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ELLIOT v. VARNER

February 19, 2004.

DAVID ELLIOT, Petitioner
v.
BEN VARNER, et al, Respondents



The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge

MEMORANDUM AND ORDER

I. INTRODUCTION

Petitioner David Elliot ("Elliot") is a state prisoner currently serving a life sentence at SCI Smithfield for the murder of James Rebuck ("Rebuck"). Elliot's counsel filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 31, 2002. In his petition, Elliot claimed that his trial counsel was ineffective for failing to object to the court's instruction on co-conspirator liability with respect to first degree murder and the charge given on voluntary manslaughter.

  The petition was referred to United States Magistrate Judge Arnold Rapoport ("Judge Rapoport"). After respondents filed specific answers to the petition and a memorandum of law in support thereof, Judge Rapoport issued a Report and Recommendation ("R & R")(paper no. 8) that the petition be Page 2 denied. Elliot filed objections to the R & R and the court held a hearing on February 2, 2004. After de novo review, for the reasons set forth below, the petition will be denied.

 II. BACKGROUND

  On May 1, 1997, after a jury trial before the Honorable Ward F. Clark, Elliot was convicted of first degree murder, burglary, conspiracy to commit murder, and solicitation to commit murder. At trial, the evidence showed Elliot elicited the help of his cousin, Scott Stocklin ("Stocklin"), to kill James Rebuck in retaliation for a sexual advance Rebuck made on Elliot.

  On the night of October 24, 1996, Elliot and Rebuck had been drinking at a bar. Elliot went to Rebuck's house and passed out after using cocaine and taking pills. When he awoke, Rebuck had removed Elliot's pants, was on top of him and attempting to have sex with him. Elliot left in a rage; after arriving home, he called several people to try to find someone to help him kill Rebuck. Both his roommate and another friend refused to help him; Elliot then called his cousin, Stocklin.

  In the early morning of October 25, Elliot and Stocklin arrived at Rebuck's house. They were wearing latex gloves but kept their hands hidden in their pockets. Stocklin had a baseball bat and struck Rebuck with it repeatedly. While Stocklin hit Rebuck with the bat, Elliot went to the kitchen to get a knife. Rebuck was stabbed forty-five times; there were nine stab Page 3 wounds to the heart. The autopsy showed that Rebuck lost about 40% of his blood and probably died from blood loss.

  Elliot was sentenced to life imprisonment. Trial counsel filed a timely appeal on Elliot's behalf. On March 6, 1999, the Superior Court affirmed the sentence. Commonwealth v. Elliot, 625 Phila. 1998. The Pennsylvania Supreme Court denied allocatur on September 28, 1999.

  Elliot, in his petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551, claimed trial counsel was ineffective for failing to object to portions of the jury charge. Elliot's petition was denied; the Superior Court affirmed the denial of relief on November 8, 2001. Commonwealth v. Elliot, 878 EDA 2001. The Pennsylvania Supreme Court denied allocatur on October 15, 2002. Commonwealth v. Elliot, 995 MAL 2001.

 III. DISCUSSION

  Elliot asserts his trial counsel was ineffective for failing to object to the court's incorrect instructions on co-conspirator liability. Elliot contends the jury instructions diluted the Commonwealth's burden of proof and allowed him to be convicted based on the intent of his accomplice without regard to his actual intent. He argues the jury could have convicted him on the incorrect instructions without finding that he specifically intended that Rebuck die. Page 4

  For a first degree murder conviction, the jury must find that the defendant possessed a specific intent that the victim die. The court gave broad based co-conspirator instructions that if the jury found a conspiracy to commit a criminal act, each party was equally culpable; Elliot contends the conspiracy instruction allowed the jury to find him guilty of first degree murder even if he did not have the specific intent to kill.

  Elliot relies on Smith v. Horn, 120 F.3d 400 (3d Cir. 1997) and Everett v. Beard, 290 F.3d 500 (3d Cir. 2002). These cases involved conspiracies to commit robbery during which someone was killed. In both cases, the Court of Appeals concluded the co-conspirators may not have had the requisite intent to kill necessary for ...


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