The opinion of the court was delivered by: JAN DuBOIS, District Judge
Currently before the Court is a counseled petition for Writ of
Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by petitioner,
Andre Wright, who is incarcerated in the State Correctional
Institution at Graterford, Pennsylvania ("SCI Graterford"). For
the reasons set forth below, the petition is denied and dismissed
without an evidentiary hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1981 petitioner was convicted in the Philadelphia Court of
Common Pleas of murder in the second degree, robbery, criminal
conspiracy and possession of an instrument of crime. These
charges arose out of the robbery and murder of Maurice Wilson by
petitioner and his co-defendants Mark Garrick and Eughenia
Jones.*fn1 Post-trial motions were denied on March 15, 1983. On that date the court sentenced petitioner to a mandatory
term of life imprisonment without parole.
On July 12, 1985, the Superior Court vacated petitioner's
robbery conviction on the ground that it merged with the murder
in the second degree conviction, but affirmed the judgment of
sentence with respect to the other charges. Commonwealth v.
Wright, 501 A.2d 294 (Pa. Super. 1985). A petition for allowance
of appeal to the Supreme Court of Pennsylvania was denied on
September 25, 1986. Commonwealth v. Wright, 966 E.D. Alloc.
Petitioner filed a Writ of Habeas Corpus in the United States
District Court for the Eastern District of Pennsylvania on
October 1, 1986. By leave of court, this petition was withdrawn without prejudice on February 10, 1987 to allow for
exhaustion of state remedies.
On May 15, 1989, petitioner filed a pro se petition for
collateral relief pursuant to the Pennsylvania Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541, et seq., ("PCRA"). The PCRA
court appointed counsel and held an evidentiary hearing on June
30, 1997. At that hearing, the court heard testimony from two
witnesses, Joanne Turner and Baseemah Henry, who had not been
called at petitioner's trial. Petitioner argued that the failure
to call these witnesses at trial amounted to ineffective
assistance of counsel. Ms. Turner, offered as an alibi witness,
testified at the PCRA hearing that petitioner had been with her
continuously from the afternoon of July 7, 1995, through noon the
following day, well after the murder of the decedent. (N.T.
6/26/96, pp. 8-43). Ms. Henry's testimony was offered in support
of defendant's theory that Esther Jones, a Commonwealth witness,
was a drug dealer who stood to take over the decedent's drug
business upon his death and, as a result, was unwilling to
identify the true perpetrator(s) for fear of retaliation. At the
hearing Ms. Henry explained that she was a drug user who had
purchased drugs on numerous occasions from Esther Jones. (N.T.
6/26/96, pp. 46-49, 57-58).
Petitioner filed the present Amended Petition for a Writ of
Habeas Corpus on July 26, 2000 ("Amended Petition"). The Amended
Petition contains three categories of alleged constitutional
violations: (1) Sixth Amendment Confrontation Clause and
Fourteenth Amendment Due Process violations arising from trial
court evidentiary rulings on defense counsel's ability to
question witnesses about the motives of others, especially Esther
Jones, to kill the decedent; (2) violations of petitioner's
Fourteenth Amendment Due Process rights arising from
prosecutorial misconduct; and (3) violations of petitioner's
constitutional right to effective assistance of counsel.*fn2 In addition, petitioner argues that all procedurally defaulted
claims should be considered under the cause and prejudice and
actual innocence doctrines. Murray v. Carrier, 477 U.S. 478
The matter was referred to Magistrate Judge Charles B. Smith
for a report and recommendation. Magistrate Judge Smith issued a
Report and Recommendation on February 25, 2003, recommending that
petitioner's claims be denied. Petitioner filed Objections to the
Report and Recommendation on February 28, 2003.
Petitioner asserts eight objections to the Report and
Recommendation: two objections relate to petitioner's
Confrontation Clause and Due Process claims; one objection
relates to his prosecutorial misconduct claim; four objections
relate to his ineffective assistance of counsel claim (both as a
substantive claim and as an excuse to the procedural default bar
under the cause and prejudice doctrine) and one objection
addresses the actual innocence exception as an excuse to the procedural default bar. The Court writes at this time to
address these objections.
The Anti-Terrorism and Effective Death Penalty Act,
28 U.S.C. § 2254 ("ADEPA"), circumscribes a federal habeas court's review of
a state court conviction. Section 2254(d) provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
As the Court explained in Lockyer v. Andrande, 538 U.S. 63
70-71 (2003), "clearly established Federal law" under §
2254(d)(1) is the governing legal principle or principles set
forth by the Supreme Court at the time the state court renders
its decision. Id.; Williams v. Taylor, 529 U.S. 362
(2000). A state court decision is contrary to or an unreasonable
application of federal law if the state court applies a rule that
contradicts the governing law set forth in Supreme Court cases or
if the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from Supreme Court
precedent. Lockyer, 538 at 71; Williams v. Taylor, 529 U.S.
"[T]he unreasonable determination clause applies most readily
to situations where petitioner challenges the state court's
findings based entirely on the state record. Such a challenge may
be based on the claim that the finding is unsupported by
sufficient evidence, that the process employed by the state court is
defective, or that no finding was made by the state court at
all." Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004)
Pursuant to 28 U.S.C.A. § 636(b)(1)(C) the district court
"shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject or
modify, in whole or in part, the findings or recommendations made
by the magistrate."
A. CONFRONTATION CLAUSE AND DUE PROCESS CLAIMS ...