United States District Court, E.D. Pennsylvania
April 5, 2004.
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
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,
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.
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 his description, as recited by Ms. Adams, was
consistent with the testimony of the eyewitnesses to the shooting. Thus,
Judge Biester determined that the recantation lacked credibility. This
finding is supported by the facts of the case.
To the extent Housley contends that the court erred in allowing Boone
to invoke his Fifth Amendment rights, his claim also lacks merit. The
Superior Court explained that "were Boone to have testified in accordance
with his affidavit, he would have admitted under oath that he perjured
himself in his previous testimony." This is the heart of the protection
against self incrimination. "At its core, the privilege reflects our
fierce `unwillingness to subject those suspected of crime to the cruel
trilemma of self-accusation, perjury or contempt.'" Pennsylvania v.
Muniz, 496 U.S. 582, 596 (1990)(quoting Doe v. United States, 487 U.S. 201,
212 (1988)). Thus, the state courts correctly determined that Boone
properly invoked his Fifth Amendment right.
B. Admission of Housley's Incriminating Statement
Housley next complains that the trial court erred in admitting
incriminating statements that he made to the police and witnesses. He
contends that without independent evidence of the conspiracy with Johnson
to rob Mr. Bethea, it was error to allow the Commonwealth witnesses to
testify to his statements regarding this matter. In Pennsylvania
evidentiary rulings, this is known as the corpus delecti rule. "Corpus delecti" means, literally, the body of a
crime. The corpus delecti consists of the occurrence
of a loss or injury resulting from some person's
criminal conduct. The corpus delecti rule requires the
Commonwealth to present evidence that: (1) a loss has
occurred; and (2) the loss occurred as a result of a
criminal agency. Only then can the Commonwealth rely
upon statements and declarations of the accused to
prove that the accused was, in fact, the criminal
agent responsible for the loss. The grounds on which
the rules rests are the hasty and unguarded character
that is often attached to confessions and admissions
and the consequent danger of a conviction where no
crime has in fact been committed. . . .
[T]he rule seeks to ensure that the Commonwealth has
established the occurrence of a crime before
introducing the statements or confessions of the
accused to demonstrate that the accused committed the
crime. The rule was adopted to avoid the injustice of
a conviction where no crime exists. The fact that a
crime has been committed by someone must be shown
before a confession will be received.
Commonwealth v. Taylor, 831 A.2d 587
, 590 (Pa. 2003).
To the extent Housley's claim involves an error of state law, i.e. the
allegedly improper application of a state evidentiary rule, it is beyond
the review of habeas corpus. "It is axiomatic that federal courts may
intervene in the state judicial process only to correct wrongs of a
constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 83 (1983)
(citing Engle v. Isaac, 457 U.S. 1141 (1982)). That is not to say that
state court evidentiary rulings may never be reviewed in habeas corpus.
Rather, habeas corpus is only appropriate when such evidentiary rulings
amount to a violation of due process.
In his habeas petition, although Housley does not mention a violation
of due process or the denial of a fair trial, he does claim that the
application of the corpus delecti rule violated the Constitution. The
problem is that he never alerted the state courts to the constitutional
dimension of his claim. Absent unusual circumstances, the federal court
will not consider the merits of a habeas corpus petition unless the
petitioner has complied with the exhaustion requirement of 28 U.S.C. ¶ 2254(b)(1)(A). That requires that the state courts be
given a fair opportunity to review the Petitioner's claims.
Both the legal theory and the facts supporting a federal claim must be
fairly presented to the state courts before bringing a habeas corpus
petition. Landano v. Rafferty, 897 F.2d 661, 669-670 (3d Cir.), cert.
denied, 498 U.S. 811 (1990). This ensures "that the same method of legal
analysis that is used by the federal court in resolving the petitioner's
claim was also readily available to the state court when it adjudicated
the claim." Id. Here, although Housley presented a claim involving the
corpus delecti rule in the state courts, he never alerted them to an
underlying due process violation. Thus, his claim is unexhausted. See
Duncan v. Henry, 513 U.S. 364. 366 (1995)("If a habeas petitioner wishes
to claim that an evidentiary ruling at a state court trial denied him the
due process of law guaranteed by the Fourteenth Amendment, he must say
so, not only in federal court, but in state court.").*fn2 Therefore,
Housley is not entitled to habeas relief.
C. Severance of Conspiracy Charges
Housley next argues that the court erred in failing to grant the motion
to sever the conspiracy charges. As previously discussed, the evidence
presented at trial included the fact that Housley and Gary Johnson had
followed the victim, with the intent of robbing him, the night before the murder. Housley argues that the trial court erred in failing
to sever the information charging the counts relating to this incident.
Again, Housley presents an issue of state law. Throughout his state
appeals, Housley couched this claim in terms of a violation of
Pennsylvania Rule of Criminal Procedure 1128.*fn3 The violation of a
state rule of criminal procedure is not cognizable in habeas corpus. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)("it is not the province of
a federal habeas court to reexamine state-court determinations on
D. Admission of Hearsay Statements
Finally, Housley argues that the court erred in admitting hearsay
statements of Gary Johnson. Because Housley failed to properly present
this claim to the state courts, it is considered procedurally defaulted
in the federal habeas forum. Claims are considered procedurally defaulted
if the "final state court presented with a federal claim refuses to
decide its merits based on an established state rule of law independent
of the federal claim and adequate to support the refusal." Sistrunk v.
Vaughn, 96 F.3d 666, 673 (3d Cir. 1996)(citing Coleman v. Thompson,
501 U.S. 722, 750 (1991)).
Here, the Superior Court found that Housley's hearsay claim was waived
because he failed to present the claim in his matters complained of on
appeal. Commonwealth v. Housley 2100 EDA 2000, at 8. Since the Superior
Court refused to address the merits of Housley's claim based on a state
procedural rule, see Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (any
issue not presented to the lower court in a Rule 1925(b) statement is deemed
waived on appeal), the claim is defaulted and may only be addressed if
Housley establishes cause for the default and prejudice resulting,
therefrom, or that failure to address the claim will result in a
fundamental miscarriage of justice. Sistrunk, 96 F.3d at 674-75.
Housley fails to offer any reason for his failure to present his
hearsay claim in his post verdict motions. Thus, he has failed to
establish cause for his default.*fn4 Therefore, his claim can only be
considered upon a showing of a fundamental miscarriage of justice, which
requires the petitioner to supplement his claim with a "colorable showing
of factual innocence." McCleskev v. Zant, 499 U.S. 467, 495 (1991)(citing
Kuhlmann v. Wilson 477 U.S. 436, 454 (1986)). The burden is on the
petitioner to show that "a constitutional violation has probably resulted
in the conviction of one who is actually innocent." Schlup v. Delo,
513 U.S. 298, 327 (1995)(citing Carrier, at 496). Housley has failed to
supplement his claim with any showing of innocence. Therefore, the
default should not be excused. Therefore, I make the following:
AND NOW, this 5th day of April, 2004, IT IS RESPECTFULLY RECOMMENDED
that the petition for writ of habeas corpus be denied. There has been no
substantial showing of the denial of a constitutional right requiring the
issuance of a certificate of appealability. ORDER
AND NOW, this ___ day of ___, 2004, upon careful and independent
consideration of the petition for writ of habeas corpus, and after review
of the Report and Recommendation of United States Magistrate Judge Jacob
P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DENIED.
3. There is no basis for the issuance of a certificate of