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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 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.
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 Page 2 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 procedurally defaulted.

  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 Page 3 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. Page 4 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, Petitioner is Page 5 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 Page 6 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.



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