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July 26, 2004.

ANDRE WRIGHT Petitioner,

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.


  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. Dkt. 1985.

  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 By leave of court, this petition was withdrawn without prejudice on February 10, 1987 to allow for exhaustion of state remedies.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 (1986).

  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 claim —
(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, 405 (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. at 405-406.

  "[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) (citations ommitted).

  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."



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