Marinelli v. Beard et al

Filing 66

MEMORANDUM An appropriate Order accompanies this Memorandum Opinion. Signed by Honorable Robert D. Mariani on 9/16/13. (jfg)

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN MARINELLI,

Petitioner

CIVIL ACTION NO. 4:CV-07-0173

v.

(Judge Mariani)

JEFFREY BEARD, Commissioner,
Pennsylvania Department of Corrections;:
LOUIS B. FOLINO, Superintendent of
the State Correctional Institution at
Greene; and FRANKLIN J. TENNIS,
Superintendent of the State Correctional :
Institution at Rockview,

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THIS IS A CAPITAL CASE

Respondents
MEMORANDUM
I.

INTRODUCTION
Presently pending before the Court, in the above-captioned habeas

proceeding, is Marinelli's motion to alter or amend the November 26,2012
judgment, entered by this Court. (See Doc. 48). Petitioner requests that this Court
reconsider its decision with respect to nine of the claims asserted in the petition,
or, alternatively, to reconsider only the denial of a certificate of appealability in
order to permit the Petitioner to seek appellate review in the United States Court

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of Appeals for the Third Circuit. The motion to alter or amend the judgment is
fully briefed and is ripe for judicial consideration. However, because Marinelli has
recently returned to state court to pursue the merits of one of the nine issues, the
instant action will be stayed pending the outcome of Petitioner's pending state
court action.

II.

FACTUAL AND PROCEDURAL HISTORY
On May 18, 1995, Marinelli was found guilty of first degree murder,

robbery, conspiracy to commit robbery, burglary, theft by unlawful taking,
receiving stolen property and aggravated assault, following a jury trial in the Court
of Common Pleas of Northumberland County, Pennsylvania. The Pennsylvania
Supreme Court summarized the relevant facts as follows:
The testimony at appellant's trial established the following facts. On
the evening of April 26, 1994, appellant and his brother, Mark
Marinelli (Mark), and Kirchoff met at appellant's apartment to plan a
burglary of the residence of Conrad Dumchock (Dumchock), whom
Mark knew to have stereo equipment. The three men obtained
weapons, disguises, and gloves in preparation for the burglary, and
proceeded to Dumchock's home in Kulpmont.
Dumchock was home alone and had just spoken to his sister and
brother-in-law on the telephone for forty-five minutes. The Marinelli
brothers and Kirchoff arrived at Dumchock's home and initially had
difficulty gaining entry. Observing that Dumchock's car was parked
outside his house and concerned about the possibility of being
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discovered, the threesome left Dumchock's residence but returned a
few minutes later to again attempt to enter. Eventually, they broke a
small window in the kitchen door and entered the residence.
Upon entering Dumchock's residence, appellant immediately
proceeded to the second floor, where he encountered Dumchock.
When Dumchock requested that appellant leave his home, appellant
struck Dumchock's face with his gun and yelled for assistance from
Mark and Kirchoff.
The appellant and Kirchoff continued to beat Dumchock, despite
Dumchock's pleading with them to take what they wanted and leave
him alone. The three rummaged through Dumchock's home looking
for items to take and asking Dumchock where his guns and money
were located. When Dumchock would moan or not answer, appellant
would hit Dumchock again.
Mark and Kirchoff departed Dumchock's home after they had loaded
the items they wished to steal, while appellant remained in the
residence with Dumchock. Appellant then shot Dumchock twice in
the head, with one shot into Dumchock' s eye and the other directly
between Dumchock's eyes. Appellant then ran out of Dumchock's
house and exclaimed, "Let's get out of here!"
The threesome returned to Kirchoffs home and divided the items
stolen from Dumchock. A short while later, the Marinelli brothers
returned to Dumchock's house and took a motorcycle from the
victim's porch.
Appellant attempted to start the motorcycle on compression, with
Mark following in a car. They were observed crossing the main road
in Kulpmont heading toward the other side of town. When the
motorcycle would not start, appellant abandoned it.
On the morning following the killing, Clyde Metzger, who was
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waiting for Dumchock to drive him to work, entered the victim's
home and discovered Dumchock's stereo equipment had been
disarranged and Dumchock's dog was shaking. Metzger called out to
Dumchock but received no response. Metzger became concerned and
left Dumchock's home, and headed to the police station. On his way
there, Metzger encountered a Kulpmont Police Sergeant Detective
Robert Muldowney, and related to him the circumstances he had
found.
Sergeant Muldowney entered Dumchock's home, noting that the
storm door was open, the inside door was propped open with a chair,
and the glass had been broken from a window in the door. Inside the
house, Sergeant Muldowney discovered that telephone cords had
been cut. Upstairs, Sergeant Muldowney discovered the victim's cold
body lying at the top of the stairway landing. Sergeant Muldowney
noted that Dumchock's bedroom was disheveled, with drawers
removed from the dresser and various items strewn on the victim's
bed. Pennsylvania State Police and County Coroner Richard Ulrich
were called to the scene. The victim's sister also arrived at his house
and noted that Dumchock's motorcycle was missing. The motorcycle
was later recovered hidden in some brush where it had been
abandoned. Dumchock's brother-in-law informed police that guns,
tools, and electronic equipment were also missing from Dumchock's
residence. One of Dumchock's friends, David Dormer, was brought
to Dumchock's residence to assist police in determining which stereo
equipment, as well as liquor, was missing.
On May 25, 1994, Mark Marinelli's girlfriend, Deeann Chamberlain,
turned over to Coal Township Police certain weapons which Mark
had brought to her home. These weapons were later identified as
having belonged to the victim. County Coroner Ulrich was at the Coal
Township police station when Ms. Chamberlain turned over these
weapons. The coroner connected the items with the Dumchock
killing, and notified the District Attorney and State Police. Further,
Ms. Chamberlain allowed Shamokin Police to come to her home and
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remove other items Mark had left there, including a telephone

answering machine. Coroner Ulrich recognized the telephone

answering machine as being of the type reported missing from

Dumchock's house, and he notified the State Police.

Additionally, a friend of appellant, Nathan Reigle, was questioned by
police about the Dumchock murder. Reigle stated to police that
appellant had bragged about how he had killed Dumchock. A search
of appellant's residence by police recovered a number of items,
including stereo equipment, later identified as property belonging to
the victim. After being questioned by police, appellant gave police
both an oral and a taped confession as to his involvement in the
Dumchock killing.
See Commonwealth v. Marinelli, 547 Pa. 294, 306-308 690A.2d 203, 209-210
(1997) ("Marinelli-1 "). The penalty phase commenced the following day, May 19,
1995. During the penalty phase, the jury found two aggravating circumstances:
(1) Marinelli committed the killing while in the perpetration of a felony, see 42 Pa.
Cons. Stat. Ann. § 9711(d)(6); and (2) Marinelli committed the offense by means
of torture, see 42 Pa. Cons. Stat. Ann. § 9711 (d)(8). The jury also found two
mitigating circumstances: (1) Marinelli had no significant history of prior
convictions, see 42 Pa. Cons. Stat. Ann. § 9711 (e)(1); and (2) other evidence in
mitigation concerning the character and record of Marinelli, see 42 Pa. Cons. Stat.
Ann. § 9711 (e)(8). The jury concluded that the aggravating circumstances
outweighed the mitigating circumstances and returned a verdict of death, see 42
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Pa. Cons. Stat. Ann. § 9711(c)(1)(iv).
On August 11, 1995, the trial court formally imposed a sentence of death for
first degree murder. Additionally, Marinelli was sentenced to consecutive terms of
imprisonment often (10) to twenty (20) years on the robbery conviction; five (5)
to ten (10) years on the conspiracy to commit robbery conviction; and ten (10) to
twenty (20) years on the burglary conviction. No post sentence motions were
filed.
Represented by Attorney James. J. Rosini, Petitioner filed a timely direct
appeal to the Pennsylvania Supreme Court l , raising four (4) claims for relief.
Specifically, Petitioner presented the following issues for review:
I.

Is the verdict contrary to the evidence?

II.

Is the verdict contrary to the weight of the evidence?

III. Is the verdict as to the sentence of death invalid due to
the Commonwealth's failure to prove torture?
IV. Did the trial court commit error when it:

IThe appeal of a death sentence is directly to the Pennsylvania Supreme
Court rather than to the Superior Court. See 42 Pa. C.S.A. § 9711 (h).

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1. Improperly granted Commonwealth's motion to
consolidate?
2. Improperly denied defendant's motion to sever?
3. Improperly denied defendant's motion for changes of
venue and/or venire said motion made both before and
after co-defendant Mark Marinelli's plea of guilty?
4. Improperly denied defendant's motion to suppress
statements made by defendant to police in violation of
constitutional right to a speedy arraignment?
5. Improperly denied defendant's motion to suppress
statements made by defendant to police in violation of
right to counsel?
6. Failed to sustain defense counsel's objection to a
death qualified jury?
7. Improperly permitted color and black and white
photographs of the victim to be admitted when the
prejudicial impact outweighed any probative or
evidentiary value?
8. Improperly permitted a videotape depicting the body
of the victim to be admitted when the prejudicial impact
outweighed any probative or evidentiary value?
9. Improperly permitted a floor plan depicting the body
of the victim to be admitted when the prejudicial impact
outweighed any probative or evidentiary value?
10. Improperly permitted greatly enlarged photographic
slides depicting the body of the victim to be admitted
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when the prejudicial impact outweighed any probative or
evidentiary value?
11. Improperly denied defendant's motion for mistrial
after counsel for co-defendant referred to defendant by
name in his opening statement?
12. Improperly denied defendant's motion for severance
after counsel for co-defendant referred to defendant by
name in his opening statement?
13. Failed to provide defendant with Commonwealth
witness Nathan Reigle's juvenile record?
14. Improperly denied defendant's motion to prevent
Commonwealth witness Mark Marinelli from presenting
testimony known by the Commonwealth to be
untrue/untrustworthy?
15. Improperly admitted a drawing of crime scene down
5/24/94 by Commonwealth witness Mark Marinelli?
16. Improperly denied defendant's in chambers motion
for mistrial after Commonwealth witness and
co-defendant, Mark Marinelli, demanded, in the presence
of the jury, to be permitted to stop testifying and that his
testimony was not truthful?
17. Improperly denied defendant's motion for mistrial
after Commonwealth witness, Mark Marinelli, while
sequestered, was permitted to confer with counsel in the
sheriffs holding cell, in the middle of his testimony, for
over two (2) hours, outside the court's presence?
18. Improperly permitted Commonwealth witness
Pennsylvania State Police Trooper Richard Bramhall to
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testify using improperly redacted statements made by
co-defendant?
19. Failed to properly charge the jury on aggravating
circumstance of torture?
20. Failed to charge the jury on voluntary intoxication?
21. Improperly charged the jury on degrees of murder by
giving one instruction for first degree murder for
defendant and a different instruction for first degree
murder for co-defendant?
22. Improperly charged the jury on degrees of murder by
giving an instruction for second degree murder for
co-defendant to be used if defendant was found guilty of
first degree murder?
23. Improperly permitted photographs and greatly
enlarged slides, including autopsy, to be admitted during
the penalty phase when the prejudicial impact
outweighed any probative or evidentiary value?
24. Improperly denied defendant's motion to severance
before summation?
25. Improperly denied defendant's motion for mistrial
before summation?
(Doc. 27-2, App. I, Brief of Appellant at pp. 6-8).
The Pennsylvania Supreme Court affirmed the judgment of sentence upon
direct appeal in an opinion dated February 25,1997. See Marinelli-I, supra.

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On July 25,1997, Robert Dunham, Esquire from the Center for Legal
Education Advocacy & Defense Assistance ("CLEADA"), filed a petition for writ
of certiorari on behalf of Marinelli in the United States Supreme Court. (Doc. 27­
5, App. L, Petition for Writ of Certiorari). Petitioner submitted the following
grounds for relief:
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Does the admission of a non-testifying codefendant's
confession that contains references to another participant
in a joint trial violate the Confrontation Clause and this
Court's holdings in Bruton v. United States, 391 U.S.
123 (1968) and Richardson v. Marsh, 481 U.S. 200
(1987) when those references are redacted and replaced
with the term "the other guy," but the use of the term
"the other guy" unmistakably refers to the defendant?

II.

Should this Court grant certiorari to address the
conflicting resolutions by the United States Courts of
Appeal and the state courts concerning the question
reserved by this Court in Richardson v. Marsh, 481 U.S.
200 (1987), whether the Confrontation Clause is violated
by the admission at trial of a non-testifying
co-defendant's "confession in which the defendant's
name has been replaced with a symbol or neutral
pronoun?"

III.

In the alternative, should this Court hold this petition for
writ of certiorari pending its resolution of similar issues
for which it granted certiorari in Gray v. Maryland, U.S. --, 1997 WL 195045 (U.S. June 6, 1997)?

(Doc. 27-5, App. L, Petition for Writ of Certiorari at p. ii).
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On March 23, 1998, the United States Supreme Court denied Marinelli's
petition for writ of certiorari. Marinelli v. Pennsylvania, 523 U.S. 1024 (1998).
Following disposition of the direct appeal, on April 28, 1998, Petitioner
filed a, timely, pro se petition for relief under Pennsylvania's Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. The following day,
the trial court again appointed Attorney Dunham to represent Marinelli in his
petition for collateral relief. On October 13, 1998, Attorney Dunham filed an
Amended PCRA petition on behalf of Marinelli. (Doc. 30-4, App. 0, Amended
PCRA Petition, Commonwealth v. Marinelli, No. 94-451 (Northumberland.
County, Oct. 13, 1998)). In that petition, Marinelli raised claims relating to the
following areas: (1) pretrial issues; (2) juror issues; (3) trial issues; (4) penalty
phase issues; and (5) sentencing issues. Id. Following an evidentiary hearing on
the Amended PCRA petition, from January 24, 2000 through January 27, 2000,
newly appointed counsel, Jerome Nickerson, from the Defender Association of
Philadelphia, filed a Second Amended PCRA petition. (Doc. 27-16, App. P,
Second Amended Petition). The Second Amended Petition added the following
claim:
Petitioner is entitled to a new trial because the Commonwealth
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withheld evidence that was exculpatory at guilt and sentencing in
violation of Brady v. Maryland and elicited testimony which it knew
or should have known to be false in violation of Giglio v. United
States.
Id. By Opinion and Order dated May 15,2001, the PCRA court denied the PCRA
petition. (Doc. 42, Ex. A, Opinion, Commonwealth v. Marinelli, No. 94-451
(Northumberland. County, May 15,2001).
Marinelli, represented by Billy H. Nolas, Esquire, from the Defender
Association of Philadelphia, filed a timely appeal to the Pennsylvania Supreme
Court, raising the following issues:
I.

Should Appellant's death sentence be vacated because he
was denied an impartial capital sentencing jury and, as a
result, consideration of mitigating evidence was
restricted, in violation of the Sixth, Eighth, and
Fourteenth Amendments and Article I, Sections 9 and
13?

II.

Is Appellant entitled to a new sentencing proceeding
because the court's penalty phase instructions improperly
shifted the burden of persuasion from the
Commonwealth to the defendant and violated the
presumption of life afforded defendants in capital
sentencing proceedings, in violation of the Sixth, Eighth
and Fourteenth Amendments?

III.

Is Appellant entitled to a new trial because juror Clara
Iwanski was a former client of an Assistant District
Attorney involved in this case?
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IV. Did the admission in this joint trial of the non-testifying
co-defendant's confession, where the term "the other
guy" unmistakably referred to Appellant, violate the
Sixth, Eighth and Fourteenth Amendments?
V.

Should Appellant's death sentence be vacated because
the sentencing jury was never instructed that, if
sentenced to life, he would be statutorily ineligible for
parole?

VI. Was counsel ineffective in misapprising Appellant of his
right to testify to personal background mitigating
circumstances without being subject to
cross-examination on the circumstances of the offense,
and was Appellant's waiver of his right to testify in
mitigation was invalid, in violation of the Sixth, Eighth
and Fourteenth Amendments?
VII. Is relief appropriate because the court failed to properly
instruct on the nature and use of aggravating and
mitigating factors, in violation of the Sixth, Eighth and
Fourteen Amendments?
VIII. Is Appellant entitled to the production of the remaining
voir dire transcripts and restoration of his right to direct
appeal, nunc pro tunc, because these notes of testimony
of the voir dire proceedings were unavailable to him, in
violation of due process under the Fourteenth
Amendment?
IX. Should Appellant's death sentence be vacated because
the Pennsylvania Supreme Court failed to provide him
meaningful proportionality review in violation of 42
Pa.C.S. 9711 (h)(3)(iii) and Pennsylvania and Federal
Constitutional Law?
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X.

Was the "torture" instruction, especially in conjunction
with the prosecutor's argument, unconstitutionally
vague, overbroad, arbitrary and capricious, in violation
of the Sixth, Eighth and Fourteenth Amendments?

XI.

Should Appellant's conviction and death sentence be
vacated because they were obtained by inflammatory,
unscientific, unreliable and misleading "expert"
testimony?

XII.

Is Appellant entitled to a new trial and should his death
sentence be vacated because of errors under Brady v.
Maryland and its progeny?

XIII. Was counsel ineffective at capital sentencing?
(Doc. 30-11, App. Q, Initial Brief of Appellant).
On November 25, 2002, the Pennsylvania Supreme Court issued its opinion
in connection with Marinelli's appeal from the denial of his PCRA petition.
Commonwealth v. Marinelli, 570 Pa. 622, 810 A.2d 1257 (Pa. 2002) ("Marinelli­

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2,")(Doc. 27-9, App. R). The Court, through former Madame Justice Newman,
affirmed in part, and reversed in part, the order denying post-conviction relief, and
remanded the case for further proceedings. See Marinelli-2, supra. Specifically,
the Supreme Court concluded that the lower court had erred in its determination
that claims I, II, III, V, VI, VII, VIII and IX were waived. Id. The case was
remanded for the PCRA court to consider those eight (8) issues. Id. With respect
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to the remaining issues, the Supreme Court determined that claim IV ("Did the
admission in this joint trial of the non-testifying co-defendant's confession, where
the term "the other guy" unmistakably referred to Appellant, violate the Sixth,
Eighth and Fourteenth Amendments?") and claim X ("Was the 'torture'
instruction, especially in conjunction with the prosecutor's argument,
unconstitutionally vague, overbroad, arbitrary and capricious, in violation of the
Sixth, Eighth and Fourteenth Amendments?") were previously litigated on direct
appeal and therefore not appropriate for consideration on collateral review. Id.
The Court rejected Marinelli's remaining three (3) claims (XI, XII and XIII) as
meritless. Id.
On remand, the PCRA court concluded that all eight of Marinelli's claims
(1, II, III, V, VI, VII, VIII and IX) were meritless and entered an order on March
30, 2004 denying post-conviction relief. (Doc. 42, Ex. B, Memorandum Opinion
and Order). Marinelli filed an appeal to the Pennsylvania Supreme Court,
challenging the lower court's determination that his eight (8) claims were
meritless. (Doc. 30-13, App. T, Initial Brief of Appellant (After Remand).
In a November 7,2006 Opinion, the Pennsylvania Supreme Court, through
former Madame Justice Newman, affirmed the order of the PCRA court order.
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Commonwealth v. Marinelli, 589 Pa. 682, 910 A.2d 672 (2006), reargument
denied (Jan 24, 2007) ("Marinelli-3") (Doc. 27-11, App. W, Opinion).
By Order dated January 24,2007, Marinelli's application for reargument
was denied.
On January 30, 2007, Marinelli filed the instant action (Doc. 1). On August
10, 2007, Marinelli filed his petition for writ of habeas corpus, in which he alleges
eighteen (18) claims for relief. (Doc. 9, Petition). Specifically, those claims are
set forth as follows:
I. Petitioner's convictions and death sentence should be
vacated because his due process and confrontation rights
were violated under Bruton v. United States and its
progeny;
II. Petitioner's convictions and death sentences should be
vacated because his due process rights were violated under
Brady v. Maryland and its progeny;

III. Petitioner's convictions and death sentence should be
vacated because his statements to police were obtained in
violation of his Sixth Amendment right to counsel and
should have been suppressed;
IV. Petitioner's convictions and death sentence should be
vacated because they were obtained with unscientific,
unreliable and misleading "expert" testimony;
V. Petitioner's convictions and death sentence should be
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vacated because the trial court prevented petitioner from
effectively cross-examining Commonwealth witness
Reigle;
VI. Petitioner's convictions and death sentence should be
vacated because the Commonwealth presented evidence,
from Mark Marinelli, that it knew to be unreliable;
VII. Petitioner's murder conviction and death sentence
should be vacated because the guilt phase murder
instructions violated due process;
VIII. Petitioner's convictions and death sentence should be
vacated because he was denied his due process and Sixth
Amendment rights to an impartial jury;
IX. Petitioner's convictions and death sentence should be
vacated because his waiver of his right to testify was
invalid?
X. Petitioner's death sentence should be vacated because
trial counsel failed to reasonably investigate, develop and
present mitigating evidence;
XI. Petitioner's death sentence should be vacated because
the jury failed to give effect to mitigating evidence;
XII. Petitioner's death sentence should be vacated because
of unconstitutional jury instructions and pro secutori al
argument regarding torture;
XIII. Petitioner's death sentence should be vacated because
the penalty phase instructions shifted the burden of
persuasion from the Commonwealth to Petitioner and
violated the presumption of life;

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XIV. Petitioners' death sentence should be vacated because
the sentencing jury was never instructed that, if sentenced
to life, he would be eligible for parole;
XV. Petitioners' death sentence should be vacated because
the jury instructions' definition ofmitigating circumstances
prevented the jury from giving full effect to mitigation;
XVI. Petitioner's death sentence should be vacated because
the Pennsylvania Supreme Court failed to provide
meaningful proportionality review;
XVII. Petitioner's convictions and death sentence should
be vacated because of ineffective assistance of counsel at
trial and on direct appeal; and
XVIII. Petitioner's convictions and death sentence should
be vacated because of the cumulative prejudicial effect of
the errors described in this petition.
(Doc. 9, Amended Petition). On May 12,2008, a response to the petition was
filed, and supporting exhibits were filed on May 19,2008, June 6, 2008 and
December 17, 2009). (See Docs. 26, 27, 30, 42). Marinelli filed his reply brief on
July 31, 2008. (Doc. 36).
By Memorandum and Order dated November 26,2012, this Court issued a
Memorandum and Order denying the petition for writ of habeas corpus, and
denying a certificate of appealability on all claims, except for Claim I. (Docs. 46,
47).
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On December 21, 2012, Marinelli filed a Motion to Alter or Amend
Judgment Pursuant to Federal Rule of Civil Procedure 59(e), seeking
reconsideration as to the denial of a COA relating to Claims 2, 3, 6, 7, 8, 10, 11,
12, and 14. (Doc. 48).
On April 25, 2013, Marinelli filed a second PCRA petition in the
Northumberland County Court of Common Pleas. See Commonwealth v.
Marinelli, CR-94-451, Criminal Docket at 8. The petition is currently pending. Id.
On May 14,2013, Marinelli filed a Supplement to Motion to Alter or
Amend Judgement, Pursuant to Federal Rule of Civil Procedure 59(e), Stay of
Federal Proceedings Pending Exhaustion of State Remedies and Consolidated
Brief (Doc. 56), in which Marinelli supplements his pending Motion to Alter and
Amend Judgment with previously unavailable evidence. Id. Specifically,
Marinelli proffers the newly obtained affidavit of Nathan Reigle as proof that the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny
by failing to reveal a promise to Reigle that the Commonwealth would forego
prosecuting him and by failing to disclose that it solicited and coached Reigle to

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give false and misleading testimony at trial, as averred in Claim II2 of his Habeas
Corpus Petition. (Doc. 56). Further, Petitioner proffers Mr. Reigle's affidavit as
proof that he was indeed previously unavailable, having asserted a Fifth
Amendment privilege and maintained his silence until just recently in the face of
threats of prosecution by the Commonwealth. Petitioner requests reconsideration
and a hearing on Claim II, or in the alternative, that these habeas proceedings be
held in abeyance so that Petitioner can return to state court to allow the state courts
the opportunity to address this newly available evidence supporting relief from his
conviction and death sentence. Id.

III.

Discussion
AEDPA, as codified at 28 U.S.C. § 2254(e)(2), limits the ability ofa federal

district court to hold an evidentiary hearing in habeas review. See Williams v.
Taylor, 529 U.S. 420 (2000); Palmer v. Hendricks, 592 F.3d 386, 392-94 (3d
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2Petitioner contends in Claim II that the prosecution violated Brady by
withholding: (1) mitigating information regarding Petitioner's traumatic life
history; (2) exculpatory/mitigating information regarding Petitioner's intoxication
at the time of the offense; (3) impeachment information regarding Commonwealth
witness Mark Marinelli; and (4) impeachment information regarding
Commonwealth witness Nathan Reigle. (Doc. 18, Memorandum of Law at p.
23-29).
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Cir.2010); Lewis v. Hom, 581 F.3d 92, 104-05, 109 n. 11, 117 (2009); Goldblum
v. Klem, 510 F.3d 204,220-21 (3d Cir.2007), cert. denied sub nom. Goldblum v.
Kerested, 555 U.S. 850 (2008); Taylor v. Hom, 504 F.3d 416, 435-37 (3d
Cir.2007), cert. denied sub nom. Taylor v. Beard,556 U.S. 846 (2008); Rolan v.
Vaughn, 445 F.3d 671, 680 (3d Cir.2006); Thomas v. Varner, 428 F.3d 491,
497 -99 (3d Cir.2005). Under AEDPA, if a state prisoner "has developed the
factual basis of his claims in the state court, he is not entitled to an evidentiary
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hearing" in federal court. Goldblum, 510 F.3d at 220 (citing 28 U.S.C. §

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2254(e)(2)); Rolan, 445 F.3d at 680-81 (district court erred in conducting an

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evidentiary hearing on a claim when the state court had conducted a hearing on the
same issue); Taylor, 504 F.3d at 435-37 (petitioner not entitled to evidentiary

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hearing in federal court when he could have presented his alleged new evidence to
the PCRA Court).
The first inquiry is "whether the factual basis was indeed developed in state
court, a question susceptible, in the normal course, of a simple yes or no answer."

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Thomas, 428 F.3d at 498 (quoting Williams v. Taylor, 529 U.S. 420,431 (2000)).

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If the answer is no, then a court must determine if this is due to Petitioner's failure.
"In its customary and preferred sense, 'fail' connotes some omission, fault, or
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negligence on the part of the person who has failed to do something," and "a
person is not at fault when his diligent efforts to perform an act are thwarted, for
example, by the conduct of another or by happenstance." Williams, 529 U.S. at
431-32. Thus, "[u]nder the opening clause of § 2254(e)(2), a failure to develop the
factual basis of a claim is not established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner's counsel." Id. at 432.
"Diligence will require in the usual case that the prisoner, at a minimum, seek an
evidentiary hearing in state court in the manner prescribed by state law." Id. at
437.
In this case, Marinelli was diligent in his efforts to develop his Brady claim
in state court. In his PCRA petition, Marinelli alleged that the Commonwealth
violated Brady v. Maryland, 373 U.S. 83 (1963), and its progeny by failing to
disclose exculpatory evidence, including substantial impeachment evidence
regarding key Commonwealth witness Nathan Reigle. Petitioner attempted to
prove the above-described proffer about Reigle by calling Reigle as a witness at
Petitioner's PCRA hearing, and he states that the following occurred:
Before Reigle could be questioned, however, the Commonwealth
asked the [PCRA] court to advise him "[o]fhis rights since he has
testified previously under oath." NT-PC-1 at 323-24. After a short
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debate, in Reigle's presence, the Commonwealth withdrew its
objection, but ominously stated that it would wait and see if Reigle
"[c]rosses into incrimination." Id. at 324. The Commonwealth's
threat was clear - if Reigle testified contrary to his trial testimony, he
would be charged with perjury.
Reigle stated "I wish to plead the Fifth Amendment," and refused to
answer questions. NT-PC-l at 325-28. The PCRA court stated:
If ... he feels that any testimony he gives is going to
incriminate himself in any way, including but not limited
to perjury as to prior statements, I think he is entitled to
invoke this privilege. So unless he chooses to answer,
I'm not going to force him to in anyway. (NT-PC-l at
326)
Petition ~~ 142-43 (paragraph numbers omitted). The
Commonwealth declined to grant immunity to Reigle, and he did not
testify.
(Doc. 18, Memorandum of Law at 33-34). Thus, Petitioner concludes that he was
prevented, through no fault of his own, from presenting Reigle's testimony at the
PCRA hearing. Id.
In rejecting this claim, the Pennsylvania Supreme Court found the
following:
Marinelli's first claim, that the prosecution failed to disclose the
terms of a deal between the Commonwealth and Reigle, is really an
assertion that "the Commonwealth failed to disclose impeachment
evidence regarding ... Reigle." Marinelli cites to the PCRA testimony
of Robert Sacavage (now Judge Sacavage), the prosecutor assigned to
23

his case, who testified that he "shaked" Reigle. Judge Sacavage
explained that "[w]hen you're talking to individuals that are mostly
strangers to you, you want to make sure you're getting accurate
information; and you warn them, certainly, that you expect them to
tell the truth." (PCRA N.T., 1124/00-1127/00, at 358-360). As the
PCRA court properly determined, this does not demonstrate the
existence of a deal between Reigle and the Commonwealth and does
not constitute evidence that might have affected the outcome of the
trial. Accordingly, Marinelli has failed to prove a Brady violation in
this regard. Moreover, we substantially addressed this contention on
direct appeal, where we noted the following:
Nathan Reigle's juvenile record was disclosed by the
trial court to counsel for both defendants, including the
fact that Reigle was currently on juvenile probation.
Further, Reigle's juvenile probationary status and
possible bias or agreements with the prosecution were
brought out at trial by the Commonwealth. There is thus
no merit to [Marinelli's] contention that he was denied
an opportunity to confront the prosecution's witness.
(Doc. 27-9, App. R, Marinelli-2 at 20-21).
Based on the above presentation to the state courts, the Court finds that the
factual predicate for Marinelli's Claim II existed and was raised by Petitioner. To
the extent that Marinelli now has new evidence to support the claim, such does not
negate the existence of the claim or Petitioner's diligence in attempting to raise the
claim. For that reason, he is not entitled to a hearing in this Court on that claim.

24

Marinelli states that his present Supplemental filing is based upon newly
discovered evidence regarding Nathan Reigle's testimony which was not
previously available. (Doc. 56 at 15). Based upon this evidence, Petitioner
initiated a pro se action pursuant to Pennsylvania's Post Conviction Relief Act
(PCRA), 42 Pa. C.S.A. § 9541, et seq. on April 25, 2013. 3 See Commonwealth v.
Marinelli, CR-94-451, Criminal Docket at 8. His action is currently pending
review in state court. Id.
Although Petitioner did not file a formal motion to stay, he does seek a stay
of proceedings in his Supplement to his motion to alter and amend judgment. (See
Doc. 56). The stay and abeyance procedure holds a federal habeas petition
pending exhaustion of state remedies by the petitioner. Rhines v. Weber, 544 U.S.
269 (2005). While granting a stay and abeyance is an available procedure, it is not
a preferred course of action. Id. Because a "stay and abeyance" procedure, ifused
too frequently, can undermine the policies favoring prompt and orderly resolution

3The Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §
9541, et seq., provides the framework for state collateral review of criminal
convictions. Like its federal counterpart, the PCRA contains a time bar, see 42 Pa.
Cons. Stat. § 9545(b)(1), and an exception to this time bar for newly-discovered
evidence. See id. § 9545(b)(1 )(ii).
25

of state habeas petitions, the Supreme Court held that "stay and abeyance is only
appropriate when the district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state court." Rhines, 544 U.S. at
277. However, the Supreme Court also did not limit the authority to grant a stay
to specific scenarios; rather, the district court must determine whether the
petitioner "satisfied the three requirements for a stay as laid out in Rhines: good
cause, potentially meritorious claims, and a lack of intentionally dilatory litigation
tactics." Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir.2009).
In the instant case, the introduction of the newly discovered evidence
supporting Petitioner's Brady claim, has not been presented to the state court.
Marinelli presents colorable evidence that his claim under Brady v. Maryland, 373
U.S. 83 (1963), is based on new information which was previously
undiscoverable, and the PCRA contains an exception allowing out-of-time
petitions based on newly-discovered evidence. See supra, note 3. Specifically,
Marinelli's newly-discovered evidence consists of an affidavit, dated March 7,
2013, which appears to be the recantation of a prosecution witness from his trial.
He claims that the attestations in the affidavit provide the foundation for a federal
constitutional claim under Brady, and that this information could not have,
26

through due diligence, been discovered before March 7, 2013. Although "[c]ourts
have historically viewed recantation testimony with great suspicion." Landano v.
Rafferty, 856 F.2d 569,572 (3d Cir.1988) (citing United States v. Kearney, 682
F.2d 214,219 (D.C. Cir.1982», the purpose of this inquiry is not to evaluate the
credibility or merits of petitioner's new evidence. The affidavit is facially valid
and signed under pains of perjury, and the information therein, if true, may
undermine the Marinelli's conviction and sentence. This is sufficient to render
Petitioner's claims "potentially meritorious."
Finally, as noted above, rather than engaging in delay, Marinelli diligently
pursued state relief upon discovery of this new information. As such, this Court
finds that Marinelli's claim meets the requirements announced in Rhines for
applying the "stay-and-abeyance" procedure, and his request to place his petition
in abeyance will be granted in an order accompanying this opinion.
Along with his request for a stay of the above captioned action, Marinelli
also requests the appointment of counsel pursuant 18 U.S.C. § 3599, which states,
in pertinent part:
Unless replaced by similarly qualified counsel upon the attorney's
own motion or upon motion of the defendant, each attorney so
appointed shall represent the defendant throughout every subsequent
27

stage of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction process, together with
applications for stays of execution and other appropriate motions and
procedures, and shall also represent the defendant in such competency
proceedings and proceedings for executive or other clemency as may
be available to the defendant.
Section § 3599(e). Thus, section 3599 authorizes the Court's appointment to
continue throughout the available post-conviction proceedings and in "appropriate
motions and procedures."
In Harbison v. Bell, 556 U.S. 180, 182-83 (2009), the Court granted
certiorari to address "whether § 3599(e)' s reference to 'proceedings for executive
or other clemency as may be available to the defendant' encompasses state
clemency proceedings." In finding that § 3599(e) authorizes federally appointed
counsel to represent clients in such proceedings, the Court considered the text of §
3599(e) and noted that "[i]t is the sequential organization of the statute and the
term 'subsequent' that circumscribe counsel's representation, not a strict division
between federal and state proceedings." Id. at 188. The Court also indicated that
the Government's concern that § 3 599(e) as interpreted by the Court that federally
funded counsel would need to represent petitioners in any state habeas proceeding

28

occurring after appointment of counsel to be unfounded because state habeas is
not a stage "subsequent" to federal habeas. See id. at 189. Thus, even though
"state postconviction litigation sometimes follows the initiation of federal habeas
because a petitioner has failed to exhaust does not change the order of proceedings
contemplated by the statute." Id. at 190. Nevertheless, in light of § 3599(e)'s
provision that counsel may represent clients in "other appropriate motions and
procedures," the Court noted that "a district court may determine on a
case-by-case basis that it is appropriate for federal counsel to exhaust a claim in
the course of her federal habeas representation." Id. at 190 n. 7, 129 S.Ct. 1481.
Because representation by current counsel during the pursuit of Petitioner's
newly discovered evidence claim will ensure, not only that Marinelli is
represented, but that he is represented by counsel who already are intimately
familiar with the facts of the case, and who have had an ongoing relationship with
Petitioner, thus avoiding delay that would be necessary for new counsel to become
familiar with the facts and claims herein, the Court will appoint current counsel to
represent Marinelli pursuant 18 U.S.C. § 3599.
An appropriate Order accompanies this Memoran=d_...."

Dated: September

Iiz-, 2013