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FORD v. RUMLEY

July 29, 2004.

JEFFREY S. FORD, Petitioner,
v.
ROXINA RUMLEY, et al., Respondents.



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court are the Report and Recommendation of United States Magistrate Judge Diane M. Welsh recommending that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by pro se Petitioner Jeffrey S. Ford ("Petitioner"), who is incarcerated at the State Correctional Institution in Chester, Pennsylvania, be denied and dismissed, and Petitioner's objections thereto. For the following reasons, this Court OVERRULES Petitioner's objections, APPROVES and ADOPTS Magistrate Judge Welsh's Report and Recommendation, and DENIES Petitioner's habeas petition.

I. BACKGROUND

  Petitioner was convicted of murder in the first degree and possession of an instrument of crime following a bench trial before the Honorable Michael R. Stiles of the Court of Common Pleas of Philadelphia. See Commonwealth v. Ford, No. 1418 Phila. 1990, slip op. at 1 (Pa. Super. Ct., May 21, 1991). Petitioner was sentenced to life in prison for the murder conviction and, following the denial of post-verdict motions, he was sentenced to a concurrent term of two-and-a-half to five years in prison for the weapon offense. See id.

  Represented by new counsel, Petitioner filed a direct appeal to the Superior Court of Pennsylvania, and on May 21, 1991, the Superior Court found Petitioner's claims without merit and affirmed the judgment of sentence. See id. at 10. The Supreme Court of Pennsylvania denied Petitioner's request for allowance of appeal on January 14, 1992. See Commonwealth v. Ford, 602 A.2d 856 (Pa. 1992) (table).

  On December 28, 1996, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541-46. See Commonwealth v. Ford, No. 2387 EDA 1999, slip op. at 2 (Pa. Super. Ct., Apr. 2, 2002). Following the appointment of counsel, counsel filed an amended PCRA petition which was subsequently denied by the PCRA Court. See id. at 2-3. On April 2, 2002, the Superior Court affirmed the PCRA Court's denial of the petition. See id. at 6. The Supreme Court of Pennsylvania denied allowance of appeal on July 1, 2003. See Commonwealth v. Ford, 828 A.2d 349 (Pa. 2003) (table).

  Petitioner filed his Petition for Writ of Habeas Corpus with this Court on August 27, 2003.*fn1 On September 5, 2003, this Court referred the matter to Magistrate Judge Welsh for a Report and Recommendation.

  Petitioner alleged in his habeas petition before this Court the following grounds for relief: (1) the prosecution failed to disclose to Petitioner evidence favorable to Petitioner's defense; (2) ineffective assistance of appellate counsel in failing to raise the issue of trial counsel's ineffective assistance in "failing to insure a proper jury waiver colloquy;" (3) ineffective assistance of trial counsel "for failing to introduce the [victim's] propensity for violence;" and (4) ineffective assistance of appellate counsel in failing to raise the issue of trial counsel's ineffective assistance "for producing a character witness who had been convicted of a violent crime before the [trial court] and for failing to object to the Commonwealth calling police officers as negative character witnesses." (See Hab. Pet., ¶¶ 12(A)-(D).)

  The Commonwealth ("Respondent") filed a response arguing that Petitioner's first claim is procedurally defaulted and, in any event, without merit. Respondent also argued that Petitioner's second, third and fourth claims are not cognizable and without merit. (See Resp. to Hab. Pet. at 12-27.)

  Magistrate Judge Welsh filed a Report and Recommendation recommending that Petitioner's habeas petition be denied and dismissed. Preliminarily, Magistrate Judge Welsh determined that Petitioner's second, third and fourth claims, to the extent that they allege errors by the state court during post-conviction proceedings, are inappropriate grounds for federal habeas relief. (See Report and Recommendation at 4.) Magistrate Judge Welsh then determined that Petitioner's first claim was procedurally defaulted and, further, that Petitioner failed to meet the applicable standards for excuse of the underlying default such that this Court could consider the merits of that defaulted claim. (See id. at 9.) Finally, Magistrate Judge Welsh reviewed each of the second, third and fourth claims on the merits, and determined that Petitioner failed to meet his burden for relief on each of these claims. (See id. at 12-21.)

  In accordance with this Court's grant of an extension of time, Petitioner filed his objections to Magistrate Judge Welsh's Report and Recommendation. We address Petitioner's objections below.

  II. DISCUSSION

  This Court reviews de novo those portions of the Magistrate Judge's Report and Recommendation to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).

  Petitioner's objections to Magistrate Judge Welsh's Report and Recommendation essentially recite the very arguments set forth in his habeas petition, and include the following arguments, that: (1) the prosecution's failure to disclose evidence favorable to Petitioner's defense is not procedurally defaulted; (2) appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffective assistance in "failing to insure a proper jury waiver colloquy;" (3) trial counsel was ineffective "for failure to introduce the [victim's] propensity for violence;" and (4) appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness "for producing a character witness who had been convicted of a violent crime before the [trial court] and for failing to object to the Commonwealth calling police officers as negative character witnesses." (See Pet.'s Obj., ¶¶ (A)-(D) (unpaginated).) While we find that Magistrate Judge Welsh's well-reasoned Report and ...


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