United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, Magistrate Judge.
On January 18, 2013, Petitioner James Edward Nalls filed a timely pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 4) seeking relief from his conviction for murder of the third degree under 18 Pa.C.S. § 2502(c),  and judgment of sentence of 20 to 40 years imprisonment imposed by the Court of Common Pleas of Allegheny County on September 9, 2008, as affirmed by the Superior Court of Pennsylvania on direct appeal and on appeal from denial of post-conviction relief.
After careful review of Mr. Nalls' Petition and Motion for Relief (ECF No. 15) (which raises an additional ground for habeas relief), the Commonwealth's Answer (ECF No. 9), and the voluminous state court records (ECF Nos. 10-12), including several opinions by the Court of Common Pleas and by the Superior Court of Pennsylvania on direct appeal and on appeal from denial of post-conviction relief, and applying the deferential standard of review required under AEDPA, this Court should deny the section 2254 Petition for Writ of Habeas Corpus and should not issue a certificate of appealability.
A. Factual Background
The facts of this case have been summarized extensively in the several opinions of the state courts. This Court will recite an abbreviated version of the underlying facts and circumstances sufficient to place Petitioner's various grounds for relief in context.
Petitioner and the victim, JoBeth Olson, began dating in the fall of 2005 when she was seventeen and a University of Pittsburgh student and he was approximately twenty three. The two moved in together, and Ms. Olson became pregnant to Mr. Nalls and gave birth to their daughter in October of 2006. Petitioner was not sexually exclusive, and he dated, and fathered babies with, several other women. His relationship with JoBeth Olson soon became stormy.
In August 5, 2006, Ms. Olson obtained a temporary Protection From Abuse ("PFA") Order. Ultimately, she withdrew her PFA petition through an attorney. Petitioner and Ms. Olson reconciled after this incident, but her relationship with Mr. Nalls deteriorated, and her friends and family became concerned for her well-being after witnessing bruises and verbal abuse.
On the evening of Friday, March 30, 2007, Ms. Olson went out with her long-time friend, Elizabeth Butler. At approximately 2:30 a.m. on March 31, 2007, Ms. Olson dropped Ms. Butler off at her residence. A few hours later, Ms. Olson called Butler, crying, and told her Petitioner had broken into her house, unscrewed a light bulb so she could not see, and assaulted her. Ms. Olson also called Tara Brickner-Brown and told her what happened. At one point during the assault, the victim told Ms. Brickner-Brown that Petitioner stepped on her throat and said, "bitch, I'll kill you." On Saturday, Ms. Bricker-Butler saw the victim who had a swollen lip.
In the evening of April 2, 2007, Ms. Olson drove herself and Petitioner in her gold minivan (which was equipped with a GPS) to Applebee's Restaurant in the West Mifflin section of Allegheny County. At 8:19 p.m., they entered the restaurant together, but after sharing an appetizer, they left abruptly. Two employees noticed the victim's demeanor had changed during the meal; she became quieter and stopped eating. Ms. Olson paid the bill at 9:18 p.m. and left.
A few minutes after the couple exited Applebee's, some employees noticed the victim's minivan in the woods and police cars in the parking lot. Two employees noticed Petitioner was wearing a different shirt than the one he had on in the restaurant.
Edward Knorr, who was driving by on his way to a Kinko's store, saw the victim's minivan drifting, with an African-American male in dark clothing leaning in through the passenger side door. The man got out and walked back towards Applebee's while the minivan continued to drift to the woods. When Knorr left Kinko's at 9:26 p.m., he noticed that the minivan had stopped against the hillside in a wooded area.
Dispatchers received a 911 call from Petitioner at 9:26 p.m., exclaiming "my girlfriend. Somebody just shot her." Asked by the dispatcher who shot her, Petitioner replied, "I don't know (inaudible). I see her van rolling everywhere." Later in the conversation, the dispatcher again asked if Petitioner knew who shot the victim, and he again replied "no." However, Petitioner said that he saw a white four door car pull away. Petitioner also stated: "All I know, I met her there. I was leaving and I seen somebody and she was walking out to her van and somebody rode up to the van." Petitioner was crying.
An EMT arrived and went to the driver's side where he found the minivan windows up and the doors closed. The victim was slumped to the left in the driver's seat, unresponsive and not breathing. Petitioner told the EMT there had been a white car and they were shooting at him.
The victim died at the hospital from a single gunshot wound to the head that rendered her brain dead. The bullet entered her brain slightly forward and went straight through her skull. Her parents disconnected Ms. Olson from life support and donated her organs. Several bruises on her arms and legs were found which had been inflicted not more than three days prior to the date of her death.
In the immediate aftermath of the incident, Petitioner told several stories, none of which involved him having a gun, being in the vehicle when the victim was shot, or struggling with Ms. Olson for a gun. The first two stories he told to West Mifflin Police Officers were that when he exited Applebee's after eating with his friend, Ashley Merida, he saw a man standing next to the victim's minivan get into a white car and drive away. Petitioner watched the minivan drift away into the hillside. In the third story to one of the officers, Petitioner said he was with the victim in the restaurant, but she left to pick up their daughter, called him from the parking lot and said a man in a white car was bothering her. When Petitioner went outside, he saw a black man standing next to the van get into a white car and drive away, while the van drifted through the parking lot.
Finally, Petitioner talked to an Allegheny County Homicide Detective at the crime scene, and agreed to go to the West Homestead police station for an interview. When Petitioner arrived at the station, he requested to wash his hands, but agreed with the Detective's request to submit to a gunshot residue kit. While the Detective administered the test, Petitioner stated he had been shooting a gun earlier in the day at Anthony Arms gun shop in West Mifflin and he expected the test would detect gunshot residue, which it did. Petitioner explained he did not own a gun, but that he shot two different guns at Anthony Arms. The Detective noticed blood on Petitioner's clothing, boots, and gloves and he collected them, and the blood turned out to be Ms. Olson's.
In the interview, Petitioner stated he met the victim at Applebee's between 8:00 p.m. and 9:00 p.m., and that prior to her arrival, she called and told him a white car was following her. Minutes later, the victim arrived and they ate dinner, with no conflicts or problems while they ate. After the meal, he went outside to retrieve his gloves from the victim's van, went back into the restaurant and received a call from the victim about a white car following her again. Mr. Nalls went outside and saw her van exiting the parking lot with a white four-door Oldsmobile Cutlass with two to three people inside following her. The minivan appeared to be driving uncontrollably, so Petitioner chased it and found the victim, and called 911. Petitioner said he had no clue who shot the victim or why anyone would do so.
A surveillance video from the parking lot did not show a white sedan behind the minivan at the time of the incident, and also showed that Petitioner was wearing a different shirt than the one in the Applebee's surveillance video.
About forty feet from the minivan, a Hi-Point 9 millimeter semi-automatic pistol was found in the dirt, loaded with five rounds in the magazine and one in the chamber. A spent casing was found in the victim's purse, which matched the bullet that killed Ms. Olson. Both Petitioner's and the victim's DNA were found on the hand grips, magazine release, and slide serrations. Gunshot residue was found on Petitioner's right palm and left palm, but no residue was found on the victim's hands. The muzzle of the firearm was one inch from the victim's head at the time of discharge.
The pistol was registered to Karla Encalada of Virginia, one of Petitioner's ex-girlfriends and the mother of one of his children. When Encalada moved out of their apartment, she let Petitioner keep her gun, and he took the pistol with him to Pittsburgh.
Further investigation revealed that Petitioner never went to Anthony Arms on April 2, 2007 as he told the Allegheny County Detective.
The GPS device from the minivan tracked its movements on April 2, 2007, including its last trip of the day to Applebee's at 8:26 p.m. arrival, leaving Applebee's at 9:23 p.m., and ending up across the road at 9:25 p.m. The top speed of the rolling van was 1.02 miles per hour.
On Wednesday, April 4, 2007 Petitioner disconnected the victim's Sprint cellular telephone. Petitioner was arrested and charged with murder on April 5, 2007.
Petitioner testified in his defense. Highlights of his testimony include the following: he admitted that after breaking up with Ms. Encalada, he brought her gun to Pittsburgh; he offered a more benign version of the incident that led to the PFA, and he denied assaulting Ms. Olson in the early morning hours of March 31, 2007.
Regarding the victim's death on April 2, 2007, Petitioner testified that the victim drove them in her van to Applebee's. While eating, a woman whom Petitioner had prior sexual relations with entered the restaurant and came over to their table, which upset Ms. Olson. Shortly thereafter, they asked for their food to be packaged for take-out, and the victim left the restaurant, walked to the right down the ramp, while Petitioner walked down the left to the steps.
Petitioner had left a pair of bicycle riding gloves on the passenger's seat of the van, and left his gun in the console in the back seat. He testified that Ms. Olson would not let him in the van, and he sat on the curb, but she pulled up next to him in the van, rolled down her window, threw Petitioner's gloves out of the car, and told him to get in the van or walk home. Petitioner picked up his gloves and, as he put his left foot in the van he saw the victim had his gun pointed at him. Petitioner "grabbed the gun and pushed it back... to get it out of her hands." As they struggled over the gun, he pulled it, and it went off...."
When questioned how the gun got to the back of the victim's head, Petitioner replied: "I think we were struggling, and my initial force was back. I tried to get it back so it wouldn't discharge and hurt us. That obviously didn't happen. We had our hands on it, and we were struggling. I don't remember every position we were in during the struggle." After the gunshot, Petitioner got out of the van when it started rolling and called 911. Petitioner said he went back to the mini-van while talking to 911, found the gun and threw it out of the car.
Petitioner admitted he lied to the police because he panicked and felt that as soon as he told the West Mifflin police ...