United States District Court, E.D. Pennsylvania
Jennifer L. Givens, Esq. Cristi Charpentier, Esq. On behalf
W. Goldsborough, Esq. Thomas W. Dolgenos, Esq. District
Attorneys On behalf of Respondents
H. RODRIGUEZ, DISTRICT JUDGE 
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
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.) 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).
afternoon of May 8, 1987, Veranica 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
Brown, Esq., represented Petitioner at trial and in
post-verdict motions 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.) 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
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.) 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.)
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. (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.)
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.)
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.)
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.)
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
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.
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 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.)
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.)
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.)
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.
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.)
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.
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
Rudenstein was present and he argued that Petitioner did not
meet the Grazierstandards 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.)
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.)
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.)
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.)
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.)
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
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.
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]
(Id. at 82.)
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.)
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.)
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.))
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) 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.) 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.)
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.)
presents the following grounds for relief in his habeas
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
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
(Pet., ECF No. 1-1.)
submitted Grounds XVII through XXII, with the following
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,
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
(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.)
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.)
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.
Habeas Standard of Review
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;
(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.
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
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
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.
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)).
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.
Ground Five: Counsel Was Ineffective for Failing to
Object to Certain Portions of the Testimony of Harold
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.
Q. Did you know Mr. Pringle?
A. No, I didn't.
Q. Did you have a conversation with him?
Q. And after your conversation with Mr. Pringle did you talk
to Detective Morton?
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
(Id., quoting NT 6/24/88 at 5-6.)
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.)
state court held that defense counsel's cross-examination
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
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,
Q. And did you make your suggestion regarding Mr. Rush as a
prime suspect before you gave your statement to Morton?
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
(Petr's Mem., ECF No. 86 at 47; quoting NT 6/24/88 at 9.)
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.)
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.)
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.)
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.)
Court finds that the Pennsylvania Supreme Court reasonably
held there was no prejudice 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.
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.
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
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,
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.)
issue of trial counsel's ineffectiveness, the PCRA court
[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
(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.)
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.)
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.))
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.
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)).
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
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.
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
memorandum in support of his petition contains the above
unnumbered ineffective assistance of counsel claim in a
footnote. (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.)
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.
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.
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.)
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.
Claims that Were Never Raised in the State Courts: