                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-2-2008

Dade v. DiGuglielmo
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3024




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"Dade v. DiGuglielmo" (2008). 2008 Decisions. Paper 923.
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                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                 Case No: 06-3024

                            KENNETH ANDRE DADE,
                                      Appellant


                                          v.

   DAVID DIGUGLIELMO; THE DISTRICT ATTORNEY OF THE COUNTY OF
                          ALLEGHENY;
      THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA


                  On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                            District Court No. 04-CV-1343
                  District Judge: The Honorable Gary L. Lancaster


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  May 22, 2008

             Before: SMITH, FISHER, and NYGAARD, Circuit Judges

                                (Filed: July 2, 2008)




                                     OPINION


SMITH, Circuit Judge.

      Kenneth Andre Dade sustained a gunshot wound to his neck and cheek on June 12,



                                         1
1997. He was hospitalized briefly and discharged with instructions to administer an

antibiotic, the narcotic analgesic Roxicet and the medication Neurontin as needed for

pain. On June 19, four days after his discharge from the hospital, police from the

Pittsburgh Police Department requested permission to question Dade about his injury. He

consented, and rode with the officers to the station after arranging for his father to care

for his young son. During the questioning, Dade implicated himself in a drive-by-

shooting that occurred on the same night that he sustained his injuries. After the officers

read Dade his Miranda rights, Dade revealed the full extent of his involvement.

       Subsequently, he was charged with, inter alia, murder in the third degree. Dade

moved to suppress his confession, arguing that it was involuntary on several grounds,

including the fact that he was “under the influence of medication at the time of the

statement[.]” At the suppression hearing, Dade declined to testify. As a result, the trial

court had no evidence as to whether Dade had taken any of the medications on the day he

confessed, and if so, the time the specific medication(s) were administered. In light of the

evidence regarding the circumstances surrounding Dade’s confession, the trial court

concluded that his confession was knowing and voluntary and denied the motion to

suppress. A jury convicted Dade of murder in the third degree, as well as several other

offenses.

       Dade appealed, contending that the trial court erred by denying his suppression

motion because his statements were not voluntary. The Pennsylvania Superior Court was



                                              2
not persuaded. The Pennsylvania Supreme Court denied his petition for allowance of

appeal. Thereafter, Dade filed a timely petition under the Pennsylvania Post Conviction

Relief Act (PCRA), 42 P A. C ONS. S TAT. §§ 9541-9546. With the assistance of counsel,

Dade filed a Second Amended PCRA Petition, alleging that his confession was

involuntary because he was under the influence of prescription drugs at the time of his

statement. He also alleged that his trial and appellate counsel were ineffective because

they did not develop the issue of his diminished capacity.

       The trial court denied Dade’s PCRA petition on the basis that the Pennsylvania

Superior Court had affirmed its determination that the confession was voluntary. Dade

appealed, arguing that trial counsel was ineffective because he did not “present expert

testimony from a doctor or toxicologist who could have testified to” the effects of the

medications he had been prescribed. The Superior Court affirmed the trial court’s denial

of Dade’s PCRA petition. It recited the fact that Dade was claiming that both trial and

appellate counsel were ineffective because they failed to develop his diminished capacity

argument. The Superior Court reasoned, however, that this issue was simply a new

theory relitigating the voluntariness of his confession. The Pennsylvania Supreme Court

denied Dade’s petition for allowance of appeal.

       Thereafter, Dade filed a timely 28 U.S.C. § 2254 petition in the District Court for

the Western District of Pennsylvania. Dade asserted that his conviction should be set

aside because his confession was involuntary and his trial counsel had been ineffective by



                                             3
failing to present expert testimony regarding his mental state at the time of his confession.

An amended § 2254 petition appended an affidavit from Dr. Lawson Bernstein, a

neuropsychiatrist. Dr. Bernstein affirmed that he had reviewed Dade’s discharge

summary from the hospital four days before he confessed, the various trial transcripts, and

the confession. Dr. Bernstein opined that Dade “lacked the cognitive capacity to make a

knowing and voluntary waiver of his rights and to assent to interrogation on the date of

his taped confession.”

       The District Court adopted the report and recommendation of the Magistrate Judge

denying the § 2254 petition. Dade appealed. We granted a certificate of appealability on

the issue of whether Dade “exhausted in state court his claim that trial counsel had

rendered ineffective assistance by failing to present expert medical testimony or otherwise

support his argument that his waiver of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), had not been knowing and intelligent as a result of medication . . .” and whether

Dade was entitled to relief on his ineffectiveness claim. For the reasons set forth below,

we will affirm.1

                                             I.

       The Magistrate Judge’s report and recommendation appropriately recited that

§ 2254(b)(1)(A) requires that the habeas petitioner exhaust his state court remedies. Yet




       1
       The District Court exercised jurisdiction pursuant to 28 U.S.C. § 2254(a).
Appellate jurisdiction exists under 28 U.S.C. §§ 1291 and 2253.

                                              4
the Magistrate Judge failed to determine whether Dade had in fact exhausted his claims,

stating that “[i]t appears that Petitioner has presented the majority of his claims to the trial

court through his direct appeal.” Dade asserts that he did exhaust his state court

remedies. The Commonwealth disputes this. It argues that the claim asserted in the

District Court, that trial counsel was ineffective because he did not present expert

testimony from Dr. Bernstein that Dade lacked the cognitive capacity to make a knowing

and voluntary confession, was not fairly presented to the state court.2

       In Picard v. Connor, 404 U.S. 270 (1971), the Supreme Court instructed that if the

“federal claim has been fairly presented to the state courts, the exhaustion requirement is

satisfied.” Id. at 275. The Court explained that

       it is not sufficient merely that the federal habeas applicant has been through
       the state courts. . . . Only if the state courts have had the first opportunity to
       hear the claim sought to be vindicated in a federal habeas proceeding does it
       make sense to speak of the exhaustion of state remedies. Accordingly, we
       have required a state prisoner to present the state courts with the same claim
       he urges upon the federal courts.

Id. at 275-76. In McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999), we instructed

that this requires a habeas petition to “present a federal claim’s factual and legal

substance to the state courts in a manner that puts them on notice that a federal claim is

being asserted.” In other words, the claims raised in the state courts must be substantially

equivalent to the claim pressed in the federal court. Doctor v. Walters, 96 F.3d 675, 678

       2
        The question of whether a habeas petitioner has exhausted his state court remedies
is subject to plenary review. Ellison v. Rogers, 484 F.3d 658, 660 (3d Cir. 2007).


                                               5
(3d Cir. 1996).

       We conclude that Dade’s state ineffectiveness claim was substantially equivalent

to the claim pressed in the District Court. In the state proceeding, Dade argued that his

trial and appellate counsel were inadequate because they failed to develop his claim that

his diminished capacity rendered his confession involuntary, and specifically cited the

fact that expert medical testimony should have been adduced to describe the effects of his

prescribed medications on his mental capacity. That very same claim is present in Dade’s

amended § 2254 petition. To be sure, Dr. Bernstein was not mentioned in the state court

proceedings. But we do not find that to be a difference with significance because the

heart of Dade’s federal ineffectiveness claim was that expert medical testimony should

have been obtained to aid the trial court in evaluating Dade’s cognitive ability to make a

knowing and voluntary confession. The identity of the expert does not alter that claim.

Instead, it simply provided additional support for Dade’s position that expert testimony

would have been beneficial to the trial court when it was deciding whether to grant his

motion to suppress. See Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (holding that

supplemental evidence presented by prisoner “did not fundamentally alter the legal claim

already considered by the state courts”); Stevens v. Del. Corr. Ctr., 295 F.3d 361, 370 (3d

Cir. 2002) (citing Vasquez, and concluding that claim was exhausted because the

affidavits filed in federal court, which contained more facts than the submissions filed in

state court, did not fundamentally alter the legal claim). Thus, we conclude that Dade



                                             6
exhausted his state court remedies on this claim.

                                            II.

       Dade asserts that we should vacate the judgment of the District Court and remand

for an evidentiary hearing on his ineffectiveness claim. Under Strickland v. Washington,

466 U.S. 668 (1984), a petitioner asserting a claim that his counsel was ineffective must

show both that counsel’s performance was deficient and that counsel’s deficient

performance prejudiced his defense. Id. at 687. Even if we assume that counsel

unreasonably failed to develop the diminished capacity claim by obtaining expert

testimony, we conclude that the deficient performance was not prejudicial because the

expert testimony of Dr. Bernstein was unlikely to advance Dade’s claim of

ineffectiveness as it lacked a factual foundation. Dr. Bernstein never spoke with Dade

and there was no evidence that Dade either had his prescriptions filled, or that he even

consumed the medications as prescribed, particularly the Roxicet, at any time after his

discharge from the hospital. Without some evidence in this regard, Dr. Bernstein’s

opinion was based on pure speculation and was unlikely to suggest that Dade suffered

from a diminished capacity at the time of his confession. As a consequence, the alleged

ineffectiveness of counsel in failing to obtain expert testimony did not prejudice Dade’s

defense.

       Nonetheless, Dade asserts that we should vacate the District Court’s judgment and

remand for an evidentiary hearing. In Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.



                                             7
2000), we observed that when a factual record is incomplete because of the state’s action,

a district court has discretion to grant an evidentiary hearing. In exercising that

discretion, a court should “focus on whether a new evidentiary hearing would be

meaningful, in that a new hearing would have the potential to advance the petitioner’s

claim.” Id.

       We find no abuse of discretion by the District Court in declining Dade’s request

for an evidentiary hearing on his ineffectiveness claim. We recognize that Dade’s

testimony was not the only means by which counsel could have demonstrated that Dade

might have consumed the prescribed medications before he accompanied the officers to

the station. But Dade has failed to “forecast” that there is any evidence which would

support this pivotal fact if an evidentiary hearing were granted. Campbell, 209 F.3d at

287. Dade has not identified the pharmacy that filled the prescriptions, or whether the

quantity prescribed contemplated that Dade would still be taking the narcotic analgesic a

week after the injury. Nor has Dade proffered any evidence from his girlfriend, with

whom he was living at that time, that she observed the medication bottles were in their

house, or that Dade had ever consumed any of the medication following his discharge.

Without some evidence to suggest that a hearing might have the potential for advancing

Dade’s claim that his cognitive functioning was impaired because he consumed the

medication, particularly the narcotic analgesic, on the day he was interrogated at the

station, we conclude that the District Court did not err by failing to conduct an evidentiary



                                              8
hearing.

      We will affirm the judgment of the District Court.
