On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 00-cv-03822) District Judge: Honorable Jan E. DuBois.
The opinion of the court was delivered by: Sloviter, Circuit Judge
Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.
Panel Reconstituted August 1, 2006 SLOVITER, FUENTES, and ROTH,*fn1 Circuit Judges.
Andre Wright, who is currently serving a life sentence for second-degree murder following his conviction by a jury in a Pennsylvania state court trial, appeals the denial of his petition for a writ of habeas corpus. The United States District Court for the Eastern District of Pennsylvania dismissed Wright's 28 U.S.C. § 2254 petition. Several months later, this court, pursuant to 28 U.S.C. § 2253(c)(1), granted Wright's request for a certificate of appealability ("COA") on several of his claims of ineffective assistance of counsel and violation of rights pursuant to the Confrontation Clause of the Sixth Amendment.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241, 2254; this court has jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253.
The parties present sharply divergent accounts of the facts, but they agree on the following: Maurice Wilson died from multiple gunshot wounds on July 8, 1975. Ballistics indicated that the shots that caused the wounds came from two different guns, neither of which was admitted into evidence at trial. Police followed a trail of blood from the apartment where they found Wilson's body to an alley close to Mark Garrick's house. Upon obtaining a search warrant, police searched Garrick's house and found bloody clothing. Esther Jones, who claimed to have witnessed the crime, testified that Eughenia Jones, one of three men convicted of the murder, had been wearing those clothes when he and two other men, including petitioner Wright, entered her apartment. Police also seized a gun, which was not tied by ballistics evidence to any of Wilson's gunshot wounds, bullets, and photographs of Garrick, Eughenia Jones, and Andre Wright, albeit not together in one photograph. Garrick, Jones and Wright were indicted in December 1980 and all three were convicted of Wilson's murder following a jury trial.
Wright's conviction was based largely on the testimony of two witnesses, Esther Jones and Earlene Gates, who offered occasionally inconsistent testimony regarding Wilson's murder. Jones and Gates initially denied knowing who killed Wilson; they later changed their minds and implicated Wright, Garrick, and Eughenia Jones. The testimony of the two witnesses was consistent as to the following: they were in their apartment along with Maurice Wilson, Esther Jones' boyfriend, when the doorbell rang. Wilson answered the door. Shortly thereafter, Ms. Jones, who was in her room, saw someone enter her room and remove a gun that Wilson kept under her pillow. Wright then entered Jones' room and forced her to come with him to the living room. Eughenia Jones woke up Gates and similarly forced Gates and her daughter into the living room. Wright instructed both women to sit on the couch while Eughenia Jones held Wilson on the floor with a gun to his head and demanded money and drugs. When Wilson said he had given the three men everything he had, the three accomplices took him into the kitchen. Ms. Jones and Gates stayed in the living room, but they heard a loud argument taking place in the kitchen. Both heard Wilson say that he would not jump out the window. Shortly thereafter, both witnesses heard multiple gunshots, followed by the sounds of people running up and down stairs. They also heard Eughenia Jones shout that he had shot himself. Ms. Jones testified that she found Wilson's dead body in the kitchen.
Although the two witnesses agreed on the above facts, they offered inconsistent testimony on several points. Most importantly, Esther Jones testified that an unnamed man came into the apartment to see Wilson while the crime was in progress. According to Ms. Jones, the man was forced to lie on the ground in the living room and left after Wilson was taken into the kitchen and shot. In contrast, Gates testified that no such man was present on the day of the crime.
Defense witnesses offered substantially different testimony. Sharon Hillian testified that on the day of the crime, she saw Ms. Jones and two other men (none of whom was ultimately accused of the murder) enter the building where Wilson was shot. Hillian then heard four or five shots, after which Ms. Jones and the two men left the building. Wendy Phillips also testified for the defense. She testified that at the time of the murder she was standing outside the building where Wilson was killed. After hearing a gunshot, Phillips observed two tall, light-skinned black men (none of whom were the co-defendants) running down the street.
Wright was convicted of second-degree murder, robbery, and possession of an instrument of crime. On direct appeal, the Pennsylvania Superior court vacated the robbery conviction on the ground that it merged with the murder. In other respects, the court affirmed Wright's conviction. Commonwealth v. Wright, 501 A.2d 294 (Pa. Super. 1985). The Pennsylvania Supreme Court denied allowance of Wright's appeal. Wright then sought relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq., but the PCRA court denied relief. The Pennsylvania Superior Court affirmed the denial (albeit on somewhat ...