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FORD v. DIGUGLIELMO

January 14, 2004.

THADDEUS FORD
v.
DAVID DIGUGLIELMO, et al



The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge

REPORT AND RECOMMENDATION

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Thaddeus Ford ("Ford"), an individual currently incarcerated in the Graterford State Correctional Institution. For the reasons that follow, I recommend that the petition be dismissed.

FACTS AND PROCEDURAL HISTORY:
The state court summarized the facts underlying this case as follows:
On June 11, [1980,] [Ford] and two [2] codefendants, Robert McClary and Clarence Morris, went to the Island Hut Restaurant in Philadelphia. The victim, Reginald Short, and Fred Williams were in front of the restaurant. Mr. Morris served as a lookout. [Ford] handed Mr. McClary a gun and Mr. McClary fired six [6] shots at the victim. The victim died as a result. The three [3] fled and bragged to their friends that they had killed Mr. Short. [Ford] and the codefendants were subsequently arrested.
Commonwealth v. Ford, 601 A.2d 1298 (Pa. Super. 1991) (table); No. 3237 Phila. 1991, at 2 (Pa. Super. Oct. 9, 1991) (unpublished memorandum).

  On August 4, 1983, a jury found Ford guilty of first-degree murder, criminal conspiracy and possession of an instrument of crime. After denying post-trial motions, Page 2 the trial court sentenced Ford to life imprisonment on the murder charge.*fn1 Ford filed a direct appeal in the Pennsylvania Superior Court, which was dismissed on December 3, 1986, for failure to file a brief.

  Ford then filed his first petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Hearing Act ("PCHA"), 42 Pa. Con. Stat. Ann. § 9541, et seq. (superseded and replaced by the Post Conviction Relief Act, "PCRA," in 1988). After a hearing on August 2, 1989, the Honorable James J. McCrudden, Philadelphia Court of Common Pleas, granted Ford leave to file a direct appeal nunc pro tune, and rejected Ford's other claims.

  Represented by Norris E. Gelman, Esquire, Ford appealed nunc pro tune to the Pennsylvania Superior Court, claiming that trial counsel was ineffective for not objecting to the trial court's jury instructions on alibi evidence and circumstantial evidence. The Superior Court affirmed the judgment of sentence on October 9, 1991. Commonwealth v. Ford, 601 A.2d 1298 (Pa. Super. 1991). On March 18, 1992, the Pennsylvania Supreme Court denied Ford's petition for allowance of appeal. Commonwealth v. Ford, 1006 E.D. Allocatur Docket 1991.

  On January 17, 1996, Ford filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Jules Epstein, Esquire, Page 3 was appointed to represent Ford and subsequently filed an amended petition raising several claims of ineffective assistance of counsel. On January 27, 1997, the PCRA court dismissed Ford's PCRA petition.

  Ford filed an appeal in the Superior Court claiming:
(1) appellate counsel was ineffective for not claiming that Ford was entitled to a new trial based on Fred Williams' recantation of his trial testimony;
(2) trial counsel was ineffective for failing to object to the trial court's alibi charge;
(3) trial counsel was ineffective for failing to request jury instructions on the significance of the crimen falsi conviction and open criminal charges against Fred Williams; and
(4) trial counsel was ineffective for failing to object to portions of Fred Williams' prior statement that referred to gang activity and seek a limiting instruction regarding those references.
On March 31, 1998, the Superior Court affirmed the dismissal of Ford's PCRA's petition, finding that it was untimely filed.*fn2 Commonwealth v. Ford, 718 A.2d 340 (Pa. Super. 1998) (table); No. 478 Phila. 1997 (Pa. Super. March 31, 1998) (unpublished memorandum). Ford filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on July 23, 1998. Commonwealth v. Ford, No. 167 E.D. Allocatur Docket 1998.

  In the meantime, on July 2, 1997, Ford had also filed an "Application for Remand Page 4 for Hearing on After-Discovered Evidence and Withdrawal of Briefing Schedule." In this "application," Ford alleged that on April 1, 1997, his counsel received a videotape from the Philadelphia District Attorney's Office ("DA's Office") containing a lecture on jury selection given by former Assistant District Attorney Jack McMahon ("McMahon"). Ford stated that he was prepared to file a motion for a new trial based upon "after-discovered" evidence of supposed violations of Batson v. Kentucky, 476 U.S. 79 (1986), and/or Swain v. Alabama, 380 U.S. 202 (1968). On July 22, 1997, the Pennsylvania Superior Court denied the application without prejudice to Ford's right to raise the issue in a subsequent PCRA petition.

  On September 24, 1998, Ford filed another pro se PCRA petition alleging that the DA's Office videotape made by McMahon provided "after-discovered" evidence of a Batson/Swain violation. Ronald M. Joseph, Esquire, was appointed to represent Ford and subsequently filed an amended petition on January 21, 1999. On July 23, 1999, the PCRA court dismissed the PCRA petition as untimely. Ford did not appeal the denial of post-conviction relief.

  On May 7, 2001, Ford filed another pro se PCRA petition which was dismissed as untimely on September 5, 2001. Ford appealed to the Superior Court claiming:

  (1) his constitutional rights were violated by the prosecutor's use of peremptory challenges to exclude African-American jurors;*fn3 Page 5

 
(2) the PCRA court abused its discretion in denying habeas corpus relief by ruling that the petition filed on May 7, 2001, constituted a PCRA petition; and
(3) the jury instructions at his trial deprived him of due process, and created a miscarriage of justice, in that they allegedly relieved the Commonwealth of the burden of proving that he had the specific intent to kill.
On January 28, 2003, the Superior Court affirmed the denial of post-conviction relief after finding that Ford's petition was untimely.*fn4 Commonwealth v. Ford, 819 A.2d 114 ( Pa. Super. 2003) (table); No. 2744 EDA 2001 (unpublished memorandum). The Pennsylvania Supreme Court denied Ford's petition for allowance of appeal on June 5, 2003. Commonwealth v. Ford, No. 115 EAL 2003.
  Ford filed the instant petition for writ of habeas corpus on July 16, 2003,*fn5 claiming:
(1) the prosecutor used peremptory strikes to exclude blacks from his jury in violation of Batson v. Kentucky, 476 U.S. 79 (1986); and
  (2) the trial court's jury instructions on accomplice liability violated the due process in that ...

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