Michelle M. Hetzel v. Marirosa Lamas

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 09-3043
MICHELLE M. HETZEL
Appellant
v.
MARIROSA LAMAS;
THE DISTRICT ATTORNEY OF THE
COUNTY OF NORTHAMPTON; THE
ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-08-cv-03651)
District Judge: Hon. Norma L. Shapiro
Argued January 15, 2010
BEFORE: AMBRO, CHAGARES and
STAPLETON, Circuit Judges
(Opinion Filed: March 24, 2010)

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Mark S. Greenberg (Argued)
Lacheen Wittels & Greenberg LLP
1429 Walnut Street - Suite 1301
Philadelphia, PA 19102
Attorney for Appellant
John M. Morganelli (Argued)
Office of the District Attorney of Northampton County
669 Washington Street
Easton, PA 18042
Attorney for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Michelle Hetzel appeals the order of the District Court denying her
petition for a writ of habeas corpus. Because we write only for the benefit of the parties,
we assume familiarity with the facts of this case and its procedural history. We will
affirm.
I.
On June 15, 2000, the body of nineteen-year-old Devon Guzman was found in her
car in Northampton County, Pennsylvania. She died as a result of a four-inch cut in her
throat. Immediately after Guzman’s body was found, the local newspapers, The Express-
Times and The Morning Call, began publishing articles about her death. On July 29,

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2000, The Express-Times reported that Brandon Bloss, Hetzel’s husband at the time, was
a suspect in Guzman’s murder. After Hetzel and Bloss were charged in August of 2000
with first degree murder in connection with Guzman’s death, the articles began to focus
on the criminal investigation, the legal proceedings, and the connections among Hetzel,
Bloss, and Guzman. The newspapers reported that Guzman was involved in two lesbian
relationships: one with Keary Renner, with whom she lived, and another with Hetzel.
Thus they began referring to the case as involving a “lesbian love triangle.” The record
reflects that between the day Guzman’s body was discovered on June 15, 2000, and the
day Hetzel and Bloss’s jury was chosen on September 24, 2001, the newspapers
published approximately seventy-two articles about the case.
Hetzel and Bloss were charged with first degree murder and conspiracy to commit
murder in the Court of Common Pleas of Northampton County, Pennsylvania. Before the
trial and during voir dire, Hetzel moved for a change of venue, arguing that a fair and
impartial jury could not be selected in Northampton County. The trial court denied those
motions. Jury selection for the trial began on September 11, 2001, but the Court declared
a mistrial after the terrorist attacks of that day. Shortly thereafter, a second trial
commenced. Hetzel and Bloss were tried jointly, and the jury convicted them on the first
degree murder charge and acquitted them of the conspiracy to commit murder charge.
They were both sentenced to life imprisonment.
Hetzel appealed her conviction and sentence to the Pennsylvania Superior Court,

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including among her arguments the claim that the Court of Common Pleas erred by
denying her motions for a change of venue. The Superior Court addressed the change of
venue claim on the merits and affirmed. The Pennsylvania Supreme Court declined to
hear an appeal of the Superior Court decision. After the Pennsylvania Superior Court
denied Hetzel’s petition for relief under the Post Conviction Relief Act and the
Pennsylvania Supreme Court denied her petition for an appeal of that decision, Hetzel
filed a timely petition for a writ of habeas corpus in the United States District Court for
Eastern District of Pennsylvania.
The petition included four claims for relief, including Hetzel’s claim that the state
trial court’s denials of her motions for a change of venue violated her due process rights
under the Fifth and Fourteenth Amendments. The Magistrate Judge filed a Report and
Recommendation, recommending that the petition be denied without an evidentiary
hearing and that the District Court decline to issue a certificate of appealability on any of
her claims. The District Court adopted the Report and Recommendation in part and
denied the petition without an evidentiary hearing but issued a certificate of appealability
on the change of venue claim. Hetzel filed a timely appeal.
II.
The issue presented in this appeal was adjudicated on the merits by the Superior
Court of Pennsylvania. Pursuant to the Antiterrorism and Effective Death Penalty Act of
1996, 28 U.S.C. § 2241, et seq., we must affirm the denial of the writ of habeas corpus

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unless the state adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Vazquez v. Wilson, 550
F.3d 270, 276 (3d Cir. 2008). Because Hetzel does not argue that the standard used by
the Superior Court was “contrary to” clearly established federal law, we focus only on
whether the decision “involved an unreasonable application of[] clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). The Supreme Court has recognized that
“unreasonable” is “difficult to define,” but has held that an “unreasonable application of
federal law is different from an incorrect or erroneous application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410-12 (2000) (emphases in original). Instead, we look
to whether the “state court’s application of clearly established law is objectively
unreasonable.” Bell v. Cone, 535 U.S. 685, 694 (2002). In making this determination, we
presume that the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1). An
applicant may rebut that presumption by clear and convincing evidence. Id.
In determining whether § 2254(d) prohibits granting the writ, the Court first must
determine the applicable “clearly established Federal law, as determined by the Supreme
Court of the United States.” See Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting
§ 2254(d)(1)). “Clearly established Federal law” is the “governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its decision.”
Id. We then determine whether the state court’s application of this clearly established law

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to the facts of this case was unreasonable.
III.
“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel
of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “[J]urors
need not, however, be totally ignorant of the facts and issues involved.” Murphy v.
Florida, 421 U.S. 794, 799-800 (1975). In cases involving intense pretrial publicity, the
Supreme Court has held that a change of venue is constitutionally required in certain
cases because “adverse pretrial publicity can create such a presumption of prejudice in a
community that the jurors’ claims that they can be impartial should not be believed.”
Patton v. Yount, 467 U.S. 1025, 1031 (1984); see Irvin, 366 U.S. at 722-23. Yet, we will
presume prejudice only in the rare case where the “media or other community reaction to
a crime or a defendant engenders an atmosphere so hostile and pervasive as to preclude a
rational trial process.” Rock v. Zimmerman, 959 F.2d 1237, 1252 (3d Cir. 1992) (en
banc), abrogated on other grounds by Brecht v. Abrahamson, 507 U.S. 619 (1993); see
also Sheppard v. Maxwell, 384 U.S. 333 (1966); Estes v. Texas, 381 U.S. 532 (1965).
Supreme Court precedent instructs that, when evaluating whether the pretrial publicity
violated the defendant’s right to an impartial jury, we are to consider the content,
quantity, and timing of the publicity. See Murphy, 421 U.S. at 798-803; Rideau v.
Louisiana, 373 U.S. 723, 724-26 (1963); Irvin, 366 U.S. at 724-28. We may also look to
the record of voir dire to examine the effect of the publicity on the venire. See, e.g.,

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Patton, 467 U.S. at 1033-35; Irvin, 366 U.S. at 726-27; Flamer v. Delaware, 68 F.3d 736,
754-55 (3d Cir. 1995).
In denying Hetzel’s change of venue claim, the Pennsylvania Superior Court
applied the following standard:
Pre-trial publicity will be presumed to have been prejudicial if
the defendant is able to prove that the publicity was sensational,
inflammatory, and slanted toward conviction, rather than factual
and objective; that such publicity revealed the defendant’s prior
criminal record, if any, or referred to confessions, admissions,
or reenactments of the crime by the defendant; or that it was
derived from official police and prosecutorial reports. Even if
the defendant proves the existence of one or more of these
circumstances, a change of venue or venire is not warranted
unless he or she also shows that the pre-trial publicity was so
extensive, sustained, and pervasive that the community must be
deemed to have been saturated with it, and that there was
insufficient time between the publicity and the trial for any
prejudice to have dissipated.
Commonwealth v. Hetzel, 822 A.2d 747, 764 (Pa. Super. Ct. 2003) (quoting
Commonwealth v. Karenbauer, 715 A.2d 1086, 1092 (Pa. 1998)). This standard is
consistent with clearly established federal law, and Hetzel does not argue otherwise.
Next, we must determine “whether the state court’s application of clearly
established law [was] objectively unreasonable.” Bell, 535 U.S. at 694. We ask whether
“the state court decision, evaluated objectively and on the merits, resulted in an outcome
that cannot reasonably be justified under” relevant Supreme Court precedent. Werts v.
Vaughn, 228 F.3d 178, 204 (3d Cir. 2000).

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After setting forth the standard for a motion for a change of venue under
Pennsylvania law, the Superior Court evaluated Hetzel’s claim as follows:
As a result of counsel’s request for a change of venue, the trial judge
reviewed the media accounts of the case and considered Hetzel’s claim of
prejudice. The court denied the motion because it concluded that the published
reports, though voluminous, were not “sensational, inflammatory nor slanted
toward conviction, but [were] factual and objectively reported.” Nonetheless,
the court indicated that it would revisit the issue if it became “evident during
jury voir dire that the ability . . . to empanel a fair and impartial jury has been
compromised by the pretrial publicity.”
Thereafter, jury selection in the case was thorough and careful. The
court dismissed for cause all jurors who hinted at having a fixed opinion in the
case or who believed they were unable to be fair or impartial. While the
majority of the jurors chosen to serve had some knowledge of the case through
the media, none reported that the exposure prompted a fixed opinion and all
stated that they would decide the matter consistent with the court’s instructions
and based on the evidence presented at trial.
In light of the conscientious and methodical manner in which the court
presided over jury selection in this case, as well as our limited scope of review,
we cannot find that there was an abuse of discretion in refusing to grant the
change of venue. The record simply does not reveal an extensive, sustained,
or pervasive effect from the media coverage in this case.
Hetzel, 822 A.2d at 764-65 (citations omitted).
We find no error in this analysis. A review of the newspaper articles in the record
establish that they are, as the trial court found, largely “factual and objectively reported.”
Id. at 764 (quoting the trial court’s opinion). The articles focus on Guzman’s death, the
police investigation, the arrest of Hetzel and Bloss, and the court proceedings before the
trial. Many of the articles do refer to the “lesbian love triangle,” but these articles do not
report that Hetzel confessed to the crime or call for Hetzel’s conviction. Nor was there

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any coverage of any past criminal acts or misdeeds by Hetzel, other than her adulterous
affair. Although Hetzel claims that the newspapers published letters to the editor calling
for her conviction and the death penalty, only two of the letters to the editor in the record
— penned by the same woman — call for conviction and the death penalty. Additionally,
in one of the letters, the writer identifies Guzman as her niece. Therefore, Hetzel has not
rebutted the presumption that the trial court correctly found that the articles were
primarily factual in nature and “no[t] slanted toward conviction.” Id. (refusing to disturb
the trial court’s findings).
Although Hetzel compares her case to Rideau, the content of the newspaper
coverage here is distinct from the publicity there. Rideau involved the dissemination of a
film showing Rideau confessing to the crime with which he was charged. 373 U.S. at
724-27. Obviously, watching the defendant confess to a crime is likely to have the effect
of persuading community members that the defendant is, in fact, guilty of committing the
crime. Here, the articles were much less likely to have the effect of convincing potential
jurors of Hetzel’s guilt than the film of a confession at issue in Rideau. The content of
the coverage is also distinguishable from that in Irvin, in which the press repeatedly
reported that Irvin had confessed to the crime, reported on his prior criminal convictions,
and claimed he had offered to plead guilty to the crime he was charged with committing.
366 U.S. at 725-726.
Additionally, there was a significant passage of time between the height of the

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media coverage in the summer of 2000 and the trial in September 2001. “That time
soothes and erases is a perfectly natural phenomenon, familiar to all.” Patton, 467 U.S. at
1034; see Murphy, 421 U.S. at 802. In Patton, the Supreme Court explained that,
although potential jurors may remember the crime, “[i]t is not unusual that one’s
recollection of the fact that a notorious crime was committed lingers long after the
feelings of revulsion that create prejudice have passed.” 467 U.S. at 1035. Here, the
intensity of the coverage diminished between the discovery of Guzman’s body and the
trial. On appeal, Hetzel claims that seventy-two articles appeared in the local newspapers
before her trial but informs us that twenty-four of these articles were published after
January 1, 2001. Thus, the jurors were at most exposed to approximately three articles a
month for the nine months preceding the trial. The passage of time and the sporadic
nature of the coverage in the months proceeding the trial suggest that any prejudice that
may have been presumed around the time of Guzman’s death and Hetzel’s arrest may
have dissipated by the next year.
The record of voir dire also suggests that the publicity surrounding the case did not
deprive Hetzel of her right to an impartial jury. During voir dire, slightly more than two-
thirds of the seventy-five-person venire admitted that they had heard, seen, or read news
coverage of the case. Yet, only two of these jurors stated that they had a fixed opinion
about the guilt of the defendants, and both were stricken for cause. Five other jurors
answered that they could not give the defendants or the Commonwealth a fair and

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impartial trial. The percentage of jurors who stated that they had a fixed opinion about
the guilt of the defendants here (approximately 3%) is much lower than that in Murphy
(26%) and Patton (77%), cases in which the Supreme Court rejected claims of prejudice.
See Murphy, 421 U.S. at 803; Patton, 467 U.S. at 1029. Thus, the pretrial publicity did
not have the effect of convincing the community of Hetzel’s guilt.
Finally, Hetzel argues that the publicity focused on the lesbian relationships “in-
and-of themselves created a hostile environment which precluded a rational trial process.”
Appellant’s Br. at 28. However, Hetzel offers only speculation, and no evidence, to
support the theory that knowledge of the lesbian relationship affected the impartiality of
the jurors. She also recognizes that any jury, regardless of the venue, would have heard
about her lesbian relationship with Guzman during the trial. Furthermore, Hetzel’s
attorney asked the venire whether they could remain impartial and judge Hetzel fairly
even though she was bisexual. No one responded that they could not. There is simply no
reason to presume prejudice on this record.
Hetzel has not established that the Superior Court’s decision that the media
coverage was not so “extensive, sustained, or pervasive,” Hetzel, 822 A.2d at 764, so as
to require a change of venue for her trial was an objectively unreasonable application of
federal law. Therefore, we must affirm the District Court’s order denying the writ of
habeas corpus.
IV.

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For these reasons, the judgment of the District Court will be affirmed.

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