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HOUSLEY v. TENNIS

April 5, 2004.

DEWAYNE HOUSLEY
v.
FRANKLIN J. TENNIS, et al



The opinion of the court was delivered by: JACOB HART, Magistrate Judge

REPORT AND RECOMMENDATION

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the Rockview State Correctional Institution at Bellefonte, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

FACTS AND PROCEDURAL HISTORY:

  On June 8, 2000, Housley's capital murder trial began. A jury, sitting before the Honorable Edward G. Biester, Jr., convicted Housley of first degree murder and robbery on June 12, 2000. After the jury deadlocked in the penalty phase, Judge Biester sentenced Housley to life imprisonment for the murder conviction and a consecutive 10-20 year sentence on the robbery conviction.

  Housley filed a timely appeal in the Superior Court claiming:
1. The trial court erred in admitting petitioner's statements regarding a conspiracy with Gary Johnson, without proof of a corpus delecti;
2. The trial court erred in failing to sever the counts charging conspiracy with Gary Johnson;
3. The trial court erred in admitting certain hearsay statements of Gary Johnson.
The Superior Court affirmed the judgment of sentence on July 10, 2001. Commonwealth v. Housley, 2100 EDA 2000. Housley did not seek discretionary review in the Pennsylvania Supreme Court.

  On October 15, 2001, Housley filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. ¶¶ 9541-9551, presenting evidence that Courtney Boone, Housley's co-defendant, had recanted his testimony implicating Housley. On June 26, 2002, Judge Biester denied Housley's petition, finding that Boone's recantation was unreliable.

  Housley again filed a timely appeal in the Superior Court, claiming:
1. The PCRA Court erred in allowing Boone to invoke his Fifth Amendment right and refuse to testify at the PCRA hearing;
2. The PCRA Court erred in finding the recantation testimony was unreliable without conducting a full and fair hearing.
On April 17, 2003, the Superior Court affirmed the denial of collateral relief. Commonwealth v. Housley, 2096 EDA 2002. Again, Housley did not seek discretionary review in the Pennsylvania Supreme Court.
  Housley filed this petition for habeas corpus on February 17, 2004, claiming:
1. The court dismissed Boone's recantation without a full and fair hearing;
2. The trial court erred in admitting Housley's statements regarding a conspiracy with Gary Johnson, without proof of a corpus delecti;
3. The trial court erred in failing to sever the counts charging conspiracy with Gary Johnson;
4. The court improperly admitted the hearsay statements of Gary Johnson.
DISCUSSION:

  To properly understand Housley's claims, it is necessary to review the facts underlying his convictions. On February 8, 1999, Charles Bethea was shot and killed entering the Diva's Gentlemen's Club in Bristol Township. At Housley's trial, the Commonwealth presented Housley's own statement that he and Gary Johnson had followed the victim the night before the shooting, with the intent of robbing him. (N.T. 6/14/00, 145). However, according to Housley, because his car ran out of gas, he and Johnson did not go forward with their plan to rob Mr. Bethea. In his habeas petition, Housley argues that the trial court should have severed the conspiracy charge involving the actions of Housley and Johnson the night prior to Mr. Bethea's murder, should have barred hearsay statements made by Johnson, and should have barred the introduction of Housley's own incriminating statement.

  On the night Mr. Bethea was killed, Housley employed the help of another friend, Courtney Boone, whose testimony the Commonwealth presented at trial. Mr. Boone stated that he was the get-away driver on the night Housley killed the victim. Boone testified that he and Housley followed Mr. Bethea on the night of the killing. (N.T. 6/14/00, 18-21). When Mr. Bethea exited his car at Diva's Club, Housley approached him and assaulted him, but Mr. Bethea got away and entered Diva's. (N.T. 6/14/00, 22-27). Patrons inside Diva's described the scene. Mr. Bethea stumbled backwards through the door into Diva's and was shot once in the face by a hooded man wearing a bandana. (N.T. 6/12/00, 52-58). After Mr. Bethea fell to the floor, the hooded culprit searched his pockets and took money from the victim. (N.T. 6/12/00, 58). According to Boone, he heard the shot and drove Housley back home after the shooting. (N.T. 6/14/00, 27-28). In support of his PCRA petition, Housley presented an affidavit from Boone, recanting the incriminating testimony he provided against Housley. (Exhibit attached to Notes of Testimony, 1/17/02).

  Housley's girlfriend, Angela Adams, also testified at trial. She said that Housley had called her later on the night of the incident and admitted that he shot someone. (N.T. 6/13/00, 176-77). The next day, according to Angela Adams, Housley admitted to her that he had followed Mr. Bethea to Diva's, pulled a gun on him, and shot him. (N.T. 6/13/00, 181-83).

  A. The Recantationl

  As previously discussed, Courtney Boone provided incriminating testimony against Housley at trial. However, at the PCRA hearing, Housley presented a notarized statement from Boone, recanting all of the incriminating testimony he provided against Housley. (Exhibit attached to Notes of Testimony, 1/17/02). Instead, Boone wrote in the statement that he had been with Gary Johnson on the night Mr. Bethea was killed. Judge Biester, after holding an evidentiary hearing, rejected Boone's recantation. At the hearing, Boone refused to testify, invoking his Fifth Amendment right against self incrimination. (N.T. 1/17/02, 6-10). Therefore, the only evidence of Boone's recantation was the notarized statement presented by Housley in support of his PCRA petition.*fn1

  In reviewing the evidence, Judge Biester determined that Boone's recantation lacked credibility. Commonwealth v. Housley, 5800 of 1999 (PCRA Opinion, 6/26/02, Biester, J., at 10), hereinafter "PCRA Opinion." The judge reviewed the trial testimony and determined that there was an abundance of evidence at the trial corroborating Boone's original rendition of the facts. Shamekia Adams, Housley's landlord and sister of his girlfriend, testified at trial that she saw Housley and Boone around one in the morning on the night in question. Id. at 7; N.T. 6/13/00, 139-42. When they entered the house, they asked her not to tell anyone that Housley lived there. (N.T. 6/13/00, 142). Additionally, Angela Adams, Housley's girlfriend, testified that on the night of the murder Housley called her and admitted that he had just killed someone. PCRA Opinion, at 7; N.T. 6/13/00, 176-77'. He later described the scene to Angela Adams and ...


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