Opinion
CIVIL ACTION No. 02-7109
October 30, 2003
REPORT AND RECOMMENDATION
Before the court is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Antuan Bronshtein ("Bronshtein"), an individual currently incarcerated in the Greene State Correctional Institution. For the reasons that follow, I recommend that the petition be denied, but that a certificate of appealability be granted regarding the appropriate standard of review for Bronshtein's claims of ineffective assistance of counsel.
FACTS AND PROCEDURAL HISTORY :
The Pennsylvania state courts summarized the relevant facts underlying the instant case as follows:
Bronshtein went to the home of Jerry Slobotkin apparently to collect money that Slobotkin owed him for two [2] Rolex watches. Slobotkin told Bronshtein that he had neither the money nor the watches. Bronshtein then fired [5] shots at Slobotkin and took a gold bracelet with Slobotkin's name on it from the decedent's wrist; Bronshtein also took a jewelry box from the upstairs bedroom in Slobotkin's home.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 1 (Pa.Super. Aug. 23, 2001) (unpublished memorandum).
On February 27, 1992, a jury sitting before the Honorable Joseph D. O'Keefe, Court of Common Pleas of Philadelphia County, convicted Bronshtein of first degree murder, robbery, risking a catastrophe, possessing an instrument of crime, theft, and violation of the Uniform Firearms Act. Judge O'Keefe sentenced Bronshtein to a mandatory term of life imprisonment for his first degree murder conviction.
Judge O'Keefe ordered the sentences on the remaining convictions to run concurrently with the life sentence.
After post-trial motions were denied, Bronshtein filed a direct appeal in the Pennsylvania Superior Court claiming:
(1) the trial court erred in failing to suppress a revolver found under some plywood sheeting in a binoculars case in Bronshtein's car, when there was no probable cause to arrest Bronshtein and no specific and articulable facts indicating that he was dangerous and could gain immediate control of weapons;
(2) the trial court erred in refusing to permit the decedent's son to testify for the defense on the grounds that he violated the court's witness sequestration order;
(3) the trial court erred in permitting the Commonwealth to read into evidence the preliminary hearing testimony of the decedent's father;
(4) the trial court erred in failing to instruct the jury that Bronshtein could not be found guilty of robbery or felony murder if he formed the intent to steal after the victim was already dead; and
(5) trial counsel was ineffective for failing to subpoena or sequester the decedent's son.
On September 13, 1993, the Superior Court affirmed the judgment of sentence. Commonwealth v. Bronshtein, No. 586 Phila. 1993 (Pa.Super. Sept. 13, 1993) (unpublished memorandum). Bronshtein did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.
On January 9, 1997, Bronshtein filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541. et seq. Counsel appointed to represent Bronshtein in his PCRA matter subsequently filed a letter pursuant toCommonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988), certifying that she had reviewed the claims made by Bronshtein in his petition and concluded that there were no meritorious issues to advance before the PCRA court. The PCRA court dismissed Bronshtein's petition as meritless and permitted counsel to withdraw.
Represented by different counsel, Bronshtein filed a appeal in the Pennsylvania Superior Court, but failed to file a brief. On May 21, 1998, the Superior Court dismissed Bronshtein's due to counsel's failure to file a brief.
On August 16, 1999, Bronshtein, represented by new counsel once again, filed a petition with the Superior Court seeking to reinstate his appellate rights. On August 24, 1999, the Superior Court denied the petition. Bronshtein subsequently filed a counseled "petition for habeas corpus relief seeking, inter alia, the reinstatement of his appellate rights from the denial of his first request for PCRA relief, and substantive relief. The trial court treated this filing as a second request for PCRA relief and dismissed the petition without an evidentiary hearing.
Bronshtein was represented by instant counsel, Peter G. Rossi, Esquire, in this round of appeals.
Bronshtein filed an appeal in the Superior Court once again seeking reinstatement of his appellate rights from the denial of his first PCRA petition, and claiming:
(1) the failure of counsel to file a brief in support of his first PCRA appeal violated Bronshtein's state and federal constitutional rights;
(2) ineffective assistance of PCRA counsel precluded a finding that his substantive issue were waived;
(3) ineffective assistance of trial counsel for failing to request a "corrupt and polluted source" charge with respect to the testimony of Commonwealth witness, Wilson Perez;
(4) ineffective assistance of trial counsel for failing to properly investigate or present evidence that other persons had a motive to kill the victim;
(5) ineffective assistance of trial and all appellate counsel for failing to litigate the issue of whether a search of his car violated his rights under the Pennsylvania Constitution;
(6) ineffective assistance of trial counsel for failing to investigate and prepare a defense of diminished capacity; and
(7) the cumulative effect of prior error warranted a new trial.
After characterizing Bronshtein's attempt to reinstate his appeal from the denial of his first PCRA petition as a "continuation of that first proceeding" due to ineffective assistance of PCRA counsel, the Superior Court proceeded to review Bronshtein's claims on the merits. The court affirmed the denial of PCRA relief on August 23, 2001. Commonwealth v. Bronshtein, No. 938 EDA 2000 (Pa.Super. Aug. 23, 2001) (unpublished memorandum). Bronshtein filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on May 24, 2002. Commonwealth v. Bronshtein, 800 A.2d 930 (Pa. 2002) (table).
In reviewing PCRA counsel's Finley letter from the initial denial of PCRA relief, the Superior Court noted that there was "no indication that [counsel] investigated claims other than those raised by [Bronshtein] in his pro se filing."Commonwealth v. Bronshtein, No. 938 EDA 2000, at 2 (Pa.Super. Aug. 23, 2001) (unpublished memorandum). The court found that counsel's actions "border[ed] on complete abdication of responsibility in that she placed on the client her burden of identifying legal issues."Id. at 2. n. 1.
Bronshtein filed the instant petition for writ of habeas corpus on August 30, 2002, claiming:
(1) all prior counsel were ineffective for failing to properly raise and litigate the issue that trial counsel was ineffective for failing to request a "corrupt and polluted source" instruction with regard to the testimony of Wilson Perez;
(2) all prior counsel were ineffective for failing to properly raise and litigate the issue that the unlawful search of his car violated his rights under the Pennsylvania Constitution;
(3) all prior counsel were ineffective for failing to properly raise and litigate the issue that trial counsel provided ineffective assistance by failing to adequately investigate, prepare and present the issue of Bronshtein's lack of specific intent to commit first degree murder;
(4) the trial court erred in admitting the preliminary hearing testimony of Josef Bronshtein, thereby violating Bronshtein's rights to Confrontation, Due Process and Compulsory Process;
(5) trial court error and ineffective assistance of counsel resulted in the failure to present "compelling relevant and material exculpatory evidence" supporting Bronshtein's defense;
(6) trial counsel was ineffective for failing to properly investigate or present evidence that others had motive to kill the victim; and
(7) the cumulative effect of the errors at his trial resulted in a denial of due process.
Respondents have filed an answer arguing that Bronshtein's claims do not merit federal habeas relief.
DISCUSSION :
I. Exhaustion and Procedural Default
A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254.See 28 U.S.C. § 2254(b). A petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); Picard v. Connor. 404 U.S. 270 (1971). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (quoting Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992)). In order for a claim to be exhausted "[b]oth the legal theory and the facts underpinning the federal claim must have been presented to the state courts . . . and the same method of legal analysis must be available to the state court as will be employed by the federal court." Evans v. Court of Common Pleas, Del. Co., Pa., 959 F.2d 1227, 1231 (3d Cir. 1992). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254).
Although exhaustion may be excused, we may nonetheless be precluded from reviewing the merits of claims deemed exhausted. As the Third Circuit has held:
claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default."Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000):see also Coleman v. Thompson, 501 U.S. 722, 731 (1991). The "cause and prejudice" standard applies whether the default in question occurred at trial, on appeal, or on state collateral attack. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
The Supreme Court has delineated what constitutes "cause" for the procedural default: the petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Werts, 228 F.3d at 192-93 (citingMurray v. Carrier, 477 U.S. 478, 488 (1986)). With regard to the prejudice requirement, the habeas petitioner must prove "`not merely that the errors at . . . 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.'" Id. at 193 (citing Carrier. 477 U.S. at 494). This standard essentially requires the petitioner to show he was denied "fundamental fairness" at trial. Id.
In the alternative, if the petitioner fails to demonstrate cause and prejudice for the default, the federal court may also consider a defaulted claim if the petitioner can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice.Coleman, 501 U.S. at 748. In order to satisfy the fundamental miscarriage of justice exception, the Supreme Court requires that the petitioner show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) (citing Carrier. 477 U.S. at 496);see Glass v. Vaughn, 65 F.3d 13, 16-17 (3d Cir. 1995). cert. denied. 516 U.S. 1151 (1996) (assuming that theSchlup miscarriage of justice/actual innocence standard applied to noncapital petitioner arguing eligibility for lesser degree of guilt). To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.Schlup. 513 U.S. at 327: see also Glass. 65 F.3d at 16.
1. Claims One (1), Two (2), and Seven (7): Failure to Present
Respondents initially contend that claims one (1), two (2), and seven (7) were not raised before the state court and are not exhausted because these claims were presented solely as allegations of ineffective assistance of PCRA counsel during Bronshtein's collateral appeal. We disagree. Due to the complex procedural history of this case, as discussed supra, it was essential for Bronshtein to present layered claims of ineffective assistance of counsel in order to have his underlying claims addressed on the merits. In reviewing Bronshtein's PCRA appeal, the Superior Court first concluded that Bronshtein had been denied effective assistance of PCRA counsel.Commonwealth v. Bronshtein, 938 EDA 2000, at 4. After making this determination, the court then proceeded to review his underlying claims of ineffective assistance of trial and/or appellate counsel.Id. Because Bronshtein properly presented layered claims of ineffective assistance of counsel to the state courts, and the claims were addressed as claims of ineffective assistance of trial and/or appellate counsel by those courts, we find that claims one (1), two (2), and seven (7) are fully exhausted and will proceed to address the merits of those claims.
In claim one (1), Bronshtein argues that all prior counsel were ineffective for failing to properly litigate the issue that trial counsel was ineffective for failing to request a "corrupt and polluted source" instruction. In claim two (2), he contends that all prior counsel were ineffective for failing to properly litigate the issue that the unlawful search of his car violated his rights under the Pennsylvania Constitution. In claim seven (7), Bronshtein argues that the cumulative effect of the errors at his trial resulted in a denial of due process.
2. Claims Four (4) and Five (5): Failure to Fully Exhaust
As Bronshtein points out, Respondents have apparently made a typographical error in arguing that claim six (6) is unexhausted because it was only raised on direct appeal. See Pet'r Reply to Resp't Answer, at 15; Resp't Answer, at 9-10. In fact, claim six (6) was presented during Bronshtein's PCRA proceedings. Because claim five (5), as opposed to claim six (6), was presented on direct appeal, we presume that Respondents meant to argue that claims four (4) and five (5) were not fully exhausted on direct appeal.
Respondents next argue that claims four (4) and five (5) are not exhausted because Bronshtein did not file an allocatur petition in the Pennsylvania Supreme Court on direct appeal. We agree. At the time of Bronshtein's direct appeal in 1993, discretionary review by the Pennsylvania Supreme Court was part of the ordinary process of appellate review. Wenger v. Frank, 266 F.3d 218. 225 (3d Cir. 2001). Although on May 9, 2000, the Pennsylvania Supreme Court issued Order No. 218 stating that a petition for allocatur was not necessary for exhaustion prior to commencing federal habeas proceeding,see In re: Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 6, 2000), the Third Circuit has held that "Order 218 does not apply in cases in which the time to petition for review by the state supreme court expired prior to the date of the order." Wenger, 266 F.3d at 226. Because Bronshtein's time to petition for discretionary review expired before Order 218 was issued, this Order is not applicable to his case and claims four (4) and five (5) must be deemed unexhausted.
In claim four (4), Bronshtein contends that the trial court erred in admitting the preliminary hearing testimony of Josef Bronshtein. In claim five (5), he argues that trial court error and ineffective assistance of counsel resulted in the exclusion of "compelling relevant and material exculpatory evidence," namely, the testimony of the decedent's son, Eric Slobotkin. See Pet'r Mem. of Law, at 36-37. Bronshtein argues that Mr. Slobotkin would have presented evidence relevant to Bronshtein's lack of specific intent to commit first degree murder. Id.
We note that Bronshtein argues that claims four (4) and five (5) have been fully exhausted in the state courts because he presented these claims in his PCRA appeal when he raised general allegations of prior counsel's ineffectiveness under the Sixth Amendment for failing to "adequately preserve, brief, and litigate issues raised on direct appeal." See Pet'r Reply to Resp't Answer, at 15 (citing PCRA petition, at ¶ 111, Initial PCRA brief, at 37-38). We find that such a general, "catch-all" claim provides inadequate notice to the state courts of the true nature of any underlying issues. As such, this general claim was virtually impossible to address with any specificity by the appellate courts. Indeed, the state court did not address this general claim in its decision. Because the state court did not receive "fair notice" of claims four (4) and five (5) on collateral appeal, we reject Bronshtein's argument that these claims were exhausted at that stage of the appellate process.
To the extent the Bronshtein would also argue that the ineffective assistance of counsel portion of claim (5) was "fairly presented" in his PCRA appeal, see Pet'r Mem. of Law, at 36 n. 26, we note that at this stage of the appellate process, Bronshtein presented a general claim that trial counsel was ineffective for failing to adequately investigate and present witnesses in support of his defense. See Commonwealth v. Bronshtein, No. 938 EDA 2000, at 13. In denying this claim, the Superior Court determined that Bronshtein had not offered any actual expert testimony, or supported his claim with certifications of witnesses who were ready and able to testify in support of his claim. Id. As such, we find that Bronshtein did not "fairly present" the specific version of his claim presented in the instant habeas petition (that trial counsel was ineffective for failing to ensure that Eric Slobtkin testified for Bronshtein's defense) in his collateral appeal. In any event, we note that in discussing the state court's disposition of the claim that Bronshtein has presented as claim five (5) in his habeas petition, Bronshtein refers solely to the state court opinion on direct appeal, thereby implicitly acknowledging that this claim was not presented on collateral appeal. See Pet. at 34; Pet'r Mem. of Law, at 44-45.
We find, however, that exhaustion should be excused for these claims pursuant to 28 U.S.C. § 2254(b)(1), because a return to state court would be futile due to "an absence of available State corrective process." Lines. 208 F.3d at 162. The only way in which Bronshtein could fully present these claims in the state courts at this time is by filing another PCRA petition. See Szuchon v. Lehman, 273 F.3d 299, 324 n. 14 (3d Cir. 2001). However, any such petition would be time-barred by the PCRA's statute of limitations. As a result, exhaustion would be futile and is excused.
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the judgment at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b) (1); see also, e.g., Lines, 208 F.3d at 164 n. 17 (noting that the Pennsylvania Supreme Court has held that the time restrictions for seeking relief under the PCRA are jurisdictional) (citingCommonwealth v. Banks. 726 A.2d 374 (Pa. 1999)). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. Ann. § 9545(b)(3). As previously noted, Bronshtein failed to petition the Pennsylvania Supreme Court for allocatur on direct appeal; therefore, his judgment became final in 1993, when the time for seeking an appeal expired. Because Bronshtein's judgment became final over ten (10) years ago, the PCRA statute of limitations would preclude Bronshtein from presenting the instant claims in another PCRA petition. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). Moreover, although there are three (3) exceptions to the PCRA's statute of limitations, 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i), (ii), (iii), Bronshtein fails to allege any of the limited circumstances upon which an exception would be granted.
Although we recommend that exhaustion be excused, Bronshtein is considered to have procedurally defaulted this claim because state procedural rules bar him from seeking further relief in state courts.Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001). In such cases, federal courts may not consider the merits of such claims unless the petitioner establishes "cause and prejudice" to excuse his default.Coleman, 501 U.S. at 750.
Bronshtein has not provided this court with a proper explanation for his failure to fairly present these claims to the state courts. As a result, he has not shown cause to excuse his procedural default. Moreover, because Bronshtein makes no colorable showing of innocence, he has failed to demonstrate that a miscarriage of justice will result if his claims are not reviewed. Coleman, 501 U.S. at 748;Schlup, 513 U.S. at 327 (citing Carrier. 477 U.S. at 496); see Glass, 65 F.3d at 16-17. Therefore, these claims must be dismissed as procedurally defaulted.
To the extent that Bronshtein would argue that his default is due to counsel's failure to properly present these claims on direct appeal, such a claim must fail. A claim of ineffective assistance of counsel constitutes "cause" for procedural default only if the claim was presented to the state courts independently prior to its use to establish cause. Edwards. 529 U.S. 466 (citing Carrier. 477 U.S. at 488-89). As previously noted, Bronshtein presented a general claim of ineffective assistance of all prior counsel in his collateral appeal; however, he failed to specify that counsel was ineffective for failing to file an allocatur petition in the Pennsylvania Supreme Court on direct appeal. Consequently, the state court never entertained the claim that direct appellate counsel was ineffective to properly preserve these claims on direct appeal. Because this specific claim of ineffective assistance of appellate counsel was not presented to the state courts, it cannot constitute "cause" for his default.
Because no cause has been demonstrated, the court need not address the prejudice requirement. Engle v. Isaac. 456 U.S. 107, 134 n. 43 (1982) (because petitioner lacked cause for default, the court need not consider whether he also suffered actual prejudice).
III. Standard of Review for Claims Addressed on the Merits
The Antiterrorism and Effective Death Penalty Act ("AEDPA") which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. Werts at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).
The AEDPA standard of review does not apply, however, "unless it is clear from the face of the state court decision that the merits of the petitioner's constitutional claims were examined in light of federal law as established by the Supreme Court of the United States." Everett v. Beard, 290 F.3d 500, 508 (3d Cir. 2002). cert. denied, 537 U.S. 1107 (2003) (citing Hameen v. Delaware. 212 F.3d 226, 248 (3d Cir. 2000). cert. denied, 532 U.S. 924 (2001)). Bronshtein argues that his claims of ineffective assistance of counsel were reviewed solely as matters of state law and that therefore, his claims should be subject to pre-AEDPA standards of review. See Pet'r Mem. of Law, at 18-20, 22-24, 28-30, 35-36, 44-45, 48-49; Pet'r Reply to Resp't Answer, at 2-10. "Under that standard, a federal habeas court owes no deference to a state court's resolution of mixed questions of constitutional law and fact . . . whereas the state court's factual findings are presumed to be correct unless, inter alia, the state court's findings are not `fairly supported by the record.'" Everett, 290 F.3d at 508 (citations omitted). We thus undertake a discussion of the appropriate standard of review to apply to Bronshtein's claims.
We start with the Third Circuit's review of the interplay between the governing federal standard for ineffective assistance of counsel claims and the AEDPA. In Strickland v. Washington. 466 U.S. 668 (1984), the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. In discussing the governing standard of review in the case of Werts v. Vaughn, supra, the Third Circuit noted that the Pennsylvania Supreme Court held in Commonwealth v. Pierce. 527 A.2d 973, 976-77 (Pa. 1987), that the Pennsylvania standard judging ineffectiveness claims was identical to the ineffectiveness standard enunciated by the United States Supreme Court in Strickland. Werts, 228 F.3d at 203. In Pierce, the Pennsylvania Supreme Court found that, pursuant to the state standard:
[I]neffectiveness claims are measured by two [2] components. First, counsel's performance is evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit . . . Second, we have required that the defendant demonstrate how the ineffectiveness prejudiced him.Pierce, 527 A.2d at 975 (citations omitted). In applying the AEDPA standard of review to the petitioner's ineffective assistance of counsel claim in the Werts case, the Third Circuit specifically found that the application of Pierce was "not a rule of law that contradicts the Supreme Court's holding in Strickland."Id. at 204.
However, almost two (2) years later, in Everett. supra, the Third Circuit held that the AEDPA standard of review did not apply in the review of a petitioner's ineffective assistance of counsel claim "because the state courts had not adjudicated the petitioner's properly exhausted claim that his Sixth Amendment right to the effective assistance of counsel had been violated[,] but instead had decided only that his rights under state law had not been abridged." Chadwick v. Janecka, 312 F.3d 597, 605-606 (3d Cir. 2002) (citing Everett, 290 F.3d at 516). In specifically explaining why the § 2254(d) standards did not apply the facts of Everett, the Third Circuit later explained:
[T]he Pennsylvania courts . . . analyzed his ineffectiveness claim not under a Strickland analysis, but under standards set by its own precedent, different from those enunciated in Strickland. Rather than asking whether counsel's performance was objectively reasonable, the court inquired whether the underlying claim was meritorious, then whether "the course of action chosen by his counsel had no reasonable basis designed to effectuate the client's interests," and, finally, whether the defendant was prejudiced.Marshall v. Hendricks, 307 F.3d 36, 69 n. 18 (3d Cir. 2002) (citing Everett, 290 F.3d at 506-07). See also generally Hameen v. Delaware. 212 F.3d 226, 248 (3d Cir. 2000) (concluding that, because the state court had not ruled upon petitioner's actual Eighth Amendment constitutional claim, but rather ruled on state law grounds, pre-AEDPA independent judgment applied); Appel v. Horn. 250 F.3d 203, 210 (3d Cir. 2001) ("when, although properly preserved by the defendant, the state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential standard provided by the AEDPA and explained in Williams do not apply") (citations omitted).
In the instant case, the Superior Court set forth the following standard for reviewing Bronshtein's ineffective assistance of counsel claims:
The threshold inquiry in such claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be considered ineffective for failing to assert a meritless claim. If this threshold is met, it must next be established that the particular course chosen by counsel had no reasonable basis designed to effectuate his client's interests. Finally, we require that the defendant establish how counsel's commission or omission prejudiced him.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 5 (citations omitted). We find this standard indistinguishable from that state law standard which the Third Circuit had previously determined failed to comport with the federal Strickland standard. In particular, we note that the state court in the instant case applied the same three-(3-) prong test. Moreover, the state court utilized the same phrase that the Third Circuit apparently found to conflict with the federal "objectively reasonable" standard in Everett, namely, the state court's use of a standard in which it must be proven that the "course [of action] chosen by [his] counsel had no reasonable basis designed to effectuate [his] client's interests."
"We note that this standard appears to expound upon that standard set forth in Pierce and subsequently approved inWerts. In interpreting that standard, however, the state courts appear to have overstepped the bounds of the federal inquiry mandated byStrickland.
Respondents argue that Everett's precedential value is "questionable" in light of the United States Supreme Court decisions inEarly v. Packer. 537 U.S. 3 (2002), Woodford v. Visciotti, 537 U.S. 19 (2002), and Bell v. Cone. 535 U.S. 685 (2002). See Resp't Answer, at 15-18. These cases, however, appear to hold that as long as a state court adjudicates a claim substantively in accordance with federal precedent, it need not identify federal law as the rule of decision in order for the claim to have been adjudicated on the merits for purposes of the AEDPA. We do not find that these cases direct the conclusion that Everett is not binding precedent. See, e.g., Reid v. Vaughn, 2003 WL 22038401, at *5 (E.D. Pa. 2003) (assuming that Everett remains good law after the United States Supreme Court decision in Early). In the cases before the Supreme Court, the state court decisions applied the correct federal standard, but omitted the technical references, or imprecisely or inadequately addressed them. See Early. 537 U.S. 3 (citation or even awareness of Supreme Court precedent is unnecessary as long as neither the reasoning nor the result of the state court decision contradicts it);Woodford, 537 U.S. 19 (the Ninth Circuit erred in finding that the state court held respondent to a higher standard thanStrickland when the state court used "probable" without the modifier "reasonably" in three (3) places in its opinion; failed to acknowledge the state court's reference to Strickland: and failed to acknowledge the lower court's proper framing of the question);Cone. 535 U.S. 85 (finding that the state court had used the appropriate standard of review when applying the state equivalent of Strickland). The instant case does not present a matter where the state court utilized the proper federal standard of review and simply neglected to cite federal caselaw. Rather, the state court used its own state law standard which, pursuant to Everett, deviated from the federalStrickland standard. Because the correct federal standard of review was not never utilized by the state court (implicitly or explicitly), we cannot deem the instant claims of ineffective assistance of counsel to have been "adjudicated on the merits" by the state courts.See 28 U.S.C. § 2254(d). Consequently, we will review these claims under the pre-AEDPA standard.
1. Claim One (1): Corrupt and Polluted Source Instruction
In his first claim, Bronshtein alleges that all prior counsel were ineffective for failing to properly litigate the issue that trial counsel was ineffective for failing to request a "corrupt and polluted source" instruction with regard to the testimony of Commonwealth witness Wilson Perez.
To the extent that Bronshtein attempts to assert an independent federal due process claim as well as the ineffective assistance of counsel claim presented herein, we note that a federal due process claim has never been presented to the state courts. See Pet. at 11; Pet'r Mem. of Law, at 14-15. For the reasons stated supra, such a claim would be considered unexhausted and procedurally defaulted. Similarly, if Bronshtein is attempting to raise an ineffective assistance of counsel claim based on counsel's failure to raise a federal due process claim, we note that this claim is also unexhausted and procedurally defaulted because Bronshtein never presented that version of his claim to the state courts. Consequently, we will not review these aspects of Bronshtein's claim.
The Pennsylvania Supreme Court has set forth the following guidelines for the issuance of a corrupt source charge:
[I]t is well established that, in any case in which an accomplice implicates the defendant, the trial court should instruct the jury that the accomplice is a corrupt and polluted source whose testimony should be considered with caution. See Commonwealth v. Chmiel, 639 A.2d 9, 13 (Pa. 1994). The charge is indicated in cases in which the evidence is sufficient to present a jury question with respect to whether the Commonwealth's witness is an accomplice. Id.: see also Commonwealth v. Spence, 627 A.2d 1176, 1183 (Pa. 1993). Such a jury question is present when the witness could be indicted for the crime for which the accused is charged. Commonwealth v. Sisak, 259 A.2d 428, 431 (Pa. 1969). A person may be indicted as an accomplice where the evidence would establish that he "knowingly and voluntarily cooperate[d] with or aids another in the commission of a crime" with the intent to assist the principal. Id. at 268 n. 4, 259 A.2d at 431 n. 4 (citations omitted).See Commonwealth v. Williams. 732 A.2d 1167, 1181 ( Pa. 1999).
"For an accomplice charge to be required, the facts need not require the inference that the witness was in fact an accomplice; they need only permit such an inference." Chmiel, 639 A.2d at 13 (citing Sisak, 259 A.2d 428). "If the evidence is sufficient to present a jury question with respect to whether the prosecution's witness was an accomplice, the defendant is entitled to an instruction as to the weight to be given to that witness's testimony." Id. (citing Commonwealth v. Mouzon, 318 A.2d 703 (Pa. 1974).
Mr. Perez testified at trial that he assisted Bronshtein in obtaining the gun that was later determined to be the murder weapon, and that he also assisted Bronshtein in stealing a car that was later determined to be used in the murder. (N.T. 2/24/92, 12-15, 19-20). Mr. Perez further testified that, at the time he provided this assistance, Bronshtein stated his intent to kill the victim. (N.T. 2/24/92, 10, 39, 56-58, 81). Bronshtein argues that the trial evidence was sufficient to permit the jury to infer Perez's complicity in the offense. As a result, he contends that he was entitled to a "corrupt and polluted source" charge with respect to Perez's testimony. We agree.
As previously noted, Bronshtein's claim of ineffective assistance of counsel is governed by Strickland, 466 U.S. 668. In the instant case, we find that trial counsel was ineffective for failing to request a corrupt source charge because such a charge would have been appropriate in light of the facts established at trial. Pursuant to Pennsylvania law, in order to raise the inference that Perez was an accomplice so as to warrant a corrupt source instruction, it was necessary for the evidence to establish that Perez knowingly and voluntarily aided or attempted to aid Bronshtein in planning or committing the crimes in question. 18 Pa. Cons. Stat. § 306(c)(1). As previously noted, Perez testified that he helped Bronshtein obtain the gun and steal the car which were used in the murder at issue. Moreover, Perez falls within none of the statutory exceptions to the definition of an accomplice. See 18 Pa. Cons. Stat. § 306(f). As such, the jury could reasonably have inferred that Perez was an accomplice.
Section 306, "Liability for the conduct of another; complicity" provides in pertinent part:
(c) Accomplice defined. A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it . . .
(f) Exceptions.-Unless otherwise provided by this title or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
(1) he is a victim of that offense;
(2) the offense is so defined that his conduct is inevitably incident to its commission; or
(3) he terminates his complicity prior to the commission of the offense and:
(i) wholly deprives it of effectiveness in the commission of the offense; or
(ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.
18 Pa. Cons. Stat. § 306.
Respondents argue that a corrupt source instruction would have been appropriate under Pennsylvania law only if a reasonable fact-finder could have concluded that Perez had the specific intent to kill. Although these circumstances may not establish that Perez had the specific intent to commit first degree murder, they do establish his involvement in the series of events culminating in the actual murder. We do not find that the inability to impute to Perez the specific intent for murder mandates the conclusion that the jury could not infer that Perez was an accomplice in the crimes leading to the murder. Indeed, in Commonwealth v. Chmiel, supra, the Pennsylvania Supreme Court determined that a Commonwealth witness was an accomplice so as to require a corrupt source charge in a prosecution for murder, robbery, burglary, and theft. In the Chmiel case, the witness did not participate in the crimes; however, he had suggested to the defendant that the victims' home was a source of fast money and had participated in the plans to commit the robbery. In a similar manner, Perez participated in the plans to obtain a gun and steal a car — both crimes which led to the robbery and murder of Jerry Slobotkin. Although Perez may not have participated in, or planned the murder of Mr. Slobotkin, there was sufficient evidence of Perez's involvement to create the inference that he was an accomplice to Bronshtein's crimes.
Respondents argue, however, that there is no merit to Bronshtein's claim that he was entitled to the corrupt source instruction because the instruction "would have undermined [Bronshtein's] defense that he was too high and drunk to form the specific intent to kill, for the instruction would have, in effect, told the jury that Wilson Perez acted in concert with [Bronshtein] in carefully planning the crime." See Resp't Answer, at 21-22, 27. We disagree. Bronshtein's defense at trial was one of degree rather than innocence. Specifically, Bronshtein argued that due to a drug-induced diminished capacity, he was incapable of forming specific intent. Perez's status as an accomplice to, at the very least, the auto theft and weapons violation that led to the murder does not contradict this defense. As Bronshtein points out, trial counsel's pertinent focus should have been on the credibility of Perez as a witness, striving to put forth to the jury the question of whether his testimony was influenced or prejudicial. See Pet'r Reply to Resp't Answer, at 21. Trial counsel failed to do so. Because trial counsel's failure to request a corrupt and polluted source charge was "outside the wide range of professionally competent assistance," we find that his performance was deficient. Strickland. 466 U.S. at 687, 690.
Trial counsel gave the following closing argument to the jury:
Ladies and Gentlemen, not all murder cases are whodunit [sic]. This isn't a whodunit [sic] case. Do you think anybody thought I was going to stand up here at case end and argue to you that somebody other than my client was responsible for Jerry's death? The only evidence in this case that's been presented was that Mr. Bronshtein was responsible for the death of Mr. Slobotkin . . . The Commonwealth could have put a quick end to your curiosity right at the beginning of this case by putting Detective Augustine on the stand at that time and reading the confession, if you will, of Mr. Bronshtein to you . . .
But murder cases come in all kinds of combinations. They come in all sizes, shapes and colors and hues. I told you at the beginning of the case that a murder case is unique in that it's not just a question of a person being innocent or guilty of murder, it's frequently a question of whether a person is guilty of murder in the first degree, murder in the second degree, murder in the third degree, guilty of voluntary manslaughter, guilty of involuntary manslaughter.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 11 n. 6 (citing N.T. 2/26/92, 85-87).
Having found that Bronshtein's counsel erred in failing to request a corrupt source charge, we turn next to the issue of whether the error was prejudicial. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland. 466 U.S. at 695. We find that Bronshtein has failed to establish that he was prejudiced by counsel's deficient performance because the weight of the evidence establishing Bronshtein's guilt makes it highly unlikely that the result of Bronshtein's trial would have been different if trial counsel had requested such an instruction. Bronshtein argues that Perez's testimony was "crucial to the outcome of the case," and that due to trial counsel's ineffective assistance, the jury never considered significant portions of Perez's credibility. See Pet'r Reply to Resp't Answer, at 22. In support thereof, Bronshtein points out that Perez's testimony connected Bronshtein to the gun later determined to the murder weapon; connected Bronshtein to the car involved in the murder; and provided the prosecution with evidence surrounding Bronshtein's purported intent. Id. However, Bronshtein's confession alone connects him to the murder weapon and the car involved in the murder. Furthermore, evidence of intent was evident from Bronshtein's own statements to police that, after he shot the victim four (4) times, he knew he had to kill the victim by shooting him in the head because he "knew that if I didn't kill him I would get locked up." (N.T. 2/25/92, 97). In addition, the preliminary hearing testimony from Bronshtein's father revealed that Bronshtein showed his father a gun prior to the murder and said he intended to kill somebody. In light of the foregoing evidence, we find that there is no reasonable probability that, even if the trial court had delivered a corrupt source instruction and the jury had disregarded Perez's testimony, the fact-finder would have had a reasonable doubt respecting guilt.
According to the state court, Bronshtein confession relates the following sequence of events:
[Bronshtein] came to Mr. Slobotkin's house in a stolen automobile, which he had stolen by forcing the door with a screwdriver and breaking the steering column. (N.T. 2/25/92, 96). The decedent invited him in. [Bronshtein] asked the decedent for the money which the decedent allegedly owed him for two [2] Rolex watches. The decedent replied that he did not have any money or the watches. [Bronshtein] then fired five [5] shots into the decedent's body. After he shot him, [Bronshtein] took a gold bracelet with the decedent's named on it from the decedent's wrist and took a jewelry box from the upstairs bedroom. (N.T. 2/25/92, 92-93).Commonwealth v. Bronshtein, April Term, 1991, at 6 (Common Pleas, March 29, 1993).During the statement, Bronshtein also admitted that the gun taken by Officer Nimchuk from Bronshtein's automobile on February 21, 1991, was a .38 revolver and the gun he used to shoot Mr. Slobotkin. Id. at 7 (citing N.T. 2/25/92, 95).
Because this is a layered claim of ineffective assistance of counsel, this court must next determine whether Bronshtein's right to effective assistance of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 393-94 (1985), was violated when the attorney who represented him at that stage failed to argue that trial counsel had rendered ineffective assistance with regard to this claim. In order to satisfy the first prong of the Strickland test, Bronshtein is required to show that appellate counsel's failure to raise the abovementioned argument on appeal fell outside "the wide range of reasonable professional assistance; that is, [he would have to] overcome the presumption that, under the circumstances, the challenged action `might be considered sound [appellate] strategy.'" Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999) (citingStrickland. 466 U.S. at 689). "One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise." Id.; see Smith v. Murray. 477 U.S. 527, 536 (1986) (stating that the "process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of appellate advocacy") (quoting Jones v. Barnes, 463 U.S. 745, 751-752 (1983)).
In this case, given the strength of the evidence against Bronshtein, we believe that it was reasonable for appellate counsel to conclude that it was unlikely that he could satisfy Strickland's prejudice test on this claim and that it was therefore strategically unwise to select this argument on direct appeal. Consequently, this court concludes that Bronshtein's appellate counsel did not render constitutionally ineffective assistance.
Accordingly, this claim must be denied.
2. Claim Two (2): Unlawful Car Search
In his second claim, Bronshtein argues that all prior counsel were ineffective for failing to properly raise and litigate the issue that the unlawful search of his car violated his rights under the Pennsylvania Constitution. The state court outlined the facts underlying this claim as follows:
[On February 21, 1991,] Officer Nimchuck . . . stopped [Bronshtein's] vehicle for an expired emissions sticker. As Officer Nimchuck approached the vehicle, he noticed several things which caused him to be suspicious. The back of [Bronshtein's] vehicle had a bumper sticker which read, "Protected By a .357 Magnum." Also, when Officer Nimchuck shined his flashlight into the vehicle, he noticed a brown binocular case sitting between the two [2] front seats.
When asked for a driver's license, [Bronshtein] identified himself as Antuan Bronshtein and was only able to produce a fishing license in the name of the owner of the vehicle, who loaned the jeep to [Bronshtein]. Officer Nimchuck then discovered, through police radio, that [Bronshtein] did not have a driver's license.
Officer Nimchuck returned to his vehicle and began writing two [2] tickets for driving without a license and the expired emissions sticker. Officer McCausland then pulled alongside Officer Nimchuck's vehicle and told him that [Bronshtein] was the man they wanted [on a car theft charge] and to take him into custody. Officer Nimchuck approached the car again, yet this time his flashlight revealed that the brown case he had spotted earlier had been concealed from his view. Officer Nimchuck then asked [Bronshtein], who was becoming increasingly belligerent, to step out of the car.
While Mr. Bronshtein was still uncuffed, Office[r] Nimchuck searched the passenger compartment of the vehicle and found the binocular case between the front seats under a large piece of plywood. Office[r] Nimchuck opened the case and discovered a handgun. [Bronshtein] was then handcuffed and placed under arrest.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 6-7.
"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, 466 U.S. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. In the instant case, we find Bronshtein's claim of ineffective assistance of counsel must be rejected because Bronshtein has failed to establish that he was prejudiced by counsel's alleged ineffectiveness. As the state court pointed out, Bronshtein's "voluntary confession, which was admitted at trial, negated any prejudicial effect of the allegedly tainted evidence, because the introduction of the murder weapon was cumulative of the evidence supplied in Bronshtein's statement." Commonwealth v. Bronshtein, No. 938 EDA 2000, at 10. Notably, at the time the police seized Bronshtein's gun, he was not a suspect in the homicide, and, as a result, he was released on bail for the theft and weapons charges for which he was initially arrested. It was only after he was released from custody that Bronshtein voluntarily turned himself into the police and confessed to murder. As a result, the confession was isolated in time and circumstance from that allegedly tainted search. In any event, as the state court pointed out, Bronshtein's defense at trial was "not one of denial but one of diminished capacity, in that he admitted the essential actions of the crime[,] but disputed his degree of culpability." Commonwealth v. Bronshtein, No. 938 EDA 2000, at 10-11. Consequently, even if the trial court had suppressed the murder weapon, there would be no doubt in the jury's mind that Bronshtein had committed the murder. Because any prejudice alleged from improper search was subsequently negated by Bronshtein's confession and his defense strategy, we find that counsel cannot be deemed ineffective for failing to pursue this claim.Buehl, 166 F.3d at 173-74. As a result, we conclude that habeas relief is not appropriate for this claim.
The court summarized the facts relevant to Bronshtein's confession as follows:
On February 26, 1991, [Bronshtein], who had gotten out of jail for the above weapon and vehicle offenses, called the Philadelphia Homicide Unit and stated that he was in South Carolina and wanted to talk to them and "straighten this all out." Detective Augustine and Detective Joseph Fischer made arrangement for [Bronshtein] to meet them at the Homicide Headquarters at 8th and Race Streets in the City of Philadelphia.
The detectives met [Bronshtein] the next day in the parking lot and brought him inside for questioning. After receiving proper constitutional warnings[, Bronshtein] gave lengthy inculpatory statement. In this inculpatory statement, [Bronshtein] admitted, inter alia, firing five [5] bullets into the victim, and then taking a gold bracelet and a jewelry box.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 10.
Bronshtein argues that the alleged fruits of the illegal search were not limited to the gun under Pennsylvania Constitutional jurisprudence. See Pet. at 17-18; Pet'r Reply to Resp't Answer, at 21-22. Specifically, he contends that as a result of the seizure of the gun, the prosecution located and received information from Wilson and Carlos Perez and that these witnesses' testimony should also have been excluded as "fruit of the illegal search." Id. Bronshtein fails, however, to provide any explanation for why he believes the search of his car and subsequent seizure of the murder weapon led to the discovery of Wilson and Carlos Perez. Id. To the extent that Bronshtein would argue that the discovery of the murder weapon led to his confession which, in turn, led to the discovery of these witnesses, we note that this argument must be dismissed in light of our earlier conclusion that the confession was isolated in time and circumstance from that allegedly tainted search.
3. Claim Three: Lack of Specific Intent
In his third claim, Bronshtein argues that all prior counsel were ineffective for failing to properly raise and litigate the issue that trial counsel provided ineffective assistance by failing to adequately investigate, prepare and present the issue of Bronshtein's lack of specific intent to commit first degree murder.
Respondents contend that claim (3) is not cognizable on habeas review because it is presented solely as a claim of ineffective assistance of PCRA counsel — a claim non-cognizable on habeas review. See 28 U.S.C. § 2254(D: Pennsylvania v. Finley, 481 U.S. 551, 558 (1987) (Constitution does not dictate standard for attorney effectiveness in post-conviction collateral attack). Contrary to Respondents assertion, however, our review of Bronshtein's habeas petition and supporting memorandum of law indicates that Bronshtein did indeed present this claim as one of ineffective assistance of trial and appellate counsel. See Pet. at 20-25; Pet'r Mem. of Law, at 25-28. Although Bronshtein also made the general allegation that PCRA counsel was equally ineffective for failing to investigate and present this claim during Bronshtein's PCRA proceedings,see Pet'r Mem. of Law, at 28, we do not find this passing reference fatal to his entire claim. Consequently, we will proceed to review the merits of Bronshtein's claim of ineffective assistance of trial and appellate counsel.
As previously noted, trial counsel relied on a diminished capacity defense in arguing that Bronshtein lacked the requisite specific intent to commit first degree murder. In support thereof, trial counsel presented Dr. John Bjornson as an expert witness to testify regarding the general effects of drug and alcohol use on an individual's cognitive thinking. Bronshtein alleges, however, that trial counsel failed to adequately investigate and prepare his diminished capacity defense in that counsel failed to request a thorough mental evaluation for him or provide Dr. Bjornson with appropriate and existing collateral data. See Pet., at 23. Bronshtein also argues that trial counsel was ineffective in failing to investigate other evidence and witnesses which would have further supported his diminished capacity defense. See Pet., at 21.
In dismissing a related claim on direct appeal, namely that the Commonwealth failed to sufficiently rebut Bronshtein's diminished capacity defense, the state court found:
Wilson Perez testified that on the night before the shooting, he and [Bronshtein] smoked crack cocaine and shot heroin. Mr. Perez testified that he and [Bronshtein] had consumed the same amount of drugs and the effect of the drugs the two [2] did that night wore off around 4:00 a.m. He further testified that on the morning of February 19, 1991, [Bronshtein] looked and acted sober and the effects of the drugs had worn off. There was further testimony that [Bronshtein] mentioned to Wilson Perez days before the shooting that he intended to kill a man who owed him money. The preliminary hearing testimony of Josef Bronshtein revealed that [Bronshtein] showed his father a gun and said he intended to kill somebody. Thus, there was sufficient evidence for the factfinder to find that [Bronshtein] had formed a specific intent to kill Jerry Slobotkin and that he had done so willfully, deliberately, and with premeditation. Therefore, this claim fails.Commonwealth v. Bronshtein, No. 938 EDA 2000, at 12.
"In order to resolve the ineffectiveness claim, we must consider [Bronshtein's] counsel's conduct within the context of Pennsylvania law regarding the defense of diminished capacity." Zettlemoyer v. Fulcomer, 923 F.2d 284, 295 (3d Cir. 1991). "Pennsylvania recognizes the defense to show that a defendant did not have the capacity to possess the state of mind required by the legislature to commit a particular degree of the crime charged." Id. (citing Commonwealth v. Walzack, 360 A.2d 914, 919-20 (Pa. 1976)). A defendant who relies on evidence of drug consumption must show that he was "overwhelmed by an intoxicant to the point of losing his rationality, faculties, or sensibilities so as to negate or lower the specific intent to kill."Szuchon, 273 F.3d at 320 (citing Commonwealth v. Edmiston, 634 A.2d 1078, 1085 (Pa. 1993)). "Evidence of diminished capacity is admissible at the guilt phase of trial and jury finding diminished capacity may not find the defendant guilty of first degree murder, but it may find the defendant guilty of third degree murder." Zettlemoyer, 923 F.2d at 295. Under Pennsylvania case law "to prove diminished capacity, only expert testimony on how the mental disorder affected the cognitive functions necessary to form the specific intent is relevant and admissible."Id. (citing Commonwealth v. Terry. 521 A.2d 398, 404 (Pa.), cert. denied, 482 U.S. 920 (1987); Commonwealth v. Davis, 479 A.2d 1077, 1080 (Pa.Super. 1984)). Evidence of specific intent to kill may disprove the defense of diminished capacity.Id. at 295-96 (citing Commonwealth v. Tempest. 437 A.2d 952, 955 (Pa. 1981)).
As previously stated, Bronshtein argues that his expert witness, Dr. Bjornson, was not adequately prepared for trial; however, our review of the trial transcript indicates that the doctor was fully prepared to testify regarding the scope of his testimony — i.e., the general effects of drugs and alcohol on an individual's cognitive functions. In addition to this testimony, Dr. Bjornson was fully capable of responding to a hypothetical presented by defense counsel outlining the specific drugs and alcohol Bronshtein had taken during the relevant time period on the night in question. (N.T. 2/26/92, 22-23). In response to defense counsel's hypothetical, the doctor opined that the effects of withdrawal from the drugs ingested would impair an individual, such as Bronshtein's, ability to think through the consequences of his actions for one (1) to two (2) days. (N.T. 2/26/92, 25-27).
Defense counsel admitted during a conference with the trial judge that Dr. Bjornson did not interview Bronshtein and he was not called "to render his opinion with regard to [Bronshtein's] state of mind at the time of the killing." (N.T. 2/26/92, 4). Indeed, defense counsel specifically stated that the expert would confine his testimony to "the effects of crack introduced into the bloodstream, the effect of heroin in the bloodstream, what that produces physiologically, what happens when someone begins to come down from those highs, [and] what is the effect upon the cognitive processes." (N.T. 2/26/92, 4-5).
Defense counsel presented the following hypothetical:
Doctor, I want you to assume that my client along with another individual beginning about 9:00 p.m. on a given evening and continuing on until approximately 5 o'clock in the morning together evenly used 40 vials of crack over that period of time by ingesting that crack into their system by virtue of smoking that crack in a pipe on a continuous basis, and that during that same period of time they also utilized four [4] bags of heroin and that during that same period of time they absorbed two [2] six-[6-] packs of beer.
First, could you comment, sir, on the likely effect of that much crack being used on the length of the high produced?
(N.T. 2/26/92, 22-23).
Defense counsel stressed the importance of this testimony in his closing argument. (N.T. 2/26/92, 90-94).
Bronshtein argues, however, that he was prejudiced by counsel's failure to have Dr. Bjornson evaluate him or to provide the doctor with other "collateral information" about his state of mind at the time of the incident because the prosecution was able to challenge Dr. Bjornson's reliability and credibility as an expert witness on these grounds.See Pet'r Mem. of Law, at 27-28; see also (N.T. 2/26/92, 29-30, 131-132). As a result thereof, he contends that his defense was significantly compromised, thus depriving him of a fair trial with a reliable result. We disagree. We note that on cross-examination Dr. Bjornson, while acknowledging that he had never specifically examined Bronshtein, was steadfast in his assertion that his general analysis on the detrimental and lasting effects of drugs and alcohol on cognitive functions applied to most people. (N.T. 2/26/92, 29-31). In any event, Bronshtein's prejudice argument fails because we conclude that there was sufficient evidence of specific intent to disprove his defense of diminished capacity. As previously noted, evidence of intent was established from the preliminary hearing testimony from Bronshtein's father which revealed that Bronshtein had shown his father a gun prior to the murder and said he intended to kill somebody. In addition, evidence of specific intent is derived from Bronshtein's own statements to police that, after he shot the victim four (4) times, he knew he had to kill the victim by shooting him in the head because he "knew that if I didn't kill him I would get locked up." (N.T. 2/25/92, 97). In light of the this evidence demonstrating Bronshtein's intent to kill the victim which specifically disproves the defense of diminished capacity, we conclude that Bronshtein was not prejudiced by trial counsel's alleged failure to adequately prepare Dr. Bjornson for his expert testimony on this issue. See Zettlemoyer. 923 F.2d at 297-298; see generally Szuchon, 273 F.3d at 319-20 (no prejudice under Strickland for failure to object to expert testimony discounting petitioner's claim of diminished capacity when there was overwhelming evidence of specific intent to kill). As a result, appellate counsel cannot be deemed ineffective for failing to present this issue, and this aspect of Bronshtein's claim must be denied. Strickland. 466 U.S. at 687.
Although we also note that Bronshtein argues that trial counsel was ineffective in failing to otherwise investigate his claim of diminished capacity, we find that Bronshtein has failed to adequately support this claim in either the state courts or in this court. Significantly, in the instant petition, Bronshtein has merely sets forth vague allegations regarding evidence and witnesses who would have supported his diminished capacity defense without offering any proof of such evidence, or whether this information was available at the time of trial. For example, Bronshtein argues that "had counsel conducted even a cursory investigation, he would have been able to locate and present other witnesses supporting [Bronshtein's] drug and alcohol addiction as well as [Bronshtein's] substantial drug use at the time of the incident."See Pet., at 21. Despite this assertion, Bronshtein fails to provide any support for who these "other witnesses" are, what they would have testified to at trial, or if they were even available for trial. Bronshtein "cannot meet his burden to show that counsel made errors so serious that his representation fell below an objective standard of reasonableness based on vague and conclusory allegations that some unspecified and speculative testimony might have established his defense." Zettlemoyer, 923 F.2d at 298 (dismissing petitioner's claim that counsel failed to call witnesses who might have presented testimony crucial to his defense of diminished capacity when petitioner neither alleged nor offered evidence that any such testimony was forthcoming or available upon reasonable investigation).
In his Reply to Respondent's Answer, Bronshtein has attached an undated affidavit from Dr. Edward J. Dougherty, a psychologist who reviewed records related to Bronshtein's trial and previous psychological evaluations. In his report, Dr. Dougherty concludes that at the time of the victim's murder, "Bronshtein suffered from the effects of cocaine and heroine as well as diagnosed Personality Disorders to such an extent, that he could not form the specific intent to kill Jerry Slobotkin."See Pet'r Reply to Resp't Answer, Attachment. We find that the submission of this affidavit does not provide significant evidence of counsel's deficient assistance because it simply provides another variation of expert testimony regarding Bronshtein's cognitive functions at the time of the incident.
Bronshtein contends, however, that he has not provided specifics regarding this claim because he did not have the opportunity to explore the claim on state appeal. Accordingly, he now requests an evidentiary hearing to develop the issue. We find, however, that the relevant law dictates that this request be denied. See 28 U.S.C. § 2254(e)(2). Section 2254(e)(2) limits the circumstances under which a court may order an evidentiary hearing to develop facts underlying a claim made by a petitioner. This section expressly applies to preclude an evidentiary hearing in situations where flawed fact-finding is somehow attributable to the petitioner. See Love v. Morton, 112 F.3d 131, 136 (3d Cir. 1997). However, "a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). "Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Id. at 435.
28 U.S.C. § 2254(e)(2) provides:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.
In the instant case, Bronshtein alleges that he was precluded from developing the facts underlying this claim due to the unique procedural history of this case. Specifically, he points out that he filed an amended PCRA petition in the state court presenting, inter alia, the instant claim and also seeking an opportunity to amend the pleading at a later date and the opportunity for an evidentiary hearing.See Pet'r Reply to Resp't Answer, at 25-26. After the PCRA court summarily dismissed the PCRA petition, he appealed to the Pennsylvania Superior Court requesting reversal of the procedural dismissal, and grant of relief on his underlying claims or, in the alternative, remand for an evidentiary hearing. Id. at 26 (citing Initial Brief, at 40). After ultimately determining that there was no procedural bar to Bronshtein's claims, the Superior Court proceeded to review the merits of his claims without ordering an evidentiary hearing. See Pet'r Mem. of Law, at 29. In light thereof, Bronshtein alleges that the state court denied him the opportunity to develop the facts underlying the instant claim.
Despite Bronshtein's arguments to the contrary, we conclude that there is no justifiable reason for Bronshtein and his counsel's failure to develop this claim before the state courts and in this court. While it is true that Bronshtein argued in his appeal to the state court that his claims were not procedurally barred, that appeal also presented his substantive claims for relief supported by relevant caselaw and trial evidence. Despite a catch-all provision requesting an evidentiary hearing on Bronshtein's "underlying claims for relief," Bronshtein did not specify to the state court what evidence would be developed at such a hearing or what witnesses may be available or willing to testify. Consequently, the state courts were left with the vague assertion that further development of Bronshtein's claims would entitle him to appellate relief. Upon review thereof, the state courts declined to order an evidentiary hearing. Based on our review of the procedural history of this case, we conclude Bronshtein was not prevented from developing this claim before the state court, but rather that his lack of diligence resulted in the failure to fully develop the issue. The focus of much of Bronshtein's state court appeals was on procedural matters; therefore, he necessarily was forced to spend a great deal of time on such issues. Nevertheless, nothing in his procedural history precluded him from adequately briefing the substantive claims he also presented to the courts, or at the minimum, of providing some support for the allegations presented in the instant claim. Because Bronshtein has not shown that he was denied the opportunity to develop the factual basis for this claim in state court proceedings, he is not entitled to an evidentiary hearing in federal court. See Williams. 529 U.S. at 437 ("[f]or state courts to have their rightful opportunity to adjudicate federal rights, the prisoner must be diligent in developing the record . . . [i]f the prisoner fails to do so, himself . . . contributing to the absence of a full and fair adjudication in state court, § 2254(e)(2) prohibits an evidentiary hearing to develop the relevant claims in federal court"). Consequently, this aspect of his claim must be denied.
We note that Bronshtein was represented by the same counsel in the instant petition and in his most recent, counseled PCRA appeal.
Notably, the state courts' denial of the instant claim was based on Bronshtein's "failure to establish that there was evidence to present in support of this claim." Commonwealth v. Bronshtein. No. 938 EDA 2000, at 13.
In a similar manner, Bronshtein has presented the same bald assertions to this court without any evidence in support thereof.See Zettlemoyer, 923 F.2d at 298 n. 12, 300-03 (petitioner is not entitled to a hearing on the question of whether testimony was available based on bald conclusions and conclusory allegations); see Mayberry v. Petsock, 821 F.2d 179, 186 (3d Cir. 1987), cert. denied, 484 U.S. 946 (1987) ("discovery and an evidentiary hearing should not be available to a habeas petitioner who claims relief . . . unless the petitioner sets forth facts with sufficient specificity that the District Court may be able, by examination of the allegations and the response, if any, to determine if further proceedings are appropriate").
4. Claim Six (6): Motive to Kill the Victim
In his sixth claim, Bronshtein contends that trial counsel was ineffective for failing to properly investigate or present evidence that others had a motive to kill the victim. Specifically, he alleges that counsel failed to investigate the victim's "underworld connections, or the potentiality of others with a motive to kill him." See Pet., at 35-36; Pet'r Mem. of Law, at 48.
We find this claim meritless. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691. "In particular, what investigation decisions are reasonable depends critically upon such information." Id. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.
In the instant claim, Bronshtein fails to offer any evidence that someone else was responsible for killing the victim. Moreover, he also fails to specify what type of investigation trial counsel should have engaged in, or what foundation there was for such an investigation. As the state court pointed out, "[i]t is not ineffectiveness for trial counsel to refuse to pursue phantom defenses." Commonwealth v. Bronshtein, No. 938 EDA 2000, at 6. In any event, Bronshtein confessed to murdering the victim and led the police to hidden evidence. Consequently, it was not unreasonable for trial counsel to fail to pursue an investigation into others who may have had motive to kill the victim. As a result, we conclude that counsel did not render constitutionally ineffective assistance in failing to pursue this investigation. It follows as well, therefore, that appellate counsel cannot be deemed ineffective for failing to pursue this meritless claim.
5. Claim Seven (7): Cumulative Effect of Errors
In his final claim, Bronshtein contends that even if we do not find the errors in his trial individually sufficient to grant the writ of habeas corpus, the cumulative effect of the errors at his trial resulted in a denial of due process. See Pet'r Mem. of Law, at 49-51. The Third Circuit addressed this issue in the habeas context inUnited States ex rel. Sullivan v. Cuyler, 631 F.2d 14, 17(3d Cir. 1980), "recognizing that errors that individually do not warrant a new trial may do so when combined." Marshall v. Hendricks, 307 F.3d 36, 94 (3d Cir. 2002). cert. denied, 1234 S.Ct. 1492 (2003);Sullivan, 631 F.2d at 17 ("the cumulative effect of the alleged errors may violate due process, requiring the grant of the writ, whereas any one alleged error considered alone may be deemed harmless").
Here, even were we to combine all the claimed errors alleged in the instant case, "given the quantity and quality of the totality of the evidence presented to the jury" over the course of Bronshtein's trial, we could not conclude that the cumulative effect of the errors alleged by Bronshtein resulted in a denial of due process. See generally Marshall, 307 F.3d at 94. As a result, this claim must be denied.
IV. Certificate of Appealability
Under 28 U.S.C. § 2253(c)(1)(A), to appeal a final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, a petitioner must first obtain a certificate of appealability from a district or circuit court judge.See United States v. Cepero, 224 F.3d 256, 259 (3d Cir. 2000) (a district court judge is authorized to certify issues for appeal) (citing 28 U.S.C. § 2253(c)(1)). The certificate may issue "only if the applicant has made a substantial showing of the denial of a constitutional right," and the showing must be made for each issue for which the certificate is sought. 28 U.S.C. § 2253(c)(2), (3): see also Slack v. McDaniel, 529 U.S. 473, 483 (2000).
In the instant case, we recognize that learned jurists may disagree with our recommendation on the issue of whether the Pennsylvania standard of review utilized by the state court in review of Petitioner's claims ineffective assistance of counsel comports with the federal standard for ineffectiveness set forth in Strickland v. Washington. 466 U.S. 668 (1984). See Easlev v. Vaughn, 1998 WL 196401, at *2 (E.D. Pa. April 22, 1998) (certifying issue for appeal "because it is possible that other reasonable jurists could debate over whether the issue deserves further proceedings"). Consequently, we recommend that this issue be certified for appeal.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DENIED WITHOUT AN EVIDENTIARY HEARING.
IT IS FURTHER RECOMMENDED that a certificate of appealability shall issue with regard to the following issue: whether the Pennsylvania standard of review utilized by the state court in review of Petitioner's claims ineffective assistance of counsel comports with the federal standard for ineffectiveness set forth in Strickland v. Washington. 466 U.S. 668 (1984).
ORDER
AND NOW, this ___ day of, _______, 2003, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections filed thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DENIED WITHOUT AN EVIDENTIARY HEARING.
3. A certificate of appealability shall issue with regard to the following issue: whether the Pennsylvania standard of review utilized by the state court in review of Petitioner's claims ineffective assistance of counsel comports with the federal standard for ineffectiveness set forth in Strickland v. Washington. 466 U.S. 668 (1984).