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BENNETT v. VARNER

January 16, 2004.

BERNARD BENNETT
v.
BEN VARNER, 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 Bernard Bennett ("Petitioner"), an individual currently incarcerated at the Smithfield State Correctional Institution in Huntingdon, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

I. FACTS AND PROCEDURAL HISTORY

  The following facts were determined at trial:

  In January of 1996, Philadelphia police officer Kyle Bey (Bey) appeared in court to testify against [Petitioner] for a weapons violation.*fn1 Later that same evening, Bey and fellow police officer, Richard Porter (Porter), both off-duty, entered a bar to visit Porter's girlfriend. [Petitioner] was at the bar with two [2] companions. While greeting a fellow off-duty police officer, Bey inadvertently knocked over an empty chair at [Petitioner's] table. One of [Petitioner's] companions poked Bey in the back and gestured to the fallen chair. As Bey returned to his conversation with the police officer, Bey heard [Petitioner] and his companions engaged in an agitated discussion. Words were then exchanged between [Petitioner] and his companions and other police officers in the bar. Bey heard someone from [Petitioner's] table shout "I don't care if they are [police]." Shortly thereafter, Bey and Porter left the bar and entered Bey's vehicle. Page 2 [Petitioner] and his two [2] companions followed the officers out of the bar. The three [3] individuals entered their vehicle and began to follow the police officers. The driver of [Petitioner's] vehicle engaged in certain unusual maneuvers and eventually positioned [Petitioner's] vehicle behind Bey's vehicle. When [Petitioner's] vehicle was near the right side of Bey's vehicle, one of the [Petitioner's] companions fired eight [8] bullets into Bey's vehicle, three [3] of which struck Porter, resulting in his death.

 
Following the incident, [Petitioner] and his companions fled the scene, collided with two [2] traffic signs, and then fled on foot with police officers in pursuit. [Petitioner] was ultimately arrested in Wilmington, Delaware. Police officers recovered a nine-[9-] millimeter handgun [the "Wilmington handgun"] from the Wilmington apartment where [Petitioner] was arrested. The handgun contained ammunition that was consistent with the ammunition recovered from the crime scene.
Commonwealth v. Bennett, No. 2708 EDA 2001, at 1-2 ( Pa. Super. Sept. 19, 2001).

  Petitioner was tried by a jury before the Honorable Jane Cutler Greenspan, Court of Common Pleas of Philadelphia County. On September 26, 1997, Petitioner was convicted of murder in the first-degree, attempted murder, criminal conspiracy, and possession of an instrument of crime. On November 10, 1997, the court sentenced Petitioner to life imprisonment for the murder of Officer Porter, with concurrent terms of seven (7) to twenty (20) years of imprisonment for the attempted murder of Officer Bey and five (5) to ten (10) years of imprisonment for criminal conspiracy.

  On December 31, 1997, Petitioner filed a direct appeal to the Superior Court in which he presented the following claims:
1. Sufficiency of the evidence to support the murder conviction;
  2. Trial court error in allowing co-defendant Dwayne Brown's statement into evidence that, "It's cop killing season, and we're holding Court out on Page 3 the street;"
 
3. Prosecutorial misconduct during the Commonwealth's opening statement, when the prosecutor stated that Petitioner was responsible for the numerous continuances in his earlier weapons case involving Officer Bey; and
4. Prosecutorial misconduct during the Commonwealth's closing statement referring to Officer Bey's earlier arrest of Petitioner as providing motive to attack the officers.
  The Superior Court affirmed the trial court's judgment of sentence on April 7, 1999. Commonwealth v. Bennett, No. 0132 Phila. 1998 (Pa. Super. April 7, 1999).

  The Pennsylvania Supreme Court denied Petitioner's request for allocatur on September 30, 1999. Commonwealth v. Bennett, 743 A.2d 913 (Pa. 1999) (table). Petitioner's convictions became final on December 29, 1999, when the ninety (90) day period expired to file an application for a writ of certiorari in the United States Supreme Court.

  On May 25, 2000, Petitioner filed a pro se petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et. seq. Petitioner filed amended petitions on January 17, 2001, and July 13, 2001. On September 19, 2001, the PCRA court denied relief.

  On October 1, 2001, Petitioner appealed the denial of the PCRA relief to the Superior Court, raising the following claims:

  1. Trial/PCRA court error for failing to find ineffectiveness of counsel for failing to object to the admission of a weapon into evidence; Page 4

 
2. PCRA court error for failing to find ineffectiveness of all prior counsel for failing to argue that the verdicts were against the weight of the evidence;
3. PCRA court error for failing to find ineffectiveness of trial counsel for failing to object to prejudicial remarks made by the prosecutor during closing argument, ineffectiveness of appellate counsel for failing to raise the issue, and prosecutorial misconduct for references to Petitioner's silence throughout trial;
4. PCRA court error for answering a question to the jury in such a fashion as to confirm that Petitioner was one of the men in the getaway car, ineffectiveness of trial counsel claim for failing to object to the PCRA court answering the jury's question, and ineffectiveness of appellate counsel for failing to raise the claim;
5. PCRA court error for re-defining accomplice liability without again defining "shared intent," and ineffectiveness of appellate counsel for failing to raise the claim; and
6. PCRA court error for failing to find ineffectiveness of trial counsel for failing to argue lack of motive, and ineffectiveness of appellate counsel for failing to raise the claim.
  On November 4, 2002, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Bennett, No. 2708 EDA 2001 (Pa. Super. Nov. 4, 2002).
  On May 21, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus, raising the following grounds:
1. Insufficient evidence to support the guilty verdict due to Petitioner's "mere presence" at the crime scene;*fn2
  2. Trial/PCRA court error for failing to find ineffectiveness of trial counsel for failing to object to the admission of a weapon into evidence, and ineffective assistance of appellate counsel for failing to raise the claim; and Page 5
 
3. Prosecutorial misconduct for making prejudicial statements.
  On October 6, 2003, Petitioner filed a Memorandum of Law including the following two (2) additional claims:
 
1. Trial court error for allowing the statement of co-defendant Dwayne Brown into evidence that, "It's cop killing season, and we're holding court out on the street;" and
2. Trial/PCRA court error for failing to properly charge Petitioner and for making an assertion that he was the "getaway driver."
  On October 30, 2003, Respondents filed a response arguing that the claims raised only in Petitioner's Memorandum of Law are time-barred, and that Petitioner is not entitled to federal habeas relief on his remaining claims.

 II. APPLICABLE LAW

  A. Exhaustion and ...


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