United States District Court, M.D. Pennsylvania
John E. Jones III Judge
Joseph William Atwell (“Petitioner” or
“Atwell”), a prisoner currently confined at the
State Correctional Institution at Graterford, Pennsylvania,
files the instant petition (Doc. 1) for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, following affirmance of
his convictions for First Degree Murder and Conspiracy,
Kidnapping and Conspiracy, and related weapon offenses. For
the reasons that follow, the petition for writ of habeas
corpus will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
a jury trial in the Court of Common Pleas of Pike County,
Pennsylvania, Atwell was convicted of First Degree Murder, 18
Pa.C.S.A. § 2502(a.), Kidnapping, 18 Pa.C.S.A. §
2901(a)(3), two counts of conspiracy, 18 Pa.C.S.A. §
903(a)(1), one count of firearms not to be carried without a
license, 18 Pa.C.S.A. §6106(a)(1), and possessing
instruments of crime, 18 Pa.C.S.A. § 907(c). (Doc.
23-19, p. 2, n. 1). In a separate bench trial, he was
convicted of persons not to possess firearms, 18 Pa.C.S.A.
§ 6015(a)(1). (Id.) On June 24, 2010, he was
sentenced to life imprisonment plus an aggregate sentence of
not less than 41 years nor more than 104 years. (Doc. 23-19,
Superior Court, in considering Atwell's appeal from his
Judgment of Sentence, adopted the following factual and
procedural background set forth in the trial court's
In May of 2007, [Joseph Atwell] was operating a substantial
cocaine distribution operation out of his home in Forks
Township, Northampton County. Jesus Rosario-Torres and Norman
“Carolina” Domenech were two of his associates
who aided in this operation. During the early morning hours
of May 31, 2007, Atwell, Torres and Domenech were at
Atwell's house. Atwell and Torres told Domenech that the
three of them needed to go do a job. They drove in
Atwell's car to the wooded entrance of the Bear's Den
Hunting Club in Porter Township, Pike County. Atwell, Torres
and Domenech exited the vehicle and proceeded on foot some
distance away from the road. Atwell and Torres then shot
Domenech multiple times and left him at the scene.
Domenech's body was subsequently discovered by a group of
men visiting the Bear's Den Hunting Club. The resulting
investigation led police to Atwell, who home was
Domenech's last known address[, ] and eventually to
Torres. They were both charged with murder in the first
degree [and related charges].
The Commonwealth filed appropriate notices of its intent to
try Torres and Atwell jointly and its intention to seek the
death penalty in both cases. A jury trial was held over seven
days beginning on April 29, 2010. The jury convicted both
defendants of Murder in the First Degree, Conspiracy to
Commit Murder in the First Degree, Kidnapping and Conspiracy
to Commit Kidnapping. [Atwell was also convicted of
possessing a firearm without a license, persons not to
possess a firearm and possession of an instrumentality of
The penalty phase of the trial occurred over four days. Upon
deliberating for several hours, however, the jury was unable
to reach a unanimous decision and expressed to the trial
court that further deliberations would be unproductive. The
trial court determined that the jury was hopelessly
deadlocked and imposed a sentence of life imprisonment on
both Torres and Atwell for the crime of murder in the first
degree. On the remaining charges, Torres received a total
aggregate sentence of not less than 30 years nor more than 60
years [and Atwell received a total aggregate sentence of not
less than 41 years nor more than 104 years.]
Torres filed a post-sentence motion which the trial court
denied. He then filed a timely notice of appeal on August 12,
2010. [Atwell filed a timely notice of appeal on July 22,
(Doc. 23-19, pp. 2-3). Atwell sought review of the following
issues in his direct appeal to the Superior Court:
1. Did the trial court err and abuse its discretion in
failing to grant Atwell's motion to sever with respect to
both the guilt and penalty phases of trial?
2. Did the trial court err and abuse its discretion in
allowing the Commonwealth to introduce as evidence various
guns and controlled substances?
3. Did the trial court err and abuse its discretion in not
allowing Atwell to acquire medical records of the
Commonwealth's key witness, Megaly Echevarria
(“Echevarria”) pertaining to an emergency mental
4. Did the trial court err and abuse its discretion in not
allowing Atwell to question Echevarria about a recent
emergency mental health hospitalization?
5. Did the trial court err and abuse its discretion in not
allowing Atwell to question Echevarria regarding continue
criminal activity and other incidents of conduct?
6. Did the trial court err and abuse its discretion in
allowing the Commonwealth to introduce as evidence a pistol
that was not the murder weapon?
7. Did the trial court err and abuse its discretion by
refusing to read Atwell's proposed jury instruction
concerning the introduction of gun and drug evidence?
(Doc. 23-16, pp. 36, 37). The Superior Court affirmed
Atwell's Judgment of Sentence on September 13, 2011.
he filed a Petition for Allowance of Appeal seeking review of
only a few of the issues he initially raised. He questioned
“[w]hether the Pennsylvania Superior Court erred by
upholding the conviction of the Petitioner for murder in the
first degree, and various lesser charges, where such
conviction occurred during a joint trial with a co-defendant,
which trial should have been severed both as a result of
prejudice during trial and potential prejudice during the
penalty phase of the proceedings[, ]” and asserted that
“[t]he Pennsylvania Superior Court erred by upholding
the conviction of the Petitioner for murder in the first
degree, and various lesser charges, where such conviction was
based on the admission of numerous items of prejudicial
evidence.” (Doc. 23-20, pp. 7, 10, 15). The
Pennsylvania Supreme Court denied the Petition for Allowance
of Appeal on February 1, 2012. (Doc. 23-21).
timely filed a Post Conviction Relief Act
(“PCRA”) petition pursuant to 42 Pa.C.S.
§§ 9541-9546. Appointed counsel twice amended the
petition. (Doc. 23-26, p. 2). The second amended petition
contained four claims alleging ineffective assistance of
trial counsel. Claims one and two concerned trial
counsels' advice on plea offers. (Id.) The third
issue raised trial counsels' failure to object to the
introduction into evidence of a “White Resistance
Manual.” (Id.) The final issue pertained to
trial counsels' failure to call Echevarria's treating
psychiatrist to challenge her competency and credibility.
(Id.) Following a full hearing, the PCRA court
denied the petition on March 14, 2014. (Doc. 23-26). Atwell
appealed, raising the identical issues he raised in the PCRA
court. (Doc. 23-27, p. 19). On February 13, 2015, the
Superior Court affirmed on the basis of the PCRA court's
opinion. (Doc. 23-29). He sought review of the identical
ineffective assistance of counsel claims in his Petition for
Allowance of Appeal. (Doc. 23-30, pp. 10, 11). The Supreme
Court denied the petition on August 12, 2015. (Doc. 23-31).
Atwell pursued relief in federal court.
ISSUES PRESENTED IN FEDERAL PETITION
instant petition for federal habeas relief was filed on
August 13, 2015. (Doc. 1). Atwell seeks relief on the
1. “Severance of trial from Co-defendant, Jesus
2. “Introduction of controlled substances from prior
arrest which were not part of the allegations against the
[Petitioner] and for which he was already serving
3. “Introduction of a pistol, which was not the Murder
Weapon as well as the story of its hiding by a separate
Co-Defendant, Dawn Atwell. Evidence could NOT be tied to the
[Petitioner].” (emphasis in original).
4. “Introduction of several guns at trail which were
NOT part of the allegations against [Petitioner], and for
which he was already convicted and serving time.”
(emphasis in original).
5. “Not allowing the [Petitioner] to acquire records
pertaining to a recent Mental Health Hospitalization
sustained by the Commonwealth's primary witness, Megaly
6. “[The trial court did] [n]ot allow[ ] the
[Petitioner] to adequately question the Commonwealth's
primary witness, Megaly Echevarria, regarding a recent Mental
7. “[The trial court did] [n]ot allow[ ] the
[Petitioner] to question Megaly Echevarria regarding her
continued criminal activity, and her other relevant incidents
of conduct, after the time of the incidents involved in the
criminal information against the [Petitioner].”
8. “[The trial Court [r]efus[ed] to read a proposed
jury instruction provided by the [Petitioner] concerning the
effect of the Guns and Drugs introduced at trial and how the
Jury could, and could NOT, use such evidence in determining
the guilt or innocence of the [Petitioner].” (emphasis
9. “Counsel misadvised [Petitioner] with respect to
plea deals prior to and during trial.”
10. “Counsel failed to advise [Petitioner] of certain
plea offers before and during trial and instead unilaterally
rejected plea offers without [Petitioner's] concent
11. “Counsel fail[ed] to object to the admission of the
‘White Resistance Manual'.”
12. “Counsel fail[ed] to call Megaly Echevarria's
treating psychiatric doctors to testify at [Petitioner's]
trial, despite being the key witness and having a
questionable psychiatric history.”
(Doc. 1, pp. 9-22).
habeas corpus petition pursuant to 28 U.S.C. § 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).
Petitioner's case is governed by the Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110