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BENNETT v. VARNER

United States District Court, E.D. Pennsylvania


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 Procedural Default

  A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant part that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a petitioner "fairly present" each claim in his petition to each level of the state courts, including the highest state court empowered to consider it. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of Page 6 the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In order for a claim "to have been `fairly presented' to the state courts, . . . it must be the substantial equivalent of that presented to the state courts. In addition, the state courts must have available to it the same method of legal analysis as that to be employed in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000): see also Lines v. Larkins. 208 F.3d 153, 159 (3d Cir. 2000) ("The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights"). The habeas petitioner bears the burden of showing that his or her claims have been "fairly presented" to the state courts, and that the habeas claims are the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983).

  The exhaustion requirement may be excused if it would be fufile for the petitioner to seek relief in the state court system, or if the particular circumstances of the case render the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also Szuchon v. Lehman, 273 F.3d 299, 323 n. 14 (3d Cir. 2001) ("Exhaustion will be excused as `fufile' if'the state court would refuse on procedural grounds to hear the merits of the claims'") (quoting Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)); Werts, 228 F.3d at 192 (same). Page 7

  Where a petitioner fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim may nevertheless be considered on federal habeas if the petitioner "demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("We . . . require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim") (emphasis in original). Also, a petitioner may raise a claim in federal habeas proceedings if the state has waived or declined to rely on the procedural default. See Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999) (citations omitted).

  The issue of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice means that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494; Werts, 222 F.3d at 193. The petitioner bears the burden of establishing cause and prejudice. Coleman, 501 U.S. at 749-50.

  In order to satisfy the "fundamental miscarriage of justice" exception, the Supreme Court requires the petitioner to show that a "constitutional violation has probably resulted Page 8 in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298 326-327 (1995) (citing Murray, 477 U.S. at 496); Werts, 228 F.3d at 193. To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id

  B. Applicable Law for Claims Addressed on the Merits

  The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts, 228 F.3d at 195. The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication 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. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)). Page 9

  The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams, 529 U.S. at 389-390). The Court in Williams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. (citing Williams, 529 U.S. at 388-389). "In further delineating the `unreasonable application of component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 389). Page 10

 III. DISCUSSION

  A. The Two (2) Claims Raised for the First Time in Petitioner's Memorandum of Law are Time-Barred.

  Section 101 of the AEDPA, effective April 24, 1996, amended habeas corpus law by imposing a one (1) year limitation period to applications for writ of habeas corpus filed by persons in state custody. 28 U.S.C.A. § 2244(d)(1). Section 2244, as amended, provides that the one (1) year limitation period shall run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by state action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The amended statute also provides that the time during which a properly filed application for state post-conviction or other collateral review is pending shall not be counted toward any period of limitation. 28 U.S.C. § 2244(d)(2).

  In the instant case, the applicable starting point for the statute of limitations is "the date on which the judgment became final by the conclusion of direct review or the Page 11 expiration of the time for seeking such review." Swartz v. Meyers, 204 F.3d 417, 419 (3d Cir. 2000). Petitioner's conviction became final on December 29, 1999, when the time for seeking certiorari review in the United States Supreme Court expired (ninety (90) days after the Pennsylvania Supreme Court affirmed his conviction on September 30, 1999). Consequently, Petitioner would normally have had until December 29, 2000, to file a timely § 2254 petition.

  However, on May 25, 2000 — 148 days into his one (1) year grace period — Petitioner filed a PCRA petition.*fn3 Because this petition was filed in accordance with Pennsylvania's procedural requirements, it is considered a "properly filed application" for post-conviction relief, thereby tolling the one (1) year limitation period. See 28 U.S.C. § 2254(d)(2) (the time during which a "properly filed application" for state post-conviction review is pending shall not be counted toward the one (1) year period of limitation); Artuz v. Bennett, 531 U.S. 4 (2000) ("an application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings" such as "the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee"). Such a petition is considered "pending" within the meaning of § 2244(d)(2) during the time a state prisoner is pursuing his state post-conviction remedies, including the time for seeking discretionary review of any court decisions whether or not such review was actually sought. See Swartz, 204 Page 12 F.3d at 424. Bennett's petition was thus pending until December 3, 2002, when the Pennsylvania Supreme Court affirmed the denial of PCRA relief.*fn4 At this time, the one (1) year grace period began to run again and Petitioner had two hundred and seventeen (217) days, or until July 8, 2003, to file a timely § 2254 petition.

  Because Petitioner submitted the instant federal habeas petitioner for filing on May 21, 2003, the claims raised in the petition are considered timely. However, in Petitioner's Memorandum of Law, which was filed on October 6, 2003, almost three (3) months after the limitation period had expired, Petitioner asserted two (2) additional claims not included in the original petition. Petitioner made no explanation in his Memorandum of Law as to why the additional claims were not included in the original petition. Petitioner does not assert that there has been an impediment to filing theses claims in his habeas petition which was caused by state action, that these claims involve a right which was newly recognized by the United States Supreme Court, or that there are new facts which could not have been previously discovered. See 28 U.S.C. § 2244(d)(1)(B)-(D). Consequently, Petitioner would be barred from presenting these claims under § 2254, unless the instant petition is subject to equitable tolling.

  The Third Circuit has determined that the one (1) year period of limitation for § 2254 is subject to equitable tolling because this limitation period is a statute of limitations Page 13 and not a jurisdictional bar. See Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir. 1988). Equitable tolling is proper only when the "principles of equity would make [the] rigid application [of a limitation period] unfair." Id. (citation omitted). "The petitioner must show that he or she `exercised reasonable diligence in investigating and bringing [the] claims.' Mere excusable neglect is not sufficient." Id. at 618-19 (citations omitted). The Third Circuit has set forth three (3) circumstances in which equitable tolling is justified: (1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has timely asserted his rights, but has mistakenly done so in the wrong forum. Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (citations omitted). "In non-capital cases, attorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the `extraordinary' circumstances required for equitable tolling." Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (citing cases).

  I do not find the instant matter to be one of "rare situation[s] where equitable tolling is demanded by sound legal principals as well as the interests of justice." See Jones, supra. Petitioner filed a timely habeas petition, but inexplicably failed to raise two (2) claims until he filed his Memorandum of Law, which occurred after the AEDPA Statute of Limitations had passed. Consequently, these two (2) claims — trial court error for allowing a statement of co-defendant Dwayne Brown into evidence, and for failing to properly charge Petitioner and making an assertion that he was the "getaway driver" — are Page 14 time-barred. Because Petitioner has not established "extraordinary" circumstances which would justify application of equitable principles, this court finds that there are no circumstances which would make the rigid application of the limitation period unfair. Therefore, these two (2) claims must be dismissed.

  B. Sufficiency of the Evidence

  In his first claim, Petitioner argues that there was insufficient evidence to support his convictions because: (1) he was merely present in the vehicle when Officer Porter was shot; (2) he did not inflict the wound upon the victim; and (3) there was no testimony that there was a shared intent among anyone but the driver and the actual shooter. See Ptr.'s Br. at 2-3. Respondents argue that this claim is meritless. See Resp.'s Br. at 23-25.

  It has long been established that due process requires that a person can only be convicted of the crime with which he is charged by proof of every element of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316 (1979); In re Winship, 397 U.S. 358, 364 (1970); Davis v. United States, 160 U.S. 469, 488 (1895). In reviewing challenges to the sufficiency of the evidence, a court must determine "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan v. Cuyler, 723 F.2d 1077, 1083-84 (3d Cir. 1983) (quoting Jackson, 443 U.S. at 319) (emphasis in original).

  The AEDPA has limited a habeas court's role in reviewing a claim that the Page 15 evidence adduced at trial was insufficient to support a conviction. Under 28 U.S.C. § 2254(d)(1), a writ of habeas corpus may be issued for evidentiary insufficiency only if the state courts have unreasonably applied either the Jackson "no rational trier of fact standard," or the state equivalent of the Jackson standard. See Smith v. Vaughn, 1997 WL 338851, at *7 (E.D. Pa. June 17, 1997) (citing Gomez v. Acevedo, 106 F.3d 192, 199 (7th Cir.), vacated and remanded on other grounds, 522 U.S. 801 (1997)) (28 U.S.C. § 2254(d)(1) requires deference to the state court's Jackson determination).

  Conspiracy of a crime is defined under Pennsylvania law, in relevant part, as follows:

§ 903. Criminal Conspiracy
(a) Definition of Conspiracy — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(e) Overt act — No person may be convicted of conspiracy to commit a crime unless an overt act in pursuant of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
18 Pa. Cons. Stat. Ann. § 903(a), (e).

  In addressing this claim on direct appeal, the Pennsylvania Superior Court stated the following:

  The applicable standard of review is whether, viewing all the evidence in Page 16 the light most favorable to the Commonwealth as verdict winner, a jury could find that every element of the crime exists beyond a reasonable doubt. . . . The record reveals that [Petitioner] acted in concert with his co-defendants. [Petitioner] was involved in a heated discussion in which co-defendant Young announced that he did not care if the victims were police officers. [Petitioner] and his co-defendants followed the police officers outside the bar, where [Petitioner] climbed into a jeep with the other co-defendants. The co-defendants extensively maneuvered the jeep to a position behind the officers' car. Although the jeep was stopped several times during this maneuvering, [Petitioner] never attempted to exit the vehicle. One of the co-defendants sprayed the officers' car with gunfire, resulting in the death of one [1] of the officers. After the shooting, [Petitioner] fled the scene in the Jeep with his co-defendants. Eventually, [Petitioner] exited the Jeep and fled on foot. Additionally, [Petitioner] possessed a revenge motive, Officer Bey's prior arrest of and planned testimony against [Petitioner] for a prior weapons offense, for seeking to harm the officers.

 Commonwealth v. Bennett, No. 0132 Philadelphia 1998, at 4-6 (Pa. Super. April 7, 1999) (citations omitted).

  I find that the state courts' conclusion is neither contrary to, nor an unreasonable application of, Supreme Court precedent as set forth by Jackson. The state court properly set forth the elements of the law and applied relevant trial evidence thereto in finding that the Commonwealth had presented sufficient evidence to establish that Petitioner conspired with the co-defendants in murdering Officer Porter and attempting to murder Officer Bey. For example, Petitioner was more than merely present at the scene of the crime; rather, he actively participated in each of the events that resulted in the officer's death. Because there is sufficient evidence to support Petitioner's conviction under Pennsylvania law, Petitioner is not entitled to relief on this claim. Page 17

  C. 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 Ineffectiveness of Appellate Counsel for Failing to Raise the Claim.*fn5

  In his second claim, Petitioner argues that the trial court erred (and therefore violated his due process rights) by failing to find ineffectiveness of trial counsel for counsel's failure to object to the admission of a weapon into evidence, and that appellate counsel was ineffective for failing to raise the claim. See Ptr.'s Br. at 10-15.

  "It is well established that evidentiary errors of state courts are not considered to be of constitutional proportion, cognizable in federal habeas corpus proceedings, unless the error deprives a defendant of fundamental fairness in his criminal trial." Bisaccia v. Attorney General of State of New Jersey. 623 F.2d 307. 312 (3d Cir. 1980); see also Crane v. Kentucky, 476 U.S. 683, 689-690 (1996) (same). The category of errors that violate fundamental fairness is very narrow. See Dowling v. United States, 493 U.S. 342, 352-353 (1990) (stating court reviewing evidentiary decisions must determine whether action complained of "violates those fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency").

  Here, in order to determine whether the trial court committed error and thereby violated Petitioner's due process rights, it is necessary to discuss Petitioner's underlying Page 18 claim of ineffectiveness of trial counsel for failing to object to the admission of certain handgun evidence into trial.*fn6 In addressing this claim on collateral appeal, the Pennsylvania Superior Court stated the following:

Herein, the evidence of record does not establish that it was factually impossible for the Wilmington gun to have been the murder weapon. Detective Patrick Burke, of the Wilmington, Delaware police department, testified that, pursuant to a search warrant, he was present at an apartment in Wilmington where he observed a police officer recover a nine-millimeter handgun from underneath a couch. Lieutenant Mark Stephan (Stephan), with the Philadelphia Firearms Identification Unit, testified that the ammunition found in the Wilmington handgun was consistent with the ammunition found at the crime scene, as well as the ammunition found in Porter's body and in Bey's vehicle. Police officer Cronin (Cronin), of the Delaware Joint Violent Crime Fugitive Task Force, testified that [Petitioner] was present at this Wilmington apartment and was subsequently arrested. Cronin also testified that a set of keys was removed from [Petitioner].
  Although Stephan testified that, in his opinion, the bullets were not fired from the Wilmington handgun, this testimony does not preclude the admission of the handgun. The Wilmington handgun was not admitted to show [Petitioner] possessed the means to commit the murder. The Wilmington gun was admitted to show that [Petitioner] possessed ammunition that was consistent with the ammunition used to kill Porter. The trial court admitted both the Wilmington handgun and the ammunition because "the ammunition was the same size and from the same manufacturer as the ammunition recovered from the situs of the crime, from [Porter's] body and from [Bey's] car." Since [Petitioner]'s possession of the ammunition, as opposed to the possession of the Wilmington handgun, was at issue, the evidence was relevant and therefore properly admitted. Moreover, after noting that the jury heard evidence that a handgun was present in the apartment where [Petitioner] was arrested, the trial court instructed the jury as follows: "[r]emember: [t]hat gun is not the [m]urder weapon in this case. You must not say to yourselves, in deliberations, that Page 19 because that gun was present in that house, [Petitioner] is guilty of this offense. That, also, is totally improper. He is not on trial for possession of that gun." A trial judge is uniformly capable of restricting the admission of evidence to only that information which is relevant, and a jury is presumed to follow the instructions of the court.

 

Accordingly, we find no error in the admission of the Wilmington handgun into evidence. Since [Petitioner]'s underlying claim is meritless, counsel cannot be ineffective for failing to raise a meritless claim.
Commonwealth v. Bennett, No. 2708 EDA 2001, at 6-9 ( Pa. Super. Nov. 4, 2002) (citations omitted).

  Ineffectiveness of counsel claims are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 391 ("It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'"). In Strickland, the United States Supreme Court set forth the standard for showing ineffectiveness of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, "the question is Page 20 whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Id. at 697. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id.

  As previously mentioned, Petitioner argues that counsel was ineffective for failing to object to the admission of the Wilmington gun. He contends that admission of this gun was highly prejudicial to him because "the introduction of this weapon served as nothing more but a further way to prejudice the [P]etitioner in the minds of the jury, a way to allege that he was a person who kept guns close to him and therefore must be guilty of the crime." See Ptr.'s Br. at 12. I disagree. Even assuming that I were to find that counsel acted deficiently in failing to object to the admission of the handgun, Petitioner has failed to establish the requisite prejudice for habeas relief. The standard established in Strickland for prejudice is whether there is a reasonable probability that, but for counsel's deficiency, the result of the proceeding would have been different. Everett v. Beard, 290 F.3d 500, 509 (3d Cir. 2002), cert. denied, 537 U.S. 1107 (2003) (citing Strickland, 466 U.S. at 694). Here, the evidence clearly established that Petitioner acted in concert with his two (2) companions when gunfire erupted in the direction of Officer Bey's vehicle. Officer Bey testified that, following a heated discussion between Petitioner and his Page 21 companions, all three (3) individuals followed the police officers out of the bar, entered their vehicle and pursued the police officers. Bey specifically testified that he witnessed Petitioner enter the vehicle. Bey testified that he heard gunshots and that he saw a gun being fired from Petitioner's vehicle. Bey further testified that immediately following the shooting, he gave a fellow police officer a complete description of each of the three (3) individuals, including Petitioner, who were present in the vehicle at the time of the shooting. Moreover, as noted by the state court, the trial judge gave a cautionary instruction to the jury regarding the proper evidentiary purpose of the Wilmington gun.

  For the aforementioned reasons, I conclude that Petitioner has failed to show how counsel's actions prejudiced him and, therefore, the underlying ineffectiveness claim must fail.*fn7 In addition, because appellate counsel cannot be deemed ineffective for failing to raise a meritless claim on appeal, Petitioner's claim of ineffectiveness of appellate counsel must also fail. Because the underlying ineffectiveness claims have no merit, I further conclude that Petitioner is not entitled to relief on his claim of trial/PCRA court error for failing to find ineffectiveness of counsel for failing to object to the admission of the handgun evidence.

  D. Prosecutorial Misconduct

  In his final claim, Petitioner raises two (2) claims of prosecutorial misconduct, Page 22 namely: (1) prosecutorial misconduct regarding mention of continuances during the opening statement, and (2) prosecutorial misconduct regarding a prior weapons charge. The Supreme Court "has recognized that prosecutorial misconduct may `so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.'" Greer v. Miller, 483 U.S. 756, 765 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); Darden v. Wainwright, 477 U.S. 168 (1986). To constitute a due process violation, the prosecutorial misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." Greer, 483 U.S. at 765 (citation omitted) (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)); Smith v. Phillips, 455 U.S. 209, 211 (1982): see also Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992) (stating court must distinguish between ordinary trial error and egregious conduct that amounts to a denial of due process). The alleged misconduct must be viewed in the context of the entire proceedings. Donnelly, 416 U.S. at 643.

  1. Prosecutorial Misconduct Regarding Mention of Continuances During the Opening Statement

  Petitioner argues that the prosecutor committed misconduct during his opening statement when he stated that Petitioner was responsible for the numerous continuances in a prior case involving Officer Bey. See Ptr.'s Br. at 7-10. Respondents counter that this claim is procedurally defaulted. See Resp.'s Br. at 67-71.

  On direct appeal, Petitioner raised the claim that the prosecutor's opening statement was unduly prejudicial because the prosecutor implied that Petitioner was Page 23 responsible for numerous continuances in the weapons case in which Officer Bey had appeared to testify against Petitioner. See Commonwealth v. Bennett, 0132 Phila. 1998, at 8-9 (Pa. Super. April 7, 1999). However, the Pennsylvania Superior Court found the claim to have been waived because Petitioner failed to develop an argument or cite supportive authority in his argument section of the appellate brief, as required under Pa.R.A.P. 2119(a). Id. The Superior Court stated:

[Petitioner's] entire argument section pertaining to this issue consists of two (2) paragraphs quoted from the transcript. He does not include any argument or citation to legal authority. Accordingly, the issue is waived.
Commonwealth v. Bennett, 0132 Phila. 1998, at 8 (Pa. Super. April 7, 1999).

  Where a petitioner has presented a claim in the Pennsylvania state courts, federal courts will not review the state court decision involving a question of federal law if the state court decision is based on state law, even a state procedural law, that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 727-31. As the Supreme Court has explained, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism:

In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases.
Edwards, 529 U.S. at 452 (citing Coleman, 501 U.S. at 732).

  Here, Petitioner presented his current claim to the state courts only on direct Page 24 appeal, and the state courts refused to address the claim because, under Pennsylvania procedural law, the Petitioner failed to develop an argument and failed to cite supportive authority. As a result, the claim is procedurally defaulted by operation of the independent and adequate state ground doctrine. Petitioner has not established either cause or prejudice for this default and, for the reasons previously set forth, Petitioner has failed to demonstrate that a miscarriage of justice will result if his claim is not reviewed. Therefore, this claim must be dismissed as procedurally defaulted.

  2. Prosecutorial Misconduct Regarding a Prior Weapons Charge

  Petitioner next argues that the prosecutor committed misconduct when he implied to the jury that Officer Bey's previous arrest of Petitioner on an unrelated gun charge provided motive for Petitioner to kill Officer Bey.*fn8 See Ptr.'s Br. at 7-10.

  The state court found that Officer Bey did arrest Petitioner for a previous weapons charge, and that he intended to testify against Petitioner at trial. Therefore, the state court Page 25 found a "fair inference from this evidence is that [Petitioner] had a motive to kill Officer Bey." Commonwealth v. Bennett, No. 0132 Phila. 1998, at 9 (Pa. Super. April 7, 1999).

  In evaluating whether the remarks of the prosecutor rise to the level of a constitutional violation, a federal habeas court is required to examine those remarks in the context of the whole trial. Werts, 228 F.3d at 198 (citing Ramseur, 983 F.2d at 1239 and Greer, 483 U.S. at 766). Here, I conclude that the state court decision is not "contrary to" or an "unreasonable application of Supreme Court precedent. As noted by the Superior Court, Officer Bey had arrested Petitioner on a previous weapons charge and had intended to testify against him, including on the very morning of the incident in question, after Officer Bey's testimony had been continued. Because a fair inference could be made that Petitioner had a motive to kill Officer Bey, it cannot be said that the prosecutor's statement so infected the trial with unfairness as to make the resulting conviction a denial of due process. See Greer, 483 U.S. at 765; see also Donnelly, 416 U.S. at 645 (an ambiguous remark by a prosecutor, followed by a specific disapproving instruction, did not make a habeas petitioner's "trial so fundamentally unfair as to deny him due process"). Consequently, I find that Petitioner is not entitled to relief on this claim. Page 26 Therefore, I make the following: RECOMMENDATION

  AND NOW, this day of, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DENIED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability. Page 27

  ORDER

  AND NOW, this day of, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DENIED.
  3. There is no basis for the issuance of a certificate of appealability.


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