Fundamental Fairness • Ineffective Assistance of Counsel • Procedural Default
Glenn v. Allegheny Cnty., PICS Case No. 14-0318 (3d Cir. Feb. 20, 2014) Smith, J. (23 pages).
Contradictory testimony of prosecution witness did not render petitioner’s trial fundamentally unfair where court issued cautionary instruction, defense counsel called witness’s credibility into doubt and commonwealth presented other incriminating evidence. Petitioner was not entitled to relief from procedural default (failing to raise ineffectiveness claims below) because his claims of ineffective assistance of counsel were not “substantial.” Affirmed.
At Glenn’s murder trial, prosecution witness Cotton presented contradictory testimony, stating first that she saw Glenn shoot the victim, then that she had not actually seen the shooter’s face. After various instances of similar contradictions, Glenn moved for a mistrial. The judge denied the motion, but struck Cotton’s entire testimony from the record and issued a cautionary instruction to the jury.
Commonwealth introduced additional incriminating evidence. At the close of the trial the judge reiterated his earlier instruction for the jury to disregard Cotton’s testimony. The jury convicted Glenn of first-degree murder and the judge sentenced him to life imprisonment.
After exhausting appellate processes and unsuccessfully pursuing PCRA relief, Glenn petitioned the United States District Court for the Western District for a writ of habeas corpus. The district court denied Glenn’s petition but certified two issues for appeal, namely: (1) whether the trial court violated Glenn’s due process rights when it refused to grant a mistrial, opting instead to strike Cotton’s testimony; and (2) whether, after Cotton’s testimony was stricken, trial counsel was ineffective in not moving to strike other evidence referring to Cotton’s identification of Glenn as the shooter.
Glenn timely appealed. He pursued his habeas claim pursuant to 28 U.S. C. §2254(d)(1), arguing that the Superior Court’s decision finding neither a due process violation nor a Sixth Amendment violation involved “unreasonable application[s]” of “ clearly established Federal law.” The United States Court of Appeals for the Third Circuit affirmed.
To prevail on his due process claim, Glenn had to prove that he was deprived of “fundamental elements of fairness in his criminal trial.” Riggins v. Nevada, 504 U.S. 127, 149 (1992).The category of infractions that violate fundamental fairness is very narrow.
Glenn argued that the trial judge’s curative instruction was insufficient to purge the record of the taint of Cotton’s testimony and that a mistrial was the only constitutionally adequate remedy. Glenn asked the court to abandon the presumption that jurors follow court instructions because, in his view, most of the remaining evidence in his case “directly or tangentially related to Cotton’s identification of Glenn as the shooter.”
Glenn’s trial was not fundamentally unfair. The jury was repeatedly instructed to ignore Cotton’s testimony, which had already been cast into doubt by defense counsel’s successful cross-examination. In addition, commonwealth offered other ample evidence of Glenn’s guilt. Presuming that the jury was able to follow the court’s instructions, Cotton’s unreliable testimony did not render Glenn’s trial “fundamentally unfair.” Accordingly, the Superior Court’s decision affirming his conviction was not error, much less an “unreasonable application” of “clearly established Federal law.”
Glenn also argued that trial counsel was ineffective in not moving to strike lingering references to Cotton’s identification of the shooter after the judge struck her testimony from the record. Glenn failed to identify these claims in his PCRA petition, but asked that his default be excused because his PCRA counsel’s failure to raise these claims itself constituted ineffective assistance of counsel. Martinez v. Ryan, 132 S.Ct. 1309 (2012).
Procedural default may be excused when a petitioner can prove both “cause for the default” and “actual prejudice” that resulted from the failure of the state court to hear the claims. The failure of PCRA counsel to raise an ineffective assistance of trial counsel claim in an initial-review collateral proceeding can constitute “cause” if (1) PCRA counsel’s failure itself constituted ineffective assistance of counsel under Strickland and (2) the underlying ineffective assistance of trial counsel claim is “a substantial one”—i.e., the claim has some merit. Because Glenn’s underlying ineffective assistance of trial counsel claims were not “substantial,” the default was not excused.