Porter v. Horn

Decision Date26 June 2003
Docket NumberNo. CIV.A.99-2677.,CIV.A.99-2677.
Citation276 F.Supp.2d 278
PartiesErnest PORTER, Plaintiff, v. Martin HORN, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Billy H. Nolas, David W. Wycoff, Robert Brett Dunham, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Plaintiff.

Donna G. Zucker, Regina M. Oberholzer, Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Defendants.


ROBERT F. KELLY, Senior District Judge.

Before this Court is the Petition for a Writ of Habeas Corpus filed by Petitioner Ernest Porter ("Petitioner").1 Under 28 U.S.C. § 2254, Petitioner presents fourteen claims in support of his Petition for habeas corpus relief from his state murder conviction and subsequent death sentence.2 Petitioner's fourteen claims assert constitutional error in both the guilt phase and sentencing phase of his trial. For the reasons set forth below, the Petition for a Writ of Habeas Corpus is granted in part and denied in part. I will grant the Petition with regard to Claim V, asserting error in the penalty phase of Petitioner's trial. As a result, Petitioner's death sentence is vacated. Petitioner's case is remanded to the Commonwealth of Pennsylvania to either sentence Petitioner to life imprisonment or to conduct such further proceedings as may be appropriate under state law. Even though I shall grant the Petition for a Writ of Habeas Corpus with respect to the penalty phase of trial, I will deny the Petition with respect to each claim challenging Petitioner's conviction of first-degree murder.


Raymond Fiss, owner of Mr. Fiss's Beauty Shop, was shot to death in his shop on the morning of April 27, 1985. At approximately 7:30 a.m., Angelina Spera, a neighbor who lives directly across the street from the beauty shop, was looking out her window. Mrs. Spera saw a black man push Mr. Fiss into the shop as he was opening the shop door and heard Mr. Fiss cry out, "Get the hell out of here." Mrs. Spera called the police and returned to the window in time to see Catherine Valente approaching the shop. Mrs. Valente was a customer of Mr. Fiss who had a hair appointment scheduled for that morning. As Mrs. Valente opened the shop door, she saw a man standing inside with a yellow bag in his hand. The man rushed past Mrs. Valente to exit the shop, saying "I'll be back." The man then got into Mr. Fiss's car, which was parked at the curb outside of the shop, and drove off. Mrs. Valente found Mr. Fiss's lifeless body laying in the bathroom of the shop. Mr. Fiss was killed by a single gunshot wound from a .38 caliber handgun. He had left that morning with approximately thirty to fifty dollars in cash, but was found without any money and with his left pants pocket turned inside-out. The killer did manage to escape, however, both Mrs. Spera and Mrs. Valente gave descriptions of the killer to the police.4

On April 30, 1985, three days after the shooting of Mr. Fiss, Petitioner and two other men robbed a Philadelphia jewelry store at gun point. Police arrived at the store while the crime was in progress because the store's proprietor, Vincent Gentile, activated a silent alarm. A foot chase ensued between the police and Petitioner. As he was being chased, Petitioner discarded a .38 caliber Colt revolver under a parked car. According to ballistics tests later performed by the police, the discarded revolver had fired the fatal bullet that killed Mr. Fiss. Petitioner was apprehended and was subsequently charged and found guilty for the murder of Mr. Fiss.


Before the Honorable Albert F. Sabo, Petitioner was tried by a jury in the Philadelphia County Court of Common Pleas. Petitioner was represented by Michael G. Floyd, Esq. ("trial counsel"). On February 26, 1986, Petitioner was found guilty of murder in the first degree, robbery and possessing an instrument of crime.5 On February 27, 1986, after the penalty phase, the jury found that there was one aggravating circumstance, the killing was committed during the perpetration of a felony, and no mitigating circumstances. See 42 Pa.C.S. § 9711(d)(6). As a result, the jury returned a sentence of death. Following the penalty phase and prior to the formal imposition of sentence, the trial court deferred sentencing pending the outcome of a court ordered psychiatric examination of Petitioner and the disposal of Petitioner's post-trial motions. After the result of Petitioner's psychiatric examination and the court's denial of Petitioner's post-trial motions, the judgment of sentence was entered on June 26, 1986. In addition to the death sentence, the sentencing judge also sentenced Petitioner to a consecutive sentence of ten to twenty years on the robbery conviction and two and one-half to five years on the conviction for possession of an instrument of crime.

Represented by new counsel, George H. Newman, Esq. ("appellate counsel"), Petitioner directly appealed the judgments of sentence to the Supreme Court of Pennsylvania. On February 8, 1990, the Pennsylvania Supreme Court affirmed the judgment of sentence. Porter I, 524 Pa. 162, 569 A.2d 942. The United States Supreme Court denied certiorari on October 15, 1990. Porter v. Pennsylvania, 498 U.S. 925, 111 S.Ct. 307, 112 L.Ed.2d 260 (1990). On September 7, 1994, Petitioner filed a pro se petition under the Post Conviction Relief Act (the "PCRA"), 42 Pa.C.S. § 9541 et seq. A substituted petition was filed under the PCRA on March 23, 1995. Ronald J. Sharper, Esq. was appointed to represent and assist Petitioner. Pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), Mr. Sharper filed a "no merit" letter with the court, stating the issues raised in Petitioner's PCRA petition were without merit and that his review of the case revealed no additional issues which could be raised in an amended petition.6 The PCRA court conducted a hearing and, subsequently, on May 25, 1995, the PCRA court permitted Mr. Sharper to withdraw as counsel and dismissed Petitioner's petition.

Represented by current counsel, Billy Nolas, Esq., Petitioner filed an appeal to the Pennsylvania Supreme Court on June 22, 1995.7 On March 16, 1999, the Pennsylvania Supreme Court affirmed the PCRA court's denial of PCRA relief. Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890 (1999)("Porter II"). Subsequently, Petitioner filed a petition for reconsideration, which was denied on April 19, 1999.

On January 18, 2000, Petitioner filed the instant Petition for a Writ of Habeas Corpus with this Court. On May 22, 2000, Petitioner filed his memorandum of law regarding the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). In response, the Commonwealth filed its Memorandum of Law on October 30, 2000. On January 10, 2001, Petitioner filed his Reply Memorandum. The Court conducted a multi-part evidentiary hearing requiring numerous hearings which were intermittently conducted in July 2002, September 2002 and November 2002. The Court's evidentiary hearing was limited solely to a few specific guilt phase claims. Petitioner filed a Post-Hearing Memorandum on January 22, 2003. On January 24, 2003, Respondents filed their Post-Hearing Brief.

A. 28 U.S.C § 2254
1. Introduction to 28 U.S.C. § 2254

Petitioner brought his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"). Section 2254 provides, in relevant part, that the court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a)(2000). Accordingly, "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In 1996, Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996.8 The "AEDPA amended the federal habeas statutes, codifying limitations on the conditions under which the federal courts may grant either a writ of habeas corpus or an evidentiary hearing on a petition for such a writ." Henry v. Horn, 218 F.Supp.2d 671, 681 (E.D.Pa.2002) (citations omitted). Specifically, "[t]he AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir.2000)(citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)).

2. Threshold Requirements Under 28 U.S.C. § 2254

a. Exhaustion and Procedural Default

Certain threshold requirements must be satisfied in order for a federal court to reach the merits of a Section 2254 petition. Henry, 218 F.Supp.2d at 681. "Two of these requirements, with respect to each claim in the petition, are that (1) petitioner has exhausted available state court remedies and (2) the claim has not been procedurally defaulted." Id. (citing 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

1.) Exhaustion of State Court Remedies

"In the case of a person incarcerated from a judgment of a state court, a prerequisite to federal habeas review is that the petitioner have exhausted the remedies available to him in the state courts to the extent such remedies exist and are effective." Werts, 228 F.3d at 192 (citing 28 U.S.C. § 2254(b)(1)). The exhaustion requirement is established on the principle of comity which ensures that state courts are allowed the first...

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