The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
William Housman, : CIVIL ACTION NO. 3:20-cv-1198
Petitioner, :
v. : (JUDGE MANNION)
John E. Wetzel, et al., :
Respondents. :
MEMORANDUM
Presently before the court is the January 11, 2024, report and
recommendation of Magistrate Judge Daryl F. Bloom. (Doc. 46.) Judge
Bloom recommends that petitioner, William Housman’s, petition for habeas
corpus be denied as meritless and a certificate of appealability not be issued.
Housman filed a timely objection (after a two-month extension for briefing by
counsel) to the report arguing that Judge Bloom committed multiple errors in
making his recommendation. However, based on the court’s review of the
report as described below, the court will overrule all of Housman’s objections
and adopt Judge Bloom’s report and recommendation in its entirety.
I. BACKGROUND
Since the report correctly states the procedural and factual background
of this case, (Doc. 46, pp. 2-13), it will not be repeated fully herein. In short
petitioner, William Housman, was convicted in 2001 of the kidnapping and
first-degree murder of 18-year-old Leslie White in Cumberland County,
Pennsylvania, in 2000. He and his co-defendant, Beth Markman, were
sentenced to death. Prior to trial both Housman and Markman confessed to
kidnapping and murdering White. However, each claimed they were coerced
to do so by the other. Housman moved to sever his trial from Markman’s due
to her confession, but his motion was denied. At trial both Housman and
Markman’s confessions were admitted with references to each other’s
names removed. However, Housman’s confession contained two instances
of non-redaction, in which Markman’s name was referenced. On appeal, the
Pennsylvania Supreme Court vacated Markman’s convictions finding that
the two non-redactions violated her rights under the confrontation clause.
Housman also appealed his conviction and death sentence, challenging inter
alia the trial court’s denial of his motion to sever, but both his conviction and
death sentence were affirmed by the Pennsylvania Supreme Court.
On June 17, 2011, Housman filed a timely petition under
Pennsylvania’s Post Conviction Relief Act (“PCRA”), and filed an amended,
counseled petition on May 22, 2013. After three days of evidentiary hearings,
Housman was granted PCRA relief in the form of new penalty trial on
grounds Housman’s counsel was ineffective for failing to present mitigating
evidence at the penalty phase. Still, the court found that Housman’s claims
regarding the guilt phase of his trial did not warrant relief. The
Commonwealth appealed the grant of a new penalty trial and Housman
appealed the denial of new guilt trial, but the Pennsylvania Supreme Court
upheld the decision of the PCRA court. Commonwealth v. Housman II, 226
A.3d 1249 (Pa. 2020). Ultimately, the Commonwealth waived its right to
proceed to a new penalty trial, and on January 22, 2021, the trial court
resentenced Housman to a term of life imprisonment without the possibility
of parole.
The present habeas corpus petition was initially filed during the
pendency of Housman’s state court proceedings on July 13, 2020. (Doc. 1.)
As such the matter was stayed pending the outcome of his state court
appeals. On January 21, 2022, Housman filed a renewed memorandum of
law raising five grounds for relief: (1) the trial court’s error in refusing to sever
his and Markman’s trials, as well as counsel’s failure to effectively litigate the
severance issue; (2) trial counsel’s failure to object to the jury charge on
accomplice liability and conspiracy; (3) trial counsel’s failure to present
evidence regarding White’s cause of death; (4) a violation of Housman’s Fifth
Amendment right when his confession was admitted at trial; and (5) the effect
of the cumulative errors resulting in prejudice.
II. LEGAL STANDARD
A. Reports and Recommendations of Magistrate Judges
When objections are timely filed to the report and recommendation of
a magistrate judge, the district court must review de novo those portions of
the report to which objections are made. 28 U.S.C. 636(b)(1); Brown v.
Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard of review is
de novo, the district court “may also, in the exercise of sound judicial
discretion, rely on the Magistrate Judge’s proposed findings and
recommendations.” Bynum v. Colvin, 198 F. Supp 3d 434, 437 (E.D. Pa.
2016) (citing United Stated v. Raddatz, 447 U.S. 667, 676 (1980)).
B. State Prisoner Habeas Relief
A petition for writ of habeas corpus is the exclusive federal remedy for
a state prisoner challenging the “very fact or duration” of his confinement and
seeking “immediate release or a speedier release from that imprisonment.”
Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973); Leamer v. Fauver, 288
F.3d 532, 542-44 (3d Cir. 2002). A district court is authorized to “entertain an
application for a writ of habeas corpus on 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) (2006).
§2254 also mandates that federal court owe deference to the factual
findings and legal rulings made by state courts in the course of state criminal
proceedings. With respect to legal rulings by state courts, under §2254(d),
habeas relief is not available to a petitioner for any claim that has been
adjudicated on its merits in the state courts unless it can be shown that the
decision was either: (1) “contrary to” or involved an unreasonable application
of clearly established case law; see 28 U.S.C. §2254(d)(l); or (2) was “based
upon an unreasonable determination of the facts,” see 28 U.S.C.
§2254(d)(2).
III. DISCUSSION
Judge Bloom found and this court agrees that all five of Housman’s
claims for relief were in some fashion raised before and considered by state
courts, whose determinations were not contrary to clearly established law or
based on an unreasonable determination of facts. Housman objects not only
to Judge Bloom’s finding on each of his claims for relief, but also the
applicable legal standard.
A. Judge Bloom’s Legal Standard
In addition to the legal standard summarized above Judge Bloom notes
that “[t]ypically, habeas relief will only be granted to state prisoners in those
instances where the conduct of state proceedings led to a ‘fundamental
defect which inherently results in a complete miscarriage of justice’ or was
completely inconsistent with rudimentary demands of fair procedure.” (Doc.
46, p. 14)(quoting Reed v. Farley, 512 U.S. 339, 354 (1994)). Housman
objects to the application of Reed because the petitioner’s claim in that case
was for a violation of a federal statute, and he does not raise any claims
regarding federal statutes here. As such the instant petition contends that to
the extent Judge Bloom “relied upon this inapplicable legal standard in
‘assessing Housman’s petition’ (Doc. 46, p. 21), the magistrate1 erred.”
Regardless, based on the court’s review, Judge Bloom’s recommendations
did not turn on Reed but rather the undisputed language from §2254 that
only authorizes a federal court to grant a state petitioner habeas relief when
the state court rulings in their case were contrary to clearly established law
1 In this and all other instances where Housman’s counsel refers to
Judge Bloom as “the magistrate” the court wants to remind counsel that the
title “magistrate” no longer exists in the U.S. Courts, having been changed
from “magistrate” to “magistrate judge” in 1990. Judicial Improvements Act
of 1990, 104 Stat. 5089, Pub. L. No. 101-650, §321 (1990) (“After the
enactment of this Act, each United States magistrate . . . shall be known as
a United States magistrate judge.”). Plaintiffs’ counsel is reminded to use the
correct title in the future, when referring to Judge Bloom or any other
Magistrate Judge.
or based on an unreasonable determination of facts. Accordingly, the court
will overrule Housman’s objection to Judge Bloom’s legal standard.
B. The Trial Court’s Refusal to Sever and Counsel’s
Ineffectiveness in Litigating this Issue
Housman argues that the trial court erred when it refused to sever his
trial from Markman’s because it resulted in prejudicial evidence being
admitted against him at trial and his trial and appellate counsel were
ineffective for failing to properly litigate this issue. Housman initially raised
this argument on direct appeal and it was rejected by the Pennsylvania
Supreme Court in 2009. Specifically, the Pennsylvania Supreme Court,
applying the appropriate abuse of discretion standard, found that the trial
court did not abuse its discretion in denying severance where Housman and
Markman’s defenses were not so antagonistic as to warrant severance.
Housman I, 986 A.2d at 835.
The court also found that any prejudice to Housman from the evidence
introduced because of a joint trial was offset “by his own admission that he
violently strangled White to death in his living room after luring her there
under false pretenses, drove to Virginia with her lifeless body in her Jeep,
and subsequently deposited her body in the trunk of an abandoned car.” Id.
(emphasis in original). The court reasoned that this evidence alone was
enough to apprise the jury of Housman’s capacity for violence. Furthermore,
the court found that the trial court gave a limiting instruction regarding the
evidence submitted by Markman.
Housman again argued this claim under the PCRA, in the terms of
ineffective assistance counsel, but the PCRA court found that Housman’s
claims rested on the same factual basis as his claim of trial court error, which
the Pennsylvania Supreme Court found to be meritless. The Pennsylvania
Supreme Court affirmed the PCRA court’s findings and again reiterated that
any prejudice Housman may have suffered “did not outweigh the
overwhelming and properly-admitted evidence of his guilt.” Housman II, 658
226 A.3d at 1263. Furthermore, the Pennsylvania Supreme Court found that
counsel was not ineffective in not objecting to specific hearsay evidence
Housman alleged was improperly admitted due to the trial court’s refusal to
sever because counsel had a reasonable basis for not objecting to the
alleged hearsay statements.
Judge Bloom concluded that the state courts’ prior determination on
these arguments were not contrary to clearly established law or based on a
reasonable determination of fact. Nonetheless Housman objects arguing that
Judge Bloom erred because he 1. Wrongly accepted the state court’s
conclusion that Housman and Markman’s defenses were not antagonistic, 2.
Did not apply the proper prejudice analysis, 3. Failed to acknowledge a later-
in-time jury instruction that nullified the trial court’s earlier limiting instruction,
and 4. In also concluding that trial counsel had a reasonable basis for not
objecting to alleged hearsay evidence.
1. Antagonistic Defenses
Housman argues that his and Markman’s defenses were mutually
exclusive and in turn antagonistic because in his version of events Markman
forced him to kill White because Housman was cheating on her with White,
while in Markman’s version she simply did what she was told because she
was in an abusive relationship with Housman. As such, both defendants
argued that they lacked the specific intent to kill but instead participated in
the homicide only because they were coerced to do so by the other.
Regarding Markman’s appeal, the Pennsylvania Supreme Court also found
that “[her] and Housman’s accounts of the central facts were irreconcilable.”
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). The court found
that the “degree to which the jurors would believe” these contrasting
accounts would determine whether the defendant “acted with a specific
intent to kill” and was thus guilty of first-degree murder. Id. Housman claims
it was patently unreasonable for the state court to reach the opposite
conclusion on his appeal, and Judge Bloom erred in finding otherwise.
Moreover, Housman claims Judge Bloom erred in not considering whether
the prior bad acts and bad character evidence submit by Markman in support
of her defense that Housman abused her would have been admissible had
he been tried alone.
The court disagrees with Housman’s characterizations. As Judge
Bloom noted in his report the Pennsylvania Supreme Court did not find that
Housman was not prejudiced by the trial court’s refusal to sever but rather
that this prejudice was offset by his own confession of brutally murdering
White and carelessly disposing of her body. Thus, its conclusions regarding
Markman’s appeal are not inconsistent with its conclusions regarding
Housman’s now multiple appeals. Likewise, Judge Bloom notes that the
Housman’s confession alone was enough to appraise the jury of his capacity
for violence. Accordingly, even if the evidence of Housman’s abuse of
Markman was inadmissible it was not necessary for the jury to convict him,
and the court will overrule his objection on this issue.2
2 Housman cites Zafiro v. United States, for the proposition that
severance is required “when evidence . . . that would not be admissible if a
defendant were tried alone is admitted against a codefendant.” 506 U.S. 534,
538–39 (1993). Notwithstanding that this case addressed severance under
the Federal Rules of Criminal Procedure, not the analogous Pennsylvania
rules, the Supreme Court in this case specifically declined “to adopt a bright-
line rule, mandating severance whenever codefendants have conflicting
defenses” because “mutually antagonistic defenses are not prejudicial per
(footnote continued on next page)
2. Judge Bloom’s Prejudice Analysis
Housman acknowledges that in finding no prejudice, Judge Bloom and
prior state courts relied on his confession to conclude the Commonwealth
presented overwhelming evidence of his guilt. However, he argues that the
proper inquiry regarding prejudice is not whether there was sufficient
evidence to support his conviction but rather “whether the error had a
substantial influence on the verdict despite sufficient evidence to support the
result apart from the error.” Yohn v. Love, 76 F.3d 508, 523 (3d Cir.
1996)(citing Kotteakos v. United States, 328 U.S. 750, 764 (1946)). As such
Housman asserts Judge Bloom wrongly discounted the influence the trial
court’s refusal to sever had on the jury by allowing the admission of
prejudicial evidence about his abuse of Markman that in turn impugned his
credibility and undermined his defense that he killed White because of
Markman’s coercion. According to Housman without such evidence, the jury
would have found his defense more credible.
Again, the court disagrees with Housman’s characterizations. Judge
Bloom did not deny that the trial court’s refusal to sever influenced the jury
se.” Id. Thus, any mutual antagonism of Housman and Markman’s defenses
alone did not require severance and the state courts prior determinations
were not contrary to clearly established law.
because the commonwealth otherwise submitted sufficient evidence but
rather that the evidence presented by the Commonwealth was so
overwhelming the jury could have convicted Housman irrespective of any
evidence submitted by Markman. Accordingly, even if Markman submitted
no prejudicial evidence influencing the jury and jury found Housman more
credible the other evidence was so overwhelming that the jury would have
still convicted him, and the court will overrule his objection on this issue.
3. The Trial Court’s Subsequent Jury Instruction
Housman also acknowledges the state court finding that the trial
court’s instruction limiting the jury’s consideration of bad acts and bad
character evidence submitted by Markman was “sufficient to eliminate any
alleged prejudice stemming from Markman’s assertions of [Mr. Housman]’s
abuse.” Housman I, 986 A.2d at 836. However, he argues that the state and
in turn Judge Bloom ignored the trial court’s subsequent instruction delivered
during its final jury charge, which encouraged the jury to consider all the
“facts” that Markman and the Commonwealth had presented. Housman,
echoing Justice Baer’s dissent from his direct appeal, takes the position that
the jury would have assumed the subsequent instruction overrode the earlier
instruction. Housman I, 986 A.2d at 851 (Baer, J., dissenting). Nonetheless,
a dissent does not make a state’s court finding unreasonable. Nor does
Housman submit any authority that a court must assume a subsequent jury
instruction overrides or supersedes a prior jury instruction. Moreover, the
Pennsylvania Supreme Court found the prior limiting instruction was
sufficient but not necessary to eliminate any alleged prejudice. Accordingly,
any subsequent confusion about the scope of that instruction would not be
dispositive, especially given the otherwise overwhelming evidence of
Housman’s propensity for violence, and the court will overrule his objection
on this issue.
4. Counsel’s Failure to Object to Hearsay
Housman argues the Judge Bloom erred and state courts were
unreasonable in concluding that trial counsel had a “reasonable basis” for
not objecting to the hearsay evidence that was “cumulative” of his own
confession. Housman II, 226 A.3d at 1264–65. Housman asserts that there
is no “cumulativeness” exception to the general inadmissibility of hearsay
evidence and had counsel properly litigated this issue there is a reasonable
likelihood that there would have been a different result at trial or on direct
appeal. Housman is correct that there is no “cumulativeness” exception to
the hearsay rule, but the court disagrees that there is a reasonable likelihood
absent such evidence the jury would not have convicted him.
The specific piece of hearsay at issue here is the testimony of Melissa
Martin, a co-worker of White, recounting a conversation she had with Chad
Wriglesworth, her, and White’s supervisor at Wal-Mart the night Housman
kidnapped and murdered her. Martin testified that White asked Wriglesworth
if she could leave work early because Housman (falsely) told her his father
had died and she wanted to be with him. Housman considers this testimony
triple hearsay and argues his trial counsel should have objected to it. The
Pennsylvania Supreme Court disagreed because it merely repeated
Housman’s own much more damning confession that he lied to White about
his father’s death to lure her to his home where he subsequently strangled
her to death. Regardless of whether it was reasonable for counsel to object
to this evidence it does not change the fact that it was redundant of evidence
already going to the jury. Accordingly, it would be unreasonable to find
absent such evidence the jury would not have convicted Housman and the
court will overrule his objection on this issue.
C. Ineffective Assistance of Counsel – Failure to Object to the Jury
Instructions for Accomplice and Conspirator Liability
Housman argues that his counsel was also ineffective for failing to
object to the trial court’s jury instructions on accomplice liability and
conspiracy. He contends that the challenged instruction relieved the
Commonwealth of its burden to prove he had specific intent to kill for first-
degree murder. The PCRA court denied this claim because the case
Housman relied on was decided after Housman’s trial, Laird v. Horn, 414
F.3d 419, 425 (3d Cir. 2005), was decided after Housman’s trial, and that his
counsel could not be deemed ineffective for failing to predict a change in the
law. The Pennsylvania Supreme Court affirmed noting that even if counsel
had been deemed ineffective for failing to object to the disputed instruction,
given the overwhelming evidence against Housman, it was “inconceivable
that the jury would have convicted Housman merely as an accomplice to
Markman, rather than as a principle to the crime.” Housman II, 226 A.3d at
1268.
Judge Bloom found that these determinations were not contrary to
established law or based on an unreasonable determination of fact.
Nonetheless Housman objects arguing that Judge Blooms erred because he
1. Failed to address the inadequacy of the jury instructions that allowed the
jury to find Housman guilty if it found that either he or his codefendant
possessed the specific intent to kill, 2. Failed to acknowledge trial counsel
was ineffective for failing to object to the incorrect jury charge, and 3.
Erroneously concluded that Housman was not prejudiced by the allegedly
unconstitutional jury instructions.
1. The Inadequacy of the Trial Court’s Jury Instructions
Housman argues that Judge Bloom failed to analyze the trial court’s
jury instructions in light of Laird, which is binding precedent on this court,
failed to address the trial court’s instruction on conspiracy liability, which
failed to advise the jury it had to make a finding of specific intent to kill, and
failed to address the trial court’s first-degree murder instruction, which also
did not make clear that the jury must find each defendant possessed specific
intent to kill. While Housman is correct that the Laird case presents a number
of factual analogies to the present case and is binding on this court, Judge
Bloom like the state courts who had previously heard this argument
recognized the Laird case was decided after Housman was convicted and
as such did not need to apply it to the disputed jury instruction insofar as it
pertains to Housman’s ineffective assistance of counsel claim.3
Likewise, Judge Bloom and the state courts did address whether the
inclusion of the phrase “or to make it easier to commit all these crimes” in
the trial court’s conspiracy instruction relieved the Commonwealth of its
burden in finding that the overwhelming evidence of Housman’s specific
intent to kill again made it “inconceivable that the jury would have convicted
3 Like the PCRA court this court will not speculate as to whether the
claim could have been properly raised pending direct appeal or in some other
way.
Housman merely as an accomplice to Markman, rather than as a principal in
the crime.” Housman II, 226 A.3d at 1268.
As to the trial court’s first-degree murder instruction, Judge Bloom and
the state court noted, that at the penalty phase, Housman’s principal role in
the White’s murder was highlighted by the fact the jury found Markman
participation in the murder to be relatively minor. Housman II, 226 A.3d at
1268 n. 13. As such Housman’s contention that the jury could have wrongly
convicted him by believing only Markman had specific intent is of no moment.
The jury found Housman not Markman was the driving force in White’s
murder. Accordingly, even if the jury thought only one defendant had specific
intent to kill White that Defendant was Housman not Markman and the court
will overrule his objection on this issue.
2. Trial Counsel’s Failure to Object to Jury Instructions
Housman argues that contrary to Judge Bloom’ assessment the state
court findings that counsel was not deficient because Laird was decided two
years after Housman’s case and counsel cannot be deemed ineffective for
failing to predict subsequent changes in the law was unreasonable because
Laird followed a line of similar cases. See, e.g., Smith v. Horn, 120 F.3d 400,
410 (3d Cir. 1997); Commonwealth v. Huffman, 638 A.2d 961, 964 (Pa.
1994); Commonwealth v. Bachert, 453 A.2d 931, 935 (Pa. 1982). Housman
is correct that neither the state court nor Judge Bloom addresses these
cases which predated his trial. But the Third Circuit has found a failure to
properly instruct a jury on specific intent is subject to harmless error analysis.
Bronshtein v. Horn, 404 F.3d 700, 712 (3d Cir. 2005) citing Smith, 120 F.3d
at 416–17. Given the overwhelming evidence of Housman’s specific intent
such an error here could be considered harmless. Accordingly, even if
Housman’s counsel could be deemed ineffective it would not disturb his
conviction and the court will overrule his objection on this issue.
3. The Jury Instructions’ Prejudice to Housman
Housman argues that had counsel objected to the challenged jury
instructions, there is a reasonable probability that at least one juror would
have had a reasonable doubt as to his guilt. This court like Judge Bloom and
the state courts disagree. As previously discussed, the alleged errors in the
trial court’s jury instruction were harmless. Housman further argues Judge
Bloom failed to account for the impact of the evidence Markman had told her
probation officer and friend she was going to kill White, consider that trial
counsel’s defense strategy was to argue Housman lacked specific intent to
kill making it more likely the jury convicted him without finding he had specific
intent, and address the Pennsylvania Supreme Court’s decision on
Markman’s appeal that “the evidence supported a finding of [Markman]
guilt[y] as a principal or an accomplice.” Markman, 916 A.2d 586.
However, Markman’s comments that she was going to murder White
does not change the fact that Housman confessed to actually murdering
White. Likewise, regardless of trial counsel’s strategy the overwhelming
evidence yet again made it “inconceivable that the jury would have convicted
Housman merely as an accomplice to Markman, rather than as a principal in
the crime.” Housman II, 226 A.3d at 1268. And finally, the alleged
inconsistency in the Pennsylvania Supreme Court’s decisions on Markman
and Housman’s appeals do not support a finding here that an error in the trial
court’s jury instructions was anything but harmless. The Pennsylvania
Supreme Court found a jury could have convicted Markman as principal or
accomplice but at the penalty phase the jury found that Markman only played
a relatively minor role in the murder. Partially on that basis state courts and
now Judge Bloom have repeatedly affirmed that Housman cannot show
prejudice and or that there is a reasonable probability that the outcome of his
trial would have been different. Accordingly, this court agrees the trial court’s
jury instructions did not prejudice Housman and will overrule his objection on
this issue.
D. Ineffective Assistance of Counsel – Medical Examiner
Evidence
Housman argues that his counsel was additionally ineffective for failing
to introduce evidence from the medical examiner that White’s death was
caused by the gag in her mouth, rather than being choked with a wire and
Housman’s arm. He further asserts that the prosecution committed
misconduct when it elicited misleading testimony with respect to White’s
cause of death at trial and failed to correct it. The PCRA court rejected this
claim noting that at the evidentiary hearing, Housman’s counsel testified that
he had a strategic basis for not cross examining, the medical expert, Dr.
Venuti. Further the PCRA court reasoned, and the Pennsylvania Supreme
Court agreed that even if counsel was deemed ineffective for failing to
introduce this evidence the outcome of the trial would not have been
different.
Judge Bloom found that these determinations were not contrary to
established law or based on an unreasonable determination of fact. He
further noted that the evidence presented at trial, including Dr. Venuti’s
testimony, established that White died of asphyxiation, and both Markman
and Housman played a part in cutting off White’s airway—Markman by
placing a gag in White’s mouth, and Housman by pulling up on White’s neck
with a wire forcing the gag further into White’s mouth. Nonetheless Housman
objects arguing that Judge Blooms erred 1. In concluding the evidence
established that Housman’s action contributed to the blocking of White’s
airway, 2. In affirming the state court’s finding that counsel was reasonable
for not questioning the medical examiner on the topic, and 3 In his prejudice
analysis of both Housman’s claims of counsel’s ineffectiveness and
prosecutorial misconduct.
1. The Evidence Housman’s Actions Contributed to White’s
Asphyxiation
Housman argues that Judge Bloom’s conclusions regarding the
evidence of his contribution to White’s asphyxiation relied on the medical
examiner’s reference to possible, but indeterminate, contributing factors and
therefore was inaccurate based on the factual record. Specifically, Housman
claims that Judge Bloom and the state courts unreasonably relied on the
medical examiner’s testimony that the wire Housman used “could have
forced the gag further back into the victim’s mouth, obstructing the airway,”
to rebut Housman’s contention that the gag, which Markman had forced into
White’s mouth, was the only certain cause of death. Housman II, 226 A.3d
at 1271.
However, a reading of the subsequent paragraphs of the Pennsylvania
Supreme Court’s opinion reveals that the court did not rely entirely on the
medical examiner’s testimony. The court found that “Housman’s own
admission that he strangled the victim with a speaker wire, was sufficient to
permit the jury to conclude that he intentionally, deliberately, and with
premeditation participated in the murder of Leslie White.” Id. Thus, “even if
the actual cause of the victim’s death was asphyxia due to the cloth in her
mouth and the gag around her face, and not the speaker wire around her
neck, the evidence clearly was sufficient to convict Housman of first-degree
murder. Id. citing Commonwealth v. May, 887 A.3d 750, 757 (2005)
(Appellant’s active participation in the killing of two victims, including cutting
the throat of and shooting one of the victims, was sufficient to prove that he
harbored a specific intent to kill, such that, even if he did not inflict the specific
injuries that caused each of the victim’s deaths, he properly was convicted
of first-degree murder because the evidence proved he clearly shared that
intent with his accomplice); Commonwealth v. Daniels, 963 A.2d 409, 428
(2009)(Rejecting claim that counsel was ineffective for failing to secure
testimony of a pathologist as to specific cause of death, and emphasizing
that “PCRA defense experts' opinions on the specific cause of death say little
about appellees’ intention−which was a very different question.... [A]ppellees
controlled the circumstances surrounding [the victim's] death every step of
the way and ... those circumstances fully supported a finding of an intent to
kill beyond a reasonable doubt.”) Accordingly, this court agrees with Judge
Bloom and will overrule Housman’s objection on this issue.
2. Counsel’s Questioning of the Medical Examiner
Housman argues that Judge Bloom and the state courts’ conclusion
that counsel had a strategic reason for not questioning the medical examiner
more thoroughly about White’s cause of death were unreasonable.
Specifically, he asserts that the strategy counsel testified about at the PCRA
hearing to stay out of this issue given that the evidence indicated both
Housman and Markman played a role in White’s death is inconsistent with
the record in that counsel did question Dr. Venuti about the absence of
ligature marks on White’s neck or other signs of strangulation. As such
Housman characterizes counsel’s strategy as an “after-the-fact
rationalization” of his ineffectiveness.
While Housman is correct that Judge Bloom did not address this
inconsistency, it has no bearing on his ultimate conclusion on this issue
because Housman was not prejudiced by counsel’s alleged ineffectiveness.
Housman confessed to strangling White. On that basis alone the jury could
have convicted him of first-degree murder. Accordingly, Dr. Venuti’s
testimony and counsel’s cross-examination of her were not dispositive and
the court will overrule Housman’s objection on this issue.
3. Judge Bloom’s Prejudice Analysis
Housman argues Judge Bloom and the state court again applied the
wrong standard in assessing the prejudice from his counsel’s alleged
ineffectiveness. According to Plaintiff Judge Bloom and the state courts’
sufficiency of the evidence analysis is contrary to clearly established federal
law because the proper standard is whether “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 693
(1984). However, ever under this standard Housman was not prejudiced.
There is no reasonable probability that aside from counsel’s failure to further
cross-examine Dr. Venuti about the cause of White’s death the jury would
not have convicted Housman of first-degree murder because Housman also
confessed to strangling White. Accordingly, Housman was not prejudiced by
counsel’s alleged ineffectiveness under his own standard and the court will
overrule his objection on this issue.
E. Miranda Violations
Housman argues that his confession is inadmissible because he did
not waive his Miranda rights, and that even if he did waive his rights, any
waiver was not knowing and voluntary. He asserts that prior to giving police
his inculpatory statement, he invoked the right to counsel and to remain
silent, and after he started taking to the police, he did not understand what
constituted a waiver. On direct appeal, Housman claimed that he was denied
his right to counsel when he was questioned about White’s murder, in
connection with his arrest for stealing her Jeep. The Pennsylvania Supreme
Court denied this claim finding that Housman “received Miranda warnings
and waived them before making incriminating statements. Thus, there was
no Miranda violation warranting suppression of his statements to police.”
Housman I, 986 A.2d at 839-40.
Judge Bloom found that this was a reasonable application of the law
because Housman’s recorded confession indicates that officers informed
him several times that if he did not wish to speak to them, they would leave
the room. The officers further advised him of his right to remain silent and
counsel, and that he could re-invoke his rights at any time, and they would
stop questioning him. Housman also signed a waiver of his Miranda rights
before confessing to murdering White with Markman. Nonetheless Housman
objects arguing that Judge Blooms erred 1. When he concluded that
Housman received Miranda warnings and waived them and 2. By not
acknowledging Housman did not understand the meaning of the word
“waiver” when officers took his confession.
1. Housman Receipt and Waiver of his Miranda Rights
Housman argues that Judge Bloom’s interpretation of his recorded
confession is incomplete and erroneous in that officer’s continued to
question Housman even after he informed them that he did not wish to speak
or waive his Miranda rights. In support of this argument Housman cites out
of context two lines from his confession transcript:
OLIVER: Having these rights in mind, do you wish to waive them at
this point and talk to us in here right now?
HOUSMAN: Uh, naugh, you said, I could stop at any time.
(Doc. 4 at 5)
However, a complete reading of the transcript reveals that Housman was not
refusing to speak with officers. In fact, it reveals that Housman agreed to
waive his rights and, in the exchange, cited above was actually only asking
for clarification as to his ability to re-invoke his rights. The complete
exchange reads as follows:
OLIVER: This is, this, listen, this is, I’m advising you of your
Constitutional Rights. Before we ask you any questions, you must
understand your rights. First, you have the right to remain silent,
Secondly, anything you say can be used in court. Third, if you, third,
I’m really having a hard at 4:20 in the morning. I apologize. You have
the right to talk to a lawyer for advice before we ask you any questions
and to have a lawyer with you during questioning. If you cannot afford
a lawyer, one will be appointed for you without cost to you before any
questioning if you wish. And if you choose to answer questions, you
can stop answering at any time. So if you’re agreeing to talk to us here
at the beginning, later on you decide you don’t want to, you can quit.
Okay.
HOUSMAN: Okay.
OLIVER: You understand what I’ve just read to you?
HOUSMAN: Yes sir.
OLIVER: Having these rights in mind, do you wish to waive them at
this point and talk to us in here now.
HOUSMAN: Uh, naugh, you said I could stop at any time.
OLIVER: You can stop at any time.
HOUSMAN: If I waiver them though…
OLIVER: No, if you waive them, you can still stop at any time.
(Id.)
Accordingly, it’s Housman’s interpretation of the recording not Judge
Bloom’s that is incomplete and erroneous and the court will overrule his
objection on this issue.
2. Housman’s Understanding of the Word “Waiver”
Housman argues that to the extent he waived his Miranda rights, the
waiver was not voluntary, knowing, and intelligent because he did not
understand the meaning of the word “waiver.” Specifically, he points to the
section of his confession transcript where he expressed confusion over the
meaning of the word “waiver” saying, “I just say it was confusing because
you waiver and I know waiver means whether or not.” (Doc. 4, p. 6) However,
contrary to Housman’s assertions this confusion does not indicate he did not
understand his rights. The full transcript indicates that Housman was read
his rights, affirmed that he understood those rights, and was told multiple
times that once he started talking he could stop at any time. Accordingly,
regardless of whether Housman knew the meaning of the word waiver, he
knew his rights and that once he started talking despite those rights he could
stop talking at any time, and the court will overrule his objection on this issue.
F. Cumulative Errors
Housman argues that the cumulative errors of the trial court and his
trial and appellate counsel described above warrant habeas relief. However,
Judge Bloom concluded that Housman’s claims regarding his counsel’s
ineffectiveness and the trial court’s errors to be without merit. See Aponte v.
Eckard, 2016 WL 8201308, at *20 (E.D. Pa. June 3, 2016) (“The cumulative
error doctrine requires the existence of ‘errors’ to aggregate. Absent such
errors by counsel, the cumulative error doctrine does not apply.”)
Nonetheless, Housman claims that Judge Bloom assumed the trial court’s
first-degree murder instruction was in fact erroneous and disposed of that
claim on prejudice alone, so it was wrong for him to later assert there were
no errors to aggregate.
To the extent Judge Bloom or this court found that the trial court or
Housman’s counsel committed errors as discussed above this court finds
that those errors were harmless because absent all of these alleged errors
the jury still could have convicted Housman of first-degree murder based on
his confession alone. Accordingly, even aggregating any errors in his
underlying conviction Housman is not entitled to relief based on the
cumulative error doctrine and the court will overrule his objection on this
issue.
G. Certificate of Appealability
To receive a certificate of appealability a petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of [his/her]
constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484, (2000). Here Judge Bloom concluded that Housman has made no such
showing, nor can he given the state court findings and clear evidence of his
factual guilt. Nonetheless Housman argues that jurist of reason could debate
Judge Bloom’s recommended disposition. In support of this claim, he cites
Justice Baer’s dissent on his initial direct appeal. Housman I, 986 A.2d at
848 (Baer, J., dissenting).
While some of the arguments raised here were also raised on direct
appeal, the inquiry here is not whether reasonable jurist would disagree on
the disposition of Housman direct appeal or even on Judge Bloom’s report
and recommendation but on this court’s disposition of the instant habeas
petition. Furthermore, much has changed since the Pennsylvania Supreme
Court originally affirmed Housman’s conviction. First and foremast his death
sentence has been vacated and his case was re-reviewed under the PCRA,
including a three-day evidentiary hearing, that confirmed the Pennsylvania
Supreme Court’s majority decision as it pertains to the claims at issue here.
As a result, the Pennsylvania Supreme Court including Justice Baer
affirmed the PCRA court’s findings and denial of a new guilt trial. Accordingly,
no reasonable jurist could not disagree with this court’s disposition of the
instant petition and a certificate of appealability will not be issued.
IV. CONCLUSION
Based on the aforesaid Housman’s objections (Doc. 51) will be
overruled, Judge Bloom’s report and recommendation (Doc. 46) will be
adopted in its entirety as the decision of the court, Housman’s petition for
habeas corpus (Doc. 1) will be denied, a certificate of appealability will not
be issued, and the Clerk of Court will be directed to close this case.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: August 1, 2024
20-1198-03