I. Federal Court Procedural History Tyson accompanied his petition, initially filed on October 22, 2013, with a motion to stay and hold his petition in abeyance so that he may complete exhaustion of his available state court remedies. (Doc. 2). Respondents were directed to respond to the petition and to Tyson's motion to stay. Following full briefing on the matter, on February 28, 2014, the Court issued an Order (Doc. 15) granting the stay and administratively closing the case. The case was reopened in 2014 (Doc. 19) only to be closed again at Tyson's request to present new evidence to the state court. (Docs. 28, 31). In October 2017, Tyson, through counsel, sought to "reactivate" his petition and to afford him additional time to amend his petition. (Doc. 34). Tyson did not amend the petition but, rather, submitted a brief (Doc. 39) in support of the petition on January 30, 2018. Following several extensions of time, on May 8, 2018, Respondents filed a Response (Doc. 45) and Exhibits (Docs. 45-1 - 45-30). Tyson filed a reply brief (Doc. 47) on May 25, 2018.
II. State Court Background The facts underlying Tyson's murder convictions are contained in the February 1, 2013 decision of the Superior Court of Pennsylvania affirming the denial of his petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 PA.C.S.A. §§ 9541-9546. (Doc. 45-10). The facts are as follows:
On April 24, 2002, [Tyson], Otis Powell ("Powell") and Kasine George ("George") [drove to a Stroudsburg, Pennsylvania crack house that they controlled. [Tyson] left the car in order to resupply the house with drugs. When [Tyson] returned to the vehicle, Tyson] stated that two white boys had just pulled a gun on him. George described Tyson as angry at that time. [Tyson], who was at that point a passenger in the car, took a [nine-millimeter] handgun from the center console. [[Tyson] then] racked the slide of the gun, thus arming it. [Tyson] told Powell, who was driving, to pull out from the location where the vehicle was parked.
[Tyson] pointed to a van and indicated [that] it was being driven by the two who had pulled a gun on him. With Powell driving, the three followed thevan to a club. When the two white men entered that club, Powell gave George a knife [and directed] him to puncture the tires on the van. George did so to at least one of the tires. When George returned to the car, [Tyson] was in the driver's seat. Powell was now a passenger and he asked [Tyson] for the gun. After five or ten minutes, the two white men exited the bar, entered the van and left the location.
With [Tyson] now driving, the three again followed the van. [The van] eventually stopped due to the flat tire. At that point, [Tyson] and his two companions were going to exit the car, but Powell told the other two to wait. Powell then walked to the van. As he did so, [Tyson] backed the car to a point where he and George could see what was transpiring [around] the van. At that point, Powell shot [the] two occupants [of the van], Danial and Keith Fotiathis. ... [Powell] then ran back to the car. Powell, George[,] and [Tyson] left the scene [with [Tyson] driving] the vehicle. The three discussed whether they should go to New York[,] but eventually decided to return to their nearby home.
[Daniel Fotiathis] was shot in the neck, the lower right chest[,] and the lower right back. Gunshots struck [Keith Fotiathis] in the lower right back, [the] right elbow[, and the] right wrist. Trial testimony established multiple gunshot wounds as the causes of death for the victims. The manner of each death was homicide. Police found eight shell casings from a [nine-millimeter handgun] at the scene.
George was later arrested on drug charges. Thereafter, [George] provided information to authorities regarding the instant case. [Tyson] was eventually arrested and charged with the homicide of both victims.
Commonwealth v. Tyson, 947 A.2d 834 (Pa. Super. 2008)(unpublished memorandum) at 6-8, appeal denied, 989 A.2d 917 (Pa. 2009).
(Doc. 45-10, pp. 1, 2) ("Appellant" in original substituted with "Tyson").
Tyson, represented by trial counsel, Attorney Brian Gaglione, proceed to a jury trial on May 3, 2006. (Id. at 3). The trial concluded on May 9, 2006. (Id.) The jury found him guilty of two counts of murder in the first degree, as an accomplice, in themurders of Daniel and Keith Fotiathis; on July 17, 2006, the trial court sentenced him to the mandatory term of life in prison without the possibility of parole. (Id.)
He filed a timely post-sentence motion and raised a number of claims, including claims that his trial counsel rendered ineffective assistance of counsel. (Id.) "Following [Tyson's] trial, [his] trial counsel resigned from his position as a special public defender. As a result, prior to [] sentencing, [he] received new appointed counsel [,David W. Skutnik]. See Trial Court Order, 6/15/06, at 1." (Id. at 3, n 1). After the trial court considered, and rejected, all of Tyson's claims on the merits, he filed a timely notice of appeal to the Pennsylvania Superior Court raising the following issues: "(1) whether there was sufficient evidence to support the convictions for first degree murder; (2) whether the trial court erred by allowing the Commonwealth to introduce evidence showing that [Tyson's] coactor shot the victims even though the cofactor had been acquitted of the shootings; (3) whether the trial court erred in refusing to allow [Tyson] to introduce evidence that his coactor had been acquitted; (4) whether the trial court erred in not granting a mistrial or in not dismissing a certain juror after the juror had contact with a victim's wife; (5) whether the trial court erred in not recusing itself after presiding over the acquittal of the coactor; (6) whether the Commonwealth committed prosecutorial misconduct during its closing argument; and (7) whether trial counsel was ineffective in numerous ways." (Doc. 12-4, pp. 1, 2). The Superior Court found no merit to Tyson's assertions of error. (Doc. 12-4). Further, "in accordance with Commonwealth v. Grant,813 A.2d 726 (Pa. 2002), [the court] dismissed [Tyson's] ineffective assistance of counsel claims without prejudice so that [he] could raise the issues within the context of a post-conviction collateral relief proceeding." (Doc. 45-10, p._3). The court affirmed Tyson's judgment of sentence and, on February 23, 2010, the Supreme Court of Pennsylvania denied his petition for allowance of appeal. (Id. at 3, 4, citing Commonwealth v. Tyson, 947 A.2d 834 (Pa. Super. 2008) (unpublished memorandum) at 8-18, appeal denied, 989 A.2d 917 (Pa. 2009)).
As detailed below, Tyson then pursued state court collateral relief:
On November 19, 2010, [Tyson] filed a timely, pro se PCRA petition. Following the appointment of counsel, [Michael A. Ventrella] counsel filed an amended PCRA petition and claimed that [Tyson's] trial counsel was ineffective for, among other things: 1) "fail[ing] to request a jury instruction which specifically instructed the jury that[, in order to find [him] guilty of being an accomplice to first-degree murder, the jury must find that [he]] had [the] specific intent to commit first [-] degree murder;" 2) failing to object to "the Commonwealth's purported [trial] theory[,] that the motive for the shooting of the Fotiathis brothers was because they 'interrupted' the alleged 'drug ring;'" 3) failing to timely and properly present "the alibi witnesses;" 4) failing to present Omar Powell as a witness; 5) failing to object to the jury array; 6) failing to object to the Commonwealth's closing argument; and 7) failing to object to "the introduction of a photograph of the victim and his daughter." [Tyson's] Amended PCRA Petition, 3/31/11, at 1-4.
The PCRA court conducted an evidentiary hearing and heard testimony from [Tyson], [Tyson's] trial counsel, [Tyson's] direct appeal counsel, and a purported witness named Omar Powell. N.T. PCRA Hearing, 10/4/11, at 1-55.
On February 1, 2012, the PCRA court entered an order denying [Tyson's] PCRA petition and, on March 22, 2012, the PCRA court issued a comprehensive 62-page opinion, discussing the reasons why it denied [Tyson] post-conviction collateral relief. PCRA Court Opinion, 3/22/12, at1-62. Moreover, after receiving [Tyson's] court-ordered statement of errors complained of on appeal. The PCRA Court authored another 18-page opinion, further discussing why [Tyson's] claims were meritless. [footnote omitted]. PCRA Court Opinion, 4/17/12, at 1-18.
[Tyson], [represented by Attorney Bradley Warren Weidenbaum] filed a timely notice of appeal and now raises the following claims to this Court:
[1.] It was ineffective assistance of counsel to fail to request a jury instruction concerning intent to commit first[-]degree murder.
[2.] It was ineffective assistance of counsel to allow the Commonwealth to introduce evidence of drug dealing when such evidence was irrelevant and highly prejudicial.
[3.] It was ineffective assistance of counsel to fail to timely and properly present, serve notice of, and investigate alibi witnesses.
[4.] It was ineffective assistance of counsel to not present the witness whose testimony provided a key reason why [Tyson's] codefendant was acquitted.
[5.]
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