United States District Court, W.D. Pennsylvania
NORA BARRY FISCHER, District Judge.
Pending before the Court is the pre-trial petition for a writ of habeas filed by Mark Breakiron pursuant to 28 U.S.C. § 2241. He contends that his double jeopardy and due process rights bar his retrial for murder and robbery in the Court of Common Pleas of Fayette County. The Magistrate Judge to whom the case was referred issued a Report and Recommendation ("R&R") in which it was recommended that the petition be dismissed for lack of merit and that a certificate of appealability be denied. ECF No. 13. Breakiron has filed objections, ECF No. 17, to the R&R in which he argues, inter alia, that the Magistrate Judge incorrectly applied the standard of review applicable to post-judgment habeas petitions filed pursuant to 28 U.S.C. § 2254.
Where, as here, objections have been filed, the Court is required to make a de novo determination as to those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Accordingly, the Court has carefully examined de novo all arguments raised by Breakiron in his objections. The Court agrees with the Magistrate Judge's ultimate conclusion that Breakiron is not entitled to habeas relief or a certificate of appealability. However, because Respondents do not dispute that § 2254(d)'s standard of review does not apply to this case, the Court declines to adopt the R&R as the Opinion of the Court. For the reasons set forth below, and after an independent review of all of the parties' submissions in this case, Breakiron's request for habeas relief is denied.
In 1987, Breakiron killed Saundra Marie Martin. She worked at Shenanigans' Lounge and Breakiron stabbed and beat her when the two of them were the last people remaining at the bar during the early morning hours of March 24, 1987. Breakiron v. Horn, No. 00-cv-300, 2008 WL 4412057, *2 (W.D. Pa. 2008).
Breakiron's trial was held in April 1988 in the Court of Common Pleas of Fayette County. Judge William J. Franks presided over the trial. Mark F. Morrison, Esq., then the Acting District Attorney of Fayette County, and Cynthia M. Cline, Esq., Assistant District Attorney, prosecuted the case.
The Commonwealth presented the testimony of Dr. Manuel Pelaez, the pathologist who performed the autopsy, to show that Breakiron had inflicted brutal injuries upon Martin. Dr. Pelaez testified at length as to the nature of the severe injuries that Martin had sustained to her head, neck, trunk, and extremities. He stated that the cause of Martin's death was internal and external bleeding secondary to multiple stab wounds, and that blunt force injuries to her head contributed to her death. Dr. Pelaez also stated that there were numerous cuts and slashes on both of Martin's hands, which he described as defensive wounds that indicated that she had attempted to protect herself with her hands. Id. at *3.
The Commonwealth also presented the testimony of Ellis Price, who had been incarcerated with Breakiron in the Fayette County Jail in the summer of 1987. Ellis Price testified that Breakiron told him that he hid in the bathroom of Sheningans' Lounge and waited for the remaining patrons to leave before coming back out. He said that Breakiron told him that when Martin stated that the bar was closing and he had to leave, he picked up an ashtray and started hitting her and then pulled out a knife and stabbed her. Ellis Price testified that he did not have any "deals" with the Commonwealth for favorable treatment in exchange for his testimony. He denied receiving any benefit in exchange for his testimony. He also described the crime for which he was convicted in Michigan as "assault." Id.
Breakiron testified in his own defense. He admitted that he killed Martin. His defense to the murder charge was that he was too intoxicated to form the specific intent to kill and that he was guilty of third-degree murder, not first-degree murder. Id . The jury rejected Breakiron's defense and convicted him of first-degree murder and robbery. It sentenced him to death on the first-degree murder conviction. Id. at *6.
Many years later, Breakiron filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. That case was docketed as Breakiron v. Horn, No. 2:00-cv-300 (W.D. Pa.). In it, Breakiron contended, inter alia, that the prosecution failed to disclose evidence that would have impeached Ellis Price's testimony in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Breakiron argued that Ellis Price had a substantial motivation to testify in favor of the prosecution and that the prosecution failed to disclose evidence of his possible bias. In support of this claim, Breakiron explained that Ellis Price (who was serving a sentence imposed by the State of Michigan), was brought to Fayette County in 1986 to face numerous felony charges, including attempted murder, in a case involving victims Raymond Ricker and Richard Pletcher (the "Ricker/Pletcher case"). In October 1986, a jury found Ellis Price guilty of attempted homicide and related crimes in the Ricker/Pletcher case. On July 28, 1987, Judge Franks granted him an arrest in judgment and overturned his convictions. The Commonwealth had thirty days in which to file an appeal of that order. On August 4, 1987, Ellis Price was interviewed by then Trooper Gary Brownfield, who was investigating Martin's homicide. During that interview, Ellis Price reported Breakiron's confession. The Commonwealth did not appeal Judge Franks's order reversing Ellis Price's convictions in the Ricker/Pletcher case. Findings of Fact at 4, ECF No. 171 in Breakiron v. Horn, No. 2:00-cv-300 (W.D. Pa. Sept. 19, 2007). Breakiron contended the Commonwealth did not appeal in consideration for Ellis Price's cooperation in Breakiron's criminal case.
Breakiron later amended his habeas petition and explained that James "Silky" Sullivan, an inmate that had been incarcerated in the summer of 1987 in the Fayette County Jail with Breakiron and Ellis Price, had recently revealed that he, Ellis Price, and another inmate, Conrad Blair, "invented" Breakiron's confession and wrote a letter to then District Attorney Gerald Solomon offering to testify against Breakiron in exchange for benefits in their respective cases. Breakiron alleged that the letter those inmates wrote was never turned over to the defense. He asserted that prior to his trial, Ellis Price had informed his brother Robert Price that Ellis's cooperation in the Breakiron case would get him (Robert) five years off the sentence he was serving. (Robert Price was a co-defendant in the Ricker/Pletcher case and was serving a term of imprisonment for his convictions in that case). Id. at 6.
Breakiron also supplemented his habeas petition to incorporate allegations involving the assault and robbery of Vincent Sterbutzel (the "Sterbutzel case"). He alleged that at the time Ellis Price first offered his information to the Commonwealth and at the time he testified at the trial, he was a suspect in the ongoing investigation of the Sterbutzel case. Ellis Price was never charged with any crimes in the Sterbutzel case and the other suspects in the case - his brothers Robert and Kevin Price and another individual named Mark DiMatteo - were all successfully prosecuted for crimes against Sterbutzel. Breakiron contended that the Commonwealth's decision not to prosecute Ellis Price in the Sterbutzel case was in exchange for his cooperation in the Breakiron prosecution. He further alleged that the Commonwealth did not disclose to Breakiron's defense counsel that Ellis Price was a suspect in that Sterbutzel case. Id. at 8.
The Court held an evidentiary hearing on February 2, 2007. At the hearing, Breakiron called James Sullivan and Chris Owen Miller (another inmate incarcerated with Breakiron prior to his trial). He also called Robert Price (Ellis's brother). The Commonwealth called Ellis Price. It also presented the testimony of four former Fayette County District Attorneys: Morrison, who prosecuted Breakiron's case; Judge Gerald Solomon, who was the District Attorney at that time of Ellis Price's trial in the Ricker/Pletcher case; Judge Ralph Warman, the former Assistant District Attorney, who prosecuted the Price brothers in the Ricker/Pletcher case; and, Alphonse Lepore, Esq., the District Attorney in 1988-89 when charges were brought in the Sterbutzal case. Additionally, the Commonwealth called Sheriff Brownfield, who in his former employment with the State Police was the primary investigator of Martin's homicide; Earl Roberts, an investigator in the Ricker/Pletcher case and the Breakiron case; and Greg Kerpchar, an investigator who interviewed James Sullivan in 2005. Id. at 8-9.
Following the evidentiary hearing, the Court issued these Findings of Fact:
1. In or around the summer of 1987, Sullivan, Ellis Price and Breakiron were incarcerated in the Fayette County Jail and housed in the same range.
2. In or around the summer of 1987, Sullivan and Ellis Price wrote a letter to then District Attorney Solomon in which they offered information in the Breakiron case in exchange for benefits in their respective criminal cases. Around that same time, Ellis Price also sent his own letter to then District Attorney Solomon. In addition to seeking benefits for himself, Ellis Price also sought a reduction in the sentence that his brother Robert Price was serving for his convictions in the Ricker/Pletcher case.
3. Morrison was Sullivan's defense attorney during this time period and at some point prior to Breakiron's trial he learned that Sullivan had attempted to make a deal with the District Attorney's Office in exchange for benefits in his case.
4. Solomon, Warman, and Morrison do not recall seeing the letters that Sullivan and Ellis Price sent to the District Attorney's Office.
5. Representatives of the Commonwealth were aware that Ellis Price had offered information in the Breakiron case. Trooper Brownfield interviewed Ellis Price on August 4, 1987 in the Fayette County Jail "after [he] had learned that [Ellis Price] had possible information concerning [the Martin's homicide]." And, by the fall of 1987, then District Attorney ...