The opinion of the court was delivered by: Yohn, J.
Presently before the court is petitioner Jamie Kirnon's pro se motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Kirnon is currently serving a life sentence for the first degree murder of Darius Cuthbert, as well as consecutive sentences for related charges. After conducting a de novo review of the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, and upon consideration of petitioner's objections thereto, the court will overrule petitioner's objections, adopt in substantial part the Report and approve the Recommendation.
I. Factual and Procedural Background
The Pennsylvania Superior Court, in reviewing Kirnon's direct appeal, set forth the facts that are material to Kirnon's instant habeas petition:
Testimony at trial revealed that on November 18, 1998, appellant and another man engaged Darius Cuthbert and his friend Omar Johnson in a combative conversation at the intersection of Colorado Street and Susquehanna Avenue in Philadelphia. Trial Court Opinion, 1/29/04, at 1. An argument involving the sale of drugs ensued between the two groups of men. Id. at 2. Mr. Johnson testified that appellant and the other man each pulled out a nine-millimeter handgun, the other man fired the first shot, and appellant then began firing his weapon. Id.
Danny Gissentanner, a friend of both Mr. Cuthbert and Mr. Johnson who was nearby at the time, testified that after the shooting he immediately determined that Mr. Cuthbert was dead, proceeded to remove a handgun belonging to Mr. Johnson from the scene and place it in the trunk of his Nissan Maxima, and then attempted to take Mr. Johnson to the hospital. Id. The police arrived and assisted in taking Mr. Cuthbert and Mr. Johnson to Temple [University] Hospital, where Mr. Johnson was treated for eight gunshot wounds and Mr. Cuthbert was pronounced dead as a result of his five gunshot wounds. Id. at 2-3.
Police officers recovered Mr. Johnson's handgun from the Nissan Maxima, and ballistics showed that no casings had been ejected from the weapon. Id. at 2. Crime scene technicians arrived, photographed the scene, collected evidence, and determined that all of the fired casings were from nine-millimeter firearms. Id. at 3.
Thereafter, Mr. Gissentanner identified appellant as one of the shooters, an arrest warrant was issued, and appellant was eventually arrested. Id. Commonwealth v. Kirnon, 604 EDA 2004, at 1-3 (Pa. Super Ct. Jan. 13, 2005).
On November 4, 2003, the jury found Kirnon guilty of first degree murder, aggravated assault, criminal conspiracy, carrying a firearm on a public street, and possession of an instrument of crime. (Trial Tr. vol. 7, 3-4, Nov. 4, 2003.) After a penalty phase, the jury sentenced Kirnon to life imprisonment on the murder charge. (Trial Tr. vol. 8, 83, Nov. 5, 2003.) The Honorable Gary Glazer, who presided over the trial, also imposed consecutive sentences of 72-144 months for aggravated assault and 42-84 months for criminal conspiracy. (Sentencing Tr., 4-5, December 22, 2003.) Judge Glazer entered a sentence of guilty without further penalty on the remaining firearms offenses. (Id.)
Kirnon filed an appeal in the Pennsylvania Superior Court, challenging both the sufficiency and weight of the evidence admitted at trial.*fn1 Kirnon's argument primarily rested on inconsistent statements made by key witnesses. The Superior Court found that "[t]he evidence, as produced at trial, clearly established that [Kirnon] was not only present at the scene of the murder, but that he, along with his associate, actively participated in the shooting of a rival drug dealer after an argument concerning their illegal activities." Commonwealth v. Kirnon, No. 0604 EDA 2004, slip op. at 5 (Pa. Super. Ct. Jan. 13, 2005). Accordingly, the Superior Court affirmed the judgment of sentence. Id. at 7. Kirnon did not seek discretionary review to the Pennsylvania Supreme Court.
Pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46, Kirnon filed a pro se PCRA petition on January 13, 2006 arguing that: (1) the evidence offered at trial was insufficient to sustain a conviction on the firearms charge and insufficient to establish the requisite mens rea for the murder charge; (2) the prosecutor unconstitutionally injected race into the trial by referring to Kirnon as a "black drug dealer" and a "murderer" in closing argument; (3) the prosecutor knowingly presented perjured testimony; (4) his trial counsel was ineffective for failing to strike a juror during voir dire, failing to properly impeach the chief state witness, and failing to properly cross-examine state witnesses; (5) the trial court erred when instructing the jury on "flight to avoid prosecution" and the elements of murder, and the court erred in failing to instruct the jury on self-defense; and (6) the state violated the Vienna Convention. (Petr.'s PCRA Br. at 1-35.)
After reviewing the case file and meeting with Kirnon, Kirnon's appointed PCRA counsel filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988).*fn2 On October 5, 2006, the PCRA court dismissed Kirnon's petition. Commonwealth v. Kirnon, May Term 2001, No. 0374, slip op. at 11 (Phil. Ct. C. Pl. Oct. 5, 2006) (Glazer, J.). Kirnon appealed the dismissal on October 19, 2006, raising twenty-two grounds for relief.*fn3 In its July 24, 2007 opinion, the Superior Court addressed fourteen of Kirnon's claims. The court held that Kirnon failed to conform the majority of his appeal to Pennsylvania Rules of Appellate Procedure 2116 (Statement of Questions Involved) and 2119 (Argument). As a result, the court found eleven of Kirnon's claims to be procedurally defective and declined to reach the merits accordingly. The court did reach the merits of three claims relating to the ineffectiveness of Kirnon's PCRA counsel. Upon review, the court found "no arguable merit" in Kirnon's allegations and upheld the dismissal of Kirnon's PCRA petition. Commonwealth v. Kirnon, No. 3235 EDA 2006, slip op. at 12 (Pa. Super. Ct. Jul. 24, 2007). Kirnon's petition for reargument was denied on September 28, 2007, and he did not seek discretionary review with the Pennsylvania Supreme Court.
On October 25, 2007, Kirnon filed this petition for habeas corpus raising nine grounds for relief:
I. The state created an impediment to petitioner's Sixth Amendment right to counsel through consular representation by violating the Vienna Convention;
II. The trial court erred in charging the jury on the elements of flight to avoid prosecution when petitioner was not charged with that offense, and trial counsel rendered ineffective assistance of counsel by not objecting to such a charge;
III. Trial counsel rendered ineffective assistance of counsel for failing to impeach the chief Commonwealth witness, Omar Johnson, with prior inconsistent statements;
IV. Trial counsel rendered ineffective assistance of counsel for failing to object and move for a mistrial when in summation, the prosecution referred to petitioner as a black drug dealer and murderer;
V. Prosecutorial misconduct stemming from the prosecutor's racially-based comment made during closing argument;
VI. The prosecution violated petitioner's Sixth and Fourteenth Amendment rights by knowingly eliciting and using the perjured testimony of Daniel Gissentanner;
VII. Trial and appellate counsel rendered ineffective assistance of counsel for failing to challenge the inconsistent statements made by Commonwealth witness Daniel Gissentanner;
VIII. The evidence was insufficient to sustain a conviction for a firearms violation where the evidence of such was based on perjured testimony and inconsistent statements of Commonwealth witness Daniel Gissentanner; and
IX. Petitioner was denied due process and equal protection under the Sixth and Fourteenth Amendments because the Commonwealth failed to prove first degree murder and related offenses beyond a reasonable doubt.
The District Attorney filed its response on January 18, 2008, arguing the petition was untimely and its claims were procedurally defaulted. Kirnon filed his response and supporting memorandum on March 11, 2008. On March 12, 2008, the District Attorney filed a sur-reply ...