Opinion
No. 2:04-cv-01738-BWK.
September 28, 2004
REPORT AND RECOMMENDATION
Currently pending before this Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner incarcerated in the State Correctional Institution at Smithfield, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
Following a jury trial presided over by the Honorable Jane C. Greenspan of the Philadelphia Court of Common Pleas, petitioner was convicted, on September 25, 1996, of first-degree murder, conspiracy and possession of an instrument of crime. Judge Greenspan sentenced petitioner to a term of life imprisonment on the murder charge, together with consecutive terms of five to ten years on the conspiracy charge and two to five years on the weapons charge. As set forth by the trial court, the general facts underlying the conviction are as follows:
Troy Gilliam worked for defendant Terrell Faulcon selling narcotics. Defendant Faulcon suspected that Mr. Gilliam had been stealing money and drugs from him. . . .
In response to this allegation, defendant Faulcon conspired with defendant Jew Kenneth Wilson and Michael Gray to have Mr. Gilliam killed. . . .
On November 23, 1993, defendant Faulcon personally delivered a gun to Mr. Gray. That gun was later to be used by defendant preparation [sic] for the following events. . . .
Upon being paged by Troy Gilliam and Ervin Boyd, Mr. Gray drove to their location. From there, the three proceeded to a bar at 16th and Columbia Streets in Philadelphia where they drank in celebration of Mr. Boyd's recent release from prison. . . .
Shortly thereafter, defendant Faulcon paged Mr. Gray and instructed him to pick-up defendant Wilson. Accompanied by Mr. Gilliam and Mr. Boyd, Mr. Gray drove to the corner of 16th and Jefferson where they met defendant Wilson. Mr. Gray secretly passed the gun to defendant Wilson as he got into the car. All of the men then dropped Mr. Boyd at Mr. Boyd's girlfriend's residence. . . .
Mr. Wilson and Mr. Gray then proceeded to carry out the conspiracy to kill Mr. Gilliam. Mr. Gray drove to the 1800 block of Harlan Street in Philadelphia, and stopped the car. The men got out to inspect an abandoned car. . . . As Mr. Gilliam observed the abandoned car, defendant Wilson came from behind, grabbed him around the neck, and shot Mr. Gilliam in the head twice. Leaving Mr. Gilliam in the street, defendant Wilson and Mr. Gray drove away.
On November 24, 1993, Troy Gilliam was pronounced dead at Hahnemann University Hospital. . . . The medical examination revealed that the two gunshot wounds, one to the back of his head and the other to the left side of his head, were the direct cause of death. . . .
Ten days after the killing, Michael Gray surrendered himself to the police. Later he entered a plea of guilty to murder in the third degree, PIC, and conspiracy. In exchange for that plea, Mr. Gray agreed to testify against defendants Terrell Faulcon and Jew Kenneth Wilson. . . . Mr. Gray testified that he himself arranged for the murder to take place, that Mr. Wilson shot Troy Gilliam, and that Mr. Faulcon instigated and assisted the entire event.
Opinion of Pennsylvania Philadelphia Court of Common Pleas (1997), at pp. 2-3.
Petitioner appealed his conviction to the Pennsylvania Superior Court alleging: (1) the weight of the evidence did not support his conviction due to the credibility of various witnesses; (2) ineffective assistance of counsel for failing to file a brief resulting in the dismissal of his initial appeal; (3) ineffective assistance of counsel for failing to call alibi witnesses on his behalf; (4) ineffective assistance of counsel for failing to obtain a forensic pathologist; and (5) prosecutorial misconduct during closing arguments. On September 27, 1997, the Superior Court dismissed the appeal for failure to file a brief. Upon appointment of new counsel, however, the trial court, on March 3, 1999, reinstated petitioner's appellate rights nunc pro tunc. The Superior Court subsequently affirmed the judgment of sentence on April 6, 2000. Commonwealth v. Faulcon, 758 A.2d 719 (Pa.Super. 2000) (Table). On September 11, 2000, petitioner sought permission to file a nunc pro tunc petition for allowance of appeal, which the Pennsylvania Supreme Court denied on November 21, 2000.
Petitioner thereafter pursued a collateral attack, on April 9, 2001, pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq. Following the appointment of counsel, petitioner submitted an amended petition raising the following claims: (1) ineffective assistance of trial counsel for failure to object to the prosecution's summation inviting the jury to find guilt from disbelief of defendant's alibi and for failing to move for a mistrial based on this comment; (2) ineffective assistance of trial counsel for failing to object to the court's final jury instructions; (3) ineffective assistance of appellate counsel for failure to preserve the two aforementioned claims; and (4) trial counsel was indiscriminately appointed after defendant complained about his representation. The PCRA court denied relief on June 17, 2002, and, by way of memorandum opinion issued June 18, 2003, the Superior Court affirmed that decision. Commonwealth v. Faulcon, 830 A.2d 1044 (Pa.Super. 2003) (Table). On March 30, 2004, the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal. Commonwealth v. Faulcon, 847 A.2d 1279 (Pa. 2004) (Table).
Petitioner filed the instant Petition for Writ of Habeas Corpus on April 22, 2004. Seeking relief from his conviction, he now puts forth the following claims:
1. Trial counsel was ineffective because he failed to object to the prosecutor's summation that invited the jury to find his client guilty based on its disbelief of his alibi; appellate counsel was ineffective for failing to raise this argument on direct appeal;
2. Trial counsel was ineffective for failing to object to the court's final instructions which omitted any discussion of alibi testimony;
3. Trial counsel was ineffective for failing to object to the court's final instructions which defined reasonable doubt in two different manners;
4. The court committed structural error when it reappointed counsel to represent petitioner after petitioner and his mother voiced significant complaints against such counsel;
5. The evidence was insufficient to establish beyond a reasonable doubt each and every element of first-degree murder, criminal conspiracy and possession of an instrument of crime where the Commonwealth's evidence was based upon the testimony of coconspirator Michael Gray;
6. The testimony of several members of decedent's immediate family was insufficient to establish beyond a reasonable doubt the crimes for which petitioner was convicted;
7. The evidence was insufficient to sustain the jury's verdict where the testimony of the Commonwealth's forensic pathologist was directly contradictory to Michael Gray's testimony;
8. The evidence was insufficient to sustain the guilty verdict where the detective to whom Michael Gray and Jew Kenneth Wilson gave statements concerning Troy Gilliam's death admitted that he lied when he stated that there was no eyewitness who saw Michael Gray shoot Troy Gilliam;
9. Trial counsel was ineffective for failing to call alibi witnesses on behalf of petitioner who provided counsel with a list of names and addresses of several alibi witnesses;
10. Trial counsel was ineffective for failing to procure a defense forensic pathologist for petitioner to confirm that Troy Gilliam was shot from the front, thereby discrediting Michael Gray's testimony;
11. The petitioner was denied his right to a fair and impartial trial as a result of the prosecutor's numerous expressions of his personal belief and opinion throughout the trial.
II. PROCEDURAL DEFAULT
Respondents' primary argument alleges that many of petitioner's claims suffer from some form of procedural default, and thereby cannot provide the basis for federal review or habeas relief. The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment.Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553,reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted. Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).
In the case at bar, respondent argues that most of petitioner's claims suffer from one of two forms of procedural default: (1) they were never exhausted in state court and cannot be so now or (2) they are previously litigated. We discuss each contention in turn.
1. Unexhausted Claims
In a first attack on the habeas petition, respondent contends that all of petitioner's habeas claims that were raised in state court on direct appeal are defaulted because, although petitioner presented them to the trial court and the Pennsylvania Superior Court, he never properly sought allowance of appeal to the Pennsylvania Supreme Court. Maintaining that he has not exhausted his state court remedies on these claims and could not do so now, respondent urges the Court to dismiss them in their entirety.
These challenged claims correspond to habeas claim nos. 4, 5, 6, 7, 8, 9, and 10.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his available remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). In other words, a petitioner must invoke "one complete round of the State's established review process" before he may assert the claim on federal habeas review.Id. at 845. Generally, federal courts should dismiss unexhausted claims without prejudice, so as not to deprive the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas. . . ." Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The purpose of the procedural default doctrine is to prevent habeas petitioners from being able to avoid the exhaustion doctrine by defaulting their federal claims in state court. Coleman, 501 U.S. at 732.
Prior to May of 2000, completion of "one complete round of the State's established review process" required that a habeas petitioner take each and every one of his habeas claims to the Pennsylvania Superior Court and the Pennsylvania Supreme Court. On May 9, 2000, however, the Pennsylvania Supreme Court issued a seminal per curiam order, which held that when a claim has been presented to either the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied, "the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief." In Re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 1, 2 (Pa. May 9, 2000). Although the Third Circuit has yet to provide definitive guidance, every decision from courts in this circuit has concurred that Order 218 eliminates the mandate that habeas petitioners seek discretionary review from the Pennsylvania Supreme Court in order to satisfy the exhaustion requirement. See, e.g., Wilson v. Vaughn, 304 F. Supp2d 652, 658 (E.D. Pa. 2004) (following Order 218, a habeas claim need not be appealed to the state supreme court to be preserved); Lambert v. Blackwell, 175 F. Supp.2d 776, 784 (E.D. Pa. 2001),vacated in part, 205 F.R.D. 180 (E.D. Pa. 2002); ("Order No. 218 makes a petition for allocatur an extraordinary remedy that prisoners need not avail themselves of to be deemed to exhaust."); Mattis v. Vaughn, 128 F. Supp.2d 249, 261 (E.D. Pa. 2001), aff'd, 80 Fed. Appx. 154 (3d Cir. 2003), cert. denied, 124 S. Ct. 1815 (2004) (Order No. 218 removes petitions for discretionary review from "one full round" of Pennsylvania's ordinary review process); Blasi v. Attorney General of Com. of Pennsylvania, 120 F. Supp.2d 451, 469 (M.D. Pa. 2000) aff'd, 275 F.3d 3 (3d Cir. 2001), cert. denied, 122 S. Ct. 1540 (2002) ("the order of the Supreme Court of Pennsylvania removes a petition for allocatur from the one complete round of Pennsylvania's established appellate review process.").
Notably, however, the Third Circuit Court of Appeals, inWenger v. Frank, 266 F.3d 218 (3d Cir. 2001), cert. denied, 535 U.S. 957, 122 S. Ct. 1364 (2002), while declining to address the impact of Order 218 on exhaustion, explicitly held that the Order "did not retroactively alter the nature of `the ordinary appellate review procedure' in the Commonwealth." Id. at 225. The court reasoned that (1) the language of the order itself suggests that it was intended to be prospective; (2) the primary interests behind the Order — relieving the burden on state supreme courts and preventing delay — would not be served by retroactive application; and (3) the federal habeas statute could not accommodate retroactive application. Id. at 225-226. As a result, the Third Circuit found that Order 218 "does not apply in cases in which the time to petition for review by the state supreme court expired prior to the date of the order." Id. at 226; see also Villot v. Varner, 373 F.3d 327, 338 n. 14 (3d Cir. 2004) (reaffirming Wenger).
In the case at bar, the Pennsylvania Superior Court affirmed petitioner's conviction on April 6, 2000, giving him until approximately May 6, 2000 to seek allowance of appeal from the Pennsylvania Supreme Court. He did not do so within that time frame. Three days later, Order 218 came into existence, making any attempted reliance on it retroactive. While we note that petitioner did ultimately request allocatur by way of a nunc pro tunc petition on September 11, 2000, that request was untimely pursuant to Pennsylvania Rule of Appellate Procedure 1113(a). Subsequently, the request was denied by the court without explanation. As established by our jurisprudence, an unexplained denial by the Pennsylvania Supreme Court of a nunc pro tunc petition for review should be interpreted to rest on state grounds, making claims included in the petition procedurally barred for purposes of habeas review. Caswell v. Ryan, 953 F.2d 853, 860 (3d Cir.), cert. denied, 504 U.S. 944, 112 S. Ct. 2283 (1992); see also Kubis v. Kyler, Civ. A. No. 03-1580, 2003 WL 23206073, *2 (E.D. Pa. July 22, 2003) (citing Caswell with approval). Accordingly, since petitioner did not properly exhaust his claims raised on direct appeal, they are procedurally defaulted at this juncture and may not be considered by this Court.
Notably, petitioner claims that he did not receive the Superior Court's decision until July 19, 2000. In support, he submits a letter from the prothonotary of the Superior Court, dated July 19, 2000, which purports to enclose a copy of the decision and stating that a copy was previously provided to petitioner's attorney. Even if this Court were to accept this allegation as true, his Septem ber 11, 2000 request for allocatur was still almost one month late.
2. Previously Litigated Claim
Under the PCRA statute, an issue has been previously litigated if either the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue, or it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S.A. § 9544(a). The previous litigation of an issue on direct appeal which subsequently bars PCRA review of that issue can serve as an adequate an independent state ground making the issue "procedurally defaulted and thus unavailable for review by the federal courts." Laird v. Horn, 159 F. Supp.2d 58, 76 (E.D. Pa. 2001); see also Wheeler v. Vaughn, Civ. A. No. 01-428, 2004 WL 73728, *7 (E.D. Pa. January 6, 2004); Blackwell v. Larkins, Civ. A. No. 97-1999, 1998 WL 401752, *4-5 (E.D. Pa. July 6, 1998) (holding that a claim previously litigated on state grounds and thus not reviewable during PCRA proceedings is procedurally defaulted).
In the case before the Court, petitioner's claim that trial counsel was ineffective for failing to object to the prosecutor's summation inviting the jury to find guilt from a disbelief of defendant's alibi was previously litigated. On direct appeal, the Superior Court denied a similar claim of prosecutorial misconduct for commenting that the defense's case was fabricated. Subsequently, at the postconviction level, the trial court found that petitioner's new legal theory of ineffective assistance for failing to object to the same instance of prosecutorial misconduct was previously litigated, under 42 Pa.C.S.A. § 9543(a)(3), and, thus, not cognizable in a PCRA petition. PCRA Opinion (1999) at 4-5. The Pennsylvania Superior Court affirmed on the same grounds set forth by the trial court. Superior Court Opinion (2003), at 2. By so rejecting this issue, the Superior Court effectively dismissed the claim pursuant to an adequate and independent state rule. As such, it is procedurally defaulted for purposes of federal habeas review.
3. Exceptions to Procedural Default
While procedural default presents an obstacle for petitioner in asserting his claims, it does not automatically foreclose further federal review. A petitioner may present his claims for consideration on the merits, notwithstanding procedural default, if he can demonstrate either "cause for the default and prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Petitioner, in this matter, does not even allege, let alone establish, any basis for either of these exceptions. Accordingly, the Court has no choice but to dismiss these eight aforementioned claims as procedurally defaulted.
III. STANDARD OF REVIEW
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
An application for a writ of habeas corpus on behalf of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless that 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).
The United States Supreme Court interpreted this statute and more clearly defined the two-part standard of review in Williams v. Taylor, 529 U.S. 362, 404-405, 120 S. Ct. 1495 (2000). Under the first prong of the review, a state court decision is "contrary to" the "clearly established federal law, determined by the Supreme Court of the United States," (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Pursuant to the second prong, a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context should apply." Williams, 529 U.S. at 407-408. Under this latter clause, however, "a federal habeas court may not issue the writ simply because the 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."Id. at 410.
IV. MERITS
Petitioner now has three remaining claims that are not procedurally defaulted and are, thus, cognizable on habeas corpus review. First, he asserts that trial counsel was ineffective for failing to object to the court's final instructions which omitted any discussion of alibi testimony. Second, he claims that trial counsel was ineffective for failing to object to the court's final instructions which defined reasonable doubt in two different manners. Finally, he claims that the trial court committed structural error when it reappointed counsel to represent petitioner after petitioner voiced significant complaints against such counsel. We address each contention individually.
A. Ineffective Assistance of Counsel for Failure to Object to Absence of Alibi Instruction
In his first allegation, petitioner contends that he provided evidence of an alibi based on the testimony of Kenneth Murray, but nonetheless was denied an alibi instruction by the court. Specifically, co-conspirator Michael Gray, testified that petitioner gave him the murder weapon on November 23, 1993, sometime in the afternoon. Mr. Murray subsequently took the stand and stated that petitioner was at work between ten a.m. and two p.m. on November 23, 1993. Petitioner now contends that Mr. Murray's testimony constituted an alibi requiring an alibi instruction. As trial counsel failed to object to the court's omission of such an instruction, petitioner asserts that he was deprived of effective assistance of counsel.
On review of this identical claim, the PCRA court found that no alibi testimony was presented to the jury in this case. It explained that alibi testimony, under Pennsylvania law, is evidence that precludes the defendant's presence at the scene of the crime. While Kenneth Murray, petitioner's employer, provided testimony that challenged how petitioner supplied the handgun used in the crime, he did not indicate where petitioner was at the time the killing occurred. Consequently, the trial court had no duty to instruct the jury on alibi evidence. In turn, the PCRA court held that, as any attempt to raise this issue would have been futile, counsel was not ineffective.
This Court agrees. The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. CONST., amend. VI. In the case of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984), the Supreme Court set forth a two-prong test by which claims alleging counsel's ineffectiveness are adjudged. Id. at 687. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness."Id. at 688. The Supreme Court has explained that:
This standard applies to both trial counsel and appellate counsel ineffectiveness. Smith v. Reed, 528 U.S. 259, 285, 120 S. Ct. 746 (2000).
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 163-164 (1955)). It is wellestablished that appellate counsel cannot be ineffective for failing to raise a meritless claim. See Strickland, 466 U.S. at 691; Holland v. Horn, 150 F. Supp.2d 706, 731 (E.D. Pa. 2001).
Pursuant to the second prong, the defendant must establish that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. More specifically, the defendant "must show that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In Strickland, the Supreme Court emphasized that "a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695. See also Buehl v. Vaughn, 166 F.3d 163 (3d Cir. 1999).
As noted above, petitioner asserts that counsel was ineffective for failing to seek an alibi instruction. Under Pennsylvania law, an alibi "places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party."Commonwealth v. Roxberry, 602 A.2d 826, 827 (Pa. 1992) (citations omitted) (emphasis added). If an alibi is offered, Pennsylvania law mandates that an alibi instruction be given.Commonwealth v. Pounds, 417 A.2d 597, 602 (Pa. 1980). While there are no "magic words," the instruction must make it clear to the jury that "failure to prove alibi was not tantamount to guilt." Commonwealth v. Allison, 622 A.2d 950, 953 (Pa.Super. 1993) (quoting Commonwealth v. Weinder, 577 A.2d 1354, 1369-1371 (Pa.Super. 1990)). "[W]hen a defendant presents alibi witnesses, a proper alibi instruction is such an essential component of the trial that there can be no reasonable basis for failing to request and instruction or failing to object to the trial court's refusal to give one." Allison, 622 A.2d at 953 (citing Commonwealth v. Gainer, 580 A.2d 33 (1990), alloc. denied, 602 A.2d 856 (Pa. 1992); Commonwealth v. Nauman, 498 A.2d 913 (Pa.Super. 1985)). An alibi instruction, however, is only required if the defendant presents evidence which covers the time period when the crime was committed and which puts him at a different location than that of the crime scene. Commonwealth v. Repaci, 615 A.2d 796, 798 (Pa.Super. 1992), appeal denied, 631 A.2d 1006 (Pa. 1993).
In the case at bar, this Court cannot disagree with the state's finding, under its own law, that no alibi was presented. Petitioner offered testimony from Mr. Murray that contradictedevidence regarding when he gave Mr. Gray the gun used to commit the murder. Mr. Murray did not place petitioner, at the relevant time, in a different place than the crime scene involved and so removed therefrom as to render it impossible for him to be the guilty party. Indeed, even if fully believed, Mr. Murray's testimony did not disprove petitioner's involvement with instigating the crime. Furthermore, the testimony was not so specific as to make the gun exchange impossible, as Mr. Murray stated only that petitioner was at work from ten a.m. to two p.m. on November 23, 1993. Mr. Gray, on the other hand, could not specify exact times, making it possible that petitioner went to work, as stated, and thereafter gave Mr. Gray the gun. (N.T. 9/18/96, pp. 69-71).
In short, no alibi, as defined by Pennsylvania law, was provided in this case. Accordingly, the trial court was under no obligation to charge the jury with regards to this alibi. As any objection by trial counsel would have therefore been meritless, counsel cannot be deemed ineffective for failing to make such an objection.
B. Ineffective Assistance of Trial Counsel for Failing to Object to the Trial Court's Instructions on Reasonable Doubt
Petitioner next claims that his trial counsel was ineffective for failing to object to the court's reasonable doubt jury instructions, which invited the jury to choose between two different definitions of reasonable doubt — one less favorable to defendant than the other. Specifically, the trial court charged the jury as follows:
A reasonable doubt is a doubt that would case a reasonably careful and sensible person to pause, hesitate or refrain from acting upon a matter of the highest importance in his or her own affairs.
* * *
A reasonable doubt must be a real doubt. It may not be an imagined one.
(N.T. 9/24/96, pp. 133-134) (emphasis added). Petitioner now argues that the terms "pause" or "hesitate" are far more favorable standards to the accused than "refrain." As the trial court provided multiple conflicting standards, which violated due process, petitioner asserts that counsel should have objected.
The Pennsylvania standard jury instruction defining reasonable doubt reads, in relevant part, as follows:
[a] reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his own affairs. A reasonable doubt must fairly arise out of the evidence that was presented or out of the lack of evidence presented with respect to some element of the crime . . .
Pennsylvania Criminal Suggested Standard Jury Instructions § 7.01(3).
On review of this claim, the PCRA court noted that, the Pennsylvania Superior Court, in Commonwealth v. Boone, 429 A.2d 689 (Pa.Super. 1981), considered both the "hesitate" and "restrain from action" definitions of reasonable doubt and declined to find error in usage of either term. Id. at 695. Relying on this holding, the PCRA concluded that the trial court's inclusion of both the "refrain from acting" definition and the "hesitate" definition of reasonable doubt in its final jury instructions was proper. Further, it remarked that the trial court also offered the jury the alternate definition of "to pause" from acting, which is extremely favorable to defendants. As it deemed the instruction to be constitutional and "thoroughly proper," the court declined to find counsel ineffective for failing to object to this charge.
We deem this ruling to be well in accord with federal law. A trial judge has "broad discretion in framing the form and language of the charge to the jury." U.S. v. Traitz, 871 F.2d 368, 383 (3d Cir.), cert. denied, 493 U.S. 821, 110 S. Ct. 78 (1989) (quotations omitted). A single instruction to a jury may not be "judged in artificial isolation, but must be viewed in the context of the overall charge." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S. Ct. 1868, 1872 (1974) (internal quotations omitted); see also United States. v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). Moreover, a reviewing court must consider, not simply whether the instruction is erroneous, but whether it "so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736 (1977).
Although the reasonable doubt standard is a requirement of due process, "the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243 (1994), reh'g denied, 511 U.S. 1101, 114 S. Ct. 1872 (1994). Thus, "the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof", as long as "the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt." Id. (citations omitted);see also United States v. Issac, 134 F.3d 199, 203 (3d Cir. 1998) ("Due process is satisfied if the instructions, taken as a whole, accurately convey the concept of reasonable doubt to the jury."). The proper inquiry, on review, is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482 (1991) (internal quotations omitted).
The United States Supreme Court addressed the appropriate form of a reasonable doubt instruction and explicitly held that an instruction that defines reasonable doubt as "doubt that would cause a reasonable person to hesitate to act" is a formulation that is constitutionally acceptable. Victor, 511 U.S. at 20. The question that necessarily follows, in this case, is whether the addition of the term "refrain from acting" improperly lowered the Commonwealth's burden of proof. Numerous cases from this Court have addressed this precise issue and found no constitutional error. For example, in Porter v. Horn, 276 F. Supp.2d 278 (E.D. Pa. 2003), a habeas petitioner argued that the use of the phrase "restrain from acting" rather than "hesitate" raised the quantum of doubt necessary for the jury to find reasonable doubt and, hence, violated due process. Id. at 340. The federal court determined that "the trial court's substitution of the word `restrain' for `hesitate' did not impermissibly raise the level of doubt so as to constitute constitutional error[,] [since] [t]aken as a whole, the reasonable doubt jury instruction adequately instructed the jurors on the definition of reasonable doubt and its role in criminal convictions." Id. at 341. Indeed, it deemed petitioner's argument merely linguistic in light of the totality of the instruction which emphasized "the importance of reasonableness and focusing on the significant role played by evidence." Id. at 340. Likewise, in Starkes v. Marks, 524 F. Supp. 37, 40 (E.D. Pa. 1981), the court, addressing a similar argument, held that "[a]lthough there may be a semantic difference between the terms `restrain' and `hesitate' when viewed in isolation, it cannot be said, however, that there is a substantial difference between these two charges when each term is viewed in the context of the overall charge." Id. at 40; see also Laird v. Horn, 159 F. Supp.2d 58, 92 (E.D. Pa. 2001) (trial court's use of word "restrain" as opposed to "hesitate" in reasonable doubt instruction did not impermissibly lower government's burden of proof); Peterkin v. Horn, 176 F. Supp.2d 342, 381 (E.D. Pa. 2001) ("Although we would agree with Petitioner that the word `restrain' implies a slightly higher level of doubt than does the word `hesitate,' we do not find that the trial court's use of the word `restrain' in its reasonable doubt instruction operated to raise the level of doubt so high as to constitute constitutional error. Rather, our review of the instruction as a whole reveals that the trial court adequately defined the meaning and outlined the proper implementation of the concept of reasonable doubt to the jury."); Brown v. Folino, Civ. A. No. 03-4950, 2004 WL 1211946, *4 (E.D. Pa. May 28, 2004) (a jury charge stating that "a hesitation concerning the guilt of the defendant may become a reasonable doubt when and if that hesitation becomes a restraint," was constitutional under the standards established by the Supreme Court in Victor).
Petitioner relies heavily on the case of Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990) to argue that language that suggests a higher degree of doubt that what is required for acquittal under the reasonable doubt standard violates due process of law. In doing so, how ever, he improperly expands the holding of Cage.
In Cage, the Supreme Court found that by equating reasonable doubt with "grave uncertainty" and an "actual substantial doubt," and stating that what was required was a "moral certainty" that the defendant was guilty, the trial court improperly suggested a higher degree of doubt for acquittal than what was required under the reasonable doubt standard. As such, it reversed the conviction and remanded. The Cage court was specifically concerned not with the isolated uses of the terms "substantial doubt" and "grave uncertainty," but rather with their use in conjunction. Victor, 511 U.S. at 20.
This case does not raise the same concerns as the challenged language is quite different than the allegedly offensive portion of petitioner's jury charge. Petitioner challenges the use of "refrain from acting" together with the word "hesitate" when defining "reasonable doubt." Cage made no comm ent on this subject.
Moreover, in reaching its holding, the Cage court relied on the standard of "how reasonable jurors could have understood the charge as a whole." 498 U.S. at 41. Subsequently, in Estelle v. McGuire, supra, the Supreme Court rejected this standard and held that when reviewing an ambiguous instruction, the inquiry is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution. Id., 502 U.S. at 482 (citing Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198 (1990)). As such, it remains unclear whether the Court, applying this latter standard would have reached the same result under the same set of facts.
Reviewing the totality of the instruction as a whole, this Court finds that there is a reasonable likelihood that the jury understood the instruction to allow a conviction based on proof sufficient to meet the beyond a reasonable doubt standard. The instruction adequately informed the jurors regarding the concept of reasonable doubt. Moreover, the trial court did not simply substitute the word "refrain" for the word "hesitate," but rather stated that "[a] reasonable doubt is a doubt that would case a reasonably careful and sensible person to pause, hesitate or refrain from acting upon a matter of the highest importance in his or her own affairs." (emphasis added). Such language allows the jury to maintain reasonable doubt under any of the three definitions listed, thereby not raising the degree of doubt for acquittal to a level higher than what is required under the constitutional reasonable doubt standard. Accordingly, the state courts' finding that the jury instruction was proper and that trial counsel had no basis to object is neither contrary to or an unreasonable application of federal law.
C. Whether the Trial Court Committed Structural Error when It Reappointed Counsel to Represent Petitioner After Petitioner and His Mother Voiced Significant Complaints Against Such Counsel
Petitioner's last habeas claim focuses on an alleged conflict between himself and his counsel. He argues that he originally retained attorney Anthony D. Jackson. Subsequently, petitioner and his mother found themselves "sorely dissatisfied" with Attorney Jackson's preparation of the defense and complained, in writing, to the trial court. As he had already paid counsel significant sums of money, petitioner became indigent and was thus entitled to court-appointed counsel. The trial court, in turn, simply reappointed Attorney Jackson as petitioner's court-assigned counsel, rather than selecting new counsel. Petitioner now argues that this appointment of counsel was in error and caused him to suffer constitutional prejudice.
Considering this claim on appeal from petitioner's PCRA petition, the Superior Court provided more background detail regarding the facts surrounding this issue. In September of 1995, petitioner complained to the court about Jackson's representation, but, in November of 1995, told the court he was satisfied with counsel. Again, in February in 1996, petitioner informed the court that he fired Jackson. Thereafter, the court gave him two weeks to retain new counsel. A hearing was held on March 14th and, on March 25th, petitioner filed a pro se application for appointment of counsel. The March 25th petition indicated that petitioner was upset with Jackson and that "[a]s far as motions, investigative work, counseling or discovery information he has been totally irresponsible," but did not document any specific complaints. At some point at the end of March 1996, the court reappointed Jackson as counsel and the trial was scheduled for May 6, 1996, although it was later continued to September. Between March and December, petitioner did not complain about Jackson's representation despite the passage of the pre-trial conference, voir dire, trial and sentencing. Indeed, it was not until December 8, 1996 that petitioner again wrote to the trial court asking, without documenting any specific complaints, to appoint another attorney.
Based on these facts, the Superior Court held as follows:
In this circumstance: where Faulcon waited a few weeks before the scheduled trial to complain about his counsel who had represented him for over a year; where Faulcon did not procure other counsel and has produced no supporting evidence to indicate any other counsel was willing to take on this case; and where the case was continued — allowing an extra five months before the trial started — and Faulcon made no further complaints about counsel and did not seek to replace counsel, we can determine no prejudice to Faulcon and so ascribe no error to the trial court re-appointed counsel to represent Faulcon.
Superior Court Opinion (2003), at pp. 3-4.
This Court finds no basis on which to disagree. The Sixth Amendment provides, inter alia, that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. CONST., amend. VI. Where this constitutional right to counsel exists, the Supreme Court has instructed that "there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103 (1981). The Supreme Court has explained, however, that while the Sixth Amendment right to counsel guarantees a defendant representation free from a conflict of interest, it does not guarantee the right to "a `meaningful relationship' between an accused and his counsel." Morris v. Slappy, 461 U.S. 1, 14, 103 S. Ct. 1610, 1617 (1983). It remains well-established that "those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Caplin Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S. Ct. 2646, 2652 (1989). In the absence of "good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict . . . the court is not required to set aside a prior appointment of counsel and appoint new counsel." Soto v. United States, 369 F. Supp. 232, 239-240 (E.D. Pa. 1973), aff'd, 504 F.2d 1339 (3d Cir. 1974) (internal quotations omitted). A conflict generally exists "where counsel's undivided loyalty to his client is affected." Abu Jamal v. Horn, Civ. A. No. 99-5089, 2001 WL 1609690, *67 (E.D. Pa. Dec. 18, 2001). In order to prevail on this Sixth Amendment claim, the defendant must show that this actual conflict of interest "adversely affected counsel's performance." United States v. Kole, 164 F.3d 164, 175 (3d Cir. 1998), cert. denied, 526 U.S. 1079, 119 S. Ct. 1484 (1999) (quotations omitted).
Deferring, under 28 U.S.C. § 2254(e)(1), to the facts as found by the Pennsylvania Superior Court, this Court finds no basis on which to disagree with the state court's conclusion. As a primary matter, petitioner fails to establish any real conflict with his attorney, other than blanketly alleging that he and his mother were "dissatisfied" with Attorney Jackson's performance and that Attorney Jackson charged him "a great deal of money" without doing pre-trial or trial advocate preparation. Such statements fall short of showing that counsel's undivided loyalty to his client was affected. Moreover, petitioner failed to fire Attorney Jackson until March of 1996, well over a year after Mr. Jackson began his representation of petitioner. Thereafter, despite being given time to obtain new counsel, petitioner failed to do so, on the basis of indigency. As the trial was approximately five weeks away, the court re-appointed Jackson as trial counsel, in light of the fact that counsel was both experienced and extensively familiar with the case. Petitioner did not complain about counsel until well after the trial was over and direct appeal started.
Finally, even if petitioner could succeed in establishing a conflict of interest, he neglects to prove prejudice from this alleged conflict. He asserts that the conflict was evident from the fact that Jackson filed a formal notice of appeal and then failed to file the required brief, causing the appeal to be dismissed. Nonetheless, petitioner omits mention of the fact that his appeal was reinstated nunc pro tunc and he was appointed new counsel who filed a brief on his behalf. Accordingly, no grounds for habeas relief exist.
Therefore, I make the following: