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March 31, 2004.

EDWARD KLEM, et al., Respondents

The opinion of the court was delivered by: JAMES KELLY, Senior District Judge


Presently before the Court are the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi and objections thereto filed by pro se Petitioner Patrick Toussaint ("Petitioner"), who is currently incarcerated at the Mahanoy State Correctional Institute in Pennsylvania. On December 6, 1996, a jury in the Court of Common Pleas of Philadelphia County (the "Court of Common Pleas") convicted Petitioner of three counts of rape, involuntary deviate sexual intercourse, and kidnapping. On May 15, 1997, Petitioner was sentenced to an aggregate term of seven-to twenty-years of imprisonment for these convictions.

On October 24, 2002, Petitioner filed a Petition for a Writ of Habeas Corpus (the "Petition") with this Court, pursuant to 28 U.S.C. § 2254.*fn1 In accordance with 28 U.S.C. § 636 and Local Page 2 Rule of Civil Procedure 72.1, this Court referred the Petition for a Report and Recommendation to Magistrate Judge Scuderi, who, on August 26, 2003, recommended that this Court deny the Petition because Petitioner's claims are procedurally defaulted or otherwise without merit. On September 8, 2003, Petitioner filed his objections to the Report and Recommendation with this Court.

  For the following reasons, Petitioner's objections are OVERRULED, Magistrate Judge Scuderi's Report and Recommendation is ACCEPTED and ADOPTED as supplemented by this memorandum, and Petitioner's Petition for a Writ of Habeas Corpus is DENIED.


 A. Factual History

  During two separate snow storms, Petitioner, an employed taxicab driver, offered both of his victims a ride in his personal automobile.*fn2 Taxicabs were not in operation due to the inclement weather. Both victims, during each of their respective encounters with Petitioner, accepted his offer of a ride. Upon entering his automobile, each victim introduced herself to Petitioner by name, but Petitioner nevertheless chose to refer to each of the women, on each occasion, as "Boo." Each of the Page 3 victims had requested that Petitioner drive her to a specific destination, and with each of the victims, Petitioner proceeded to take her elsewhere.

  The first victim, K.H., entered Petitioner's car at 5:30 p.m. on January 9, 1996. Instead of driving K.H. to her mother's home, as she had requested, Petitioner drove her to his apartment. Upon arrival at his apartment complex, Petitioner parked his taxicab in such a way that K.H.'s exit was barricaded by a snow bank. With K.H. confined in his car, Petitioner retrieved a beer from his apartment, returned to the car, drank the beer, and then began to drive around again. K.H. pled with Petitioner to drive her home, but this request resulted in Petitioner angrily screaming and banging his fists on the steering wheel. Petitioner drove K.H. to Fairmount Park, again parking next to a snow bank that prevented any attempt of flight, and raped K.H. After Petitioner left Fairmount Park, he returned to his apartment and brought K.H. inside. At this point, K.H. attempted to flee, but Petioner grabbed her, threatened to kill her, and then raped her a second time before taking her home.

  Petitioner's second victim, M.D., entered Petitioner's car at 11:45 a.m. on February 6, 1996. Instead of driving M.D. to her mother's place of work, as she had requested, Petitioner drove her to his apartment. Upon arrival, Petitioner invited M.D. into his apartment and she voluntarily accepted his Page 4 invitation. Once inside, Petitioner threatened to kill M.D. if she did not have sex with him, and then raped her. After engaging in repeated, sexual assaults on M.D., Petitioner drove her to the Chester Transportation Center.

  Both victims, K.H. and M.D., reported their assaults to the authorities and each positively identified Petitioner*fn3 as their attacker.

 B. Procedural History

  Petitioner was arrested and charged with two counts of rape and kidnapping of K.H., and one count of rape and involuntary deviate sexual intercourse with regard to M.D. On July, 10, 1996, Judge Carolyn Engel Temin granted the Commonwealth's motion to consolidate these two cases in the Court of Common Pleas. Petitioner moved to sever the two indictments, but his motion was denied. On December 6, 1996, after a jury trial before Judge D. Webster Keogh, Petitioner was convicted of all charges. Judge Keogh sentenced Petitioner to an aggregate term of seven-to twenty-years imprisonment. Petitioner timely filed post-sentence motions, and on September 29, 1997, Judge Keogh denied these Page 5 motions.*fn4

  On October 7, 1997, after the denial of his post-sentence motions, Petitioner appealed his conviction to the Superior Court of Pennsylvania, claiming only that his case was improperly consolidated. The Superior Court affirmed his conviction in Commonwealth v. Toussaint, 736 A.2d 15 (Pa. Super. 1998). Petitioner then filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, and the Supreme Court provided final judgment in his case with its Order denying allocatur in Commonwealth v. Toussaint, 794 A.2d 361 (Pa. 1999).

  Following this denial, Petitioner sought collateral state relief under Pennsylvania's Post-Conviction Relief Act ("PCRA") on January 13, 2000 by filing a pro se petition in the PCRA court, which would be presided over by Judge Koegh. Petitioner claimed for the first time that he was denied effective assistance of his trial and direct appellate counsel and, again, that the improper consolidation of his two indictments denied him a fair trial. Specifically, Petitioner claimed that his trial counsel failed to challenge the Commonwealth's testimony or have his employer testify as a ...

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