Mitchell v. Wenerowhicz

MWANDISHI G. MITCHELL, Petitioner, v. MICHAEL WENEROWHICZ, Respondent

CIVIL NO. 1:CV-11-1169

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: June 6, 2014

(Judge Kane)

MEMORANDUM

In this petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, Mwandishi G. Mitchell ("Petitioner") challenges his 2004 conviction and sentence in the Court of Common Pleas of Dauphin County, Pennsylvania on charges of Second Degree Murder, Criminal Conspiracy, Unlawful Restraint and Possession of a Firearm without a License. He was sentenced, following a jury trial, to life imprisonment followed by an aggregate consecutive sentence of 75 to 300 months in prison. He is currently confined at the State Correctional Institution at Graterford, Pennsylvania. The petition is ripe for consideration and, for the reasons that follow, will be denied.

I. Background

The relevant factual background of this case, as extracted from the May 1, 2006 opinion of the Pennsylvania Superior Court denying Mitchell's direct appeal, is as follows:

The charges filed in the present case stem from the homicide of Haydee Freytes, a/k/a "Cachi," an apparently drug addicted user who sometimes sold drugs and also sometimes prostituted herself for drugs or money to acquire drugs. The homicide occurred in the early morning hours of November 1, 2000, in the Italian Lake neighborhood in Harrisburg, Pennsylvania. Police responded to a call placed by Joseph Dudick, Jr., who resided in the neighborhood near the actual lake for which the neighborhood is named. In his call to the police, Dudick indicated that he was awakened by sounds he believed were gunshots. Lieutenant Annette Books of the Harrisburg Bureau of Police responded to the call just a few minutes later and found Ms. Freytes dead of apparent gunshot wounds. Dr.Wayne Ross, a forensic pathologist, performed an autopsy upon Ms. Freytes' body and confirmed that she died of a gunshot would to the head. Ms. Freytes had also suffered a gunshot wound to the hand, and had neck injuries consistent with having been dragged by the neck. Additionally, cocaine and morphine were found in Ms. Freytes' bloodstream.

Despite an intensive investigation, charges were not filed against Appellant and his co-defendant, Glenn Taylor, until April 4, 2003. Appellant and Taylor were tried in a jury trial commencing on December 6, 2004, and ending on December 15, 2004, with a guilty verdict on charges of second degree murder, kidnapping, unlawful restraint, criminal conspiracy to commit kidnapping, criminal conspiracy to commit unlawful restraint and carrying a firearm without a license. Appellant was acquitted of first degree murder. At Appellalnt's request, sentence was imposed immediately after the verdict was read. Appellant promptly filed a post-sentence motion, which was denied on April 21, 2005. The present, timely appeal followed.

At trial, the Commonwealth proceeded under a theory that the victim was killed to "settle a score" between her and the two co-defendants after the victim had cheated the two out of drug money. According to testimony introduced at trial, Taylor supplied drugs to Appellant, who had individuals under him selling drugs on the street. Ms. Freytes had accepted drugs from Appellant to sell but, ostensibly, used the drugs herself without paying for them. Reportedly, she then boasted about "ripping off" Appellant to other individuals in that circle of life. The Commonwealth's key witness at trial was Rose Shroy who, like the victim, was also a drug user and prostitute. According to Shroy, at approximately 1:00 a.m. on November 1, 2000, she was standing on the corner of Third and Reilly Streets in Harrisburg when a station wagon pulled up to the corner. Appellant was driving the vehicle and Taylor was situated in the passenger seat. Taylor's girlfriend and son were sitting in the back seat. Taylor then displayed some cocaine and money and asked Shroy if she "wanted to party." Shroy accepted the invitation and climbed into the back seat of the station wagon after which either Taylor or Appellant said they wanted another girl and asked her where they could find her friend "Cachi." Shroy indicated that Ms. Freytes was hanging out near Third and Seneca Streets. Appellant then drove to the corner of Third and Seneca whereupon Shroy called out to Ms. Freytes and got her to come over and get into the front seat of the car. According to Shroy, Appellant was wearing a black "hoodie" sweatshirt with the hood pulled up to obscure his face so that Ms. Freytes would not recognize him prior to entering the vehicle. When she realized that Appellant was the person driving the vehicle, she said "Oh my God," after which Appellant stated "that's right, bitch" and immediately struck Ms. Freytes in the face with the back of his hand. Appellant then drew a gun and drove off in the direction of Italian Lake.

Upon arriving at Italian Lake, Taylor pulled Ms. Freytes out of the car at which time Appellant said that he could take over. Appellant then dragged Ms. Freytes toward the lake. Taylor's son then asked Taylor what he should do with Shroy. Fearing that she was about to be harmed or killed, Shroy kicked the car door open, exited the vehicle and ran away. As she ran from the vehicle, Shroy heard a gunshot followed, approximately 30 seconds later, by a set of gunshots.

(Doc. 16-8 at 17-20, Commonwealth v. Mitchell, No. 914 MDA 2005 (Pa. Super. May 1, 2006)).¹

On December 15, 2004, the jury convicted Petitioner of second degree murder and related offenses stemming from the November 1, 2000 murder of Haydee Freytes. The trial judge imposed a sentence of life in prison. Post-sentence motions were denied on April 21, 2005. New counsel was appointed for Petitioner's direct appeal. On May 1, 2006, the judgment of sentence was affirmed. (Id.) On November 8, 2006, the Pennsylvania Supreme Court denied a petition for allowance of appeal. (Doc. No. 16-9 at 2.)

On May 3, 2007, Petitioner filed a timely PCRA petition and counsel was appointed. The following grounds were raised in the petition:

(1) Ineffectiveness of trial counsel for failing to attack the credibility of Commonwealth witness Rose Shroy;

(2) Ineffectiveness of trial counsel for failing to request DNA testing;

(3) Ineffectiveness of trial counsel for failing to object to an Allen charge delivered to the jury after the jury advised the trial judge on the third day of deliberations that it had not reached a verdict but was making progress;

(4) Ineffective assistance of direct appeal counsel for failure to raisethe above three grounds on direct appeal.

(Doc. No. 16-9, Ex. L.) On December 31, 2008, the PCRA court denied collateral relief. (Doc. No. 16-11 at 16-18.) This decision was affirmed by the Pennsylvania Superior Court on September 14, 2010. (Doc. No. 16-13, Ex. T.) On May 31, 2011, a petition for allowance of appeal was denied by the Supreme Court of Pennsylvania. (Id., Ex. V.)

The instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed in this Court on June 20, 2011 wherein Petitioner raises the following three grounds:

(1) Ineffective trial counsel for failing to have exculpatory hair fragment found in victim's palm DNA tested to identify perpetrator(s) and for failing to have saliva found at scene and semen samples compared against State's DNA Database;

(2) Ineffective trial counsel in failing to cross-examine Commonwealth star witness Rose Shroy regarding her preliminary hearing testimony which was direct opposite of testimony she gave at trial; and

(3) Ineffective trial counsel in failing to object when co-defendant's counsel filed a motion to have a supplemental "Allen Charge" read to jury after 3 days of deliberation.

(Doc. No. 1, Pet. at 5-7.)

II. Standard of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-8 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v.Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petition has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). Respondent concedes that the grounds raised in the petition were exhausted by Petitioner when he raised them in his PCRA petition, and pursued the issues on appeal to the Pennsylvania Superior and Supreme Courts.

Once a court has determined that the exhaustion requirement is met, and therefore review of the issues presented in a habeas petition on the merits is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a...