United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO UNITED STATES DISTRICT JUDGE
Before the Court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed by Petitioner John Joseph Koehler, a state inmate currently incarcerated at the State Correctional Institution at Greene, in Waynesburg, Pennsylvania, under a sentence of death. Mr. Koehler is challenging his 1996 convictions and sentence in the Court of Common Pleas of Bradford County, Pennsylvania. For the reasons that follow, the petition for writ of habeas corpus will be denied.
On April 11, 1996, Mr. Koehler was found guilty of two counts of first degree murder, two counts of conspiracy to commit murder, two counts of kidnapping, and one count of burglary following a jury trial in the Bradford County court. The Supreme Court of Pennsylvania summarized the relevant facts as follows:
Regina Clark (Regina) and her nine-year-old son, Austin Hopper (Austin), were killed on April 18, 1995, by William Curley (Curley), at the urging and insistence of Appellant as part of his training of the young Curley for a future career as a “hit man.” The bizarre facts regarding the deaths of Regina and Austin, as testified to by Curley at Appellant’s trial, are as follows. Curley had known the Appellant since he was very young. By August of 1994, Appellant had told Curley that he was a hit man for the mob. Appellant repeated his claim of being a hit man many times to Curley. Appellant also spoke to Curley about his entering the “profession”, promising that Curley could make “six digits” in the field. Curley, who turned eighteen on August 9, 1994, did not dismiss the idea out of hand because he “. . . thought it would be all right, cause I thought it was going to be more along the lines of people like drug dealers and mob men, people that would hurt innocent people.” N.T. Vol. VII, p. 20. Accordingly, Appellant told Curley that he would train him for the business. Charline Benefield, with whom Appellant lived while in Arkansas in late 1994, also testified that Appellant had told her that he was training Curley to be a hit man. N.T. Vol. IV, p. 104.
On April 17, 1995, Curley was staying at the home of his friends Melissa Mack (Mack) and Ricky Hunsinger (Hunsinger). Curley received a message to call Appellant, which he did, and at that time Appellant told him he was bringing “two packages” to Curley and asked if he could “deliver them”. Curley agreed. Appellant apparently met Regina while he was living in Arkansas. According to the testimony of Kerrien Ramsey (Ramsey), Ramsey also met Appellant in Arkansas, and, through him met and became friends with Regina, with whom Appellant was romantically involved. Ramsey accompanied Regina, Austin, and Appellant on the trip from Arkansas to New Jersey in late February or early March of 1995. Ramsey testified at trial that on April 16 or 17, 1995, while they were in the bedroom of his mother’s apartment, Appellant showed Ramsey a loaded gun and told her that he would kill Regina before she left New Jersey to go back to Arkansas.
Curley also testified that in the early morning hours of April 18, 1995, while Mack, Regina and Austin remained at the house, Curley and Appellant drive to Lounsberry, New York, where Appellant was to pick up money wired to him through Western Union. It was on the drive to New York that Appellant explained that he wanted Curley to kill Regina. At trial Curley testified that he told Appellant he did not want to do it, but Appellant insisted that he “had to”, or Appellant would kill Curley. On the drive back to Pennsylvania, Appellant handed Curley a loaded .22 caliber Baretta to use for the murder. Also, on the return drive the pair spent approximately an hour driving around looking for a place to put Regina’s body. They found an abandoned refrigerator in a dump, which Appellant examined, and then told Curley to place Regina’s body inside the refrigerator. At this point Curley again told Appellant that he did not want to kill Regina, to which Appellant replied, “kill or be killed.” N.T. Vol. VII, p. 47.
The pair returned to the Mack/Hunsinger house, picked up Regina and Austin, and then proceeded to Settlers Restaurant. Appellant entered the restaurant while Curley, Regina and Austin drove off, Regina having been told they were to pick up a car Appellant needed for the drive back to her home in Arkansas. In fact, Curley was to go to Stone Jug Road to kill Regina and Austin. The trio arrived at Stone Jug Road and stopped after Curley told Regina he had car problems. They got out of the car, and as Regina was looking for an oil leak, Curley pulled the gun and aimed it at her. (Regina was unaware of this.) Curley testified that he “couldn’t do it, ” so he put the gun away and returned to Settlers Restaurant. At the restaurant, while Regina and her son sat in the car, Appellant again told Curley that he had to find some place to kill Regina. They then decided that the murder should take place at the house of Janet Schrader (Ms. Schrader). Curley knew and was friendly with Kirk Schrader (Kirk), the son of Ms. Schrader. The four drove to the Schrader home and Curley pulled the car into the garage, the location that Appellant had told Curley would be a good place to kill Regina and Austin. While Austin, Regina and Appellant entered the house, Curley remained alone in the garage. A short time later Appellant returned with Kirk and, in front of him, suggested possible ways to kill Regina. However, before any murder took place, Appellant and Curley left the Schrader residence for Wysox, Pennsylvania, and the parking lot of Citizens Bank. During the drive to Wysox, Curley again told Appellant that he did not think he could kill Regina. Appellant’s response was that he had to kill her.
After Curley and Appellant returned to the Schraders’, Curley entered the garage and Appellant went into the house. When Regina entered the garage, Curley shot her three times in the head. He then picked her up and placed her in the trunk of the car. Appellant came to the garage, checked Regina’s pulse, and said that she was still alive and told Curley that he should slit her throat. Curley got a knife and then he and Kirk entered the car and drove off. Curley testified that he heard a thumping noise coming from the trunk of the car shortly after he left the Schrader garage.
After dropping Kirk off at his friend Roger Hitchcock’s (Hitchcock) house, Curley went on to the dump he had discovered earlier in the day. At the dump Curley took Regina’s body from the trunk, slightly cut her throat with the knife, placed her body in the refrigerator, closed the refrigerator’s door, left the dump and returned to the Schraders’.
When he returned, Appellant told Curley that he had to shoot Austin, too, since Austin was a “loose link.” At about 2:30 that afternoon Curley told Austin to come out to the garage and, when he did, Curley shot him three times in his head and at least twice in his body. Curley picked up his body and placed it in the trunk of the car. Appellant then came out to the garage and looked into the trunk at Austin’s body. Curley then drove the car to “Snake Road” where he placed Austin’s body in a sluice pipe.
Curley returned to the Schrader residence, where Appellant cleaned up the blood in the trunk of the car. The two departed the Schrader home together and, after buying a chain, a lock and some spray paint, returned to the Mack/Hunsinger residence. At dusk the two returned to the dump, to chain and lock the refrigerator containing the body of Regina. The chain, however, was too short to circle the refrigerator. The two then drove to “Twin Ponds, ” near the Schrader house, and, at Appellant’s suggestion, Curley threw the knife and gun used in the murders into the pond. Appellant then drove Curley back to the Mack/Hunsinger residence, left him and drove away alone. The next Sunday, April 23, 1995, Curley moved to North Carolina.
The bodies of Regina and Austin were not immediately discovered. It was not until April 26, 1995, when Richard Morris, searching for recyclables, came upon the refrigerator containing Regina’s body and opened it. The state police were then called. Mack heard that a body had been found in a refrigerator approximately half a mile from her home, and, when she heard the news broadcast [of] a description of the clothing on the body, Mack recognized it as the clothing worn by Regina when she was at her residence in the early morning hours of April 18, 1995. Mack called the police and later in the day identified the body of Regina at the Robert Packer Hospital, and she also informed the police that Regina had been traveling with a child. Mack gave police permission to search her home, where the police recovered a can of spray paint, a lock and bullets.
The police went to North Carolina on April 28, 1995 to interview Curley. Immediately after they arrived, Curley confessed to the shootings. Curley was taken to the Goldsboro Police Department and, while en route, gave police the location where Austin’s body could be found. While in North Carolina, Curley also provided information concerning where the murder weapon could be found and provided details of the crimes. Curley also implicated Appellant in the murders. The police found Austin’s body at approximately 11:00 p.m. on April 28, 1995. On April 29, 1995, the police recovered the discarded gun and knife from Twin Ponds.
Appellant was arrested for the murders of Regina and Austin. Trial testimony began on March 25, 1996. In addition to the evidence outlined above, Isidore Mihalakis, M.D., a forensic pathologist, testified with reference to the injuries of Regina and Austin. Dr. Mihalakis testified that the cause of Regina’s death was a gunshot wound to the head and the manner of her death was homicide. Dr. Mihalakis testified that the cause of Austin’s death was multiple gunshot wounds and the manner of his death was homicide.
Commonwealth v. Koehler, 737 A.2d 225, 230-33 (Pa. 1999) (footnotes omitted) (“Koehler-I”).
The penalty phase commenced on the day following the conclusion of the guilt phase, April 12, 1996. The jury returned with two death sentences. Specifically, with respect to the murder of Ms. Clark, the jury found one aggravating circumstance, that Mr. Koehler had been convicted of another murder occurring either before or at the time of Ms. Clark’s murder, see 42 Pa. Cons. Stat. § 9711(d)(11), and no mitigating circumstances. As to Austin Hopper’s murder, the jury found the same aggravating circumstance and no mitigating circumstances, as well as the aggravating circumstance that, at the time of his death, Austin Hopper was less than twelve years old, see 42 Pa. Cons. Stat. § 9711(d)(16). Thereafter, the trial court formally imposed the sentences of death for the first degree murder convictions rendered by the jury. In addition, Mr. Koehler was sentenced to two terms of imprisonment of five to ten years on the conspiracy convictions, two terms of imprisonment of ten to twenty years on the kidnapping convictions, and one term of imprisonment of five to ten years on the burglary conviction.
Represented by his trial counsel, Leonard J. Frawley, Esquire, and after disposition of post-trial motions in the trial court, Mr. Koehler filed a timely direct appeal to the Pennsylvania Supreme Court in January 1998,  raising fifteen (15) claims for relief. Specifically, Mr. Koehler presented the following issues for review, as characterized by the Pennsylvania Supreme Court:
1. Was the verdict against the weight of the evidence?
2. Should Appellant’s New Jersey statement have been suppressed?
3. Should Appellant’s Towanda statement have been suppressed?
4. Should the Commonwealth’s DNA evidence have been suppressed?
5. Did the trial court err when it denied Appellant’s continuance request?
6. Did the trial court err in the seating of the jury panel?
7. Did the trial court err in denying Appellant’s request that Commonwealth witness Kerrien Ramsey undergo psychiatric evaluation?
8. Did the trial court err in limiting introduction of evidence of Ramsey’s drug use?
9. Did the prosecutor commit prosecutorial misconduct?
10. Did the trial court err in its instructions to the jury?
11. Did the trial court err in its evidentiary hearing?
12. Does Appellant’s sentence violate the equal protection and due process clauses of the United States and Pennsylvania constitutions?
13. Did the trial court err in limiting evidence that Appellant was “nice to children?”
14. Did the trial court err in instructing the jury to disregard a portion of Appellant’s counsel’s closing argument during the penalty phase?
15. Is the sentence imposed excessive?
Koehler-I, 737 A.2d 225 at 232-33.
The Pennsylvania Supreme Court affirmed Mr. Koehler’s convictions and sentence by its order of September 2, 1999. Koehler-I, 737 A.2d 225. Reargument was denied on October 27, 1999. See id. On October 2, 2000, Mr. Koehler’s petition for writ of certiorari was denied by the Supreme Court of the United States. Koehler v. Pennsylvania, 531 U.S. 829 (2000).
On September 6, 2001, Mr. Koehler filed a petition for post-conviction relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq. In the petition, Mr. Koehler raised nineteen (19) issues. See Commonwealth v. Koehler, 36 A.3d 121, 129-30 (Pa. 2012) (“Koehler-II”). An evidentiary hearing was held on May 31, 2006, June 1, 2006, and March 1, 2007 in the Bradford County court, now sitting as the PCRA court. Id. at 30. On June 30, 2009, the PCRA court issued an opinion and order denying relief. Commonwealth v. Koehler, CP-08-CR-000309-1995 (Bradford Ct. Com. Pl. Jun. 30, 2009). On July 22, 2009, Mr. Koehler filed a Notice of Appeal to the Pennsylvania Supreme Court, raising thirteen (13) issues for appeal. See Koehler-II, 36 A.3d at 131. On January 20, 2012, the Pennsylvania Supreme Court affirmed the denial of the PCRA petition. Id., 36 A.3d 121. Mr. Koehler did not file a petition for writ of certiorari in the United States Supreme Court.
On February 13, 2012, Mr. Koehler filed the instant petition for writ of habeas corpus in which he alleges fifteen (15) claims for relief. (Doc. 1.) Specifically, those claims are set forth as follows:
I. The Commonwealth violated the dictates of Brady, Banks and Napue and defense counsel was ineffective for failing to adequately investigate and impeach these Commonwealth witnesses;
II. The Commonwealth’s use of inconsistent and irreconcilable theories of prosecution between Petitioner and his Co-Defendant violated Petitioner’s right to due process; counsel rendered ineffective assistance by failing to investigate;
III. The trial court’s inadequate and restrictive voir dire of Juror Smith and the subsequent denial of Mr. Koehler’s challenge for cause violated Petitioner’s rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution; counsel was ineffective for failing to adequately raise this claim at trial and on appeal;
IV. Mr. Koehler is entitled to relief because the trial court’s failure to excuse Juror Mary Ann Schwartz for cause, and defense counsel’s failure to request such removal, deprived Mr. Koehler of his Sixth, Eighth and Fourteenth Amendment rights to due process and a fair and impartial jury;
V. Trial counsel rendered ineffective assistance of counsel during the penalty phase of trial;
VI. The trial court erred when he denied Petitioner’s pre-trial request for a continuance;
VII. Mr. Koehler was denied his right to confrontation, due process and effective assistance of counsel because the trial court permitted the prosecution to read a key Commonwealth witness’s entire hearsay police interview to the jury and failed to give a cautionary instruction;
VIII. Mr. Koehler was denied his rights against self-incrimination and to counsel because the prosecution introduced an allegedly inculpatory statement Mr. Koehler made during custodial interrogation after asking for an attorney and after his Miranda warnings had become stale;
IX. Mr. Koehler was denied due process, a fair trial, reliable sentencing and effective assistance of counsel because the prosecutor engaged in repeated acts of prosecutorial misconduct which infected the entire proceeding and prior counsel failed to object to some of this misconduct or to raise it on direct appeal;
X. The trial court erred in disallowing cross-examination about Witness Kerrien Ramsey’s drug use during the timeframe referenced in her direct testimony; counsel ineffectively litigated this claim at trial and on appeal;
XI. Petitioner’s first degree murder conviction must be vacated because, as a result of trial court error and ineffective assistance of counsel, the jury was not charged that presence and knowledge are insufficient to establish conspiracy beyond a reasonable doubt in violation of due process;
XII. The trial court erroneously instructed the jury that it could infer Mr. Koehler’s specific intent from the actions of his accomplice. Counsel was ineffective for failing to litigate this issue.
XIII. As a result of trial court error, prosecutorial misconduct and ineffective assistance of counsel, the jury considered non-statutory aggravating factors in violation of the Sixth, Eighth and Fourteenth Amendments.
XIV. The court failed to instruct the jury that a life sentence means life without possibility of parole; trial counsel was ineffective for failing to request such an instruction; and
XV. Cumulative error.
(Doc. 1.) Respondents filed their response on May 20, 2013. (Doc. 37.) Mr. Koehler filed a reply on September 6, 2013. (Doc. 48.) Thus, Mr. Koehler’s petition for writ of habeas corpus is now ripe for disposition.
III. Standards of Review
On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based “on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68.
A. Exhaustion and Procedural Default
A habeas petitioner must clear two procedural hurdles before the Court may reach the merit of his habeas corpus petition: exhaustion of remedies and procedural default.
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is grounded on principles of comity to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A state prisoner exhausts state remedies by giving the “state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A habeas petitioner retains the burden of showing that all of the claims alleged have been “fairly presented” to the state courts. To “fairly present” a claim, a petitioner must present its “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999). “[A] state habeas petitioner must present the ‘substantial equivalent’ of his federal claim to the state courts in order to give the state courts ‘an opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.’” Collins v. Sec’y of Pa. Dep’t of Corr., 742 F.3d 528, 543 (3d Cir. 2014) (quoting Picard v. Connor, 404 U.S. 270, 277-78 (1971)). A federal claim not fairly presented to the reviewing state court may be either unexhausted or procedurally defaulted.
A federal habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). The petitioner has the burden of establishing that the exhaustion requirement has been met. Ross v. Petsock, 868 F.2d 639, 643 (3d Cir. 1989); O’Halloran v. Ryan, 835 F.2d 506, 508 (3d Cir. 1987).
A petitioner’s failure to exhaust state remedies will be excused if state procedural rules preclude him from seeking further relief in state courts. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). Although treated as technically exhausted, such claims are nonetheless procedural defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Similarly, if a petitioner presents a habeas claim to the state’s highest court, but that court “clearly and expressly” refuses to review the merits of the claim due to an independent and adequate state procedure rule, the claim is exhausted but procedurally defaulted. See Coleman, 501 U.S. at 750.
A federal court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either: (1) “cause” for the procedural default and “actual prejudice” as a result of the alleged violation of federal law; or (2) failure to consider the claims will result in a “fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001). To establish “cause, ” a petitioner must establish that “some objective factor external to the defense” impeded his ability to raise the claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986). Once “cause” has been successfully demonstrated, a petitioner must then also prove “actual prejudice.” To establish “actual prejudice, ” “the habeas petitioner must show ‘not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’” Id. at 494 (citing United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)).
Alternatively, procedural default may also be excused if a petitioner can demonstrate that a fundamental miscarriage of justice will occur, i.e. that he is “actually innocent” of the crimes against him. Edwards, 529 U.S. at 451; Wenger, 266 F.3d at 223-24. A petitioner demonstrates a miscarriage of justice by showing a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). “[A] petitioner asserting actual innocence . . . must rely on ‘reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence’” not presented at trial. Munchinski v. Wilson, 694 F.3d 308, 337-38 (3d Cir. 2012) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). New evidence which tends to undermine the credibility of a witness “will seldom, if ever, make a clear and convincing showing that no reasonable juror would have believed the heart of [the witness’] account of petitioner’s actions. Sawyer v. Whitley, 505 U.S. 333, 349 (1992).
There exists a final, very narrowly carved, exception to the procedural default rule. The United States Supreme Court held in Martinez v. Ryan, ___U.S. ___, ___, 132 S.Ct. 1309, 1320-21 (2012), that a petitioner may establish cause to excuse procedural default of claims of ineffective assistance of trial counsel when post-conviction review is the first time a petitioner can bring such claims and petitioner had either ineffective collateral appeal counsel or no counsel at all. The Court cautioned that its holding did not apply to counsel’s error in other kinds of proceedings, such as appeals from initial-review collateral proceedings, second or successive collateral petitions, or petitions for discretionary review in state appellate courts. Id., 132 S.Ct. at 1320. In order to establish such “cause, ” petitioner must show that collateral appeal counsel was not appointed or was ineffective under the standard set forth in Strickland v. Washington, 466 U.S. 668, 695 (1984). Martinez, 132 S.Ct. at 1318. Further, a petitioner must also demonstrate that the underlying ineffectiveness of trial counsel claim is “substantial” and has “some merit.” Id., 132 S.Ct. at 1318.
In this case, the Court will address exhaustion and procedural default in its discussion of each issue herein.
B. Merits Standard
Once a court has determined that the exhaustion requirement is met, and, therefore, that review on the merits of the issues presented in a habeas petition is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims adjudicated on the merits by the state courts are subject to review under the standard of whether they are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” 28 U.S.C. § 2254(d)(1), or “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, ” § 2254(d)(2). AEDPA places the burden on the petitioner to make this showing. Williams v. Taylor, 529 U.S. 362 (2000).
The “contrary to” and “unreasonable application of” clauses of Section 2254 have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court judgment is “contrary to” federal law when it is “diametrically different, opposite in character or nature, or mutually opposed” to “clearly established” decisions of the United States Supreme Court. Williams, 529 U.S. at 405. This may occur if “the state court ignores or misapprehends clear precedent or it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir. 2005) (quoting Williams, 529 U.S. at 406). Alternatively, “[a]n ‘unreasonable application’ occurs when a state court ‘identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts[ ] of petitioner’s case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520 (2003)). For the purposes of Section 2254(d)(1), “[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citations omitted). “Under § 2254(d)(1)’s ‘unreasonable application’ clause . . . 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.” Id. at 75-76 (quoting Williams, 529 U.S. at 411). Rather, “[t]he state court’s application of clearly established law must be objectively unreasonable” before a federal court may grant relief. Andrade, 538 U.S. at 75.
By its terms, Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, § 2254(d)(1)’s “clearly established Federal law” signifies the holdings, not the dicta, of Supreme Court decisions. Howes v. Fields, U.S. ___, ___, 132 S.Ct. 1181, 1187 (2012). Specifically, only Supreme Court law established at the time of the state court’s decision can be a basis for habeas relief under AEDPA. See Green v. Fisher, U.S.___, ___, 132 S.Ct. 38, 44 (2011) (“§ 2254(d)(1) requires federal courts to ‘focu[s] on what a state court knew and did, ’ and to measure state-court decisions ‘against this Court’s precedents as of ‘the time the state court renders its decision.’”) (quoting Cullen v. Pinholster, U.S.___, ___, 131 S.Ct. 1388, 1399 (2011) (emphasis added)). Therefore, federal habeas review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. Finally, “under the AEDPA standard, the ‘[s]tate court[s’] relevant factual determinations are presumed to be correct unless the petitioner rebuts [that] presumption by clear and convincing evidence.’” McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 101 (3d Cir. 2012) (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012) (citing 28 U.S.C. § 2254(e)(1)).
Turning to Section 2254(d)(2), the test for the “unreasonable determination of facts” clause is whether the petitioner has demonstrated by “clear and convincing evidence, ” 28 U.S.C. § 2254(e)(1), that the state court’s determination of the facts was unreasonable in light of the record. Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011) (citing Rice v. Collins, 546 U.S. 333, 338-39 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’”); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir. 2009) (“Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Further, as with Section 2254(d)(1), the evidence against which a federal court measures the reasonableness of the state court’s factual findings is the record evidence at the time of the state court’s adjudication. Rountree, 640 F.3d at 538 (citing Cullen, 131 S.Ct. at 1401-03).
Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:
[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U.S. 18 (1967).
Fry v. Pliler, 551 U.S. 112, 121-22 (2007). Thus, even if the Court concludes that constitutional error occurred in the state court, the Court may not grant relief unless the error “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 631; Bond v. Beard, 539 F.3d 256, 276 (3d Cir. 2008).
In addition, the Supreme Court has stated, “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, U.S.___, ___, 131 S.Ct. 770, 786 (2011). Section 2254(d) “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 [Supreme Court] precedents. It goes no farther.” Id. Further, it was designed to be difficult “to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez, 132 S.Ct. at 1316.
Finally, AEDPA scrutiny is applicable only if the state court adjudicated the petitioner’s claims “on the merits.” 28 U.S.C. § 2254(d); see Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001). “An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev’d on other grounds, Rompilla v. Beard, 545 U.S. 374 (2005) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)). Further, an “adjudication on the merits” can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). However, “to qualify as an ‘adjudication on the merits, ’ the state court decision must finally resolve the claim. This means that the state court’s resolution of the claim must have preclusive effect.” Id. (citing Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311)). Further, as the Supreme Court has more recently 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.
Johnson v. Williams, U.S.___, ___, 133 S.Ct. 1088, 1097 (2013) (emphasis in original) (citations omitted) (internal quotation marks omitted). Where a state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential AEDPA standards do not apply, and the federal court must exercise de novo review over pure legal questions and mixed questions of law and fact. Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009) (citing Appel, 250 F.3d at 210). However, the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. Simmons, 581 F.3d at 165 (citing Appel, 150 F.3d at 210).
C. Ineffective Assistance of Counsel Standard
Because several of Mr. Koehler’s habeas claims presented herein raise the issue of whether his counsel was effective, the Court will set forth the applicable standard here. A claim for ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a petitioner must show that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the deficient representation was prejudicial to the petitioner. Id. at 688; see also Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007). In determining whether counsel has met the objective standard of reasonableness, courts must be highly deferential towards trial counsel’s conduct. See Strickland, 466 U.S. at 686. “In assessing counsel’s performance, ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. There is a ‘strong presumption’ that counsel’s performance was reasonable.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (alteration in original) (citations and quotations omitted). Counsel cannot be deemed ineffective for failing to raise a meritless claim. See United States v. Saunders, 165 F.3d 248, 253 (3d Cir. 1999). To satisfy the prejudice prong, a petitioner must show a reasonable probability that, but for the errors of his or her counsel, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694.
The two-prong test for ineffective assistance of counsel established in Strickland “qualifies as ‘clearly established Federal law’” for purposes of AEDPA. Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (quoting Williams, 529 U.S. 362 at 391). Thus, under § 2254(d)(1)-(2), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court’s decision involved an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Jacobs v. Horn, 395 F.3d 92, 107 n.9 (3d Cir. 2005); Werts, 228 F.3d at 204. In conducting this analysis, the Court is cognizant that:
Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” [Strickland, 466 U.S.] at 689; Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997), and when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111 (2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at 123-25.
Harrington, 131 S.Ct. at 788; see also Knowles, 556 U.S. at 123 (“[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Finally, the reviewing court must evaluate counsel’s performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96; see also Jacobs, 395 F.3d at 106-07. It is the petitioner’s burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697; see also Jacobs, 395 F.3d at 102.
Mr. Koehler’s habeas petition contains fifteen (15) claims for relief and involves both the guilt phase and the penalty phase of his trial. The Court will address his claims in turn.
A. Claim I - The Commonwealth violated the dictates of Brady, Banks and Napue and defense counsel was ineffective for failing to adequately investigate and impeach [two] Commonwealth witnesses.
Mr. Koehler contends that the Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to disclose to the defense separate agreements it had purportedly entered into with two Commonwealth witnesses, William Curley and Kirk Schrader. After careful review, the Court will deny habeas relief on this claim.
In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. To establish a Brady violation, a petitioner must demonstrate that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence is favorable to the accused, either because it is exculpatory or impeaching; and (3) that the evidence was material to the outcome of the case. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). The materiality standard is satisfied when the evidence places the “whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). Further, this standard is satisfied “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would be different.” Strickler, 527 U.S. at 281-82. In order for evidence to be material, it is not necessary that the evidence establish by a preponderance that disclosure of the evidence would have resulted in an acquittal. Kyles, 514 U.S. at 434-35. However, in making a determination of materiality, the assessment of the omitted evidence’s impact must take account of the cumulative effect of the suppressed evidence in light of the other evidence, not merely the probative value of the suppressed evidence standing alone. Id. at 436-37.
Here, Mr. Koehler argues that the Commonwealth failed to disclose separate agreements with two of its witnesses, William Curley and Kirk Schrader. The Court will discuss these witnesses separately.
1. William Curley
Mr. Koehler raises two issues surrounding the Commonwealth’s alleged failure to disclose impeachment evidence related to Mr. Curley. First, Mr. Koehler claims that, prior to his trial, Mr. Curley entered into an agreement with the Commonwealth whereby he would testify against Mr. Koehler in exchange for the dismissal of numerous felony charges in his separate proceeding, a bench trial. Mr. Koehler argues that this agreement constituted important impeachment evidence that the Commonwealth was required to disclose under Brady and its progeny. In addition, Mr. Koehler claims that his trial counsel rendered ineffective assistance by not only failing to discover and utilize this agreement in order to impeach Mr. Curley, but also by failing to go to the courthouse and review Mr. Curley’s criminal case file. Had defense counsel reviewed the file, he would have discovered the trial court’s order dismissing the felony charges and could have then used that information, with or without the Commonwealth’s agreement, to impeach Mr. Curley’s credibility. The Court will address these issues in turn after setting forth a relevant background.
The Commonwealth tried Mr. Curley and Mr. Koehler separately, prosecuting Mr. Curley first. See Koehler-II, 36 A.3d at 128. As the Pennsylvania Supreme Court recited,
Curley waived his right to a jury, and proceeded to a bench trial based on stipulated facts on March 6, 1996. Immediately prior to Curley’s trial, however, the Commonwealth nolle prossed all the lesser charges against Curley, and proceed[ed] to prosecute him for two counts of first degree murder and one count of burglary. During Curley’s trial, the Commonwealth’s theory of criminal liability was that although Appellant solicited Curley to kill Clark and Hopper, Curley acted with his own free will in carrying out the crimes. Curley was thereafter convicted of two counts of first degree murder and one count of burglary. On March 25, 1996, after Curley was convicted, but prior to his penalty proceeding, Appellant’s trial commenced.
Id. As such, prior to his sentencing proceeding, Mr. Curley testified against Mr. Koehler at his trial. Notably, the Pennsylvania Supreme Court acknowledged that Mr. Curley’s testimony was “critical to the prosecution as it served as the primary evidence that [Mr. Koehler] not only solicited Curley to kill the victims, but also threatened to kill Curley if he did not carry out the murders.” Koehler-II, 36 A.3d at 133.
Immediately prior to Mr. Curley’s testimony at Mr. Koehler’s trial, defense counsel, Leonard J. Frawley, Esquire, requested a side bar in order to clarify whether Mr. Curley understood the possible ramifications of his testimony on his own upcoming sentencing hearing. (Doc. 51, Notes of Testimony, Trial, 3/28/1996 a.m., Part 1, Vol. VII, at 1-3 (“Trial NT 3/28/1996 a.m. Part 1 Vol. VII”).) After the court confirmed with Mr. Curley’s counsel, Kyle Rude, Esquire, that Mr. Curley was not given any immunity in exchange for his testimony, District Attorney Robert McGuinness stated, “The only thing that was told to him is that, if he testified truthfully, that it could be considered by whoever makes the decision as a mitigating circumstance and that the Commonwealth would agree that it would be a mitigating circumstance.” (Id. at 3.) Further, during his direct testimony, Mr. Curley confirmed that he received no promises from the District Attorney, the State Police, or the trial court in exchange for testifying against Mr. Koehler. (Doc. 51-2, Notes of Testimony, Trial, 3/28/1996 a.m., Part 3, Vol. VII, at 125-26 (“Trial NT 3/28/1996 a.m. Part 3 Vol. VII”).) In fact, he testified that, at his own sentencing hearing, he was still facing the possibility of the death penalty or life imprisonment. (Id. at 126.) On cross-examination, however, Mr. Curley acknowledged that he had not pleaded guilty in his own proceedings, and when defense counsel asked Mr. Curley, “[Y]ou come in here today and you tell the jury this story, believing that the – the testimony cannot be used against you and hoping that, by telling this story, you might avoid being executed by the State of Pennsylvania, isn’t that also correct?”, Mr. Curley answered in the affirmative. (Id. at 133-35.) In addition, during his closing argument, the District Attorney stated, “seems to me that you can believe what Bill Curley told you. Did he get anything for his testimony? As far as Trooper Madigan and I know, he got a date on May 20th, 1996, right here, to see if he lives or dies.” (Doc. 50-70, Notes of Testimony, Trial, 4/10/1996 a.m., Part 1, Vol. XXVI, at 17 (“Trial NT 4/10/1996 a.m. Part 1 Vol. XXVI”).) For his part, defense counsel made the following statement regarding Mr. Curley’s testimony against Mr. Koehler:
[Mr. Curley] had about a one hour trial and was found guilty. But his case is not over. He still has the right and the intention to move the appellate court to set aside that decision of Judge Smith [to not suppress his statement to police]. He still wants the appellate courts to say that that statement cannot be used against him. He still wants to fight it. He still wants his freedom. And, yes, he cooperates when he comes in here, but he realizes that if the statement is not suppressed, there are two possibilities for him. One is life imprisonment and one is death. And the chances of avoiding death are greater, if he comes in here and he testifies. The chances of avoiding the death penalty are greater, if he says, I did it, but I really didn’t want to. It was John Koehler that made me do that.
(Doc. 50-72, Notes of Testimony, Trial, 4/10/1996 a.m., Part 2, Vol. XXV, at 71-72 (“Trial NT 4/10/1996 a.m. Part 2 Vol. XXV”).)
Further, the Pennsylvania Supreme Court succinctly set forth the evidence presented at the PCRA hearing in support of, and in opposition to, this claim. As stated by the state court, Mr. Koehler presented the following:
In support of this claim, Appellant presented at the PCRA hearing the testimony of Attorney Kyle Rude, Curley’s defense counsel. Attorney Rude testified that Curley had no incentive to testify against Appellant because District Attorney McGuinness had refused “to take the death penalty off the table.” N.T. Jun. 1, 2006, at 27. Attorney Rude further stated that on March 6, 1996, immediately prior to Curley’s bench trial on stipulated facts, he asked District Attorney McGuinness to “drop any of the charges” against Curley. See id. at 28 (wherein Attorney Rude testified that “[a]t the last moment we agreed or I asked Mister McGuinness if he would be willing to drop any of the charges, just prior to the case stated trial. And that was not something that was for Mister Curley’s testimony, but I call it a last little push - a nudge, at the end, before the case stated trial”). While conceding that the District Attorney did not expressly agree to dismiss the charges at issue in exchange for Curley’s testimony against Appellant, Attorney Rude testified that the Commonwealth actually dismissed such charges shortly after he requested the same. Id. at 53, 58, 74. Appellant characterizes such action as an undisclosed deal between the Commonwealth and Curley, which the Commonwealth had an obligation to disclose to Appellant.FN8
FN8. Also in support of this claim, Appellant presented his trial counsel’s testimony that he was unaware that a series of charges against Curley had been dropped prior to Curley’s trial, and had he been aware, he would have used this evidence to impeach Curley’s testimony during Appellant’s trial. Id. at 13.
Koehler-II, 36 A.3d at 134. As further stated by the state court, the Commonwealth countered this evidence with the following:
The Commonwealth, however, presented evidence at the PCRA hearing disputing the existence of an undisclosed deal between Curley and the Commonwealth. Specifically, the Commonwealth presented the testimony of District Attorney McGuinness who explained that he agreed to nolle pros several charges against Curley prior to Curley’s bench trial solely because he desired to make the case easier for the trial judge to render a prompt decision, as he wanted to have at least the guilt phase of Curley’s trial concluded prior to Appellant’s trial. Id. at 100. District Attorney McGuinness testified that the Commonwealth had very strong evidence against Curley supporting two counts of first degree murder and burglary, and was not concerned with the kidnapping and misdemeanor charges. Id. He further definitively stated that dismissing the lesser charges was never part of an agreement with Curley to obtain his testimony against Appellant. Id. at 99. Rather, District Attorney McGuinness emphasized, the full extent of the Commonwealth’s agreement with Curley, as explained on the record at Appellant’s trial, was that the Commonwealth agreed to stipulate that Curley’s cooperation in Appellant’s prosecution would serve as mitigating evidence at Curley’s sentencing. Id.
Koehler-II, 36 A.3d at 134.
b. State Court Decision
In its decision affirming the denial of PCRA relief on this claim, the Pennsylvania Supreme Court concluded:
The PCRA court credited the testimony of District Attorney McGuinness and found as a matter of fact that there was no undisclosed agreement between Curley and the Commonwealth. Consistent with both District Attorney McGuinness’ testimony at the PCRA hearing and Curley’s testimony at Appellant’s trial, the PCRA court held that the only consideration for Curley’s testimony was that it would serve as mitigating evidence at Curley’s sentencing hearing - a fact of which Appellant’s jury was keenly aware. The court concluded that the “deal” that Appellant faulted the Commonwealth for not disclosing did not exist, thus, there was no Brady violation.
The Commonwealth argues that there is ample support in the record for the PCRA court’s factual finding that no undisclosed agreement existed between the Commonwealth and Curley, thus, no impeachment evidence was suppressed. It relies on the testimony of District Attorney McGuinness, as referenced above, as well as Curley’s testimony at Appellant’s trial that the only benefit he received in exchange for his testimony against Appellant was that such testimony would serve as mitigating evidence at Curley’s sentencing. The Commonwealth points out that the PCRA court credited the testimony of District Attorney McGuinness, and that this Court cannot, pursuant to Appellant’s suggestions, reweigh the evidence presented.
Upon careful review of the record, we agree with the Commonwealth that there is ample support for the PCRA court’s factual finding that the Commonwealth’s dismissal of lesser criminal charges prior to Curley’s murder trial did not serve as consideration for Curley’s subsequent testimony at Appellant’s trial. See id. at 99 (where District Attorney McGuinness indicates that the agreement with Curley did not, in any way, include the dismissal of certain charges against Curley). Because there was no undisclosed agreement between the Commonwealth and Curley regarding the dismissal of charges against Curley, no exculpatory or impeaching evidence existed that the Commonwealth had an obligation to disclose under Brady. Appellant was, therefore, properly denied collateral relief on this claim.FN9
FN9. In connection with this Brady issue, Appellant argues that trial counsel was ineffective for failing to investigate adequately and impeach Curley with the undisclosed agreement he entered into with the Commonwealth. The PCRA court did not address this independent claim. Because we have concluded that no such agreement existed, trial counsel cannot be deemed ineffective for failing to discover and utilize the agreement to impeach Curley. Accordingly, this specific claim of ineffectiveness fails for lack of arguable merit.
Koehler-II, 36 A.3d at 134-35.
Initially, as to exhaustion, Mr. Koehler presented these issues in the state courts, and the Pennsylvania Supreme Court partially addressed them in its decision affirming the denial of PCRA relief. See Koehler-II, 36 A.3d at 133-135. First, the state court addressed whether there was an undisclosed agreement between the Commonwealth and Mr. Curley constituting impeachment evidence that the Commonwealth was required to disclose under Brady. Id. Second, the state court addressed whether trial counsel could be deemed ineffective for failing to discover and utilize the agreement in order to impeach Mr. Curley. Id. at 135 n.9. Because the state’s highest appellate court addressed the merits of these issues, the Court will apply the deferential AEDPA standard of review to their disposition here. Further, because that state court made a factual determination with respect to these issues, the Court will presume those factual findings are correct unless Mr. Koehler rebuts those findings by clear and convincing evidence. See 28 U.S.C. §§ 2254(d)(2), (e)(1); see also Rice, 546 U.S. at 338-39 (“State-court factual findings . . . are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’”). The Pennsylvania Supreme Court did not, however, address the merits of Mr. Koehler’s claim that trial counsel was ineffective for failing to review Mr. Curley’s file and discover the trial court order dismissing the felony charges in his case and then use that information to impeach him during Mr. Koehler’s trial. Without a merits review in the state courts, this Court will apply de novo review to that issue.
i. Brady Analysis
In its decision, the Pennsylvania Supreme Court determined that no exculpatory or impeaching evidence in the form of an agreement existed between the Commonwealth and Mr. Curley regarding dismissal of some charges, and thus the Commonwealth had no duty to disclose this action under Brady. See Koehler-II, 36 A.3d at 135. Upon review, the Court agrees with the state court’s decision.
Notably, the state court based its decision on a factual finding that “the Commonwealth’s dismissal of lesser criminal charges prior to Curley’s murder trial did not serve as consideration for Curley’s subsequent testimony at Appellant’s trial.” Id. In doing so, the state court first acknowledged that, when Mr. Curley testified at Mr. Koehler’s trial, the Commonwealth had agreed that his cooperation with authorities would serve as mitigating evidence at his own upcoming sentencing proceeding. Id. at 133. In a side bar, the District Attorney confirmed this fact. (Trial NT 3/28/1996 a.m. Part 1 Vol. VII 3.) Mr. Curley further testified that he received no other promises from the District Attorney, State Police, or the trial court in exchange for his testimony. (Id. at 125-26.)
The state court next looked to the relevant testimony presented at Mr. Koehler’s PCRA hearing. Mr. Curley’s attorney testified at the hearing that, although he asked the District Attorney to drop some charges against Mr. Curley prior to his bench trial, the District Attorney did not expressly agree to do so in exchange for Mr. Curley’s testimony against Mr. Koehler. Koehler-II, 36 A.3d at 134. However, shortly thereafter, the District Attorney actually did dismiss such charges against Mr. Curley. Id. The Pennsylvania Supreme Court noted that it was this action by the District Attorney that marked the undisclosed deal now alleged by Mr. Koehler. Id.
District Attorney McGuinness also testified at the PCRA hearing. The Pennsylvania Supreme Court noted, inter alia, that the District Attorney explained that he agreed to drop several charges against Mr. Curley solely because he wished to make the case easier for the trial judge to render a prompt decision. Id. He believed he had strong evidence against Mr. Curley supporting the two counts of first degree murder and burglary and was not concerned with the lesser charges of kidnapping and several misdemeanors. Id. Importantly, the District Attorney definitively stated that dismissing those lesser charges was never part of an agreement with Mr. Curley to obtain his testimony against Mr. Koehler. Id. Rather, the only deal the Commonwealth had with Mr. Curley was to stipulate that his cooperation in Mr. Koehler’s prosecution would serve as mitigating evidence in Mr. Curley’s sentencing. Id. This deal was placed on the record in Mr. Koehler’s trial, and, therefore, is not at issue here as a possible Brady violation.
After reviewing the record, the Pennsylvania Supreme Court agreed with the PCRA court’s decision to credit the District Attorney’s testimony and to find as a matter of fact that there was no undisclosed agreement between Mr. Curley and the Commonwealth regarding dismissal of charges. Koehler-II, 36 A.3d at 134-35. In particular, the state court noted that District Attorney McGuinness had testified that the deal with Mr. Curley regarding his testimony in exchange for its consideration as mitigating evidence in his own case - a deal well known to all parties, the trial court and the jury in Mr. Koehler’s case - did not, in any way, include dismissal of certain charges against Mr. Curley. See id., 36 A.3d at 135. As a result, the state court concluded that, with no undisclosed agreement between the Commonwealth and Mr. Curley regarding dismissal of charges, there existed no exculpatory or impeaching evidence that the Commonwealth had a duty to disclose under Brady. Id.
In light of this evidence recited and relied upon by the Pennsylvania Supreme Court, and in the absence of a contrary showing by Mr. Koehler, this Court concludes that Mr. Koehler has not rebutted the state court’s findings with clear and convincing evidence. See 28 U.S.C. § 2254(d)(2), (e)(1). The state court’s decision that there was no undisclosed agreement and, therefore, nothing further for the Commonwealth to disclose under Brady, is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1)-(2).
ii. Strickland Analysis
Next, Mr. Koehler argues that his trial counsel rendered ineffective assistance in two ways with respect to Mr. Curley’s testimony. First, he claims that trial counsel failed to discover and utilize an undisclosed agreement between the Commonwealth and Mr. Curley in order to impeach Mr. Curley at Mr. Koehler’s trial. The Pennsylvania Supreme Court addressed this claim on the merits in Koehler-II. Specifically, it determined that, because no agreement between the Commonwealth and Mr. Curley existed, trial counsel cannot be deemed ineffective for failing to discover and utilize the agreement to impeach Mr. Curley. Koehler-II, 36 A.3d at 135 n.9. Upon review, and based on the Court’s agreement with the Pennsylvania Supreme Court over that conclusion regarding the nonexistence of an undisclosed agreement, the Court further agrees with the state court’s decision regarding the ineffectiveness claim, as it is not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Nor is it an unreasonable determination of the facts in light of the evidence presented in state court. § 2254(d)(2). Thus, Mr. Koehler is not entitled to habeas relief on this claim.
Second, in addition to arguing that trial counsel failed to discover an agreement between the Commonwealth and Mr. Curley, Mr. Koehler also argues that counsel failed to review Mr. Curley’s file and discover the trial court order dismissing the felony charges in his case and then use that information to impeach him during Mr. Koehler’s trial. The Pennsylvania Supreme Court did not address this issue, and thus the Court now will review it de novo.
As to the deficient performance prong of the Strickland analysis, Mr. Koehler argues that reviewing the court file of a co-defendant who is testifying against your client is a “basic investigative step” any reasonable attorney would undertake in preparing to cross-examine such a witness. (Doc. 1 at 33.) Trial counsel’s failure to do so, argues Mr. Koehler, constitutes ineffective assistance of counsel. (Id.)
Satisfying Strickland’s investigation mandate ultimately turns on counsel’s adherence to the professional standards for investigation at the time of trial. In defining what constitutes a complete investigation in this matter, therefore, the Court looks to the prevailing professional norms as they existed in 1996.
In 1996, the ABA Standard for Criminal Justice (“Standard”) stated:
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or the accused’s stated desire to plead guilty.
1 ABA Standards for Criminal Justice: Prosecution Function and Defense Function, 4–4.1 (2d ed.1982 Sup.); see also Strickland, 466 U.S. at 688–89 (discussing the use of ABA standards as guides for determining “prevailing norms of practice”); Rompilla, 355 F.3d at 259 n.14 (referring to the ABA standards as “important guides” although cautioning against viewing them as “a codification of the requirements of the Sixth Amendment”). The ABA standards, coupled with Strickland’s explicit language requiring a thorough investigation into facts relevant to both guilt and sentencing, show that an investigation into all matters surrounding the facts of the case was the foundation of reasonable representation during a trial’s guilt phase in 1996. See Strickland, 466 U.S. at 690-91.
During the PCRA hearing in the instant case, Mr. Koehler’s attorney, Attorney Frawley, testified that at no point in time did he go to the courthouse to review Mr. Curley’s prosecution file. (Doc. 50-88, Notes of Testimony, PCRA Hearing, 5/31/2006 p.m., Part 1, at 38-39 (“PCRA NT 5/31/2006 p.m. Part 1”).) Had Attorney Frawley reviewed Mr. Curley’s file prior to Mr. Koehler’s trial, he would have discovered the trial court’s order dismissing the lesser charges against Mr. Curley. While this evidence would not have necessarily led to the discovery of any exculpatory evidence, Attorney Frawley testified that he would have raised it during Mr. Koehler’s trial in order to attack Mr. Curley’s credibility. (Id. at 39.) There is nothing in the record showing that such a failure on the part of Attorney Frawley had a strategic purpose. Rather, it appears that counsel’s investigation of Mr. Curley as a potential witness, which did not include personally reviewing his separate prosecution file readily available at the courthouse, was not the result of the type of reasoned tactical decision to which the Court owes deference under Strickland.
This Court recognizes that “[t]he right to counsel does not require that a criminal defense attorney leave no stone and no witness unpursued.” Blystone v. Horn, 664 F.3d 397, 423 (3d Cir. 2011) (quoting Jermyn, 266 F.3d at 308 (alteration in original) (quotation marks omitted)). However, the Sixth Amendment “require[s] a reasoned judgment as to the amount of investigation the particular circumstances of a given case require.” Jermyn, 266 F.3d at 308; see also Strickland, 466 U.S. at 691. From a review of the record in this case, and cognizant that the Court is acting with the benefit of hindsight and in accordance with the Strickland mandate, the Court finds that counsel’s amount of investigation into Mr. Curley with respect to his potential testimony was not the result of any such reasoned judgment. Rather, counsel’s failure to perform the basic step of looking into Mr. Curley’s readily available prosecution file was not reasonable.
Turning to Strickland’s prejudice prong, while trial counsel could have presented to the jury Mr. Curley’s trial court record showing some lesser charges had been dropped, counsel simply could not have shown the jury that these charges were dropped as part of an agreement between the Commonwealth and Mr. Curley, thereby giving a benefit in exchange for testifying against Mr. Koehler. In fact, Mr. Curley himself testified at Mr. Koehler’s trial that he received no promises from the District Attorney, the State Police, or the trial court in exchange for testifying against Mr. Koehler, (Trial NT 3/28/1996 a.m. Part 1 Vol. VII 125-26), and that he was still facing the possibility of the death penalty or life imprisonment, (id. at 126), but was only hoping that, by testifying at Mr. Koehler’s trial, he could avoid the death penalty, (id. at 126). In light of what the jury heard with regard to Mr. Curley’s motivation for testifying, the Court is not persuaded that, had counsel presented this evidence of Mr. Curley’s court record, the outcome of the trial would have been different. Strickland, 466 U.S. at 694. Mr. Koehler was not prejudiced by counsel’s failure to discover and use Mr. Curley’s trial court record and, thus, Mr. Koehler’s claim of ineffectiveness fails.
2. Kirk Schrader
Mr. Koehler also raises two issues here surrounding the non-disclosure of impeachment evidence relating to Mr. Schrader. First, Mr. Koehler claims the Commonwealth failed to disclose evidence that Mr. Schrader had entered into a non-prosecution agreement with the Commonwealth in exchange for his cooperation against Mr. Koehler. Second, Mr. Koehler argues that trial counsel was ineffective for failing to do more than read the police report authored by Trooper Madigan which, incidentally, contained information regarding the Trooper’s account of the non-prosecution agreement with Mr. Schrader. Had trial counsel “call[ed] Schrader’s attorney and inquire[d] if his reading of the Madigan police report was correct, ” (Doc. 34 at 34), Mr. Koehler contends, trial counsel would have learned about the existence of the non-prosecution agreement and would have then had impeachment evidence to attack Mr. Schrader’s credibility. The Court will address these issues in turn after setting forth a relevant background.
Mr. Schrader testified at Mr. Koehler’s trial on behalf of the Commonwealth. Specifically, as set forth by the Pennsylvania Supreme Court,
Schrader testified at Appellant’s trial that he observed Curley and Appellant discuss plans to kill Clark, and that later that day, he heard gunshots being fired in his garage, and saw Curley in the garage with his arm extended. The cars in the garage purportedly blocked Schrader’s view of Curley’s gun and Clark.
Koehler-II, 36 A.3d at 135.
During his opening statement to the jury, Mr. Koehler’s defense counsel, Attorney Frawley, stated the following regarding Mr. Schrader’s testimony:
How credible is Kirk Schrader? He’s going to come here, . . . he’s going to take an oath, and he’s going to say this man was involved. And the D.A.’s going to say believe him.
[W]hen he finally implicates my client, it’s after he’s got an attorney, and about that time the District Attorney comes up to him and says we’re giving you immunity. We won’t prosecute you.
(Doc. 50-16, Notes of Testimony, Trial, 3/25/1996 a.m., Part 1, Vol. I, at 43, 44 (“Trial NT 3/25/1996 a.m. Part 1 Vol. I”).)
Immediately prior to Mr. Schrader’s testimony at Mr. Koehler’s trial, the trial court conducted a side bar with counsel. (Doc. 50-55, Notes of Testimony, Trial, 04/03/1996 a.m., Part 2, Vol. XVII, at 66-71 (“Trial NT 4/3/1996 a.m. Part 2 Vol. XVII”).) Contrary to his opening, Attorney Frawley stated that Mr. Schrader had not been given immunity in exchange for his testimony, and expressed concern that Mr. Schrader may not understand that the information he would testify to could be used against him. (Id. at 67-68.) In response, District Attorney McGuinness stated that he had personally communicated to Mr. Schrader that any testimony he gives could be used against him, as had several investigators, a detective, and his own defense counsel. (Id. at 68-69.) The court then called Mr. Schrader to the bench and they had the following exchange:
Trial court: You’ve discussed with your attorney the possibility that your testimony today might be used in some fashion against you, you discussed that?
Mr. Schrader: Yeah.
Trial court: [A]nd [your attorney] has consulted you and advised you about whether you should or should not testify here today, am I correct?
Mr. Schrader: Correct.
Trial court: [I]s it your choice to testify today and answer questions freely, Is that right?
Mr. Schrader: That’s right.
(Id. at 70.) Further, in open court, the District Attorney had the following exchange with Mr. Schrader:
District Attorney: What is your understanding about your status as potentially being charged in this case?
Mr. Schrader: That I could be charged.
District Attorney: Can [your testimony at trial] be used against you?
Mr. Schrader: Yes sir.
District Attorney: Are you getting any favors from me or Trooper Madigan or from any police source for coming in here today and testifying?
Mr. Schrader: No I’m not.
District Attorney: Have you been made any promises?
Mr. Schrader: No sir.
(Id. at 109.)
On the next day of trial, former District Attorney Robert Fleury testified about his meeting with Mr. Schrader that took place approximately one (1) year prior to Mr. Koehler’s trial. (Doc. 50-61, Notes of Testimony, Trial, 4/4/1996 a.m., Part 2, Vol. XIX, at 67-68 (“Trial NT 4/4/1996 a.m. Part 2 Vol. XIX”).) Attorney Fleury wanted to question Mr. Schrader about some inconsistencies in his previous statements to police. (Id. at 69.) Further, he testified that, “I told him, Mr. Schrader, he wasn’t even being advised of his rights at that time, he was not a suspect. . . . I told him that if I find out later that [he’s] not telling everything as it is, then watch out.” (Id.) Attorney Fleury then clarified that “watch out” meant that Mr. Schrader should be prepared for possible prosecution. (Id.) Attorney Fleury also testified that he did not discuss immunity with Mr. Schrader. (Id. at 69-70.)
In addition, during his closing argument, District Attorney McGuinness specifically argued that Mr. Schrader had no offers of immunity in exchange for his testimony against Mr. Koehler:
In opening statement, you heard Kirk Schrader is not to be believed, he’s testifying under a grant of immunity. What grant of immunity? Did Bob Fleury give him one? Was a court order produced to show that he got a grant of immunity? What did he tell you? The testimony he’s given right there can be used against him.
(Trial NT 4/10/1996 p.m. Vol. XXVI 21).)
The Pennsylvania Supreme Court summarized the subsequent relevant facts with respect to prosecution of Mr. Schrader, as recited in part by Mr. Koehler, as follows:
Although Schrader had no charges pending against him at the time of Appellant’s trial, Appellant points out that Schrader was arrested one month later and charged with hindering apprehension or prosecution, aiding consummation of a crime, and criminal conspiracy, stemming from the instant murders. The Commonwealth’s information charged that Schrader, knowing that Curley had already killed Clark upon Appellant’s direction, intentionally aided Curley and Appellant in an unlawful objective by supplying the .22 caliber bullets, which Curley used to shoot Hopper. See Commonwealth v. Schrader, Trial Ct. Slip Op., May 27, 1997, at CP-08-CR-286-1996, at 1-2. Following Schrader’s arrest, he filed an omnibus pre-trial motion seeking, inter alia, dismissal of the charges on the grounds that he had entered into a non-prosecution agreement with the Commonwealth.
After conducting an evidentiary hearing on Schrader’s motion to dismiss, the trial court credited the testimony of Schrader’s defense counsel, which established that District Attorney Robert FleuryFN10 entered into a non-prosecution agreement with Schrader on May 5, 1995, nearly one year before Appellant’s trial. The court found that the agreement provided that if Schrader would testify truthfully at Appellant’s trial, District Attorney Fleury would not prosecute him for any offenses related to the instant murders. The court in Schrader concluded that Schrader upheld his end of the agreement by testifying against Appellant. Id. at 19. The court further noted that a May 5, 1995 police report prepared by Trooper Nicholas Madigan indicated that District Attorney Fleury informed Schrader that he was being interviewed as a witness in Appellant’s prosecution, rather than as a suspect, and that Schrader would not be prosecuted in connection with the murders of Clark and Hopper. Accordingly, on May 22, 1997, more than one year after Appellant’s trial, the trial court dismissed the charges against Schrader based on the existence of a non-prosecution agreement.FN11
FN10. It becomes relevant that District Attorney Fleury was the predecessor to District Attorney McGuinness, as referenced in the previous claim.
FN11. The trial judge who granted Schrader’s motion to dismiss was the same trial judge who presided over Appellant’s PCRA proceedings.
Koehler-II, 36 A.3d at 136.
In response to Mr. Koehler’s argument before the state court, the Commonwealth contended that “the controlling inquiry is not whether Schrader ever entered into a non-prosecution agreement, but whether Schrader believed such agreement was valid at the time he testified against Appellant.” Id. at 137. Further, as set forth by the Pennsylvania Supreme Court,
In support of its position, the Commonwealth relies on the testimony provided by District Attorney McGuinness at Appellant’s PCRA hearing. District Attorney McGuinness testified that when he assumed his role of attorney for the Commonwealth after District Attorney Fleury held that position, he personally informed Schrader, prior to Appellant’s trial, that there was no binding agreement between him and the Commonwealth, that the Commonwealth would not make any offer, and that Schrader could testify as a witness for the prosecution or not, as it was his choice. N.T. Jun. 1, 2006, at 121-22. The Commonwealth argues that District Attorney McGuinness’ testimony in this regard is consistent with Schrader’s testimony at Appellant’s trial and District Attorney McGuinness’ on-the-record representation to the court at Appellant’s trial, which established that there was no agreement between Schrader and the Commonwealth at that particular point in time. N.T. Apr. 3, 1996, Vol. XVII, at 68 (where District Attorney McGuinness informs the court at Appellant’s trial that he personally informed Schrader, as did a trooper and investigator, that the information Schrader was about to testify to could be used against him); id. at 108-09 (where Schrader testifies at Appellant’s trial that he is not testifying under immunity, that he understands that he could be charged for offenses related to the murders of Clark and Hopper, and that he received no promises of favors in exchange for his testimony).
b. State Court Decision
In light of the circumstances set forth above, the Pennsylvania Supreme Court affirmed the denial of PCRA relief on this claim with respect to a purported undisclosed agreement with Mr. Schrader, concluding:
The PCRA court expressly credited the testimony of District Attorney McGuinness, and found that “at the time Schrader testified at [Appellant’s] trial, the non-prosecution agreement clearly had been repudiated by the Commonwealth, whether lawfully or not, and Schrader himself acknowledged that he had no form of immunity.” PCRA Ct. Opinion, Jun. 30, 2009, at 8. The PCRA court went on to state that “there is not a scintilla of evidence that when Schrader testified at [Appellant’s] trial, he believed there was any promise of leniency from the Commonwealth. In short, there was no undisclosed agreement which might have impeached Schrader and no undisclosed exculpatory evidence.” Id. at 8-9.
The PCRA court further held that, contrary to Appellant’s contentions, Schrader’s testimony was not critical to Appellant’s prosecution because even without such testimony, “the evidence points ineluctably to [Appellant’s] guilt beyond a reasonable doubt.” Id. at 9. Thus, the court concluded that even if Appellant could establish that Schrader testified under an undisclosed non-prosecution agreement, Appellant was not prejudiced by the Commonwealth’s failure to disclose the same. Id.
We conclude that the PCRA court’s factual findings are supported by the record and its legal conclusions are free from error. There was ample evidence of record to support the finding that Schrader believed that his testimony at Appellant’s trial could subsequently be used against him, and, therefore, had no incentive to fabricate testimony in exchange for favorable treatment by the Commonwealth. As noted by the Commonwealth, this was established by the testimony of District Attorney McGuinness at Appellant’s PCRA evidentiary hearing, and the testimony of Schrader, himself, at Appellant’s trial, as referenced above. N.T. Jun. 1, 2006, at 121-22, N.T. Apr. 3, 1996, Vol. XVIII, at 108-09. Considering that the PCRA court credited the testimony establishing that Schrader believed the non-prosecution agreement had been revoked, it strains logic to conclude that Appellant could have used such agreement to impeach Schrader’s testimony to demonstrate bias on the part of Schrader. This Brady claim, therefore, fails.
Koehler-II, 36 A.3d at 137-38.
In its decision, the Pennsylvania Supreme Court determined that, based on the factual finding that Mr. Schrader believed that any non-prosecution agreement had been revoked prior to his testimony at Mr. Koehler’s trial, there was no exculpatory or impeaching evidence in the form of a non-prosecution agreement for Mr. Schrader that the Commonwealth had a duty to disclose under Brady. Koehler-II, 36 A.3d at 137-38. Upon review, the Court agrees with the state court’s decision.
The state court based its decision on a factual finding that “there was no undisclosed agreement [at the time of Mr. Koehler’s trial] which might have impeached Schrader and no undisclosed exculpatory evidence.” Id. (quotation marks omitted). In doing so, the court noted there was “ample evidence” to support a finding that Mr. Schrader believed his testimony at Mr. Koehler’s trial could subsequently be used against him, and, therefore, he had no reason to fabricate testimony in exchange for favorable treatment. Id. at 138. Such “ample evidence” included the testimony of District Attorney McGuinness at the PCRA hearing, as well as the testimony of Mr. Schrader himself. Id. Each testified that a non-prosecution agreement did not exist at the time of Mr. Schrader’s testimony at Mr. Koehler’s trial. In fact, the Pennsylvania Supreme Court acknowledged that the PCRA court had credited this testimony which established that Mr. Schrader believed the non-prosecution agreement had been revoked at the time of Mr. Koehler’s trial. Id.
In light of the evidence recited and relied upon by the Pennsylvania Supreme Court, and in the absence of a contrary showing by Mr. Koehler, this Court concludes that Mr. Koehler has not rebutted the state court’s factual findings with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The state court’s decision that there was no undisclosed agreement which may have impeached Mr. Schrader and no undisclosed exculpatory evidence, is not contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1)-(2).
Further, in the response to Mr. Koehler’s habeas petition, Respondents contend that he has pointed to “no clearly established federal law to the effect that a revoked agreement with a witness constitutes Brady material when both the prosecution and the witness act under the belief that there is no valid agreement.” (Doc. 37 at 25.) In reply, Mr. Koehler repackages his challenge here as a violation under Giglio v. United States, 405 U.S. 150 (1972). Even with this repackaging, Mr. Koehler’s claim fails.
As stated above, in Brady, 373 U.S. 83 (1963), the United States Supreme Court held “that suppression by the prosecutor of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87. In Giglio, the Supreme Court extended Brady to certain impeaching evidence, holding that, “[w]hen the ‘reliability of a given witness may well be determinative of guilt or innocence, ’ nondisclosure of evidence affecting credibility falls within this general rule [of required Brady disclosure].” Giglio, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).
In Giglio, the Government’s case depended almost entirely on the testimony of a witness whom the Government promised it would not prosecute if he testified. The trial prosecutor had not himself made the agreement and was unaware of it, but the Court charged him with knowledge of the agreement made by his predecessor. The Court held that, because the evidence was relevant to the jury’s assessment of the credibility of the witness, a new trial would be “required if ‘the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury[.]’” Id. at 154 (quoting Napue, 360 U.S. at 271).
Upon review, the Court finds that the instant case does not present a Giglio violation. In order to establish such a violation, Mr. Koehler must show that: (1) Mr. Schrader committed perjury; (2) the prosecution knew or should have known of his perjury; (3) the testimony went uncorrected; and (4) the testimony was material, meaning that there is a reasonable likelihood that the false testimony could have affected the verdict. See, e.g., Guzman v. Sec’y Dep’t of Corr., 661 F.3d 602, 613-14 (11th Cir. 2011); Lambert v. Blackwell, 387 F.3d 210, 242-43 (3d Cir. 2004); Steele v. Beard, 830 F.Supp.2d 49, 75 (W.D. Pa. 2011).
There is no evidence that Mr. Schrader committed perjury at Mr. Koehler’s trial or that the Commonwealth knew or should have known of any alleged perjury. As the Pennsylvania Supreme Court found, “There was ample evidence of record to support the finding that Schrader believed that his testimony at [Mr. Koehler’s] trial could subsequently be used against him, and, therefore, had no incentive to fabricate testimony in exchange for favorable treatment by the Commonwealth.” Koehler-II, 36 A.3d at 138. Again, that “ample evidence” included testimony from both District Attorney McGuinness and Mr. Schrader that a non-prosecution agreement did not exist at the time of Mr. Schrader’s testimony at Mr. Koehler’s trial. In addition, former District Attorney Fleury testifed that he did tell Mr. Schrader he was not considered a suspect, but never told him he would not be prosecuted. Trooper Madigan acknowledged that he may have simply inferred the statement regarding non-prosecution from District Attorney Fleury recorded in his report. Further, Mr. Koehler fails to demonstrate that “there is any reasonable likelihood that the false testimony could have affected the verdict.” As set forth herein, the Commonwealth presented significant evidence independent of Mr. Schrader’s testimony to prove to the jury that it was Mr. Koehler who conspired with, and in fact expressly directed, Mr. Curley to kill Regina Clark and Austin Hopper. For these reasons, Mr. Koehler’s Giglio claim will be denied.
Even if Mr. Koehler demonstrated that Mr. Schrader’s testimony implicated his federal constitutional rights - and here he has not - any error would be harmless in light of the other evidence introduced at his trial. As set forth in Brecht, the harmless error evaluation requires that, in order to grant habeas relief, a federal habeas court must find that a trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). See also Guzman, 661 F.3d at 622-23 (applying Brecht harmless error analysis to a Giglio claim); Rosencrantz, 568 F.3d at 588-92 (same). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (quotation marks omitted); Bond, 539 F.3d at 276. Because the Court is not in grave doubt that the introduction of Mr. Schrader’s testimony had a “substantial and injurious effect or influence” on the jury’s verdict, any error was harmless under Brecht. Thus, for this additional reason, Mr. Koehler is not entitled to habeas relief on this claim.
Turning to the ineffectiveness issue, Mr. Koehler claims that trial counsel was ineffective for failing to do more with this issue related to Mr. Schrader than review Trooper Madigan’s police report. He also asserts that he litigated this ineffectiveness claim in state court in post-conviction review and appeal. (Doc. 1 ¶ 72.) However, upon review and based on the record presented, the Court concludes that this ineffectiveness claim was not, in fact, presented to the state courts. First, in the PCRA proceedings in state court, Mr. Koehler’s counsel, the same counsel representing Mr. Koehler in these habeas proceedings, expressly stated that he was not asserting an ineffectiveness claim associated with the Mr. Schrader issue. Specifically, counsel had the following exchange regarding this issue:
Mr. Moreno: [W]e’re not claiming that Mr. Frawley was ineffective, we’re claiming that the Commonwealth failed to turn over the fact that they had a non-prosecution agreement with Mr. Schrader, that’s what we’re alleging. This isn’t an IAC claim, ineffective assistance of counsel -
Mr. Carusone: I thought I saw it in there, I thought that was imbedded in your, in your petition that there was also an allegation of ineffectiveness against Mr. Frawley for failing to uncover this information. If that’s been withdrawn then –
Mr. Moreno: I don’t think as far as the Schrader agreement goes.
(Doc. 50-89, Notes of Testimony, PCRA Hearing, 5/31/2006 p.m., Part 2, at 89-90 (“PCRA NT 5/31/2006 p.m. Part 2 89-90”).) Second, in the state court opinions provided to the Court, there is no mention, let alone discussion, of an ineffectiveness claim associated with this Mr. Schrader issue. Therefore, the Court deems this ineffectiveness claim procedurally defaulted. Because Mr. Koehler has failed to show, or even argue, cause and/or prejudice for the procedural default, the Court will deny this claim. Nevertheless, even if the Court were to examine the merits of such a claim, because the Court has found the associated Brady claim to be without merit, it follows that counsel cannot be ineffective for failing to raise and pursue a meritless claim. See Strickland, 466 U.S. at 691 (reasoning counsel’s performance cannot be deficient based on a failure to advance meritless claims).
In sum, for the reasons stated above, Mr. Koehler is not entitled to relief on any aspect of this claim, including the issues regarding Mr. Curley and Mr. Schrader, as well as the ineffective assistance of counsel issues.
B. Claim II - The Commonwealth’s use of inconsistent and irreconcilable theories of prosecution between Petitioner and his Co-Defendant violated Petitioner’s right to due process; counsel rendered ineffective assistance by failing to investigate.
In this claim, Mr. Koehler argues that his right to due process under the Fifth and Fourteenth Amendments was violated when the Commonwealth employed inconsistent and irreconcilable theories of prosecution presented first in Mr. Koehler’s trial and later during the penalty phase of the trial of his co-Defendant, Mr. Curley. Specifically, Mr.
Koehler seeks a new trial and sentencing hearing because the jury convicted and sentenced him on the basis of testimony from Mr. Curley that the Commonwealth later discredited during Mr. Curley’s sentencing hearing. After careful review, the Court will deny habeas relief on this claim.
Prior to his separate sentencing hearing on convictions related to the killings of Ms. Clark and Austin Hopper, Mr. Curley testified at Mr. Koehler’s trial. On direct examination by the Commonwealth, Mr. Curley testified that Mr. Koehler told him he was a hit man and encouraged Mr. Curley to pursue the same “career.” (Trial NT 3/28/1996 a.m. Part 1 Vol. VII 18-19.) Mr. Curley thought being a hit man “would be all right” because he was expecting to be hired to kill “people like drug dealers and mob men, people that would hurt innocent people.” (Id. at 20.) As a result, Mr. Curley began a physical training regimen with Mr. Koehler as his mentor, including weight training and sparring. (Id. at 26-27.)
When Ms. Clark and Austin Hopper arrived in Pennsylvania, Mr. Koehler told Mr. Curley that he wanted him to kill them. (Id. at 40.) According to Mr. Curley, when he responded that he did not want to kill them, Mr. Koehler “told me I had to, that, if I didn’t, he’d kill me.” (Id.) Later, Mr. Koehler provided Mr. Curley with a gun he was to use to kill them. (Id. at 42-43.) Mr. Curley remained reluctant, according to his testimony, but Mr. Koehler told him “kill or be killed.” (Id. at 47.) Following this testimony, Mr. Curley described other events, including his botched attempt to shoot Ms. Clark on Stone Jug Road outside the presence of Mr. Koehler, (id. at 54-57), a conversation with Mr. Koehler at the Schrader residence about whether to hit Ms. Clark over the head with a hammer instead of shooting her with the gun, (id. at 63), showing the gun to Mr. Schrader, (id. at 64), and discussing with Mr. Koehler where to bury Ms. Clark, (id. at 65-66).
Even after detailing these events, Mr. Curley testified that he was reluctant to kill Ms. Clark and Austin Hopper, but Mr. Koehler told him he “had to.” (Id. at 67.) Further, after describing in detail the killings of Ms. Clark and Austin Hopper, including Mr. Koehler’s involvement and directives regarding how to carry out the shootings, and where to put the victims’ bodies and weapons used, (id. at 75-120), Mr. Curley testified that he killed the two victims because he was “fearing for [his] life and [his] family’s life, ” (id. at 125). However, on cross-examination, Mr. Curley admitted that Mr. Koehler never told him that he would hurt his family. (Id. at 136.) In addition, when defense counsel asked why he did not give an excuse to Mr. Koehler in order to avoid shooting the victims, Mr. Curley responded, “Because, at that point, I didn’t think there was any excuse to get out of it.” (Id. at 180.)
During the Commonwealth’s closing argument, District Attorney McGuinness described how both Mr. Curley and Mr. Koehler carried out the homicides, and characterized Mr. Curley as “an eighteen year old kid that got sucked in by that guy [Mr. Koehler].” (Trial NT 4/10/1996 p.m. Part 1 Vol. XXVI 18.) Further, in describing one theory of the case to the jury based on Mr. Koehler serving as an accomplice,  District Attorney McGuinness stated, “Of course, the evidence is he solicited, commanded, encouraged and requested William Curley to commit murder.” (Id. at 31.) Finally, when summarizing the Commonwealth’s theory of the case at the end of his argument, District Attorney McGuinness stated,
The conspiracy [between Mr. Koehler and Mr. Curley] is born in that car and it never stops until the two people are dead. The promise is, Mr. Curley, this is your chance to be initiated into the world of hit men, you’ll make a lot of money and you’ll be something special, rather than just an eighteen year old kid, working at County Recovery Service. Only an eighteen year old kid would buy it, unfortunately, this one did.
Then there is the session with driving to Wysox to pump the young eighteen year old boy up, encourage him, get him going, tell him he has to do this, kill or be killed, the whole routine.
(Id. at 36-37; 38.)
For defense counsel’s part, in his closing Attorney Frawley challenged Mr. Curley’s credibility as to Mr. Koehler’s involvement in the murders. (Doc. 50-71, Notes of Testimony, Trial, 4/10/1996 a.m., Part 1, Vol. XXV, at 13-14 (“Trial NT 4/10/1996 a.m. Part 1 Vol. XXV”); (Trial NT 4/10/1996 a.m. Part 2 Vol. XXV 48; 49; 52; 58-59; 60; 65; 70; 72).) By way of example, Attorney Frawley argued:
You really think William Curley thought that John Koehler was a hit man? John Koehler had nothing. But it doesn’t stop there. At a point, he says, I’m afraid, because he’s a hit man and he said he’d kill me and I was afraid for my family. Now, the evidence that suggests that he was afraid for his family is really, really far fetched, I would suggest.
(Trial NT 4/10/1996 a.m. Part 2 Vol. XXV 66-67.) In addition,
William Curley is going to say that he was really afraid. Well, there was [a] point, Ladies and Gentlemen, when William Curley had the gun. John Koehler didn’t. Did he use the gun to arrest John Koehler? Did he use the gun to take Regina and take Austin and remove the two potential victims? No. When John Koehler was at Settler’s Restaurant, where was William Curley? He had a car, he had a gun, he had himself, he had Regina, he had Austin and he was in an area where there were small communities around, places that he could go to. Did this man, in fear, do anything to protect himself and the victims? No. He wasn’t in fear. He pulled that trigger and he pulled the trigger because he wanted to.
(Id. at 68.) Attorney Frawley also generally argued Mr. Curley’s active solitary involvement in the crimes as opposed to a conspiracy ...