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