United States District Court, E.D. Pennsylvania
STEWART DALZELL, District Judge.
AND NOW, this 8th day of May, 2014, upon consideration of petitioner Lewis Wright's motion for habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1), Judge Linda K. Caracappa's report and recommendation ("R&R") (docket entry #19), petitioner's objections thereto (docket entry #21), and the Commonwealth's original response to petitioner's habeas motion (docket entry #12), which it incorporates in its "statement regarding objections" (docket entry #22); and the Court finding that:
(a) We are to conduct a de novo review of those portions of a magistrate judge's R&R to which a party files objections, see, e.g., Sample v. Dieks , 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1));
(b) Because Wright did not take issue with Judge Caracappa's recitation of the background facts and procedural posture of the case, we will incorporate those here;
(c) As Judge Caracappa explained, Wright was found guilty of attempted murder, aggravated assault, possessing an instrument of crime, possession with the intent to deliver a controlled substance, and violating § 6106 of the Uniform Firearms Act on August 16, 2005 after a jury trial before Judge Rose Marie DeFino-Nastasi in the Philadelphia County Court of Common Pleas, R&R at 1 (citing Trial Court Opinion, 8/25/06);
(d) The trial court summarized the facts as the parties established them at trial:
On April 1, 2003, at approximately 9:15 A.M., Michael Hyrnko was driving his truck on Old York Road in Philadelphia. His mother, [Louise] Hyrnko, was in the passenger seat. As Mr. Hyrnko approached a stop sign at the intersection of Old York Road and Germantown Avenue, a tan car hit the rear of his truck. Mr. Hyrnko got out and walked to the rear of his truck to check for damage. At the same time, the driver of the tan car, later identified as [petitioner], got out of the tan car and had words with Mr. Hyrnko. [Petitioner] started coming toward Mr. Hyrnko with his hands up like he was ready to hit Mr. Hyrnko. Mr. Hyrnko hit [petitioner] and knocked him to the ground.
Mr. Hyrnko then walked back to his truck. As he was getting back into his truck, [petitioner] came up behind him, put a gun to Mr. Hyrnko's neck, said, "[W]hat now, pussy[?]", and pulled the trigger of the gun.
Mr. Hyrnko was taken to Temple University Hospital. He was at Temple for two (2) weeks before getting transferred to Jefferson Hospital. He was in Jefferson Hospital for two (2) months before getting transferred to Magee Rehabilitation. He was in Magee Rehabilitation for four (4) months. As a result of the shooting, Mr. Hyrnko is a quadriplegic. He is only able to move his head, neck and shoulders.
Mr. Joseph Farley and Ms. Andrea Yorro were standing on the corner of Old York Road and Ontario Street having a conversation. Mr. Farley, an eyewitness to the traffic accident and the shooting, placed a 911 call. Ms. Yorro, a crossing guard, saw the traffic accident and wrote down the license tag of the shooter's car. She did not see the shooting, but she heard it. The license plate number was EKF 9797, and she described the car as being a beige Chevrolet Malibu. She testified that there was only one (1) person in the car but she made no identification.
Mr. Farley and Ms. Yorro were both at East Detectives Division giving statements concerning the incident when they were taken to the Enterprise car lot at Delaware Ave[nue] and Spring Garden Street to make an identification of a car that was there. As Mr. Farley was telling the police that the car that was involved in the incident was there, Mr. Farley saw [petitioner] and told the police that the shooter was right there in front of them. Ms. Yorro identified the car as the shooter's car.
Ms. Louise Hyrnko gave a statement to the police at approximately 10:00 A.M. on the day of the incident. She was later transferred to the Enterprise car lot on Delaware Avenue and Spring Garden Street where she identified [petitioner] as the person who shot her son.
On the date of the incident, Corporal James Keenan received a radio call reporting a man down because of a shooting. He received flash information to be on the lookout for a beige Chevy or Nissan Altima with license number EKF-9797 and for a light skinned black male in his late forties. He received information from police radio that the car was rented out of Enterprise Leasing. He called the corporate headquarters of Enterprise Leasing and found out that the car was leased to [petitioner]. At approximately 10:35 A.M., that same day, Enterprise Leasing contacted Corporal Keenan. Based on the information received, Corporal Keenan and Police Officers Drew Oldrati and [Christopher] Sarris went to the Enterprise car lot. When Corporal Keenan arrived at the Enterprise car lot at approximately 11:00 A.M., he saw [petitioner] and another man taking boxes of clothing out of a beige Chevy Malibu and putting the boxes of clothing into a blue Chevy Cavalier. Corporal Keenan and Police Officers Oldrati and Sarris stopped [petitioner] and the other man and took them into custody.
Detective Frank Green, the assigned detective to the case, obtained a search warrant for the beige Chevy Malibu and the blue Chevy Cavalier. Detective Green and Sergeant Brosnan executed the search warrant on the cars at the police garage at approximately 9:35 P.M. From inside the Chevy Malibu, a brown paper bag was recovered that contained two gray vitamin jars with GNC labels. The jars contained 96 color tinted packets of cocaine. Also recovered from that vehicle were samples of paint from the bumper and a black bomber jacket.
Trial Court Opinion, August 25, 2006, at 9-11;
(e) The trial court sentenced Wright to an aggregate term of twenty to forty years' incarceration on November 3, 2005, R&R at 3;
(f) Wright filed a timely appeal, and on June 15, 2007, the Superior Court affirmed his sentence, id.;
(g) On May 28, 2008, the Pennsylvania Supreme Court denied his petition for an allowance of appeal, id.;
(h) Wright also filed a timely pro se petition under the Post Conviction Relief Act (PCRA) § 9541, et seq., and counsel was appointed to represent him, id.;
(i) Wright's PCRA counsel submitted a "no-merit" letter pursuant to Commonwealth v. Finely , 550 A.2d 213 (Pa Super. Ct. 1988), asking to be dismissed from the case because he believed there were no issues warranting review, which the PCRA Court granted, and on March 28, 2011, the Superior Court affirmed the dismissal, id.;
(j) On November 1, 2011, the Pennsylvania Supreme Court denied petitioner's request for allocator, id.;
(k) Wright filed a petition for habeas corpus in this Court on November 21, 2011, and he supplemented it on February 16, 2012;
(l) In his petition, Wright raises four claims, three concerning alleged errors of the trial court and one alleging ineffective assistance of counsel;
(m) Judge Caracappa found that Wright's petition was timely filed and so warranted review on the merits, see R&R at 4;
(n) The Commonwealth maintains that Wright fairly presented all these claims in state court, and so 28 U.S.C. § 2254(e) and (e) should guide our review;
(o) Judge Caracappa agreed with respect to the first three claims and evaluated them under the deferential standard of review the Antiterrorism and Effective Death Penalty Act ("AEDPA") commands, recommending dismissal of all claims, id. at 18;
(p) With regard to the fourth claim, Judge Caracappa conducted an independent Strickland analysis, an approach we depart from, as we discuss herein;
(q) Wright objects to the findings as to each claim, so we will review each claim de novo;
(r) Pursuant to § 2254(d), we may not grant habeas with regard to claims that were adjudicated on the merits in state court unless that 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.
(s) As Justice O'Connor explained in Williams v. Taylor , 529 U.S. 362 (2000), a state court decision is contrary to clearly established federal law if either (1) "the state court applies a rule that contradicts the governing law set forth in our cases" because it is "diametrically different", "opposite in character", or "mutually opposed" to clearly established precedent, id. at 405-06, or if (2) "the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [Supreme Court] precedent", id. at 406;
(t) Justice O'Connor explained that the "contrary to" prong does not encompass the "run-of-the-mill state-court" case, where the court has applied the correct legal rule from United States Supreme Court precedent to the facts of a petitioner's case, id.;
(u) Instead, in such a case, we must look to the second prong to determine whether the state court decision involved an "unreasonable application" of United States Supreme Court precedent, id.;
(v) A decision involves an unreasonable application of such precedent if "the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or if it "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply", id. at 407;
(w) Williams stressed that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law", id. at 412, and therefore, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable", id. at 411;
(x) A state court's determination is reasonable "so long as fairminded jurists could disagree' on the correctness of the state court's decision", Harrington v. Richter, ___ U.S. ___ , 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664 (2004));
(y) With regard to the trial court's factual determinations, we are obliged to afford them a "presumption of correctness" that the petitioner can rebut only by "clear and convincing evidence", § 2254(e)(1);
(z) Finally, before we can reach the merits of a claim in a § 2254 petition, the claim must have been exhausted in state court, see, e.g., § 2254(b)(1)(A);
(aa) The exhaustion requirement affords state courts, as a matter of comity, a fair opportunity to pass on a petitioner's claims, see, e.g., O'Sullivan v. Boerckel , 526 U.S. 838, 853 (1999); Baker v. Horn , 210 F.Supp.2d 592, 625 (E.D. Pa. 2002) (Brody, J.);
(bb) The exhaustion requirement is non-jurisdictional, see, e.g, Strickland v. Washington , 466 U.S. 668, 684 (1984), and the state may waive it, as the Eighth Circuit cogently explained, "as chief legal officer of the state, the attorney general is the appropriate person to assert, or to waive, the state's right first to determine a habeas corpus claim", Hampton v. Miller , 927 F.2d 429, 431 (8th Cir. 1991) (internal citations and alterations omitted);
(cc) With those standards in mind, we begin with the claim that the trial court erred in denying petitioner's motion to suppress Joseph Farley's eyewitness identification;
(dd) The Supreme Court examined the requirements the Due Process Clause of the Fourteenth Amendment imposes on admission of identification testimony in cases where the confrontation procedure is suggestive in Neil v. Biggers , 409 U.S. 188 (1972) and Manson v. Brathwaite , 432 U.S. 98 (1977);
(ee) The Supreme Court held that the Due Process Clause does not require courts to exclude an identification solely because the confrontation procedure was suggestive; instead, courts are to consider the totality of the circumstances in determining the reliability of the identification and admit the evidence if "despite the suggestive aspect" of the confrontation, "the out-of-court identification possesses certain features of reliability", Brathwaite , 432 U.S. at 110;
(ff) Brathwaite stressed that "reliability is the linchpin in determining the admissibility of identification testimony", id. at 114;
(gg) In evaluating the totality of the circumstances, courts are to consider "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation", Biggers , 409 U.S. at 199-200;
(hh) As the trial court recalled in its August 25, 2006 opinion,
Mr. Farley called 911 and gave a description of the shooter. He was later interviewed by the detectives assigned to the case. While he was being interviewed, the detectives told Mr. Farley that the police were in pursuit of the shooter. The detectives took Mr. Farley to the Enterprise car lot at Spring Garden St. and Delaware Ave. There, Mr. Farley observed that there was one car that was apart from other cars. The Detectives asked Mr. Farley if he saw the car that was involved in the incident. Mr. Farley indicated that the car that was involved in the incident was there on the lot. As soon as the police officers pulled into the lot, Mr. Farley looked over and saw a male having a verbal altercation with police officers. Aside ...