United States District Court, W.D. Pennsylvania
Pupo Lenihan United States Magistrate Judge.
Craig Elias (“Elias” or “Petitioner”)
has filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (“Petition”) seeking relief
from his January 22, 2004 judgment of sentence of life
imprisonment after a jury found him guilty of first-degree
murder, two counts of kidnapping, and one count each of
robbery, aggravated assault, simple assault, and abuse of a
corpse. For the following reasons, the Petition
will be denied.
Facts of the Crime
stated by Judge Manning in his Opinion dated December 29,
2005, the facts of the crime are as follows:
. . . . The defendants and the victims, Anthony Brownlee and
Andrew Jones, had known each other for several years prior to
the incidents that gave rise to this case. The defendants
attended Mount Lebanon High School together.
Henkel had known Brownlee since they were both approximately
15 and defendants Lischner and Elias became acquainted with
him through Henkel. Jones was a friend of Brownlee. Brownlee
and Jones supplied Henkel with marijuana and cocaine.
Eventually, the victims and the defendants Henkel and Elias
worked together selling drugs. In February 2002 Henkel leased
220 Sycamore Street in the Mount Washington area of
Pittsburgh to be used by him and his friends to stash drugs
and money and to use for drug transactions. Two safes were
installed in the home by Henkel, Elias and Jones. Henkel,
Elias and Jones all had keys to the house.
On March 22, 2002 Brownlee was with Jones when Jones received
a call on his cell phone. Jones told Brownlee that the call
was from Henkel; that the house on Sycamore Street had been
robbed and that Henkel wanted Jones to meet him at the
Parkway Center Mall. They proceeded to a pool hall at the
mall where Jones received another call from Henkel. When the
call ended, Jones told Brownlee that he had to go to the
Sycamore house and asked him to come along. Reluctantly,
Brownlee agreed and they drove to Sycamore Street.
about the same time, the defendants met Matthew Henkel,
Jared's brother, outside a convenience store to retrieve
duct tape that Matthew had been asked to bring. The
defendants took the duct tape from Matthew Henkel and drove
to Sycamore Street and met Brownlee and Jones, who had
arrived several minutes earlier. All five spent some time
discussing the safes that were discovered missing from the
residence and speculating a[s] to who may have taken them.
Brownlee, Elias and Henkel then went upstairs to where the
safes had been. After a short discussion, Henkel returned
downstairs and Elias asked Brownlee who he thought had stolen
the safes. When Brownlee responded that he did not know,
Elias punched him, knocking him to the floor. Elias jumped on
Brownlee and began to strike him about the head and upper
was then thrown or dragged down the steps and placed in the
kitchen, where Jones was being held face down on the floor by
Lischner. Henkel and Lischner bound Jones' hands and feet
with duct tape. Elias did the same to Brownlee. The victims
were both then carried upstairs and placed in separate
bedrooms. Over the course of the next several hours, Brownlee
was interrogated by all three defendants. Elias would beat
him and threaten him, demanding that he tell them where the
safes were. When he would leave, Henkel and Lischner would
question him. Three times, Elias choked him with a rope,
nearly to unconsciousness. Eventually, Brownlee convinced
them to allow him to call a friend, Scott Carlin, and have
him retrieve $4, 000.00 that Brownlee had hidden at his home
and bring it to Sycamore Street. The defendants agreed and
assured Brownlee that if he gave them the money, they would
allow him and Jones to leave.
called Carlin and asked him to retrieve the money. Carlin
did, and left the money in the car that Jones and Brownlee
had driven to Sycamore Street. It was retrieved by one of the
defendants. After receiving the money, however, they refused
to allow Brownlee and Jones to leave. More money was
demanded. Brownlee told the defendants that he had more money
buried in his basement, but that he would have to get it
himself. Elias said that he did not believe him and resumed
beating him. At one point, he lifted Brownlee up with a rope
wrapped around his neck. Brownlee feigned passing out and
Elias stopped choking him. When Elias told him that if they
did not get the money, no one would be able to help him,
Brownlee offered to go get the money from his basement. Elias
left the bedroom and Lischner came in and removed the duct
tape. He told Brownlee that he would be leaving with Henkel
to get the money.
Sometime prior to Lischner unbinding Brownlee Jared Henkel
called his brother Matthew and asked him to borrow a pick-up
truck and bring it to the Sycamore residence. While Matthew
Henkel was waiting for his friend to drop off the truck, he
received another call from his brother who asked that he
obtain bags of cement. Matthew Henkel telephoned his father
to ask for money to purchase the bags of cement but his
father refused to provide the money. Eventually, the friend
arrived with the pick-up truck in front of that address. He
entered the residence where he saw Jared Lischner and Craig
Elias. He observed Craig Elias repeatedly traveling up and
down the stairs. He also noted that Elias had rubber gloves
on. At one point, his brother Jared came down the steps
holding one of Andy Jones' shoes. Jared Henkel took it
outside and compared it to a shoe print on the snow outside a
broken back window. It appeared that the defendants were
trying to determine if the window had been kicked out from
inside or outside of the house. He recalled his brother
commenting that “it was an inside job.” During
his time in the house, Matthew Henkel saw defendants,
Lischner and Elias, frequently travel up and down the steps.
He said, however, that his brother remained with him on the
first floor throughout the entire time. The prosecutor then
Q: What happened?
A: My brother came over to me and stated that Andy was too
dangerous to let go and he was taking Tony out, but Andy
would be too dangerous, he would come after me, come after
the family, and that we would never be able to be safe.
Q: Where were the other defendants when your brother started
making these statements to you?
A: They were standing right there.
Q: Tell us everything you remember about what anybody,
yourself included, did or said when defendant Henkel began
this topic, began making those statements.
A: I agreed with him as well did Craig and Jared Lischner. We
were all in agreement.
Q: You agreed that what?
A: That Andy was a very dangerous person, that if he was let
go, he would come back to seek revenge.
Q: Tell us anything else that you remember about the
A: I remember stating that they couldn't kill both of
them and that they needed to let Tony go. He wasn't a
risk. He wasn't going to go to the Police. He was a drug
dealer. I said that. I said that I didn't think Tony was
a threat, but I did agree that Andy was.
Q: Do you remember what defendant Elias was saying during
A: He was in agreement.
Q: Do you remember what defendant Lischner said?
A: He was also in agreement.
After this conversation ended, Jared Henkel pretended that he
received a phone call. He then had Matthew Henkel open and
shut the front door to make it appear as if Matthew Henkel
had just arrived. Jared Henkel then went up and returned with
Anthony Brownlee. While Jared Henkel was upstairs getting
Brownlee, Craig Elias told Matthew Henkel to get weights from
his father's house and bring them back with him. He then
went outside and, a short time later, his brother and Anthony
Brownlee followed and entered the pick-up truck. Defendants
Lischner and Elias were still in the house, with Andrew
Jones, when Matthew Henkel left the Sycamore Street address.
Matthew Henkel drove to his house where he, his brother and
Anthony Brownlee entered. His brother and Anthony Brownlee
went upstairs while he went downstairs, retrieved the 50
pound weight, took it out to the pick-up truck, and then
drove back to the Sycamore Street address. He parked in front
of the street and then attempted to enter the front door but
found it locked. He knocked and Craig Elias let him into the
house and asked him to come upstairs because he had to show
him something. Henkel followed him upstairs and observed
Andrew Jones lying on his left side in the one bedroom. His
legs and hands were bound and he had a plastic bag over his
face. Craig Elias told him he had to wrap the body. Matthew
Henkel asked Elias “is he alive, ” to which Elias
responded, “what the fuck do you think.” They
then wrapped Andrew Jones' body in garbage bags. Elias
told Henkel to bring the pick-up truck around to the side of
the house. He did so, and they loaded the body of Andrew
Jones into the back of the pick-up truck.
At approximately the same time that Matthew Henkel had
arrived at the Sycamore Street address with the white pick-up
truck the first time, defendant Elias called a friend,
Michael Latusek, and asked him if he would help him burn a
car for insurance. Latusek testified that he and Elias had
discussed burning their cars for the insurance money in the
past, although they never actually did it. Latusek asked to
meet with Elias in person to discuss this rather than talking
about it over the phone. Latusek then drove to his apartment
located on Mary Street on the Southside. As he approached, he
saw Jared Lischner walking on the sidewalk a few feet from
his house. He stopped and picked Lischner up and asked where
Elias was. Lischner indicated that he was at a friend's
house. Lischner asked Latusek to help him burn a car that had
already been taken to a wooden area. Latusek agreed to allow
Lischner to use his car but did not want to go with him.
Latusek asked Lischner to drop him off at a friend's
house while Lischner left to burn the car. According to
Latusek, he was dropped off at his friend's house while
Lischner took his vehicle for approximately an hour. When
Lischner returned with Latusek's car, Latusek noticed the
odor of gasoline or a similar substance emanating from
Lischner. Latusek then drove with Lischner and his friend to
Mt. Lebanon where Lischner was dropped off at Jared
After Elias and Matthew Henkel had loaded Andrew Jones'
body in the back of the pick-up truck, Matthew Henkel drove
the pick-up truck and followed Elias in his car to the
Southside where Elias dropped the car off. Elias then got in
the pick-up truck and told Matthew Henkel to drive toward
Parkway. They stopped at a Lowe's Home Improvement Center
located in Robinson Towne Center. Elias gave Matthew Henkel
some money and instructed him to go into the Lowes and buy
chains and locks. Elias did the same, although they checked
out separately. Their appearance at the Lowes was recorded on
a surveillance camera. When they left the Robinson Towne
Center, they drove through West Virginia to Steubenville,
Ohio. During this drive, Matthew Henkel heard Craig Elias
speaking on the phone with someone. When that call ended,
Elias turned to Henkel and said, “it's been
burned.” Further on during the drive, Matthew Henkel
asked Elias if “Andy had said anything.” Craig
Elias stated that Andy said, “Craig, you are killing
me.” Elias told Matthew Henkel that he responded,
“I know.” Upon arriving at the Steubenville area,
they found a bridge that both agreed was a good place to
dispose of Mr. Jones' body. They drove across the bridge
and looked for an isolated area in Steubenville. When they
found it, they exited the vehicle and wrapped Jones' body
with the chains and also used the chains to affix the 50
pound weight to his body, sitting it on his chest. They then
returned to the bridge and, when it was sufficiently
deserted, threw Andrew Jones into the Ohio River.
Shortly after his release, Anthony Brownlee contacted Andrew
Jones' family trying to locate him. Eventually, Mr.
Jones' disappearance was reported to the police as was
the involvement of the three defendants in that
disappearance. They were arrested and charged with
Kidnapping, Robbery, and other offenses involving the
abduction of Brownlee and Jones. When Andrew Jones' body
was discovered in the Ohio River, the charge of Criminal
Homicide was added. During the investigation into the
disappearance of Andrew Jones and the abduction of Andrew
Brownlee, Matthew Henkel agreed to become a cooperating
witness and lead the police to the area where he and Craig
Elias disposed of Andrew Jones' body.
(Resp't Ex. 14, ECF No. 11-6, pp.8-14) (internal
citations to record omitted).
Relevant Procedural Background
October 14, 2003, Petitioner, Jared Henkel and Jared
Lishner appeared before Judge Jeffrey A. Manning
and proceeded to a jury trial. Petitioner was represented at
trial by Attorney Duke George (“Mr. George”),
Jared Henkel was represented by Attorney Thomas R. Ceraso
(“Mr. Ceraso”), and Jared Lischner was
represented by Attorney Patrick J. Thomassey (“Mr.
Thomassey”). The Commonwealth was represented by
Assistant District Attorney Thomas F. Merrick (“ADA
Merrick”). On October 21, 2003, the jury returned its
verdict finding Petitioner guilty of first-degree murder, two
counts of kidnapping, and one count each of robbery,
aggravated assault, simple assault and abuse of a
corpse. (Resp't Exs. 1-6, ECF Nos. 11-1,
11-2.) On January 22, 2004, all three defendants were
sentenced to an aggregate judgment of sentence of life
imprisonment. (Resp't Ex. 8, ECF Nos. 11-3, 11-4.)
16, 2004, Petitioner filed a direct appeal through Attorney
Caroline M. Roberto (“Attorney
Roberto”). (Resp't Ex. 12, ECF No. 11-5,
pp.13-33.) Judge Manning issued his Pa. R.A.P. 1925(a)
Opinion on December 29, 2005. (Resp't Ex. 14, ECF No.
11-6.) Petitioner's appeal was docketed in the
Pennsylvania Superior Court at 174 WDA 2004, (Resp't Ex.
15, ECF No. 11-7, pp.1-7), and, on June 14, 2006, during the
pendency of the appeal, Petitioner, along with Henkel and
Lischner, filed a petition for remand pursuant to Rule 720 of
the Pennsylvania Rules of Criminal Procedure and a motion for
stay during pendency of the petition for remand. (Resp't
Exs. 16 & 17, ECF No. 11-7, pp.8-18.) Attached to each of
their petitions and motions was a signed and sworn affidavit
from Diane Henkel, the mother of Matthew and Jared, wherein
she attested that she hypnotized Matthew in June or early
July of 2003, and that while Matthew was hypnotized, she
asked him a number of questions about the kidnapping and
murder in order to help him accept his memories and come to
terms with the fact that it was not his fault. Jared Henkel
alleged that his brother Matthew's story to investigators
drastically changed after he was hypnotized. The Pennsylvania
Superior Court denied the petitions and motions without
prejudice, thereby allowing them to raise the hypnotism issue
anew in their briefs and at oral argument. (Resp't Ex.
18, ECF No. 11-7, p.19.) After reviewing the briefs, the
Superior Court remanded the matter by Order dated March 2,
2007, instructing the trial court to conduct an evidentiary
hearing to determine whether Matthew Henkel was hypnotized by
his mother and, if he was, to determine when the hypnosis was
induced and what specific portions of Matthew's testimony
were elicited by the hypnosis. (Resp't Ex. 22, ECF No.
evidentiary hearing was held before Judge Manning on June
5-7, 2007, during which time the trial court heard testimony
from, among others, Matthew, his mother, and various experts
on hypnotism. (Resp't Exs. 23-28, ECF Nos. 12-3 - 12-10,
13-1 - 13-8.) Following the hearing, Judge Manning issued an
Addendum to his Pa. R.A.P. 1925(a) Opinion, in which he found
that Matthew Henkel had not been hypnotized by this mother
after the evidence demonstrated that “Mrs. Henkel had
no training or experience in the practice of inducing
hypnotic trance in others.” (Resp't Ex. 29, ECF No.
14-1.) Elias, Henkel and Lischner each filed briefs
challenging the trial court's factual findings, and in a
Memorandum issued on November 14, 2007, the Pennsylvania
Superior Court affirmed the judgment of sentence of all three
men. (Resp't Ex. 33, ECF No. 14-4, pp.11-26.) Their
application for reargument en banc was denied on January 23,
2008. (Resp't Ex. 35, ECF No. 14-8, p.1.) On February 22,
2008, Petitioner, through Attorney Roberto, filed a Petition
for Allowance of Appeal (“PAA”) in the Supreme
Court of Pennsylvania docketed at 115 WAL 2208. (Resp't
Exs. 36, 37, ECF Nos. 14-8 - 14-12.) On August 25, 2008, the
Supreme Court denied the PAA. (Resp't Ex. 38, ECF No.
March 31, 2009, Petitioner filed a pro se petition
pursuant to Pennsylvania's Post Conviction Relief Act
(“PCRA”). (Resp't Ex. 39, ECF Nos. 15-1,
15-2.) On July 8, 2009, Petitioner, through Attorney Roberto,
filed an Amended PCRA Petition. (Resp't Ex. 40, ECF No.
15-3, pp.1-7.) On January 11, 2010, Petitioner, through
Attorney Roberto, filed an Amended PCRA Petition to Join
Co-Defendant Lischner's Selected Issues. (Resp't Ex.
43, ECF No. 15-3, pp.13-16.) An evidentiary hearing was held
for all three defendants on January 31, 2011. (Resp't Ex.
48, ECF No. 15-6 - 15-8.) On February 17, 2012, Judge Manning
filed his Opinion, wherein he denied Petitioner PCRA relief.
(Resp't Ex. 50, ECF No. 15-6, pp.16-33.)
March 6, 2012, Petitioner, through Attorney Roberto, filed a
Notice of Appeal, which was docketed in the Pennsylvania
Superior Court at 438 WDA 2012. (Resp't Exs. 51, 54, ECF
Nos. 15-10, 15-11 pp.10-14.) On August 22, 2012, Judge
Manning issued an Order of Court which adopted his February
17, 2012 Opinion and its reasons for denying relief on the
claim for which Petitioner was granted an evidentiary
hearing. (Resp't Ex. 53, ECF No. 15-11, pp.8-9.) On
October 23, 2013, the Pennsylvania Superior Court issued a
Memorandum Opinion affirming the denial of PCRA relief.
(Resp't Ex. 58, ECF No. 16-7.) Application for reargument
en banc was denied on December 24, 2013. (Resp't Ex. 60,
ECF No. 16-9, p.1.) On January 22, 2014, Petitioner, through
Attorney Roberto, filed a PAA in the Pennsylvania Supreme
Court, (Resp't Ex. 62, ECF Nos. 16-10, 16-11), which was
docketed at 47 WAL 2014. (Resp't Ex. 61, ECF No. 16-9,
pp.2-4.) The Pennsylvania Supreme Court denied the PAA on May
15, 2014. (Resp't Ex. 64, ECF No. 16-12, p.2.)
through Attorney Chris Rand Eyster, filed the instant
Petition for Writ of Habeas Corpus on October 2, 2014. (ECF
No. 1.) Respondents filed their Answer on December 3, 2014.
(ECF Nos. 10-16.) Petitioner filed a Brief in Support of his
Petition on September 30, 2015. (ECF No. 31.) The matter is
now ripe for review.
Standard of Review
to the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal habeas court may overturn a
state court's resolution of the merits of a
constitutional issue only if the state court decision was
“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). The Supreme Court of the United States, in
Williams v. Taylor, 529 U.S. 362 (2000), discussed
the analysis required by § 2254(d)(1):
[Under the “contrary to” clause], a federal
habeas court may grant the writ if the state court arrives at
a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id. at 1498. The Third Circuit Court of Appeals,
consistent with the Williams v. Taylor
interpretation, set forth in Matteo v. Superintendent,
SCI-Albion, 171 F.3d 877 (3d Cir. 1999), cert.
denied 528 U.S. 824 (1999), a two-tier approach to
reviewing § 2254(d)(1) issues:
First, the federal habeas court must determine whether the
state court decision was “contrary to” Supreme
Court precedent that governs the petitioner's claim.
Relief is appropriate only if the petitioner shows that
“Supreme Court precedent requires an outcome contrary
to that reached by the relevant state court.”
O'Brien [v. Dubois], 145 F.3d , 24-25 [1st
Cir. 1998)]. In the absence of such a showing, the federal
habeas court must ask whether the state court decision
represents an “unreasonable application” of
Supreme Court precedent; that is, whether the state court
decision, evaluated objectively and on the merits, resulted
in an outcome that cannot reasonably be justified. If so,
then the petition should be granted.
Id. at 891. The phrase “clearly established
Federal law, ” as the term is used in Section
2254(d)(1) is restricted “to the holdings, as opposed
to the dicta of [the United States Supreme Court] decisions
as of the time of the relevant state-court decision.”
Williams, 529 U.S. at 365. Under the
“unreasonable application” clause,
a federal habeas court may not grant relief simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.
Id. If a petitioner is able to satisfy the
requirements of § 2254(d)(1), then the state court
decision is not entitled to deference under AEDPA and the
federal habeas court proceeds to a de novo
evaluation of the constitutional claim on the merits. See
Tucker v. Superintendent Graterford SCI, 677 F.
App'x 768, 776 (3d Cir. 2017) (citing Panetti v.
Quarterman, 551 U.S. 930, 953 (2007) (“When . . .
the requirement set forth in § 2254(d)(1) is satisfied[,
] [a] federal court must then resolve the claim without the
deference AEDPA otherwise requires.”). Indeed, the
Third Circuit recently explained that,
[w]hile a determination that a state court's analysis is
contrary to or an unreasonable application of clearly
established federal law is necessary to grant habeas relief,
it is not alone sufficient. That is because, despite applying
an improper analysis, the state court still may have reached
the correct result, and a federal court can only grant the
Great Writ if it is “firmly convinced that a federal
constitutional right has been violated, ”
Williams, 529 U.S. at 389, 120 S.Ct. 1495. See
also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147,
153 L.Ed.2d 301 (2002) (“[w]hile it is of course a
necessary prerequisite to federal habeas relief that a
prisoner satisfy the AEDPA standard of review . . . none of
our post-AEDPA cases have suggested that a writ of habeas
corpus should automatically issue if a prisoner satisfies the
AEDPA standard”). Thus, when a federal court reviewing
a habeas petition concludes that the state court analyzed the
petitioner's claim in a manner that contravenes clearly
established federal law, it then must proceed to review the
merits of the claim de novo to evaluate if a constitutional
violation occurred. See Lafler v. Cooper, 566 U.S.
156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
Vickers v. Superintendent Graterford SCI, 858 F.3d
841, 848-89 (3d Cir. 2017) (internal footnote omitted).
AEDPA further provides for relief if an adjudication
“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.” 28
U.S.C. § 2254(d)(2). Under § 2254(d)(2), a state
court decision is based on an “unreasonable
determination of the facts” if the state court's
factual findings are “objectively unreasonable in light
of the evidence presented in the state-court proceeding,
” which requires review of whether there was sufficient
evidence to support the state court's factual findings.
See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Within this overarching standard, of course, a petitioner may
attack specific factual determinations that were made by the
state court, and that are subsidiary to the ultimate
decision. Here, § 2254(e)(1) comes into play,
instructing that the state court's determination must be
afforded a presumption of correctness that the petitioner can
rebut only by clear and convincing evidence. Lambert v.
Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).
raises two claims in his Petition. First, he claims that the
state court's refusal to order a competency hearing or a
psychiatric examination of Commonwealth witness Matthew
Henkel, and its denial of his request to access Matthew
Henkel's psychiatric records, violated his rights under
the Sixth and Fourteenth Amendments to the United States
Constitution. Second, Petitioner claims that his trial
counsel provided ineffective assistance when he advised him
not to testify rendering his waiver of that right unknowing
and unintelligent. Respondents concede that these two claims
have been fully exhausted in the state courts and therefore
are not procedurally defaulted. As such, they will be
reviewed pursuant to AEDPA's extremely deferential
standard of review set forth supra.
Competency and psychiatric records of ...