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Bennett v. Rozum

April 1, 2008

MARK KERMIT BENNETT, PETITIONER,
v.
GERALD ROZUM, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Magistrate Judge Smyser)

(Judge Jones)

MEMORANDUM

This matter is before the Court on the report of Magistrate Judge J. Andrew Smyser (Doc. 40) which recommends that the Petitioner Mark Kermit Bennett's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be denied. Bennett filed objections to the report (Doc. 44), and the Respondents have filed a brief in opposition to these objections (Doc. 46). For the reasons set forth below, the Court will adopt the Magistrate Judge's recommendation and deny the petition.

I. STANDARD OF REVIEW

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

II. BACKGROUND

A. State Court Proceedings

On June 12, 2002, a jury in the Dauphin County Court of Common pleas found Bennett guilty of criminal conspiracy to commit murder. The Pennsylvania Superior Court briefly summarized the facts related to the charge as follows:

On May 27, 2000, Marjorie Raymonds ("Raymonds") was shot in the head and killed while walking near Shrub Street in Harrisburg, Pennsylvania. The shooting occurred while Maria Tate ("Tate") was walking with Raymonds. Tate witnessed co-defendant, Marvin Robinson ("Robinson") pull up in a car while [Bennett] rode in the passenger seat holding a gun. Tate turned her head, heard a gunshot and saw Raymonds fall to the ground. The car then drove off. (Doc. 8 at 2.) On August 29, 2002, Bennett was sentenced to 230 to 480 months of imprisonment on the conspiracy charge.*fn1 (Doc. 21 at 3.)

Pursuant to Pennsylvania Rule of Appellate Procedure 1925, Bennett's trial counsel prepared a statement of the eight errors Bennett complained of on appeal.*fn2

(Doc. 8, Ex. A.) By order of November 14, 2002, the trial court rejected these arguments. (Doc. 8, Ex. B.) Bennett's trial counsel then filed a direct appeal with the Superior Court, raising only one of these eight issues a ground for relief:

WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO ALLOW APPELLANT TO INTRODUCE EVIDENCE OF A CALL TO 911 DISPATCH WHICH CONTRADICTED THE COMMONWEALTH'S MAIN WITNESS? (Doc. 8, Ex. C.) By order of August 11, 2003, the Superior Court rejected this claim and affirmed the judgment of sentence. (Doc. 8, Ex. D.) Bennett did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.

On March 19, 2004, Bennett filed a pro se petition for review under the Pennsylvania Post Conviction Relief Act ("PCRA"). (Doc. 8, Ex. E.) Counsel was appointed for Bennett, and on December 23, 2004, Bennett filed, through counsel, an amended PCRA petition. (Doc. 8, Ex. F.) The amended petition raised only one ground for relief: that appellate counsel was ineffective for failing to pursue numerous appealable issued, which were originally raised with the trial court in the statement of matters complained of on appeal. (Id. at ¶¶ 7-8, 13-14.) The PCRA court dismissed the petition by order of July 21, 2005. (Doc. 8, Ex. J.) Bennett appealed to the Superior Court, raising one ground for relief:

WHETHER THE PCRA COURT ERRED IN DETERMINING THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO PERFECT NUMEROUS ISSUES ON DIRECT APPEAL WHERE APPELLANT HAD MADE A TIMELY REQUEST AND THE ISSUES WERE INCLUDED IN THE STATEMENT OF MATTERS COMPLAINED OF? (Doc. 8, Ex. K.) By order of April 10, 2006, the Superior Court affirmed denial of the PCRA petition. (Doc. 8, Ex. L.) Bennett did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.

B. Federal Habeas Proceedings

Bennett filed the present § 2254 petition on October 11, 2006, raising four grounds for relief:

1. That Petitioner's Due Process Rights were violated when the Trial Court convicted him of Conspiracy to Commit Murder Third Degree when the jury returned only a verdict of "guilty" to Conspiracy in general.

2. That the Petitioner was denied Due Process when that Trial Court refused to allow the defense to introduce exculpatory evidence consisting of records of a 911 call.

3. That Petitioner was denied the effective assistance of counsel.

4. That the Petitioner was denied Due Process when the Trial Court misled the jury during the charge to the jury and during jury deliberations.

(Doc. 1; Doc. 21 at 9.) Respondents filed an answer to the petition on December 5, 2006. (Doc. 8.) On March 7, 2007, counsel was appointed to represent Bennett. (Doc. 14.) On June 22, 2007, Bennett, through counsel, filed a brief in support of his petition. (Doc. 21.) An evidentiary hearing was conducted on ...


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