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