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April 13, 2000


The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.


Petitioner Donald Terry, a state prisoner, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is the Report and Recommendation of the Magistrate Judge recommending that the petition be denied and dismissed. In arriving at that recommendation, the Magistrate Judge found that three of petitioner's claims were without substantive merit and that a fourth claim was not cognizable in a federal habeas petition.

Petitioner has filed objections to this Report and Recommendation. After de novo consideration of petitioner's objections, respondents' response to those objections and petitioner's rebuttal to that response, the court will overrule petitioner's objections, adopt the Report and Recommendation as supplemented by this memorandum, and deny and dismiss the petition.*fn1


On July 28, 1972, a jury convicted petitioner of three counts of first degree murder, one count of arson, and one count of possession of explosives. Following the verdict, Judge Leo Weinrott sentenced petitioner to three concurrent terms of life imprisonment for the murders and lesser concurrent terms of imprisonment for the other offenses. In denying petitioner's post-trial motions, the trial court described the evidence as follows:

The facts indicated that defendant was having domestic problems with his wife, Shirley Terry. As a result, she was visiting with her mother, Lucille Harris, one of the decedents herein involved, on January 11, 1971, at 2927 North Fairhill Street, Philadelphia.
Early in the evening at Mrs. Harris' house, defendant visited his wife and threatened her. The police were called and the defendant was removed, but not until he threatened he would be back. Later that evening, defendant called Frank Mitchell and Gwendolyn Harris, both of whom also lived at Lucille Harris' house. Frank Mitchell had five children also living with him there. Two of them were the other victims of the murder. Defendant spoke to Frank Mitchell and Gwendolyn and told them to get themselves and the other people out of the house because he was coming back and burn[ing] it down. Subsequently, the defendant purchased the materials for a "molotov cocktail," and together with his brothers, Benjamin and Willie, went to the Harris house and executed the threat to burn it down.

Trial Ct.Op. 3/22/73 at 1-2.

Based on the state practice at the time, petitioner appealed his conviction and sentence directly to the Pennsylvania Supreme Court. On appeal, petitioner advanced the following contentions: (1) that the trial court erred by improperly charging or failing to charge the jury regarding voluntary manslaughter; (2) that the trial court erred by creating and sanctioning an atmosphere of undue prejudice to petitioner by allowing photographs to be displayed in the courtroom; (3) that the trial court erred by overruling every defense objection but one; (4) that the trial court erred by improperly highlighting and commenting on the evidence to the jury; and (5) that the prosecutor committed misconduct by making improper comments throughout the trial. The Pennsylvania Supreme Court affirmed petitioner's conviction and sentence on June 1, 1977. See Commonwealth v. Terry, 473 Pa. 11, 373 A.2d 453 (1977) (per curiam).

Petitioner then filed the first of two state post-conviction collateral relief petitions on December 19, 1979.*fn2 This first petition, filed pro se, was subsequently amended after counsel was appointed. In his amended petition, petitioner made the following claims: (1) that trial counsel was ineffective for not requesting a jury charge on the issue of petitioner's alleged renunciation or abandonment of the conspiracy to firebomb his in-laws home; and (2) that trial counsel was ineffective for not objecting to improper comments made by the prosecutor in his closing argument. After an evidentiary hearing, the PCHA court denied petitioner's petition. Petitioner appealed that denial, seeking review only on the issue of whether trial counsel was ineffective for failing to object to the prosecutor's closing argument. The Pennsylvania Superior Court affirmed the lower court's ruling. Petitioner then appealed to the Pennsylvania Supreme Count, again claiming that trial counsel was ineffective for failing to object to allegedly improper statements made by the prosecutor during trial. The Pennsylvania Supreme Court denied allocatur on October 30, 1986.

On December 3, 1996, this time pursuant to the PCRA, petitioner, acting pro se, filed a second petition seeking post-conviction collateral relief. In a seven-page "Rider" attached to the petition, petitioner again raised, and slightly expanded upon, his contention that trial counsel was ineffective for failing to investigate, raise, and pursue a withdrawal defense and for failing to seek a charge regarding withdrawal. Petitioner also contended that trial counsel was ineffective for failing to preserve such claims on direct appeal. Petitioner further appeared to make the following additional claims: (1) that although he was not charged with conspiracy or complicity*fn3 as defined in the Pennsylvania statutes, the trial judge charged the jury on those crimes in violation of his Fifth, Sixth, and Fourteenth Amendment rights; (2) that his trial counsel was ineffective for failing to object to that charge; and (3) that counsel during his first post-conviction proceeding was ineffective for failing to raise trial counsel's ineffectiveness.

On June 23, 1997, the PCRA court dismissed petitioner's PCRA petition finding that it was time-barred under the PCRA*fn4 and that, as a successive petition, petitioner had failed to establish a prima facie case that a miscarriage of justice had occurred, as required pursuant to Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988).*fn5 The PCRA court later issued a supplemental opinion adopting respondents' argument that the claim of counsel's ineffectiveness for failing to pursue a withdrawal theory was previously litigated and that the claims lacked substantive merit.

On appeal to the Pennsylvania Superior Court, petitioner challenged the PCRA court's determination that his petition was untimely and that he had failed to meet the Lawson standard. Petitioner also claimed that the PCRA court should have reviewed his claim on the merits, with respect to trial counsel's failure to argue the withdrawal defense at trial, pursuant to the "doctrine of extraordinary merits." In affirming the PCRA court's ruling, the Pennsylvania Superior Court found that the petition was time-barred but noted that petitioner claimed that he fit under one of the exceptions set forth in the statute.*fn6 Without addressing the validity of that asserted exception, the Pennsylvania Superior Court assumed arguendo that the petition was timely and rejected, on the merits, petitioner's withdrawal claim. Petitioner then sought allocatur on the grounds that his claim was not time-barred as determined by the lower courts and that in rejecting his ineffectiveness/withdrawal claim, the Pennsylvania Superior Court "erroneously interpreted Pennsylvania Supreme Court precedent." Allocatur was denied, and as a result, petitioner filed the instant federal habeas petition pursuant to 28 U.S.C. § 2254.


Section 2254 provides relief to prisoners incarcerated by the state only if such "custody is in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). With respect to the appropriate standard of review for federal courts, the pertinent provisions of § 2254 provide:

An application for a writ of habeas on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim
(1) 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. . . ."

28 U.S.C. ยง 2254(d). Moreover, "a determination of a factual issue made by the State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by ...

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