put everything in. . . . [A]s a practical matter in a death penalty case, in hindsight, everything should have come in. . . . In retrospect and hindsight I would have used everything." Id. at 14:7-13, 16:21-22.
Maynard's investigation constituted deficient performance under Strickland. As the United States Supreme Court declared in respect to a death penalty trial that occurred in 1988, eight years before Bridges' trial, "It is unquestioned that under prevailing professional norms at the time . . . counsel had an 'obligation to conduct a thorough investigation of the defendant's background.'" Porter v. McCollum, 130 S. Ct. 447, 452 (2009) (per curiam) (quoting Terry Williams, 529 U.S. at 396).
Maynard's conduct fell far short of the standards established by the American Bar Association (ABA) for capital defense attorneys. The United States Supreme Court frequently cites ABA standards in its discussions of the reasonableness of a lawyer's performance. See, e.g., Wiggins, 539 U.S. at 524 (explaining the Court has "long referred" to ABA standards "as guides to determining what is reasonable") (internal quotation omitted); Terry Williams, 529 U.S. at 396; Rompilla v. Beard, 545 U.S. 374, 387 (2005). The ABA guidelines in force at the time of Bridges' trial advised lawyers to begin investigations relevant to sentencing immediately, and stressed that such an investigation "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (hereinafter "Guidelines") 11.4.1(C) (1989). The Guidelines advised counsel to investigate the client's medical history, educational history, and family and social history, among other areas. Guidelines 11.4.1(D). The Guidelines also advised counsel to secure expert assistance for the investigation and presentation of mitigation evidence, Guidelines 11.4.1(D)(7)(D), and recommended that lawyers use expert witnesses "to provide medical, psychological, sociological or other explanations for the offense(s) for which the client is being sentenced." Guidelines 11.8.3(F)(2). Indeed, the Guideline commentary conveyed the potential importance of experts: "The assistance of one or more experts (e.g. social worker, psychologist, psychiatrist, investigator, etc.) may be determinative as to outcome." Commentary, Guideline 11.8.6. The Guidelines emphasized that counsel had a duty to present "all reasonably available evidence in mitigation unless there are strong strategic reasons to forego some portion of such evidence," Guidelines 11.8.6(A) (emphasis added), and that such a presentation should include medical history, family and social history, and expert testimony. Guidelines 11.8.6(B).
Maynard's paltry investigation, by his own admission, failed to meet these standards. A thorough investigation would have uncovered compelling mitigation from Bridges' childhood that would have helped the jury to "see the client as someone they do not want to kill." Commentary, Guidelines 11.8.6. During his first PCRA proceedings, Bridges' PCRA lawyer finally exposed the true story of Bridges' life during the 19 years that preceded the trial, in an extensive mitigation report that revealed a much fuller picture of Bridges' troubled childhood. First Amended PCRA Brief, Dec. 15, 2003, Ex. C, Mitigation Report by Louise Luck, M.A., Dec. 10, 2003 (hereinafter "Mitigation Report"). Bridges was raised in an unstable home by a single mother who was addicted to crack, and he "swung between the relative structure of his father's home and the chaotic life he shared with his mother." Mitigation Report at 11. Bridges' mother, Joycetine, had grown up with a heroin-addicted stepfather after her biological father- whom Joycetine's mother described as an alcoholic womanizer-was shot and killed. Id. at 16-17. She and her siblings all developed drug or alcohol addictions. Id. at 19. Joycetine met Bridges' father, Michael, in high school, and she gave birth to Bridges when she was eighteen. Id. at 17.
Michael lived with Joycetine and Bridges for only a few months after Bridges was born; subsequently, Joycetine had primary custody, and she and her children moved frequently. Id. at 12. Bridges attended three elementary schools in his first three years of education. Id. at 11. In between apartments, they would frequently return to Bridges' grandmother's or aunt's house, where Bridges would share a bed with his cousins. Id. at 12. Joycetine would often disappear for two or three weeks at a time, leaving Bridges in the care of his grandmother or his aunt. Id. at 18. Bridges' father suspected Joycetine of engaging in prostitution to support her drug habit; the Mitigation Report notes that she was "known on the streets of Reading for prostitution and substance abuse." Id. at 12. Joycetine's crack addition was debilitating. Hospital records show that she tested positive for cocaine while pregnant with one of Bridges' siblings, and Joycetine gave up another of Bridges' siblings for adoption, in part due to her addiction. Id. at 20. Joycetine and her children were on food stamps and welfare for much of Bridges' childhood. Id. at 20.
Many of Joycetine's boyfriends were drug users or drug dealers, and many of them beat her in front of Bridges. Id. at 18. One boyfriend, who taught Bridges about drug dealing and "street life" when he was a young teen, was particularly violent; Bridges recalls coming home to find blood all over the house after a fight between him and Joycetine. Id. Joycetine made frequent visits to the hospital due to physical injuries that were most likely from abuse, although only one admission was specifically tied to domestic assault. Id. at 19.
Bridges himself suffered debilitating illness and hospitalizations as a child, of which Maynard was generally aware but failed to investigate or explore in depth. In 1988, when Bridges was in fifth grade, he was rushed to the hospital with severe groin and leg pain. Id. at 21. He was diagnosed with acute rheumatic fever and anemia. A year later, he battled a second round of rheumatic fever. His treating physician demanded that he remain on bed rest and use a wheelchair, and urged the family admit to Bridges to a chronic care hospital. Id. Instead, the family took Bridges home. Id. During this time, hospital records show that Bridges' physicians were concerned about his anxiety and depression stemming from his bed rest and from observing the sudden death of a close friend in the hospital. Id. The doctors noted that Bridges, who endured this illness between the ages of 12 and 14, spent many nights in the hospital completely alone, without a single family visitor. Id.
Rheumatic fever is associated with untreated strep throat, and thus can be a sign of neglect. Id. If left untreated, it can damage the heart valves-precisely what happened to Bridges, who was forced at age 17 to undergo open-heart surgery. His mother never visited him in the hospital during his surgery or recovery. Id. at 22.
Throughout his illness, Bridges was forced to spend much of his time in a wheelchair, and missed significant amounts of school. Given the seriousness of his condition, he received disability up until the time of his incarceration. Id.
Maynard never investigated this serious illness, despite his knowledge of its general contours. Without investigation and the assistance of an expert, he failed to show the jury the link between the illness and childhood neglect. He failed to explore Joycetine's addiction, and did not ask her a single question about Bridges' childhood or her experience as a mother when he called her to testify during the penalty phase. He failed to present hospital records that recorded Bridges' anxiety and depression, that noted Bridges' deteriorating dental health, and that showed doctors pleading with Bridges' family to take his illness seriously and get him the help he needed. Maynard never investigated Bridges' chaotic home life, or the effect that such radical and irregular swings between the neglect of his mother's family and rigid rules of his father's family may have had on his development. Maynard never investigated the developmental effect of witnessing domestic abuse, or how it could have enhanced his sense of protectiveness over his home and family, which may have contributed to the crime.*fn11
Maynard's utter failure to investigate Bridges' upbringing constituted deficient performance under the Sixth Amendment, and the state court's opposite conclusion constituted an unreasonable application of federal law. The PCRA found that Bridges had failed to show that Maynard, unlike the lawyer in Wiggins, had information relating to Bridges' childhood "that should have led to further investigation." Commonwealth v. Bridges, No. 117-97 at *3 (C.P. Berks County, May 19, 2004). The court stated that Maynard's discussions with Bridges, through which he "got general information about [Bridges'] background," were sufficient to allow him to make "a strategic decision as to what to investigate and include as mitigation." Id. The Pennsylvania Supreme Court affirmed: "Unlike in Wiggins, however, in this case, the court found appellant was unable to show trial counsel failed to properly investigate and present mitigating evidence because counsel did not have information relating to appellant's childhood that should have led to further investigation." Bridges II, 886 A.2d at 1133.*fn12 Further, the court held, Bridges' trial counsel "made a reasonable strategic decision concerning what information to investigate and what to present as mitigating evidence." Id.
In finding that Maynard had met his constitutional obligations, the state court unreasonably applied clear federal law as stated by the Supreme Court. First, it is simply not the case that the lawyer's duty to investigate begins and ends with discussions with his client. Even a "fatalistic and uncooperative" client does not absolve a lawyer from independent investigation. See Porter, 130 S. Ct. at 453. As the Third Circuit explained, it is not the duty of the defendant to provide information on mitigation to the lawyer; rather, it is the lawyer's duty to uncover it:
Counsel's failure to think ahead caused them to fail to inquire meaningfully into Bond's childhood and mental health. They did not obtain readily available school records portraying a much troubled youth. Nor did they seek medical records or conduct a meaningful inquiry into Bond's family life. . . . We will not excuse this conduct on the ground that Bond and his family members did not tell counsel that his background provided fertile territory for mitigation arguments. Neither Bond nor his family had a duty to instruct counsel how to perform such a basic element of competent representation as the inquiry into a defendant's background. They did not, as the Commonwealth suggests, have to volunteer 'red flags' about Bond's mental health when trial counsel should have discovered that information through a basic inquiry into his background.
Bond v. Beard, 539 F.3d 256, 288 (3d Cir. 2008) (emphasis added).
The state court is incorrect in suggesting that, under Wiggins, a lawyer is only obligated to investigate areas of mitigation of which he has knowledge already. The Supreme Court has specifically rebuked lawyers for "ignor[ing] pertinent avenues for investigation of which he shouldhave been aware." Porter, 130 S. Ct. at 453 (emphasis added). "Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support that strategy." Wiggins, 539 U.S. at 527. The lawyer in Wiggins was found ineffective for failing to expand his investigation beyond the presentence report and the Baltimore Department of Social Services records. The Court determined that the lawyer's decision not to investigate beyond these records was objectively unreasonable in itself- regardless of what evidence he already had in his possession-by pointing to the ABA Guidelines and standard practice that imposed a duty to discover all reasonably available mitigating evidence. Id. at 524. The Court found that the scope of the investigation was "also" unreasonable "in light of what counsel actually discovered" in the social service records. Id. at 525 (emphasis added). In other words, it was not onlythe fact that the lawyer was made aware of potential lines of mitigation from the social service records; rather, he had an affirmative duty to discover all avenues of mitigation that were reasonably available.
Moreover, even if the state court's characterization of the Wiggins rule were accurate, there was plenty of evidence of which Maynard was already aware that should have triggered a wider investigation. First and most importantly, Maynard was aware of Bridges' health problems. He testified that he discussed Bridges' health with his client, N.T. PCRA Hearing I 6:3, and during the penalty phase, Maynard tried to ask various witnesses questions about Bridges' illness. N.T. Vol. VII 1564, 1572-75, 1613. Clearly, Maynard knew that Bridges had suffered a serious illness, and that knowledge should have prompted further investigation, which would have revealed the debilitating nature of Bridges' rheumatic fever, the heart surgery he was forced to undergo, and the trauma of being confined to a wheelchair and being left alone in the hospital for many nights-not to mention the neglect that could have been the cause of Bridges' illness and/or its progression.
In addition, Maynard testified that he had knowledge about Bridges' upbringing in terms of his being left with his grandmother for extended periods of time. But he never followed up with further investigation that would have uncovered his mother's crack addiction, her lack of stable housing for Bridges, her dependence on public assistance, or her abusive and drug-addicted boyfriends. He never investigated Bridges' mother's health records, which would have revealed her history with domestic violence as well as the extent of her crack addiction.
Finally, it is important to re-emphasize that Maynard had access to funds to hire a psychologist or psychiatrist to assist with the penalty phase investigation. In the motion requesting such funding, defense counsel argued that an expert who is familiar with forensic psychology "will be vital to the proper presentation of mitigating factors to the jury," and that denial of such funds would violate Bridges' Equal Protection and Due Process rights. Omnibus Pre-Trial Motion for Relief at 21, No. 117-97 Docket No. 18-A (C.P. Berks County). Despite such assertions, and despite the prevailing ABA Guidelines that advised capital counsel to consult with experts immediately, Maynard never consulted or retained an expert in connection with penalty phase mitigation.
Maynard's decision to ignore the evidence and funding he had available to him and limit his investigation was objectively unreasonable and fell below prevailing standards at the time of trial. For example, the Third Circuit determined, with respect to a 1993 Pennsylvania trial, "The failure to perform a meaningful investigation violates prevailing professional norms as stated in the American Bar Association's Guideline for Appointment and Performance of Counsel in Death Penalty Cases ("ABA Guideline") 11.4.1." Bond, 539 F.3d at 288 (finding deficient performance at sentencing phase where lawyer failed to "inquire meaningfully into [defendant's] childhood and mental health). See also Outten v. Kearney, 464 F.3d 401, 418 (3d Cir. 2006) ("It was standard practice at the time of Outten's trial [in 1993 in Delaware] for a death-eligible defendant's penalty-phase investigation to include his medical history, educational history, family and social history, employment history, and adult and juvenile correctional records."); Jermyn v. Horn, 266 F.3d 257, 308 (3d Cir. 2001) (for Pennsylvania capital trial in 1985, counsel's "bare bones effort" that presented to the jury V.A. records containing a reference to defendant's childhood abuse fell below the standards required for reasonable representation); Kindler v. Horn, 542 F.3d 70 (3d Cir. 2008) (vacated on other grounds, Beard v. Kindler, 558 U.S. 53 (2009)) (a lawyer performed deficiently in a 1984 Pennsylvania capital trial when he failed to obtain school, medical, or other records; failed to discuss defendant's background with his family, and failed to obtain any mental health evaluation of defendant).
Given this precedent, along with clear Supreme Court instruction in Wiggins, Terry Williams, and Porter,*fn13 the Pennsylvania Supreme Court's finding of acceptable performance ...