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  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 
shots at the victim. The victim died as a result. The
three  fled and bragged to their friends that they
had killed Mr. Short. [Ford] and the codefendants were
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 Oct. 9, 1991) (unpublished memorandum).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,
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
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 (superseded and replaced by the Post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,
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
(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
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
In the meantime, on July 2, 1997, Ford had also filed an "Application
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
(1) his constitutional rights were violated by the
prosecutor's use of peremptory challenges to exclude
(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
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,
(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 ...