United States District Court, E.D. Pennsylvania
R. PADOVA, J.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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.
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.
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.)
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
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. 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.
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.
STANDARD OF REVIEW
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).
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
Under the "contrary to" clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the "unreasonable
application" clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id. at 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)).
objects to four of the Magistrate Judge's
(1) the Magistrate Judge's recommendation that we deny
his ineffective assistance of counsel claim regarding the
prosecutor's use of peremptory challenges injury
(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
(4) the Magistrate Judge's recommendation that we deny
his ineffective assistance of counsel claim regarding his
trial counsel's failure to investigate certain
Ineffective Assistance of Counsel
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))).
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. 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.
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.
The Batson analysis
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)).
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).
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.
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.
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.
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)).
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). 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.[ ...