Showers v. Beard

• Decision Date: 28 March 2011
• Docket Number: No. 09–2185.,09–2185.
• Citation: 635 F.3d 625
• Parties: Judy Ann SHOWERSv.Jeffrey BEARD, Commissioner, Pennsylvania Department of Corrections; Warden Martin Dragovich; Northumberland District Attorney, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

635 F.3d 625

Judy Ann SHOWERS

v.Jeffrey BEARD, Commissioner, Pennsylvania Department of Corrections; Warden Martin Dragovich; Northumberland District Attorney, Appellants.

No. 09–2185.

United States Court of Appeals, Third Circuit.

Argued Dec. 13, 2010.Filed: March 28, 2011.

William C. Cole, Office of District Attorney, Sunbury, PA, Amy Zapp (Argued), Office of Attorney General of Pennsylvania, Harrisburg, PA, for Appellants.Caroline M. Roberto (Argued), Pittsburgh, PA, for Appellee.Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellants—Pennsylvania Department of Correction Commissioner Jeffrey Beard, SCI–Muncy Warden Martin Dragovich, and the Northumberland District Attorney (hereinafter “Commonwealth”)—appeal the District Court's order granting the petition for a writ of habeas corpus sought by Appellee Judy Ann Showers under 28 U.S.C. § 2254.

I.

On March 23, 1994, a jury convicted Showers of first degree murder of her husband. Showers was represented by Michael Rudinski at the trial where it was established that the cause of her husband's death was an orally consumed lethal dose of liquid morphine, otherwise referred to by the brand name Roxanol.

The Commonwealth argued that Showers surreptitiously administered the lethal dose. It relied on circumstantial evidence and the testimony of its expert witness Dr. Isidore Mihalakis, M.D., a forensic pathologist, that Roxanol is capable of being masked. The defense argued that the deceased committed suicide. Showers was sentenced to life imprisonment without parole.

Showers retained William Costopoulos as her appellate counsel who timely filed a direct appeal to the Pennsylvania Superior Court. Costopoulos raised several issues but did not argue that trial counsel was ineffective for failing to call an expert witness in rebuttal. The Superior Court affirmed. Commonwealth v. Showers, 452 Pa.Super. 135, 681 A.2d 746, 757 (1996) (“ Showers I ”). ¹

Showers retained new counsel, Caroline Roberto, to file a petition for collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541 et seq. In the petition, Showers claimed for the first time ineffective assistance of both her trial and appellate counsel. She asserted that her trial counsel failed to present rebuttal expert testimony regarding the properties of Roxanol, and that her appellate counsel was ineffective for failing to raise the same on direct appeal.

At the evidentiary hearing on the PCRA petition, Showers presented the testimony of Dr. Cyril Wecht, M.D., J.D., then Coroner of Allegheny County, and a nationally recognized and acclaimed forensic pathologist. Dr. Wecht testified, to a reasonable degree of medical certainty, that the lethal dose could not have been administered surreptitiously or forcefully and that Showers' husband likely committed suicide. Dr. Wecht also testified that he would have testified the same if he had been called as a witness during the jury trial in 1994.

Showers also presented the testimony of Dr. Harry Doyle, a psychiatrist retained by the defense at the time of the trial to investigate the state of mind of Showers' husband. Dr. Doyle determined that the central question was whether the morphine was taken voluntarily or surreptitiously, but did not have the necessary scientific background to testify regarding the properties of Roxanol. He therefore advised Rudinski to secure a qualified expert to address the impossibility of disguising Roxanol, and provided him with contact information for three potential witnesses. Rudinski did not contact any of those experts.

At the PCRA hearing, Rudinski testified that he believed that Helen Wolfe, a lay witness friend, would be the most reliable witness regarding whether Roxanol can be disguised.² Rudinski testified that he did not cross-examine Dr. Mihalakis about the absence of a masking substance because he “recall[ed]” that there was some other type of fluid found in the deceased's stomach. App. at 250. Rudinski explained that he did not ask Dr. Mihalakis additional questions regarding the lack of any evidence of force because it “can be very dangerous” to ask questions for which “you don't know all of the answers.” App. at 251.

Costopoulos, Showers' appellate counsel, testified that he relied solely on the record, and did not conduct an independent investigation to determine whether to pursue the issue of the failure of trial counsel to call a contrary expert. App. at 273. Significantly, he stated that “if [he] had to do it over again, having lost on direct appeal with the issues [he] had raised, [he] absolutely would have raised [trial counsel's failure to call an expert on rebuttal].” App. at 274.

The court denied the PCRA petition, finding that Rudinski had made diligent efforts to locate an expert witness and that he vigorously cross-examined Dr. Mihalakis. Showers appealed to the Pennsylvania Superior Court. A two-judge majority of the Superior Court affirmed the PCRA judgment. With respect to Showers' argument regarding the failure to call an expert witness, the Superior Court found that Rudinski adequately addressed the issue in his cross-examination of Dr. Mihalakis and in his closing argument. Commonwealth v. Showers, 782 A.2d 1010, 1021 (Pa.Super.Ct.2001) (“ Showers II ”). With respect to appellate counsel, the Superior Court found that “[b]ased upon [ ] Costopoulos' articulation of reasons for not raising certain issues [on appeal],” Showers did not meet her burden of proof “to show that his course of action did not have a rational, strategic, or tactical basis.” Id. at 1019 (quotation omitted). One member of the Superior Court panel filed a vigorous dissent. Id. at 1023–24 (Tamilia, J., dissenting).³

Showers timely filed the instant petition for writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) seeking a new trial. Showers alleges that her trial counsel failed to present rebuttal expert testimony from an available forensic pathologist, and appellate counsel failed to preserve the issue. The District Court granted Showers' petition on this ground. Showers v. Beard, 586 F.Supp.2d 310 (M.D.Pa.2008) (“ Showers III ”). The Commonwealth's appeal followed.

II.

The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review of the District Court's decision is plenary. See Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir.2010). Under AEDPA, where, as here, a habeas petitioner's claims were adjudicated on the merits in state court, our review is limited to determining whether the state court decision was contrary to or involved an unreasonable application of Supreme Court precedent or an unreasonable determination of the facts in light of the evidence presented in the state court. See 28 U.S.C. § 2254(d). Our review is “doubly deferential:” the state court was obligated to conduct deferential review of counsel's performance and we must give deference to the state court rulings under AEDPA. Knowles v. Mirzayance, ––– U.S. ––––, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009).

As a preliminary matter, we reject the Commonwealth's objections to our consideration of this appeal. We conclude that Showers preserved the instant claims and the Commonwealth has waived its procedural default argument, raising this issue for the first time after over a decade of post conviction litigation.⁴ See Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478, 139 L.Ed.2d 444 (1997) (in habeas context, procedural default is normally a defense the Commonwealth is obligated to raise).

Showers properly layered her claims in the collateral proceedings. ⁵ Under Pennsylvania law, where ineffectiveness claims are properly layered, there is no waiver and no procedural default. Siehl v. Grace, 561 F.3d 189, 193–94 n. 3 (3d Cir.2009) (If the claims as to trial counsel have merit, a similar determination will likely be made regarding claims as to appellate counsel, “in which event there would be no waiver under Pennsylvania's layering of ineffective assistance line of cases,” and “no procedural default by virtue of the doctrine of cause and prejudice.”) (quotation omitted). As a result, in reviewing the Superior Court's decision, the District Court properly evaluated trial counsel's performance on the merits as a necessary predicate for evaluating appellate counsel's performance. See Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003) (“[W]hen a court is faced with a ‘layered’ claim of ineffective assistance of counsel, the only viable ineffectiveness claim is that related to the most recent counsel, appellate counsel.”). We thus turn to the merits.

Coincidentally, shortly after this case was argued before this court, the Supreme Court issued an opinion in a case where a petitioner convicted of murder in a state court sought a writ of habeas corpus on the ground of ineffective assistance. Because of what may appear to be facial similarity between that decision, Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), and the one before us, we asked the parties to file supplemental memoranda regarding the effect of that decision on the issues in this case.

Richter was convicted of the murder of Klein largely on the testimony of Johnson, a drug dealer with whom Richter and Klein had been smoking marijuana on the day at issue. Johnson testified that he and Klein were shot by Richter and Branscombe in Johnson's apartment. Richter, 131 S.Ct. at 781–82. Richter's defense attorney sought to show that Klein was shot in the bedroom doorway but the prosecution introduced expert testimony based on Klein's blood pattern that Klein was shot near the living room couch. Although Richter's attorney called seven witnesses, the jury found Richter guilty. Id. at 782. The California Supreme Court rejected Richter's Strickland claims by...