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Hansen v. Clark

United States District Court, M.D. Pennsylvania

July 15, 2019

PAUL NELSON HANSEN, Petitioner
v.
MICHAEL CLARK, et al., Respondents

          Brann Judge.

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Statement of Facts and of The Case

         This case arose out of a tragic, fatal shooting which took place on June 12, 2010. The background of the killing of Melissa Barnes at the hands of Paul Hansen was aptly described by the Pennsylvania Superior Court in its decision affirming Hansen's conviction, where the court explained that:

The shooting and killing of Melissa Barnes occurred at a party Barnes hosted at her home … in York Haven, Pennsylvania on June 12, 2010. The property was in a wooded area, and the roughly twenty cars parked near the house had to drive down a makeshift dirt road in order to park. The road was muddy due to rain, and thus Hansen required the help of five people at the party to push his vehicle out of the mud before he could leave as he intended. One of the five partygoers that helped Hansen move his vehicle was Holly McMichael. During the attempts to push Hansen's vehicle out of the mud, Hansen and McMichael began to argue because McMichael attempted to tell Hansen how to drive. Hansen grabbed McMichael during the argument and told her that he would “break [her] fucking neck.” N.T. Trial, 7/11/11, at 183. He then twisted her around and put her in a hold so that she could not move. When a truck pulled in with its lights on, Hansen released McMichael.
Thereafter, Barnes quickly approached the scene of the altercation, swearing at Hansen and telling him, “you don't put your hands on one of my friends, my guest ... you don't touch a woman.” Id. Barnes went over to Hansen, pushed him, and continued to scream profanities. Hansen pushed Barnes back, and the argument continued. According to the testimony of one witness, when Barnes pushed Hansen again:
He took a step back, took his right hand, put it in his right side, pulled out a pistol, aimed and the gun went off just that quick in one fluid motion without saying anything to her, without a warning, without saying [“]I'm gonna shoot you.[”] Nothing. It was just step back, draw, point and the gun went off and the bullet entered the side of the head.
Id
At the time that Hansen shot Barnes, she was angry and in a fighting stance. She was also little further than an arm's length from Barnes when he fired. After the gun went off, Hansen's arm remained up and he did not move for a moment. He then slowly put the gun back to his side, walked past Barnes, and continued up the road alongside the house until he was out of sight.
Witnesses testified that after Hansen shot Barnes, he made a call to his wife, and then to 911. He told his wife that he had shot Barnes, he was "pretty sure" he killed her, that he loved his wife and kids, and that he was going to jail. Witnesses testified that Hansen sounded calm on the phone.
Roughly thirty seconds to one minute after the shooting, a guest at the party sought the assistance of Barnes' neighbor, Officer Keith Farren, who was off duty. … Officer Farren secured Hansen's gun and held him until police arrived. According to the testimony of Officer Farren, at this point Hansen's demeanor was "extremely calm. It was kind of eerie actually. He was very articulate. He spoke very clear[ly]." N.T.

         Trial, 7/12/11, at 239. Officer Farren also testified that Hansen told him that:

Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her. And he said that she had touched him or slapped him I believe is what he said. He had pulled his gun out and pointed it at her and the gun accidentally went off. He said that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault.

Id. at 240.

Officer Briar of the Newberry Police Department was dispatched to the scene of the crime. When he arrived, he took possession of the gun, a .40 Smith and Wesson semi-automatic, capable of holding fourteen rounds when fully loaded. An examination of the gun after the shooting revealed that Hansen's gun had one round in the chamber and twelve in the magazine. As determined by the tool and mark examiner for the Pennsylvania State Police, Trooper Darren Mortoff, the trigger pull of the gun was a minimum of eleven pounds.

(Doc. 21-1 at 337-41.)

         Following his arrest, Hansen was charged with criminal homicide, assault and terroristic threats for his role in the slaying of Barnes and the menacing of Holly McMichael. (Id., at 4.) As this case proceeded to trial, there was no dispute that Hansen had, in fact, killed Barnes since multiple witnesses described how Hansen shot Barnes in the head at near point-blank range with a .40 caliber handgun. Instead, as Hansen's defense counsel aptly observed, this case was not about what Hansen did on July 12, 20010; rather “[w]hat this case [wa]s about was what was going on inside his head.” (Id., at 71.)

         Moreover, with respect to this critical issue of intent, Hansen's trial counsel was hamstrung in mounting a defense due to the statements and actions of his client in the immediate aftermath of this killing. Thus, the fact that numerous witnesses described Hansen's calm demeanor following the killing hobbled any effort to argue that he had acted out of fear or the heat of a sudden passion.[1] Hansen also made a statement to the police shortly after he killed Barnes, which further constrained defense counsel in fashioning any defense based upon his mental state when he killed Barnes, telling the arresting officer that:

Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her. And he said that she had touched him or slapped him I believe is what he said. He had pulled his gun out and pointed it at her and the gun accidentally went off. He said that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault.

(Id., at 143.)

         In this immediate post-arrest statement, Hansen made admissions consistent with some level of premeditation, stating: “Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her.” (Id.) Hansen also described the shooting as an accidental discharge of the gun, claiming that “the gun accidentally went off.” (Id.) Notably absent from this statement made in the immediate wake of this killing was any statement by Hansen that he feared for his safety or acted in self-defense.

         Despite the obstacles to any defense presented by Hansen's words and deeds, his defense counsel explored the question of Hansen's mental state, seeking out medical treatment records and retaining an expert to evaluate Hansen's mental state. (Id., at 416-17.) Counsel reported that these efforts were entirely unavailing in developing a line of defense for Hansen, whose post-arrest statements largely confined the defense to a claim that this was an accidental shooting. (Id.)

         It further appears that Hansen and his trial counsel had discussions, debates, and some disagreements regarding the course of his defense at trial. On various occasions, Hansen voiced a preference for pursuing a claim of self-defense in this case. Hansen's trial attorney counselled against this particular defense, noting that there was no evidence that Barnes was armed; that Hanson had the opportunity to retreat and deescalate the confrontation by simply leaving Barnes' property; that it was Hansen who chose to use lethal force by discharging his firearm into Barnes' skull; and that Hansen never asserted any fear or claim of self-defense at the time of Barnes' death, insisting instead that the shooting was an accident and “that if it wasn't for her pushing me, then the gun wouldn't have went off so it was her fault.” (Id., at 143.) Ultimately, at trial, Hansen agreed to a defense that focused upon his claim that this was an accidental shooting, and in a colloquy with the trial court expressly disavowed any self-defense jury instruction. (Id., at 204-08.)

         Hansen proceeded to trial on these charges on July 11-13, 2011. (Id., at 22-265.) In the course of the trial, the jury heard from numerous witnesses who identified Hansen as Barnes' killer. The jury also was presented with Hansen's admissions that he had shot and killed Barnes after he told her “that if she touched me again, then I'd shoot her.” (Id., at 143.) Further, the jury learned that the firearm that Hansen used in this slaying, a .40 caliber handgun, had an 11-pound trigger pull, which meant that the firearm was not a hair-trigger weapon, but required some conscious effort to discharge.

         With respect to the charges relating to the slaying of Barnes, the verdict form and jury instructions provided to the jury gave the jurors the option of acquittal or finding Hansen guilty of offenses ranging from involuntary manslaughter and voluntary manslaughter to first or third degree murder. Thus, the jury could conclude that this slaying was a non-culpable accident; a reckless but involuntary manslaughter; a voluntary manslaughter, that is, killing provoked by a sudden passion; an unpremeditated killing with malice, a third-degree murder; or first-degree murder, a killing with premeditation and malice aforethought. Having heard all of the evidence, including Hansen's statement that “Ms. Barnes ... was bugging him or pushing him all night long and that he said that I told her that if she touched me again, then I'd shoot her, ” the jury convicted Hansen of first-degree murder, as well as assault and terroristic threats for his assault upon Holly McMichael. (Id., at 259-61.)

         On August 24, 2011 Hansen was sentenced to life imprisonment for the murder of Barnes, and to two consecutive 1-to-12 month terms of imprisonment for his assault and terroristic threats convictions. (Doc. 1, at 1.) Hansen appealed this conviction and sentence. On direct appeal, Hansen raised a single issue, challenging the sufficiency of the evidence regarding his intent to kill. (Id., at 265-292.) On August 24, 2012, the Pennsylvania Superior Court rejected this appeal and affirmed Hansen's conviction, concluding that there was ample evidence to support the jury's finding that Hansen was guilty of a premeditated murder in the killing of Melissa Barnes. (Id., at 337-345.) Hansen then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, but that court declined to further review this conviction. (Id., at 346-70.)

         Having exhausted his direct appeals, Hansen then sought relief under the Pennsylvania Post Conviction Relief Act (“PCRA”) on April 19, 2014. (Id., at 371-78.) Counsel was appointed to assist Hansen in these post-conviction proceedings, and a hearing was held on Hansen's post-conviction claims on August 8, 2014. (Id., at 380-430.) In this petition, at this hearing, and later on appeal, Hansen raised an array of issues in a somewhat haphazard fashion. For example, at his August 8, 2014 PCRA hearing, Hansen argued that his trial counsel was ineffective for: (1) failing to explore his mental health and diminished capacity; (2) not pursuing a self-defense theory; (3) failing to introduce evidence that he wore a left handed holster at the time of the killing, evidence Hansen suggested would rebut the claim that he used his right hand to shoot Barnes; (4) failing to call additional character witnesses beyond his wife; (5) advising him to refrain from testifying; (6) failing to more thoroughly cross examine one witness, Hudson Bethard; and (7) failing to call a defense ballistics expert. (Id., at 383-401.) Further, Hansen asserted that his appellate counsel was ineffective in that he failed to properly preserve issues for further review. (Id., at 401.)

         While Hansen advanced these claims at his PCRA hearing, his testimony undermined many of the claims that he advanced. For example, Hansen conceded that he agreed at trial with his counsel's tactical decisions not to pursue a self-defense claim and agreed to refrain from testifying (Id., at 388-90, 393-95.) Hansen also admitted that some of the other claims, such as his claims relating to testimony concerning his left-handed holster, would not have altered the outcome of the case in any way since he fully admitted to shooting Barnes in the head. (Id., at 391.)

         Hansen's trial and appellate counsel testified at this hearing as well. For his part, Hansen's trial counsel aptly described the defense dilemma in this case when he explained that Hansen's post-shooting admissions largely left the defense “locked in” to an accidental shooting defense. (Id., at 412-14) Counsel reaffirmed that Hansen agreed to this defense. (Id.) Trial counsel also explained that he had pursued mental health issues relating to Hansen, retaining an expert and seeking out Hansen's treatment records, but nothing from the retained expert or treatment providers provided information that was helpful to the defense. (Id., at 416-17.) Furthermore, trial counsel explained that the information provided by the defense ballistics expert was essentially consistent with the Commonwealth's expert, and counsel was able to elicit any helpful ballistics testimony from the Commonwealth's expert on cross examination, making the testimony of a defense expert unnecessary. (Id., at 415.) As for Hansen's complaint that his counsel failed to explore or call character witnesses, counsel noted that he called Hansen's wife as a character witness, and denied recalling that Hansen identified any other character witnesses. (Id., at 417-26.) Likewise, Hansen's appellate counsel testified that he pursued all issues on direct appeal that were meritorious and had been preserved at trial, and further explained that many of Hansen's complaints related to the effectiveness of his trial counsel were matters that were not cognizable on direct appeal. (Id., at 426-30.)

         Following this hearing, Hansen's PCRA counsel moved to withdraw and filed a no-merit letter with the trial court. The trial court, in turn, considered but rejected Hansen's PCRA petition. Hansen then appealed this adverse ruling to the Pennsylvania Superior Court. On appeal, Hansen cast his claims in different terms than he had at his state PCRA hearing, and now argued nine issues, asserting that:

1. Trial counsel was ineffective for failing to present evidence of Appellant's mental health diagnoses and diminished capacity; 2. Trial counsel was ineffective for not introducing testimony to establish the victim's height and weight; 3. Trial counsel was ineffective for failing to object to statements regarding Appellant's knowledge or experience in the martial arts; 4. Trial counsel was ineffective for failing to highlight on cross examination Hudson Bethard's statement that several individuals approached the scene of the altercation; 5. Trial counsel was ineffective for failing to present evidence that Appellant's pistol was carried in a left-handed holster, despite testimony indicating Appellant brandished and fired the weapon using his right hand; 6. Trial counsel was ineffective for failing to present character witnesses at trial; 7. Trial counsel was ineffective for advising Appellant not to testify at trial; 8. Trial counsel did not adequately prepare for the trial or explore various defenses; and 9. Appellate counsel was ineffective for failing to raise the above issues on direct appeal.

(Id., at 434-35.)

         On April 6, 2016, the Superior Court issued an opinion affirming the denial of the PCRA petition. (Id., at 431-40.) In reaching this result, the Superior Court concluded that none of the nine post-conviction claims advanced by Hansen had any merit. Treating Hansen's first four arguments as collectively alleging ineffectiveness by trial counsel in failing to pursue a self-defense claim, the Superior Court noted that counsel prudently avoided such a shift in defense strategy, since it would have been inconsistent with the eyewitness testimony, which uniformly stated that it was Hansen who escalated what was a shoving match to a lethal encounter when he shot Melissa Barnes in the head. The Court also noted that this shift in defense would have been impeached by Hansen's own post-arrest admissions, where he claimed that the shooting was an accident, not an act of self-defense. (Id., at 436.) The appellate court also agreed that counsel acted appropriately when he declined to highlight the fact that Hansen wore a left-handed holster in an effort to undermine the testimony of witnesses that he used his right hand to fire the fatal shot, agreeing that this tactic “would only insult” the jury given the undisputed evidence, which showed that Hansen killed Barnes. (Id., at 437.) The Superior Court also rejected Hansen's claim that counsel was ineffective in failing to call character witnesses, noting that counsel did call Hansen's spouse as a character witness, and observing that Hansen had failed to show that he requested such witnesses, that the witnesses were in fact available, and that their testimony would have materially benefited his defense. (Id., at 437-39.)

         The Superior Court also discounted Hansen's claim that his trial counsel was ineffective in advising him to refrain from testifying. On this score, the court noted that Hansen testified that he concurred in this advice. Moreover, the court found that the advice was strategically sound since Hansen's prior statements to the police would have thoroughly impeached any self-defense claim he might have tried to pursue at trial, undermining his credibility. (Id., at 439.) The Superior Court also rejected Hansen's assertion that his trial counsel failed to prepare for trial, pointing out that counsel carefully explored Hansen's mental health issues, and retained ballistics and mental health experts, none of whom were able to provide information that materially advanced the defense of this case. (Id., at 439-40.) Finally, having found that all of Hansen's claims were without merit, the Court concluded that Hansen's appellate counsel could not be deemed ineffective for failing to raise these claims on appeal, since “none of the . . . issues would have entitled [Hansen] to relief.” (Id., at 440.)

         Hansen filed a petition for allowance of appeal from this adverse ruling with the Pennsylvania Supreme Court, but on October 19, 2016, the Supreme Court declined to further review this case. (Id., at 441.)

         Hansen then filed this federal habeas corpus petition on November 3, 2016. (Doc. 1.) Like his state court post-conviction litigation, Hansen's presentation of claims in this federal proceeding has been erratic and marked by shifting claims that are often unexhausted. Thus, Hansen's initial petition presented five broadly framed claims alleging: (1) that the evidence was insufficient to convict him of murder; (2) that the state courts unreasonably applied clearly established law; (3) that Hansen was denied due process through cumulative errors by the courts, counsel and the Commonwealth; (4) that PCRA counsel was ineffective; and (5) that Hansen's trial and appellate counsel also rendered ineffective assistance to the petitioner. (Doc. 3.) Embedded within each of these broadly-framed claims were numerous sub-issues, many of which appeared to have never previously been presented to any court. (Id.)[2]

         In January of 2019, Hansen then filed an amended petition in this case. (Doc. 36.) That petition also appeared to advance a welter of distinct claims and arguments, many of which were both unexhausted and marked by multiple sub-issues. Thus, Hansen alleged that he suffered from major mental illness that was not acknowledged by the court, or effectively addressed by his counsel. In addition, Hansen challenged the sufficiency of the evidence, advancing various claims that essentially argued that he was actually innocent of the murder of Barnes. Hansen appeared to assert this claim of innocence both as a free-standing claim and as an excuse for his multiple procedural defaults.

         Hansen then renewed claims that his trial counsel was ineffective, adding some previously unlitigated allegations of ineffectiveness to his contentions regarding the performance of his trial counsel. Specifically, Hansen now complained that trial counsel was ineffective in: (1) failing to object to the Commonwealth's opening statement; (2) failing to develop evidence relating to the victim's drinking on the date of her death; (3) failing to procure psychiatric evidence in support of a diminished capacity defense; (4) failing to investigate alternate defenses; (5) failing to identify criminal backgrounds on Commonwealth witnesses; (6) failing to present evidence that Hansen was justified in shooting Barnes because Barnes had “provoked” him; (7) failing to present death penalty mitigation witnesses;[3] and (8) failing to further cross examine witnesses or lodge objections at trial. Hansen then alleged that both his appellate and PCRA counsel were also ineffective and failed to properly preserve meritorious legal issues.

         In addition, Hansen asserted an entirely new and previously unmentioned claim of prosecutorial misconduct, alleging that the prosecutor made improper statements in his opening statements. This claim had never before been presented at trial, on direct appeal, or in Hansen's PCRA litigation. Hansen coupled this prosecutorial misconduct claim with allegations of previously unidentified error by the court. Hansen's amended petition closed by asserting that clear and convincing evidence rebutted the factual findings made by the state courts throughout his state post-conviction litigation, and demanded a evidentiary hearing.

         The Commonwealth has responded both to Hansen's original petition and to his amended petition, arguing that Hansen's latest claims are often unexhausted and are entirely without merit. Hansen, in turn, has submitted traverses in support of his contentions. Accordingly, this case is now ripe for resolution.

         Finding that Hansen's claims are frequently unexhausted, and uniformly lack merit, for the reasons set forth below, it is recommended that this petition be denied.

         III. Discussion

         A. State Prisoner Habeas Relief-The Legal Standard.

         (1) Substan ...


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