Dade v. DiGuglielmo

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-2-2008
Dade v. DiGuglielmo
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3024
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 06-3024
KENNETH ANDRE DADE,
Appellant
v.
DAVID DIGUGLIELMO; THE DISTRICT ATTORNEY OF THE COUNTY OF
ALLEGHENY;
THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 04-CV-1343
District Judge: The Honorable Gary L. Lancaster
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 22, 2008
Before: SMITH, FISHER, and NYGAARD, Circuit Judges
(Filed: July 2, 2008)
OPINION
SMITH, Circuit Judge.
Kenneth Andre Dade sustained a gunshot wound to his neck and cheek on June 12,
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1997. He was hospitalized briefly and discharged with instructions to administer an
antibiotic, the narcotic analgesic Roxicet and the medication Neurontin as needed for
pain. On June 19, four days after his discharge from the hospital, police from the
Pittsburgh Police Department requested permission to question Dade about his injury. He
consented, and rode with the officers to the station after arranging for his father to care
for his young son. During the questioning, Dade implicated himself in a drive-by-
shooting that occurred on the same night that he sustained his injuries. After the officers
read Dade his Miranda rights, Dade revealed the full extent of his involvement.
Subsequently, he was charged with, inter alia, murder in the third degree. Dade
moved to suppress his confession, arguing that it was involuntary on several grounds,
including the fact that he was “under the influence of medication at the time of the
statement[.]” At the suppression hearing, Dade declined to testify. As a result, the trial
court had no evidence as to whether Dade had taken any of the medications on the day he
confessed, and if so, the time the specific medication(s) were administered. In light of the
evidence regarding the circumstances surrounding Dade’s confession, the trial court
concluded that his confession was knowing and voluntary and denied the motion to
suppress. A jury convicted Dade of murder in the third degree, as well as several other
offenses.
Dade appealed, contending that the trial court erred by denying his suppression
motion because his statements were not voluntary. The Pennsylvania Superior Court was
2
not persuaded. The Pennsylvania Supreme Court denied his petition for allowance of
appeal. Thereafter, Dade filed a timely petition under the Pennsylvania Post Conviction
Relief Act (PCRA), 42 P A. C ONS. S TAT. §§ 9541-9546. With the assistance of counsel,
Dade filed a Second Amended PCRA Petition, alleging that his confession was
involuntary because he was under the influence of prescription drugs at the time of his
statement. He also alleged that his trial and appellate counsel were ineffective because
they did not develop the issue of his diminished capacity.
The trial court denied Dade’s PCRA petition on the basis that the Pennsylvania
Superior Court had affirmed its determination that the confession was voluntary. Dade
appealed, arguing that trial counsel was ineffective because he did not “present expert
testimony from a doctor or toxicologist who could have testified to” the effects of the
medications he had been prescribed. The Superior Court affirmed the trial court’s denial
of Dade’s PCRA petition. It recited the fact that Dade was claiming that both trial and
appellate counsel were ineffective because they failed to develop his diminished capacity
argument. The Superior Court reasoned, however, that this issue was simply a new
theory relitigating the voluntariness of his confession. The Pennsylvania Supreme Court
denied Dade’s petition for allowance of appeal.
Thereafter, Dade filed a timely 28 U.S.C. § 2254 petition in the District Court for
the Western District of Pennsylvania. Dade asserted that his conviction should be set
aside because his confession was involuntary and his trial counsel had been ineffective by
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failing to present expert testimony regarding his mental state at the time of his confession.
An amended § 2254 petition appended an affidavit from Dr. Lawson Bernstein, a
neuropsychiatrist. Dr. Bernstein affirmed that he had reviewed Dade’s discharge
summary from the hospital four days before he confessed, the various trial transcripts, and
the confession. Dr. Bernstein opined that Dade “lacked the cognitive capacity to make a
knowing and voluntary waiver of his rights and to assent to interrogation on the date of
his taped confession.”
The District Court adopted the report and recommendation of the Magistrate Judge
denying the § 2254 petition. Dade appealed. We granted a certificate of appealability on
the issue of whether Dade “exhausted in state court his claim that trial counsel had
rendered ineffective assistance by failing to present expert medical testimony or otherwise
support his argument that his waiver of his rights under Miranda v. Arizona, 384 U.S. 436(1966), had not been knowing and intelligent as a result of medication . . .” and whether
Dade was entitled to relief on his ineffectiveness claim. For the reasons set forth below,
we will affirm.1
I.
The Magistrate Judge’s report and recommendation appropriately recited that
§ 2254(b)(1)(A) requires that the habeas petitioner exhaust his state court remedies. Yet
1
The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254(a).
Appellate jurisdiction exists under 28 U.S.C. §§ 1291 and 2253.
4
the Magistrate Judge failed to determine whether Dade had in fact exhausted his claims,
stating that “[i]t appears that Petitioner has presented the majority of his claims to the trial
court through his direct appeal.” Dade asserts that he did exhaust his state court
remedies. The Commonwealth disputes this. It argues that the claim asserted in the
District Court, that trial counsel was ineffective because he did not present expert
testimony from Dr. Bernstein that Dade lacked the cognitive capacity to make a knowing
and voluntary confession, was not fairly presented to the state court.2
In Picard v. Connor, 404 U.S. 270 (1971), the Supreme Court instructed that if the
“federal claim has been fairly presented to the state courts, the exhaustion requirement is
satisfied.” Id. at 275. The Court explained that
it is not sufficient merely that the federal habeas applicant has been through
the state courts. . . . Only if the state courts have had the first opportunity to
hear the claim sought to be vindicated in a federal habeas proceeding does it
make sense to speak of the exhaustion of state remedies. Accordingly, we
have required a state prisoner to present the state courts with the same claim
he urges upon the federal courts.
Id. at 275-76. In McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999), we instructed
that this requires a habeas petition to “present a federal claim’s factual and legal
substance to the state courts in a manner that puts them on notice that a federal claim is
being asserted.” In other words, the claims raised in the state courts must be substantially
equivalent to the claim pressed in the federal court. Doctor v. Walters, 96 F.3d 675, 678
2
The question of whether a habeas petitioner has exhausted his state court remedies
is subject to plenary review. Ellison v. Rogers, 484 F.3d 658, 660 (3d Cir. 2007).
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(3d Cir. 1996).
We conclude that Dade’s state ineffectiveness claim was substantially equivalent
to the claim pressed in the District Court. In the state proceeding, Dade argued that his
trial and appellate counsel were inadequate because they failed to develop his claim that
his diminished capacity rendered his confession involuntary, and specifically cited the
fact that expert medical testimony should have been adduced to describe the effects of his
prescribed medications on his mental capacity. That very same claim is present in Dade’s
amended § 2254 petition. To be sure, Dr. Bernstein was not mentioned in the state court
proceedings. But we do not find that to be a difference with significance because the
heart of Dade’s federal ineffectiveness claim was that expert medical testimony should
have been obtained to aid the trial court in evaluating Dade’s cognitive ability to make a
knowing and voluntary confession. The identity of the expert does not alter that claim.
Instead, it simply provided additional support for Dade’s position that expert testimony
would have been beneficial to the trial court when it was deciding whether to grant his
motion to suppress. See Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that
supplemental evidence presented by prisoner “did not fundamentally alter the legal claim
already considered by the state courts”); Stevens v. Del. Corr. Ctr., 295 F.3d 361, 370 (3d
Cir. 2002) (citing Vasquez, and concluding that claim was exhausted because the
affidavits filed in federal court, which contained more facts than the submissions filed in
state court, did not fundamentally alter the legal claim). Thus, we conclude that Dade
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exhausted his state court remedies on this claim.
II.
Dade asserts that we should vacate the judgment of the District Court and remand
for an evidentiary hearing on his ineffectiveness claim. Under Strickland v. Washington,
466 U.S. 668 (1984), a petitioner asserting a claim that his counsel was ineffective must
show both that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced his defense. Id. at 687. Even if we assume that counsel
unreasonably failed to develop the diminished capacity claim by obtaining expert
testimony, we conclude that the deficient performance was not prejudicial because the
expert testimony of Dr. Bernstein was unlikely to advance Dade’s claim of
ineffectiveness as it lacked a factual foundation. Dr. Bernstein never spoke with Dade
and there was no evidence that Dade either had his prescriptions filled, or that he even
consumed the medications as prescribed, particularly the Roxicet, at any time after his
discharge from the hospital. Without some evidence in this regard, Dr. Bernstein’s
opinion was based on pure speculation and was unlikely to suggest that Dade suffered
from a diminished capacity at the time of his confession. As a consequence, the alleged
ineffectiveness of counsel in failing to obtain expert testimony did not prejudice Dade’s
defense.
Nonetheless, Dade asserts that we should vacate the District Court’s judgment and
remand for an evidentiary hearing. In Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
7
2000), we observed that when a factual record is incomplete because of the state’s action,
a district court has discretion to grant an evidentiary hearing. In exercising that
discretion, a court should “focus on whether a new evidentiary hearing would be
meaningful, in that a new hearing would have the potential to advance the petitioner’s
claim.” Id.We find no abuse of discretion by the District Court in declining Dade’s request
for an evidentiary hearing on his ineffectiveness claim. We recognize that Dade’s
testimony was not the only means by which counsel could have demonstrated that Dade
might have consumed the prescribed medications before he accompanied the officers to
the station. But Dade has failed to “forecast” that there is any evidence which would
support this pivotal fact if an evidentiary hearing were granted. Campbell, 209 F.3d at
287. Dade has not identified the pharmacy that filled the prescriptions, or whether the
quantity prescribed contemplated that Dade would still be taking the narcotic analgesic a
week after the injury. Nor has Dade proffered any evidence from his girlfriend, with
whom he was living at that time, that she observed the medication bottles were in their
house, or that Dade had ever consumed any of the medication following his discharge.
Without some evidence to suggest that a hearing might have the potential for advancing
Dade’s claim that his cognitive functioning was impaired because he consumed the
medication, particularly the narcotic analgesic, on the day he was interrogated at the
station, we conclude that the District Court did not err by failing to conduct an evidentiary
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hearing.
We will affirm the judgment of the District Court.