United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
Bissoon, United States District Judge.
Mitchell's (“Petitioner's”) Amended
Petition for a Writ of Habeas Corpus (Doc. 12) will be
granted only to the extent that he seeks a new capital
sentencing hearing. His guilt-phase claims will be denied.
September 1997, Petitioner raped his estranged wife, Robin
Little, on two separate occasions, nine dates apart. The
first rape occurred on September 1, 1997. The next day,
Petitioner gave a statement to the police in which he
confessed to the crime. The second rape occurred during the
early morning hours of September 10, 1997. Petitioner stabbed
and choked Robin to death during this attack. Later that same
day, he gave a statement to the police in which he confessed
that he killed Robin and raped her vaginally and anally,
thereby committing, during the commission of the killing, the
felonies of rape and involuntary deviate sexual intercourse
pleaded guilty to committing the September 10, 1997, rape and
IDSI. Following a trial before the Court of Common Pleas of
Allegheny County held in October 1999, a jury convicted him
of first-degree murder and of the September 1, 1997, rape. At
the conclusion of the sentencing phase of his trial, the same
jury determined that he should be sentenced to death on the
first-degree murder conviction.
this Court is Petitioner's Amended Petition for a Writ of
Habeas Corpus (Doc. 12), which he filed pursuant to 28 U.S.C.
§ 2254. He asserts that he is entitled to a new trial
or, at a minimum, another sentencing hearing. After careful
consideration of Petitioner's claims, the Court concludes
that he has demonstrated his trial counsel performed
deficiently when he failed to provide critical evidence to,
and prepare the testimony of, the defense's sole expert,
Dr. Lawrence Bernstein. This deficient performance prejudiced
Petitioner at his capital sentencing hearing. Therefore, if
the Commonwealth still seeks the death penalty for
Petitioner, it must conduct another capital sentencing
and Robin began dating around 1994, when they were in high
school. (Trial Tr. at 123-26). At Petitioner's trial, the
Commonwealth introduced entries from Robin's journal in
which she chronicled their volatile relationship and
Petitioner's abusive behavior towards her. (Id.
at 158-67). In September 1996, Petitioner threatened to kill
Robin if she ever left him. (Id. at 160). She gave
birth to their son in January 1997 and they were married in
April 1997, when Petitioner was age 19 and Robin was age 18.
Robin and their son lived with her mother, Debra King, in a
home located in an apartment building on Hamilton Avenue in
the Homewood neighborhood of Pittsburgh. Petitioner moved in
with them in the late spring of 1997. (Id. at
1997, Robin had ended her relationship with Petitioner, and
Petitioner had moved out. Robin and their son relocated to
Lancaster, Pennsylvania, to live with her brother. During
that time, Robin told her sister-in-law that she was afraid
of Petitioner and believed that one day he would kill her.
(Id. at 253-55).
August 1997, Robin and their son moved back to Pittsburgh to
live with her mother. On September 1, 1997, Petitioner was
working at a nearby gas company and Robin visited him there.
They argued because she was seeing another man, and
Petitioner dragged her into his foreman's office and
raped her. (Id. at 371-72; Doc. 26-2 at 24-33).
Robin reported the rape to the police and she went to Magee
Women's Hospital for an examination. (Id. at
police arrested Petitioner on September 2, 1997. He waived
his rights under Miranda v. Arizona, 384 U.S. 436
(1966) and agreed to give a taped statement to Wilkinsburg
Police Detective Doug Yuhouse. Petitioner admitted that he
raped Robin and said that he did so because he was in a
“rage” due to the fact that she was seeing
another man. The audio recording of Petitioner's
confession to Det. Yuhouse was played for the jury at his
trial. (Trial Tr. at 217-18; see also Doc. 26-2 at
Commonwealth charged Petitioner with rape and related counts.
He was arraigned and remained in jail pending a preliminary
hearing, which was scheduled for September 9, 1997. Robin
filed for a Protection from Abuse (“PFA”) order
and the court granted a temporary order that prohibited
Petitioner from having any contact with her for the next ten
days. It scheduled the final PFA hearing for September 10,
September 9, 1997, preliminary hearing, Petitioner waived the
charges to court in exchange for a nominal bond with a
condition that he seek immediate in-patient treatment for
alcohol abuse at St. Francis Hospital. (Id. at
453-55, 466-67, 472). For reasons disputed at trial,
Petitioner was not admitted to St. Francis Hospital. Later
that afternoon, Robin, afraid and in tears, telephoned her
mother and said that Petitioner had called her several times.
(Id. at 172-73). Petitioner eventually convinced
Robin to permit him to visit. He arrived at her home just
after 4:00 p.m. and this visit, during which they argued
again because she was seeing another man, lasted around three
hours. (Id. at 375-76).
early the next day, at approximately 1:00 a.m. on September
10, 1997, Petitioner called Robin, apologized to her and once
again convinced her to let him come to her home.
(Id. at 378-80). Later that same morning, Petitioner
attended the 9:00 a.m. PFA hearing. Robin did not appear and,
as a result, the court dismissed the PFA order. Around that
same time, Robin's unclothed body was discovered in a
vacant lot near her Hamilton Avenue home. She had been
stabbed multiple times in the neck and once in her abdomen
and had injuries to her neck consistent with strangulation.
(Id. at 280-88).
detectives immediately began searching for Petitioner. At the
time, he was living with his mother at her Pittsburgh home
located on East Liberty Boulevard. He took the bus there
after the PFA hearing, and as soon as he arrived his mother
told him that she had just learned that Robin had been
murdered. She urged Petitioner to go to the emergency room at
St. Francis Hospital, which he did around noon. When he was
discharged around 2:00 p.m., detectives with the Pittsburgh
Police Department, Dennis Logan and Richard McDonald, were
there waiting for him. Petitioner agreed to accompany them to
the police station. (Id. at 358-59).
again waived his Miranda rights and gave a statement
to Det. Logan. He confessed that earlier that morning he
vaginally and anally raped Robin while he stabbed and choked
her to death. At Petitioner's trial, Det. Logan testified
that Petitioner “showed no signs of being
intoxicated” when he gave his confession. (Id.
at 360). Det. Logan asked Petitioner if he was under the
influence of any drugs or alcohol, and Petitioner replied
that he was not. According to Det. Logan, Petitioner
“appeared to be in control of his emotions
and…of his faculties.” (Id.) He said
that Petitioner “was very alert and very articulate in
how he spoke.” (Id. at 364).
Logan recounted to the jury what Petitioner stated in his
confession, and his notes and report were introduced as trial
exhibits. Petitioner admitted once again that he raped Robin
on September 1, 1997. (Id. at 371-72). Petitioner
then described to Det. Logan the events leading up to, during
and following the September 10, 1997, rape and murder.
(Id. at 375-94).
told Det. Logan that on September 9, 1997, after he left
Robin's home around 7:00 p.m., he hung out with friends
and “had a couple drinks[.]” (Id. at
377). He returned to his mother's house around 1:00 a.m.,
called Robin, apologized to her, and asked her to allow him
to see her again. (Id. at 378-79). Robin was
hesitant, Petitioner told Det. Logan, but he eventually
convinced her to let him come over. Petitioner walked from
his mother's house to Robin's Hamilton Avenue home.
(Id. at 380). When he arrived there around 1:30
a.m., Robin was sitting on the front porch with another man,
who fled the scene after Petitioner confronted him.
(Id. at 380-81).
they were alone, Petitioner told Det. Logan, he punched Robin
in the face and stomach. When she tried to run from him, he
grabbed her and continued to beat her as he dragged her
toward a vacant lot about two doors down from her home.
(Id. at 382-83). According to Petitioner, Robin
screamed “He's going to kill me”
(id. at 383), and her last words were pleas begging
for someone to help her. (Id. at 389).
told Det. Logan that as he dragged Robin toward the vacant
lot, he saw a knife located on the porch of nearby house. He
punched Robin “as hard as he could two or three time in
the face and midsection[, ]” which disabled her while
he grabbed the knife from the porch. (Id. at
383-84). He returned to Robin, stabbed her in the stomach,
tore her clothes off, wrapped his hands around her neck and
then raped her, first vaginally and then anally.
(Id. at 384-86). After doing so, he stabbed Robin
multiple times in the neck. (Id. at 386-87).
confession to Det. Logan, Petitioner said that after he
killed Robin, he took her clothes and left her naked body in
the vacant lot. (Id. at 387-88). He did so because
“[i]f she wanted to f-k everybody, now everybody could
see her f-cking body.” (Id. at 387).
Petitioner stated that during his walk back to his
mother's house, he disposed of Robin's clothing in a
sewer on Kelly Street. (Id. at 388-89). Based on
this information, the police searched the sewers on Kelly
Street and recovered Robin's clothing. (Id. at
hours later, Petitioner took a bus to the 9:00 a.m. PFA
hearing. He told Det. Logan that, as he walked to the bus
stop, he disposed of the clothing that he wore during the
attack by throwing the clothing through the window of an
abandoned house on Dix Way. (Id. at 391). Based on
this information, the police searched a vacant home located
on Dix Way and recovered Petitioner's clothing.
(Id. at 433-38).
Logan asked Petitioner during the interview what factor, if
any, alcohol had on him when he killed Robin. (Id.
at 393-94). Petitioner replied that he had a “couple of
drinks” before he killed Robin but that alcohol
“had nothing to do with what he did[.]”
(Id. at 394). He said that he raped, stabbed and
strangled Robin to death because he was so angry that she had
slept with someone else. (Id.)
his September 10, 1997, confession, the Commonwealth charged
Petitioner with one count each of criminal homicide, rape,
IDSI and unlawful restraint and notified him that it would
seek the death penalty if he was convicted of first-degree
murder. Petitioner retained Leo C. Harper, Jr., Esq.
(“trial counsel”) to represent him. Trial counsel
moved for the appointment of co-counsel to prepare for and
handle capital sentencing. He requested the appointment of a
specific attorney with whom he had worked in the past, but
the court instead appointed the Office of the Allegheny
County Public Defender, which assigned the case to Kathleen
Cribbins, Esq. (“penalty-phase counsel”).
counsel later testified at the 2012 state-court hearing on
Petitioner's claims for relief under Pennsylvania's
Post-Conviction Relief Act (“PCRA”) that the
first time he spoke to penalty-phase counsel about the case
was about a week before the trial. (PCRA Hr'g Tr. at 9).
When asked to describe their working relationship, he
responded “There was no relationship.”
(Id. at 8). He said they “did not get along at
all” (id. at 9) and their relationship was
“untenable from the beginning.” (Id. at
31). Penalty-phase counsel agreed, and she testified at the
PCRA hearing that, to extent that she and trial counsel spoke
about the case prior to the trial, it was when they saw each
other in the courthouse hallway and trial counsel asked her
to get him records. (Id. at 116).
defense retained Dr. Bernstein, a forensic neuropsychiatrist,
as its sole expert. Dr. Bernstein worked primarily with trial
counsel, and never met with both trial and penalty-phase
counsel together. (Id. at 182-83). That was unusual,
Dr. Bernstein testified at the PCRA hearing, for the obvious
reason that “[a]ny time you do a capital case and there
is the possibility of an individual facing…the
imposition of the death penalty, what can happen in the guilt
phase can have a profound effect on the penalty
phase[.]” (Id.) Therefore, he explained, in
his experience “those two advocates work in concert for
that and a multitude of other reasons.” (Id.
at 183). That did not occur in Petitioner's case and, as
set forth below, Petitioner's attorneys failed to provide
Dr. Bernstein with critical information and prepare his
counsel proposed to the prosecution that Petitioner would
plead guilty to first-degree murder in exchange for a
sentence of life imprisonment without the possibility of
parole. The prosecution rejected that proposal. (Id.
at 14-15, 60). On October 1, 1999, a few days before his
trial, Petitioner pleaded guilty to the September 10, 1997,
rape and IDSI counts. He proceeded to trial on the criminal
homicide count and on counts related to the first rape.
presented a diminished capacity defense to first-degree
murder, asserting that he was unable to form the specific
intent to kill due to the effects of his long-term alcohol
abuse and his psychological condition. Diminished capacity is
an extremely limited defense under Pennsylvania law.
See, e.g., Saranchak v. Beard, 616
F.3d 292, 308 (3d Cir. 2010); Commonwealth v.
Taylor, 876 A.2d 916, 926 (Pa. 2005); Commonwealth
v. Legg, 711 A.2d 430, 444 (Pa. 1998); Commonwealth
v. Zettlemoyer, 454 A.2d 937, 943 (Pa. 1982);
Commonwealth v. Weinstein, 451 A.2d 1344, 1347 (Pa.
1982). It “requires a defendant to establish through
‘extensive psychiatric testimony [that he] suffered
from one or more mental disorders which prevented him from
formulating the specific intent to kill.'”
Saranchak, 616 F.3d at 308 (quoting Commonwealth
v. Cuevas, 832 A.2d 388, 393 (Pa. 2003) (which cited
Zettlemoyer, 454 A.2d at 943)) (altered text added
by court of appeals). A defendant may offer evidence of his
intoxication to support a diminished capacity defense, but
“the mere fact of intoxication does not make out a
diminished capacity defense. Rather, to warrant that a
homicide does not rise to the level of first-degree murder,
the evidence must demonstrate that the defendant was
intoxicated to such an extent that the defendant was
overwhelmed to the point of losing his sensibilities.”
Commonwealth v. Spotz, 896 A.2d 1191, 1218 (Pa.
2006). “Even ‘ample evidence' that a
defendant ‘used mind-altering drugs at the time of the
offense,' standing alone, is insufficient because such
drugs must be shown to have intoxicated a defendant ‘to
such an extent that he was unable to form the requisite
intent.'” Saranchak, 616 F.3d at 307-08
(quoting Spotz, 896 A.2d at 1218).
successful diminished capacity defense will avoid a
first-degree murder conviction and the defendant will be
convicted of a lesser degree of murder. Because Petitioner
killed Robin during the commission of two felonies (rape and
IDSI), the most favorable outcome he realistically could hope
for was a conviction of second-degree murder and a sentence
of life imprisonment. 14 West's Pa. Prac., Crim. Offenses
& Defenses § 1:117 (6th ed.) (available
on Westlaw, update Mar. 2019) (The Pennsylvania Supreme Court
“has held that the diminished capacity defense is not
available to defend against second-degree murder.”)
(citing Commonwealth v. Garcia, 479 A.2d 473 (Pa.
1984); Commonwealth v. Russell, 938 A.2d 1082 (Pa.
Super. Ct. 2007)).
trial, the Commonwealth presented testimony from Robin's
mother, her sister-in-law, Det. Yuhouse, Det. Logan, several
other officers who were involved in the investigation of the
murder, and the doctor (Dr. Gary Sutkin) and nurse who
examined Robin at Magee Women's Hospital after the first
rape. The chief forensic pathologist from the coroner's
office testified about the numerous injuries Robin sustained
during the September 10, 1997, attack and said that the cause
of death was multiple stab wounds to, and compression of, the
Britton, who was a former director of the Upward Bound
Program at Schenley High School, also testified for the
Commonwealth. She knew both Petitioner and Robin, and was
particularly close with Petitioner. Britton testified that
Petitioner called her at approximately 1:00 a.m. on September
10, 1997. He told Britton that he was going to Robin's
home and was going to kill her because she had
“disrespected” him. (Trial Tr. at 326-28).
Petitioner told Britton he had been drinking, but Britton
said that he was speaking coherently and was not slurring his
words. (Id. at 326-28). Britton advised Petitioner
to go to bed and told him that “whatever the situation
was…going after [Robin] wasn't going to resolve
it.” (Id. at 326).
to Britton, not long after her telephone conversation with
Petitioner had ended, she dialed his number back and his
mother, Linda, answered the phone. (Id. at 328).
Britton told her that Petitioner had just threatened to kill
Robin. (Id. at 329). Petitioner's mother
“looked around” for him, said “[s]he
couldn't find him[, ]” and told Britton that she
did not “have time to worry about that right
testified that Petitioner called her again around 4:00 a.m.
that same morning. (Id.) As their conversation
progressed, Britton, who had been sleeping when Petitioner
called her, began to remember their earlier conversation,
realized something was “horribly wrong, ” and
asked him about Robin. (Id. at 330). Petitioner told
her “Robin Little is no more.” (Id.)
her testimony, Britton read aloud letters Petitioner wrote to
her in March 1998 when he was in jail awaiting his trial. In
one, Petitioner wrote:
For me to explain to you or anyone else my state of mind is
totally useless because no matter how hard I try, you will
never understand but [sic] all about the little whore being
dead. I have two outlooks on that. For all the pain and
suffering she put me through, she deserved what she got. And
secondly, I feel death was too good for her. She should have
been made to suffer through life, and I know she would have
suffered. That was planned. But the bottom line is no matter
how I look at it, Robin killed herself and her mother helped.
There is no way in hell you can expect me to treat someone as
bad as she treated me and go unpunished. It's against the
laws of nature. I think the word is “justice.” In
one of your letters it says you would have to assume
responsibility for your actions. Simply put doesn't that
apply to Robin, too?
(Id. at 332-33). In another letter, he wrote:
You're not a simple-minded person, so I know without me
telling you, you already know what really happened with Robin
and why. I am a person of many faces, and I have long
realized that all the different struggles inside me make one
man. I cannot be a husband one moment, a dog the next. I feel
that love and hate are but one emotion. I am well educated, a
father. I love life. I am full of hate, not afraid of
anything, some would say I'm confused, but it's only
the scale of Libra.
(Id. at 334).
presented four witnesses in support of his diminished
capacity defense. Dr. Bernstein, whose testimony will be set
forth in more detailed below, discussed two separate
occasions in 1992 when Petitioner, at the age of 14, was
admitted for several weeks to St. Francis Hospital for
alcohol and behavior related issues. He opined that
Petitioner's long-term alcohol abuse, alcoholic
hallucinosis, depression and in utero exposure to alcohol
prevented him from forming the specific intent to kill Robin.
(Id. at 556-57). Petitioner's uncle, Curtis
Mitchell, testified that he was with Petitioner the night
before the murder from approximately 8:00 p.m. to midnight
and that they and another individual shared three six-packs
of beer and a fifth of whiskey. (Id. at 474-76).
Petitioner's mother, Linda, testified that when she woke
Petitioner to attend the PFA hearing, he was lying on the
living room floor mumbling. She assumed that he was drunk.
(Id. at 505). Rosalyn Guy-McCorkle, Esq., who
represented Petitioner after he was arrested for the first
rape, testified that he seemed incoherent at his September 9,
1997, preliminary hearing. (Id. at 452-53). She said
that the next day, at the 9:00 a.m. PFA hearing, he looked
tired and did not talk that much. (Id. at 456). She
next saw him when he was in jail on September 11, 1997, and
she said he seemed confused and was not communicative.
(Id. at 458-59).
jury determined that the Commonwealth proved beyond a
reasonable doubt that Petitioner acted with the specific
intent to kill Robin and convicted him of first-degree
murder. It also found him guilty of rape, unlawful restraint
and simple assault arising from the crimes he committed on
September 1, 1997.
the Commonwealth was seeking the death penalty, the jury
remained empaneled for a separate sentencing hearing. Under
Pennsylvania law, the Commonwealth had the burden of proving
at least one statutorily-defined aggravating circumstance
accompanied the murder. 42 Pa. Cons. Stat. §
9711(c)(1)(iii), (d). The jury could find an aggravating
circumstance to be present only if all members agreed that it
was. Id. § 9711(c)(1)(iv). Petitioner could
introduce, and the jury could consider, mitigating evidence.
Id. § 9711(e). The Commonwealth had to prove
aggravating circumstances beyond a reasonable doubt, but
Petitioner had to prove mitigating circumstances by only a
preponderance of the evidence. Id. §
9711(c)(1)(iii). Unlike the finding of aggravating
circumstances, each juror was free to regard a particular
mitigating circumstance as present despite what other jurors
believed. The jury could impose the death penalty only if
unanimously found that the statutorily-defined aggravating
circumstances proven by the Commonwealth outweighed any
mitigating circumstance proven by Petitioner. Id.
§ 9711(c)(1)(iv). The verdict had to be a sentence of
life imprisonment in all other cases. Id.
Commonwealth pursued the following three statutorily-defined
aggravating factors: (1) Petitioner killed Robin while in the
perpetration of a felony; (2) when he killed her he was
subject to a PFA order restricting his contact with her; and
(3) he killed her to prevent her from testifying against him.
In support of these aggravating factors, the Commonwealth
relied upon the evidence introduced during the guilt phase of
the trial and additional testimony from Det. Logan and
asked the jury to find the following mitigating
circumstances: (1) he was under the influence of extreme
mental or emotional disturbance when killed Robin; (2) his
capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law was
substantially impaired; (3) his age at the time of the crime
(19 years old); (4) he had no significant history of prior
criminal convictions; and (5) any other evidence of
mitigation concerning his character and his record or the
circumstances of the offense. This last mitigating
circumstance is commonly referred to as the
“catch-all” mitigating factor. The court
instructed the jurors that when each of them decided whether
the catch-all mitigating factor was present, they should
consider evidence of neglect Petitioner may have suffered
during his childhood, his chronic alcohol abuse, his
involvement in church-related activities and volunteer work,
his lack of a criminal record, and evidence of his repeated
attempts at treatment and counseling. (Trial Tr. at 920-21).
Bernstein testified in support of Petitioner's mitigation
case. Additionally, Petitioner presented brief testimony from
his mother, his Uncle Curtis and four family friends (Robin
Harris, Bishop Wilbur Johnson, Dr. Armenia Johnson and
Christine Rather). Together, their testimony discussed the
history of alcohol abuse in Petitioner's family, his own
problems with alcohol, and the positive aspects of his
character. Petitioner's final witness, Louis Harrell, was
a drug and alcohol therapist with St. Francis Hospital.
(Id. at 864). He testified that he began counseling
Petitioner in 1989, when he would have been around age 11,
“to try to help [him] deal with the drug and alcohol
announcing their verdict, the jurors explained that they
unanimously found two aggravating factors: (1) that
Petitioner killed Robin during the perpetration of a felony
and (2) that he killed her when he was subject to a PFA
order. (Id. at 932). No. juror found the existence
of any mitigating circumstances. (Id.) Therefore,
the required verdict was a sentence of death.
December 8, 1999, the trial court imposed that sentence for
the first-degree murder conviction. It also imposed a
consecutive aggregate term of 12-27 years for the convictions
related to the September 1, 1997, rape. On February 10, 1997,
after Petitioner unsuccessfully moved to withdraw his guilty
pleas on the charges for the September 10, 1997, rape and
IDSI, the court sentenced him to an aggregate term of 8-20
years on those convictions, to be served consecutive to both
his death sentence and the sentence for the September 1,
trial court appointed new counsel to represent Petitioner in
his direct appeal. The Pennsylvania Supreme Court affirmed
his convictions and sentences in Commonwealth v.
Mitchell, 902 A.2d 430 (Pa. 2006) (“Mitchell
I”). The United States Supreme Court denied his
petition for a writ of certiorari on January 16, 2007.
Mitchell v. Pennsylvania, 549 U.S. 1169 (2007). That
is the date his judgment of sentence became final under state
law for the purpose of calculating the one-year statute of
limitations for filing a PCRA petition. 42 Pa. Cons. Stat.
filed a pro se PCRA petition in February 2007.
Attorneys with the Federal Community Defender Office
(“FCDO”) entered their appearance in state court
on his behalf and they filed an amended PCRA petition in
2009, which they subsequently amended both before and after
the PCRA hearing. That five-day hearing was held in October
first PCRA proceeding, Petitioner raised all of the claims
that he now raises to this Court in his Amended Petition for
a Writ of Habeas Corpus except for Claim V. In support of his
claims, he presented the testimony of the following nineteen
witnesses: (1) his four prior attorneys (trial counsel,
penalty-phase counsel, Guy-McCorkle and his direct appeal
counsel); (2) five individuals who also had testified at the
trial (Dr. Bernstein, his mother, Uncle Curtis, Britton and
Harrell); (3) six additional family members or acquaintances
(his father, an uncle, an aunt, his brother, Brian Dallas (a
friend) and Dr. David Hall (a physician for several members
of the Mitchell family); and (4) four expert witnesses (Dr.
Richard Dudley, who testified as an expert in clinical and
forensic psychiatry; Dr. Barry Crown, who testified as an
expert in clinical and forensic psychology, neuropsychology,
and addictions; Dr. Duncan Clark, who testified as an expert
in juvenile psychiatry and alcoholism; and Dr. Charles Wetli,
who testified as an expert in forensic pathology). The
Commonwealth presented testimony from the following three
witnesses: (1) Det. Logan; (2) the former Assistant District
Attorney who had prosecuted the case, Edward Borkowski (the
“prosecutor”) (who by the time of the PCRA
hearing was a judge on the court of common pleas); and (3)
Dr. Bruce Wright, who testified as an expert in psychiatry.
January 17, 2013, the PCRA court issued a decision within
which it rejected Petitioner's claims. Commonwealth
v. Mitchell, CP-02-CR-11609-1997 et al. (C.P.
Allegheny, Jan. 17, 2013) (“PCRA Op. I”) (Doc.
38-1 at 12-33). After Petitioner filed an appeal, the PCRA
court issued its Appellate Rule 1925 opinion.
Commonwealth v. Mitchell, CP-02-CR-11609-1997 et
al. (C.P. Allegheny, July 31, 2013) (“PCRA Op.
II”) (Docs. 38-4 through 38-6). On December 16, 2014,
the Pennsylvania Supreme Court affirmed the PCRA court's
decision and denied each of Petitioner's claims.
Commonwealth v. Mitchell, 105 A.3d 1257 (Pa. 2014)
November 2015, Petitioner, through his counsel with the FCDO
and the Capital Habeas Unit of the Federal Public
Defender's Office for the Western District of
Pennsylvania, commenced this case by filing a petition for a
writ of habeas corpus. (Doc. 5). This Court stayed this
proceeding while Petitioner litigated a second PCRA petition
in state court. (Doc. 4).
PCRA court subsequently dismissed the second PCRA petition on
the grounds that it was untimely under the applicable state
statute of limitations. (Doc. 40-3 at 6-10, 18). It issued
its Appellate Rule 1925 opinion on December 10, 2015.
Commonwealth v. Mitchell, CP-02-CR-11609-1997 et al.
(C.P. Allegheny, Dec. 10, 2015) (“PCRA Op. III”)
(Doc. 40-4 at 2-13). On July 19, 2016, the Pennsylvania
Supreme Court affirmed the PCRA court's decision in
Commonwealth v. Mitchell, 141 A.3d 1277 (Pa. 2016)
Petitioner's second PCRA proceeding concluded, this Court
lifted the stay and Petitioner filed his Amended Petition for
a Writ of Habeas Corpus (Doc. 12) and Memorandum of Law in
Support (Doc. 19). The Commonwealth filed its Answer (Doc. 24)
and the state court record (Docs. 25-28, 29-41). This Court
then permitted Petitioner to conduct limited discovery. (Doc.
49). After the period for discovery concluded, he filed his
Reply. (Doc. 55).
Court has jurisdiction under 28 U.S.C. § 2254, which is
the federal habeas statute applicable to prisoners in custody
pursuant to a state-court judgment. It permits a federal
court to grant a state prisoner the writ of habeas corpus
“on the ground that he or she is in custody in
violation of the Constitution…of the United
States.” 28 U.S.C. § 2254(a). It is
Petitioner's burden to prove that he is entitled to the
writ. Id.; see, e.g., Vickers
v. Superintendent Graterford SCI, 858 F.3d 841, 848-49
(3d Cir. 2017). There are other prerequisites that he must
satisfy before he can receive habeas relief (most relevant
here is the burden imposed upon him by the standard of review
set forth at 28 U.S.C. § 2254(d), which is discussed
below and which applies to each claim that the Pennsylvania
Supreme Court denied on the merits), but, ultimately,
Petitioner cannot receive federal habeas relief unless he
demonstrated that his constitutional rights were violated at
his trial or at his capital sentencing hearing. 28 U.S.C.
§ 2254(a); see, e.g.,
Vickers, 858 F.3d at 849.
Standard of Review
1996, Congress made a number of significant amendments to the
federal habeas statutes with the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.
AEDPA “modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citing Williams v. Taylor, 529 U.S.
362, 403-04 (2000)). AEDPA reflects the view that habeas
corpus is a “guard against extreme malfunctions in the
state criminal justice systems, not a substitute for ordinary
error correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 102-03 (2011) (internal quotations
and citation omitted).
AEDPA applies to this case, this Court conducts an evaluation
that is different from that which was conducted by the state
courts. Stated differently, this Court has additional
considerations that it must make in evaluating
Petitioner's claims of federal constitutional error
because, as set forth immediately below, AEDPA, as codified
at 28 U.S.C. § 2254(e)(1), requires that this Court must
presume all findings of fact made by a state court are
correct, and it also requires, as codified at 28 U.S.C.
§ 2254(d), that this Court apply deference to any claim
that was adjudicated on the merits by the Pennsylvania
Deference to a State Court's Finding of Fact Under 28
U.S.C. § 2254(e)(1)
finding of fact made by a state court always has been
afforded considerable deference in a federal habeas
proceeding. AEDPA continued that deference and mandates that
“a determination of a factual issue made by a State
court shall be presumed to be correct.” 28 U.S.C.
§ 2254(e)(1). Petitioner has the “burden of
rebutting the presumption of correctness by clear and
convincing evidence.” Id.
Standard of Review When the State Court Adjudicates a Claim
on the Merits
also put into place a new standard of review, which is
codified at 28 U.S.C. § 2254(d). It applies “to
any claim that was adjudicated on the merits in State court
proceedings” and prohibits a federal habeas court from
granting relief unless the petitioner first established that
the state court's “adjudication of the
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). For the purposes of § 2254(d),
a claim has been “adjudicated on the merits in State
court proceedings” when the state court (here, the
Pennsylvania Supreme Court) made a decision that finally
resolved the claim based on its substance, not on a
procedural, or other, ground. See, e.g.,
Richter, 562 U.S. at 98-100; Robinson v.
Beard, 762 F.3d 316, 324 (3d Cir. 2014).
Mitchell II, the Pennsylvania Supreme Court
adjudicated on the merits each of the claims discussed in
this Memorandum except for Claim V, which it denied as
untimely in Mitchell III. Therefore, when this Court
evaluates each of Petitioner's claims, except for Claim
V, it must apply § 2254(d)'s standard of review. As
for Claim V, Petitioner procedurally defaulted it and,
therefore, the Court must deny it for that reason.
if, when evaluating a claim, this Court determines that
Petitioner has satisfied his burden under either provision of
§ 2254(d), this Court must then “proceed to review
the merits of the claim de novo to evaluate if a
constitutional violation occurred.” Vickers,
858 F.3d at 849 (citing Lafler v. Cooper, 566 U.S.
156, 174 (2012)). That is because “a federal court can
only grant the Great Writ if it is ‘firmly convinced
that a federal constitutional right has been
violated[.]'” Id. (citing
Williams, 529 U.S. at 389, and Horn v.
Banks, 536 U.S. 266, 272 (2001) (“[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
Application of 2254(d)(1)
“Clearly established Federal law”
2254(d)(1) applies to questions of law and mixed questions of
law and fact. In applying it, this Court's first task is
to ascertain what law falls within the scope of the
“clearly established Federal law, as determined by the
Supreme Court of the United States[, ]” 28 U.S.C.
§ 2254(d)(1). It is “‘the governing legal
principle or principles set forth by the Supreme Court at the
time the state court renders its decision.'”
Dennis v. Sec'y, Pennsylvania Dep't of
Corr., 834 F.3d 263, 280 (2016) (en banc) (quoting
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)). It
“includes only ‘the holdings, as opposed to the
dicta, of [the Supreme] Court's decisions.'”
White v. Woodall, 572 U.S. 415, 420 (2014) (quoting
Howes v. Fields, 565 U.S. 499, 505 (2012), which
quoted Williams, 529 U.S. at 412).
The “contrary to” clause
the “clearly established Federal law, as determined by
the Supreme Court of the United States” is ascertained,
this Court must determine, if Petitioner makes this argument,
whether the Pennsylvania Supreme Court's adjudication of
the claim at issue was “contrary to” that law.
Williams, 529 U.S. at 404-05 (explaining that §
2254(d)(1)'s “contrary to” and
“unreasonable application of” clauses have
independent meaning). A state-court adjudication is
“contrary to…clearly established Federal law, as
determined by the Supreme Court of the United States”
§ 2254(d)(1), “if the state court applies a rule
that contradicts the governing law set forth in [Supreme
Court] cases, ” Williams, 529 U.S. at 405, or
“if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme
Court] and nevertheless arrives at a result different from
[Supreme Court] precedent, ” id. at 406. A
“run-of-the-mill” state-court decision applying
the correct legal rule from Supreme Court decisions to the
facts of a particular case does not fit within §
2254(d)(1)'s “contrary to” clause and should
be reviewed under the “unreasonable application”
The “unreasonable application of” clause
state court decision is an ‘unreasonable application of
federal law' if the state court ‘identifies the
correct governing legal principle,' but
‘unreasonably applies that principle to the facts of
the prisoner's case.'” Dennis, 834
F.3d at 281 (quoting Williams, 529 U.S. at 413). To
satisfy his burden under this provision of AEDPA's
standard of review, Petitioner must do more than convince
this Court that the Pennsylvania Supreme Court's decision
was incorrect. Id. He must show that it
unreasonable.'” Id. (quoting
Williams, 529 U.S. at 409 (emphasis added by court
of appeals). This means that Petitioner must demonstrate that
the Pennsylvania Supreme Court's decision “was
so lacking in justification that there was an error
well understood and comprehended in existing law beyond
any possibility for fairminded
disagreement.” Richter, 562 U.S. at
103 (emphasis added).
It bears repeating that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable. See Lockyer, supra, at 75,
123 S.Ct. 1166.
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal-court relitigation of
claims already rejected in state proceedings. Cf. Felker
v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135
L.Ed.2d 827 (1996) (discussing AEDPA's “modified
res judicata rule” under § 2244). It preserves
authority to issue the writ in cases where there is no
possibility fairminded jurists could disagree that the state
court's decision conflicts with this Court's
precedents. It goes no further.
Id. at 102.
Application of § 2254(d)(2)
standard of review set forth at § 2254(d)(2) applies
when Petitioner “challenges the factual basis
for” the Pennsylvania Supreme Court's
“decision rejecting a claim[.]” Burt v.
Titlow, 571 U.S. 12, 18 (2013). “[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.”
Dennis, 834 F.3d at 281 (quoting § 2254(d)(2)
and citing Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 340
state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.'”
Titlow, 571 U.S. at 18 (quoting Wood v.
Allen, 558 U.S. 290, 301 (2010)); see Rice v.
Collins, 546 U.S. 333, 342 (2006) (reversing court of
appeals's decision because “[t]he panel
majority's attempt to use a set of debatable inferences
to set aside the conclusion reached by the state court does
not satisfy AEDPA's requirements for granting a writ of
habeas corpus.”). Thus, “if ‘[r]easonable
minds reviewing the record might disagree' about the
finding in question, ‘on habeas review that does not
suffice to supersede'” the state court's
adjudication. Wood, 558 U.S at 301 (quoting
Collins, 546 U.S. at 341-42). “[H]owever,
‘[e]ven in the context of federal habeas, deference
does not imply abandonment or abdication of judicial
review,' and ‘does not by definition preclude
relief.'” Brumfield v. Cain, 135 S.Ct.
2269, 2277 (2015) (quoting Miller-El, 537 U.S. at
340); see also Dennis, 834 F.3d at 281.
AEDPA's enactment, federal courts have debated how to
harmonize §§ 2254(d)(2) and (e)(1). They
“express the same fundamental principle of deference to
state court findings[, ]” and federal habeas courts
“have tended to lump the two provisions together as
generally indicative of the deference AEDPA requires of state
court factual determinations.” Lambert v.
Blackwell, 387 F.3d 210, 235 (3d Cir. 2004). The Supreme
Court has not yet “defined the precise relationship
between” these two provisions of AEDPA.
Titlow, 571 U.S. at 18. In Lambert, the
United States Court of Appeals for the Third Circuit
instructed that § 2254(d)(2), when it applies, provides
the “overarching standard” that a petitioner must
overcome to receive habeas relief. 387 F.3d at 235. Section
2254(e)(1) applies to “specific factual determinations
that were made by the state court, and that are subsidiary to
the ultimate decision.” Id. The court of
appeals declined to adopt a “rigid approach to habeas
review of state fact-finding” id. at 236 n.19,
and instead provided the following guidance:
In some circumstances, a federal court may wish to consider
subsidiary challenges to individual fact-finding in the first
instance applying the presumption of correctness as
instructed by (e)(1). Then, after deciding these challenges,
the court will view the record under (d)(2) in light of its
subsidiary decisions on the individual challenges. In other
instances, a federal court could conclude that even if
petitioner prevailed on all of his individual factual
challenges notwithstanding the (e)(1) presumption of their
correctness, the remaining record might still uphold the
state court's decision under the overarching standard of
(d)(2). In that event, presumably the (d)(2) inquiry would
Petitioner's claims discussed herein, except for Claims
IV and V, are claims of ineffective assistance of counsel
that the Pennsylvania Supreme Court denied on the merits in
Mitchell II. It adjudicated them under the standard
set forth in Strickland v. Washington, 466 U.S. 668
(1984), which is the “clearly established Federal law,
as determined by the Supreme Court ...