COLEMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEREK WAYNE JACKSON,

Petitioner,

v. CIVIL ACTION NO. 13-5932

BRIAN COLEMAN, et al.,

Respondents.

MEMORANDUM OPINION

Rufe, J. December 23, 2025

Before the Court is Petitioner Derek Wayne Jackson’s Amended Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254. After reviewing the Report and Recommendation

(“R&R”) issued by the Magistrate Judge and the objections thereto, the Court entered an order

scheduling an evidentiary hearing for three of the five claims in the Petition and deferring a final

ruling on the Petition.1 Upon consideration of all records and objections in this case, the

testimony presented at the parties’ November 4, 2021 evidentiary hearing, and the additional

evidence that the parties submitted by stipulation thereafter, the Court will grant the Petition for

the reasons stated herein.

I. BACKGROUND

The R&R accurately sets forth the facts and procedural history of this case, and the Court

adopted this factual and procedural background in its Memorandum Opinion dated September 3,

2021.2 The relevant portions of that background are summarized below and, where relevant, are

1 Jackson v. Coleman, 558 F. Supp. 3d 210 (E.D. Pa. Sept. 3, 2021) [Doc. No. 90]. The five claims referred to are

the subset of claims on which Petitioner decided to proceed when he filed his Memorandum of Law in Support of

Petition for Writ of Habeas Corpus. Pet.’s Mem. L. at 4 [Doc. No. 63]. All other claims were withdrawn.

2 R&R at 2-8 [Doc. No. 64]; Jackson v. Coleman, 558 F. Supp. 3d 210, 213 n.2 (E.D. Pa. Sept. 3, 2021) [Doc. No.

90].

supplemented by facts drawn from new record evidence that was presented after the publication

of the Memorandum Opinion.

On April 19, 2005, Petitioner was arrested and interrogated for the murder of his mother.3

Petitioner waived his Miranda rights and gave a full confession.4 At the time, he informed law

enforcement that he had been treated for mental disorders but was not regularly taking his

prescribed medications.5 Petitioner’s court-appointed trial counsel obtained an expert

psychiatrist, John S. O’Brien II, M.D., J.D., who opined that Petitioner had schizoaffective

disorder with “auditory hallucinations and paranoid ideation and possible delusions.”6 Dr.

O’Brien found Petitioner competent to stand trial and that, at the time of the offense, Petitioner

could “understand the nature, quality and wrongfulness of his acts” despite being unable to

“conform his conduct to the requirements of law.”7 In forming his opinions, Dr. O’Brien relied

upon Petitioner’s psychiatric records from 2001 to 2004.8 However, trial counsel did not obtain,

and therefore did not provide to Dr. O’Brien, psychiatric records corresponding to the eight

months leading up to the murder.9

On June 15, 2005, Petitioner was arraigned on four Bills of Information charging him

with crimes including first-degree murder, 18 Pa. Cons. Stat. Ann. § 2502(a), and tampering with

or fabricating physical evidence, 18 Pa. Cons. Stat. Ann. § 4910(1).10 The bill corresponding to

3 R&R at 2 [Doc. No. 64]; Crim. Compl. at 3-4 [Doc. No. 8-2].

4 R&R at 2 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 12, 29-34 [Doc. No. 8-47]; Trial Exs. C-1, C-2 [Doc. No. 8-50

at 105-16].

5 R&R at 2 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 44-45 [Doc. No. 8-47]; Trial Ex. C-2 [Doc. No. 8-50 at 106-

16].

6 R&R at 2 [Doc. No. 64]; Am. PCRA Pet., Ex. A [Doc No. 8-116 at 14].

7 R&R at 2-3 [Doc. No. 64]; Am. PCRA Pet., Exs. A, B [Doc No. 8-116 at 9-19].

8 Am. PCRA Pet., Exs. A, B [Doc No. 8-116 at 9-19].

9 Am. PCRA Pet., Exs. A, B [Doc No. 8-116 at 9-19]; Pet.’s Sealed App’x at 232-236 [Doc. No. 63-1].

10 R&R at 3 [Doc. No. 64]; 6/15/05 Arraignment Tr. at 2-5 [Doc. No. 8-17].

the latter charge mistakenly listed the elements of a different crime, tampering with public

records or information, 18 Pa. Cons. Stat. Ann. § 4911.11

On August 22, 2005, trial counsel moved to suppress all statements from the arrest and

interrogation due to serious mental illness that prevented Petitioner from understanding his

constitutional rights.12 At the suppression hearing, Detective Samuel Gallen testified that

Petitioner had understood his Miranda waiver.13 Although Petitioner testified that he was not

read his Miranda rights, trial counsel did not present additional evidence that Petitioner lacked

the capacity to understand and remember those rights.14 Specifically, trial counsel did not put

forward evidence of Petitioner’s psychiatric hospitalizations, did not introduce the reports of Dr.

O’Brien and other physicians of Petitioner’s history of psychosis, and did not call any other

witnesses.15 The trial court denied Petitioner’s suppression motion, finding that Petitioner’s

testimony did not “call[] into question . . . his ability to understand the interrogation.”16 The trial

court accordingly determined that Petitioner waived his right to counsel and right against self-

incrimination voluntarily, knowingly, and intelligently.17

The Commonwealth then moved to preclude Petitioner from presenting psychiatric

evidence at trial.18 Trial counsel did not oppose the motion because (1) Dr. O’Brien had opined

that Petitioner was legally sane at the time of the murder; and (2) Petitioner had not authorized

11 R&R at 3 [Doc. No. 64]; Bills of Inf. [Doc. Nos. 8-14, 8-15].

12 R&R at 3-4 [Doc. No. 64]; Omnibus Mtn. Suppr. at 2-3 [Doc. No. 8-24]. With his suppression motion, trial

counsel also filed a notice of insanity defense, but he ultimately declined to proceed with such a defense. 1/23/06

Suppr. Hr’g Tr. at 89-90 [Doc. No. 8-47].

13 R&R at 4 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 45-49 [Doc. No. 8-47].

14 R&R at 4 [Doc. No. 64]; see generally 1/23/06 Suppr. Hr’g Tr. [Doc. No. 8-47].

15 R&R at 4 [Doc. No. 64]; see generally 1/23/06 Suppr. Hr’g Tr. [Doc. No. 8-47].

16 R&R at 4 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 83-84 [Doc. No. 8-47].

17 R&R at 4 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 83-84 [Doc. No. 8-47].

18 R&R at 4 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 89 [Doc. No. 8-47].

trial counsel to admit to the criminal act, which trial counsel believed to be necessary to advance

an insanity defense or diminished capacity defense supported by psychiatric evidence.19 The trial

court granted the Commonwealth’s motion.20

At trial, the Commonwealth introduced Petitioner’s confession, which included

Petitioner’s acknowledgement to investigating officers of his history of serious mental illness.21

Trial counsel did not introduce any evidence of Petitioner’s psychiatric conditions at trial—

whether to discredit the confession or at any other juncture.22 During closing arguments, despite

the later order barring psychiatric evidence, the prosecution attempted to exploit the dearth of

psychiatric evidence in its favor, stating: “Do you think for one nanosecond that if [Petitioner]

had any psychiatric testimony to back that up, that you wouldn’t have heard it?”23 Trial counsel

did not object to that statement, nor did he move for a mistrial or request a curative instruction.24

No curative instruction was given.25 Petitioner was found guilty of first-degree murder,

possessing instruments of crime, abusing a corpse, and tampering with or fabricating physical

evidence.26 He was sentenced to life imprisonment.27 On direct appeal, he argued that the trial

court erred in denying his motion to suppress, and the Pennsylvania Superior Court affirmed.28

Petitioner did not appeal further.

19 R&R at 4-5 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 89-90 [Doc. No. 8-47]; 11/4/21 Evid. Hr’g Tr. at 29, 31-32

[Doc. No. 116].

20 R&R at 5 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 91-92 [Doc. No. 8-47].

21 R&R at 5 [Doc. No. 64]; 1/24/06 Tr. at 37-55 [Doc. No. 8-49]; Trial Ex. C-2 [Doc. No. 8-50 at 106-16].

22 R&R at 5 [Doc. No. 64]; See generally 1/24/06 Tr., 1/25/06 Tr. [Doc. Nos. 8-49, 8-50].

23 R&R at 6 [Doc. No. 64]; 1/25/06 Tr. at 20, 23 [Doc. No. 8-50].

24 1/25/06 Tr. at 23 [Doc. No. 8-50].

25 See generally 1/25/06 Tr. [Doc. No. 8-50].

26 R&R at 6 [Doc. No. 64]; 1/25/06 Tr. at 94-95 [Doc. No. 8-50].

27 R&R at 6 [Doc. No. 64]; Sentencing Tr. at 17-18 [Doc. No. 8-65].

28 R&R at 6 [Doc. No. 64]; See Commonwealth v. Jackson, 1371 EDA 2006 (Pa. Super. Ct. 2007) [Doc. No. 8-88].

Petitioner then filed a timely petition under the Pennsylvania Post Conviction Relief Act

(“PCRA”) and later amended that petition after being appointed PCRA counsel.29 He did not

raise issues related to the suppression hearing but rather argued that trial counsel was ineffective

in failing to object to the elements of the tampering instruction, which were stated correctly at

trial but not in the Bill of Information.30 The PCRA court dismissed the petition, and the Superior

Court affirmed.31

On October 7, 2013, Petitioner filed in this Court a timely pro se Petition for Writ of

Habeas Corpus alleging ineffectiveness because trial counsel did not challenge the discrepancy

in the record concerning the tampering instruction.32 He filed a timely pro se supplement to his

Petition for Writ of Habeas Corpus on November 22, 2013, adding an ineffective assistance

claim based on trial counsel’s failure to present psychiatric evidence at the suppression hearing.33

Upon obtaining habeas counsel in 2015, Petitioner filed the Amended Petition that is currently

pending.34 As stated in a subsequently filed Memorandum of Law, Petitioner decided to proceed

on a subset of the claims in the Amended Petition.35 As such, he argues that he was cumulatively

prejudiced by trial counsel’s failures to (1) present evidence to suppress his confession; (2) offer

evidence at trial to discredit his confession; (3) object to the tampering instruction; (4) present

mental health evidence at trial showing he lacked the specific intent to kill; and (5) seek a

29 R&R at 7 [Doc. No. 64]; See Initial PCRA Pet. [Doc. No. 8-92]; Am. PCRA Pet. [Doc. No. 8-116].

30 R&R at 7 [Doc. No. 64]; See generally Am. PCRA Pet. [Doc. No. 8-116]. Petitioner also requested in the

amended PCRA petition that the PCRA court appoint an expert to re-evaluate his competency. See Am. PCRA Pet.

[Doc. No. 8-116]; Pet. Appt. For. Psych. [Doc. No. 8-113].

31 R&R at 7 [Doc. No. 64]; 6/16/11 Final Order [Doc. No. 8-119]; Commonwealth v. Jackson, 1904 EDA 2011 (Pa.

Super. Ct. 2012) [Doc. No. 8-135].

32 R&R at 7 [Doc. No. 64]; Pet. Habeas Corpus [Doc. No. 1]. See 28 U.S.C. § 2254.

33 R&R at 7 [Doc. No. 64]; Supplement Pet. Habeas Corpus [Doc. No. 2].

34 R&R at 1, 7-8 [Doc. No. 64]; Am. Pet. Habeas Corpus [Doc. No. 30].

35 Pet.’s Mem. L. at 4 [Doc. No. 63].

mistrial due to prosecutorial misconduct.36 Petitioner also included a sixth claim asserting

cumulative error.

The R&R recommended that Claim 3 be dismissed for lack of merit and that Claims 2, 4,

and 5 be dismissed as time-barred because they were raised after the one-year limitations

period37 had expired and because the doctrine of equitable tolling did not apply.38 The R&R

recommended that an evidentiary hearing be held as to Claim 1 to assess whether trial counsel

was ineffective in failing to present psychiatric evidence to suppress Petitioner’s confession and,

relatedly, whether PCRA counsel was ineffective due to an investigation of trial counsel’s

representation that Petitioner alleged to be insufficient.39

After objections were filed and briefed, on September 3, 2021, the Court issued an

opinion disagreeing with the R&R’s recommendation.40 The Court ordered that an evidentiary

hearing be held as to each of Claims 1, 2, and 4, because Claims 2 and 4 related back to Claim

1.41 The Court deferred its final ruling on all of Petitioner’s claims.42 At the evidentiary hearing,

held on November 4, 2021, before this Court, Petitioner introduced testimony solely from his

trial counsel.43 On February 28, 2022, the parties submitted additional stipulated facts and

36 The Court follows the convention of the R&R by treating Claim A in Petitioner’s Memorandum of Law as two

separate claims—one for trial counsel’s failure to put forth evidence to suppress the inculpatory statements before

trial and one for failure to discredit his statements at trial.

37 See 28 U.S.C. § 2244(d)(1).

38 R&R at 9-15, 20-21 [Doc. No. 64].

39 R&R at 15-20, 22 [Doc. No. 64].

40 Jackson v. Coleman, 558 F. Supp. 3d 210 (E.D. Pa. Sept. 3, 2021) [Doc. No. 90].

41 Id. at 216-18.

42 Id. at 220; 9/3/21 Order [Doc. No. 91]. The Court found that Claims 1, 2, and 4 related back to the same operative

core of facts such that they were timely and reviewable. Jackson v. Coleman, 558 F. Supp. 3d 210, 216-18 [Doc. No.

90].

43 11/4/21 Evid. Hr’g Tr. [Doc. No. 93].

evidence, including a 2016 report of Dr. O’Brien and a declaration of PCRA counsel, which

were each jointly submitted in lieu of live testimony, without objection.44

II. LEGAL STANDARDS

A. Review of Habeas Corpus Petitions Under the AEDPA

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal

courts may grant writs of habeas corpus to petitioners whose placement in state custody is “in

violation of the Constitution or laws or treaties of the United States.”45 In evaluating a petition

that was referred to a magistrate judge, the district court “shall make de novo determination of

those portions of the report or specified proposed findings or recommendations to which

objection is made.”46 The district court “may accept, reject, or modify . . . the findings or

recommendations made by the magistrate judge” and, as the Court has here, “may also receive

further evidence.”47 Nonetheless, factual determinations of the state court “ ‘shall be presumed to

be correct,’ unless the petitioner rebuts the presumption of correctness by clear and convincing

evidence.”48

As a prerequisite for relief under the AEDPA, a petitioner must exhaust state court

remedies that are available for effectively safeguarding his rights.49 To exhaust those remedies, a

petitioner must fairly present his claims in “one complete round of the State’s established

44 2/28/22 Joint Stipulations [Doc. No. 98].

45 28 U.S.C. § 2254(a)).

46 28 U.S.C. § 636(b)(1); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b).

47 28 U.S.C. § 636(b)(1).

48 Howell v. Superintendent Rockview SCI, 939 F.3d 260, 264 (3d Cir. 2019) (quoting Lambert v. Blackwell, 387

F.3d 210, 234 (3d Cir. 2004)); see also 28 U.S.C. § 2254(e)(1).

49 28 U.S.C. § 2254(b).

appellate review process.”50 If a petitioner cannot prove a claim is exhausted, then the claim is

procedurally defaulted and is generally unreviewable.51 However, as an exception, procedurally

defaulted claims are reviewable if a petitioner shows cause for the default and actual prejudice

from the violation of federal law, or demonstrates that a failure to consider the claim will result

in a fundamental miscarriage of justice.52

Provided that a claim is reviewable under the AEDPA, courts will grant relief only if the

state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States”; or (2) “based

on an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.”53 A decision is, “contrary to” clearly established federal law, if the state court

“ ‘applies a rule that contradicts the governing law set forth’ in Supreme Court precedent, or if it

‘confronts a set of facts that are materially indistinguishable from a decision of the Supreme

Court and nevertheless arrives at a result different’ from that reached by the Supreme Court.”54

Alternatively, an “unreasonable application” of clearly established federal law occurs where “the

state court identifies the correct governing legal principle from [the Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.”55 “The ‘unreasonable

50 O’Sullivan v. Boerkel, 526 U.S. 838, 845, 848 (1999); see also Rodland v. Superintendent of SCI Houtzdale, 837

F. App’x 915, 919 (3d Cir. 2020); 28 U.S.C. § 2254(c).

51 McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

52 Id. (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

53 28 U.S.C. § 2254(d).

54 Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000))

(alteration and citation omitted).

55 Williams v. Taylor, 529 U.S. 362, 413 (2000).

application’ clause requires the state court decision to be more than incorrect or erroneous. The

state court’s application of clearly established law must be objectively unreasonable.”56

B. The Ineffective Assistance of Counsel Standard

The Sixth Amendment guarantees criminal defendants “the right to the effective

assistance of counsel.”57 As explained in Strickland,58 a successful ineffectiveness claim requires

establishing (1) that “counsel’s performance was deficient,” and (2) that the deficient

performance prejudiced the petitioner by depriving him of a fair trial.59

To satisfy the deficient performance requirement, the petitioner must show that counsel’s

representation “falls below ‘an objective standard of reasonableness.’ ”60 When evaluating

counsel’s performance, courts presume that “counsel’s conduct falls within the wide range of

reasonable professional assistance.”61 To satisfy the prejudice requirement, the petitioner must

demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.”62 A “reasonable probability” is defined

as “a probability sufficient to undermine confidence in the outcome.”63 This analysis must take

into account “the totality of the evidence before the judge or jury.”64 If the state court already

adjudicated the merits of the ineffectiveness claim, review of that claim in federal court is

56 Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citation omitted).

57 Garza v. Idaho, 139 S. Ct. 738, 743 (2019) (quoting Strickland v. Washington, 466 U.S. 668, 686 (1984)).

58 466 U.S. 668.

59 Id. at 687; see also Williams v. Superintendent Green SCI, 112 F.4th 155, 166-67 (3d Cir. 2024).

60 Superintendent Green SCI, 112 F.4th at 167 (quoting Strickland, 466 U.S. at 688).

61 Strickland, 466 U.S. at 689.

62 Id. at 694.

63 Id.

64 Id. at 695.

“doubly” deferential.65 The question is no longer “whether counsel’s actions were reasonable”

but rather “whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.”66

III. DISCUSSION

The Court’s examination of Petitioner’s claims proceeds in two parts. First, the Court

analyzes the claims stemming from the core issue in this case: trial counsel’s failure to

investigate and present psychiatric evidence. Those claims are evaluated upon the updated

evidentiary record, which includes the testimony presented at the November 4, 2021 evidentiary

hearing and the stipulations presented thereafter. Second, the Court considers Claim 3, which is

unrelated to trial counsel’s nonuse of psychiatric evidence. That claim is evaluated based on the

record existing when the September 3, 2021 Memorandum Opinion was issued.

A. Trial Counsel’s Failure to Investigate, Present, and Invoke Psychiatric

Evidence Throughout the Trial Court Proceedings

In Claims 1, 2, and 4, Petitioner alleges that trial counsel was ineffective in failing to

investigate, develop, and present psychiatric evidence of Petitioner’s mental illness.67 In Claim 5,

Petitioner argues that trial counsel provided ineffective representation by failing to object, or

seek a curative instruction or mistrial, when the prosecution untruthfully suggested to the jury

that no such psychiatric evidence existed.68

65 Harrington v. Richter, 562 U.S. 86, 105 (2011); see also Burt v. Titlow, 571 U.S. 12, 15 (2013).

66 Harrington, 562 U.S. at 105.

67 Pet.’s Mem. L. at 4-34 [Doc. No. 63].

68 Pet.’s Mem. L. at 35-41 [Doc. No. 63].

1. Relation Back

Having determined that Claims 2 and 4 relate back to Claim 1 so as to be timely under

the one-year limitations period,69 the Court must likewise make a ruling on whether Claim 5

relates back to Claim 1.

Claim 5 does relate back. In Mayle v. Felix, the Supreme Court held that an untimely

habeas claim relates back to a timely claim if the claims are “tied to a common core of operative

facts.”70 In Mayle, the Court rejected the petitioner’s argument that a Fifth Amendment claim

stemming from the trial judge’s admission of his pretrial statements related back to a timely

Sixth Amendment claim challenging the trial judge’s admission of an informant’s out-of-court

statements.71 The Court reasoned that the events of the two different claims were “separate in

‘both time and type’ ” and therefore did not “ar[ise] out of the conduct, transaction, or occurrence

set forth or attempted to be set forth in the original pleading.”72 “The Court further explained that

two claims merely arising from the same ‘conviction or sentence’ cannot be enough to satisfy the

relation back standard.”73

To explain when relation back does apply, the Supreme Court cited Woodward v.

Williams.74 There, the Tenth Circuit concluded that an untimely claim related back where the

petitioner, having challenged the trial court’s admission of his recanted statements, amended his

petition to challenge the court’s refusal to admit evidence that the statements were recanted.75 To

69 See Jackson v. Coleman, 558 F. Supp. 3d 210, 216-18 (E.D. Pa. 2021) [Doc. No. 90]; 28 U.S.C. § 2244(d)(1).

70 Mayle v. Felix, 545 U.S. 644, 647 (2005).

71 Id. at 650.

72 Id. at 656-657.

73 Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221, 237 (3d Cir. 2017) (quoting Mayle, 545 U.S. at 657).

74 Mayle, 545 at 664 n.7.

75 Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 2001).

relate back, therefore, the substantive ruling or action under challenge need not be identical for

both claims, so long as the underlying operative facts are the same. The Ninth Circuit also

adheres to this understanding, writing that “the ‘time and type’ language in Mayle refers not to

the claims, or grounds for relief” but rather to “the facts that support those grounds.”76

Moreover, as the Third Circuit explained in United States v. Santarelli, “ ‘[i]n searching for a

common core of operative facts in the two pleadings,’ courts should remain aware that the

touchstone for relation back is fair notice, because [Federal Rule of Civil Procedure] 15(c) is

premised on the theory that a party who has been notified of litigation concerning a particular

occurrence has been given all the notice that statutes of limitations were intended to provide.”77

Here, though Petitioner did not file a timely habeas claim challenging the statements in

the prosecution’s closing argument, the facts supporting that claim align with those underlying

Claims 1, 2, and 4. All four claims embody trial counsel’s failure to integrate Petitioner’s

deteriorated mental state into his defense, and, as in Woodward, the untimely Claim 5 implicates

the same body of evidence as the other claims. As further proof of the claims’ interrelationship,

the prosecutor was positioned to impugn the defense for not presenting psychiatric evidence only

due to his own pretrial motion barring that evidence.78 According to the allegations in the

Petition, whether by trial counsel’s ignorance or the prosecutor’s deception, Petitioner’s access to

a psychiatric defense was unfairly stifled and then exploited against him in a single,

interconnected transaction. Consistent with Santarelli, Claim 1 notified the Commonwealth that

the absence of psychiatric evidence was at issue, thus alerting the Commonwealth to the

76 Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013), abrogation on other grounds recognized by, Bejarano v.

Reubart, 136 F.4th 873, 885 (9th Cir. 2025).

77 United States v. Santarelli, 929 F.3d 95, 101 (3d Cir. 2019), abrogated on other grounds by, Rivers v. Guerrero,

605 U.S. 443 (2025).

78 R&R at 4 [Doc. No. 64]; 1/23/06 Suppr. Hr’g Tr. at 89 [Doc. No. 8-47].

relevance of statements exploiting the dearth in that evidence. In sum, then, the prosecutor’s

underhanded comments were part of the core of operative facts that Petitioner sought review of

when he brought a claim challenging trial counsel’s withholding of psychiatric evidence at the

suppression hearing. Claim 5 relates back to Claim 1 and is thereby timely.79

The Court must next resolve whether the claims are barred from review based on a

procedural default and, if not, whether the ineffective assistance claims succeed on the merits.

2. Procedural Default

Petitioner concedes that Claims 1, 2, 4, and 5 are procedurally defaulted because he failed

to raise them in his Pennsylvania PCRA petitions.80 As a threshold matter, the Court must

determine whether the procedural default is excusable under Martinez v. Ryan81.

In Martinez, the Supreme Court held that a prisoner may demonstrate cause to excuse a

procedural default of an ineffective-assistance-of-trial-counsel claim by showing that (1) counsel

in the state collateral review proceeding was ineffective under Strickland; (2) trial counsel’s

ineffectiveness was “substantial,” giving rise to an ineffectiveness claim of “some merit”; (3) the

state collateral proceeding was the first opportunity to challenge trial counsel’s effectiveness; and

(4) state law required ineffective assistance claims to be raised in the initial collateral

proceeding.82 Martinez responded to the concern that, without this exception to the procedural

default rule, some meritorious constitutional claims would never receive federal review simply

79 In Claim 5, Petitioner also argues that the prosecutor made improper statements at closing argument by appealing

to racial stereotypes. Pet.’s Mem. L. at 37-38 [Doc. No. 63]. Because those statements were not connected to the

prosecutor’s pretrial efforts to bar psychiatric evidence, they do not qualify as timely under the relation back

doctrine.

80 See, e.g., Pet.’s Mem. L. at 26 [Doc. No. 63].

81 566 U.S. 1 (2012).

82 Id. at 14-15; Trevino v. Thaler, 569 U.S. 413, 423 (2013) (formulating the holding of Martinez in terms of the four

factors).

on account of counsels’ errors.83 If cause is shown under this standard, courts will “reach the

merits of the underlying claim of ineffective assistance of trial counsel,” although showing cause

does not itself require habeas relief to be granted.84

To begin with, prongs three and four of the Martinez standard are met. Petitioner’s PCRA

proceedings were his initial opportunity to raise trial counsel’s ineffectiveness, as Pennsylvania

law precluded him from doing so on direct appeal.85 His failure to raise these claims in a PCRA

petition resulted in their waiver as a matter of state law.86

Next, under the first prong of Martinez, Petitioner argues that PCRA counsel was

ineffective under Strickland by failing to investigate and raise ineffective assistance claims—

corresponding to Claims 1, 2, and 4—based on trial counsel’s failure to obtain and use

psychiatric evidence during the trial court proceedings, and ineffective in failing to raise Claim 5

based on trial counsel’s failure to object to prosecutorial misconduct at closing argument.87

Petitioner asserted that additional evidence would show that PCRA counsel lacked a reasonable

basis to omit these claims and that PCRA counsel failed to inquire with trial counsel and Dr.

O’Brien to assess the viability of challenging trial counsel’s decision to forgo presenting

psychiatric evidence.88

83 See Moses v. Dist. Att’y Phila., 133 F.4th 251, 258 (3d Cir. 2025).

84 Gaines v. Superintendent Benner Twp., 33 F.4th 705, 710 (3d Cir. 2022).

85 See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), abrogated on other grounds by, Commonwealth v.

Bradley, 261 A.3d 381 (Pa. 2021). Although the Supreme Court of Pennsylvania has since acknowledged exceptions

to the general rule that trial counsel’s effectiveness can be challenged only on collateral review, see Commonwealth

v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013), these exceptions were not clearly recognized when Petitioner directly

appealed, nor would they necessarily apply now.

86 Grant, 813 A.2d at 738; see 42 Pa. Cons. Stat. Ann. § 9544(b).

87 See Pet.’s Mem. L. at 41 [Doc. No. 63].

88 See, e.g., Pet.’s Mem. L. at 26-29 [Doc. No. 63].

Regarding the first component of Strickland, representation falls below an objective

standard of reasonableness when “there is simply no rational basis to believe that counsel’s

failure to argue . . . the issue [before the court] was a strategic choice.”89 Courts also find

representation deficient where counsel’s “incomplete investigation [is] the result of inattention,

not reasoned strategic judgment.”90

To determine whether PCRA counsel had a strategic basis for Claims 1, 2, and 4, this

Court ordered that new evidence be taken.91 In lieu of live testimony, the parties jointly

submitted a signed declaration of PCRA counsel, dated February 25, 2022.92 That declaration

confirms PCRA counsel’s failure to adequately investigate. Therein, PCRA counsel states that,

after reviewing Dr. O’Brien’s reports from 2005 and 2006, PCRA counsel was unable to reach

Dr. O’Brien, without further explanation of the steps that he took.93 The absence of any

explanation raises serious concerns about PCRA counsel’s efforts. Indeed, the Court ordered the

taking of new evidence to elicit PCRA counsel’s specific investigative steps.94 And the Court is

skeptical that PCRA counsel was powerless to reach Dr. O’Brien during his representation of

Petitioner from 2008 to 2013 because Dr. O’Brien’s 2016 report lists the same primary mailing

address as the 2005 report.95 As additional evidence of deficient performance, PCRA counsel

89 United States v. Mannino, 212 F.3d 835, 844 (3d Cir. 2000).

90 Wiggins v. Smith, 539 U.S. 510, 534 (2003).

91 Jackson v. Coleman, 558 F.3d 210, 219-20 (E.D. Pa. Sept. 3, 2021) [Doc. No. 90]; 9/3/21 Order [Doc. No. 91].

That order did not provide for additional evidence to be taken to assess PCRA counsel’s conduct as to Claim 5. The

Court concludes that, without taking further evidence, it is apparent that a miscarriage of justice would result if the

Court did not consider Claim 5 together with the other claims, for which the procedural default is excused.

92 2/28/22 Joint Stipulations at 2, Ex. S-3 [Doc. No. 98].

93 2/28/22 Joint Stipulations, Ex. S-3 ¶ 5 [Doc. No. 98].

94 Jackson v. Coleman, 558 F.3d 210, 219-20 (E.D. Pa. Sept. 3, 2021) [Doc. No. 90]; See R&R at 18 [Doc. No. 64].

95 See 2/28/22 Joint Stipulations at 1-2 [Doc. No. 98] (adopting the copy of Dr. O’Brien’s 2016 report in Petitioner’s

Sealed Appendix as part of the evidentiary record); Compare Pet.’s Sealed App’x 232-236 [Doc. No. 63-1] with

Am. PCRA Pet., Ex. A [Doc. No. 8-116 at 9].

offered no testimony suggesting that he attempted to access the missing eight months of

Petitioner’s psychiatric records leading up to the murder.96 Nor did PCRA counsel indicate that

he spoke with trial counsel about records from those eight months or about trial counsel’s

reasons for not introducing the psychiatric evidence in trial counsel’s possession to suppress

Petitioner’s confession or to defend Petitioner at trial.97

PCRA counsel’s failure to describe investigative steps taken to consult Dr. O’Brien and

trial counsel about trial counsel’s decisions is even more puzzling given his statement, “I thought

Mr. Jackson was psychotic,” and his statement, “I also thought Mr. Jackson was incompetent at

the time of his trial because he was unable to work with counsel.”98 Despite the “ ‘strong

presumption’ that an attorney’s decision to pursue some claims and decline to pursue others is a

tactical choice,” that presumption may be overcome where “significant and obvious” issues are

omitted in favor of less compelling ones.99 That is the scenario that occurred here. The two

arguments that PCRA counsel chose to present were without merit.100 However, PCRA counsel

did not present—nor did he take any thorough investigative steps to assess—more plausible

claims based on trial counsel’s failure to obtain, develop, and present psychiatric evidence in the

trial court.101 By identifying Petitioner’s obviously impaired mental condition and yet not

96 See 2/28/22 Joint Stipulations, Ex. S-3 ¶ 6 [Doc. No. 98].

97 See generally 2/28/22 Joint Stipulations, Ex. S-3 [Doc. No. 98].

98 2/28/22 Joint Stipulations, Ex. S-3 ¶ 4[Doc. No. 98].

99 Workman v. Superintendent Albion SCI, 915 F.3d 928, 942 (3d Cir. 2019).

100 PCRA counsel made an unpersuasive ineffectiveness claim, see Am. PCRA Pet. [Doc. No. 8-116], based on trial

counsel’s nonobjection to the trial court’s tampering instruction. See infra § III.B (concluding that trial counsel’s

failure to object to the tampering instruction did not prejudice Petitioner). PCRA counsel also submitted a request

for a court-appointed psychiatrist, see Pet. Appt. Forensic Psych. [Doc. No. 8-113]; Am. PCRA Pet. [Doc. No.

8-116], that the PCRA court had discretion to deny under Pennsylvania law. See Commonwealth v. Woods, 575 A.2d

601, 604 (Pa. Super. Ct. 1990) (holding that there is no constitutional right to a court-appointed expert witness in

PCRA proceedings and that trial courts maintain discretion concerning such appointments)

101 See infra § III.A.3(a)-(c), (e) (concluding that trial counsel’s representation was unreasonable based on his

failures to collect, introduce, and otherwise invoke psychiatric evidence).

investigating all records documenting that condition or the reasons for trial counsel’s failure to

offer evidence of that condition, PCRA counsel performed deficiently.102 Although the Court did

not order that new evidence be taken on PCRA counsel’s representation as to Claim 5, the Court

concludes that given the interdependence, discussed above, between Claim 5 and Claims 1, 2,

and 4, a miscarriage of justice would ensue if Claim 5 were barred from review despite the

prosecutor’s plainly objectionable conduct exploiting trial counsel’s allegedly deficient

performance as to Claims 1, 2, and 4.

Because, as to Claims 1, 2, and 4, PCRA counsel’s performance fell below the standard

of reasonable professional assistance, the Court must consider whether, but for that substandard

performance, there is a reasonable probability that Petitioner would have received a new trial.

Based on Third Circuit case law, the Court will evaluate the “prejudice” component of PCRA

counsel’s ineffectiveness through the lens of the second, and final, Martinez prong: whether the

underlying claim of ineffective assistance of trial counsel is substantial.103 The Court therefore

turns to examining the merits of Petitioner’s ineffective assistance arguments as presented in

Claims 1, 2, 4, and 5.

3. Ineffective Assistance of Counsel

Notwithstanding arguments that trial counsel unreasonably withheld the psychiatric

evidence that he had obtained, Petitioner contends that trial counsel was deficient by failing to

obtain psychiatric records corresponding to this case’s most crucial period—the eight months

102 Because PCRA counsel’s inattentiveness prevented Petitioner from raising trial counsel’s failure to obtain or use

psychiatric evidence at trial, PCRA counsel’s deficient performance extends to Claims 1, 2, and 4 for purposes of

the first Martinez prong.

103 See Richardson v. Superintendent Coal Twp. SCI, 905 F.3d 750, 764 (3d Cir. 2018) (“[Petitioner] need show only

that his ineffective-assistance claim against [trial counsel] is substantial. This proof of substantiality is also enough

to show prejudice resulting from the ineffectiveness of . . . his state-habeas counsel.”); see also Brown v. Brown,

847 F.3d 502, 513 (7th Cir. 2017).

leading up to the murder.104 Because this allegation permeates Claims 1, 2, and 4, it must be

considered in isolation. As a result, when the Court later discusses Claims 1, 2, and 4, it narrows

that inquiry to the body of psychiatric evidence that trial counsel had obtained from the

investigation he undertook. The Court then ultimately examines whether the deficiencies

attributable to trial counsel—taken cumulatively—prejudiced the outcome of his proceedings.105

a. Failure to Investigate

Dr. O’Brien’s 2016 report illustrates the importance of the missing eight months of

psychiatric records. In his 2005 and 2006 reports, which did not consider the missing records,

Dr. O’Brien diagnosed Petitioner with Schizoaffective Disorder but opined he “was able to

understand the nature, quality and wrongfulness of his acts.”106 He deemed Petitioner competent

to stand trial but did not express whether Petitioner could understand his Miranda rights or form

an intent to kill.107 Once Dr. O’Brien received records in 2016 from the missing eight-month

period, he opined differently.108 The missing records included psychiatric records from Penn

Behavioral Health “documenting a lengthy history of psychiatric treatment of [Petitioner]

between 2003 and April 2005” by Dr. Anita Gordon Bell.109 The records show that Petitioner’s

104 Pet.’s Mem. L. at 6-9, 20-22 [Doc. No. 63].

105 Cf. Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008); Saranchak v. Sec’y of Pa. Dep’t of Corr., 802 F.3d 579,

589-92 (3d Cir. 2015).

106 See Am. PCRA Pet., Ex. A [Doc. No. 8-116 at 15]. The materials that Dr. O’Brien consulted in preparation of his

2005 and 2006 reports included the Criminal Complaint; Affidavit of Probable Cause; police investigative materials

concerning the murder; records of Petitioner’s admission to the Montgomery County Youth Center in 2002

following terroristic threats; other juvenile probation records; medical records of Petitioner’s treating physician from

October 2002 to August 2003; past psychological evaluations; records from Montgomery County Emergency

Services detailing Petitioner’s psychiatric hospitalizations between June 2001 and July 2004; and documentation of

Petitioner’s inpatient psychiatric treatment from July 14, 2004 and July 22, 2004. Am. PCRA Pet., Ex. A [Doc. No.

8-116 at 9-13]. Dr. O’Brien performed his own psychiatric evaluations of Petitioner on June 1, 2005, and January

20, 2006. See Am. PCRA Pet., Exs. A, B [Doc. No. 8-116]; Pet.’s Sealed App’x at 232-36 [Doc. No. 63-1].

107 See generally Am. PCRA Pet., Exs. A, B [Doc. No. 8-116].

108 Pet.’s Sealed App’x at 232-36 [Doc. No. 63-1].

109 Pet.’s Sealed App’x at 233 [Doc. No. 63-1].

mother called Dr. Bell on March 17 and April 1, 2025.110 In those calls, Dr. Bell received the

following information:

[Petitioner] talks to himself, writes all the time, and was very paranoid, refusing to

eat food that his mother cooks. He also was reported to have stopped attending

school and to have become uncooperative with his mother’s plans to relocate to

Atlanta, Georgia. [Petitioner] had begun to decline to use a toilet and would

defecate “in a cooler” and urinate in bottles. It was noted that he blamed his mother

for his past psychiatric hospitalizations and police contacts. He was noted to be

uncooperative with psychiatric medication prescribed by his primary care physician

and non-participatory in any other form of mental health treatment.111

From these details, which are admitted in the record by stipulation and without objection, Dr.

O’Brien deemed that “in the weeks leading up to the offense, [Petitioner] was not undergoing

any mental health treatment and was grossly psychotic.”112 He opined (1) that Petitioner’s

“untreated gross psychotic symptoms would have likely interfered with his ability to understand

his Miranda rights and knowingly, intelligently and voluntarily waive those rights”; and (2) that

those symptoms “clouded [Petitioner’s] sound thinking and impaired his ability to formulate the

intent to kill his mother with a clear and rational mind.”113 Dr. O’Brien concluded that trial

counsel’s failure to elicit his testimony and, relatedly, to procure the missing medical records,

“prevented the trier of fact from appreciating the severity of [Petitioner’s] psychiatric condition

and the degree to which it likely influenced his ability to waive his Miranda rights and provide a

statement and impaired . . . his ability to formulate the intent to kill with a clear and rational

mind.”114

110 Pet.’s Sealed App’x at 233-34 [Doc. No. 63-1].

111 Pet.’s Sealed App’x at 234 [Doc. No. 63-1].

112 Pet.’s Sealed App’x at 234 [Doc. No. 63-1].

113 Pet.’s Sealed App’x at 235 [Doc. No. 63-1].

114 Pet.’s Sealed App’x at 236 [Doc. No. 63-1].

Because the state court record did not explain why trial counsel did not obtain the

missing records, this Court entertained an evidentiary hearing. Accordingly, at the November 4,

2021 hearing, trial counsel was asked, “Did you have any records in that period between August

5th, 2004, and April 19th, 2005?”115 He responded, “I can only surmise[] that I did not because I

certainly would have provided every document in my possession to Dr. O’Brien.”116 He also

stated, “I obtained what I could from the county emergency service based on a phone call and

identifying myself as the defendant’s attorney.”117 He did not offer further explanation.

Trial counsel’s unreasonably restricted investigation amounts to constitutionally deficient

performance. An incomplete investigation is justifiable if supported by “strategic choices” that

are informed by “reasonable professional judgments.”118 Absent such justification, however,

failures to reasonably pursue material evidence are indicative of constitutionally substandard

performance.119 Here, trial counsel understood the importance of Petitioner’s mental condition,

as is apparent from his attempt to suppress Petitioner’s confession based on that condition.120

Despite being squarely alert to the relevance of psychiatric records, trial counsel offered no

strategic explanation for why he did not, or could not, obtain the most clearly relevant portion of

115 11/4/21 Evid. Hr’g Tr. at 16 [Doc. No. 116].

116 11/4/21 Evid. Hr’g Tr. at 16 [Doc. No. 116].

117 11/4/21 Evid. Hr’g Tr. at 14 [Doc. No. 116].

118 Strickland, 466 U.S. at 690-691.

119 See Jacobs v. Horn, 395 F.3d 92, 101-03, 109 (3d Cir. 2005) (finding that trial counsel’s limited investigation

into the defendant’s psychiatric records contributed to deficient representation, as counsel had reason to know of the

defendant’s impairments and did not obtain mental records or question family members about the extent of those

impairments); Jermyn v. Horn, 266 F.3d 257, 306-07 (3d Cir. 2001) (reaching the same conclusion where trial

counsel did not attempt to obtain testimonial or documentary evidence of the defendant’s traumatic childhood

despite being aware of it); Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (deeming trial counsel’s performance

deficient since counsel’s failure to conduct a pretrial investigation “was not based on ‘strategy,’ but on counsel’s

mistaken beliefs”); Parkus v. Delo, 33 F.3d 933, 935-37 (8th Cir. 1994) (trial counsel’s abandonment of

investigation into the defendant’s mental health after being told that certain records were destroyed was

unreasonable given that habeas counsel obtained the missing records “[t]hrough more virgorous pursuit”).

120 Def.’s Omnibus Mot. Suppr. at 2 [Doc. No. 8-24].

those records. Hence, trial counsel performed deficiently through his failure to adequately

investigate.

The Court now considers whether trial counsel was also deficient in failing to develop

and introduce the psychiatric records in his possession as described in Claims 1, 2, and 4, and

thereafter in failing to challenge the prosecutor’s denial that any psychiatric evidence existed as

argued in Claim 5.

b. Claim 1

In Claim 1, Petitioner asserts that trial counsel was ineffective for failing to utilize

evidence at the suppression hearing that would have caused the Court to suppress Petitioner’s

confession.121 To show deficient performance as to Claim 1, Petitioner must “overcome the

presumption that, under the circumstances,” trial counsel’s failure to present at the suppression

hearing the psychiatric evidence in his possession “might be considered sound trial strategy.”122

Trial counsel’s reason for not using the available psychiatric evidence to suppress the

confession is that it would not have helped his case. At the November 4, 2021 evidentiary

hearing, trial counsel testified that he expected the trial judge to view other evidence as more

relevant on the issue of whether Petitioner’s confession and Miranda waiver were made

voluntarily, knowingly, and intelligently, such as the twelve-page statement containing the

confession, from which trial counsel thought that “[Petitioner] seemed to understand what was

happening.”123 Trial counsel also believed that, if introduced, the 2005 and 2006 reports of Dr.

O’Brien “would establish that [Petitioner had] sufficient mental capacity when he confessed.”124

121 Pet.’s Mem. L. at 10-16, 20-26 [Doc. No. 63].

122 See Strickland, 466 U.S. at 690 (quotation marks omitted).

123 11/4/21 Evid. Hr’g Tr. at 26 [Doc. No. 116].

124 11/4/21 Evid. Hr’g Tr. at 26 [Doc. No. 116].

Because Dr. O’Brien opined that Petitioner knew right from wrong, trial counsel apparently

reasoned that Dr. O’Brien would have also opined that his Miranda waiver was made voluntarily,

knowingly, and intelligently.125

Even in light of the deferential standard that the Court applies, trial counsel’s decision to

withhold psychiatric evidence was unreasonable. Trial counsel’s assumption that the trial judge

would not find this evidence persuasive does not amount to a reasonable strategic justification.

Moreover, the notion that the psychiatric evidence in trial counsel’s possession could not

strengthen the suppression motion is without support. Although Dr. O’Brien opined that

Petitioner was not criminally insane, that lofty determination was not needed to prevail on a

motion to suppress, where the Commonwealth shouldered the burden of showing that

Petitioner’s Miranda waiver was voluntary, knowing, and intelligent.126 As to those three criteria,

the Court grants that trial counsel did not act unreasonably in withholding psychiatric evidence

as to involuntariness, which would require evidence of police coercion—a factor absent from the

record.127 But trial counsel did fall short of providing reasonable representation by failing to

challenge whether the Miranda waiver was made knowingly and intelligently. A Miranda waiver

is knowing and intelligent if “made with a full awareness both of the nature of the right being

abandoned and the consequences of the decision to abandon it. [Courts] consider the totality of

the surrounding circumstances, including a defendant’s age, experience, education, background,

and intelligence.”128 Although evidence of Petitioner’s psychiatric illnesses would not guarantee

125 11/4/21 Evid. Hr’g Tr. at 26 [Doc. No. 116].

126 United States v. Anthony, No. 24-2983, 2025 WL 3110789, at *1 (3d Cir. Nov. 6, 2025).

127 See id. (“ ‘[D]efendant’s mental condition, by itself and apart from its relation to official coercion should never

dispose of’ [the voluntariness] issue.” (quoting Colorado v. Connelly, 479 U.S. 157, 164-65 (1986) (alteration

omitted))).

128 Id. at *2 (quotation marks and citation omitted).

a finding that Petitioner’s waiver was not knowing and intelligent, that evidence was important

to such an analysis and was withheld without strategic explanation.129 Accordingly, trial counsel

performed deficiently as to Claim 1.

c. Claim 2

In Claim 2, Petitioner argues that trial counsel was ineffective in withholding psychiatric

evidence at trial that could have been used to discredit his confession.130

As one reason for his withholding the evidence, trial counsel testified at the evidentiary

hearing, “based on my review of Dr. O’Brien’s report . . . I had [no] basis to conclude that

[Petitioner] wasn’t understanding what was going on that night when he was being

questioned.”131 As a broader reason, trial counsel testified that he believed that he was restricted

from doing so by the trial court’s pretrial order—moved for by the Commonwealth and

consented to by trial counsel—that purported to bar psychiatric testimony.132 Trial counsel

explained that he consented to the Commonwealth’s motion to preclude psychiatric evidence

because of his understanding that, as a matter of law, “[i]f you’re not going to advance a plea of

not guilty by reason of insanity, you don’t get to put on psychiatric evidence at trial.”133

The Court must initially determine whether trial counsel could have presented psychiatric

evidence at trial notwithstanding the pretrial order. The Court later considers Petitioner’s

129 See United States v. Crook, 502 F.2d 1378, 1381 (3d Cir. 1974) (viewing three psychiatric experts’ testimony as

significant of whether schizophrenia prevented the defendant from knowingly and intelligently waiving his Miranda

rights); Commonwealth v. Mitchell, 902 A.2d 430, 452 (Pa. 2006) (mentioning the relevance of a suspect’s mental

health to the validity of a Miranda waiver). The Court later considers whether the absence of psychiatric evidence

affected the outcome of the suppression hearing. See infra § III.A.2(f).

130 Pet.’s Mem. L. at 16-17, 20-26 [Doc. No. 63].

131 11/4/21 Evid. Hr’g Tr. at 29 [Doc. No. 116].

132 11/4/21 Evid. Hr’g Tr. at 28-29 [Doc. No. 116].

133 11/4/21 Evid. Hr’g Tr. at 28 [Doc. No. 116].

argument that psychiatric evidence was admissible to negate specific intent134 and focuses here

on Petitioner’s contention that psychiatric evidence was admissible because the prosecution

“opened the door” to mental health evidence by introducing Petitioner’s confession.135

Pennsylvania courts “recognize[] that ‘a litigant opens the door to otherwise inadmissible

evidence by presenting proof that creates a false impression refuted by otherwise prohibited

evidence.’ ”136 One common application of the “opening the door” doctrine is when a defendant

invokes facts related to their prior bad acts.137 The “opening the door” doctrine promotes

interests such as providing the opposing party a fair opportunity to prevail at trial before having

to carry the costs of an appeal and a second trial.138

At trial, the Commonwealth introduced a transcript of Petitioner’s interrogation,

containing his confession.139 The transcript was authenticated by Detective Gallen, who read into

the record portions of the interrogation, including the discussion of Petitioner’s mental illnesses:

Q “Question: Are you physically or mentally ill at this time?”

A “Answer: I’m not physically ill. I have been treated for different mental

disorders, bipolar disorder and schizophrenia.”

Q “Question: Are you taking any medications for these disorders?”

134 See infra § III.A.2(d) (discussing the possibility of negating specific intent at trial in the context of Petitioner’s

Claim 4).

135 Pet.’s Mem. L. at 22-23 [Doc. No. 63].

136 Commonwealth v. Smith, No. 2774 EDA 2023, 2025 WL 926997, at *7 n.14 (Pa. Super. Ct. Mar. 26, 2025)

(quoting Commonwealth v. Nypaver, 69 A.3d 708, 716-17 (Pa. Super. Ct. 2013) (alterations omitted)). The Third

Circuit describes the doctrine similarly. See e.g., Healy v. Haverford Twp., 462 F. App’x 224, 227 (3d Cir. 2012)

(“The doctrine of ‘opening the door,’ sometimes referred to as ‘curative admissibility’ provides that when one party

introduces inadmissible evidence, the opposing party thereafter may introduce inadmissible evidence to rebut or

explain the prior evidence.” (quoting Gov’t of V.I. v. Archibald, 987 F.2d 180, 187 (3d Cir. 1993)).

137 See, e.g., Commonwealth v. Ford, 650 A.2d 433, 442 (Pa. 1994) (concluding that defense counsel’s questions

eliciting the defendant’s past adjustments to life in prison opened the door to evidence of the defendant’s criminal

record); Commonwealth v. Nabried, 327 A.3d 315, 324 (Pa. Super. Ct. 2024) (finding that defense counsel’s

cross-examination questions, implying that an informant lacked history with the defendant, opened the door to prior

drug transactions between the two of them).

138 1 Robert P. Mosteller et al., McCormick on Evidence § 57 (9th ed. 2025).

139 1/24/06 Tr. at 33 [Doc. No. 8-49]; Trial Ex. C-2 [Doc. No. 8-50 at 106-16].

A “Answer: Yes, sir [sic]. I haven’t been taking my medications regularly. I

took it sometime last week.”

Q “Question: Do you understand everything we have been talking about

tonight and what is occurring?”

A “Answer: Yes, sir.”140

The detective also read the part where Petitioner claimed to understand his rights:

Q “Question: Before we began to talk to you tonight, did we read to you

your constitutional rights from a form I am showing you?

A “Answer: Yes, sir.”

Q “Question: Did you fully understand those rights?”

A “Answer: Yes, sir.”

Q “Question: Did you initial the questions we read to you indicating you

understood the individual rights?”

A “Answer: Yes, sir.”

Q “Question: Did you sign the form indicating that you understood your

rights and agreed to talk with us about the murder of your mother?”

A “Answer: Yes, sir.”

Q “Question: Do you know what today’s date is and what day of the week it

is?”

A “Answer: Today is April 19th, 2005.”

The revelation that Petitioner admitted his schizophrenia and lapse in taking medications

clearly opened the door for the defense to present psychiatric evidence. That evidence could have

been considered by the jury in their determining whether—as a prerequisite to considering the

evidentiary weight of the confession—Petitioner knowingly, voluntarily, and intelligently

140 In his testimony, Detective Gallen continued to recite portions of the interrogation, including the parts where

Petitioner confessed to the murder and explained the surrounding events. 1/24/06 Tr. at 33-63 [Doc. No. 8-49].

waived his Miranda rights.141 Instead, Detective Gallen’s testimony was received unchallenged

and unimpeached, thereby creating a potentially false impression that Petitioner understood his

waiver and meant what he said in the confession.

Dr. O’Brien’s opinion that Petitioner was sane did not give trial counsel a tactical reason

to avoid using psychiatric evidence to discredit the confession. It would have been far less

onerous to impeach a witness such as Detective Gallen than to present a meritorious insanity

defense at trial. Hence, Dr. O’Brien’s conclusion that Petitioner “underst[ood] the nature and

wrongfulness of his acts” did not make it futile for trial counsel to discredit the confession.

Given the records in his possession and Dr. O’Brien’s 2005 and 2006 reports, trial counsel had

ample psychiatric evidence to show that the confession was unreliable. That evidence

demonstrates Petitioner’s numerous involuntary commitments to psychiatric hospitals from 2001

to 2004; hallucinations and paranoia; social isolation; prescription of antipsychotic medications;

and myriad mental illness diagnoses including psychotic disorder, bipolar disorder, impulse

control disorder, and schizoaffective disorder.142

A competent attorney would have presented this psychiatric evidence when the door was

opened.143 By failing to do so, trial counsel performed deficiently.

141 As Pennsylvania courts recognize,

Despite a pretrial ruling that a confession is voluntary, . . . a criminal defendant nonetheless is

entitled to a second opportunity to test the voluntariness of his statement by introducing evidence at

trial relating to voluntariness [of the defendant's waiver of his Miranda rights] and have the jury

consider the question. In this situation, the jury may not assess the evidentiary weight of the

confession until it first makes an independent finding that the confession was voluntarily made.

Commonwealth v. Demora, No. 2972 EDA 2022, 2024 WL 244629, at *5 (quoting Commonwealth v. Cameron, 780

A.2d 688, 693 (Pa. Super. Ct. 2001) (alteration in original).

142 Am. PCRA Pet., Ex. A [Doc. 8-116 at 10-15].

143 See Velasquez v. Superintendent Fayette SCI, 937 F.3d 151, 161 (3d Cir. 2019) (citing Hinton v. Alabama, 571

U.S. 263, 274 (2014)) (noting that an attorney’s ignorance regarding a point of law contributes to a finding of

unreasonable performance).

d. Claim 4

In Claim 4, Petitioner contends that trial counsel was ineffective for failing to present

psychiatric evidence at trial to rebut the finding of a specific intent to kill.144 At the evidentiary

hearing, trial counsel testified that he did not do so because Pennsylvania law precluded him

from challenging a finding of specific intent where Petitioner did not admit to the criminal act.145

To discern the reasonableness of trial counsel’s decisions, the Court refers to the body of

Pennsylvania criminal law governing mental infirmities. Three legal concepts are relevant: the

defense of legal insanity, the finding of “guilty but mentally ill,” and diminished capacity.

Pennsylvania adopts the common law M’Naughten Rule for legal insanity, requiring a

defendant to show by a preponderance of the evidence that, “at the time of the commission of the

offense, the actor was laboring under such a defect of reason, from disease of the mind, as to not

know the nature and quality of the act he was doing or, if the actor did know the quality of the

act, that he did not know that what he was doing was wrong.”146 To pursue an insanity defense,

the defendant must, as trial counsel initially did, file a notice of insanity no “later than the time

required for filing an omnibus pretrial motion provided in Rule 579.”147

A “guilty but mentally ill” finding is different than a finding of insanity. The trier of fact

may find a defendant “guilty but mentally ill” at trial (1) if they “offer[] a defense of insanity”;

and if at trial “the trier of facts finds, beyond a reasonable doubt,” that (2) “the person is guilty of

the offense,” (3) “was mentally ill at the time of the commission of the offense,” and (4) “was

144 Pet.’s Mem. L. at 30-35 [Doc. No. 63].

145 11/4/21 Evid. Hr’g Tr. at 32 [Doc. No. 116]. More precisely, trial counsel stated that Petitioner’s refusal to admit

to the criminal act precluded him from raising a diminished capacity defense. 11/4/21 Evid. Hr’g Tr. at 32 [Doc. No.

116]. In Pennsylvania, a defense theory seeking to negate specific intent is akin to a diminished capacity defense.

See infra text accompanying notes 151-156.

146 18 Pa. Cons. Stat. Ann. § 315(b).

147 Pa. R. Crim. P. 568(A)(1).

not legally insane at the time of the commission of the offense.”148 A guilty but mentally ill

verdict does not downgrade the offense of conviction to one with a lesser intent.149 Rather, it

“entitle[s] [the defendant] to greater access to mental health treatment while in prison.”150

Finally, there is diminished capacity. The Pennsylvania diminished capacity defense is

“an extremely limited one, which entails the assertion that the defendant’s mental condition at

the time of the offense was such that he was incapable of forming the specific intent to kill.”151

To prove diminished capacity “only expert testimony on how the mental disorder affected the

cognitive functions necessary to form the specific intent is relevant and admissible.”152 As to

timing, “[a] defendant who intends to assert the defense of diminished capacity must notify the

Commonwealth before trial and include documentation offering specificity regarding the nature

and extent of the infirmity.”153 The consideration of diminished capacity as a “defense” is

somewhat of a misnomer because a finding of diminished capacity does not relieve an actor of

criminal liability but instead entails “that the state is unable to prove one of the essential

elements of first-degree murder—deliberation and premeditation—because the defendant is

without the mental capacity to carry out a plan or design.”154 A successful diminished capacity

148 18 Pa. Cons. Stat. Ann. § 314(a).

149 See, e.g., Commonwealth v. Priset, No. 1763 MDA 2012, 2013 WL 11254791, at *3 (Pa. Super. Ct. Sept. 4,

2013) (“[A finding of guilty but mentally ill] does not . . . indicate that appellant was unable to form a specific intent

to bring about the victim’s death. Rather, a person who has been found guilty of first-degree murder but mentally ill

has been found to meet the definition of mental illness given by 18 Pa. Cons. Stat. Ann. § 314(c)(1), and also to have

committed an ‘intentional killing.’ ” (quotation marks, citation, and alteration omitted)).

150 In re Est. of McAndrew, 131 A.3d 988, 992 (Pa. Super. Ct. 2016).

151 Commonwealth v. Williams, 732 A.2d 1167, 1190 (Pa. 1999).

152 Zettlemoyer v. Fulcomer, 923 F.2d 284, 295 (3d Cir. 1991); see also Commonwealth v. Weinstein, 451 A.2d

1344, 1347 (Pa. 1982) (“[P]sychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if

it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent.”).

153 Commonwealth v. Cuevas, 832 A.2d 388, 393 (Pa. 2003).

154 Rock v. Zimmerman, 959 F.2d 1237, 1245 (3d Cir. 1992).

defense will downgrade first-degree murder to third-degree murder.155 Crucially, “[a]n accused

offering evidence under the theory of diminished capacity concedes general criminal liability.”156

Here, Petitioner filed a timely notice of insanity defense on August 22, 2005.157 When the

prosecution moved to bar psychiatric evidence, Petitioner conceded that he would no longer

pursue an insanity defense, thereby precluding any subsequent jury finding of “guilty but

mentally ill.”158 That decision was reasonable, as Dr. O’Brien had deemed Petitioner legally sane

and, in any event, Petitioner had not authorized trial counsel to admit criminal liability.

Notwithstanding the court order purporting to bar psychiatric evidence, Petitioner is

correct that trial counsel could have introduced psychiatric evidence through a diminished

capacity defense to negate the specific intent element of first-degree murder. As the

Pennsylvania Supreme Court established in a line of cases beginning with Commonwealth v.

Walzak, “psychiatric testimony which speaks to the legislatively defined state of mind

encompassing a specific intent to kill is admissible.”159 To accept any other conclusion would be

“inconsistent with fundamental principles of American jurisprudence,” which allow “an accused

[to] offer[] relevant and competent evidence to dispute the charge against him,” which “includes

any of the elements that comprise that charge.”160

With it clear that trial counsel could have used psychiatric evidence to rebut specific

intent, the question is whether trial counsel’s failure to do so was tactically justifiable.

155 Commonwealth v. Travaglia, 661 A.2d 352, 359 n.10 (Pa. 1995).

156 Commonwealth v. Walzack, 360 A.2d 914, 919-20 (Pa. 1976) (emphasis omitted); see also Commonwealth v.

Williams, 732 A.2d 1167, 1190 (recognizing that the diminished capacity defense is limited to “those cases in which

a defendant admits criminal liability but contests the degree of guilt”).

157 Omnibus Mtn. Suppr. at 89-90 [Doc. No. 8-24].

158 1/23/06 Suppr. Hr’g Tr. at [Doc. No. 8-47].

159 Commonwealth v. Weinstein, 451 A.2d 1344, 1347 (Pa. 1982); Walzack, 360 A.2d at 919-921.

160 Walzack, 360 A.2d at 921.

On that issue, the Court finds persuasive trial counsel’s explanation that he did not use

psychiatric evidence to negate specific intent because he was not authorized to admit criminal

liability. The Pennsylvania Supreme Court has repeatedly said that counsel is not ineffective for

omitting a diminished capacity defense if the defendant did not admit to the underlying act.161

Here, Petitioner consistently maintained his innocence throughout trial. Notably, he testified that

he was “blacked out” around the time of the murder and that the murder was committed by his

mother’s boyfriend, who then forced Petitioner to clean up the murder scene after the fact.162

Trial counsel’s decision not to use psychiatric evidence at trial to negate specific intent was

consistent with his client’s claim of innocence and, therefore, did not constitute constitutionally

deficient representation.

e. Claim 5

Petitioner contends that trial counsel was further ineffective by declining to object, to

move for a mistrial, or to seek a corrective instruction after following prosecutorial statement at

closing argument:

Do you think for one nanosecond that if [the defense] had any psychiatric testimony

to back that up, that you wouldn’t have heard it? There isn’t any. You know why?

It doesn’t exist.163

161 See Commonwealth v. Hutchinson, 25 A.3d 277, 342 (Pa. 2011) (collecting cases); Commonwealth v. Rainey,

928 A.2d 215, 237 (Pa. 2007) (declining to conclude that counsel was ineffective where the defendant did not admit

to shooting the victim); Commonwealth v. Smith, 17 A.3d 873, 901-02 (Pa. 2011) (holding that counsel was not

ineffective for failing to investigate the defendant’s mental health and present a diminished capacity defense because

the defendant denied participation in the crime); see also Jacobs, 395 F.3d at 101 n.6 (acknowledging that the

defendant must admit culpability to assert a diminished capacity defense).

162 1/24/06 Tr. at 209-10. [Doc. No. 8-49]. As further evidence of the fact that trial counsel was unauthorized to

concede criminal liability, trial counsel testified that he went to significant lengths, including by communicating

with Petitioner’s family members, to help Petitioner appreciate the reasonableness of a plea offer, whereby

Petitioner would have pleaded guilty to third-degree murder. 11/4/21 Evid. Hr’g Tr. at 35-36 [Doc. No. 116]. Trial

counsel was unsuccessful, stating: “I did everything I could, but [Petitioner] really stopped communicating with me

in terms of his defense.” 11/4/21 Evid. Hr’g Tr. at 36 [Doc. No. 116].

163 1/25/06 Tr. at 23 [Doc. No. 8-50]; Pet.’s Mem. L. at 36-37 [Doc. No. 63].

In this remark, the prosecutor sought to disingenuously impugn the defense’s case. As the

Pennsylvania Supreme Court has articulated, “[a] new trial will be granted where the conduct of

the prosecution misleads the jury so that they form in their minds a fixed bias such that they

cannot fairly weigh the evidence and render a true verdict.”164 The prosecutor’s statements were

not just misleading—they were wholly untruthful. The same prosecutor had represented the

Commonwealth throughout pretrial proceedings165 and was undoubtably aware of the psychiatric

evidence that trial counsel had obtained, as apparent from the prosecutor’s motion to exclude that

evidence166 and from his offer to Petitioner to plead “guilty but mentally ill” to third-degree

murder.167 By “abus[ing] [his unique position of trust] in order to prejudice and deliberately

mislead the jury,”168 the prosecutor committed prosecutorial misconduct and deprived Petitioner

of a fair trial. Trial counsel did not offer any strategic reason for his failure to challenge the

prosecutor’s plainly improper comment, and no tactical justification appears in the record. Trial

counsel accordingly rendered deficient performance as to Claim 5.

f. Cumulative Effect of All Errors

Because trial counsel performed deficiently by conducting an incomplete investigation,

failing to utilize the psychiatric evidence in his possession, and declining to challenge

prosecutorial misconduct at closing argument, the Court considers the cumulative effect of those

errors under the second Strickland prong.

164 Commonwealth v. Pierce, 645 A.2d 189, 197 (Pa. 1994).

165 See 5/13/05 Tr. [Doc. No. 8-21]; 6/15/05 Tr. [Doc. No. 8-17]; 10/13/05 Tr. [Doc. No. 8-31].

166 4/26/06 Hr’g Tr. at 14-15 [Doc. No. 8-65].

167 1/23/06 Suppr. Hr’g Tr. at 89 [Doc. No. 8-47].

168 Pierce, 645 A.2d at 197.

As an initial matter, even if trial counsel had introduced all of the psychiatric evidence

now in the record, there is not clearly a reasonable chance that his confession would have been

suppressed because of an invalid Miranda waiver. In Pennsylvania, whether a Miranda waiver is

given knowingly and intelligently requires a totality of the circumstances analysis, and “there is

no per se rule that a defendant’s waiver of his constitutional rights is defective merely because

his mental illness distorts the defendant’s perceptions of reality.”169 A Miranda waiver is unlikely

to be found constitutionally invalid, unless that impairment is brought to bear during the

interrogation,170 and courts credit other factors when deciding if a waiver is made knowingly and

intelligently, such as the suspect’s past experience with law enforcement and the clarity of his

statements.171 Here, the trial court found that Petitioner was “alert and responsive to questions”

when speaking with law enforcement and that—based on the testimony of Detective Gallen and

Petitioner—“he never indicated that he was not aware that he was talking about his mother’s

death” nor did he “indicate that he didn’t understand what was going on.” The trial court found

that Petitioner “answered all questions quietly and in a matter-of-fact manner,” thus not showing

any real-time signs of impairment.172 The Court will not disturb these findings, which are owed

169 Commonwealth v. Mitchell, 105 A.3d 1257, 1267 (Pa. 2014) (quotation marks and alteration omitted);

Commonwealth v. Cannon, 309 A.2d 384, 387 (Pa. 1973) (“The determination of whether a confession is the

product of a rational intellect necessitates our consideration of the totality of the circumstances.”).

170 See Cannon, 309 A.2d at 387 (evidence of the defendant’s schizophrenia did not prevent him from making a

knowing, intelligent statement during a confession); Commonwealth v. Winter, No. 835 MDA 2016, 2016 WL

7478641, at *4 (Pa. Super. Ct. Dec. 29, 2016) (despite expert testimony on the defendant’s mental deficiency, the

defendant’s familiarity with police interrogation indicated that he gave a knowing, intelligent waiver) State v.

Naranjo, 321 P.3d 398, 403-04 (Ariz. 2014) (“Mental illness, by itself, will not invalidate an otherwise knowing and

intelligent waiver . . . . The test is whether a suspect’s mental disabilities render him unable to understand the

meaning of his statements.” (quotation marks and citations omitted)). But see Commonwealth v. Cephas, 522 A.2d

63, 64 (Pa. Super. Ct. 1987) (Miranda waiver was not made knowingly and intelligently where the defendant’s

schizophrenia was manifested during the interrogation by his kicking of walls, yelling of “inane comments,” and

“childlike behavior”).

171 E.g., Winter, 2016 WL 7478641 at *4 (defendant’s prior exposure to the criminal justice system counseled in

favor of a knowing, intelligent waiver); Commonwealth v. Mitchell, 902 A.2d 430, 452 (Pa. 2006) (police testimony

that defendant said he was in control of his faculties weighed in favor of a valid Miranda waiver).

172 1/23/06 Suppr. Hr’g Tr. at 82-83 [Doc. No. 8-47].

deference and are presumptively correct.173 The clarity of mind that Petitioner exhibited during

the interrogation makes it unlikely that Dr. O’Brien’s testimony or the updated psychiatric

records would have altered the trial court’s ruling.174

Although the confession likely would have survived suppression, trial counsel’s failure to

put forth psychiatric evidence at trial and to object to the prosecutor’s untruthful comments on

closing irrevocably undermined the fairness of his trial. While physical evidence would have

certainly been probative of an intent to kill,175 the Commonwealth’s evidence of intent was

centered on the confession. In its closing argument, the prosecution quoted at length from the

confession, which had been admitted through Detective Gallen’s testimony, and on which the

prosecutor relied to tell the entire story of the case, from the Miranda waiver to the murder itself:

“[Answer:] I have been advised of my right to remain silent and that anything I say

can and will be used against me in the court of law.”

. . . .

“[Answer:] I have been [advised] that I have the right to talk to a lawyer before I

am questioned and to have him or her present during question[ing].”

. . . .

“With these constitutional rights in mind, are you still willing to talk with us and

give us a voluntary statement?”

“Yes, sir.”

173 See Ahmad v. Redman, 782 F.2d 409, 411-12 (3d Cir. 1986).

174 See Winter, 2016 WL 7478641 at *4 (reaching an analogous conclusion).

175 The autopsy report indicated that Petitioner’s mother was stabbed to death and that she suffered multiple stab

wounds, including to her neck, chest, abdomen, and back. Trial Ex. C-32 [Doc. No. 8-51 at 99-105]. On the night of

the arrest, law enforcement also took photos of the bedroom where the mother’s body was recovered and obtained

evidence indicating Petitioner’s use of knives to commit the murder. 1/24/06 Tr. at 58, 75-76, 86-87, 117 [Doc. No.

8-49]; Trial Ex. C-3 [Doc. No. 8-51 at 111]. Law enforcement found bleach in the house, as well as lighter fluid, the

mother’s body wrapped in a plastic bag, and burns and bludgeoning to the body, and further determined that the

DNA profiles of the blood in the house matched those of Petitioner and his mother. 1/24/06 Tr. at 76-77, 89, 109,

141-48 [Doc. No. 8-49]; Trial Ex. C-25 [Doc. No. 8-51 at 54-56]. While this physical evidence would have been

sufficient for a first-degree murder conviction, see Commonwealth v. Dominguez, 299 A.2d 216, 218 (Pa. 1973);

Commonwealth v. Knight, 156 A.3d 239, 244 (Pa. 2016), it by no means compelled such a finding.

. . . .

"Question: Derek, can you tell me what happened to your mother, Karen Jackson?”

"Answer: Yes, sir, she was murdered today in the morning.”

"Question: Who murdered her?”

“Answer: I did.”

“Question: Where did you murder Karen Jackson?”

“Answer: In her bedroom in our house, 424 East Moore Street.”

“[Question:] Derek, how did you kill your mother?”

“[Answer:] I stabbed her and using a stick to hit her.”

. . . .

“[Question:] What did you stab your mother with?”

“Answer: A total of six knives. I had four prepped and I had to get two more. I had

four prepped.”

“[Question:] What do you mean you had four prepped?”

“[Answer:] I had four prepped. I had them ready to use. I had them on me and I had

them—I had already got them from the kitchen. I used four on her and she went

down. I then ran down to the kitchen and got two more. They were in the rack.”176

After mentioning the knives, the prosecutor advised the jury, “Again, evidence of specific

intent to kill, not heat of passion or anything like that. He has got four knives. She is on the

ground. By the way, I will get to it, he has to go downstairs, get two more, go back and continue

stabbing her. Another piece of evidence which shows specific intent to kill.”177 The prosecutor

continued:

“[Question:] Derek, tell us about how you attacked Karen and killed her.”

176 1/25/06 Tr. at 20-25 [Doc. No. 8-50].

177 1/25/06 Tr. at 26 [Doc. No. 8-50].

. . . .

“[Answer:] This morning I got up around 3:35 in the morning. I went to sleep

around 2:00. I was waiting for Karen to do her [morning] routine.”

. . . .

“[Question:] What happened this morning?”

“[Answer:] I was downstairs in the living I had heard the water running in the

shower. I heard her moving around upstairs. When I started moving around, and

heard her in the shower, I went to the kitchen and got the knives. I went upstairs

and had to prepare myself. I walked back and forth in the hallway while she was

in the shower.”

. . . .

“[Question:] Excuse me, what happens after you go upstairs and you are in the

hallway and Karen is in the shower?”

“Answer: I walked up and back a few times. I had to pump myself up mentally to

complete the murder. She goes in and out of the bathroom a lot. I followed her

into the bedroom and she told me that she was getting—she was getting dressed

and to get out of the room.”

“Question: What happens next?”

“Answer: I then stabbed her in the chest area first. I pulled the knife out and

stabbed her again and again. She hit the ground. I stabbed her a total of 17 or 18

times with the first four knives. I then had to run downstairs to get the other two

knives. I came back upstairs and stabbed her, like, ten more times with the two

other knives.”

“[Question:] Did you say anything [during the murder]?”

“[Answer:] For the most part, I was quiet.”

. . . .

“[Question:] How did you wrap Karen up?”

“[Answer:] I used pillow cases, sheets covers. I used a sheet to cover up and a quilt.

I used trash bags.”

. . . .

“[Question:] Aside from the knives you used to stab Karen, what else did you

clean?”

“[Answer:] Areas in the room, Karen’s bedroom.”

“[Question:] What did you? What did you use?”

“[Answer:] Bleach.”178

As he read these passages, the prosecutor paused to highlight quotes that indicated Petitioner’s

specific intent to kill. He urged the jury to conclude that, based on the confession, Petitioner was

“lying in wait”179 and “Quiet. Not in a rage. Quiet”180—two features that, as the prosecutor

argued, made the killing deliberated and premeditated.

If trial counsel had performed reasonably by investigating and introducing evidence of

Petitioner’s psychiatric hospitalizations, his inconsistent use of medication, his schizoaffective

hallucinations, and his deteriorating mental state that rendered him “grossly psychotic” during

the time of the offense, there is a reasonable probability that the jury would have found that the

Commonwealth did not meet its burden to prove intent beyond a reasonable doubt. Specifically,

trial counsel’s failures in this regard prejudiced the proceedings in two respects. First, if the jury

had knowledge of the abundant evidence highlighting Petitioner’s deteriorated mental state at the

time of the offense, it would have been compelled to question whether the confession was

voluntary, knowing, and intelligent.181 Second, if it found that the confession cleared that

preliminary threshold, there is a reasonable probability that—if Detective Gallen’s testimony

were impeached by the considerable evidence of Petitioner’s diminished mental state—the jury

178 1/25/06 Tr. at 26-35 [Doc. No. 8-50].

179 1/25/06 Tr. at 27 [Doc. No. 8-50].

180 1/25/06 Tr. at 30 [Doc. No. 8-50].

181 Demora, 2024 WL 244629 at *5; Cameron, 780 A.2d at 693.

would have weighed that evidence less heavily and found that the Commonwealth did not prove

an intentional killing.182 Trial counsel’s later failure to challenge the prosecutor’s statement

disavowing the existence of psychiatric evidence only further infected the outcome.183

To be sure, the Commonwealth correctly argues that Petitioner’s claim of innocence at

trial prevented trial counsel from introducing psychiatric evidence to negate specific intent as

part of a diminished capacity defense.184 But that does not alter the Court’s conclusion that

Petitioner was prejudiced. The fact that a diminished capacity theory was unavailable did not

excuse the Commonwealth from proving each element of first-degree murder beyond a

reasonable doubt.185 As the Petitioner rightly argues in Claim 2, trial counsel could have

presented psychiatric evidence under the “opening the door” doctrine to discredit Detective

Gallen’s testimony and the confession, thus weakening the Commonwealth’s proof of the “intent

to kill” element. By failing to do so, trial counsel provided deficient performance that, combined

with his silence during the prosecutor’s improper statement at closing argument, prejudiced the

trial in the two ways explained above.

In sum, but for trial counsel’s failure to investigate, to present the psychiatric evidence at

trial, and to defend his client against prosecutorial comments that improperly exploited the

absence of that evidence, there is a reasonable probability that the jury would have acquitted

Petitioner of the first-degree murder charge. The Court will therefore grant the Petition as to

182 Demora, 2024 WL 244629 at *5; Cameron, 780 A.2d at 693.

183 See Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000) (determining that counsel’s failure to object to

prosecutorial misconduct during closing argument warranted habeas relief under Strickland).

184 Commonwealth Response Mem. at 16-17 [Doc. No. 55].

185 See In re Winship, 397 U.S. 358, 361 (1970).

Claims 2 and 5.186 Because these claims are meritorious, they meet the “substantiality” standard

for purposes of excusing the procedural default.

B. Trial Counsel’s Failure to Object Due to the Court’s Instruction on the

charge of Tampering with or Fabricating Physical Evidence

Since the Court did not require additional evidence as to Claim 3, it resolves this claim on

the record existing as of the September 3, 2021 Memorandum Opinion and Order. In Claim 3,

Petitioner argues that trial counsel was ineffective for failing to object, and seek a mistrial,

because the elements in the trial court’s tampering with evidence instruction differed from those

in the bill of information.187 Claim 3 was timely filed and exhausted in Petitioner’s state court

proceedings, but it fails on the merits for three reasons.

First, the elements in the jury instruction for tampering with evidence differed from those

in the bill of information only because the jury instruction corrected for an earlier error in the

bill. Although the bill listed the statutory section corresponding to tampering with evidence,188 it

listed the elements of a different offense—tampering with public records or information.189 The

jury instruction resolved the error by stating the correct elements for tampering with evidence.190

Second, the Court adopts the R&R’s conclusion that the Superior Court did not err in

finding that Petitioner “was made aware of the correct charge.”191 Indeed, there is competent

186 The Court will not grant the Petition as to Claim 1 because, as discussed, trial counsel’s deficiency did not

prejudice the outcome of the suppression hearing. The Court attributes the prejudice resulting from trial counsel’s

incomplete investigation to Claim 2.

187 Pet.’s Mem. L. at 41-46 [Doc. No. 63].

188 18 Pa. Cons. Stat. Ann. § 4910.

189 Bill of Inf. [Doc. No. 8-14].

190 The trial court accurately advised the jury, “In order to find the defendant guilty of tampering with physical

evidence you must be satisfied that the following elements have been proven beyond a reasonable doubt: First, the

defendant believed that an official investigation was pending or about to be instituted. Second, that the defendant

altered or concealed or removed evidence. Third, that the defendant did so with the intent to impair its truthfulness

or availability in the proceeding that [was] about to be investigated.” 1/25/06 Tr. at 80 [Doc. No. 8-50].

191 R&R at 20 [Doc. No. 64] (quotation marks omitted).

record evidence supporting that finding and, contrarily, a lack of record evidence that Petitioner

did not know the elements that the Commonwealth was required to prove at trial.192

Third, as set forth in the R&R, the Superior Court rejected Claim 3 because, under its

interpretation of Pennsylvania Rule of Criminal Procedure 564, the trial court could have

responded to a timely objection by allowing the information to be amended, thereby obviating

the discrepancy.193 Accordingly, the intermediate appellate court’s ruling rested upon an

interpretation of state law, and the Court would require “extraordinary and compelling

circumstances”194 to diverge from that interpretation. The Court finds no such compelling

circumstances in the record.

For these reasons, the Court will deny Claim 3.

IV. CONCLUSION

The evidence received through the November 4, 2021 evidentiary hearing and

stipulations thereafter confirms that there is cause and prejudice under Martinez v. Ryan for the

Court to review Claims 1, 2, and 4, which were unreasonably omitted by PCRA counsel. The

procedural default pertaining to Claim 5 is likewise excusable to avoid a miscarriage of justice

that would result from declining to review this claim, which is based on a single, interconnected

transaction in which Petitioner’s recourse to a psychiatric defense was first stifled by trial

counsel’s ignorance and then unfairly exploited against him by the prosecution.

192 R&R at 21 [Doc. No. 64]; Crim. Compl. [Doc. No. 8-2]; 4/26/2005 Order [Doc. No. 8-3]; 5/18/2005 DJ Paper

[Doc. No. 8-10]. The Court also notes that the correct charge was listed on the trial court docket. [Doc. No. 8].

193 See R&R at 20-21 [Doc. No. 64].

194 See R&R at 20 [Doc. No. 64] (“Such circumstances arise when ‘a state-court interpretation of state law . . .

appears to be an obvious subterfuge to evade consideration of a federal issue.’ ” (quoting Mullaney v. Wilber, 421

U.S. 684, 691 n.11 (1975)).

The Court further concludes that—as argued by Petitioner in Claims 2 and 5—trial

counsel’s failure to meaningfully investigate Petitioner’s psychiatric history, failure to present

psychiatric evidence at trial to discredit Petitioner’s confession, and failure to object to

prosecutorial misconduct tainted the fairness of his trial court proceedings. Because Petitioner is

in custody contrary to clearly established Supreme Court precedent set forth in Strickland v.

Washington and its progeny, the Court will grant the Petition. An appropriate order will follow.