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Mitchell v. Wetzel

United States District Court, W.D. Pennsylvania

October 25, 2019

WAYNE MITCHELL, Petitioner,
v.
JOHN E. WETZEL, et al., Respondents.

          MEMORANDUM AND ORDER

          Cathy Bissoon, United States District Judge.

         I. MEMORANDUM

         Wayne 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.

         A. Introduction

         In 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 (“IDSI”).

         Petitioner 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.

         Before 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 hearing.

         B. Background[1]

         Petitioner 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 122-27).

         By July 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).

         In 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 135-40).

         The 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 24-33).

         The 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, 1997.

         At the 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).

         Very 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).

         Homicide 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).

         Petitioner 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).

         Det. 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).

         Petitioner 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).

         Once 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).

         Petitioner 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).

         In his 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 77, 84-88).

         Several 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).

         Det. 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.)

         Following 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”).

         Trial 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).

         The 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 testimony.

         Trial 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.

         Petitioner 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).

         A 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)).

         At the 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 neck.

         Sheila 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).

         According 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 now.” (Id.)

         Britton 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.)

         During 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).

         Petitioner 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).

         The 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.

         Because 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.

         The 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 Robin's mother.

         Petitioner 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).

         Dr. 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 issue.” (Id.)

         In 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.

         On 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, 1997, rape.

         The 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. § 9545(b)(3).

         Petitioner 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 2012.

         In this 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.

         On 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) (“Mitchell II”).

         In 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).

         The 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) (“Mitchell III”).

         After 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[2] 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).

         C. Jurisdiction

         This 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.

         D. Standard of Review

         In 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).

         Because 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 Supreme Court.

         1. Deference to a State Court's Finding of Fact Under 28 U.S.C. § 2254(e)(1)

         A 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.

         2. Standard of Review When the State Court Adjudicates a Claim on the Merits

         AEDPA 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 claim”:

(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, or
(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)[3] 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).

         In 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.

         Importantly, 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 AEDPA standard[.]”)).

         (a) Application of 2254(d)(1)

         (i) “Clearly established Federal law”

         Section 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).[4]

         (ii) The “contrary to” clause

         Once 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” clause. Id.

         (iii) The “unreasonable application of” clause

         “A 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 “‘was objectively 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.

         (b) Application of § 2254(d)(2)

         The 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 (2003)).

         “‘[A] 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.

         Since 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 come first.

Id.

         E. Legal Analysis

         All of 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 ...


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