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Mullarkey v. Tice

United States District Court, W.D. Pennsylvania

September 5, 2017

JOHN MULLARKEY, JR., Petitioner,
v.
ERIC TICE, et al., Respondents.

          MEMORANDUM and ORDER

          Robert C. Mitchell United States Magistrate Judge.

         John Mullarkey Jr., by his counsel has submitted a petition for a writ of habeas corpus. For the reasons set forth below, the petition (ECF No.1) will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Mullarkey is presently serving a life sentence imposed on June 29, 2009 following his conviction by a jury of first degree murder. (Petition at p.3). An appeal to the Superior Court was filed in which the questions presented were:

Whether the trial court erred in failing to instruct the jury on voluntary manslaughter where there was evidence that the killing was a product of the heat of passion?
Whether the trial court erred in failing to grant a continuance or mistrial at the close of all evidence where newly discovered evidence available first on that day that would have discredited the Commonwealth's chief rebuttal witness?
Whether the trial court erred in admitting the photographs Commonwealth Exhibit 4, a photo of the deceased that was inflammatory, gruesome and the probative value was outweighed by its prejudice? (Answer, Exhibit 4 at p.3).

         On August 10, 2011 the judgment of sentence was affirmed (Answer Ex. 5), and allowance of appeal was denied by the Pennsylvania Supreme Court on February 15, 2012 (Answer Ex. 6 at p.3).

         A post-conviction petition was filed on February 13, 2013 and denied on September 4, 2014. An appeal to the Superior Court was filed in which the issue presented was "whether the trial court erred by denying/dismissing appellant's petition for post-conviction collateral relief without a hearing?" (Answer Exhibit 10 p.2). However, the individual allegations in support of this claim were:

I. Trial counsel was ineffective for failing to move to suppress statements made by the appellant while the appellant was in the hospital and/or for failing to request a jury instruction on the voluntariness of the statements. (p.25)[1]
II. Trial counsel was ineffective for failing to object to statements made by the prosecutor during closing argument (p.32)
III. Trial counsel was ineffective for failing to present evidence of the character of the victim and the nature of the victim's relationship with the appellant such to establish "adequate provocation" to merit a jury instruction on voluntary manslaughter… (p.36).
IV. Trial counsel was ineffective for failing to secure a proper witness to testify as to the severe psychological side effects of the prescription drug Accutane P.39).
V. Trial counsel was ineffective for failing to present an expert witness to testify to the nature of the wounds sustained by the victim and the petitioner and the conclusions and inferences that could be drawn therefrom and/or failing to effectively cross-examine the Commonwealth's expert witness, Dr. Todd Luckasevic (p.43).
VI. Trial counsel was ineffective for failing to investigate and secure a proper expert witness to conduct a multiaxial evaluation of the appellant and to present evidence regarding an Axis II diagnosis of the appellant (p.46).
VII. Trial counsel was ineffective for failing to present character witnesses (p.50).
VIII. Trial counsel was ineffective for failing to present evidence that the appellant was known to carry the knife used to perpetrate the killing on a regular basis (p.52).
IX. Trial counsel was ineffective for failing to present evidence of the tumultuous relationship between the victim and the appellant (p.53).

         On November 16, 2015 the denial of post-conviction relief was affirmed (Answer Exhibit 11). Allowance of appeal to the Pennsylvania Supreme Court was denied on August 3, 2016 (Answer Exhibit 12).

         In the instant counseled petition filed on November 1, 2016, Mullarkey raises the following issues:

I. Trial counsel was ineffective for failing to investigate the circumstances in which the petitioner told a police detective: (1) "If I did something …If someone did something wrong and they were on medication that made them do it, can they still be found guilty?" (2) "The coroner was wrong when he said she had 16 stab wounds. It was more like 2 times… [or] … 3"; "How can someone still be alive to say who stabled them if they were stabbed 16 times?" and (4) "The coroner was wrong when the [sic] stated the size of the knife that was used to stab [the victim] … the knife was 3.5 inches and not what the coroner said it was, " while petitioner was in custody in the hospital and being treated for a laceration on his neck from which he nearly died of exsanguination.
II. Trial counsel was ineffective for failing to file a motion to suppress statements made by the petitioner to a detective while the petitioner was in the hospital based on a violation of the petitioner's Sixth Amendment rights pursuant to Massiah v. United States, 377 U.S. 201 (1964) i.e. because the plainclothes detective continued to interrogate the petitioner after having been notified that petitioner was represented by counsel.
III. Trial counsel was ineffective for failing to file a motion to suppress statements made by the petitioner to a detective while the petitioner was in the hospital pursuant to Miranda v. Arizona, 384 U.S. 466 (1966).
IV. Trial counsel was ineffective for failing to file a motion to suppress statements made by the petitioner to a detective while the petitioner was in the hospital on the basis that the statements were not voluntarily made.
V. Trial counsel was ineffective for failing to object to statements made by the prosecutor during closing arguments.
VI. Trial counsel was ineffective for failing to present evidence via cross-examination or defense witnesses regarding the nature of the relationship between the petitioner and the victim. Alternatively, the trial court erred by failing to instruct the jury on voluntary manslaughter when sufficient evidence had been presented over the course of the trial to support the charge.
VII. Trial counsel was ineffective for failing to present proper expert testimony regarding the prescription drug Accutane.
VIII. The trial court erred by failing to grant a mistrial/continuance when, after the close of the defense's case, but before closing arguments, new evidence that Accutane had been removed from the market had been discovered; alternatively, the state appellate court(s) erred by failing to grant a new trial on this basis.
IX. Trial counsel was ineffective for failing to present a forensic pathologist to testify to the nature of the wounds sustained by the victim and the petitioner, and the inferences that can be drawn therefrom.
X. Trial counsel was ineffective for failing to secure a proper psychological/psychiatric expert witness to conduct a multiaxial evaluation of the petitioner and to testify as to the findings therefrom, particularly regarding the presence and impact of any Axis II diagnosis up to and at the time of the killing.
XI. Trial counsel was ineffective for failing to present character witnesses on behalf of the petitioner.
XII. Trial counsel was ineffective for failing to present witnesses or to cross-examine witnesses to show that the petitioner regularly carried the knife used to perpetrate the killing with him in order to rebut ...

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