Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NELSON v. VAUGHN

March 17, 2004.

JORGE NELSON Petitioner
v.
DONALD T. VAUGHN, et al. Respondents



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

MEMORANDUM AND ORDER

Before the court is Jorge Nelson's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). Petitioner has filed timely objections to a Report and Recommendation ("R&R") issued by Magistrate Judge Carol Sandra Moore Wells ("Judge Wells"). Nelson v. Vaughn, No. 02-4776 (E.D. Pa. July 30, 2003) (R&R). The court has conducted de novo review of the portions of the R&R to which specific objections have been filed. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). For the reasons that follow, the court approves and adopts the R&R of Judge Wells, and dismisses the Petition in its entirety.

I. BACKGROUND

  On July 11, 1989, the Honorable John J. Poserina, Jr., Philadelphia Court of Common Pleas, convicted petitioner of two counts of second degree murder (felony murder),*fn1 first degree Page 2 robbery,*fn2 burglary,*fn3 conspiracy*fn4 and possession of an instrument of crime.*fn5 Subsequent to the filing of petitioner's pro se post-verdict motions, his trial counsel, Dennis Eisman, Esq. was permitted to withdraw. Additional post trial motions were filed by petitioner's new court appointed counsel, Mitchell Scott Strutin, Esq. Following an evidentiary hearing, Judge Poserina denied all post-verdict motions. On December 11, 1990, petitioner was sentenced to two concurrent terms of life imprisonment and a consecutive sentence of five to ten years for conspiring to kill two men.

  On January 17, 1991, in an appeal to the Superior Court of Pennsylvania, petitioner alleged that:
1. Trial counsel rendered ineffective assistance of counsel when he failed to object to the testimony of Assistant Medical Examiner Paul Hoyer that the killing of Nathaniel Boone was of an "execution type."
  2. Trial counsel rendered ineffective assistance of counsel when he failed to object to Commonwealth testimony of the defendant's silence at the time of his arrest and failed to request a cautionary instruction regarding this testimony. The Commonwealth elicited testimony from Michael Cohen that the defendant, at the time of his arrest, Page 3 failed to acknowledge the fact that he was Jorge Nelson and not George Dixon.
 
3. Trial counsel rendered ineffective assistance of counsel when he failed to present the testimony of Michael Collier on defendant's behalf. Had Collier been called as a witness at trial, he would have testified that three men, two black men and one white man were seen leaving the scene of the crime. Collier's eyewitness testimony was relevant and may have exonerated the defendant.
Commonwealth v. Nelson, Nos. 2181-2190 (Ct. Com. Pl. Crim. Trial Div. Jan 17, 1991)(Statement of matters complained of on appeal). The Superior Court affirmed the judgment of sentence, Commonwealth v. Nelson, 601 A.2d 372 (Pa. Super. 1991) (table), and the Supreme Court declined review of the same three claims. Commonwealth v. Nelson, 607 A.2d 252 (1992).

  With the assistance of counsel, petitioner filed a petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"). Petitioner alleged the same three ineffective assistance of counsel claims. Commonwealth v. Nelson, No. 2181 (Ct. Com. Pl. Crim. Trial Div. Pa. Cty.) (Petition for Relief under the PCRA); the PCRA court dismissed the petition. Commonwealth v. Nelson, Nos. 2182-83, 2185-88, 2190 (Ct. Com. Pl. Crim. Trial Div. 9/29/97)(order).

  Petitioner, in the Superior Court of Pennsylvania, asserted new claims that trial counsel was ineffective in: (1) failing to object to the introduction of hearsay testimony that identified petitioner and provided a motive for the crime; (2) interfering Page 4 with petitioner's right to testify in his own defense; and (3) failing to impeach the credibility of the Commonwealth's sole eyewitness, who offered inconsistent statements during preliminary examination and motion to suppress hearings. The Superior Court remanded the case for an evidentiary hearing on the issue of Mr. Nelson's right to testify. Commonwealth v. Nelson, No. 4490 (Pa. Super. 1999) (Appeal from the PCRA Order). At the conclusion of an evidentiary hearing, the PCRA court found that petitioner's decision not to testify was knowing, intelligent and voluntary. Commonwealth v. Nelson, No. 3496 at 3 (Pa. Super. 2002). Neither trial nor appellate counsel were found ineffective. Id.

  Petitioner, appealing the decisions of the PCRA court on remand alleged: (1) the PCRA court's finding of facts and conclusions of law as to the alleged ineffective assistance of trial counsel were clearly erroneous; and (2) the PCRA court had erred in finding that petitioner's claim of ineffective assistance by appellate counsel had been waived. Nelson, No. 3496 (Pa. Super. 2002). The Superior Court, upholding the PCRA court's decision, denied petitioner's first issue on the merits and rendered the second issue moot. Id. The Pennsylvania Supreme Court denied petitioner's timely petition for allowance of appeal. Commonwealth v. Nelson, No. 81 (Pa. 2002); see also Resp. at Exh. "D."

  Petitioner filed the instant petition pro se, Petitioner Page 5 asserts: (1)(a) trial counsel was ineffective for failing to object to expert opinion testimony that one of the killings had been "execution type"; (1)(b) expert opinion testimony was insufficient to establish malice beyond a reasonable doubt; (2)(a) trial counsel was ineffective for failing to object to testimony regarding his post-arrest silence; (2)(b) his Fifth Amendment right to remain silent was violated when police officers testified that petitioner had used an alias when he was arrested; (3) trial counsel was ineffective for failing to interview and call Michael Collier as a defense witness; and (4) the trial court and trial counsel abridged his right to testify.

 II. The Report and Recommendation

  The petition was referred to Judge Wells who recommended that the petition be denied without an evidentiary hearing and that no certificate of appealability be issued. Petitioner filing timely objections to the R&R, alleged that Judge Wells erred*fn6 in: (1) not referring to petitioner's traverse and exhibits; (2) finding petitioner's malice and Fifth Amendment claims procedurally defaulted; (3) finding that petitioner failed to rebut the state court factual findings; (4) finding counsel was not ineffective for not challenging two of the Commonwealth's witnesses; (5) finding counsel was not ineffective for not Page 6 objecting to the testimony of Assistant Medical Examiner Paul Hoyer; (6) finding counsel was not ineffective for not objecting to testimony regarding petitioner's post-arrest use of an alias; (7) finding counsel was not ineffective for not calling Michael Collier as a defense witness; and (8) finding that petitioner's right to testify was not denied.

  The court has conducted a de novo review of those portion of the R&R to which petitioner ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.