Brown v. Garmon

          MEMORANDUM OPINION

          LISA PUPO LENIHAN MAGISTRATE JUDGE

         Currently pending before the Court is a Petition for Writ of Habeas Corpus (“Habeas Petition”) filed by Petitioner William Lee Brown (hereinafter referred to as “Petitioner”, “Brown”, “Appellant, ” or “Defendant”) pursuant to 28 U.S.C. § 2254. (ECF No. 3). Petitioner challenges his judgment of sentence imposed after he was convicted in a non-jury trial of one count of first-degree murder, two counts of first-degree murder of an unborn child and one count of third-degree murder. For the following reasons, the Habeas Petition and a Certificate of Appealability will be denied.

         A. Procedural Background

         1. Pre-trial and Trial Proceedings

         On October 27, 2003, Petitioner was charged by criminal information filed in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, with one court of Criminal Homicide (18 Pa. C.S. § 2501(a)) and two counts of Criminal Homicide of an Unborn Child (18 Pa. C.S. § 2604) in connection with the deaths of Tiffany Griffin and her unborn twins. (Docket Sheet at CP-02-CR-13412-2003, Res't Ex. 1, ECF No. 29-1, pp.1-23); (Criminal Information at CC No. 200313412, Resp't Ex. 2, ECF No. 291, pp.24-29). The Commonwealth gave notice of its intention to seek the death penalty. (Resp't Ex. 2, ECF No. 29-1, pp.27-28).

         On January 6, 2004, Petitioner was charged by criminal information filed in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, with one count each of Criminal Attempt (Homicide) (18 Pa. C.S. § 901(a)), Aggravated Assault (18 Pa. C.S. § 2702(a)(1)) and Burglary (18 Pa. C.S § 3502), in connection with the attempted murder of Carmen Griffin, the mother of Tiffany Griffin. (Docket Sheet at CP-02-CR- 15665-2003, Resp't Ex. 3, ECF No. 29-1, pp.30-46); (Criminal Information at CC No. 200315665, Resp't Ex. 4, ECF No. 29-1, pp.47-51). As a result of her injuries, however, Carmen Griffin died before trial, so the Commonwealth sought and was granted permission to withdraw the attempt and aggravated assault charges and charge Petitioner with Carmen Griffin's homicide. The criminal information was filed on April 8, 2005. (Docket Sheet at CP-02-CR-04266-2005, Resp't Ex. 5, ECF No. 29-1, pp.52-64); (Criminal Information at CC No. 200504266, Resp't Ex. 6, ECF No. 29-1, pp.6569). The Commonwealth again gave notice of its intention to seek the death penalty. (Resp't Ex. 6, ECF No. 29-1, p.66).

         On September 8, 2005, attorney John Kent Lewis, Esquire, filed an Omnibus Pre-Trial Motion seeking suppression of evidence and pre-trial habeas corpus relief, and giving notice of defendant's intention to pursue an insanity and/or mental infirmity defense. (Omnibus Pre-Trial Motion, Resp't Ex. 7, ECF No. 29-1, pp.70-73). An Atkins^[1]hearing took place before the Honorable Lawrence J. O'Toole on July 23, 2007, during which argument was presented by the defense in an attempt to bar imposition of the death penalty on the basis that Petitioner was mentally retarded. Petitioner was represented at that hearing by attorney John Knorr, Esquire, and John Elash, Esquire. The Commonwealth was represented by Assistant District Attorney Lisa Pellegrini.

         In November 2007, the court appointed new counsel, attorney Thomas N. Farrell, Esquire, to represented Petitioner at trial, and Attorney Knorr was to continue to represent Petitioner during the penalty phase.

         On February 28, 2008, a suppression hearing took place before Judge O'Toole, with Attorney Farrell representing Petitioner and ADA Pellegrini appearing on behalf of the Commonwealth. The following day, Judge O'Toole denied the defense's motion to suppress and request for pre-trial habeas corpus relief. Judge O'Toole also denied the defense's motion to bar the imposition of the death penalty. (Orders, Resp't Ex. 8, ECF No. 29-1, pp.74-76).

         The case was reassigned to the Honorable Jeffrey A. Manning on October 27, 2008.

         On March 31, 2009, Petitioner, represented by Attorney Knorr and Attorney Farrell, appeared before Judge Manning and waived his right to a jury trial. (Waiver of Jury Trial and Explanation of Defendant's Right, Resp't Ex. 9, ECF No. 29-1, pp.77-86).

         On April 7, 2009, Petitioner, represented by Attorney Knorr and Attorney Farrell, appeared before Judge Manning for a non-jury trial. ADA Pellegrini represented the Commonwealth. On April 16, 2009, at the close of the trial, the court found Petitioner guilty of first-degree murder for the death of Tiffany Griffin, guilty of two counts of first-degree murder for the deaths of her unborn children, and guilty of third-degree murder for the death of Carmen Griffin. He was acquitted of burglary.

         On May 28, 2009, in a separate proceeding, the court found that mitigating circumstances were not outweighed by the aggravating circumstances and therefore did not impose the death penalty but sentenced Petitioner instead to three consecutive terms of life imprisonment for the first-degree murders of Tiffany Griffin and her unborn children. The court also imposed a consecutive term of 20 to 40 years' imprisonment for the third-degree murder of Carmen Griffin. (Order of Sentences, Resp't Ex. 10, ECF No. 29-1, pp.87-93). No. post-sentence motions were filed.

         2. Direct Appeal Proceedings

         On June 11, 2009, Attorney Farrell filed a Notice of Appeal on Petitioner's behalf only as to CP-02-CR-13412-2003, and the appeal was docketed at Pennsylvania Superior Court docket No. 1021 WDA 2009. (Superior Court Docket Sheet, Resp't Ex. 11, ECF No. 29-2, pp.1-6). On January 19, 2010, Judge Manning filed his Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). (Resp't Ex. 12, ECF No. 29-2, p.7-18). By order dated July 13, 2010, Petitioner was granted leave to amend the Notice of Appeal to include both CP-02-CR- 15665-2003 and CP-02-CR-04266-2005. (Resp't Ex. 1, ECF No. 29-1, p.14). The Appellant's Brief was filed on August 2, 2010 (Resp't Ex. 13, ECF No. 29-2, pp.19-90), and the Appellee's Brief was filed on October 5, 2010 (Resp't Ex. 14, ECF No. 29-3, pp.1-59). On February 25, 2011, the Superior Court issued a Memorandum Opinion rejecting Petitioner's challenge to the sufficiency of the evidence as to the homicide charges involving Tiffany Griffin and her unborn children but remanded the matter so that Judge O'Toole could make findings of fact and conclusions of law with respect to his denial of Petitioner's pre-trial motion to suppress. (Resp't Ex. 15, ECF No. 29-4, pp.1-9). On March 21, 2011, in accordance with the remand, Judge O'Toole issued his opinion. (Resp't Ex. 16, ECF No. 29-4, pp.10-14). A supplemental brief was filed by Appellant on April 4, 2011 (Resp't Ex. 17, ECF No. 29-4, pp.15-32) and an amended brief was filed by Appellee on May 25, 2011 (Resp't Ex. 18, ECF No. 29-4, pp.33-51). On June 16, 2011, the Superior Court filed a second Memorandum Opinion, which affirmed Petitioner's judgment of sentence. (Resp't Ex. 19, 29-4, pp.52-56).

         On July 13, 2011, Attorneys Farrell and Knorr filed a Petition for Allowance of Appeal (“PAA”) in the Pennsylvania Supreme Court (Resp't Ex. 21, ECF No. 29-5, pp.4-75), which was docketed at No. 358 WAL 2011. (Pennsylvania Supreme Court Docket Sheet, Resp't Ex. 20, ECF No. 29-5, pp.1-3). The Commonwealth filed a “No Answer” Letter in response to the PAA on July 15, 2011. (Resp't Ex. 22, ECF No. 29-5, p.76). The Pennsylvania Supreme Court denied the PAA by Order dated October 25, 2011. (Resp't Ex. 23, ECF No. 29-5, p.77).

         3. Post-conviction Proceedings

         On July 13, 2012, Petitioner filed a pro se petition pursuant to Pennsylvania's Post-Conviction Relief Act (“PCRA”). (Resp't Ex. 1, ECF No. 29-1, p.15). The PCRA court appointed attorney Ryan James, Esquire, who filed an Amended PCRA Petition on behalf of Petitioner on September 24, 2013. (Resp't Ex. 24, ECF No. 29-6, pp.1-16). The Commonwealth filed its Answer on November 25, 2013. (Resp't Ex. 25, ECF No. 29-6, pp.17-58). On February 13, 2014, Judge Manning issued a Notice of Intent to Dismiss the Amended PCRA Petition. (Resp't Ex. 26, ECF No. 29-6, pp.59-61). By order dated April 14, 2014, Judge Manning dismissed the Amended PCRA Petition. (Resp't Ex. 27, ECF No. 29-6, pp.62-63). Three days later, on April 17, 2014, Attorney James filed a Reply Nunc Pro Tunc to the PCRA court's Notice of Intent to Dismiss (Resp't Ex. 28, ECF No. 29-6, pp.64-69), and he filed a Motion for Reconsideration on May 5, 2014 (Resp't Ex. 29, ECF No. 29-6, pp.70-74). The PCRA court did not rule on that motion.

         On May 16, 2014, Attorney James filed a Notice of Appeal in the Superior Court on Petitioner's behalf, which was docketed at No. 801 WDA 2014. (Superior Court Docket Sheet, Resp't Ex. 30, ECF No. 29-7, pp.1-4). The Brief for Appellant was filed on December 15, 2014 (Resp't Ex. 31, ECF No. 29-7, pp.5-41) and the Brief for Appellee was filed on January 14, 2015 (Resp't Ex. 32, ECF No. 29-81-62). On April 24, 2015, the Superior Court issued a Memorandum Opinion affirming the denial of PCRA relief. (Resp't Ex. 33, ECF No. 29-8, pp.63-79).

         On May 21, 2015, Petitioner filed a PAA in the Pennsylvania Supreme Court (Resp't Ex. 35, ECF No. 29-9, pp.4-40), which was docketed at No. 198 WAL 2015 (Resp't Ex. 34, ECF No. 29-9, pp.1-3). The Commonwealth filed a “No Answer” Letter in response to the PAA on May 22, 2015 (Resp't Ex. 36, ECF No. 29-9, p.41), and the PAA was denied by order dated December 7, 2015 (Resp't Ex. 37, ECF No. 29-9, p.42).

         On October 8, 2015, while Petitioner's PAA was still pending in the Pennsylvania Supreme Court, Petitioner filed a second pro se PCRA petition. (Resp't Ex. 38, ECF No. 29-10, pp.1-10). On November 16, 2015, the PCRA court issued a Notice of Intent to Dismiss the PCRA petition (Resp't Ex. 39, ECF No. 29-10, pp.11-12), to which Petitioner filed a response on December 11, 2015 (Resp't Ex. 40, ECF No. 29-10, pp.13-22). The PCRA court dismissed the petition on December 22, 2015. (Resp't Ex. 41, ECF No. 29-10, p.23).

         On January 14, 2016, Petitioner filed his Habeas Petition and Brief in Support thereof in this case. (ECF Nos. 1, 1-1). They were docketed after Petitioner paid the filing fee on February 5, 2016. (ECF Nos. 3, 4). Respondents filed their Answer to the Habeas Petition on January 23, 2017. (ECF No. 29). Petitioner filed a Reply to the Respondents' Answer on February 27, 2017 (ECF No. 32), and he filed two Addendums to his Habeas Petition on January 24, 2018 and April 27, 2018, respectively (ECF Nos. 39, 40).

         On January 20, 2016, Petitioner filed a Notice of Appeal in the Superior Court, which was docketed at No. 180 WDA 2016. (Superior Court Docket Sheet, Resp't Ex. 42, ECF No. 29-10, pp.24-27). His Appellant Brief was filed on April 13, 2016 (Resp't Ex. 43, ECF No. 29-10, pp.28-60) and the Brief for Appellee was filed on May 13, 2016 (Resp't Ex. 44, ECF No. 29-11, pp.1-37). On August 4, 2016, the Superior Court affirmed the dismissal of Petitioner's second PCRA petition. (Resp't Ex. 47, ECF No. 29-11, pp.55-60). Petitioner did not file a PAA in the Pennsylvania Supreme Court.

         On February 23, 2016, while the appeal of his second PCRA petition was still pending in the Superior Court, and after he filed his Habeas Petition in this case, Petitioner filed a third pro se PCRA petition, which he titled “Motion for Post Conviction DNA Testing.” (Resp't Ex. 45, ECF No. 29-11, pp.38-53). The PCRA court dismissed the Motion without prejudice on May 6, 2016. (Resp't Ex. 46, ECF No. 29-11, p.54).

         B. Standard of Review

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The phrase “clearly established Federal law, ” as the term is used in Section 2254(d)(1) is restricted “to the holdings, as opposed to the dicta of [the United States Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 365 (2000).

         If a petitioner is able to satisfy the requirements of § 2254(d)(1), then the state court decision is not entitled to deference under AEDPA and the federal habeas court proceeds to a de novo evaluation of the constitutional claim on the merits. See Tucker v. Superintendent Graterford SCI, 677 Fed.Appx. 768, 776 (3d Cir. 2017) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) (“When . . . the requirement set forth in § 2254(d)(1) is satisfied[, ] [a] federal court must then resolve the claim without the deference AEDPA otherwise requires.”). Indeed, the Third Circuit recently explained that,

[w]hile a determination that a state court's analysis is contrary to or an unreasonable application of clearly established federal law is necessary to grant habeas relief, it is not alone sufficient. That is because, despite applying an improper analysis, the state court still may have reached the correct result, and a federal court can only grant the Great Writ if it is “firmly convinced that a federal constitutional right has been violated, ” Williams, 529 U.S. at 389, 120 S.Ct. 1495. See also Horn v. Banks, 536 U.S. 266, 272, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (“[w]hile it is of course a necessary prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of review . . . none of our post-AEDPA cases have suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the AEDPA standard”). Thus, when a federal court reviewing a habeas petition concludes that the state court analyzed the petitioner's claim in a manner that contravenes clearly established federal law, it then must proceed to review the merits of the claim de novo to evaluate if a constitutional violation occurred. See Lafler v. Cooper, 566 U.S. 156, 174, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-89 (3d Cir. 2017) (internal footnote omitted).

         The AEDPA further provides for relief if an 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)(2). Under § 2254(d)(2), a state court decision is based on an “unreasonable determination of the facts” if the state court's factual findings are “objectively unreasonable in light of the evidence presented in the state-court proceeding, ” which requires review of whether there was sufficient evidence to support the state court's factual findings. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Within this overarching standard, a petitioner may attack specific factual determinations that were made by the state court, and that are subsidiary to the ultimate decision. Here, § 2254(e)(1) comes into play, instructing that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Lambert v. Blackwell, 387 F.3d 210, 235 (3d Cir. 2004).

         C. Discussion

         Petitioner raises five claims for relief in his Habeas Petition: (1) the Commonwealth failed to present sufficient evidence to support the first-degree murder conviction, (2) the trial court erred in denying the defense's pre-trial motion to suppress, (3) the trial court erred in accepting Petitioner's waiver of his right to a jury trial, (4) counsel was ineffective for failing to call two alibi witnesses, and (5) PCRA counsel was ineffective for failing to file a timely second amended PCRA petition raising additional claims. Petitioner also presents a sixth claim in his two addendums asserting that DNA testing would prove his actual innocence.

         1. Claim One: Sufficiency of the Evidence

         Petitioner's first claim is that the Commonwealth failed to present sufficient evidence to find beyond a reasonable doubt that he had the specific intent to kill Tiffany Griffin. In state court, Petitioner properly and fairly presented this claim in his direct appeal proceedings and it was adjudicated on the merits by the Superior Court. Therefore, this claim is deemed exhausted for purposes of federal habeas review. The inquiry before this Court is whether the Superior Court's adjudication of this claim was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).

         The clearly established federal law to analyze a sufficiency of the evidence claim is set forth in Jackson v. Virginia, 443 U.S. 307, 324 (1979), where the United States Supreme Court held that “in a challenge to a state conviction brought under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilty beyond a reasonable doubt.” In a federal habeas corpus proceeding where the sufficiency of the evidence is in contention:

[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt . . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 318-19 (internal citations omitted) (emphasis in original). See also Robertson v. Klem, 580 F.3d 159, 165 (3d Cir. 2009); Orban v. Vaughn, 123 F.3d 727, 731-33 (3d Cir. 1997).

         In applying the Jackson standard, the reviewing court must consider each substantive element of the criminal offense at issue as defined under state law. Coleman v. Jackson, 132 S.Ct. 2060, 2064 (2012); Jackson, 443 U.S. at 324, n.16. “While the elements of a criminal conviction are to be defined by state law, a reviewing court's determination of whether sufficient evidence was produced to satisfy each element is governed by federal law. Vaughter v. Folino, 2014 WL 1152540, at *15 (E.D. Pa. Mar. 24, 2014) (citing Coleman, 132 S.Ct. at 2064).

         a. “Contrary to”

         The Supreme Court has identified two scenarios where a state court decision will fall into section 2254(d)(1)'s “contrary to” clause. First, a state court decision will be “contrary to” clearly established federal law when the court “applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). It set forth the following example where a state court decision would be “contrary to” Strickland v. Washington, 466 U.S. 668 (1984), the familiar clearly established federal law governing ineffective assistance of counsel claims.

If a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be ‘diametrically different,' ‘opposite in character or nature,' and ‘mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a ‘reasonable probability that . . . the result of the proceeding would have been different.'

Williams, 529 U.S. at 405-06 (internal citations omitted). The Supreme Court said that a state court decision will also be “contrary to” clearly established federal law if it “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Id. at 406.

         In this case, both the trial judge (in his Pa. R.A.P. 1925(a) Opinion) and the Pennsylvania Superior Court applied a well-known Pennsylvania test for evaluating a challenge to the sufficiency of the evidence set forth by the Pennsylvania Superior Court in previous decisions. See (Resp't Ex. 12, ECF No. 29-2, p.10) (citing Commonwealth v. Passmore, 857 A.2d 697, 706 (Pa. Super. Ct. 2004). See also (Resp't Ex. 15, ECF No. 29-4, pp.4-5) (citing Commonwealth v. King, 990 A.2d 1172, 1178 (Pa. Super. Ct. 2010). While neither state court cited to Jackson, the Third Circuit has found that the Pennsylvania test for sufficiency of the evidence challenges is identical to the federal standard set forth in Jackson. See Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227, 1233 (3d Cir. 1992) (“the formulation of the Pennsylvania test for insufficiency of the evidence is almost identical to that under federal law”). As such, the adjudication of this claim by the Pennsylvania Superior Court was not contrary to clearly established federal law.

         b. “Unreasonable application of”

         The Court's next inquiry is whether the adjudication of Petitioner's sufficiency of the evidence claim was an unreasonable application of Jackson. The Supreme Court has said that under the “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), “a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411. The Supreme Court later expanded on this interpretation of the “unreasonable application” clause explaining that the state court's decision must be “objectively unreasonable, ” not merely wrong; even “clear error” will not suffice. Locklyer v. Andrade, 538 U.S. 63, 75 (2003). “As 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. 86, 103 (2011).

         To have been entitled to relief on this claim in his direct appeal, Petitioner had to show that the evidence, viewed in the light most favorable to the Commonwealth, was insufficient to enable a fact-finder to find beyond a reasonable doubt that he acted with the specific intent to kill Tiffany Griffin. The Superior Court, as required, identified the elements of first-degree murder and quoted the applicable statutory language defining an “intentional killing.” (Resp't Ex. 15, ECF No. 29-4, pp.3-4). It also noted the defenses of ...