JOHNSON v. CHAMBERLAIN et al

Filing 39

MEMORANDUM THAT AFTER CLOSE AND OBJECTIVE REVIEW OF THE ARGUMENTS AND EVIDENCE, I CONCLUDE THAT PETITIONER'S PETITION FOR WRIT OF HABEAS CORPUS IS MERITLESS. AS A RESULT PETITIONER'S PETITION WILL BE DENIED. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE LOWELL A. REED, JR ON 8/19/10. 8/20/10 ENTERED AND COPIES MAILED, E-MAILED TO COUNSEL.(pr, )

JOHNSON v. CHAMBERLAIN et al

Doc. 39

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA L A T E E F A H JOHNSON v. D A W N CHAMBERLAIN, et al. : : : : : C IV IL ACTION

N o . 07-3137

M EM ORANDUM L O W E L L A. REED, JR., Sr. J. August 19, 2010

P re s e n tly before this Court is a counseled petition for writ of habeas corpus filed p u rs u a n t to 28 U.S.C. § 2254 by Lateefah Johnson ("Petitioner") (Docs. No. 1 and 14), th e Respondents' response thereto ("Response") (Doc. No. 7), and Respondents' s u p p le m e n ta l response ("Supplemental Response") (Doc. No. 34). Petitioner is currently in c a rc e ra te d in the State Correctional Institution in Muncy. For the reasons that follow, th e petition will be denied. F A C T S AND PROCEDURAL HISTORY: T h e relevant facts, as set forth by the Pennsylvania Superior Court, are as follows: O n Thanksgiving Day of 1998, [Petitioner] invited numerous guests to her re s id e n c e in Philadelphia to celebrate the holiday. Among these guests w e re [Petitioner's] two [2] [fourteen] 14 year old cousins, Adrian Travers a n d Joseph Sandonato, and [Petitioner's] boyfriend, Derrick Myrick. At a p p ro x im a te ly 9:00 p.m. that evening, Myrick returned to the house with an e x p e n s iv e pair of boots purchased for him by another woman. This led to a h e a te d verbal and physical altercation between [Petitioner] and Myrick. In th e course of the altercation, [Petitioner] pulled a 9-millimeter Luger pistol o n Myrick and threw bleach in his face. Myrick attempted to leave, but [ P e titio n e r] pursued him. Myrick's brother-in-law eventually restrained [ P e titio n e r] and Myrick was able to leave on foot. [Petitioner] soon f o llo w e d , using her car to search for Myrick. Numerous witnesses testified a t trial that she returned long enough to dismiss her guests and then resume

Dockets.Justia.com

her search. According to witnesses, [Petitioner] did not return to the re s id e n c e again until midnight, at which time she packed some belongings, le f t the keys to the house with her family, and proclaimed that she was le a v in g and would not ever be returning. A passerby discovered Myrick's body the next morning, approximately six [ 6 ] blocks from the Johnson residence. Myrick's body contained several b u lle t wounds. The fatal bullet had struck him in the back, piercing his s p in e , lung and aorta. [Petitioner's] pistol and several shell casings were f o u n d at the crime scene. T w o [2] days later, police found [Petitioner] in the psychiatric wing of a N e w York hospital. [Petitioner] confessed to having the altercation with M yric k at the residence, and later confronting him and shooting him only a f e w blocks from her residence before fleeing to New York. [Petitioner] c la im e d that, after the first confrontation, she was on her way to take T ra v e rs and Sandonato to the bus station when she saw Myrick and c o n f ro n te d him a second time. According to her statement, the encounter e s c a la te d into a physical altercation, and she shot him to make him stop h ittin g her. [Petitioner] told police that they should interview Travers and S a n d o n a to and tell her cousins that she wanted them to tell the truth. The p o lic e interviewed Travers and Sandonato who each signed written s ta te m e n ts in which they plainly stated that they were with [Petitioner] and s a w her shoot and kill Myrick. C o m m o n w e a lth v. Johnson, 817 A.2d 1179, No. 1500 EDA 2002, at 1-4 (Pa. Super. Dec, 1 3 , 2002) (unpublished memorandum), attached as Exhibit "A" to Response. O n November 3, 2000, a jury before the Honorable David N. Savitt, Court of C o m m o n Pleas of Philadelphia County, found Petitioner guilty of first degree murder and re la te d weapons offenses. Judge Savitt sentenced Petitioner to a term of life im p ris o n m e n t. On direct appeal, the Pennsylvania Superior Court affirmed the judgment o f sentence on December 13, 2002. Commonwealth v. Johnson, 817 A.2d 1179, No. 1 5 0 0 EDA 2002, at 1-4 (Pa. Super. Dec, 13, 2002) (unpublished memorandum), attached 2

as Exhibit "A" to Response. The Pennsylvania Supreme Court denied Petitioner's request f o r allocatur on July 15, 2003. Commonwealth v. Johnson, 829 A.2d 311, 76 EAL 2003 (P a . Jul. 15, 2003) (table). O n July 8, 2004, Petitioner filed a counseled petition for post-conviction relief p u rs u a n t to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9 5 4 1 , et. seq., asserting eleven claims of ineffectiveness of trial counsel. The PCRA court d is m is s e d Petitioner's petition on November 17, 2005. On April 18, 2007, the Superior C o u rt affirmed the denial of PCRA relief. Commonwealth v. Johnson, 928 A.2d 1124 (Pa. Super. 2007) (table); No. 3477 EDA 2005 (Pa. Super. April 18, 2007), attached as Ex. " B " to Response. Petitioner filed a petition for allowance of appeal in the Pennsylvania S u p re m e Court which was denied on August 28, 2007. Commonwealth v. Johnson, 931 A .2 d 656, No. 227 EAL 2007 (Pa. Aug. 28, 2007) (table). O n July 2, 2007,1 Petitioner filed a petition for a federal writ of habeas corpus. C o u n s e l was appointed to represent Petitioner (Doc. No. 9) and an amended petition was f ile d on June 2, 2008 (Doc. No. 14) advancing the following claims: 1. tria l counsel provided ineffective assistance when he failed to a d e q u a te ly prepare to litigate a motion to suppress Petitioner's c o n f e s s io n and appellate counsel was ineffective for failing to argue tria l counsel ineffectiveness;

Generally, a pro se petitioner's habeas petition is deemed filed at the moment she delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)). Petitioner signed her habeas petition on July 2, 2007; therefore, I will assume that she presented her petition to prison authorities on that date. 3

1

2.

tria l counsel was ineffective for failing to request a continuance to s e c u re hospital records before the hearing on the motion to suppress P e titio n e r's confession; tria l counsel was ineffective for failing to argue applicability of New Y o rk state suppression law in relation to Petitioner's confession; tria l counsel was ineffective for failing to raise a diminished capacity d e f e n s e and for failing to properly investigate to present such a d e f e n s e ; and a p p e lla te counsel was ineffective for failing to argue that the trial c o u rt's denial of Petitioner's motion to suppress was erroneous under N e w York state law.

3.

4.

5.

R e sp o n d e n ts have filed responses asserting that Petitioner is not entitled to federal habeas re lie f because her claims are without merit. D ISC U S S IO N : A. Standard of Review P u rs u a n t to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective D e a th Penalty Act ("AEDPA"), a petition for habeas corpus may only be granted if (1) the s ta te court's adjudication of the claim resulted in a decision contrary to, or involved an u n re a s o n a b le application of, "clearly established Federal law, as determined by the S u p re m e Court of the United States;" or if (2) the adjudication resulted in a decision that w a s "based on an unreasonable determination of the facts in light of the evidence p re s e n te d in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues d e te rm in e d by a state court are presumed to be correct and the petitioner bears the burden o f rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228 4

F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)). T h e Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 3 6 2 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a f e d e ra l habeas court may grant the writ if the state court arrives at a conclusion opposite to th a t reached by [the Supreme] Court on a question of law or if the state court decides a c a s e differently than [the Supreme] Court has on a set of materially indistinguishable f a c ts ." 529 U.S. at 412-413 (quoted in Hameen v. Delaware, 212 F.3d 226, 235 (3d Cir. 2 0 0 0 )). The Court in Williams further stated that "[u]nder the `unreasonable application' c la u s e , a federal habeas court may grant the writ if the state court identifies the correct g o v e rn in g legal principle from [the Supreme] Court's decisions but unreasonably applies th a t principle to the facts of the prisoner's case." Id. at 413. The "unreasonable a p p lic a tio n " inquiry requires the habeas court to "ask whether the state court's application o f clearly established federal law was objectively unreasonable." Id. at 409. "In further d e lin e a tin g the `unreasonable application of' component, the Supreme Court stressed that a n unreasonable application of federal law is different from an incorrect application of s u c h law and a federal habeas court may not grant relief unless that court determines that a s ta te court's incorrect or erroneous application of clearly established federal law was also u n re a s o n a b le ." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 411).

5

II.

P e titio n e r 's Claims A. Claim One: Ineffective Assistance of Trial Counsel for Failure to A d e q u a te ly Prepare to Litigate a Motion to Suppress Petitioner's C o n fe s s io n

P e titio n e r first claims that trial counsel rendered ineffective assistance by failing to adequately prepare to litigate a motion to suppress her confession. Claims of ineffective a s s is ta n c e of counsel are governed by Strickland v. Washington, 466 U.S. 668 (1984). In S tric k la n d , the United States Supreme Court set forth the standard for a petitioner seeking h a b e a s relief on the grounds of ineffective assistance of counsel: First, the defendant must show that counsel's performance was d e f ic ie n t. This requires showing that counsel made errors so s e rio u s that counsel was not functioning as the "counsel" g u a ra n te e d the defendant by the Sixth Amendment. Second, th e defendant must show that the deficient performance p re ju d ic e d the defense. This requires showing that counsel's e rro rs were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 687. Because "it is all too easy for a court, examining counsel's defense after it has p ro v e d unsuccessful, to conclude that a particular act or omission of counsel was u n re a s o n a b le ," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable p ro f e ss io n a l assistance." Id. at 689. In determining prejudice, "the question is whether th e re is a reasonable probability that, absent the errors, the factfinder would have had a re a s o n a b le doubt respecting guilt." Id. at 695. "It is past question that the rule set forth in Strickland qualifies as `clearly 6

established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. at 391. Thus, Petitioner is entitled to relief if the Pennsylvania courts' re je c tio n of her claims was either "contrary to, or involved an unreasonable application o f ," that established law. Specifically, Petitioner asserts that trial counsel provided ineffective assistance w h e n he failed to prepare to litigate a motion to suppress a confession given while P e titio n e r was hospitalized in a mental institution. The trial court judge stated the f o llo w in g in denying trial counsel's motion to suppress Petitioner's confession: [ T ]h e court finds that [Petitioner] was not in custody as required or as the c a s e s have held pursuant to Miranda and its progeny with respect to the C o n s titu tio n a l requirements of obtaining a statement. In this instance [Petitioner] was in a hospital but it was a hospital that she c h o s e to go to, no one put her there, certainly not the police. The police c a lle d in advance. They were expected. There was a conversation with the d o c to r who arranged it and [Petitioner] was free to leave at any time. As a m a tte r of fact, the testimony is that under certain circumstances during the q u e s tio n in g she did indeed leave. Accordingly, there is no reason to s u p p re s s the statement on constitutional grounds. N o w , with respect to voluntariness, it is true [Petitioner] was in a mental in s titu tio n and the testimony seems to indicate that she was subject to certain m e d ic a tio n . However, here again the police were expected, the doctors were a w a re of it and arranged it so there didn't seem to be or there is not on this re c o rd any medical reason that she could not converse intelligently with the d e te c tiv e s. The record discloses that she was responsive, that she was not m is tre a te d , that she wanted to speak, that she was friendly, that she was c o o p e ra tiv e , that she was coherent, that she took a phone call in the midst of th e conversation and the substance of the statement shows coherence as well. (N.T. 11/2/2000, at 1107-8).

7

In reviewing this claim the state court noted: J o h n s o n contends her confession was the product of custodial interrogation, a n d , therefore, she should have been given her Miranda warnings prior to th e police questioning her. Intertwined with this contention is Johnson's a rg u m e n t that trial counsel was ineffective in failing to secure and introduce in to evidence Johnson's psychiatric records, which would have revealed that J o h n s o n could not have reasonably believed that she was free to leave when p o lic e questioned her and she did not make statements voluntarily. Johnson a s se rts that appellate counsel was ineffective in failing to raise the in e f f e c tiv e assistance of trial counsel on direct appeal. T h e [c]ourt presumes that counsel acted in his client's best interest and, as an a p p e lla n t[ ,] Johnson carries the burden of proving otherwise. *** H e re , a review of the certified record reveals that trial counsel sought to s u p p re s s Johnson's statements on the basis she was subject to custodial in te rro g a tio n without being properly Mirandized and her statements could n o t have been voluntarily made due to her psychiatric condition. That is, d u rin g trial, the trial court asked the Commonwealth whether they would be in tro d u c in g evidence of statements Johnson had made to police. The C o m m o n w e a lth indicated affirmatively. At this point, trial counsel indicated th a t, although he was advised prior to trial that the police had spoken to J o h n s o n at the psychiatric hospital, he had not been advised of the substance o f the conversation and was not provided with any written notes until "this m o rn in g ." The trial court asked whether he was going to move to suppress J o h n s o n 's confession, and he replied affirmatively, indicating that Johnson w a s under at least six psychiatric drugs when police questioned her. The n e x t day, on November 1, 2000, the trial court held an extensive hearing on tria l counsel's motion to suppress. Specifically, the issues were whether J o h n s o n 's statements were the product of custodial interrogation such that s h e should have been given her Miranda warnings prior to questioning and w h e th e r Johnson's statements were the product of her free will due to her p s yc h ia tric condition. Therefore, we find no merit to Johnson's claim that tria l counsel was ineffective in failing to file a motion seeking to suppress h e r statements on the basis she was subjected to custodial interrogation w ith o u t being provided with her Miranda warnings and her statements were n o t a product of her free will. 8

Commonwealth v. Johnson, 928 A.2d 1124 (Pa. Super. 2007) (table); No. 3477 EDA 2005 (P a . Super. April 18, 2007) (citations omitted), attached as Exhibit "B" to Response. U p o n review of the notes of testimony from the suppression hearing of November 2 , 2000, (N.T. 11/1/2000, at 1036-1103), the trial court judge's explanation as to why he d e n ie d Petitioner's motion to suppress (N.T. 11/2/2000, at 1106-1108) and the opinion of th e Superior Court, it is clear that the state court's application of the law is reasonable. Petitioner's counsel argued that the interrogation at the hospital was both involuntary and c u s to d ia l and therefore Petitioner's statements should be suppressed under Miranda v. A riz o n a , 384 U.S. 436 (1966)2 ; (N.T. 10/31/2000, at 798-802). While it is a fact that trial c o u n s e l did not have copies of the hospital records prior to the suppression hearing, c o u n s e l was aware that Petitioner was medicated while in the hospital and he did inform th e trial court judge that Petitioner was "on Cogentin and five other drugs." (N.T. 1 0 /3 1 /2 0 0 0 , at 798). Trial counsel also argued that it was "inconceivable" and " in te lle c tu a lly dishonest" for the detectives who questioned Petitioner to assert that the in te rro g a tio n was voluntary and non-custodial. (N.T. 11/1/2000 at 1087). Each of these a rg u m e n ts were carefully considered by the trial court judge and, as discussed above,

It is well established that once an accused is "in custody" of law enforcement officials; he or she must be informed of the constitutional right to remain silent and to have counsel appointed; an accused's waiver of these rights, to be effective, must be voluntarily, knowingly and intelligently made. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Because questions such as the length and circumstances of the interrogation often require the resolution of conflicting testimony of police and defendant, state-court determinations of these issues are entitled to the presumption of correctness outlined in the federal habeas statute under 28 U.S.C. § 2254(e)(1). See Miller v. Fenton, 474 U.S. 104, 117 (1985). 9

2

ultimately rejected. As such, I find no merit to the claim that trial counsel provided in e f f e c tiv e assistance of counsel for failing to prepare to litigate the motion to suppress. I conclude that the Superior Court's adjudication of Petitioner's claim did not result in a decision that was contrary to, or an unreasonable application of, Strickland. Therefore, Petitioner's claim must be denied. B. C la im Two: Ineffective Assistance of Trial Counsel for Failure to R e q u e st a Continuance to Secure Hospital Records prior to the A r g u m e n t on the Motion to Suppress Petitioner's Confession P e titio n e r next claims that trial counsel rendered ineffective assistance by f a ilin g to request a continuance to secure her hospital records prior to arguing his motion to suppress her confession. Upon review of the notes of testimony it is clear that both the p ro s e c u tio n and the defense attempted to obtain these medical records but were u n s u c c e s s f u l. T h e Court: Now, do you plan on calling witnesses from New York on the q u e s tio n of voluntariness and the physical and mental condition of [ P e titio n e r] at the time the statement was made or don't you? If you d o n 't, that makes it easier. Well, I had, Judge, and I have been endeavoring to get the records f ro m the hospital. I just haven't gotten them yet and I haven't talked to a doctor, but I have been trying to get the medical records from the h o s p ita l.

D e f e n se :

(N .T . 11/1/2000, at 1097-8). T h e Court: It is up to the Commonwealth to prove that it was voluntary. In other w o rd s , you did not introduce any testimony that would indicate that e v e n though in a medical institution that [Petitioner] did indeed have th e capacity to make a voluntary statement. 10

Commonwealth:

Well, your Honor, as I'm sure you know and appreciate, even th o u g h we subpoena medical records, they will not release th e m without a defendant's authorization when she's in a m e n ta l hospital. Oh, they release them to a subpoena in a murder case, believe m e. Well, they didn't respond to ours. I have it right in my file.

T h e Court:

C o m m o n w e a lth :

(N .T . 11/1/2000, at 1097-8). In reviewing this claim the state court noted: J o h n s o n has failed to demonstrate that she was prejudiced by trial c o u n s e l's failure to introduce Johnson's psychiatric records into evidence d u rin g the suppression hearing. For instance, Johnson argues the p s yc h ia tric records would have revealed that Johnson attempted suicide a n d she was heavily medicated, placed in restraints, and prevented from le a v in g the facility during the course of her hospitalization. However, the tria l court was substantially made aware of these facts during the s u p p re s s io n hearing. Moreover, our review of the psychiatric records re v e a ls that, on December 13, 1998, the day the police questioned Johnson, d u rin g the morning hours, a nurse observed Johnson walking around the h o s p ita l, she was pleasant to the nurse, and she gave no indication of f e e lin g suicidal. The psychiatric records further reflect that, when the p o lic e arrived, Johnson's behavior was controlled, she indicated she was " ju st chilling" as she played cards with other patients, and she denied h a v in g thoughts of hurting herself or others. In the late afternoon, Johnson a te her dinner and scheduled snacks and visited with her mother and uncle. During the evening, Johnson was observed sleeping. Simply put, the p s yc h ia tric record entries for December 13, 1998 do not support Johnson's a s se rtio n that she was incapable of giving a voluntary statement to the p o lic e . Therefore, we conclude Johnson has failed to demonstrate she was p re ju d ic e d by trial counsel's failure to introduce the psychiatric records in to evidence[.] [ J ]o h n so n also claims trial counsel was ineffective in failing to request a c o n tin u a n c e in order to secure the psychiatric records so that the records c o u ld have been introduced during the mid-trial suppression hearing and 11

appellate counsel was ineffective in failing to raise this issue on appeal. As discussed supra, Johnson has failed to prove the absence of the p s yc h ia tric records prejudiced her, and therefore, neither trial nor appellate c o u n s e l can be ineffective in this regard. C o m m o n w e a lth v. Johnson, 928 A.2d 1124 (Pa. Super. 2007) (table); No. 3477 EDA 2 0 0 5 (Pa. Super. April 18, 2007) (citations omitted), attached as Exhibit "B" to R esp o n se . It is clear that the state court's application of the law is reasonable. The state c o u rt reviewed the available medical records and found that Petitioner was not p re ju d ic e d by the fact that the complete medical records could not be obtained by c o u n s e l. "[A] court need not determine whether counsel's performance was deficient b e f o re examining the prejudice suffered by the defendant as a result of the alleged d e f ic ie n c ie s ." Strickland, at 697. "If it is easier to dispose of an ineffectiveness claim o n the ground of lack of sufficient prejudice that course should be followed." Id. Further, as discussed above, trial counsel made the trial court aware, during the s u p p re s s io n hearing, of the fact that Petitioner was a patient in a mental heath facility a n d that she was medicated. See N.T. 10/31/2000, at 798. As such, I conclude that the S u p e rio r Court's adjudication of Petitioner's claim did not result in a decision that was c o n tra ry to, or an unreasonable application of, Strickland. Therefore, Petitioner's claim m u s t be denied. C. C la im s Three and Five: Trial Counsel was Ineffective for Failing to A r g u e the Applicability of New York state Suppression law in R e la tio n to Petitioner's Confession and Appellate Counsel was 12

Ineffective for Failing to argue that the Trial courts Denial of P e titio n e r 's Motion to Suppress was Erroneous based on New York S ta te Law In her next claim, Petitioner asserts that trial counsel was ineffective for failing to a rg u e the applicability of New York state suppression law in relation to her confession. This claim was addressed by the state court as follows: J o h n s o n claims trial counsel was ineffective in failing to argue during the s u p p re s s io n hearing that the admissibility of her confession should be d e te rm in e d by the application of New York's laws since she was in te rro g a te d by police in a New York psychiatric hospital. Assuming, a rg u e n d o , trial counsel should have made such an argument, we conclude J o h n s o n has failed to demonstrate that she was prejudiced by the in tro d u c tio n of her confession at trial. [ E ]v e n absent the introduction of the confession at trial, there was o v e rw h e lm in g circumstantial evidence establishing beyond a reasonable d o u b t that Johnson committed the crimes for which she has been c o n v ic te d . Therefore, we cannot say that the outcome of her trial would h a v e been different had trial counsel successfully litigated his motion to s u p p re s s Johnson's confession, and appellate counsel cannot be ineffective o n this basis. C o m m o n w e a lth v. Johnson, 928 A.2d 1124 (Pa. Super. 2007) (table); No. 3477 EDA 2 0 0 5 (Pa. Super. April 18, 2007) (citations omitted), attached as Exhibit "B" to R esp o n se . The state court found that Petitioner was ultimately not prejudiced by the a d m is sio n of her confession, because even without the confession, the evidence s u p p o rte d her conviction. As such, the court determined that this claim failed due to P e titio n e r's inability to meet the prejudice prong under Strickland. I find that the state

13

court's application of the law is reasonable. The evidence supporting Petitioner's c o n v ic tio n was discussed at length by the state court on direct appeal and adopted by the S u p e rio r Court on collateral appeal as follows: [ T ]h e Commonwealth called a crime scene investigator, a Highway Patrol officer, a ballistics expert, a police detective, the Assistant Medical Examiner, and a h o m ic id e detective. In addition, the Commonwealth called three witnesses who w e re present at Johnson's residence on the night of the homicide: Krisena Tyrel M yric k -L lo yd , the victim's brother; Stephen Edward Lloyd, Jr., the victim's b ro th e r in law; and Channel Vest, a friend of the victim. All three of these w itn e sse s testified that Johnson and Myrick engaged in a heated altercation that n ig h t. The Commonwealth introduced testimony that the fight erupted because J o h n s o n was angry that Myrick was wearing a new pair of boots he received as a g if t from his other paramour. All three witnesses testified that they were present w h e n the altercation escalated from yelling and screaming to the point where J o h n s o n physically threw things at Myrick, pulled a gun on him, and splashed b le a c h in his eyes. All three witnesses positively identified the gun Johnson p u lle d at the house as the one used to kill Myrick. They further testified that w h e n Myrick attempted to leave, Johnson attempted to pursue Myrick and would h a v e done so had guest Stephen Lloyd not restrained her. Krisena and Stephen L lo yd testified that when Stephen released Johnson, she rushed to the car wearing o n ly a T-shirt and boxer shorts and circled the block several times looking for M yric k . According to testimony by Stephen Lloyd and Channel Vest, the older c o u s in , Sandonato, picked up the gun while Stephen Lloyd was grappling with J o h n s o n to restrain her. Numerous witnesses further testified that Johnson re tu rn e d to the house ten [10] minutes later and told all of the guests to leave. Testimony by Stephen Lloyd and Channel Vest established that Johnson then d ro v e away with Travers and Sandonato in her car and that Sandonato was the last p e rs o n seen with the gun. According to all three witnesses, Johnson returned a lo n e at about midnight, approximately 45 minutes after leaving with Travers and S a n d o n a to . According to this testimony, Johnson picked up her belongings and h e r "piggy bank" and told her guests that she was leaving and would not be c o m in g back. *** O f f ic e r Avon Wilson testified that he found the murder weapon at the scene of the c rim e . Officer Bottomer identified five shell casings found at the scene as 14

coming from that weapon. Dr. Gregory McDonald, Assistant Medical Examiner f o r the City of Philadelphia and supervising pathologist in the case, testified w ith in a reasonable degree of medical certainty that this was a homicide and that M yric k was shot in the back. According to Dr. McDonald's testimony, the bullet th a t killed Myrick was fired from a distance of more than three feet, and there was n o evidence that the bullet had ricocheted off anything before entering the body. Commonwealth v. Johnson, 817 A.2d 1179, No. 1500 EDA 2002, at 1-4 (Pa. Super. D e c , 13, 2002) (unpublished memorandum), attached as Exhibit "A" to Response. A s such, Petitioner's claim that trial counsel was ineffective for failing to argue the a p p lic a b ility of New York state suppression law is without merit. Further, to the extent th a t Petitioner alleges ineffective assistance of appellate counsel for failure to challenge tria l counsel's ineffectiveness, it is well established that counsel cannot be deemed in e f f e c tiv e for failing to raise a meritless claim. Contrary to Petitioner's assertions, New York state law is not necessarily a p p lic a b le in this case. Pennsylvania has adopted a "flexible choice of law rule which w e ig h s the interests sister-states may have in the transaction." Commonwealth v. E ic h in g e r, 915 A.2d 1122, 1133 (Pa. 2007); see also McCrossan v. Wiles, 2004 WL 1 9 2 5 0 5 7 (E.D. Pa. 2007) (describing the choice of law rules used in Pennsylvania). This c a s e involves a crime committed in Pennsylvania, against a victim who lived in P e n n sylv a n ia , perpetrated by a Pennsylvania resident, and being investigated by law e n f o rc e m e n t officers from Pennsylvania. The sole connection to New York was e s ta b lis h e d when Petitioner admitted herself to a New York hospital. As such, P e n n sylv a n ia law should provide the governing law. In any event, Petitioner does not 15

cite to any authority that reveals any significant conflict between the suppression laws of N e w York versus Pennsylvania. Consequently, I conclude that counsel cannot be found in e f f e c tiv e for failing to raise a meritless argument and the Superior Court's adjudication o f Petitioner's claim did not result in a decision that was contrary to, or an unreasonable a p p lic a tio n of, Strickland. Therefore, Petitioner's claim must be denied. D. C la im Four: Ineffective Assistance of Trial Counsel for Failure to O b ta in Medical Records to Support a Diminished Capacity Defense

In her fourth claim, Petitioner asserts that trial counsel provided ineffective a s s is ta n c e by failing to adequately investigate and prepare a diminished capacity defense. "In order to resolve the ineffectiveness claim, we must consider [Petitioner's] counsel's c o n d u c t within the context of Pennsylvania law regarding the defense of diminished c a p a c ity." Zettlemoyer v. Fulcomer, 923 F.2d 284, 295 (3d Cir. 1991). "Pennsylvania re c o g n iz e s the defense to show that a defendant did not have the capacity to possess the s ta te of mind required by the legislature to commit a particular degree of the crime c h a rg e d ." Id. (citing Commonwealth v. Walzack, 360 A.2d 914, 919-20 (Pa. 1976)). "Evidence of diminished capacity is admissible at the guilt phase of trial and jury finding d im in is h e d capacity may not find the defendant guilty of first degree murder, but it may f in d the defendant guilty of third degree murder." Zettlemoyer, 923 F.2d at 295. Under P e n n sylv a n ia case law "to prove diminished capacity, only expert testimony on how the m e n ta l disorder affected the cognitive functions necessary to form the specific intent is re le v a n t and admissible." Id. (citing Commonwealth v. Terry, 521 A.2d 398, 404 (Pa. 16

1987); Commonwealth v. Davis, 479 A.2d 1077, 1080 (Pa. Super. 1984)). Evidence of s p e c if ic intent to kill may disprove the defense of diminished capacity. Id. at 295-96 (c itin g Commonwealth v. Tempest, 437 A.2d 952, 955 (Pa. 1981)). Respondent asserts that the state court reviewed this claim with the benefit of P e titio n e r's mental health records and found that the evidence would not have supported a diminished capacity defense. The PCRA court found, in denying this claim: It is clear that trial counsel's strategy at trial was self-defense and sought [ P e titio n e r's ] acquittal of all charges. This strategy as opposed to d im in is h e d capacity was designed to effectuate [Petitioner's] best interest a not guilty verdict as opposed to a third degreed murder conviction. This c o u rt will not second-guess trial counsel's strategy merely because it p ro v e d unsuccessful. Commonwealth v. Johnson, No. 0828,1/1 PCRA (Phila. Cty. Ct. Comm. Pl. Nov. 30, 2 0 0 5 ). In reviewing the PCRA court's decision, the Superior Court, found: [ P e titio n e r] maintained that she shot the victim in self-defense as he was s trik in g her. That is, she denied criminal liability and trial counsel sought a n acquittal. Specifically, trial counsel presented argument and evidence o f domestic violence, portraying the victim as the aggressor. Thus we c a n n o t say that trial counsel did not have a reasonable strategic basis for re je c tin g a diminished capacity defense. M o re o v e r, we conclude [Petitioner] has not demonstrated that she was p re ju d ic e d by counsel's decision to forgo a diminished capacity defense... [Petitioner] committed the crime at issue with the specific intent to kill. C o m m o n w e a lth v. Johnson, 928 A.2d 1124 (Pa. Super. 2007) (table); No. 3477 EDA 2 0 0 5 (Pa. Super. April 18, 2007), attached as Exhibit "B" to Response.

17

I do not find this ruling to be either contrary to, or an unreasonable application of, f e d e ra l law. If a decision falls within the realm of "strategic decisions" to be made by an a tto rn e y, a reviewing court may find whatever decisions that attorney made "to be s u f f ic ie n tly deficient only if he either failed completely to consult with his client, or if th e decision was itself inept or incapable of interpretation as sound." See United States v . Narducci, 18 F. Supp. 2d 481, 493 (E.D. Pa. 1997). Clearly, defense counsel made a s tra te g ic decision to pursue acquittal or a voluntary manslaughter verdict3 through a d e f e n s e of self-defense, rather than a diminished capacity defense. This is a logical d e c is io n based on the different sentences imposed for conviction for each these crimes. Voluntary manslaughter carries a maximum penalty of not more than 10 years im p ris o n m e n t. See 18 Pa. C.S. § 1103(2). Under Pennsylvania law, evidence of d im in is h e d capacity can reduce a sentence from first to third degree murder. See Meyers v . Gillis, 142 F.3d 664, 668 (3d Cir. 1998). Third degree murder carries a maximum p e n a lty of not more than 20 years imprisonment. See 18 Pa. C.S. § 1103(1). This type of s tra te g ic decision cannot be construed as ineffective assistance. Because Petitioner has failed to overcome the strong presumption that counsel's co n d u ct falls within the wide range of reasonable professional assistance, see Strickland, 4 6 6 U.S. at 691, this claim must be denied. As such, to the extent that Petitioner alleges

Under Pennsylvania law, a person commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such, that, if they existed, would justify the killing, but his belief is unreasonable or he is acting under a sudden and intense passion resulting from serious provocation. See 18 Pa. C.S. 2503(a),(b). 18

3

ineffective assistance of appellate counsel for failure to challenge trial counsel's in effectiv en es s , it is well established that counsel cannot be deemed ineffective for failing to raise a meritless claim. Because trial counsel's decision was reasonable based on defense strategy, I co n clu d e that the state courts' conclusion that trial counsel was not ineffective for failing to present a diminished capacity defense is not contrary to United States precedent, nor an u n reas o n ab le determination of the facts. See 28 U.S.C. § 2254(d). Thus, habeas relief is n o t appropriate for this claim. CONCLUSION: A fter close and objective review of the arguments and evidence, I conclude that P etitio n er's petition for writ of habeas corpus is meritless. As a result Petitioner's p etitio n will be denied. S im ilarly, because Petitioner's claims are both legally and factually meritless, th ere is no need to conduct an evidentiary hearing, as it would not change the outcome of th is matter. See 28 U.S.C. § 2254(e)(2); see also Schriro v. Landrigan, 550 U.S. 465, 474 (2 0 0 7 ) ("an evidentiary hearing is not required on issues that can be resolved by reference to the state court record") (citations omitted); see also Campbell v. Vaughn, 209 F.3d 2 8 0 , 221 (3d Cir. 2000). A n appropriate order follows.

19