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Carter v. Folino

October 30, 2006

DANTE CARTER, PETITIONER,
v.
LOUIS S. FOLINO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Judge

MEMORANDUM ORDER

On July 20, 2006, this case was referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

On September 26, 2006, the magistrate judge filed a Report and Recommendation (Docket No. 14), recommending that the petition for writ of habeas corpus filed by petitioner (Docket No. 3) be dismissed and that a certificate of appealability be denied for lack of a viable federal claim.

Service of the Report and Recommendation was made on the parties, and the petitioner filed objections (Docket No. 16) on October 11, 2006.

In his objections, petitioner contends, inter alia,*fn1 that the magistrate judge erred in concluding that his first claim--that the trial judge, Walter Little, denied him the right to a fair and impartial trial by engaging in a pattern of protracted and unwarranted participation in the jury trial--was raised only as an issue of state law. Upon review, the Court concludes that, although the majority of the discussion in his brief in the Superior Court related to Pennsylvania law, petitioner did raise the issue as one of federal law. See Answer Ex. 15 at 11 ("The conduct of Judge Little was an affront to the Sixth Amendment of our Constitution in that he single-handedly used the powers of his office to override the sacred responsibility entrusted to Dante Carter's jury of rendering a verdict based on the evidence presented.") Thus, the issue has been exhausted and is ripe for review. Nevertheless, for the reasons that follow, petitioner has not demonstrated that he is entitled to relief with respect to this issue.

As described by the Pennsylvania Superior Court: the record reveals a spirited, and at times hostile, series of interchanges between counsel and the court. While many of the statements to which counsel objected can be characterized as mere clarification on the court's part, others arguably went beyond the court's role ....

Several of the instances raised by appellant involved the trial court's dissatisfaction with the way in which defense counsel presented testimony, in particular the manner in which he sought to introduce a document or prior statement. Rather than instructing counsel on the method required in his courtroom, the trial judge himself often asked the foundational questions of the witness. In other instances, the court appeared impatient with counsel's efforts to elicit certain information from witnesses or with a witness's inability to understand the question posed to him. The trial judge then took it upon himself to pose his own questions to the witness. Finally, the court more than once continued to question a witness after both sides completed their examinations. While the court characterized this conduct as mere clarification, it was, in many instances, unnecessary.

We are particularly troubled by the court's own examination of witnesses, including Elmore Anderson, the victim's mother and appellant. With respect to Mr. Anderson, appellant argues that the court' questions assisted the prosecution in establishing that although the two witnesses at times appeared to contradict one another on the timing of events, their testimony was not inconsistent. Further, appellant characterizes the court's questioning of appellant as a challenge to his testimony, not a clarification thereof. Particularly troubling is an exchange that took place while appellant, on direct examination by his counsel, sought to explain his actions on the day of the shooting:

Question [by counsel]: When you shot at Yare, why did you pull the trigger?

Answer [by appellant]: Because I was scared for my life, sir. He was shooting at me.

Question: Did you think you were going to die?

Answer: Yes.

Question: Could you have run away?

Answer: What do you mean run away? Where was there to go? The Court: You could have went [sic] back into the house. Appellant: ...


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