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Howard v. Horn

United States District Court, E.D. Pennsylvania

November 5, 2014

MARTIN HORN, et al., Respondents.


EDUARDO C. ROBRENO, District Judge.

Melvin Howard ("Petitioner") is a prisoner at State Correctional Institution-Greene in Waynesburg, Pennsylvania. Petitioner filed a counseled petition seeking relief through a writ of habeas corpus under 28 U.S.C. § 2254 ("Habeas Petition"). Magistrate Judge Lynne A. Sitarski ("Judge Sitarski") recommended denial of the Habeas Petition without an evidentiary hearing and with no certificate of appealability. Petitioner's counsel raises four objections. For the following reasons, the Court will adopt Judge Sitarski's Report and Recommendation.


In 1989, Petitioner was convicted of first degree murder and sentenced to death. In 2011, Petitioner's death sentence was vacated and he was resentenced to life in prison without parole. The conviction stems from an altercation between Petitioner and two other men that resulted in Petitioner stabbing one of the men to death. Report and Recommendation ("R&R") 1-2, ECF No. 84.

The Pennsylvania Supreme Court offered the following summary of the facts:

Shortly after midnight on September 27, 1987, Petitioner was involved in an altercation with two men, one of whom was the decedent, at the intersection of 52nd and Market Streets in Philadelphia. Petitioner called out for help, and four men came to the scene and chased the decedent and the other man away. Shortly thereafter, the decedent returned with a piece of wood, which he swung at Petitioner. Petitioner then pulled out a knife. The decedent and the other man took off in different directions. Petitioner, along with three or four other men, pursued the decedent, who threw his piece of wood at Petitioner but missed. Petitioner continued to chase the decedent until the decedent fell, and as he started to get up Petitioner punched him and knocked him to the ground. Petitioner began to stab the decedent repeatedly, at one point using both hands to plunge the knife into decedent's chest. Petitioner then left the scene, fled to Georgia where his mother lived, and was eventually arrested there. The knife was not recovered.

Commonwealth v. Howard , 645 A.2d 1300, 1303 (Pa. 1994).


On September 13, 1989, a jury in the Philadelphia Court of Common Pleas convicted Petitioner of first degree murder and other charges relating to the killing of Clarence Woodlock; the next day, the jury sentenced him to death. Id . at 2. After the Pennsylvania Supreme Court affirmed the judgment, Petitioner initiated state post-conviction ("PCRA") proceedings, which were denied without an evidentiary hearing on April 17, 1997. Mem. Supp. Habeas Pet. 6, ECF No. 58. The denial was affirmed the following year. Id . On July 17, 1999, after new evidence was discovered, Petitioner filed a second PCRA petition-the denial of which was similarly affirmed by the Pennsylvania Supreme Court on January 22, 2002. Id . at 6-7.

On September 30, 1999, while the second PCRA petition was pending, Petitioner filed a petition for federal habeas relief. Habeas Pet., ECF No. 1. On June 18, 2003, Petitioner filed a motion to hold federal proceedings in suspense pending exhaustion of a claim that, in light of the Supreme Court's decision in Atkins v. Virginia , 536 U.S. 304 (2002), his death sentence was unconstitutional because of his alleged mental retardation. Mem. Supp. Habeas Pet. 7, ECF No. 58.

During state court proceedings involving his Atkins claim, Judge Carolyn Engel Temin of the Philadelphia Court, with the consent[1] of the parties, vacated Petitioner's death sentence and resentenced him to life without parole on September 16, 2011. Pet'r's Objections 1, ECF No. 88. Petitioner's motion to reactivate his federal habeas proceedings was granted on December 22, 2011. Id . at 2.

Petitioner filed a supplemental memorandum in support of his Habeas Petition, on April 6, 2012. Mem. Supp. Habeas Pet., ECF No. 58. In it, Petitioner raised nine claims, including an ineffective assistance of counsel ("IAC") claim for failure to investigate, develop, and present exculpatory mental health evidence, and a Batson claim against the prosecutor's racially discriminatory peremptory challenges, among other things. The Commonwealth filed a response to Petitioner's supplemental memorandum on October 10, 2012, asserting that Petitioner's claims were all meritless and/or procedurally defaulted. Resp. Mem. Supp. Habeas Pet., ECF No. 71. Petitioner then filed a reply on March 11, 2013. Pet'r's Reply Mem. Supp. Habeas Pet., ECF No. 83.

Upon referral, Judge Sitarski issued a report and recommendation on April 16, 2014, advising the denial of the Habeas Petition on the merits without an evidentiary hearing and with no certificate of appealability. R&R 1. Petitioner filed objections on June 30, 2014. Pet'r's Objections, ECF No. 88. The matter is now ripe for disposition.


The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B). A prisoner may object to the magistrate judge's report and recommendation within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue , 649 F.3d 193, 195 (3d Cir. 2011) ("We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific." (internal quotation marks omitted)). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id . Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which Petitioner objects.

On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d) (2006).


Judge Sitarski recommends that Petitioner's habeas claims be denied without an evidentiary hearing, concluding that there is no probable cause to issue a certificate of appealability. Of the nine claims Judge Sitarski denied, Petitioner objects to the denial of four of them specifically: Claims A, B, C, and E.[2]

In her analysis, Judge Sitarski determined that "because the Pennsylvania Supreme Court did not apply an adequate and independent' state law ground in dismissing Petitioner's second PCRA petition, Petitioner's claims are not procedurally defaulted." R&R 14-15, ECF No. 84. Further, since the Pennsylvania courts did not reach the merits of Petitioner's second PCRA petition, Judge Sitarski addressed Claims A, B, and C de novo. For Claim E, given that the Pennsylvania Supreme Court denied it on the merits, Judge Sitarski undertook an AEDPA merits review to determine if the resolution of Claim E resulted in a decision that was "contrary to or an unreasonable application of clearly established federal law" or was "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id . at 52. Each claim will be considered below.

A. Claim A: Ineffectiveness for Failure to Reasonably Investigate, Develop, and Present Exculpatory Background and Mental Health Evidence

In Claim A, Petitioner asserts that his trial counsel was ineffective for failing to reasonably investigate, develop, and present exculpatory life history and mental health evidence. Mem. Supp. Habeas Pet. 12-13, ECF No. 58. Petitioner offers several expert reports showing that he suffers from a number of mental health issues, including mild mental retardation, paranoid personality disorder, and impaired cerebral functioning. Id . at Exs. 1-5. He has also provided affidavits from family members and acquaintances that describe the traumatic setting of his youth and how it may have prevented him from developing mentally and emotionally. Id . at Exs. 6-15.

Petitioner argues that his counsel was ineffective for failing to investigate and present evidence of his mental health issues, which, according to Petitioner, would have provided evidence to support his case for (1) imperfect self-defense voluntary manslaughter, (2) "provocation and passion" voluntary manslaughter, and (3) diminished capacity third-degree murder. Id . at 7. Respondents argue that these defenses would have conflicted with counsel's more reasonable trial strategy of focusing on actual innocence. Resp. Mem. Supp. Habeas Pet. 28, ECF No. 71. Moreover, Respondents assert that the evidence offered by the Petitioner would not satisfy the elements of the proposed defenses of imperfect self-defense, provocation and passion, or diminished capacity. Judge Sitarski agrees, and according to the reasoning below, the Court will deny habeas relief on Claim A.

1. Standard for IAC Claims

The Sixth Amendment right to counsel is the right to effective assistance of counsel. See Strickland v. Washington , 466 U.S. 668, 686 (1984). To warrant reversal of a conviction, a prisoner must show (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See id. at 687; Holland v. Horn , 519 F.3d 107, 120 (3d Cir. 2008). The principles governing IAC claims under the Sixth Amendment apply in collateral proceedings attacking a prisoner's sentence. See Strickland , 466 U.S. at 697-98.

To prove deficient performance, a prisoner must show that his "counsel's representation fell below an objective standard of reasonableness." Id . at 688. The Court will consider whether counsel's performance was reasonable under all of the circumstances. Id . Furthermore, the Court's "scrutiny of counsel's performance must be highly deferential." See id. at 689. That is, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id . In raising an IAC claim, the petitioner must first identify the acts or omissions that are allegedly not the result of "reasonable professional judgment." Id . at 690. Next, the court must determine whether those acts or omissions fall outside of the "wide range of professionally competent assistance." Id.

A petitioner "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." United States v. Gray , 878 F.2d 702, 710 (3d Cir. 1989). This presumption is overcome by showing either that petitioner's counsel's "conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Thomas v. Varner , 428 F.3d 491, 499-500 (3d Cir. 2005). When the record does not disclose counsel's actual strategy, the presumption is rebutted by a "showing that no sound strategy... could have supported the conduct." Id . at 500.

To prove prejudice, a convicted defendant must affirmatively prove that counsel's alleged errors "actually had an adverse effect on the defense." Strickland , 466 U.S. at 693. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . at 694.

Here, if Petitioner fails to satisfy either prong of the Strickland test, his claim will fail. Id . at 697.

2. Analysis

In reviewing Petitioner's proffered mental health evidence, Judge Sitarski acknowledged that some of the evidence may have been relevant-for instance, to prove that Petitioner had a subjective belief of imminent danger, or that he acted in the heat of passion. R&R 18, 20, ECF No. 84. Despite this potential relevance, however, Judge Sitarski found that the evidence would have undermined counsel's strategy of actual innocence, and would not have been sufficient to support the defenses of imperfect self-defense, [3] provocation and passion, and diminished capacity.

a. Actual Innocence

Although the record does not reveal the entirety of counsel's trial strategy, Judge Sitarski found that counsel's strategy was at least substantially focused on proving actual innocence-a strategy that would be undermined by the presentation of mental health evidence. R&R 21, ECF No. 84. In situations like this, where the record does not clearly reveal counsel's actual strategy, the court presumes that "counsel's conduct might have been part of a sound strategy." Thomas v. Varner , 428 F.3d 491, 499 (3d Cir. 2005) ("In opposing petitioner's attempt to disprove the existence of a possible sound strategy, it is entirely proper for the Commonwealth to engage in record-based speculation as to what counsel's strategy might have been." Id . at 500 n.8.). This presumption can be overcome "by showing either that the conduct was not, in fact, part of a strategy or by showing that the strategy employed was unsound." Id.

Petitioner objects to Judge Sitarski's ruling on counsel's apparent strategy, and argues that counsel's strategy was not primarily focused on actual innocence. Mem. Supp. Habeas Pet. 9, ECF No. 58. According to Petitioner, counsel explicitly stated his strategy prior to trial: when responding to the Commonwealth's argument that the defense should not be able to refer to certain evidence unless self-defense was an issue in the case, counsel stated that "the Defense is not ruling out self-defense. Clearly there are issues of self-defense brought out by the Commonwealth's own witnesses." Id . at 10. This, Petitioner contends, reveals trial counsel's commitment to a strategy of self-defense or lesser-degree homicide. Id . Petitioner makes other arguments along those lines-observing that the attorney never told the jury that his client was not present when the decedent was murdered; that the attorney elicited evidence of intoxication that potentially pointed to the decedent as the aggressor; and that the attorney's closing argument included a statement indicating that the facts established at most a case of voluntary manslaughter, not murder. Id . at 10-11.

Thus, according to the Petitioner, counsel presented the jury with two options: "find Petitioner not guilty because the Commonwealth failed to prove Petitioner's guilt beyond a reasonable doubt, or, in the alternative, find Petitioner guilty of voluntary manslaughter because the unfortunate incident was the result of Petitioner's overreaction to the decedent's acts of aggression." Id . at 12. Petitioner argues that, under Strickland, counsel was required to present both of these alternate theories in a constitutionally competent manner-and he failed to do so. Id.

Trial counsel focused at least significantly on proving Petitioner's innocence, however, as demonstrated by his attacking the credibility of the Commonwealth's sole eyewitness, and by raising the inference that the eyewitness himself was the killer. R&R 21, ECF No. 84. Moreover, a pre-trial remark by counsel that self-defense should not be ruled out does not constitute definitive proof that actual innocence was not one of counsel's primary strategies. The Commonwealth's whole case rested on that one eyewitness, a man that initially denied any knowledge of the incident. Id . at 22. The murder weapon had not been found, and Petitioner insisted to counsel that he was innocent. Id . Under the facts, it was reasonable for counsel to pursue a strategy of actual innocence.

With regard to a provocation and passion defense, Judge Sitarski observes that "mental health evidence showing that Petitioner's mental issues might cause him to lose the ability for cool reflection would undermine, rather than support, his claim of factual innocence." Id . Similarly, for the limited defense of diminished capacity-which entails proving a defendant lacks the capacity to form the specific intent to kill, in order to reduce the conviction to third-degree murder- the Petitioner must "admit general culpability, " Jacobs v. Horn , 395 F.3d 92, 107 (3d Cir. 2005), which would also undercut counsel's actual innocence strategy. Accordingly, "even if there is evidence to support a diminished capacity defense, it is reasonable for an attorney to pursue an innocence defense when the defendant denies the killing." Hughes v. Beard, No. 06-250, 2007 WL 2791423, at *24 (E.D. Pa. Sept. 25, 2007). Overall, Petitioner has failed to rebut the presumption afforded to counsel's tactical decisions. See Thomas , 428 F.3d at 500.

b. No Prejudice

Nevertheless, even assuming that counsel should have pursued the limited defenses of provocation and passion manslaughter and of diminished capacity, the proffered mental health and family history evidence does not enable Petitioner to make out all of the required elements of those defenses. In other words, Petitioner was not prejudiced by counsel's decision not to develop and deploy mental health evidence.

For provocation and passion manslaughter, psychiatric evidence is only relevant as to whether Petitioner had been acting in the "heat of passion"-it does not apply to the objective provocation inquiry. See Commonwealth v. Miller , 987 A.2d 638, 652 (Pa. 2009) (holding expert testimony on mental health irrelevant to the issue of provocation). Although Petitioner relies on this psychiatric evidence to explain the "heat of passion" that drove him to stab the victim at least sixteen times (R&R 24, ECF No. 84), he makes no effort to argue that there was either objectively reasonable provocation or insufficient cooling time. See Commonwealth v. Galloway , 485 A.2d 776, 783 (Pa.Super. 1984) ("Whether the provocation was sufficient to support the defense of voluntary manslaughter is determined by an objective standard-whether a reasonable man, confronted by the same series of events, would become impassioned to the extent that his mind was incapable of cool reflection." (citing Commonwealth v. McCusker , 292 A.2d 286 (Pa. 1972)). Petitioner has not made the requisite objective showing of sufficient legal provocation, and counsel was not ineffective for failing to investigate and present such evidence when there is no evidence to support the remaining factors. See Wertz v. Vaughn , 228 F.3d 178, 196 (3d Cir. 2000) (finding counsel not ineffective for failing to pursue a meritless claim); Commonwealth v. Busanet , 54 A.3d 35, 44 (Pa. 2012) (finding no ineffectiveness for failing to investigate and present mental health evidence to support imperfect self-defense when there was no evidence supporting the other factors).

For diminished capacity, as Judge Sitarski observes, Petitioner has not shown a reasonable probability that the result of the trial would have been different, given that the trial record contains substantial evidence that he did in fact form a specific intent to kill. R&R 24, ECF No. 84. See Zettlemoyer v. Fulcomer , 923 F.2d 284, 295-96 (3d Cir. 1991) ("Evidence of specific intent to kill may disprove the defense of diminished capacity."). Under Pennsylvania law, "specific intent to kill may be demonstrated by nothing more than use of a deadly weapon upon a vital part of the body." Whitney v. Horn , 280 F.3d 240, 259 (3d Cir. 2002); id. at 297 (cataloguing instances in Pennsylvania where multiple stab wounds established specific intent). Here, Petitioner chased down the fleeing victim and stabbed him at least sixteen times-notably, once through the heart. R&R 24, ECF No. 84. The record sufficiently demonstrates that Petitioner had specific intent to kill, and Petitioner cannot prove that he was prejudiced by counsel's failure to investigate and present psychiatric evidence to pursue a diminished capacity defense.

Because counsel's actual innocence strategy was reasonable, and given that Petitioner was not prejudiced by counsel's tactical omissions, counsel cannot be deemed ineffective for failing to investigate and present mental health evidence at ...

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