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Hutchinson v. Folino

United States District Court, E.D. Pennsylvania

September 6, 2019

STEVEN HUTCHINSON
v.
LOUIS S. FOLINO, ET AL.

          MEMORANDUM

          JOHN R. PADOVA, J.

         Before the Court is Steven Hutchinson's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On July 23, 2018, United States Magistrate Judge Richard A. Lloret filed a Report and Recommendation recommending that we deny the Petition in its entirety. Hutchinson has filed Objections to the Report and Recommendation. For the reasons that follow, we overrule the Objections, adopt the Report and Recommendations, and deny the Petition with prejudice.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On December 9, 1999, Hutchinson was convicted by a jury of first-degree murder and other offenses in connection with the shooting of Stephanie Epps on September 16, 1997. (12/9/99 N.T. at 5-6.) Stephanie Epps, who had dated Hutchinson for nearly a year prior to her death, was shot and killed in the lobby of her apartment building, in front of her children, Desiree Epps, then seven years old, and Philip Epps, then nine years old. Commonwealth v. Hutchinson, 811 A.2d 556, 558 (Pa. 2002) ("Hutchinson I"). When the police arrived at the scene, both children identified Hutchinson as the shooter. (Id.) Philip Epps testified at trial that, on the day of the shooting, Hutchinson met Philip, Desiree, and their mother at the children's church after school program. (12/2/99 N.T. at 55-56.) Hutchinson and Epps began arguing when they all left the church. (Id. at 57, 84-85.) Philip, Desiree, and their mother left the church in Epps's car, and Hutchinson followed them in his black Lexus. (Id. at 57-58.) Back at their apartment building, Philip saw his mother and Hutchinson start arguing again. (Id. at 58.) Hutchinson followed Epps and the children into the apartment building and shot at Epps four or five times as they were waiting for the elevator. (Id. at 59-60.) "According to the medical examiner, two of [the] bullets struck Epps, one in the head and one in the abdomen." Hutchinson I, 811 A.2d at 559.

         Another resident of the apartment building, Eugene Green, testified at Hutchinson's trial that he had just gotten off of a bus across the street from the apartment building when he saw a black Lexus leaving the building's parking lot. (12/3/99 N.T. at 47-48.) Green identified Hutchinson in court and testified that he had seen him driving a black Lexus in the past. (Id. at 51.) Green further testified that, after he saw the black Lexus leave the parking lot, he saw the Epps children running toward him, and Desiree asked him to call the police because their mother had been shot. (]d. at 48-49.) Green helped the children call the police from a 7-11. (Id. at 49.) "One of the responding officers, who brought the children's father to the scene of the crime, testified that when the children saw their father, they ran up to him, and Desiree told him that 'Mr. Steve' shot her mother." Hutchinson L 811 A.2d at 559.

         Epps's sister, Jennifer Pugh, testified at Hutchinson's trial that Epps visited her on September 12, 1997, four days before her death. (12/3/99 N.T. at 66-68.) hi Pugh told the jury that Epps told her that Hutchinson had slapped her so hard "she flew across the room." (Id. at 68.) Pugh further testified that on the night of September 12, 1997, she and Epps went to their parents' home and, while they were there, Hutchinson attempted to enter the home looking for Epps. (Id. at 71-72.) Pugh also testified that Epps spent that night in a hotel and, the next day, went to obtain a protection from abuse order, but did not complete the application. (Id. at 74.) Captain John Keaveney of the Philadelphia Sheriffs Office testified that on September 13, 1997, Epps went to the Philadelphia Criminal Justice Center and signed her name in the logbook for protection from abuse requests. (Id. a 141-44.) She wrote in the book that she was seeking protection from a man named Steve Marshall. (Id. at 141-44.) Epps had the locks on her apartment changed on September 13, 1997. Hutchinson I. 811 A.2d at 559.

         Shannon Husbands testified at trial that she also had a relationship with Hutchinson and that Hutchinson used the name "Steven Marshall." (12/6/99 N.T. at 133-35.) Husbands also identified Hutchinson in the courtroom. (Id. at 135.) Octavia Tucker, who had a relationship with Hutchinson between May 1996 and July 1997, testified at trial that Hutchinson used the name Steven Marshall when they were dating. (Id. at 169-70, 176-77.)

         Hutchinson's trial counsel presented an alibi defense at trial. Hutchinson I, 811 A.2d at 560. He "presented a witness who testified that [Hutchinson] was at a restaurant in Brooklyn, New York, on the day of the shooting and that he had been in and around New York during the entire week prior to the incident." Id. Hutchinson's trial counsel also "attempted to undermine the credibility of the children's testimony, and advanced the theory that the victim's estranged husband was responsible for the murder." Commonwealth v. Hutchinson, 25 A.3d 277, 283-84 (Pa. 2011) ("Hutchinson II"). The jury found Hutchinson guilty of first-degree murder, carrying firearms on public streets, possessing instruments of crime, and two counts of recklessly endangering another person. (12/9/99 N.T. at 5-6.) Following the penalty phase hearing, the jury "returned a verdict of death for the murder conviction." Hutchinson I, 811 A.2d at 560. The Pennsylvania Supreme Court denied Hutchinson's appeal and affirmed his sentence of death. Id. at 562.

         Hutchinson subsequently filed a petition for relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541-46 ("PCRA"). In his PCRA petition, Hutchinson asserted claims regarding both the guilt and penalty phases of his trial, including claims of ineffective assistance of trial and direct appeal counsel.[1] Hutchinson II, 25 A.3d at 284-85. Hutchinson's guilt phase claims asserted that his trial and/or appellate counsel were ineffective for (1) failing to object at trial and argue on appeal that the prosecutor, Assistant District Attorney ("ADA") William Fisher, used his peremptory strikes injury selection in a discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) failing to object at trial and raise a claim on appeal regarding the jury being present while the Epps children were colloquied regarding their competency to testify; (3) failing to object at trial to the admission of evidence regarding prior bad acts; (4) failing to object at trial and raise a claim on appeal regarding instances of prosecutorial misconduct; (5) failure to investigate or present alternative defenses for use at trial; and (6) failure to object at trial and raise a claim on appeal regarding a time limitation the trial court set on closing argument. Hutchinson II. 25 A.3d at 286, 287, 289, 299, 306, 311-12, 315. The PCRA Court denied Hutchinson's guilt phase claims without an evidentiary hearing, but granted his penalty phase claims. See Id. at 284, 320. Hutchinson was resentenced to life imprisonment without the possibility of parole on January 23, 2013. Hutchinson appealed the PCRA Court's denial of his guilt phase claims. Id. at 318-21. The Pennsylvania Supreme Court denied Hutchinson's appeal in its entirety. Id. at 322.

         Hutchinson filed the instant Petition on July 3, 2013. The Petition raises eight claims for relief: (1) the Commonwealth used its peremptory strikes in a racially discriminatory manner in violation of Batson and Hutchinson's trial and appellate counsel were ineffective for failing to raise this claim; (2) the Commonwealth improperly introduced evidence of other bad acts, the trial court failed to give the appropriate cautionary instruction to the jury, and Hutchinson's trial and appellate counsel were ineffective for failing to raise these claims; (3) the prosecutor engaged in acts of misconduct and Hutchinson's trial and appellate counsel were ineffective for failing to raise these claims; (4) the Epps children were improperly colloquied with respect to their competency to tell the truth in front of the jury and Hutchinson's trial and appellate counsel were ineffective for failing to raise this claim; (5) the trial court improperly limited trial counsel's closing argument and trial and appellate counsel were ineffective for failing to raise this claim; (6) trial counsel was ineffective in failing to investigate certain alternative defenses and appellate counsel was ineffective in that he failed to raise this claim on direct appeal; (7) Hutchinson's trial was conducted by a biased judge who improperly denied Hutchinson's motion for recusal from his PCRA proceedings; and (8) as a result of the cumulative effect of these errors, Hutchinson was denied due process and the effective assistance of his attorneys. In a thorough and well-reasoned Report and Recommendation, Magistrate Judge Richard A. Lloret recommends that we deny Hutchinson's Petition in its entirety. Hutchinson has filed Objections to Magistrate Judge Lloret's recommendations with respect to just four of his claims for relief.

         II. STANDARD OF REVIEW

         Where a habeas petition has been referred to a magistrate judge for a report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The state habeas statute, 28 U.S.C. § 2254, provides that the "district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "The petitioner carries the burden of proof." Cullen v. Pinholster. 563 U.S. 170, 181 (2011) (citation omitted).

         Pursuant to § 2254, a petition for writ of habeas corpus may be granted only if (1) the state court's adjudication of the claim "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 if (2) the adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). In Williams v. Taylor. 529 U.S. 362 (2000), the Supreme Court explained the two components of § 2254(d)(1) as follows:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id. at 412-13. In order to determine whether a state court's application of federal law is '"unreasonable, "' a court must apply an objective standard, such that the relevant application "may be incorrect but still not unreasonable." Duncan v. Morton, 256 F.3d 189, 196 (3d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. at 409-10). The test is whether the state court decision "resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo v. Superintendent. SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999) (en banc). With respect to § 2254(d)(2), "'[f]actual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence.'" Dellavecchia v. Sec'v Pa. Dep't of Corrs., 819 F.3d 682, 692 (3d Cir. 2016) (alteration in original) (quoting Werts v. Vaughn. 228 F.3d 178, 196 (3d Cir. 2000)).

         III. DISCUSSION

         Hutchinson objects to four of the Magistrate Judge's Recommendations:

(1) the Magistrate Judge's recommendation that we deny his ineffective assistance of counsel claim regarding the prosecutor's use of peremptory challenges injury selection;
(2) the Magistrate Judge's recommendation that we deny his ineffective assistance of counsel claim concerning the questioning of the Epps children in front of the jury regarding their competency to tell the truth;
(3) the Magistrate Judge's recommendation that we deny his ineffective assistance of counsel claim regarding allegedly improper vouching for the ability of the Epps children to testify truthfully by the prosecutor and a witness; and
(4) the Magistrate Judge's recommendation that we deny his ineffective assistance of counsel claim regarding his trial counsel's failure to investigate certain alternative defenses.

         A. Ineffective Assistance of Counsel

         A claim for ineffective assistance of counsel is grounded in the Sixth Amendment right to counsel, which exists "'in order to protect the fundamental right to a fair trial.'" lockhart v. Fretwell. 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684 (1984)) (additional citations omitted). In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must demonstrate both that (1) his attorney's performance was deficient, i.e., that the performance was unreasonable under prevailing professional standards, and (2) that he was prejudiced by his attorney's performance. Strickland, 466 U.S. at 687-88, 691-92. An attorney's performance is deficient if it falls "below an objective standard of reasonableness." Id. at 688. Prejudice is proven if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "We may address the prejudice prong first '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice.'" United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014) (alteration in original) (quoting Strickland, 466 U.S. at 697). Counsel cannot be found to be ineffective for failing to pursue a meritless claim. See United States v. Bui, 795 F.3d 363, 366-67 (3d Cir. 2015) ('"[T]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.'" (quoting United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999))).

         B. Batson

         Hutchinson argues that the Pennsylvania Supreme Court's denial of his layered ineffective assistance of counsel claim regarding trial and appellate counsel's failure to object to and argue on appeal that the prosecutor used his peremptory strikes in a racially discriminatory manner in violation of Batson was contrary to or an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts.[2] The Pennsylvania Supreme Court denied this ineffective assistance of counsel claim based on its conclusion that a Batson challenge would have been meritless and, thus, counsel cold not be deemed ineffective in failing to raise it. See Hutchinson, 25 A.3d at 289. Hutchinson argues in his habeas petition that the Pennsylvania Supreme Court's decision was based on an unreasonable application of Batson because the Court failed to follow the three-step formula set out in Batson and, instead, followed its own precedent, which relieved it of any obligation to follow that three-step process.

         The Magistrate Judge recommends that the Pennsylvania Supreme Court's reliance on its own precedent resulted in an unreasonable application of Batson (R&R at 18), but also recommends that Hutchinson's Batson claim lacks merit under de novo review. Specifically, the Magistrate Judge recommends that Hutchinson has not established a prima facie case at the first step of the Batson inquiry. (Id. at 23.) Hutchinson objects only to the Magistrate Judge's recommendation that he has not set forth a meritorious Batson claim of racially discriminatory jury selection.

         1. The Batson analysis

         The Batson analysis consists of three steps: "First, the defendant must make out a prima facie case 'by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.'" Johnson v. California, 545 U.S. 162, 168 (2005) (quoting Batson, 476 U.S. at 93-94). "Second, once the defendant has made out a prima facie case, the 'burden shifts to the State to explain adequately the racial exclusion' by offering permissible race-neutral justifications for the strikes." Id. (quoting Batson, 476 U.S. at 94; and citing Alexander v. Louisiana, 405 U.S. 625, 632 (1972)). "Third, '[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.'" Id. (alterations in original) (quoting Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam)). "[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." Id. at 167. The Supreme Court has defined "inference" in this context as "a 'conclusion reached by considering other facts and deducing a logical consequence from them.'" Id. at 168 n.4 (quoting Black's Law Dictionary 781 (7th ed. 1999)).

         "[A] prima facie case of discrimination can be made out by offering a wide variety of evidence." Id. at 169 (citing Batson. 476 U.S. at 94). The United States Court of Appeals for the Third Circuit has explained that the first step of the Batson analysis "is not intended to be particularly onerous, and 'the defendant is entitled to rely on the fact... that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.'" Williams v. Beard. 637 F.3d 195, 214 (3d Cir. 2011) (alteration in original) (quoting AbuJamal v. Horn, 520 F.3d 272, 288 (3d Cir. 2008)). The Supreme Court has identified two particular types of evidence that are relevant to step one of the Batson analysis: "[f]irst, the defendant may proffer evidence that the government exercised a '"pattern" of strikes against black jurors included in the particular venire, [which] might [then] give rise to an inference of discrimination.'" Id. (second and third alterations in original) (quoting Batson, 476 U.S. at 97). "Second, 'the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose.'" Id. (quoting Batson, 476 U.S. at 97).

         2. Hutchinson's evidence

         Hutchinson relies primarily on statistical evidence to satisfy his burden at the first step of the Batson analysis. "Statistical evidence may be sufficient by itself to make out a prima facie case of racial discrimination." Id. (citations omitted). For example, the Third Circuit has found that the petitioner had established a prima facie case pursuant to Batson "when the prosecutor used eleven of twelve strikes to remove African American venirepersons[, ]" and "where the Commonwealth used thirteen of its fourteen strikes to remove African Americans." Id. (citing first Holloway v. Horn. 355 F.3d 707, 722 (3d Cir. 2004); and then Brinson v. Vaughn, 398 F.3d 225, 234-35 (3d Cir. 2005))). The Third Circuit has also "strongly implie[d] that a prosecutor who removes twelve of fourteen African American venire members exhibits a pattern of strikes sufficient to raise an improper inference." Id. (citing Hardcastle v. Horn, 368 F.3d 246, 256 (3d Cir. 2004)). In fact, the prosecutor's strikes in Holloway, Brinson, and Hardcastle were so compelling that the evidence of the strikes was "sufficient to satisfy the prima facie threshold even without evidence of the venire's racial makeup." Id. at 215.

         Hutchinson maintains that the evidence of the prosecution's strikes in this case is similarly compelling. He contends that the Commonwealth had the opportunity to strike 45 members of the venire. He asserts that he has been able to ascertain the race of 43 of these individuals and he states that sixteen were African-American and twenty-seven were not. (Pet. Mem. Exs. 3-5; Pet. Reply at 7-8.) Hutchinson states that the prosecutor struck 10 of the 16 African American members of the venire, or 62.5%, and only 8 of the non-African-American members of the venire, or 29.6%. (See Pet. Mem. at 16 n.4, Exs. 3-5; Pet. Reply at 8.) One of the twelve seated jurors was African-American, as was one of the alternates. (Id. at 16 n.4, Exs. 3-5; Pet. Reply at 8.) Hutchinson further states that ten of the seated jurors were Caucasian and the race of the remaining juror is unknown, as is the race of one of the two alternates. (Id. at 16, Exs. 3-5; Pet. Reply at 8.) The evidence of record, however, does not support Hutchinson's assertions regarding the race of 19 members of the venire, two of whom were seated as jurors.[3]

         The findings of the PCRA Court regarding the race of the venire members, on which the Pennsylvania Supreme Court relied, do not align with Hutchinson's assertions here. As the Pennsylvania Supreme Court observed:

the PCRA court pointed out that 53 persons were eligible to be struck by either the Commonwealth or the defense; of this total, 20 were African-American and 33 were non-African-American. The Commonwealth used 18 of its available 20 peremptory strikes, 10 against African-Americans and 8 against non-African-Americans. The defense used 21 strikes, 8 against African-Americans and 13 against non-African-Americans. Of the 8 African-Americans struck by the defense, the Commonwealth had accepted 4 of them before they were struck by the defense.

Hutchinson II. 25 A.3d at 287-88 (citing 10/25/ 06 PCRA Court Opinion at 3). While Hutchinson would prefer that we rely on his assertions as to the size and racial composition of the venire, we must presume '"[f]actual issues determined by a state court ... to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence.'" Dellavecchia, 819 F.3d at 692 (alteration in original) (quoting Werts, 228 F.3d at 196). Since Hutchinson's assertions regarding the race of 19 members of the venire are not supported by any evidence of record, we conclude that he has not rebutted the presumption that the state court's findings regarding the size and racial composition of the venire are correct with clear and convincing evidence and we accept for purposes of our analysis that the size and racial composition of the venire were correctly found by the state court.

         Hutchinson argues that the prosecutor's strike rate and acceptance rate support a prima facie case under Batson. "The strike rate is computed by comparing the number of peremptory strikes the prosecutor used to remove black potential jurors with the prosecutor's total number of peremptory strikes exercised." Abu-Jamal v. Horn, 520 F.3d 272, 290 (3d Cir. 2008), vacated on other grounds sub nom. Beard v. Abu-Jamal, 558 U.S. 1143 (2010). The prosecutor's strike rate was 55.5% (10 of 18 strikes were used against African-Americans). See Id. The strike rate in this case is insufficient, in and of itself, to establish a prima face case under Batson. See Abu-Jamal, 520 F.3d at 293 (noting that "the prosecution used ten of fifteen peremptory strikes against black potential jurors. We have never found a prima facie case based on similar facts"); Lewis v. Horn, 581 F.3d 92, 104 (3d Cir. 2009) (denying Batson claim where "even if we were to accept as true Lewis's bald assertion that eight of the twelve venire members whom the prosecutor struck were African American, a strike rate of 66.67% is insufficient information to establish a prima facie case of racial discrimination in the exercise of peremptory strikes" (citing Abu-Jamal, 520 F.3d at 293)).

         "Evidence contrasting the rate at which the prosecution accepts black and white jurors may also raise an inference of discrimination." Williams v. Beard, 637 F.3d at 215; see also Bond v. Beard, 539 F.3d 256, 269-70 (3d Cir. 2008) (calculating the prosecutor's acceptance rate by comparing the number of African American venire persons accepted by the prosecutor with the number of African American venire persons he had the opportunity to strike). In this case, the prosecutor accepted 37.5% of the African-American members of the venire whom he had the opportunity to strike (six of sixteen).[4] See Hutchinson II, 25 A.3d at 287-88. The Third Circuit has found that an acceptance rate of 41 to 47% of African-American members of a venire compared to an acceptance rate of 83% of Caucasian members of the same venire can raise an inference of discrimination under Batson. See Williams v. Beard, 637 F.3d at 215 (citing Bond v. Beard, 539 F.3d 256, 270 (3d Cir. 2008)). Hutchinson claims that the prosecutor accepted 70.4% of Caucasian members of the venire in his case. (See Obj. at 9.) However, the record does not contain evidence of the races of all of the members of the venire accepted by the prosecutor. (See Pet. Mem. at 16 n.4, Ex. 5.[ ...


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