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Rush v. Beard

United States District Court, E.D. Pennsylvania

August 1, 2018

LARRY RUSH, Petitioner,
v.
JEFFREY BEARD, et al., Respondents.

          Jennifer L. Givens, Esq. Cristi Charpentier, Esq. On behalf of Petitioner

          John W. Goldsborough, Esq. Thomas W. Dolgenos, Esq. District Attorneys On behalf of Respondents

          OPINION

          JOSEPH H. RODRIGUEZ, DISTRICT JUDGE [1]

         This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 by Petitioner Larry Rush (“Petitioner”), an inmate sentenced to death and confined at SCI-Greene in Waynesburg, Pennsylvania. (Pet., ECF No. 1.) On December 14, 2010, Petitioner filed his “Memorandum of Law in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.” (“Petr's Mem., ” ECF No. 86.) Respondents filed their “Response to Petition for Writ of Habeas Corpus” on October 26, 2011. (“Respondents' Brief, ” ECF No. 105.) Petitioner filed “Petitioner's Reply in Further Support of Pet. for Writ of Habeas Corpus” on July 16, 2012. (“Petr's Reply, ” ECF No. 116.) Respondents filed “Sur-reply to Petitioner's Reply” on September 6, 2012. (“Respondents' Sur-reply, ” ECF No. 118.) Pursuant to Federal Rule of Civil Procedure 78, the Court now decides the petition on the record and briefs, however, reserving Ground Nine of the petition for determination after an evidentiary hearing. For the reasons discussed below, the Court affirms the conviction.

         I. FACTUAL BACKGROUND

         On June 28, 1988, a jury convicted Petitioner of committing murder on May 8, 1987, in Philadelphia, Pennsylvania. (Respondents' Brief, Ex. L, ECF 105-57 at 121-22.)[2] The trial was held in the former Career Criminal Program of the Court of Common Pleas of Philadelphia, presided over by the Honorable James D. McCrudden. (Id. at 31.) Judge McCrudden had also presided over two criminal cases against Petitioner, which were “aggravator cases” with respect to the death penalty in this matter; sexual assault and robbery of Annamay Little and Denise Kellar on April 15, 1987, in a Rittenhouse Square florist shop; and the stabbing of Edna Nitterauer on May 4, 1987, in a Chestnut Hill bookstore. (Id. at 22-24 and n. 11, 12.) On direct appeal of Petitioner's conviction, the Pennsylvania Supreme Court made the following finding of facts, which are accepted as true unless rebutted by clear and convincing evidence, pursuant to 28 U.S.C. § 2254(e)(1). Commonwealth v. Rush (“RUSH I”), 646 A.2d 557 (Pa. 1994).

         In the afternoon of May 8, 1987, Veranica[3] James Hands had planned to meet her husband and friends at a shopping mall. She did not arrive as planned, so her husband went looking for her. He went to their apartment on the upper two floors of a three-story duplex on Federal Street in Philadelphia. He was surprised to find the door to the building and the door to their apartment unlocked. On the stair landing of the third-floor bedroom, he found his wife's body, clad in a bathrobe and partially covered with a blanket and pillows. She was eight-and-a-half months pregnant and had been bound, gagged and stabbed to death. She had more than fifty stab wounds, some puncturing vital organs and fatally penetrating her unborn baby.

         The third floor of the apartment had been partially ransacked. Pocket change, paper currency, an imitation Rolex watch, Mrs. Hands' high school ring, gold chain bracelet, other watches, rings and jewelry, and a pair of fingerless sporting gloves were missing from the bedroom. There were no signs of forcible entry into the apartment. A bedroom window was open. Typically, the window was only opened when Mrs. Hands looked out to see who was ringing the doorbell.

         Late on the day of the crime, Rush appeared at his acquaintance's, Jerry McEachin, residence. Rush seemed nervous and scared. He showed McEachin a “MAC” card bearing Mrs. Hands' name, a high school ring bearing her initials, other jewelry, coins and paper currency, and a pair of fingerless sporting gloves.

         Rush repeatedly looked out the window, telling McEachin he was looking to see if the police were after him. Rush said he just stabbed his cousin in her apartment on Federal Street, and he had stabbed a woman in the past. McEachin saw blood on Rush's shoelaces. Rush explained that he washed the blood from the knife after the stabbing and put it back in its place in the victim's apartment.

         That day, police learned that Rush had been living on the first floor of the building where the victim lived. They went to Rush's mother's home, and when Rush approached and saw the police, he fled. The next day, around 2:00 a.m., McEachin saw Rush hiding under a truck in front of McEachin's home. Rush asked whether any police were in the vicinity. Rush and McEachin then tried to use Mrs. Hands' MAC card, and they visited several jewelers to sell some of her jewelry. Later, Rush threw his shoes in a dumpster and told McEachin he hoped he had not left any bloodstains or footprints at the crime scene.

         Police recovered the jewelry Rush sold and identified it as belonging to Mrs. Hands. Rush's fingerprints were found on containers where Mrs. Hands kept her pocket change in her bedroom. Rush's thumbprint was found in blood on a doorjamb by Mrs. Hands' body.

         Harold James, a former police officer, was the victim's father and Rush's second cousin. At trial, he testified that after he learned of his daughter's murder, he visited the crime scene. He then went to the police station to speak to a homicide detective. While waiting, he encountered Aaron Pringle, who lived in the first-floor apartment of Mrs. Hands' building. Pringle told James that Rush had also been living on the first floor. James spoke with a detective and told him that Rush should be the prime suspect. James' testimony contained no reference to Pringle saying anything incriminating about Rush.

         A police officer testified that when Rush was arrested, he was found hiding behind some clothes in a closet at the home of one of his friends. Rush did not know that the arrest was for a different crime. At trial, to counter the impression that Rush was hiding from the police because he was guilty of killing Mrs. Hands, defense counsel asked the officer what crime he was there to arrest Rush for, and the officer responded that it was for stabbing a lady in a bookstore on Germantown Avenue. Rush had instructed his counsel to elicit this testimony and insisted that he do so. Defense counsel brought this to the attention of the court out of concern for the effect on the jury of evidence of an extraneous crime. The court instructed counsel to proceed on Rush's directive. Rush was convicted and sentenced to death.

         On direct appeal, the Pennsylvania Supreme Court held that the evidence was more than sufficient to establish guilt beyond a reasonable doubt for first degree murder, including Petitioner's detailed admissions to McEachin, his possession of the victim's property, and his bloody fingerprint at the crime scene.

         The Pennsylvania Supreme Court also held the trial court did not err in admitting testimony of Petitioner's 1979 conviction for robbery, burglary, aggravated assault and attempted rape. The victim of the crime was permitted to describe the attack to establish the identity of the perpetrator of the crimes because the crimes were so similar “that logically the same person has committed both acts.” RUSH I, 646 A.2d at 560.

In both cases the intruder gained non-forcible entry, ostensibly by ringing the doorbell. Both victims were neighbors of the appellant and had only recently been introduced to him. Both were attacked while alone in their third floor bedrooms in apartment buildings where appellant resided on the first floor. The victims, both of whom were black, female, and relatively young, had their underclothing or nightclothes pulled from them. Both were then physically restrained and attacked with knives obtained from their own apartments. The assailant repeatedly stabbed both victims until death (or, in the 1979 attack, apparent death) occurred. Mrs. Hands was stabbed more than fifty times, and the victim of the previous attack was stabbed eight times. In each case the apartment was ransacked, yet the only valuables taken were small items from the bedroom, i.e., coins, watches, etc. In each case the perpetrator cleaned the borrowed knife and left it at the scene of the crime…. The trial court carefully instructed the jury as to the limited purpose, to wit, identification of the perpetrator, for which evidence of the prior crime could be considered.

Id. at 561.

         Petitioner also challenged admission of Harold James' testimony that he “told Detective Morton that as a result of my conversation with Pringle that [Rush] should be the prime suspect.” Id. at 562. The court held Petitioner was not prejudiced by his counsel's failure to object to the testimony.

         Petitioner also argued his counsel was ineffective for failing to object to the prosecutor's “very brief remark” during closing argument “that the specific intent to kill necessary to a conviction for murder of the first degree could be inferred from the severity of the victim's wounds, the fact that the victim was bound and gagged, and testimony given by the victim of the stabbing that appellant committed in 1979.” Id. The court held that defense counsel had in fact objected that the evidence of the 1979 crime could only be considered for identity of the perpetrator, and the trial court gave a curative instruction.

         Petitioner also contended that his counsel should have objected to the prosecutor's statement in closing argument “that Harold James, the victim's father, told a police detective that [Rush] should be regarded as the prime suspect because, as soon as he heard that appellant had been residing on the first floor of the victim's building, he recognized that the crime bore appellant's ‘signature.'” Id. at 563. Petitioner claimed no evidence was introduced that James knew of the similar crime in 1979. Therefore, it was only speculation that James “recognized the present crime as bearing the signature of the same perpetrator.” Id. The court held the prosecutor's comment that James recognized Rush's signature was a reasonable inference based on evidence that James had been a Philadelphia police officer for twenty-two years, and he was Rush's second cousin. Id.

         Petitioner also alleged ineffective assistance of trial counsel for eliciting on cross-examination that when police arrested him, it was for an unrelated stabbing attack. The court rejected this claim because Petitioner had insisted that his counsel elicit this testimony, and the court instructed counsel to follow his client's directive. Although the strategy may have been unwise, it was not unreasonable because it served to dispel the inference that Petitioner was hiding from the police because he was guilty of killing Mrs. Hands.

         Petitioner further argued that his counsel was ineffective during jury selection for failing to request that the prosecution provide reasons for its peremptory challenges against black jurors. The court, however, noted that counsel had no right to an explanation for the prosecutor's use of peremptory challenges without first establishing a prima facie case of discrimination, and nothing in the record indicated that counsel could have established a prima facie case. When the issue was raised in post-verdict motions, the trial court specifically recalled that black jurors were selected, although the record did not disclose the racial composition of the jury.

         At sentencing, the jury found two aggravating circumstances in support of the death penalty and no mitigating circumstances. The aggravating circumstances were that Petitioner committed murder during a felony, and he had a significant history of felony convictions involving the use or threat of violence to a person. The Pennsylvania Supreme Court found there was sufficient evidence to establish the aggravating factors beyond a reasonable doubt because the present murder was committed in the course of a burglary and robbery, and Petitioner had an extensive record for crimes of violence to a person, including the 1979 offense and a number of additional convictions for robbery, kidnapping, and aggravated assault, which were introduced at the penalty phase. Finally, the court found “no excess or disproportionality in the sentence imposed” or any basis to find “that the sentence was the ‘product of passion prejudice or any other arbitrary factor.'” Id. at 565. Thus, Petitioner's conviction and sentence were affirmed on direct appeal.

         II. PROCEDURAL HISTORY

         Richard Brown, Esq., represented Petitioner at trial and in post-verdict motions[4] filed on July 11, 1988. (Respondents' Brief, Ex. O, ECF No. 105-61.) After oral argument, the trial court denied all post-verdict motions on March 30, 1990. (Id. at 14.) In a pro se communication with the PCRA court on March 28, 1991, Petitioner wrote “stop all decisions on my cases until I can find me a lawyer that will help me to prove to you and the world that 90% of my notes of testimonies has been changed by Hon. James D. McCrudden, Richard L. Brown, Esq., Charles J. Cunningham, III, Esq. and the Stenographer.” (Pet., ECF No. 87-1, Appendix at 271-72.)[5] On April 12, 1991, the trial court held a hearing about inaccuracies of the notes of testimony, and the notes were preliminarily found inaccurate as to Petitioner's arraignment. (Respondents' Brief, Ex. P, ECF No. 105-62 at 3.) A reconstruction evidentiary hearing was held on June 27, 1991, and the record was corrected to reflect that Petitioner was arraigned on murder, burglary, robbery and possession of instrument of a crime - weapon. (Respondent's Brief, Ex. R, ECF No. 105-64 at 1.)[6]

         The trial court filed its opinion, denying relief on August 29, 1991. (Pet., App. I at 18.) Petitioner filed a notice of appeal and then filed his brief on direct appeal to the Pennsylvania Supreme Court on April 28, 1993. (Respondents' Brief, Exhibits S, T, ECF Nos. 105-65, 105-66.) Petitioner's counsel, Louis T. Savino, was permitted to withdraw, and new counsel, Michael Floyd, was appointed. (Petr's Mem., ECF No. 87-2, Appx. at 287, 289, 295.)[7] Petitioner then wrote to the Supreme Court about his dissatisfaction with Floyd. (Id. at 298-99.) He wanted Floyd to present his claim that 90% of his notes of testimony had been changed. (Id.) Floyd responded in a letter to the court, copied on Petitioner, that Petitioner's allegation of forged notes of testimony was “absolutely asinine, ” and he did not allow his clients to dictate trial strategy or raise frivolous issues on appeal. (Id. at 301.) On June 18, 1993, Petitioner filed a petition in Pennsylvania Supreme Court to quash Floyd's brief and proceed pro se. (Id. at 302-10.) The Court forwarded Petitioner's motion to Floyd. (Id. at 313-14.) Attorney Michael Floyd represented Petitioner on direct appeal. (Respondents' Brief, Ex. U, ECF No. 105-67.)

         As discussed above, on August 23, 1994, the Pennsylvania Supreme Court affirmed the conviction and sentence on direct appeal. RUSH I, 646 A.2d 557 (Pa. 1994). Petitioner filed a pro se PCRA petition in January 1997.[8] (Respondents' Brief, Ex. V, ECF No. 105-68.) The PCRA court appointed Attorney David Rudenstein to represent Rush. (Petr's Mem., ECF No. 87-6, Appx. at 615-16.) Rudenstein wrote to Petitioner, advising him that the issues Attorney Savino had raised on direct appeal could not be raised again in the PCRA court. (Id.) He advised Petitioner they did not have any good “guilt phase” issues. (Id.) He recommended a psychological examination for Petitioner's penalty phase issues. (Id.)

         Apparently not having received Rudenstein's letter, Petitioner wrote to the Administrative Judge of the Court of Common Pleas because he had not heard from the court about appointment of counsel or regarding any of the PCRA petitions that he filed or that the Death Penalty Resource Center filed on his behalf. (Id. at 610-12.) Petitioner wished to pursue the claim that the notes of testimony had been altered. (Id.) Petitioner also learned that Rudenstein had been appointed, and he wrote to Rudenstein declining his representation. (Id. at 618-20.) Petitioner continued to insist that the notes of testimony had been altered, that Jerry McEachin had been bribed by the police to testify, and Petitioner's bloody fingerprint next to the corpse had been falsified. (Id. at 619.)

         Petitioner wrote to Rudenstein about the issues he wanted to raise, referring to the pro se PCRA motion he had filed, but he did not explain the basis for his belief that the notes of testimony had been altered in such a way that all his appeals up to that time were based on an inaccurate record. (Respondents' Brief, Ex. EE, ECF No. 105-78 at 56-62.) On September 17, 1997, Rudenstein filed an amended PCRA petition, but he did not raise the issue of altered notes of testimony. (Petr's Mem., ECF No. 87-6, Appx. at 658-61.) The court notified Petitioner that it intended to dismiss the PCRA petition without a hearing. (Id. at 633-34.) Petitioner requested substituting Rudenstein for Billy H. Nolas as his counsel. (Id. at 643.) On May 11, 1998, the PCRA court dismissed the petition without addressing Petitioner's request to appoint new counsel. (Petr's Mem., ECF No. 87-4, Appx. at 481-82.)

         Petitioner, who was still represented by Rudenstein, nevertheless filed a pro se appeal of the PCRA court's dismissal, along with a motion to dispense with appointed counsel. (Id. at 487-92.) The Pennsylvania Supreme Court forwarded these papers to Rudenstein. (Petr's Mem., ECF No. 87-5, Appx. at 528-29.) On August 2, 1998, Petitioner inquired about the status of his appeal. (Id. at 513.) Petitioner was incorrectly informed that no appeal was pending. (Id. at 517.)[9]

         Rudenstein filed a brief on PCRA appeal in the Pennsylvania Supreme Court on January 19, 2000. (Respondents' Brief, Ex. BB, ECF No. 105-74.) On December 18, 2003, the Pennsylvania Supreme Court affirmed in part, but reversed and remanded in part to allow Petitioner to amend his petition to further support three claims. Comm. v. Rush, (“RUSH II”) 838 A.2d 651 (Pa. 2003). The three claims remanded were:

1) … trial counsel failed to cross-examine the Commonwealth's main witness, Jerry McEachin, regarding his alleged interest in testifying on behalf of the Commonwealth.
2) … trial counsel was ineffective for failing to request that the jury be polled in order to determine whether the jurors understood that mitigating circumstances need not be determined unanimously; and
3) … the PCRA Court should have held a hearing to determine what mental health mitigation evidence was available to counsel at the time of the penalty hearing, which resulted in a sentence of death.

(Pet., ECF No. 1-1, Appx. I at 45.)) The Pennsylvania Supreme Court had cautioned Petitioner that the remand was to correct the PCRA court's procedural error in its notice of intent to dismiss, and “the remand should not be construed as carte blanche to raise new claims.” Rush, 838 A.2d at 661.

         After the Pennsylvania Supreme Court issued its decision, Petitioner sought to represent himself on remand. (Respondents' Brief, Ex. CC, ECF No. 105-75 at 2.) The PCRA court[10] held a hearing on November 23, 2004. (Respondent's Brief, Ex. DD, ECF No. 105-76 at 2.) Petitioner told the Court he did not wish to pursue the three issues that had been remanded; instead, he wanted to file a pro se amended petition. (Id. at 4-5.) Attorney John Cotter was appointed to represent Petitioner on PCRA remand but then sought to withdraw based on Petitioner's desire to represent himself. (Id. at 5.) The Commonwealth noted that the Pennsylvania Supreme Court's order limited the remand to three issues, and it assumed no other issues would be considered. (Id. at 16.) The PCRA court relieved counsel and granted Petitioner's request to represent himself and file an amended pro se petition, recognizing that the Pennsylvania Supreme Court might decide it was inappropriate. (Id. at 13-15.)

         On the same day, Petitioner underwent a mental health evaluation to determine his competency. (Pet., ECF No. 1-1, Appx. I at 49.) On November 23, 2004, Dr. James G. Jones, apparently misunderstanding the procedural posture of the case, performed the evaluation and found Petitioner was incompetent to “represent himself during the sentencing phase of his trial.” (Id.)

         On April 21, 2005, the PCRA court reappointed David Rudenstein, Esq. as Petitioner's counsel, and ordered Dr. Jones to reevaluate Petitioner. (Respondents' Brief, Ex. FF, ECF No. 105-79 at 1.) The court order directed that after Dr. Jones' reevaluation, the case would be listed for Dr. Jones to testify and explain his findings. (Id.)

         Dr. Jones reevaluated Petitioner on June 30, 2005. (Pet., ECF No. 1-1, Appendix I at 52.) In doing so, he reviewed Petitioner's petition, the prior mental health clinic records pertaining to the case, and the notes of the November 23, 2004 colloquy and proceeding. (Id.) He concluded Petitioner was competent to represent himself on PCRA remand. (Id. at 53.) Dr. Jones stated:

During my first evaluation conducted on November 23, 2004, I had not had access to the testimony or the colloquy of defendant Larry Rush and his request to represent himself. I also did not have the opportunity to review the petition that he had prepared [Ex. EE.] Without that information, his statements to me seemed somewhat delusional. However they have been born in fact. Given that, I wish to withdraw the mental health diagnosis that I had given him which was Bi-Polar Affective Disorder. At the present time, he has no mental health disorder.

(Id.)

         The next court hearing was on September 13, 2005, and the court acknowledged Dr. Jones' findings and permitted Petitioner's counsel to withdraw. (Respondents' Brief, Ex. FF, ECF No. 105-79 at 2.) The court continued the case for Petitioner to file a supplemental amended petition. (Id.) In June 2006, the PCRA court relisted the case and, apparently in error, assigned Mr. Rudenstein to review the case for appeal purposes. (Id. at 3.)

         The PCRA court held a hearing on April 30, 2007. (Pet., ECF No. 1-1, Appx. I at 55.) Counsel for the Commonwealth, Robin Godfrey, expressed his opinion that it was error to permit Petitioner to amend his petition to add new claims because the remand opinion permitted amendment of only the three remanded claims. (Id. at 56.) Petitioner had filed an 86-page pro se petition raising seventeen new claims with subparts. (Id. at 56-57.) The prosecutor argued that this could not be done because the Pennsylvania Supreme Court retained jurisdiction over the remand. (Id. at 57.) He stated that Petitioner had supplemented two of the three remanded claims in his most recent petition, and the issue was whether Petitioner was ready to go forward with the proceeding pro se. (Id.)

         Petitioner expressed his continued desire to represent himself. (Id.) He reiterated that he did not wish to proceed on the three issues remanded by the Pennsylvania Supreme Court, stating “I'm not a part of no crazy man defense.” (Id. at 57.) He wanted to file a motion in the Supreme Court asking them to relinquish jurisdiction, so he could bring his own claims. (Id.) He did not want to go forward with any of the claims that were brought on his behalf in the first PCRA proceeding. (Id.)

         Attorney Rudenstein was present and he argued that Petitioner did not meet the Grazier[11]standards because he was not willing to comply with the process. (Id. at 59.) Petitioner interrupted, “That I knowingly, willingly and intelligently giv[e] up my right to any counsel.” (Id.) The Court stated, “I can make a ruling now that you have so declared and I will accept that.” (Id.) Rudenstein again interjected that he did not believe Petitioner understood the procedure or what he was giving up. (Id.)

         Rudenstein explained that Petitioner was focusing on “a crazy man defense, ” but the mitigation claim was that trial counsel failed to produce school records, work records and mental health records in terms of mitigation, which was, in Rudenstein's opinion, the most important issue in the case. (Id.) Mr. Godfrey argued that giving up the mitigation claim did not make Petitioner per se mentally incompetent. (Id. at 60.)

         The Court stated that Petitioner filed an 86-page document, showing that “he knew what he was thinking about, ” and that “he's sitting here today telling this Court that he doesn't want lawyers, that he wants to represent himself.” (Id.) The court ruled that “under Grazier, he has been offered the opportunity and refused it . . . [a]nd with that we'll send it back to the Supreme Court.” (Id.) In May 2007, the PCRA court issued an opinion stating Petitioner was competent and that he knowingly, voluntarily and willingly decided not to proceed on the remanded issues. (Id. at 44-46.)

         On July 23, 2007, Petitioner filed an Application for Extraordinary Relief in the Pennsylvania Supreme Court, seeking to start his PCRA proceedings anew, which was denied without comment on October 12, 2007. (Pet., ECF No. 1-1, Appx. I at 78); Com. v. Rush, (“RUSH III”) 934 A.2d 1151 (Pa. 2007) (per curiam). On August 16, 2007, the Commonwealth filed a motion for appointment of counsel and for remand in the Pennsylvania Supreme Court. (Pet., ECF No. 1-1, Appx. I at 62-65.) The Commonwealth noted the PCRA court did not convene an evidentiary hearing on competency, and “the record indicates that, at some point, defendant may arguably have not been competent to waive his right to counsel.” (Id. at 63.)

         On February 11, 2008, the Pennsylvania Supreme Court acknowledged that Petitioner was permitted to proceed pro se, and it inquired whether he would file a brief to supplement Attorney Rudenstein's brief filed on his behalf in 2000. (Respondents' Brief, Ex. HH, ECF No. 105-81 at 1-2.) Petitioner responded that he would instead file a motion to quash Rudenstein's “frivolous brief.” (Id.) He filed the motion to quash on March 19, 2008. (Pet., ECF No. 1-1, Appx. I at 80.)

         On April 11, 2008, the Commonwealth filed an answer to Petitioner's motion to quash and brought its renewed motion for remand “for on-record competency proceedings and appointment of counsel (for Rush).” (Id. at 84.) The Commonwealth again noted that the PCRA court had not convened an evidentiary hearing with respect to competency. (Id. at 85.) The Commonwealth asserted that Petitioner's refusal to file a supplemental brief to his PCRA counsel's original brief made no sense and raised the issue of Petitioner's competency. (Id. at 86.) The Commonwealth predicted that failure to hold an evidentiary hearing “could prove prejudicial to both the Commonwealth and defendant on federal review.” (Id.)

         The Commonwealth relied on Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008), where a habeas petitioner's waiver of further review was found invalid due to an inadequate record. (Id. at 87.) The Commonwealth further noted that the U.S. Supreme Court had granted certification on the question of whether a state may deny self-representation to a defendant who was competent to stand trial but so mentally incapacitated as to be incapable of coherent communication. (Id. (citing Indiana v. Edwards, No. 07-208.))[12]

         Petitioner opposed a remand. (Pet., ECF No. 1-1, Appx. I at 74-82.) He reiterated his knowing, intelligent and voluntary waiver of the issues raised on PCRA by Attorney Rudenstein. (Id. at 81.) He further stated:

Finally, since such (possibly) court-order psychiatric-examination doesn't call into question the physical-patient relationship, but rather will be a judicial proceeding open to the public, appellant request that such (possibly) court-order psychiatric-examination be transcribe[d] by a court stenographer, as well as officially videotaped, to assure that such proceeding will not be manipulated by the Commonwealth in [o]rder to achieve it[s] objective.

(Id. at 82.)

         On June 26, 2008, without further discussion, the Pennsylvania Supreme Court granted Petitioner's motion to quash the appeal filed by Rudenstein and denied the Commonwealth's motion for a remand. (Id. at 89.)

         On October 9, 2008, Michael Wiseman, Esq. of the Capital Habeas Unit filed the present habeas petition as “Next Friend to Larry Rush, petitioner, ” without Petitioner's consent. (Pet., ECF No. 1.) On October 31, 2008, Petitioner filed a pro se petition, seeking to terminate the habeas petition filed by Wiseman without his consent, and seeking to represent himself. (Pro Se Pet., ECF No. 4.) Soon thereafter, on November 12, 2008, Governor Edward G. Rendell issued a warrant of execution. (Notice of Execution, ECF No. 5-1.) Petitioner and his “next friend” filed motions to stay the warrant of execution, and a stay was granted. (Unopposed Mot. to Stay Execution, ECF No. 5, ¶3; Order, ECF No. 10.)

         On January 29, 2009, the Honorable Anita Brody held a status conference in this habeas matter and appointed Dr. Robert Mark Wettstein to evaluate Petitioner for competency to represent himself. (Order, ECF No. 23). Petitioner objected, but Judge Brody denied his motion to rescind the order appointing Dr. Wettstein to evaluate him. (Explanation and Order, ECF No. 29.) Petitioner appealed the order and moved for a stay of the psychiatric evaluation pending appeal. (Notice of Appeal, ECF No. 30; Mot. for Stay Pending Appeal, ECF No. 32.) On June 4, 2009, the Third Circuit dismissed the appeal for lack of jurisdiction. (Order of USCA, ECF No. 35; Rush v. Beard, C.A. No. 09-9001 (3d Cir.))

         Petitioner then refused Dr. Wettstein's attempt to evaluate him. (Wettstein Letter, ECF No. 40.) Judge Brody ordered that Petitioner accept counsel for his habeas petition because he refused to be evaluated for competency. (Explanation/Opinion, ECF No. 36)[13] On June 8, 2009, Judge Brody ordered that Michael Wiseman, Esq. was appointed to represent Petitioner nunc pro tunc as of October 9, 2008, and directed the Clerk to remove the “Next Friend” designation from the petition. (Orders, ECF Nos. 37-39.)[14] Petitioner, acting pro se, and Respondents sought reconsideration. (Petr's Mot. in Opp., ECF No. 42; Commonwealth's Mot. to Reconsider, ECF No. 45.) Judge Brody denied both motions. (Order, ECF No. 44; Order, ECF No. 49.)

         On September 28, 2009, Petitioner sued his Federal Defender attorneys and Judge Brody, under 42 U.S.C. § 1983, for denial of his right to represent himself. Rush v. Wiseman et al, 09-cv-4385-JR (E.D. Pa.) (Compl., ECF No. 1.) The case was dismissed without prejudice on August 5, 2010. (Id., Orders, ECF Nos. 13, 15, 17.) On May 4, 2011, the Third Circuit Court of Appeals designated the undersigned to handle Petitioner's habeas petition. (Designation of District Judge for Service in Another District Within the Circuit, ECF No. 91.)

         Petitioner presents the following grounds for relief in his habeas petition:

i. counsel was ineffective in failing to properly investigate, and present evidence establishing that the commonwealth's prime witness Jerry McEachin had a motive to fabricate his testimony.
ii. [a] trial counsel was ineffective when he failed to request that the motion in limine regarding the admissibility of prior crime evidence be heard before a different judge. [b] the trial court erred when it admitted a prior bad act to prove the identity of the perpetrator of the crime.
iii. petitioner was sentenced by a jury “uncommonly willing to condemn a man to die.” iv. [a] petitioner's trial prosecutor exercised peremptory challenges in a race and [b] gender-discriminatory manner in violation of the sixth, eighth, and fourteenth amendments. [c] all prior counsel were ineffective in failing to properly raise, and litigate this issue.
v. counsel was ineffective for failing to object to certain portions of the testimony of harold james.
vi. trial counsel unreasonably failed to disclose the fact that he had been a special prosecutor, thereby denying petitioner the opportunity to assess whether his counsel was laboring under a conflict of interest.
vii. counsel was ineffective for failing to give notice of and present testimony regarding petitioner's alibi.
viii. trial counsel failed to reasonably investigate the forensic evidence presented against petitioner, including fingerprint analysis and blood analysis; this evidence was the only direct evidence of the identity of the perpetrator.
ix. counsel was ineffective in failing to investigate, develop, and present available background and mitigation evidence relevant to the penalty phase in violation of the sixth, eighth, and fourteenth amendments.
x. [a] the penalty-phase instructions violated the eighth amendment and [b] all prior counsel ineffectively failed to litigate this error.
XI. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO POLL THE INDIVIDUAL JURORS BEFORE THE DEATH SENTENCE WAS RECORDED.
XII. COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S INSINUATION THAT PETITIONER WOULD BE ELIGIBLE FOR PAROLE IF HE RECEIVED A LIFE SENTENCE.
XIII. PETITIONER'S DEATH SENTENCE WAS OBTAINED IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS BECAUSE IT WAS BASED ON A[N] INVALID AGGRAVATING CIRCUMSTANCE.
XIV. THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE URGED THE JURY TO SEND A MESSAGE TO THE COMMUNITY BY IMPOSING A DEATH SENTENCE IN THIS CASE.
XV. THE REASONABLE DOUBT INSTRUCTION WAS UNCONSTITUTIONAL.
XVI. THE PROSECUTOR COMMITTED MISCONDUCT BY INVADING THE PROVINCE OF THE JURY WHEN HE ARGUED THE JURY SHOULD DISREGARD MITIGATING EVIDENCE [AT] TRIAL IN VIOLATION OF PETITIONER'S RIGHTS UNDER THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.

(Pet., ECF No. 1-1.)

         Petitioner submitted Grounds XVII through XXII, with the following explanation:

Throughout the many years of state court litigation Petitioner has raised a number of claims that are either facially deluded, or for which there is no apparent record or extra-record support. Counsel sets forth the following claim headings because, given Petitioner's inability to cooperate with counsel, along with counsel's lack of knowledge about the facts that may underlie these claims, counsel is reluctant to waive any claim - even those that appear on their face to be the product of a disturbed mind.
XVII. ALL PRIOR COUNSEL CONSPIRED WITH COMMONWEALTH TO ALTER TRANSCRIPTS TO PREVENT PETITIONER FROM RAISING CONSTITUTIONAL CLAIMS OF MERIT; THIS WAS INEFFECTIVE. APPELLATE COULD NOT ADEQUATELY BRIEF THE ISSUES WITHOUT THE ONE TRUE COPY.
XVII. TRIAL COUNSEL FAILED TO INVESTIGATE AND PRESENT AVAILABLE EVIDENCE FROM THE ALLEGED JEWELER WHO BOUGHT PROCEEDS FROM THE CRIME TO CONTRADICT TESTIMONY FOR A KEY WITNESS FOR THE PROSECUTION, JERRY McEACHIN.
XIX. COUNSEL FAILED TO INVESTIGATE, DEVELOP, AND PRESENT EVIDENCE THAT DETECTIVE JAMES MORTON FALSIFIED EVIDENCE AGAINST PETITIONER THROUGH A KEY WITNESS FOR THE PROSECUTION, JERRY MCEACHIN.
XX. APPELLATE COUNSEL HAD DIRECT CONFLICT OF INTEREST WITH PETITIONER WHEN HE RESPONDED TO PETITIONER'S ALLEGATIONS OF THE TRANSCRIPT ALTERATION BY CALLING THE ALLEGATION “ABSOLUTELY ASININE.” XXI. PCRA COUNSEL INEFFECTIVE BECAUSE HE BRIEFED (UNKNOWN TO PETITIONER) ISSUES WITHOUT BENEFIT OF THE TRUE TRIAL TRANSCRIPT.
XXII. PETITIONER WAS DENIED EQUAL PROTECTION RIGHTS BECAUSE HE WAS NOT PERMITTED TO REPRESENT HIMSELF IN THE WAY THAT OTHER PRISONERS ARE PERMITTED TO REPRESENT THEMSELVES. THE PROTHONOTARY INTRUDED IN THE CASE AND WOULD NOT ACCEPT FILINGS OR WOULD FORWARD THE FILINGS TO COUNSEL THAT PETITIONER DID NOT ACKNOWLEDGE, BOTH ON DIRECT APPEAL AND PCRA.

(Pet., ECF No. 1-1 at 60-61.) In his reply brief, Petitioner explained that these pro se claims were offered to support his incompetence to proceed pro se, not as claims to be decided on the merits. (Petr's Reply Brief, ECF No. 116 at 41.)

         Petitioner also raised a claim in his Memorandum in Support of the Petition. This unnumbered claim states: Counsel Was Ineffective for Failing to Object to the Prosecutor's Closing Statement that the Crime Bore Petitioner's Signature. (Petr's Mem., ECF No. 86 at 47 n. 19.) This claim was exhausted on direct appeal. (Id.)

         The parties agree that Grounds Five and Twelve were exhausted in the state courts and are properly before this Court. First, the Court will begin with analysis of the exhausted claims. Second, the Court will address those claims that were never raised in the state courts, Grounds 2a, 2b, 3, 8, 13, 14, 15, 16 and Pro Se Claims XVII to XXII. Third, the Court will consider the claims that were not raised through one complete round of the state's appellate review process. Fourth, the Court will address the claims that were presented differently in the habeas petition from what was presented in the state courts. Finally, the Court will analyze the three claims that Petitioner waived on PCRA remand.

         III. DISCUSSION

         A. Habeas Standard of Review

         28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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.

         The Supreme Court recently explained this standard:

“‘[C]learly established Federal law'” for purposes of § 2254(d)(1) includes only “‘the holdings, as opposed to the dicta, of this Court's decisions.'” Howes v. Fields, 565 U.S. __, __, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). And an “unreasonable application of” those holdings must be “‘objectively unreasonable, '” not merely wrong; even “clear error” will not suffice. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. __, __, 131 S.Ct. 770, 786-787, 178 L.Ed.2d 624 (2011).

White v. Woodall, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014).

         When the habeas claim is for ineffective assistance of counsel,

AEDPA review is “doubly deferential, ” Cullen v. Pinholster, 563 U.S. 170, 190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, ” Burt v. Titlow, 571 U.S. __, __, 134 S.Ct. 10, 17, 187 L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks omitted). In such circumstances, federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Burt, supra, at __, 134 S.Ct., at 13.

Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (per curiam).

         In presenting a Strickland claim in the first instance, “[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 690 (1984). “This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.” Id. at 687.

         There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing Bell v. Cone, 535 U.S. 685, 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland, 466 U.S. at 689; United States v. Cronic, 466 U.S. 648, 656 (1984)).

         The second prong of the Strickland test, prejudice, requires a defendant to “show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is one ‘sufficient to undermine confidence in the outcome.'” Collins v. Sec. of Pennsylvania Dept. of Corr., 742 F.3d 528, 547 (3d Cir. 2014) (quoting Strickland, 466 U.S. at 694). The “ultimate focus” of the prejudice inquiry is on the fundamental fairness of the proceeding. Strickland, 466 U.S. at 696. “Prejudice is viewed in light of the totality of the evidence at trial and the testimony at the collateral review hearing.” Collins, 742 F.3d at 547 (citing Rolan v. Vaugh, 445 F.3d 671, 682 (3d. Cir. 2006)). A court need not address both components of the ineffective assistance inquiry. Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Id.

         B. Exhausted Claims

         1. Ground Five: Counsel Was Ineffective for Failing to Object to Certain Portions of the Testimony of Harold James.

         In Ground Five, Petitioner contends his trial counsel failed to object to prejudicial hearsay testimony of Harold James, the victim's father. (Pet., ECF No. 1-1, ¶¶57-58; Petr's Mem., ECF No. 86 at 44-47.) James was a former Philadelphia police officer. (Pet., ¶57.) He testified that on the night of his daughter's murder, he went to the police station to speak to Detective Morton, the lead investigator on the case. (Id.) While waiting to speak to Morton, James talked to Aaron Pringle, who lived on the first floor of his daughter's building. (Id.) When James spoke to Morton, he urged him to investigate Petitioner as the prime suspect in the murder, which Petitioner contends was based solely on James' conversation with Pringle. (Id.) James gave the following testimony at trial:

Q. And while you were waiting to speak to Detective Morton did you encounter one Aaron Pringle at that location.
A. Yes.
Q. Did you know Mr. Pringle?
A. No, I didn't.
Q. Did you have a conversation with him?
A. Yes.
Q. And after your conversation with Mr. Pringle did you talk to Detective Morton?
A. Yes.
Q. And what, if anything, did you tell him?
A. I told Detective Morton that as a result of my conversation with Pringle that [Rush] should be the prime suspect.

(Id., quoting NT 6/24/88 at 5-6.)

         Petitioner asserts this testimony conveyed to the jury that Pringle implicated Petitioner as the guilty party, and Pringle's opinion of guilt was compelling evidence because he lived in the victim's building, and he knew Petitioner and the victim. (Id., ¶58.) According to Petitioner, jurors were led to believe it was reasonable police strategy to rely on Pringle's opinion in focusing exclusively on Petitioner as the suspect long before they had any evidence connecting him to the crime. (Id.) Petitioner contends the state court's adjudication of this claim was based on an unreasonable determination of the facts considering the record before it. (Petr's Mem., ECF No. 86 at 45-46.)

         The state court held that defense counsel's cross-examination of James:

plainly established that James was giving his own opinion that [Rush] was the suspect, rather than relaying an opinion held by Pringle. It also established that he formed his opinion based on the simple fact that [Rush] “had been on the first floor” of the victim's building. The fact that [Rush] resided on the first floor was undisputed at trial, and was established by other witnesses.

(Id. at 46, (quoting RUSH I, 646 A.2d at 562.)) The court found that “even if James' testimony could ‘have been interpreted as implying that Pringle said something of an incriminating nature, that implication was fully negated during cross-examination'….” (Id.)

         Petitioner contends this finding is unsupported by the record. (Id.) The state court relied on the following exchange in cross-examination:

Q. Now, the statement you gave to Detective Morton must have occurred after your discussion . . . with Aaron Pringle, correct?
A. Yes.
Q. And did you make your suggestion regarding Mr. Rush as a prime suspect before you gave your statement to Morton?
A. Yes.
Q. In fact, would that have been the first thing you did, tell him who you think is the suspect?
A. Yeah, once I found out that Larry Rush had been on the first floor.

(Petr's Mem., ECF No. 86 at 47; quoting NT 6/24/88 at 9.)

         Petitioner asserts this exchange did nothing to negate the impression that Pringle implicated Petitioner in his conversation with James. (Id.) Petitioner further argues the state court unreasonably concluded that James' testimony was of minor significance in the case, when in fact the prosecution relied on James' testimony during closing argument to demonstrate a link between the murder of Veranica Hands and a prior crime committed by Petitioner. (Id., quoting NT 6/26/88 at 69.)

         In opposition to this claim, Respondents argue that James' testimony was not hearsay; he testified about the conclusion he drew after his conversation with Pringle, without stating what Pringle had said. (Respondents' Brief, ECF No. 105 at 137.) Further, Respondents contend that the testimony did not imply that Pringle said Petitioner was the murderer. (Id. at 138.) James explained what he learned from Pringle was that “Larry Rush had been on the first floor” of the victim's building. (Id.) The state court noted this fact was uncontested. (Id.)

         Although it was addressing another claim [that the prosecutor committed misconduct by arguing the crime bore Rush's signature], the Pennsylvania Supreme Court determined “Harold James had been a Philadelphia police officer for twenty-two years and, most-importantly, was [Rush's] second cousin. It was reasonable to infer, therefore, that he was aware of the crime Petitioner had committed in Philadelphia in 1979.” (Id., (citing Pet., ECF No. 1-1, Appx. I at 6.)) Thus, once James learned from Pringle that Petitioner had been living on the first floor of the victim's building, he tied his prior knowledge of Petitioner's recent release from prison for a very similar crime in 1979, involving the stabbing of Petitioner's upstairs neighbor. (Respondents' Brief, ECF No. 105 at 138-39.)

         In reply, Petitioner notes the Pennsylvania Supreme Court recognized that James' testimony might have been misunderstood as implying an incriminating statement by Pringle. (Petr's Reply Brief, ECF No. 116 at 23-24, (citing RUSH I, 646 A.2d at 562.)) Further, the state court did not make a factual finding that James' testimony was based on his years of police experience or his relationship with Petitioner. (Id.)

         This Court finds that the Pennsylvania Supreme Court reasonably held there was no prejudice[15] from trial counsel's failure to object to James' testimony. The court stated, “[i]n the face of the compelling evidence of Petitioner's guilt introduced at trial, such as Petitioner's admissions to McEachin, bloody fingerprint at the crime scene, and possession of the victim's property, James' testimony was of minor significance.” RUSH I, 646 A.2d at 562. McEachin testified that Petitioner told him he had just stabbed his cousin, a woman who lived on Federal Street, and that he committed the stabbing with a knife that he found in the victim's apartment. Id. at 559. This testimony was bolstered by evidence that Petitioner's “fingerprints were found on containers that held pocket change in the victim's bedroom” and his thumbprint “was found on a doorjamb beside the victim's body.” Id. Additionally, personal items belonging to the victim and her husband were missing from the bedroom when the victim's body was recovered, and police recovered the jewelry, which Petitioner had sold. Id.

         The possibility that the jury might have incorrectly deduced that Pringle said something to James incriminating Petitioner in the crime does not undermine confidence in the outcome of the trial, as required to establish the prejudice prong of a Strickland claim. A guilty verdict was likely absent James' testimony about Pringle, based on the physical evidence found at the crime scene, the evidence recovered from the jewelers where Petitioner sold the victim's jewelry, and McEachin's testimony. Therefore, Ground Five of the habeas petition is denied.

         2. Ground Twelve: Counsel Was Ineffective For Failing to Object to the Prosecutor's Insinuation that Petitioner Would be Eligible for Parole if he Received a Life Sentence.

         Petitioner argues that the prosecutor led the jury to believe that he would be eligible for parole if he were given a life sentence, contrary to the law in Pennsylvania that “life” meant life without parole, and his counsel unreasonably failed to object. (Pet., ECF No. 1, ¶¶94-98; Petr's Mem., ECF No. 86 at 74-78.) The jury heard evidence about Petitioner's recent release on parole from committing a similar crime in 1979, and the prosecutor's statements in closing arguments insinuated that if Petitioner was sentenced to life and was released on parole, he would attack again. (Pet., ECF No. 1, ¶¶95- 96.)

         In closing arguments, the prosecutor stated, “[h]e's going to come at you [] and he's going to come at you with a knife. Now let's talk about his parole because parole is also significant.” (Id., ¶96, quoting NT 6/29/88 at 61.) According to Petitioner, the prosecutor was insinuating that if the jury did not sentence him to death, he could be released from prison again and commit more crimes, possibly against the jurors. (Id.) Petitioner contends reasonable trial counsel would have objected to these statements because otherwise “the jury's sentence was the product of confusion and fear.” (Id., ¶97.)

         On the issue of trial counsel's ineffectiveness, the PCRA court held:

[W]hen viewed in context, the prosecutor's statements regarding parole were made in relation to the aggravating circumstance that Appellant had a significant history of convictions for violent crimes. In referring to parole, the prosecutor referred to parole to demonstrate that Appellant's history of violent crimes was “significant” since Appellant was only on parole for a short period of time - “52 days” - before committing additional crimes and that “he broke faith in society when he did that.” Thus, when the statements are placed in context, the prosecutor's argument had nothing to do with the fact that Appellant could be paroled if he received a life sentence. Appellant's claim is without merit.

(Petr's Mem., ECF No. 86 at 78, (quoting RUSH II, 838 A.2d at 659.)) Petitioner contends that the state court unreasonably concluded the prosecutor's statements did not imply that he could be paroled if he received a life sentence, and the only purpose of the statements was to mislead the jury. (Id.)

         Respondents counter that the state court reasonably found the prosecutor did not insinuate that Petitioner would be eligible for parole if he received a life sentence. (Respondents' Brief, ECF No. 105 at 195.) In context, the prosecutor was attacking the credibility of Petitioner's family members, who testified of his good character. (Id.) The State argued in closing argument:

Just as these other two women, Annamay Little and Denise Kellar were trying to help him inside of the flower shop, just as Doris Jones tried to help him back in 1979 when he asked to use her phone. And then four days later [after stabbing Ms. Nitterauer, ] you heard how he turned on his own cousin at knife point and stabbed her 51 times.
That is a significant history of conviction for violence [a statutory aggravating circumstance] if ever there were one. But it's significant in another respect. It's significant in that he employs deceit before he does these. He worms his way inside peoples' kindliness, their Good Samaritanness and then he turns on them violently with a knife. Turns on everyone but those he cares about.
And if that doesn't tell you he knows exactly what he's doing, then nothing else should. He cares nothing about anyone who stands in his way of what he wants at that time. He's nice to his mother. He's nice to his cousins, but anybody else look out. He's going to come at you and he's going to come at you with a knife.
Now, let's talk about his parole, because parole is also significant. Parole is society saying to an individual you have done your time, you have paid your price. We trust you. We are returning you to society. You can walk among us. You can walk among the peaceful and the law abiding. And he broke faith in society when he did that. It didn't take him but 52 days to break faith. It's also evidence of his deceit.

(Respondent's Brief, ECF No. 105 at 195-96, (quoting Exhibit N, ECF No. 105-59 at 61-62)) (alterations in original). Respondent asserts Petitioner's trial counsel had no reason to object because the prosecutor did not imply that Petitioner would be paroled if the jury gave him a life sentence. (Id. at 196.)

         The PCRA court found that the statement was properly offered to permit the jury to consider defendant's character and background with respect to the penalty. (Id. (citing Pet., ECF No. 1-1, Appx. I at 42.)) Additionally, the PCRA court observed that defense counsel told the jury several times in his closing argument that a life sentence meant life, a sentence Petitioner would not even begin to serve until he was 76-years old. (Respondents' Brief, ECF No. 105 at 197 (citing N.T. 6/29/88 at 44-45, 55.)) On PCRA appeal the Pennsylvania Supreme Court rejected the claim, agreeing that the prosecutor's comment did not imply that a life sentence meant Petitioner could be paroled. (Id. (citing Pet., ECF No. 1-1, Appx. I at 15; RUSH II, 838 A.2d at 659.))

         In reply, Petitioner argues that the state court's adjudication of the ineffective assistance of trial counsel claim was based on an unreasonable determination of the facts under § 2254(d)(2). (Petr's Reply Brief, ECF No. 116 at 35.) He contends the only reason the prosecutor mentioned parole was to highlight the crimes Petitioner committed while on parole, and then the prosecutor stated no one is safe from Petitioner and his knife unless he is sentenced to death. (Id.)

         Habeas review is of the highest state court's determination of the federal constitutional claim. Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). “Deciding whether a state court's decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact required the federal habeas court to “train its attention on the particular reasons-both factual and legal-why the state courts rejected a state prisoner's federal claims.” Id. (quoting Hittson v. Chatman, 576 U.S. __,, 135 S.Ct. 2126, 2126 (2015) (Ginsburg, J. concurring in denial of certiorari)).

         The Pennsylvania Supreme Court noted that a prosecutor “must have ‘reasonable latitude in fairly presenting a case to the jury and must be free to present his or her argument with logical force and vigor'” and such comments “must be reviewed in the context in which they were made.” RUSH II, 838 A.2d at 659. The court found the ineffective assistance of counsel claim without merit because:

In this case, when viewed in context, the prosecutor's statements regarding parole were made in relation to the aggravating circumstance that Appellant had a significant history of convictions for violent crimes. In referring to parole, the prosecutor referred to parole to demonstrate that Appellant's history of violent crimes was “significant” since Appellant was only on parole for a short period of time-“52 days”-before committing additional crimes and that “he broke faith in society when he did that.” N.T., 6/29/1998, pp. 61-62. Thus, when the statements are placed in context, the prosecutor's argument had nothing to do with the fact that Appellant could be paroled if he received a life sentence.

Id.

         This finding was based on a reasonable determination of the state court record. Alternatively, this Court finds there was no prejudice from counsel's failure to object because defense counsel told the jury several times in his closing argument that a life sentence meant life (“Larry Rush will never set foot outside a prison;” “[w]hatever you decide he will never walk the streets again.”) (Respondents' Brief, Ex. N, ECF No. 105-59 at 44-45, 55.) Therefore, Ground Twelve of the habeas petition is denied.

         3. Unnumbered Claim in Rush's Memorandum in Support of the Petition: Counsel Was Ineffective For Failing to Object to the Prosecutor's Closing Statement that the Crime Bore Petitioner's Signature.

         Petitioner's memorandum in support of his petition contains the above unnumbered ineffective assistance of counsel claim in a footnote.[16] (Respondents' Brief, ECF No. 105 at 140-41.) Petitioner argued “this claim was unreasonably adjudicated by the state court on direct appeal. (Petr's Mem., ECF No. 86 at 47 n. 19.) Respondents contend this claim cannot be reviewed because by the time Petitioner filed his memorandum in 2010, the federal statute of limitations had expired, and it was too late to amend the petition to add a new claim. (Id. at 141.)

         “An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005); accord Peterson v. Brennan, 196 Fed.Appx. 135, 140 (3d Cir. 2006) (a new claim that does not relate back to the original petition cannot be added after the limitation period has elapsed) (citing Crews v. Horn, 360 F.3d 146, 154 n. 5 (3d Cir. 2004)). None of the claims raised in the original habeas petition address the prosecutor's closing argument that the crime bore Rush's signature. (Pet., ECF No. 1-1 at 13-61). Therefore, this claim is dismissed because it was not timely raised in the petition.

         The Court alternatively finds that the claim fails on the merits. The Pennsylvania Supreme Court addressed this claim on direct review and held:

The other remark to which appellant claims counsel should have objected was a statement by the prosecutor that Harold James, the victim's father, told a police detective that appellant should be regarded as the prime suspect because, as soon as he heard that appellant had been residing on the first floor of the victim's building, he recognized that the crime bore appellant's “signature.” Appellant claims that there was no testimony that James knew of the similar crime committed by appellant in 1979, and, therefore, that it was purely speculative that James could have recognized the present crime as bearing the signature of the same perpetrator.
It is well established that a prosecutor, in his closing argument, can comment on the evidence introduced at trial as well as the legitimate inferences arising therefrom. Commonwealth v. Lawson, 519 Pa. 175, 190, 546 A.2d 589, 596 (1988); Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888 (1980). Harold James had been a Philadelphia police officer for twenty-two years and, most importantly, was appellant's second cousin. It was reasonable to infer, therefore, that he was aware of the crime appellant committed in Philadelphia in 1979. The prosecutor's comment that James recognized the “signature” of appellant was, therefore, a reasonable inference based on the evidence. Defense counsel had no basis to object.

RUSH I, 646 A.2d at 563.

         Harold James testified that Larry Rush was his second cousin. (Respondent's Brief, Ex. J, ECF No. 105-39 at 6.) He knew that Rush lived with his mother in the Tasker Street Projects. (Id.) Testimony was taken from the victim of a stabbing that Rush committed in 1979. RUSH I, 646 A.2d at 116. The trial court instructed that this evidence should be considered only on the issue of identity. Id. at 117. Thus, when James testified that the crime bore Rush's “signature, ” the jury could reasonably infer that James was familiar with his cousin's conviction for stabbing a woman, under like circumstances to this crime, in 1979. Counsel was not ineffective for failing to object to a comment in closing argument that was based on a reasonable inference from the evidence introduced at trial. See United States v. Hernandez, 412 Fed.Appx. 509, 511 (3d Cir. 2011) (quotations omitted) (in summation a prosecutor has wide latitude to argue the evidence and any reasonable inferences that can be drawn from that evidence.)

         The unnumbered claim in the memorandum in support of the petition is dismissed because it was not timely raised in the petition and is alternatively denied on the merits.

         B. Claims that Were Never Raised in the State Courts: ...


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