Joseph Michael Strohl v. James L. Grace, Warden - Sci Huntingdon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-2495
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JOSEPH MICHAEL STROHL,
Appellant
v.
JAMES L. GRACE, WARDEN - SCI HUNTINGDON; THE DISTRICT ATTORNEY
OF THE COUNTY OF NORTHAMPTON (JOHN M. MORGANELLI); THE
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA (THOMAS
CORBETT),
______________
Appeal from the United States
District Court for the Eastern District of Pennsylvania
(No. 06-cv-2708)
District Court Judge: Honorable James T. Giles
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Argued October 1, 2009
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Before: AMBRO, GARTH and ROTH, Circuit Judges.
(Opinion Filed: November 10, 2009)
R. Damien Schorr, Esq.
1015 Irwin Drive
Pittsburgh, PA 15236
Counsel for Appellant
John. M. Morganelli
District Attorney

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Northampton County Courthouse
669 Washington Street
Easton, PA 18042
Counsel for Appellees
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OPINION
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GARTH, Circuit Judge:
Appellant Joseph M. Strohl (“Strohl”) appeals from the order of the United States
District Court for the Eastern District of Pennsylvania denying his 28 U.S.C. § 2254
petition for writ of habeas corpus. We will affirm.
I.
On December 26, 1986, Strohl and a confederate entered and burglarized the home
of Ella Wunderly. Mrs. Wunderly, who was home at the time of the burglary, was
assaulted, leaving her severely debilitated and possibly unconscious. Strohl returned to
Mrs. Wunderly’s home the following day, on December 27, 1986, and again burglarized
her home, joined this time by a different confederate than the day before. At the time that
Strohl entered Mrs. Wunderly’s home for the second time, Mrs. Wunderly was still alive.
The attack on Mrs. Wunderly left her in a coma from which she never awoke. She died
more than seven years later, in April 1994.
After an investigation by the police department, Strohl was arrested and charged
with the second burglary. He pled guilty and was sentenced in 1987. Before Strohl’s

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sentencing, the District Attorney’s office sent a letter to the judge advising the court
Strohl had not been charged with having assaulted Mrs. Wunderly because the District
Attorney’s office lacked any significant evidence implicating Strohl in the assault. The
letter also noted that at the time of Strohl’s guilty plea it had been specifically stated that
his plea was to the second burglary only. This was done to ensure that double jeopardy
would not attach if sufficient evidence was gathered in the future to charge Strohl with
the earlier assault and burglary, and—in the event of Mrs. Wunderly’s death—murder.
Mrs. Wunderly spent the duration of her life being cared for in hospitals and
nursing homes. During the last few years of her life, Mrs. Wunderly sustained several
unexplained injuries, including broken bones and a partially torn ear. She received
treatment for these injuries at Lehigh Valley Hospital Center. The prosecution did not
elect to obtain the hospital reports associated with these incidents. Strohl alleges that,
despite his best efforts, he was unable to obtain the reports for use during his defense.
According to Strohl, these reports no longer exist.
In 1997, the District Attorney of Northampton County, Pennsylvania initiated an
effort to investigate unsolved homicides in its jurisdiction. After reviewing the open
cases, the District Attorney presented an application requesting that a grand jury be
empaneled to review several such cases, one of which was the death of Mrs. Wunderly.
A grand jury was duly seated in March 1999, and, based upon new information obtained
from witnesses who had been previously uncooperative, the grand jury issued a

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presentment recommending that Strohl be charged with criminal homicide of Mrs.
Wunderly.
In March 2001, Strohl was tried on these charges and found guilty of second
degree murder. He was later sentenced to life in prison. Strohl appealed, and the
Pennsylvania Superior Court affirmed Strohl’s judgment and sentence on September 11,
2002. The Pennsylvania Supreme Court then denied allowance of an appeal on February
13, 2003. Strohl subsequently filed a pro se petition under the Post Conviction Relief Act
(“PCRA”), 42 PA. CONS. STAT. ANN. §§ 9541-46, which the trial court dismissed on June
15, 2004. The Pennsylvania Superior Court affirmed the denial of PCRA relief on May
13, 2005. The Pennsylvania Supreme Court again denied allowance of appeal on October
26, 2005.
II.
Strohl then filed his current 28 U.S.C § 2254 petition with the District Court,
asserting eight grounds for relief. A United States Magistrate Judge issued a Report and
Recommendation recommending that Strohl’s habeas claims be denied without an
evidentiary hearing. Report and Recommendation, Strohl v. Grace, No. 06-cv-2708 (E.D.
Pa. Mar. 27, 2007) (“Report and Recommendation”). The District Court approved and
adopted the Report and Recommendation, and denied Strohl’s petition in its entirety
without an evidentiary hearing. Order, Strohl v. Grace, NO. 06-cv-2708 (E.D. Pa. Apr.
20, 2007).

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Strohl filed a timely notice of appeal, and this Court granted a certificate of
appealability with respect to the following issues: (1) whether the prosecution suppressed
exculpatory evidence, i.e., certain of the victim’s hospital reports (“the hospital reports”),
in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (2) whether Strohl was denied
due process because of the delay in his criminal prosecution, including the failure to
explore the cause of the death of the victim.
III.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254. This
Court has appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Because the
District Court ruled on Strohl’s habeas petition without conducting an evidentiary
hearing, this Court conducts a plenary review. McMullen v. Tennis, 562 F.3d 231, 236
(3d Cir. 2009).
In order to obtain habeas relief from his state court conviction and sentence, Strohl
must satisfy the standards set forth by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). McMullen, 562 F.3d at 236. AEDPA provides that, where, as here,
a habeas petitioner’s claim was adjudicated on the merits in state court, the petition
may not be granted unless the state court decision was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States or was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding. Under the § 2254 standard, a district court is bound to presume that
the state court’s factual findings are correct, with the burden on the petitioner to
rebut those findings by clear and convincing evidence.

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Simmons v. Beard, No. 05-9001, 2009 WL 2902251, at *5 (3d Cir. Sept. 11, 2009)
(quoting 28 U.S.C. §§ 2254(d) & (e)(1)) (internal citations and quotation marks omitted).
A state court decision “fails the ‘contrary to’ prong of AEDPA if the state court
reaches a conclusion opposite to the Supreme Court's own conclusion on a question of
law or decides the case differently where the Supreme Court was confronted by a set of
materially indistinguishable facts.” McMullen, 526 F.3d at 236. “Similarly, a state court
ruling is considered an ‘unreasonable application’ if the state court unreasonably applies
the correct legal rule to the particular facts, unreasonably extends a legal principle to a
new context, or unreasonably refuses to extend the principle to a new context where it
should apply.” Id. “A state court determination may constitute an unreasonable
application even if the Supreme Court has not yet addressed the identical legal issue or
fact pattern. Nevertheless, the unreasonable application test is an objective one–a federal
court may not grant habeas relief merely because it concludes that the state court applied
federal law erroneously or incorrectly.” Id. (quoting Jacobs v. Horn, 395 F.3d 92, 100 (3d
Cir. 2005)) (quotation marks and alterations omitted).
IV.
Strohl alleges that the prosecution suppressed the victim’s hospital reports in
violation of Brady v. Maryland, 373 U.S. 83 (1963). The Pennsylvania Superior Court
(“the state court”) rejected Strohl’s argument on the ground that Strohl failed to claim
“that the Commonwealth had the Lehigh Valley Hospital Center reports in its possession

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“In considering a § 2254 petition, we review the ‘last reasoned decision’ of the1
state courts on the petitioner’s claims.” Simmons, 2009 WL 2902251, at *6 (quoting
Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). Since the last reasoned decision by
a state court on Strohl’s Brady claim was the Pennsylvania Superior Court’s
memorandum opinion dated May 13, 2005, our review of the Brady issue is focused on
that decision.
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at the time of the trial and knowingly withheld them.” Commonwealth v. Strohl, No.
1954 EDA 2004 (Pa. Super. Ct. May 13, 2005) (“PCRA Appeal Opinion”) at 5.1
Since the state court adjudicated Strohl’s Brady claim on the merits, we apply the
analysis set forth by AEDPA. Simmons, 2009 WL 2902251, at *5. We begin by
determining whether the law applied by the state court is contrary to the law as
determined by the United States Supreme Court. “In Brady v. Maryland, the Supreme
Court held that due process forbids a prosecutor from suppressing evidence favorable to
an accused upon request...where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” United States v. Pelullo,
399 F.3d 197, 209 (3d Cir. 2005) (quoting Brady, 373 U.S. at 87) (quotation marks
omitted). “To establish a due process violation under Brady, then, a defendant must show
that: (1) evidence was suppressed; (2) the suppressed evidence was favorable to the
defense; and (3) the suppressed evidence was material either to guilt or to punishment.”
Id. (quoting United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 1997) (quotation marks
omitted)).
We have held that “possession” in the Brady context extends to material not within

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the prosecutor’s actual knowledge or possession, provided that the evidence is either (a)
known to some other “arm of the state,” United States v. Perdomo, 929 F.2d 967, 971 (3d
Cir. 1991), or (b) “known to...others acting on the government's behalf in the case....”
United States v. Reyeros, 537 F.3d 270, 281 (3d Cir. 2008) (quoting Kyles v. Whitley,
514 U.S. 419, 437, 115 S.Ct. 1555 (1995) (quotation marks omitted)).
Strohl argues that, under Perdomo, the prosecution had “possession” of the
hospital reports for Brady purposes, and was therefore obligated to produce them. In
Perdomo, however, we explained that whether information is deemed to be constructively
possessed by the prosecutor—thereby obligating the prosecutor to obtain it under
Brady—turns not on “whether the information is easy or difficult to obtain” but rather on
“whether the information is in the possession of some arm of the state.” 929 F.2d at 971
(emphasis added). In other words, if the information is in the possession of some arm of
the state, there may indeed be an affirmative obligation on the prosecution to obtain such
information and disclose it. See id. However, if the information is in the possession of a
third-party unrelated to the state—as was true in this case, where the hospital reports were
in the possession of Lehigh Valley Hospital Center—Perdomo imposes no such
obligation. See id. Accordingly, even assuming that, as Strohl argues, the prosecution
could “readily” have obtained the hospital reports, Brief of Petitioner, Strohl v. Grace,
No. 07-2495 (3d Cir. Mar. 3, 2009) (“Br. of Petitioner”) at 26, that fact is immaterial to
our analysis.

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The state court denied Strohl’s Brady claim on the grounds that Strohl failed to
claim: (1) that the prosecution had the hospital reports in its possession; and (2) that the
prosecution nonetheless knowingly withheld them. PCRA Appeal Opinion at 5. Indeed,
Strohl acknowledges that the prosecution did not possess the hospital reports describing
Mrs. Wunderly’s treatment at Lehigh Valley Hospital Center. Br. of Petitioner at 14.
We therefore need not address any other Brady claim made by Strohl. The state court’s
decision was neither contrary to, nor an unreasonable application of, clearly established
federal law as determined by the Supreme Court. We also conclude that the state court’s
finding was not based on an unreasonable determination of the facts in light of the
evidence presented. Accordingly, we affirm the District Court’s denial of Strohl’s
petition for habeas relief on his Brady claim with respect to the hospital reports. See
Weeks v. Angelone, 528 U.S. 225, 237 (2000).
V.
Strohl alleges that his constitutional right to due process was violated as a result of
the prosecution’s decision to delay charging him with the death of Mrs. Wunderly until
1999, some five years after Mrs. Wunderly died. The Pennsylvania Superior Court
denied Strohl’s claim of a due process violation because Strohl did not meet “his burden
of showing actual prejudice.” Commonwealth v. Strohl, No. 2097 EDA 2001 (Sept. 11,
2002) (“Direct Appeal Opinion”) at 5 (emphasis added).
The state court adjudicated Strohl’s due process claim on the merits; accordingly,

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Strohl argues that we should abandon the “improper motive” requirement and2
instead adopt the position of other circuits which, according to Strohl, have held that even
a showing of mere negligence on the part of the prosecutor is sufficient to satisfy that
element of the due process claim. We are of course bound by our circuit precedent, but
nevertheless note that it is unlikely that Strohl’s claim would succeed even under the
standard he proposes. In contrast to the scenario in Howell v. Barker, 904 F.2d 889, 895
(4th Cir. 1990), prosecutors here did not delay merely because of their own convenience
and certainly do not admit negligence. Nor was the delay a result of prosecutorial error,
as was the case in United States v. Ross, 123 F.3d 1181, 1185 (9th Cir. 1997). Rather, the
delay in this case was due to an initial dearth of sufficient evidence against Strohl that
was subsequently ameliorated by the grand jury’s 1999 investigation. Even under the
diluted standard proposed by Strohl, such a well-justified delay would not constitute
prosecutorial negligence. United States v. Moran, 759 F.2d 777, 783 (9th Cir. 1985);
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we again apply the two-step analysis dictated by AEDPA. Simmons, 2009 WL 2902251,
at *5. We begin by determining whether the law applied by the state court is contrary to
the law as established by the Supreme Court. It is well-settled that the two-part test set
forth in United States v. Marion, 404 U.S. 307 (1971), and further explained in United
States v. Lovasco, 431 U.S. 783 (1977), is used to analyze a claim that a due process
violation resulted from a pre-indictment delay.
Under Marion and Lovasco, a defendant “can make out a claim under the Due
Process Clause only if he can show both (1) that the delay between the crime and the
federal indictment actually prejudiced his defense; and (2) that the government
deliberately delayed bringing the indictment in order to obtain an improper tactical
advantage or to harass him.” United States v. Beckett, 208 F.3d 140, 150-51 (3d Cir.
2000) (citing Marion, 404 U.S. at 325 and Lovasco, 431 U.S. at 789-90); see also United
States v. Ismaili, 828 F.2d 153, 167 (3d Cir. 1987). Strohl contends that he was subject2

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United States v. Swacker, 628 F.2d 1250, 1254 n.5 (9th Cir. 1980).
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to actual prejudice as a result of the lost hospital reports. In addressing that claim, the
Pennsylvania Superior Court, quoting from Strohl’s brief filed with that court, noted,
“Strohl...claims that he suffered actual prejudice due to lost medical records that ‘could
be important,’” and “argues that the lost records ‘may’ have resulted in a different
medical opinion regarding the cause of the victim’s death.” Direct Appeal Opinion at 5
(first emphasis in original). The state court found that Strohl’s usage of words such as
“could” and “may” in his own brief constituted a tacit acknowledgment that his
“argument is based purely upon speculation.” Id. On that reasoning, the state court found
Strohl’s due process claim to be “without merit.” Id.
The state court’s decision was neither contrary to, nor an unreasonable application
of, clearly established federal law as determined by the Supreme Court, nor was it based
on an unreasonable determination of the facts in light of the evidence presented. We
therefore affirm the District Court’s denial of Strohl’s petition for habeas relief on his due
process claim. See Weeks, 528 U.S. at 237.
VI.
The District Court correctly denied Strohl’s Brady and due process claims, and we
will affirm its judgment on both.

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