A. The Law Concerning Exhaustion and Procedural Default
Because plaintiff's petition involves both exhausted and
procedurally defaulted claims, a review of the principles
concerning exhaustion and procedural default is appropriate.
A federal court may not grant habeas relief unless the
petitioner has exhausted his remedies in state court. See
Holman 58 F. Supp.2d at 591 (citing O'Sullivan v. Boerckel,
526 U.S. 838, 119 S.Ct. 1728, 1731, 144 L.Ed.2d 1 (1999)). Exhaustion
requires that a petitioner provide each level of state court a
fair opportunity to act on his claims. See Doctor v. Walters,
96 F.3d 675, 678 (3d Cir. 1996). The exhaustion requirement
"addresses federalism and comity concerns by `afford[ing] the
state courts a meaningful opportunity to consider allegations of
legal error without interference from the federal judiciary.'"
Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993) (citations
2. Procedural Default
Although, as stated above, complete exhaustion is ordinarily
required before federal review is appropriate, where a state
prisoner has not properly presented the state courts with all or
a portion of the claims contained in his federal habeas corpus
petition, but state procedural rules would eliminate further
avenues of relief, the "technical requirements for exhaustion"
are met because there are no longer any state remedies available
to the petitioner. Coleman v. Thompson, 501 U.S. 722, 731-32,
111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citing
28 U.S.C. § 2254(c)); see also Holman, 58 F. Supp.2d at 596. Those claims
are therefore deemed procedurally defaulted, prohibited from
federal review on the merits unless the prisoner can show "cause
and prejudice" or a "fundamental miscarriage of justice" to
excuse the default. See Coleman, 501 U.S. at 749-50, 111 S.Ct.
To demonstrate cause sufficient to excuse a procedural default
and allow the court to reach the merits of his claims, petitioner
must show that an objective factor external to the defense
hindered or prohibited him from complying with the applicable
state procedural rules. Caswell v. Ryan, 953 F.2d 853, 862 (3d
Cir. 1992). Petitioner can establish actual prejudice by pointing
to an error that caused him to suffer an "actual and substantial
disadvantage." United States v. Frady, 456 U.S. 152, 170, 102
S.Ct. 1584, 71 L.Ed.2d 816 (1982). Finally, a "fundamental
miscarriage of justice" occurs where the petitioner presents a
colorable claim of actual innocence of the crime for which he was
convicted or the sentence imposed. Schlup v. Delo,
513 U.S. 298, 314-15, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Petitioner
will only demonstrate a colorable claim of actual innocence "by
showing a fair probability that, in light of all the evidence,
including that claimed to have been illegally admitted and that
claimed to have been wrongfully excluded or that which became
available only after trial, the trier of fact would have
entertained a reasonable doubt of his guilt." See Wheeler v.
Chesny, No. CIV.A. 98-5131, 2000 WL 124560, at *2 (E.D.Pa.
Jan.27, 2000) (citing Sawyer v. Whitley, 505 U.S. 333, 339 n.
5, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)).
B. Petitioner's Procedurally Defaulted Claims
In her original recommendation, the Magistrate Judge concluded
that petitioner had failed to exhaust his second, fifth, and
seventh (to the extent it alleged a violation of a federal right)
claims. See 2/8/99 Report & Recommendation at 10-13. After
remand, the Magistrate Judge determined that petitioner had
failed to make the cause/prejudice/fundamental miscarriage
showing necessary to entitle him to a review on the merits. See
12/22/99 Report & Recommendation at 6-8.
In his objections to the Magistrate's recommendation,
petitioner claims that he has
exhausted claims two and five. See Petitioner's Objections at
2-3, 5. This court has already found that petitioner's second and
fifth claims are unexhausted, see Holman, 58 F. Supp.2d at 591,
and his reiterated arguments will not be revisited here.
Thus, for this court to review the merits of petitioner's
second, fifth, and seventh claims, petitioner must show cause and
prejudice or a fundamental miscarriage of justice, a showing he
has failed to make either to the Magistrate Judge and or in his
objections to this court. As the Magistrate Judge found,
petitioner's attempt to establish cause by claiming
ineffectiveness of counsel is insufficient because petitioner
failed to raise these particular ineffectiveness claims properly
in the proceedings before the state courts.*fn7 See Murray v.
Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397
(1986) (holding that ineffective assistance of counsel can
constitute cause only after such claim has first been presented
to state courts as an independent claim). Moreover, petitioner's
bald claims of innocence are insufficient. "To be credible," a
claim of actual innocence must be based on reliable evidence not
presented at trial. Schlup, 513 U.S. at 324, 115 S.Ct. 851.
Petitioner has not met that burden.*fn8 Thus, his objections
will be overruled.
C. Petitioner's Exhausted Claims Concerning Ineffectiveness of
The Magistrate Judge next found petitioner's claims three,
four, and eight, alleging ineffective assistance of counsel in
various respects, to be without merit. Claims of ineffective
assistance of counsel are to be evaluated under the two-part test
articulated in Strickland v. Washington, 466 U.S. 668, 688-695,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, petitioner must
show that counsel's representation "fell below an objective
standard of reasonableness." Id. at 688, 104 S.Ct. 2052.
Second, petitioner must show prejudice in that, absent counsel's
ineffectiveness, "there is a reasonable probability that . . .
the fact finder would have had a reasonable doubt respecting
guilt." Id. at 695, 104 S.Ct. 2052.
1. Failure to object to use of term "car-jacking"
Petitioner objects to the Magistrate's recommendation regarding
his third claim, in which he alleges ineffective assistance of
counsel for failing to object when the prosecutor referred to the
term "car-jacking."*fn9 Petitioner contends that car-jacking, "a
high-profile crime," is associated with kidnapping and was
referred to only to "enrage passion" in the jury. See
Petitioner's Objections at 3-4.
Petitioner has not shown that he suffered any prejudice by his
counsel's actions. First, the state court's factual determination
of what occurred, see Commonwealth v. Holman, No. 01464PHL93
First Judicial District 1992, slip op. at 3-4 (Pa. Common Pleas
Ct. May 19, 1994), closely resembles the prosecutor's description
of what happened, i.e., a "point of gun robbery of someone of
their automobile." Petitioner, other than making conclusory
allegations, has not rebutted that factual description, let alone
by clear and convincing evidence. Second, although it is true
that "carjacking" per se is not a specifically articulated
offense in Pennsylvania, use of the term was merely illustrative
of common experience. See United States v. Henderson,
50 F.3d 11, 1995 WL 122785, at *11 (6th Cir. 1995) (unpublished op.)
("Moreover, the term carjacking has evolved as the legal term of
art to describe the offense of armed robbery of a motor
vehicle."). Indeed, "the term carjacking is no more prejudicial
than the phrase armed robbery of a motor vehicle; in fact, using
the phrase `armed robbery of a motor vehicle' throughout an
entire trial would surely be more confusing and prejudicial than
using the term `carjacking.'" Id. Accordingly, the prosecutor's
mere use of the word "carjacking," accompanied by her definition,
did not "so infect the trial with unfairness as to make the
resulting conviction a denial of due process." Darden v.
Wainwright, 477 U.S. 168, 171, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986). Consequently, counsel's failure to object did not
constitute ineffective representation. Furthermore, the
determination of the state courts who have addressed this claim
was not contrary to any governing Supreme Court precedent nor did
it unreasonably apply any Supreme Court precedent. Accordingly,
petitioner's objection will be overruled.*fn10
2. Failure to object to improper "vouching"
Petitioner also objects to the Magistrate Judge's
recommendation concerning petitioner's fourth claim, that counsel
was ineffective for failing to object when the prosecutor
allegedly "vouched" for a witness' alleged "heresay" [sic]
testimony. See Petitioner's Objections at 4. Specifically,
petitioner alleges that vouching was present in the prosecutor's
statement that "[t]he next testimony you are going to hear is
coming from the police in this case and, I think after hearing
the testimony about the police in this case you will probably
want to applaud him." See Petition at 8. In his objections,
petitioner contends that he "was clearly prejudiced by the
vouching" and that "the things the Prosecutor vouched for was
[sic] clearly rehearsed." See Petitioner's Objections at
As the Magistrate Judge has determined, the prosecutor's
remarks did not constitute improper conduct, and thus, petitioner
has suffered no prejudice by his counsel's failure to object. A
prosecutor who vouches for the credibility of a witness
pose[s] two dangers: such comments can convey the
impression that evidence not presented to the jury,
but known to the prosecutor, supports the charges
against the defendant and can thus jeopardize the
defendant's right to be tried
solely on the basis of the evidence presented to the
jury; and the prosecutor's opinion carries with it
the imprimatur of the Government and may induce the
jury to trust the Government's judgment rather than
its own view of the evidence.
United States v. Young,