United States District Court, E.D. Pennsylvania
February 13, 2004.
BEN VARNER, et al.
The opinion of the court was delivered by: CLARENCE NEWCOMER, Senior District Judge
AND NOW, this ___ day of ___, upon consideration of the writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254, and after review of the
Report and Recommendation of the United States Magistrate Judge Peter B.
Scuderi, it is ORDERED that:
1. The Report and Recommendation is APPROVED and
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.
The reasons for the Court's decision are stated below:
The Court begins by noting that it has confined its ruling to those
issues raised by the May 21, 2003 filing. Section 10 of the Antiterrorism
and Effective Death Penatly Act ("AEDPA") requires that Petitioner file
his habeus corpus petition within
one (1) year of the date on which the judgment became final upon
the conclusion of direct review or the expiration of the time for seeking
such review. See Swartz v. Meyers, 204 F.3d 417
, 419 93d Cir.
2000); 28 U.S.C.A. 24244(d)(1). Here, Petitioner had until July 8, 2003
to file a timely § 2254 petition. While Petitioner's initial filing
was timely, his Memorandum of Law was not filed until October 6, 2003
(almost three (3) months after the limitation period had expired). Any
additional claims raised by this Memorandum must be discounted unless
there are exigent circumstances which would provide for equitable tolling
of the limitations period. See Miller v. New Jersey State Dept. of
Corrections, 145 F.3d 616
, 618 (3d Cir. 1998) (setting forth three
(3) circumstances in which equitable tolling is justified). The Court
does not believe the instant matter is one of the "rare situation[s]
where equitable tolling is demanded by sound legal principles as well as
the interests of justice." See Jones v. Morton, 195 F.3d 153
159 (3d Cir. 1999). Because Petitioner did not exercise the same
reasonable diligence and care in raising these claims, nor has he
demonstrated any exigent circumstances which would mitigate his delayed
filing, the two claims raised in the Memorandum of Law have been
The Court will now consider the three (3) claims raised in a timely
manner. Petitioner first claims 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. However, there is no
reason to suspect that the jury's finding was unreasonable. On appeal the
Pennsylvania Superior Court specifically addressed this issue, finding
that the record revealed that Petitioner acted in concert with his
co-defendants in following, cornering and ultimately shooting Officer
Bey's vehicle. See Commonwealth v. Bennett, No. 0132
Philadelphia 1998, at 4-6 (Pa.Super. April 7, 1999).
The state court properly considered theories of criminal conspiracy, as
set forth by 18 Pa. Cons. Stat. Ann. § 903(a), (e), and there was
sufficient evidence to support a finding of guilt. 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.
In his second claim, Petitioner argues that the trial court erred by
failing to find trial counsel ineffective for not objecting 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. This claim is without merit,
however, because there is nothing to suggest that if the evidence was
excluded the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668 (1984) (requiring there to be
reasonable probability that, but for counsel's deficiency, result of
proceeding would have been different). The Court is mindful that it must
be "highly deferential" to counsel's performance and "indulge in a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Id. at 689.
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 companions, all three (3)
individuals followed the police officers out of the bar, entered their
vehicle and pursued the police officers. Bey also testified that he
witnessed Petitioner enter the same vehicle which ultimately fired the
weapon killing Officer Porter. Further, the trial judge gave a cautionary
instruction to the jury regarding the proper evidentiary purpose of the
weapon. Even if the weapon was excluded from evidence, it is improbable
that a fact finder would be unpersuaded by the evidence against
Petitioner. Because the underlying ineffectiveness claims have no merit,
not entitled to relief on his claim of trial/PCRA court error for
failing to find ineffectiveness of counsel.
Petitioner's final claim raises two (2) claims of prosecutorial
misconduct, specifically 1) prosecutorial misconduct regarding mention of
continuances during the opening statement, and 2) prosecutorial
misconduct regarding a prior weapons charge. 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 v. Miller, 43 U.S. 756, 765 (1987). The alleged
misconduct must be viewed in the context of the entire proceedings.
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).
This Court will not review the claims for prosecutorial misconduct in
the opening arguments because Petitioner has not only failed to develop
this argument but has failed to cite to supportive authority. A federal
court will not review the decision of a state court involving a question
of federal law if the state court's decision is based on state law which
is independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 727-31 (1991)
(stating this mandate applies even in those circumstances where the state
law is a procedural one.) Because the Superior Court relied on a state
procedural rule when dismissing Petitioner's
claim, this Court may not review its decision. See
Bennett, No. 0132 Philadelphia 1998 at 8.
Similarly, this Court finds no evidence that suggests the prosecutor
acted improperly during closing argument when he implied that Petitioner
had motive to kill Officer Bey. When considering this claim, the Court is
mindful that the remarks must be considered in the context of the whole
trial. Werts v. Vaughn, 228 F.3d 178, 198 (3d Cir. 2000). At
trial, the state court found that Officer Bey had arrested Petitioner for
a previous weapons charge, and that he intended to testify against
Petitioner at trial the next day. 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 conviction a denial of due process.
AND IT IS SO ORDERED.
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