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March 29, 2004.

DONALD VAUGHN, et al., Respondents

The opinion of the court was delivered by: CYNTHIA RUFE, District Judge


Before the Court are Petitioner Robert Hutson's Objections to Magistrate Judge Charles B. Smith's December 11, 2002 Report and Recommendation ("R & R") in the above-captioned case. The Magistrate Judge's well-reasoned opinion addresses all of the relevant issues, setting forth the factual and procedural history and clearly identifying the basis for his recommendation to dismiss the Petition for a Writ of Habeas Corpus. Nevertheless, the Court, mindful of its responsibility to review the entire record in this matter, addresses each of Petitioner's objections below. For the following reasons, the objections are overruled, the R & R is approved and adopted, and the petition is denied.


  The facts adduced at trial are stated in the light most favorable to the verdict winner: Shortly before one o'clock in the afternoon on May 19, 1983, Keith Moody was shot in the back and killed by a man riding a blue ten-speed bicycle. Carl Rainey was the only eyewitness to the shooting. Mr. Rainey testified that he was outside of a laundromat when he noticed Petitioner sitting on a blue ten-speed bicycle at an intersection. After a short time Petitioner rode down the street a short distance but stopped when Mr. Moody yelled out, "yo yo" to Petitioner as Mr. Moody Page 2 crossed the street.*fn1 After a short conversation, Mr. Moody walked away. When Mr. Moody was approximately 15 feet away from Petitioner, Petitioner pulled a gun and shot Mr. Moody once in the back. Mr. Moody died in the hospital a short time later.

  When interviewed by the police on June 4, 1984, approximately 16 days later, Mr. Rainey described the gunman as follows: "Black guy, about 21 to 22, about the same size as Keith, slim build, mustache (slight), brown skinned, blue jeans, bluejacket with stripes on the front, white plastic frame glasses, dark blue 10 speed bike-new looking."*fn2 On June 14, 1983, Mr. Rainey picked Petitioner's photo from an array and stated, "This looks like the guy I saw do the shooting, but I can't be positive."*fn3 On July 14, 1983, Mr. Rainey picked Mark Wade, who stood next to Petitioner, from a live lineup. At the preliminary hearing, Mr. Rainey identified Petitioner as the same person he had picked out of the lineup and was corrected on the stand. At the trial, Mr. Rainey identified Petitioner as the gunman, while admitting that he had chosen the wrong man from the lineup.

  Eloise Jones, Mr. Moody's aunt with whom he lived at the time of his death, also testified for the prosecution. As she walked home from work for lunch around noon on May 19, 1983, she passed Petitioner sitting on a doorstep down the street from her home. She testified that he was wearing "[d]ungarees and vest jacket, blue with white stripes,"*fn4 and had a blue ten-speed bike next to him. She testified that while she was home, Mr. Moody "came in for about five minutes . . . went Page 3 upstairs, changed jackets . . . and went out."*fn5 Approximately twenty to twenty-five minutes later, she left her home to walk back to work, again passing Petitioner in the same place as he had been before.

  Two days after the shooting, the police presented Ms. Jones with a photo array that did not contain Petitioner, and she picked out one photo saying it looked like the man she had seen but was not him.*fn6 On June 11, 1983, the police presented Ms. Jones with a second photo array of different men but also without Petitioner's picture, and Ms. Jones picked out no one. Around this time, Ms. Jones told the police that she had received an anonymous tip that the gunman had shot himself in the leg while riding away from the scene. The detectives discovered that a man named Leno Quattlebaum went to St. Joseph's Hospital on the day of the shooting with a gunshot wound to the leg. Thus, that same day, June 11, 1983, the police showed Ms. Jones a third array containing Mr. Quattlebaum's picture, but not Petitioner's picture. From this third array, Ms. Jones "picked out [Mr. Quattlebaum's] photo as looking like the male she saw on the bike the day of the shooting, but added that she couldn't be sure without seeing him in person or in a stand up."*fn7 On June 14, 1983, the police presented Ms. Jones with another array from which she picked Petitioner's picture. One month later, Ms. Jones viewed the same live line-up as Mr. Rainey and, like him, picked out Mr. Wade, who was standing next to Petitioner.

  In addition to the testimony of Mr. Rainey and Ms. Jones, the prosecution entered parts of a gun into evidence at the trial. On June 14, 1983, the police approached Petitioner as part Page 4 of their investigation. When a crowd gathered, the police drove Petitioner a few blocks away so as to avoid a possible incident. During this encounter, Petitioner either threw or dropped a bag containing several pieces of a Browning handgun. At trial, an expert testified only that the bullet casing found at the scene of the shooting could have been fired from the Browning, but he could not say for certain.


  On March 17, 1984, a jury found Petitioner guilty of murder in the first degree. The Court sentenced Petitioner to life in prison.

  Petitioner filed a timely appeal with the Superior Court, raising fourteen claims for relief.*fn8 On December 21, 1987, the Superior Court affirmed the judgment of sentence.*fn9 Petitioner Page 5 did not seek allocatur with the Pennsylvania Supreme Court.

  On June 2, 1992, Petitioner filed a petition under Pennsylvania's Post Conviction Relief Act ("PCRA") raising additional claims of trial counsel's ineffectiveness. After a January 31, 1996 hearing, the PCRA Court denied post-conviction relief on March 23, 1998. In Petitioner's timely appeal to the Pennsylvania Superior Court, Petitioner claimed that trial counsel was ineffective for: (1) failing to interview and call Darrell Williams as a witness; (2) failing to object to the court's jury instruction regarding identification testimony; and (3) failing to object to the court's refusal to answer a jury question. The Superior Court disagreed and affirmed the PCRA Court's ruling on June 28, 1999.*fn10 The Pennsylvania Supreme Court denied allocatur on December 16, 1999." Page 6

  On December 15, 2000, Petitioner brought the present Petition for Writ of Habeas Corpus asserting approximately thirty different claims.*fn12 On September 5, 2002, after extensive Page 7 briefing from both parties, Magistrate Judge Smith issued a Memorandum and Order concluding that all but three of Petitioner's claims had been procedurally defaulted. He found, however, that Page 8 "Petitioner had made a colorable showing of actual innocence which, if proven, would excuse the procedural default,"*fn13 and scheduled an evidentiary hearing to allow Petitioner to "present any appropriate testimony and/or evidence pertinent to a showing of actual innocence."*fn14 This Court denied both parties' objections to the September 5, 2002 Order.

  The evidentiary hearing was held on November 5 and 21, 2002. On December 11, 2002, Magistrate Judge Smith filed his R & R and recommended that the petition be denied.*fn15


  This Court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which Petitioner has objected.*fn16 Petitioner's objections fall into four categories: (1) that the Magistrate Judge erred in finding the evidence insufficient to show actual innocence; (2) that the Magistrate Judge improperly restricted the evidence Petitioner could produce at the evidentiary hearing; (3) that the Magistrate Judge erroneously decided Petitioner's undefaulted claims; and (4) that the Magistrate Judge erroneously dismissed Petitioner's cause and prejudice argument. Petitioner does not object to the Magistrate Judge's finding that the vast majority of Petitioner's claims are procedurally defaulted, so the Court does not discuss those issues here. The Court addresses each of Petitioner's objections below. Page 9

  A. Actual Innocence

  Petitioner makes the following arguments relating to the Magistrate Judge's consideration of the actual innocence claim: (1) that the R & R failed to consider the prosecution's recent disclosures relating to the actual time of the shooting; and (2) that the R & R inaccurately characterized evidence presented at the evidentiary hearing. As explained below, neither of these objections has merit.

  1. The Standard of Review for a Claim of a Fundamental Miscarriage of Justice

  In the September Order, Magistrate Judge Smith ruled that the vast majority of Petitioner's habeas claims are procedurally defaulted. Magistrate Judge Smith also found, however, that the fundamental miscarriage of justice exception to procedural default may apply and conducted an evidentiary hearing to explore that possibility. Nevertheless, after the evidentiary hearing, he found that the proffered "new evidence" failed to qualify for the exception.

  The standard for overcoming a procedural default is very stringent:
Under the fundamental miscarriage of justice exception, a petitioner must demonstrate that a constitutional violation probably resulted in the conviction of an innocent defendant. Murray v. Carrier. 477 U.S. 478. 496 (1986). A petitioner meets the miscarriage of justice exception if he "establish[es] that under the probative evidence he has a colorable claim of factual innocence." Sawyer v. Whitley, 505 U.S. 333, 339, reh'g denied 505 U.S. 1244 (1992) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). However, a fundamental miscarriage of justice occurs only "`in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Schlup v. Delo, 513 U.S. 298, 321 (1995) (quoting Murray, 477 U.S. at 496).*fn17
  To satisfy this high standard, Petitioner must present "new reliable evidence — whether it be Page 10 exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial" to "show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt."*fn18

  2. New Evidence Relating to the Time of the Shooting

  Petitioner argues that the R & R fails to consider the police radio transmission printout, which shows that the victim was already being driven to the hospital at 12:47 p.m. According to Petitioner, based on Darrell Williams' testimony that he was stopped by the police en route to the hospital approximately ten minutes after finding Moody wounded, this transcript proves that the shooting occurred around 12:37 p.m. Therefore, this transcript completely refutes all of Ms. Jones' testimony because she claimed to have passed the man with the ten-speed bicycle as she returned to work shortly before 1:00 p.m., and her sighting would have been impossible if the shooting had occurred at 12:37 p.m. In addition, Petitioner claims that he first received the radio transmission transcript at the evidentiary hearing and that the prosecution's alleged suppression of this evidence violated the Supreme Court's holding in Brady v. Maryland, 373 U.S. 83 (1963).

  Although it is true that the R & R does not address the significance of the radio transcript, the transcript itself does not lend much support to Petitioner's claim of actual innocence. Petitioner's reliance on the transcript to prove that the shooting occurred ten minutes earlier than the prosecution argued at trial does little for his case of actual innocence. First, as Respondent points out, the time of the shooting was never a critical element of the prosecution's case.*fn19 Second, Ms. Jones never testified to any specific times; she only gave approximations for the times she left Page 11 work and then returned. Moreover, as Petitioner himself points out, "[i]n Ms. Jones' initial statement to the police, she claimed to have left school on her lunch hour at 11:30 a.m., stayed an hour at her mother's house, and returned to school, passing by the man on the bike, at 12:30."*fn20 These times comport with Petitioner's assertion that the shooting occurred at 12:37 p.m. Third, to the extent that the transcript contradicts Ms. Jones' testimony about the times she saw the suspicious man sitting on the doorstep, such a contradiction, while it may impeach some of Ms. Jones' testimony, does not prove Petitioner's actual innocence. Ms. Jones did not witness the shooting, so at most, this evidence could lead to the conclusion that Ms. Jones did not pass Petitioner as she walked to and from her home; it does not refute Mr. Rainey's testimony that he saw Petitioner shoot the victim. Thus, the transcript does not prove Petitioner's actual innocence.

  Petitioner's Brady claim fails as well. Petitioner alleges that the prosecution had not provided him with the radio transcript before the evidentiary hearing. In response to Petitioner's unsupported allegation, Respondent produces a letter sent on October 14, 1983 from the prosecution to Petitioner's counsel.*fn21 This letter lists the documents the prosecution disclosed to Petitioner in response to ...

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