Bernard v. Overmyer

• Decision Date: 15 June 2016
• Docket Number: Civil Action No. 14 - 115
• Parties: JAMES MICHAEL BERNARD, Petitioner, v. MICHAEL D. OVERMYER and KATHLEEN KANE, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

JAMES MICHAEL BERNARD, Petitioner, v. MICHAEL D. OVERMYER and KATHLEEN KANE, Respondents.

Civil Action No. 14 - 115

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

June 15, 2016

Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Before this Court is a Petition for Writ of Habeas Corpus filed by Petitioner James Michael Bernard ("Petitioner") pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his judgment of sentence of life in prison without the possibility of parole, entered on March 22, 2007, in the Court of Common Pleas of Allegheny County, Criminal Division, docketed at Criminal Case Number CP-02-CR-0010022-2005, following his conviction for two counts of first-degree murder. For the following reasons, Petitioner's application for federal habeas corpus relief will be denied.

A. Background

The pertinent facts were summarized by the trial court in its Opinion dated December 20, 2007.

On Easter Sunday, March 27, 2005, Ricardo Hudson and Richiena Porter were murdered in an apartment they shared with [Mr.] Larue Moore at 1400 Hill Street, Wilkinsburg Borough, Allegheny County, Pennsylvania. The defendant, James Bernard, reported the double homicide to police at approximately 11:15 a.m., when he flagged down Wilkinsburg police officer Michael J. Adams. The defendant told police Ms. [Porter] was shot in the bathroom, but he never said who shot her. Furthermore, when asked if he [was] shot, the defendant said "no." The front of defendant's sweater appeared to have bloodstains which were noticed by Officer Adams. The sweater was taken as evidence and the bloodstains came back as matching the DNA of Richiena Porter.

When [Mr.] Moore had left for [work] at approximately 9:00 a.m., the house was occupied by both victims[,] four girls who had driven up from Virginia the night before, identified as Charlotte Tillman, Tanyce Fry, Ashley Wood, and Stacey Kennedy, and Dewayne Hart and the defendant. [Mr]. Moore owned a 25-caliber handgun, which [he] kept in [his] bedroom closet in Philly's cigar box. The police found the box, but [the] gun was never recovered. The only fingerprints found on the box belonged to Richiena Porter. The victims were shot with a 25-caliber handgun.

When the girls from Virginia left the apartment at 1400 Hill Street with Dewayne Hart, Richiena Porter was taking a shower and Mr. Hudson was asleep in the back bedroom and James Bernard was the only other person in the apartment.

When they returned a short time later, the defendant was outside the apartment and told them they were not allowed back inside. However, Hart entered the apartment to retrieve his electronic game. He believed Ms. Porter was still in the shower because he heard the water running and that Mr. Hudson was still asleep on the floor in the back bedroom. The only thing in the apartment that Hart noticed [that] was different was that a T.V. that had been in the living room was gone. The T.V. was found in the shower where Ms. Porter was shot. When the police arrived at the apartment, the door had been locked and there was no evidence of a forced entry. Officer Bender found Ricardo Hudson lying face down in the back bedroom. He also saw that Ms. Porter was lying in the bathtub with the upper part of her body resting outside the tub. She was still alive at the time she was found.

During the investigation, the Allegheny County Homicide Detectives recovered bullet casings which were found to be fired from the same weapon.

At trial the Commonwealth and Defense stipulated that Dr. Levine, of the Allegheny County Crime Lab, a firearms expert would have opined that a 25-caliber is a small automatic. Further, that a hair sample removed from Ricardo Hudson's wound and examined microscopically for gunpowder particles showed two small flattened ball gunpowder particles. James Bernard's gunshot residue test was negative. This was not conclusive of the issue of his firing a weapon because the test was done three hours after the incident, he had been handcuffed behind his back and had changed clothes. A positive test of Mr. Hudson's right hand was consistent with that hand being closest to his head when the body was found.

It was further stipulated that Tom Meyer, an expert on blood samples with the Allegheny County Crime Lab, would have testified that blood found on Mr. Bernard's left shoe was tested for DNA and was consistent with the DNA of Richiena Porter.

Finally, there was a stipulation, [that] Dr. Shakir [of] the Allegheny County Medical Examiner's [Office] [would testify] as to the causes of death of both Mr. Hudson and Ms. Porter as gunshot wounds to the head, based upon the examination by the Allegheny County Medical Examiner's Office, provided by Dr. Shakir.

(Resp't Ex. 7, ECF No. 9-1 at pp.34-36) (internal citations omitted). Petitioner was found guilty of two counts of First Degree Murder and sentenced to two consecutive life sentences. (Resp't Ex. 4, ECF No. 9-1 at p.22.) After an Opinion was filed by the trial judge pursuant to Pa. R.A.P. 1925(a) on December 20, 2007, (Resp't Ex. 7, ECF No. 9-1 at pp.33-39), the Superior Court affirmed Petitioner's judgment of sentence in an unpublished memorandum dated October 16, 2008, (Resp't Ex. 10, ECF No. 9-4). Petitioner then filed a Petition for Allowance of Appeal with the Supreme Court of Pennsylvania, which was denied by Order dated May 14, 2009. (Resp't Ex. 11, ECF No. 9-5; Ex. 14, ECF No. 9-6 at p.5.)

On March 9, 2010, Petitioner filed a pro se Petition for relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"). (Resp't Ex. 15, ECF No. 9-6 at pp.6-21.) Attorney Scott Coffey was subsequently appointed as PCRA counsel, but he filed a Motion to Withdraw as PCRA counsel with a "no merit" letter on August 31, 2011. (Resp't Ex. 16, ECF No. 9-6 at p.22; Ex. 17, ECF No. 9-6 at pp.23-37.)

On September 12, 2011, the trial judge issued a Notice of Intent to Dismiss the PCRA petition without a hearing. (Resp't Ex. 18, ECF No. 9-7 at p.1.) Petitioner filed a response to the Notice of Intent to Dismiss, (Resp't Ex. 19, ECF No. 9-7 at pp.2-6), but the trial judge issued an Order dismissing the PCRA on October 4, 2011 (Resp't Ex. 20, ECF No. 9-7 at p.7).

Petitioner filed a Notice of Appeal on October 20, 2011. (Resp't Ex. 21, ECF No. 9-7 at pp.8-11.) The trial judge filed his Pa. R.A.P. 1925(a) Opinion on October 18, 2012. (Resp't Ex. 23, ECF No. 9-7 at pp.16-28.) On June 25, 2013, the Superior Court issued an unpublished opinion affirming the trial judge's dismissal of the PCRA petition without a hearing. (Resp't Ex. 26, ECF No. 9-10.)

Petitioner filed a pro se Petition for Allowance of Appeal with the Supreme Court of Pennsylvania on July 25, 2013. (Resp't Ex. 27, ECF No. 9-11.) The Supreme Court denied the petition on December 17, 2013. (Resp't Ex. 29, ECF No. 9-13.)

Petitioner filed the instant Petition for Writ of Habeas Corpus on January 27, 2014. (ECF No. 1.) The Petition raises four claims, summarized as follows:

1. Ineffective assistance of counsel when trial counsel failed to dispute the evidence that the male victim did not fire a gun.

2. Ineffective assistance of counsel when direct appeal counsel argued diminished capacity.

3. Ineffective assistance of counsel when trial counsel stipulated to limited results from a blood expert.

4. Ineffective assistance of counsel when trial and appellant counsel failed to correct the lower court statement of changing of clothes.

Respondents filed their Answer to the Petitioner on April 30, 2014. (ECF No. 9.)

B. Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"), habeas relief is only available on the grounds that Petitioner's judgment of sentence was obtained in violation of his federal constitutional rights. 28 U.S.C. § 2254(a).

As codified at 28 U.S.C. § 2254(d), AEDPA provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to,¹or involved an unreasonable application of,²clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) 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.³

(Emphasis added). Importantly, regardless of whether a state court has adjudicated a claim on the merits so as to invoke review under the standard set forth in § 2254(d), under 28 U.S.C. § 2254(e)(1) a federal habeas court must presume that all of the state court's factual findings are correct unless the presumption is rebutted by "clear and convincing evidence." See, e.g., Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)). See also Weeks v. Snyder, 219 F.3d 245, 259 (3d Cir. 2000) (quoting Marshall v. Longberger, 459 U.S. 422, 434 (1983), for the proposition that habeas review does not permit a federal court to redetermine the credibility of witnesses whose demeanor has been observed by the state court); Miller-El v. Cockrell, 537 U.S. 322, 339-41 (2003).

C. Ineffective Assistance of Counsel

Petitioner raises four ineffective assistance of counsel claims. Ineffective assistance of counsel claims are "governed by the familiar two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984)." Shelton v. Carroll, 464 F.3d 423, 438 (3d Cir. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003)). For AEDPA purposes, the Strickland test qualifies as "clearly established Federal law, as determined by the Supreme Court." Williams v. Taylor, 529 U.S. 362, 391 (2000). Under Strickland, a habeas petitioner must demonstrate that: (1) counsel's representation fell below an objective standard...