IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MICHAEL PAUL FOUST, )

)

Petitioner, )

)

v. ) Civil Action No. 04-176 E

) JUDGE McLAUGHLIN

SUPERINTENDENT BROOKS, et al., ) CHIEF MAGISTRATE JUDGE BAXTER

)

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the Petition for Writ of Habeas Corpus be dismissed and that a

certificate of appealability be denied.

II. REPORT

This is a petition for writ of habeas corpus filed by a state prisoner presently incarcerated

at the State Correctional Institution at Albion, Pennsylvania. Michael Paul Foust is serving two

consecutive life sentences for the murder of an unarmed husband and wife in1993. Petitioner asserts

that his state court conviction is constitutionally infirm and seeks release. The Commonwealth has

responded to the petition (Docket #6) and it is now ripe for disposition.

1. Procedural history.

Petitioner was convicted after a jury trial of two counts of First Degree Murder on June

24, 1994, when he was seventeen years of age. Sentence was imposed on June 30, 1994, and a direct

appeal was filed in the Superior Court of Pennsylvania in which petitioner presented the following

claims:

A. Did the trial court err in denying appellant's motion to transfer these

proceedings to the Juvenile Division of Common Pleas Court?

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 1 of 22
2

B. Did the trial court err in permitting the introduction into evidence of

photographs of the homicide victims and the crime scene?

C. Was appellant denied a fair trial by the disallowance of character and

background evidence?

(State Court Record, Superior Court Brief at 4). The Superior Court affirmed the judgment of sentence

on July 18, 1995. Petitioner's subsequent petition for allowance of appeal was denied by the Supreme

Court of Pennsylvania on December 15, 1995.

Petitioner next filed a petition pursuant to the Post Conviction Relief Act (PCRA) on

July 26, 1996 in which he asserted:

1. Trial counsel was ineffective in failing to file a suppression motion;

2. Trial counsel was ineffective in allowing the Commonwealth to hold

back exculpatory evidence;

3. Counsel was ineffective in failing to prepare a defense of diminished

capacity or sudden passion;

4. Counsel was ineffective in requesting an erroneous charge on intent.

(State Court Record, PCRA petition at 3). Counsel was appointed to represent petitioner, and a hearing

was held before the trial court on September 2, 1999, at which trial counsel Antkowiak and petitioner

each testified. At the hearing, additional issues were presented and then ruled upon by the PCRA court,

which issued an order denying the petition and making findings of fact that same date (State Court

Record, Findings of Fact, September 7, 1999).

Petitioner appealed the denial of PCRA relief, and filed a pro se statement of matters

complained of which contained numerous claims. New counsel was appointed and filed a Motion to

Withdraw along with an Anders brief and a "no-merit" letter, identifying the following issues raised by

petitioner:

1. Trial court erred when permitting introduction of photographs into

evidence of homicide victims and crime scene after extensive testimony

by pathologist/coroner and detectives;

2. Petitioner was denied fair trial by the disallowance of character and

background evidence;

3. Trial court imposed illegal sentence;

4. Petitioner was denied a fair trial for lack of time allowed for trial. Trial

was made to be done in three days;

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 2 of 22
3

5. The trial court erred by not sequestering jury due to media and radio coverage;

6. Post Conviction Relief Act counsel was ineffective for not questioning

the disappearance of petitioner's first submitted PCRA and for not

preparing any defense with/for petitioner;

7. Trial counsel was ineffective for the following [reasons]:

A) Failing to file motion to suppress;

B) Failing to seek exculpatory evidence from Commonwealth;

C) Failing to object to trial court instructing jury on the total first

degree murder instruction rather than the instruction/definition

of premeditation as requested by jury;

D) Failing to request change of venue due to media coverage;

E) Failing to offer evidence of drug use into defense in order to

establish diminished capacity. Counsel felt he didn't need it;

F) Failing to have petitioner be evaluated by psychiatrist before trial

instead of after;

G) Failing to raise demeanor of juror's hesitating to give his answer

when asked if he agreed with verdict.

(State Court Record, Brief and "no-merit" letter of September 3, 2002). The Superior Court accepted

counsel's submission and affirmed the lower court's order on April 17, 2003, finding that issues 1 and

2 had been previously litigated on direct appeal, that issue 5 had been waived, and that the remaining

claims lacked merit (State Court Record, Superior Court Opinion, April 17, 2003). The Pennsylvania

Supreme Court denied Foust's petition for allowance of appeal on November 19, 2003.

Foust filed the instant petition for writ of habeas corpus on June 23, 2004 and raises the

same claims he presented to the Superior Court on appeal from the denial of PCRA relief (Claims 1-

7(G) above). The Commonwealth has responded to the petition (Docket #3) and it is now ripe for

disposition.

2. Evidence at trial.

The evidence at trial was largely uncontested by defendant and, as summarized by the

Superior Court of Pennsylvania, showed the following:

In the early morning hours of November 22, 1993, appellant, Michael Foust, and

one Kevin Zenker (a.k.a. Krazy) borrowed a friend's car and drove from Oil

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 3 of 22
1 Numerals in parentheses preceded by the letters "TT2" refer to pages in the Trial Transcript,

Second Day, submitted as part of the State Court Record in this matter.

4

City, Pennsylvania, to the residence of one Donald Foust, appellant's father.

While at the Foust residence, appellant stole his father's loaded 9mm handgun

and several extra bullets. Thereafter, with appellant at the wheel and the gun

tucked between the seat, the pair returned to Oil City.

On the return trip, appellant passed the residence of the victims, Darla Bump and

Russell Rice. On the initial pass, Zenker fired the 9mm pistol out the passenger

window at Bump's dog. Curious whether Zenker had hit the animal, appellant

turned the car around and passed the house again.

At this time, Bumps daughter informed Rice and Bump that the car belonged to

Rice's nephew, Kevin Seigworth. Rice and Bump pulled out of the driveway

and followed who they thought was Rice's nephew.

After evading the victims for approximately four (4) miles, appellant grabbed the

gun he had stolen from his father, slowed the car to a stop, and jumped out. The

victim's car stopped. As Rice was emerging from his car unarmed, appellant

approached the victim's vehicle and opened fire. After fatally shooting Rice four

(4) times, appellant unloaded the rest of his clip into Bump as she remained seat

belted into the passenger seat.

(State Court Record, Superior Court Opinion, April 17, 2003 at 1-2). At trial, petitioner confirmed the

following portions of the Commonwealth's case: (1) borrowing Seigworth's car (TT2 174)1; (2) taking

his father's gun (TT2 178); (3) watching as Zenker shot out the window of the car at what he believed

to be a deer (TT2 182-183); and (4) being chased by a car for some distance (TT2 183-184). Petitioner

claimed that the car behind him rear-ended his car (TT2 187), and that he stopped, got out with the gun,

and approached the car behind him. The driver of the other car was standing by the open driver's side

door, and petitioner thought he was reaching back into the car for something which is when "fear took

me and the next thing I knew, the shooting was already done." (TT2 193).

3. PCRA Hearing.

The first witness at the PCRA hearing was trial counsel Antkowiak. He was asked why

he chose not to file a motion to suppress and testified that his client had not made any statements to

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 4 of 22
2 Numerals in parentheses preceded by the letters "HT" refer to pages in the Hearing Transcript

dated September 2, 1999.

5

police, and that no evidence had been seized from petitioner (HT 6)2. Thus, in his view, there was no

reason for a motion to suppress.

Counselwas unaware of any facts concerning a voluntary intoxication defense until after

trial when petitioner first suggested he may have "ingested" a substance (HT 6-7). However, petitioner's

ability to recall in detail everything he did on the night in question convinced Antkowiak that he had

no viable intoxication defense (HT 8).

Trial counsel testified that he did not see a basis for seeking a change of venue prior to

trial. The trial court permitted extensive voir dire, and counsel was able to seat a jury in two days, after

having explored possible prejudice from pretrial publicity (HT 9-10). Finally, counsel represented

petitioner in prior juvenile proceedings, and was familiar with petitioner's record of two brief

hospitalizations for depression (HT 11). He found nothing in those records which would have indicated

the possibility of a diminished capacity defense (id.).

Petitioner also testified, claiming for the first time that he and Zenker had smoked

marijuana prior to the killings (HT 30-31). He claims to have told counsel about this prior to trial, but

that counsel said "we don't want to bring that up." (HT 36).

4. Exhaustion and procedural default.

The first issue in any habeas corpus proceeding instituted by a state prisoner is whether

the petitioner has exhausted his state court remedies. Exhaustion requires that the claims presented in

the federal court have been presented in substantially the same form to the state's highest court, with

identity of both facts and legal theory. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Even if the

claims have been so presented to the state's highest court, "[a]n applicant shall not be deemed to have

exhausted the remedies available in the courts of the State . . . if he has the right under the law of the

State to raise, by any available procedure, the question presented." 28 U.S.C. §2254(c); Castille v.

Peoples, 489 U.S. 346 (1989). And, although the requirement is not jurisdictional, it "should be strictly

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 5 of 22
6

adhered to because it expresses respect for our dual judicial system and concern for harmonious

relations between the two adjudicatory institutions." Landano v. Rafferty, 897 F.2d 661, 669 (1990).

The requirement also recognizes the duty, and ability, of the state courts to uphold federal law, and

serves the interest of ensuring a fully developed record in the state court. Id. "[S]tate prisoners must

give the state courts one full opportunity to resolve any constitutional issues by invoking one complete

round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845

(1999). Finally, a federal habeas court is required to dismiss a petition which contains both exhausted

and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982); Landano v. Rafferty, supra.

All of petitioner's claims have been presented to the state courts in the context of his

direct appeal or his PCRA petition. Therefore, petitioner has exhausted available state court remedies.

Further, with the exception of petitioner's claim that the trial court erred in failing to

sequester the jury, all of the claims presently raised by Petitioner were addressed on the merits by the

state courts. Thus, procedural default is an issue only with respect to petitioner's sequestration claim.

Neither exhaustion nor procedural default bar consideration of any of petitioner's claims save for his

fifth issue.

Petitioner did not present his claim that the trial court erred in failing to sequester the

jury on direct appeal. The Superior Court, when reviewing the denial of PCRA relief, found that this

issue had been waived. This is a state court procedural default which bars consideration of the claim.

Like the exhaustion requirement, the procedural default doctrine is based upon notions

of comity and federalism. The procedural default barrier rests upon the "independent and adequate state

grounds" doctrine, which dictates that federal courts will not review a state court decision involving a

question of federal law if the state court decision is based on state law that is "independent" of the

federal question and "adequate" to support the judgment. Coleman v. Thompson, 501 U.S. 722, 750

(1991). A state's procedural rules are entitled to deference by federal courts, and violation of a state

procedural rule may constitute an independent and adequate state ground for denial of federal review

of habeas claims. Id., 501 U.S. at 750. Violations of a state's procedural rules may constitute an

independent and adequate state ground sufficient to invoke the procedural default doctrine even where

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 6 of 22
3 The failure to establish constitutional prejudice also disposes of the "manifest injustice"

exception to procedural default which would require a showing of actual innocence. Schlup v.

Delo, 513 U.S. 298 (1995)(the "fundamental miscarriage" exception is limited to the

"extraordinary case, where a constitutional violation has probably resulted in the conviction of

7

no state court has concluded that a petitioner is procedurally barred from raising his claims. Glass v.

Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 116 S.Ct. 1027 (1996).

Federal habeas review is not available to a petitioner whose constitutional claims have

not been addressed on the merits due to procedural default unless such petitioner can demonstrate: 1)

cause for the default and actual prejudice as a result of the alleged violation of federal law; or 2) failure

to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529

U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. at 750. In this respect, a showing of "actual

prejudice" requires a showing "not merely that the errors at his trial created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816

(1982).

In this case, petitioner does not point to any cause external to his defense which

prevented him from raising his sequestration claim on direct appeal. Thus, he fails to meet the cause

standard, and the court need not address actual prejudice. Murray v. Carrier, 477 U.S. 527, 533 (1986).

Further, and in any event, petitioner could not establish prejudice because, as the trial court held:

We also note that after the jury was selected they were repeatedly and thoroughly

instructed by the Court to avoid any outside influence. We had no evidence

throughout the course of the trial or even after the trial that the jury was

influenced in its decision by anything other than the evidence that was developed

in open court.

(Trial Court Opinion dated September 7, 1999 at 4). Petitioner has absolutely failed to show that the

court's decision not to sequester the jury caused him any prejudice at all. Petitioner cannot establish

cause for and prejudice from his failure to properly raise his claim concerning sequestration of the jury

in the state courts and he is not entitled to habeas review of that claim.3

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 7 of 22
one who is actually innocent" (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639,

2649, 91 L.Ed.2d 397 (1986)). Put simply, the court's failure to sequester the jury has no

bearing on petitioner's actual innocence of the crimes charged.

8

5. Merits.

A. Applicable law.

Section 2254 of the federal habeas corpus statute provides the standard of review for

federal court review of state court criminal determinations. 28 U.S.C. § 2254. Specifically, a federal

court must accord a presumption of correctness to a state court's factual findings, which a petitioner can

rebut only by clear and convincing evidence. 28 U.S.C. § 2254(e). Where a state court’s factual

findings are not made explicit, a federal court’s "duty is to begin with the [state] court’s legal conclusion

and reason backward to the factual premises that, as a matter of reason and logic, must have undergirded

it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining what implicit factual

findings a state court made in reaching a conclusion, a federal court must infer that the state court

applied federal law correctly. Id. (citing Marshall v. Lonberger, 459 U.S. 422, 433 (1982)).

A federal court may not issue the writ unless it concludes that the state court's

adjudication resulted in a decision that was "contrary to," or an "unreasonable application of," clearly

established federal law as determined by the Supreme Court of the United States. 28 U.S.C. §

2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court discussed

the independent meanings of the "contrary to" and "unreasonable application" clauses contained within

§ 2254(d)(1):

Under the "contrary to" clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently than this Court has

on a set of materially indistinguishable facts. Under the "unreasonable

application" clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 411-413. The Supreme Court further clarified that a federal habeas court making

the unreasonable application inquiry should ask whether the state court’s application of clearly

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 8 of 22
9

established federal law was objectively unreasonable. Id. at 409. "Under §2254(d)(1)'s unreasonable

application clause, then, a federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.

B. Petitioner's claims.

1. Trial court erred when permitting introduction of

photographs into evidence of homicide victims and crime

scene after extensive testimony by pathologist/coroner and

detectives.

The Commonwealth sought admission at trial of numerous photographs of the victims

at the crime scene, as well as two autopsy photographs. Objections were made to the graphic nature of

some of the photographs, and on the basis that they were cumulative of the oral testimony given by the

coroner and/or the officers at the scene. Petitioner presently asserts only that the photographs were

cumulative of other evidence. He does not reiterate the argument made in state court that the

photographs were unduly graphic and, therefore, inflammatory. The court will address the

inflammatory nature of the photographs, however, since this was the main thrust of his argument in the

state courts and the failure to present that claim in the instant petition may be inadvertent.

At issue are seven photographs admitted into evidence at trial. The first two are

photographs which depict victim Rice at his autopsy. The photographs were initially offered with the

coroner's testimony and in color, but were reproduced in black and white (TT2 51-57). The court ruled

that the first photograph, showing Rice's back and buttocks, was not inflammatory (TT2 57). The

second photograph showed Rice from the side where the four entry wounds are visible. The court found

this photograph inflammatory, but ruled that the change from color to black and white, and the

Commonwealth's need to explain the four wounds and to help the jury visualize how they occurred,

convinced him that the photograph's probative value outweighed any improper prejudice (TT2 57). The

Commonwealth also offered to cover the victim's face on the second photograph which defense counsel

said would be helpful (TT2 57).

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 9 of 22
10

The second set of 5 photographs were of the crime scene, and depicted the victims'

vehicle and the position of each body when found by police. These photographs were offered during

the testimony of an investigating officer and, after a lengthy sidebar (TT2 81-89), 4 of the 5 were

admitted. The court ruled that Exhibits 22 and 24 were not inflammatory as they did not show blood

(Exhibit 24 is described as being a "distant shot" of the outside of the car) (TT2 83). The court found

that Exhibit 25, which depicts the female victim still in her car seat, was "probably not inflammatory"

but that the probative value of showing the victim's position and the fact that she was still in her seatbelt

outweighed any prejudice even if the photograph had some inflammatory aspect (TT2 84). Exhibit 27

showed a view of the windshield of the car looking in towards the victims, which would enable the

prosecution to show the angle at which the bullets were fired (TT2 85-86). The court again found any

inflammatory aspect of the picture outweighed by its probative value (TT2 86).

The Commonwealth then offered Exhibits 29 and 30, each showing the victims as

viewed through the driver's side door, and showing the male victim with one foot in the car and one out

of the car. These pictures are also described as showing that there was nothing on the floor or between

the seats for the victim to grab (TT2 86-87). The Commonwealth voluntarily withdrew Exhibit 30 as

being virtually the same view as Exhibit 29, and the court admitted Exhibit 29 on the basis that the

probative value outweighed any improper prejudice (TT2 88).

The issue of the inflammatory nature of the photographic evidence was also addressed

at length on direct appeal by the Superior Court. Petitioner framed the issue as one of state evidentiary

law, and argued that the trial court committed error in admitting the photographs due to their graphic

nature (State Court Record, Superior Court Brief at 13-20). The Superior Court, accordingly, addressed

the issue as a matter of state evidentiary law and found that the trial court had not abused its discretion

in admitting the photographs (Id., Superior Court Opinion July 18, 1995, pages 9-14).

The issue of whether the photographs were properly admitted into evidence at trial is not

cognizable in a federal habeas proceeding because it implicates a violation of state evidentiary rules

only and not federal law. "A litigant wishing to raise a federal issue can easily indicate the federal law

basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim

the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 10 of 22
11

simply labeling the claim 'federal.'" Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d

64 (2004). When petitioner presented his claim on direct appeal, he did not claim that the state's

evidentiary rulings violated his constitutional due process and equal protection rights, as he must in

order to assert a constitutional claim. Instead, he presented the claims solely as a matter of state

evidentiary law. Petitioner cited to no federal law and the analysis applied by the state courts in

deciding his claim was based upon state evidentiary case law. The issue is not a proper subject for

federal habeas review. See Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997); Geschwendt v.

Ryan, 967 F.2d 877, 888-89 (3d Cir.1992).

Even if the issue had properly been framed as a constitutional one, however, and even

if petitioner intends to challenge the graphic nature of the photographs as he did in state court, the trial

court's rulings clearly do not violate petitioner's rights. There are times when the graphic nature of

evidence is such that admission thereof can deny a criminal defendant a fair trial. See, Lesko v. Owens,

881 F.2d 44, 51-52 (3d Cir.1989) (where probative value of evidence, though relevant, is greatly

outweighed by the prejudice to the accused from its admission, then use of such evidence may violate

fundamental fairness and due process). Here, the photographs at issue were relevant to the

Commonwealth's theory of the case, and the trial court went to great lengths to determine the probative

value thereof and the extent of any prejudice which might result from their admission. Any potential

for the juror's passions to be inflamed was ameliorated when the two autopsy photographs were reduced

to black and white, and the face of the victim was covered in one photograph. Further, the

Commonwealth withdrew one photograph from the crime scene, meaning that only four views of the

crime scene are at issue. These four photographs, as described above, showed the position of the

victims in the car when found, illustrated the angle of entry of the bullets through the windshield of the

car, and also showed the relevant entry wounds on the victims' bodies. Photograph 29 was also relevant

to the Commonwealth's attempt to rebut Foust's defense that he thought the victim was reaching for

something between the seats of the car as it showed the victim with one foot in the car, one foot out of

the door, and nothing between the front seats.

The analysis provided by the trial court, i.e., weighing the inflammatory nature of the

photographs against the probative value, is entirely consistent with the analysis necessary to determine

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 11 of 22
12

if a constitutional violation occurred. The trial court's findings of fact concerning the graphic nature,

or not, of the photographs, and of the likely impact they would have on a jury, are clear on the record

and are entitled to a presumption of correctness, which petitioner has not rebutted. The trial court's

determination that the photographs possessed probative value which outweighed any possible

inflammatory effect on the jury is one which is neither contrary to nor an unreasonable application of

federal law to the facts of this case.

2. Petitioner was denied fair trial by the disallowance of

character and background evidence.

Petitioner sought to admit at trial the testimony of five witnesses to testify to his

reputation for non-violence, and also sought to admit evidence of the witnesses' actual personal

knowledge of Foust's character in this respect. The trial court ruled, consistent with state law, that a

witness may testify only to the defendant's general reputation and may not offer a personal opinion

regarding a defendant's character. The Superior Court affirmed on the same basis (State Court Record,

Superior Court Opinion, July 18, 1995 at 14-15). Again, the matter was pursued entirely as an issue

of state evidentiary law and, accordingly, is not properly before this court. Johnson, supra; Geschwendt,

supra.

Further, and in any event, a review of the record reveals that each witness, despite the

ruling, testified that they had personally never seen petitioner behave violently (TT2 276, 278, 280, 282,

283)(e.g., "When he lived with us he was never violent."). In fact, each witness clearly testified to their

personal experience, as opposed to their knowledge of the community's perception, of whether

petitioner was or was not violent. Thus, the state court record reflects that the defense managed to place

into evidence the very testimony that the state court ruled was inappropriate. Petitioner could not have

suffered prejudice from the trial court's ruling, and certainly was not denied a fair trial on this basis.

3. Trial court imposed illegal sentence.

Petitioner's sentencing claim is a challenge to the trial court's decision to impose

consecutive sentences. There is no allegation that the court imposed a sentence beyond its authority,

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 12 of 22
13

or that there is any constitutional infirmity in the state sentencing laws. This alleged error of state law

lacks constitutional dimension and does not warrant federal habeas relief. See, e.g., Souch v. Schaivo,

289 F.3d 616 (9th Cir. 2002)(holding that neither an alleged abuse of discretion by the trial court in

choosing consecutive sentences, nor the trial court's alleged failure to list its reasons for imposing

consecutive sentences, being errors under state law, could form the basis for federal habeas relief);

Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994)(concluding, where Nevada prisoner

challenged state trial court imposition of consecutive sentences without explanation, "[t]he decision

whether to impose sentences concurrently or consecutively is a matter of state criminal procedure and

is not within the purview of federal habeas corpus"); Herrera v. Artuz, 171 F.Supp.2d 146 (S.D.N.Y.

2001) (holding thatstate court's decision to impose consecutive sentences did not warrant federal habeas

relief, even where prosecution had recommended concurrent sentences, where sentence was within the

range prescribed by state statute and the trial court had discretion to impose consecutive terms).

Consequently, petitioner has failed to show that he is entitled to habeas corpus relief with respect to his

sentencing claim.

4. Petitioner was denied a fair trial for lack of time allowed for

trial.

Petitioner did not identify for the state court, and does not indicate here, what more he

would have done at trial with more time, nor does he indicate how his defense was limited in any

respect by the trial court's scheduling. In fact, trial counsel conceded at the PCRA hearing that he had

ample time to present his witnesses (HT 17). The Superior Court found this claim "not supported by

the record" and noted that petitioner failed to identify "any evidence that the trial court precluded [on

the basis of time]" or to otherwise support his claim (State Court Record, Superior Court Opinion of

April 17, 2003 at 6).

"Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions

must comport with prevailing notions of fundamental fairness. We have long interpreted this standard

of fairness to require that criminal defendants be afforded a meaningful opportunity to present a

complete defense." California v. Trombetta, 467 U.S. 479, 485 (1984) (emphasis added). Petitioner

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 13 of 22
14

must establish that he was somehow denied the opportunity to present a meaningful defense to the

charges through the allegedly inadequate amount of time permitted by the trial court. In this respect,

petitioner must show:

First, that [defendant] was deprived of the opportunity to present evidence in his

favor; second, that the excluded testimony would have been material and

favorable to his defense; and third, that the deprivation was arbitrary or

disproportionate to any legitimate evidentiary or procedural purpose.

Government of Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir.1992). Petitioner has met none of

these three requirements and the state court's denial of his claim was proper.

5. The trial court erred by not sequestering jury due to media and

radio coverage.

This claim is barred by procedural default as discussed above.

6. Post Conviction Relief Act counsel was ineffective for not

questioning the disappearance of petitioner's first submitted

PCRA and for not preparing any defense with/for petitioner.

Petitioner's sixth claim is that PCRA counsel was ineffective for not preparing for the

PCRA hearing and for not questioning the "disappearance" of petitioner's first PCRA petition. These

claims do not rise to constitutional magnitude and are not cognizable under § 2254. "There is no

constitutional right to an attorney in state post-conviction proceedings." Pennsylvania v. Finley, 481

U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765,

106 L.Ed.2d 1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim

constitutionally ineffective assistance of counsel in such proceedings. See Wainwright v. Torna, 455

U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982)(where there is no constitutional right to counsel there

can be no deprivation of effective assistance)." Coleman v. Thompson, 501 U.S. 722, 752 (1991). It

follows that counsel's asserted failure to file an appeal from the denial of relief in such a proceeding

would not give rise to a constitutional claim. See also, Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.

1988)(asserted errors in the course of a state’s post conviction process not cognizable in a federal

habeas petition); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995) ("An attack on a state habeas

proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 14 of 22
15

on a proceeding collateral to the detention and not the detention itself.") (internal quotation marks

omitted); Roe v. Baker, 316 F.3d 557, 571 (6th Cir. 2002) (“relief may not be granted to a habeas

petitioner for alleged deficiencies in a state’s post-conviction procedure”); Jolly v. Gammon, 28 F.3d

51, 54 (8th Cir. 1994); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); Hopkinson v. Shillinger,

866 F.2d 1185, 1219-20 (10th Cir. 1989), on reh'g, 888 F.2d 1286 (1989), overruling on other grounds

recognized by Davis v. Maynard, 911 F.2d 415, 417 (10th Cir.1990); Spradley v. Dugger, 825 F.2d

1566, 1568 (11th Cir.1987). Contra Dickerson v. Walsh, 750 F.2d 150, 153 (1st Cir.1984); Lambert v.

Blackwell, 2003 WL1718511 (E.D.Pa., April 1, 2003)(persuaded by Eighth Circuit's analysis that such

claims impact only the issue of exhaustion of state remedies); Abu-Jamal v. Horn, 2001WL1609690

(E.D.Pa., Dec. 18, 2001)(same). Thus, this claim will not be further addressed.

7. Claims challenging the effectiveness of trial counsel:

Petitioner's remaining claims are framed in terms of ineffective assistance of counsel.

The Sixth Amendment right to counsel exists "in order to protect the fundamental right to a fair trial."

Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) (quoting Strickland v. Washington, 466 U.S. 668, 684

(1984)).

Thus the right to the effective assistance of counsel is recognized not for its own

sake, but because of the effect it has on the ability of the accused to receive a fair

trial. Absent some effect of challenged conduct on the reliability of the trial

process, the Sixth Amendment guarantee is generally not implicated.

Fretwell, 506 U.S. at 369 (citing United States v. Cronic, 466 U.S. 648, 658 (1984)). See also

Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (the essence of a claim alleging ineffective assistance is whether counsel's unprofessional errors so upset the adversarial balance between defense and

prosecution that the trial was rendered unfair and the verdict rendered suspect).

The Supreme Court has formulated a two-part test for determining whether counsel

rendered constitutionally ineffective assistance: 1) counsel's performance was unreasonable; and 2)

counsel's unreasonable performance actually prejudiced the defense. Strickland, 466 U.S. at 687. To

determine whether counsel performed below the level expected from a reasonably competent attorney,

it is necessary to judge counsel's challenged conduct on the facts of the particular case, viewed at the

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 15 of 22
16

time of counsel's conduct. Strickland, 466 U.S. at 690. A petitioner who claims that he or she was

denied effective assistance of counsel carries the burden of proof. Cronic, 466 U.S. at 658.

The first prong of the Strickland test requires a defendant to establish that his attorney's

representation fell below an objective standard of reasonableness by committing errors so serious that

he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466

U.S. at 688. 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 totality of the circumstances, the challenged action "might be considered sound trial strategy."

Id. at 689. The question is not whether the defense was free from errors of judgement, but whether

counsel exercised the customary skill and knowledge that normally prevailed at the time and place. Id.

The second prong requires a defendant to demonstrate that counsel's errors deprived him

of a fair trial and the result was unfair or unreliable. Strickland, 466 U.S. at 689. To prove prejudice,

a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different. Strickland, 466 U.S. at 694 (emphasis added).

A “reasonable probability” is one that is sufficient to undermine confidence in the outcome. Id.

A) Failing to file a motion to suppress.

The PCRA court noted that petitioner failed to identify any evidence which could have

been the subject of a motion to suppress (Findings of Fact, September 7, 1999 at 1). Indeed, petitioner

still has not identified any evidence presented at trial which might have been the subject of a motion

to suppress. The PCRA court ruled that "there was no basis to file a suppression motion." (Id.). This

finding of fact is presumed correct, and petitioner has not rebutted that presumption. Therefore, the

state court's ruling that this claim of ineffective assistance does not warrant relief is neither contrary to

nor an unreasonable application of federal law. Parrish v. Fulcomer, 150 F.3d 326, 327 (3d

Cir.1998)(counsel will not be deemed ineffective for failing to present an argument without merit).

B) Failing to seek exculpatory evidence from Commonwealth.

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 16 of 22
17

Again, petitioner fails to identify any evidence which was withheld from the defense and

which counsel could have obtained from the Commonwealth. This claim likewise fails. Parrish, supra.

C) Failing to object to trial court instructing jury on the total

first degree murder instruction rather than the

instruction/definition of premeditation as requested by jury.

Petitioner asserts that counsel should have objected when the trial court, asked by the

jury to give a supplemental instruction on the meaning of "premeditation", decided to give a more

complete charge on the offense of first degree murder, including the definition of premeditation. The

PCRA court found "no error" in its decision to instruct the jury more fully (State Court Record, Finding

of Fact, September 7, 1999 at 5). The Superior Court reviewed the court's supplemental instruction at

length, and found that it was an accurate statement of Pennsylvania law in every respect (Id., Superior

Court Opinion, April 17, 2003 at 9). Hence, it concluded that counsel was not ineffective for failing

to object because "there was no basis upon which trial counsel could have successfully objected to this

instruction." (Id. at 10). Petitioner does not argue that the instruction given was inaccurate. Instead,

he merely alleges that he would have preferred the court simply read the definition of premeditation

without the context of the offense as a whole. Petitioner could not have been prejudiced by an

instruction which accurately states Pennsylvania law. The state courts properly rejected this claim of

ineffective assistance. Parrish, supra.

D) Failing to request change of venue due to media coverage.

The issue of pretrial publicity and the effect it has upon a defendant's ability to obtain

a fair trial has been settled since Murphy v. Florida, 421 U.S. 794 (1974), Estes v. Texas, 381 U.S. 532

(1965) and Irvin v. Dodd, 366 U.S. 717 (1961):

. . . [W]hen prejudicial pretrial publicity wholly undermines the

impartiality of the jury, the trial court should take steps to assure a fair trial,

usually by granting a change of venue. Sheppard [v. Maxwell], 384 U.S. [333]

at 363, 86 S.Ct. 1507 [(1966)]; Rideau [v. Louisiana], 373 U.S. 723, 83 S.Ct.

1417 [(1963)].

In some cases, adverse pretrial publicity is so extreme that the court will

presume prejudice to the defendant. Irvin, 366 U.S. at 723, 81 S.Ct. 1639; Patton

[v. Yount], 467 U.S. [1025] at 1031, 104 S.Ct. 2885 [(1984)]. "Where media

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 17 of 22
18

or other community reaction to a crime or a defendant engenders an atmosphere

so hostile and pervasive as to preclude a rational trial process, a court reviewing

for constitutional error will presume prejudice to the defendantwithoutreference

to an examination of the attitudes of those who served as the defendant's jurors."

Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir.1992), overruled on other

grounds Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353

(1993); see also Sheppard, 384 U.S. at 333, 86 S.Ct. 1507; Rideau, 373 U.S. at

723, 83 S.Ct. 1417. Such cases, however, are "exceedingly rare." Rock, 959

F.2d at 1253; Flamer v. Delaware, 68 F.3d 736, 754 (3d Cir.1995). In fact, for

a court to presume prejudice, "the community and media reaction ... must have

been so hostile and so pervasive as to make it apparent that even the most careful

voir dire process would be unable to assure an impartial jury." Rock, 959 F.2d

at 1252.

In the absence of facts that demonstrate a presumption of prejudice,

a defendant must prove actual prejudice, that is, that those who served on

his jury could not reach an impartial verdict based solely on the evidence

presented at trial. Patton, 467 U.S. at 1035, 104 S.Ct. 2885 (citing Irvin, 366

U.S. at 723, 81 S.Ct. 1639); Rock, 959 F.2d at 1253. . . . To determine

whether actual prejudice exists, the court should look to the totality of the

circumstances, including the voir dire of the jury. Murphy, 421 U.S. at 799-

801, 95 S.Ct. 2031.

Pursell v. Horn, 187 F.Supp.2d 260, 301 (W.D.Pa. 2002)(emphasis added). The PCRA court made the

following ruling:

In addressing the pretrial publicity issue, that issue is resolved by the fact that

We did get fourteen jurors selected. I have gone over my notes of jury selection

and find that counsel actually interviewed only thirty-six jurors to get the

fourteen, and, therefore, we are satisfied that there was no problem getting a fair

jury in this case. The issue of pretrial publicity is subsumed in the fact that We

had no problem finding a jury.

(State Court Record, Findings of Fact, September 7, 1999 at 3). In ruling on the specific issue of

counsel's failure to request for change of venue, the court further noted that it did not recall any

"sensational" reporting on the case (id. at 4). On appeal, the Superior Court affirmed, finding that

petitioner failed to meet his burden of establishing prejudice. "Indeed, trial counsel testified at the

evidentiary hearing that the trial court allowed him to conduct an individual voir dire with prospective

jurors in order to determine whether the pretrial publicity would affect their consideration of the case."

(Id., Superior Court Opinion, April 17, 2003 at 11; HT 9-10).

The state court's ruling that no prejudice accrued due to the pretrial publicity in this case

disposes of the issue of counsel's failure to seek a change of venue. Absent any prejudice from the

underlying pretrial publicity, petitioner could not have suffered the prejudice necessary to establish a

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 18 of 22
19

claim of ineffective assistance. Hence, this ruling is neither contrary to nor an unreasonable application

of federal law.

E) Failing to offer evidence of drug use into defense in order to

establish diminished capacity.

Petitioner next asserts the counsel should have pursued a diminished capacity defense

in this case. Trial counsel testified that he had no reason to believe that petitioner was under the

influence of alcohol or drugs at the time of the offense, and that petitioner first suggested to counsel that

he may have used marijuana prior to the killings after trial was concluded (HT 7). Counsel further

testified that, even if he had been made aware of this evidence prior to trial, he would not have changed

his defense since there was no indication that the level of impairment "would have risen to a level that

would have changed anything or mitigated anything." (HT 7). Petitioner's clear memory of details about

the entire incident gave counsel "no indication that . . . his faculties . . . were in any way diminished by

anything." (HT 8). The PCRA court expressly found that counsel was credible in his testimony, and

rejected Foust's contrary testimony (Findings of Fact September 7, 1999 at 3). Thus, the court ruled that

counsel had no reason to pursue a diminished capacity defense.

Federallaw recognizes that trial counsel need not present every possible defense in every

case. Indeed, one of counsel's greatest responsibilities at trial is to choose from among possible

defenses the defense or defenses most likely to benefit his client. See, e.g., Florida v. Nixon, 543 U.S.

175, 125 S.Ct. 551, 563, 160 L.Ed.2d 565 (2004) (it is reasonable for defense counsel enter guilty plea

in capital case to concentrate on penalty phase, thereby avoiding counterproductive course which might

result from presenting inconsistent defenses); Jacobs v. Horn, 395 F.3d 92, 107-08 (3rd Cir.2005)

(counsel's failure to assert a diminished capacity defense was not unreasonable where such a defense

would have undermined counsel's strategy to seek acquittal based upon Petitioner's innocence); Porter

v. Horn, 276 F.Supp.2d 278, 315-16 (E.D.Pa.2003) (same). Further, "[t]he right to counsel does not

require that a criminal defense attorney leave no stone unturned and no witness unpursued.” Berryman

v. Morton 100 F.3d 1089, 1101 (3d Cir. 1996). Notwithstanding, defense counsel does have a duty to

make reasonable investigations or to make a reasonable decision that makes particular investigations

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 19 of 22
20

unnecessary. Strickland, 466 U.S. at 691. “[A] particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's

judgments.” Id.

Here, it was certainly reasonable for counsel to decide not to pursue a diminished

capacity defense when he had no information prior to trial which would lead him to believe that there

was any basis for presenting such a claim to the jury, and where his client's behavior and ability to recall

in detail all of the events of the evening constituted strong evidence that his client was not suffering

from a diminished capacity. Under Pennsylvania law, a diminished capacity defense requires proof that

the defendant was "overwhelmed to the point of losing his sensibilities" Commonwealth v. Breakiron,

524 Pa. 282, 571 A.2d 1035, 1041 (1990). Thus, even if counsel had been informed in a timely fashion

that his client may have used marijuana, it would not have been unreasonable for counsel to conclude

that his client's activities during the offense, coupled with his clear memory of those activities, would

make such a defense untenable. Hence, the state court's ruling that counsel acted reasonably withstands

habeas review as it is neither contrary to nor an unreasonable application of federal law.

F) Failing to have petitioner be evaluated by psychiatrist before

trial instead of after.

Lastly, petitioner argues that he had a prior history of hospitalizations for depression and

that this should have prompted counsel to have him examined by a psychiatrist prior to trial in order to

establish a diminished capacity defense on this basis. In this respect, counsel testified that he was

familiar with petitioner'srecords of hospitalizations for depression because he had represented petitioner

on a previous matter. In counsel's view, nothing from petitioner's medical records, or from his behavior

on the night of the killings, led him to believe that a psychiatric defense was available (HT 10-11). The

Superior Court, having noted counsel's testimony, also found that petitioner "has presented no evidence

to suggest that counsel was mistaken in his evaluation of subsequent trial strategy." (Superior Court

Opinion of April 17, 2003 at 12). Again, counsel is not required to pursue each and every possible

defense, and it is petitioner's burden to establish that counsel's actions were unreasonable. The mere

fact of a prior hospitalization for depression is not sufficient to establish that petitioner lacked the ability

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 20 of 22
21

to form the requisite intent to commit murder on the night in question. Again, counsel was aware of

the available evidence, and decided that it would be fruitless to pursue a diminished capacity defense.

Petitioner has failed to present evidence which would suggest that this decision was unreasonable and,

accordingly, the state court's ruling is neither contrary to nor an unreasonable application of the

Strickland test for ineffective assistance.

4. Certificate of Appealability

Section 102 of the Antiterrorism and Effective Death Penalty Act (28 U.S.C. § 2253(as

amended)) codified standards governing the issuance of a certificate of appealability for appellate

review of a district court’s disposition of a habeas petition. Amended Section 2253 provides that “[a]

certificate of appealability may issue ... only if the applicant has made a substantial showing of the

denial of a constitutional right.” Where the federal district court has rejected a constitutional claim on

its merits, “the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong...” Szuchon v. Lehman, 273 F.3d 299, 312

(3d Cir. 2001) quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000). A petitioner meets this standard

if he can show that the issue “is debatable among jurists, or that a court could resolve the issue

differently, or that the question deserves further proceedings.” McCracken v. Gibson, 268 F.3d 970,

984 (10th Cir. 2001). Under 28 U.S.C. § 2253(c)(3), the district court must identify which specific

issues satisfy the standard. Because Petitioner has not made such a showing, a certificate of

appealability should be denied.

CONCLUSION

Wherefore, on the basis of the foregoing, it is respectfully recommended that the instant

petition for writ of habeas corpus be dismissed and that a certificate of appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file written objections to this Report and Recommendation. Any party opposing the

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 21 of 22
22

objections shall have seven (7) days from the date of service of objections to respond thereto. Failure

to file timely objections may constitute a waiver of any appellate rights.

 

/s/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

UNITED STATES MAGISTRATE JUDGE

Dated: July 5, 2006

Case 1:04-cv-00176-SJM-SPB Document 5 Filed 07/06/06 Page 22 of 22