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July 14, 2004.

Travis Veal, Petitioner,
Robert Myers, et al., Respondents.

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 Court stated:
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 ineffective. Id.

  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.)

  II. Discussion

  A. Standard of Review

  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, as ...

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