The opinion of the court was delivered by: ANITA BRODY, District Judge
Travis Veal ("Veal") petitions the court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (2003). For the following
reasons, Veal's petition is denied.
I. Facts and Procedural History
On April 21, 1989, Veal was convicted by a jury in the Court of
Common Pleas in Philadelphia of second degree murder, robbery,
conspiracy and possessing an instrument of crime. (Report and
Recommendation*fn1 ("R & R") at 4.) The charges were filed
as a result of a robbery of Dave's Grocery Store, during which
Veal and an accomplice, Leonard Ravenell ("Ravenell"), robbed the store and Ravenell shot the owner, Mr.
Rodriguez, in the head. (Id. at 2.) At trial, Veal was
represented by Attorney Thomas Moore ("Moore"). (Resp. to Second
Amend. Pet. at 1 [hereinafter "Resp."].) The Commonwealth
presented Ravenell as the primary Commonwealth witness against
Veal at trial. (R & R at 3.) Two additional Commonwealth
witnesses, Mrs. Rodriguez ("Mrs. Rodriguez") and Tracey Natal
("Natal") also testified during the trial. (Id.) Mrs. Rodriguez
was the wife of the deceased store owner Mr. Rodriguez, and was
in the store during the shooting. (Id. at 2.) Tracey Natal, who
was eleven years old at the time, was also inside the store
during the shooting. (Id.) Mrs. Rodriguez and Natal both
confirmed Ravenell's testimony and identified Veal as one of the
perpetrators. (Id. at 3.) Veal was sentenced to life
imprisonment. (Id. at 4.) Veal did not file a direct appeal to
the Superior Court. (Id.) On December 18, 1990, Veal filed a
pro se petition for collateral relief pursuant to the Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq.
(Id.) On August 10, 1995, pursuant to Veal's PCRA petition, the
Honorable Joseph I. Papalini reinstated Veal's appellate rights
nunc pro tunc. (Id. at 5.) Petitioner then filed a direct
appeal to the Pennsylvania Superior Court. In his appeal to the
Superior Court, Veal was represented by Attorney David Rudenstein
("Rudenstein"). (Resp. at 2.) Veal raised the following issues
for consideration by the Superior Court:
1) Is appellant entitled to a new trial, because the verdict
was against the weight of the evidence?
2) Is appellant entitled to a new trial, because appellant's
trial counsel was ineffective for failing to move, prior to
trial, for the suppression of identification testimony of Mrs.
Rodriguez and Tracey Natal?
3) Is appellant entitled to a new trial, because appellant's
trial counsel was ineffective for failing to request proper
eyewitness jury instructions? Commonwealth v. Veal, Pennsylvania Superior Court Docket No.
04226 Philadelphia 1995 (Nov. 27, 1996). Because it is relevant
to my decision in this case, I will include a brief synopsis of
the opinion issued by the Superior Court on November 27, 1996.
In its opinion affirming the judgment of sentence against Veal,
the Superior Court first noted that Judge George J. Ivins, the
trial judge, had already properly disposed of the first issue
raised by Veal's appeal. Adjudicating Veal's ineffective
assistance of counsel [hereinafter "IAC"] claims, the Superior
Our standard of review in evaluating the claim of
ineffective assistance of counsel is well-settled. We
presume that trial counsel is effective and place on
the defendant the burden of proving otherwise.
Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199
(1994); Commonwealth v. Pierce, 537 Pa. 514,
645 A.2d 189 (1994); Commonwealth v. Williams,
524 Pa. 218, 230, 570 A.2d 75, 81 (1990). We are first
required to determine whether the issue underlying
the claim is of arguable merit. Commonwealth v.
Edmiston, 535 Pa. 210, 238, 634 A.2d 1078, 1092
(1993); Commonwealth v. Johnson, 527 Pa. 118, 122,
588 A.2d 1303, 1305 (1991). If the claim is without
merit, our inquiry ends because counsel will not be
deemed ineffective for failing to pursue an issue
which is without basis. Johnson, supra. Even if
the underlying claim has merit, the appellant still
must establish that the course of action chosen by
his counsel had no reasonable basis designed to
effectuate the client's interest and, finally, that
the ineffectiveness prejudiced his right to a fair
trial. Id.; Commonwealth v. Pierce, 515 Pa. 153,
527 A.2d 973 (1987).
Thus, the Superior Court was unambiguous in its assertion that,
under Pennsylvania law, in order to address Veal's claim of
ineffective assistance of counsel, the Superior Court was first
required to assess the merits of the underlying claim. Citing
Pennsylvania case law, the Superior Court began its analysis by
stating the relevant standard for the underlying claim of
identification taint: "In reviewing claims of whether a defective
pre-trial identification taints an in-court identification that
flows from it, `we must determine whether the identification
procedure was so suggestive and conducive to irreparable mistaken identity so as
to deny the accused due process.'" Id. (citing Commonwealth v.
Swinson, 626 A.2d 627, 630 (Pa. 1995)). Furthermore, the
Superior Court noted that "[t]he constitutionality of an in-court
identification . . . rests upon whether such identification is
reliable . . . [and] in gauging reliability, we employ a totality
of the circumstances test." Id. (citing Commonwealth v.
Baker, 614 A.2d 668 (Pa. 1992)). The Superior Court further
noted that the Pennsylvania Supreme Court had delineated several
specific factors to be considered in the course of conducting an
analysis of reliability: (1) the suggestiveness of the pre-trial
identification; (2) the prior opportunity of the witness to
observe the criminal act; (3) the accuracy of the witness'
description; (4) the lapse of time between the act and any
line-up; (5) and any failure to identify the defendant on prior
occasions. Id. (citing Commonwealth v. Ransome,
402 A.2d 1379, 1382 (1979)). After reviewing the totality of the
circumstances surrounding the identifications of Mrs. Rodriguez
and Natal, and analyzing the applicable factors, the Superior
Court stated that "Veal's arguments as to both Mrs. Rodriguez and
Ms. Natal are meritless," and, therefore, counsel was not
Following the ruling by the Superior Court issued on November
27, 1996, Veal failed to file a timely petition for allowance of
appeal with the Supreme Court of Pennsylvania. ® & R at 5.) Over
nine months later, however, on September 15, 1997, Veal's newly
appointed counsel, John Elbert ("Elbert") filed a petition for
allowance of appeal in the Pennsylvania Supreme Court. (Id. at
5); (Resp. at 3.) The petition reasserted the same claims
previously asserted before the Superior Court.*fn2 (R & R at
5); (Resp., Ex. I.) Veal's request for allocatur, however, was denied on February 23, 1998. (R & R at 5); Commonwealth v.
Veal, 490 E.D. Allocatur Docket 1997. As I stated previously in
Veal v. Myers, "the Pennsylvania Supreme Court's denial [of
allocatur] is presumed to be on the merits." 126 F. Supp.2d 932,
936 (E.D. Pa. 2000) (citing Hull v. Kyler, 190 F.3d 88 (3d
Cir. 1999)). Petitioner did not thereafter file a PCRA petition.
On July 31, 1998, Veal filed his original habeas petition
claiming ineffective assistance of trial counsel for: (1) failing
to move, prior to trial, for the suppression of identification
testimony; and (2) failing to request proper jury instructions
regarding eyewitness identification testimony. In their response
to the petition, the Commonwealth argued that Veal's claims were
procedurally defaulted because his allocatur petition was not
timely, and because he had demonstrated neither cause nor
prejudice to excuse the default. (R & R at 6). Agreeing with the
Commonwealth, on October 23, 1998, Magistrate Judge Rapoport
filed his first Report and Recommendation recommending that
Veal's petition be denied. (Id.)
In response to the first R & R, Veal filed pro se objections
in which he argued that the procedural default should be excused.
Veal's argument largely centered around an unusual order obtained
by Veal and entered by the Honorable Carolyn E. Temin of the
Court of Common Pleas of Philadelphia County on August 15, 1997.
(Id. at 7.) Judge Temin's order, which stated "that the
defendant be allowed to proceed with a nunc pro tunc Petition
for Allowance of Appeal to the Pennsylvania Supreme Court,"
appeared to grant Veal's request to proceed with a nunc pro
tunc petition for allowance of appeal to the Pennsylvania
Supreme Court.*fn3 (Resp., Ex. H (order)); (R & R at 7); see also Veal v. Myers, 126 F. Supp.2d 932
(E.D. Pa. 2000) (detailing procedural history). After an initial
round of briefing regarding the unusual order, I appointed
counsel for Veal. On May 8, 2000, Veal filed amended objections
to the original R & R issued on October 23, 1998. On June 19,
2000, the Commonwealth responded, and on July 12, 2000, Veal
filed a reply. On October 30, 2000, I heard oral argument on the
issue of procedural default in light of the unusual Common Pleas
Court Order, and on December 29, 2000, I issued an "Explanation
and Order" concluding that the Commonwealth had waived the
procedural default with respect to Veal's 1997 pro se motion.
(R & R at 8); Veal v. Myers, 126 F. Supp.2d 932 (E.D.
Pa. 2000). Specifically, I held that "[i]f the Commonwealth wished to
avoid the state court's waiver of the procedural default, it was
incumbent upon it to appeal the Court of Common Pleas' order."
Veal, 126 F. Supp.2d at 935 (citing Hull v. Kyler,
190 F.3d 88 (3d Cir. 1999)).*fn4 On July 9, 2001, Veal filed his first amended habeas petition,
and on January 20, 2003 Veal filed a second amended petition. In
his second amended petition, petitioner makes the following
claims:*fn5 (1) the identification by eyewitness Mrs.
Rodriguez was tainted (Second Amend. Pet. ¶ 9); (2) the
identification by eyewitness Natal was tainted (Id. ¶ 10); (3)
trial counsel Moore was ineffective for (a) failing to move to
suppress these identifications, (b) failing to object to their
admission at trial (Id. ¶ 12), (c) failing to request a
continuance and take any necessary steps to force the appearance
at trial of a witness named "Paco," and (d) failing adequately to
investigate that allegedly exculpatory evidence (Id. ¶ 20); (4)
appellate counsel Rudenstein was ineffective for failing to
assert ineffective assistance of trial counsel (claim 3 and all
of its subparts) in the Superior Court on reinstated direct
appeal (Id. ¶¶ 13-14, 21-22); (5) nunc pro tunc allocatur
counsel Elbert was ineffective for (a) failing to assert
ineffective assistance of trial counsel on allocatur, and for (b) laboring
under an actual conflict of interest since he represented
co-defendant Ravenell at trial. (Id. ¶¶ 15, 23.)
This petition is governed by the revisions to the federal
habeas statute enacted in the Anti-Terrorism and Effective Death
Penalty Act of 1996, Pub.L. No. 104-32, 110 Stat. 1214 (1996),
effective April 24, 1996 ("AEDPA"). Pursuant to AEDPA, "when a
federal court reviews a state court's ruling on federal law, or
its application of federal law to a particular set of facts, the
state court's decision must stand unless it is `contrary to, or
an unreasonable application of, clearly established Federal law,