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Grant v. Wilson

January 29, 2009


The opinion of the court was delivered by: Amy Reynolds Hay United States Magistrate Judge


HAY, Magistrate Judge*fn1

Demetrius Grant ("Petitioner"), a state prisoner, was convicted by a jury of aggravated assault and recklessly endangering another person in connection with the June 24, 1993 shooting of James Mioduski, and consequently was sentenced to incarceration for 10 to 20 years. These convictions were simply the latest crimes in a string of criminal acts embarked upon by Petitioner at the age of eleven with multiple subsequent juvenile delinquency adjudications as well as several adult convictions for, inter alia, other shootings.*fn2 Petitioner has filed a federal habeas petition pursuant to Section 2254, attacking his convictions of shooting James Mioduski. Petitioner raises a whole host of ineffective assistance of trial counsel and appellate counsel claims in addition to one other miscellaneous claim. Because the State Courts rejected all but one of his claims on the merits,*fn3 and because Petitioner fails to show that the State Courts' disposition of his claims was contrary to or an unreasonable application of United States Supreme Court precedent, his petition should be denied.

A. Relevant Factual and Procedural History

There were several shootings and several victims during a melee that occurred in the Lawrenceville section of Pittsburgh. Petitioner was only charged with the shooting of Mr. Mioduski. The facts of the crime and the testimony at trial were aptly summarized by the Superior Court as follows:

[Petitioner's] charges resulted from a shooting melee on Butler Street in the Lawrenceville section of Pittsburgh, Pennsylvania, on June 24, 1993. James Mioduski, the victim, lived in the area with his fiancee, Marsha Fettis, and their children.

At approximately 11:30 p.m. on June 24, 1993, Ms. Fettis saw her oldest son, James, and her daughter's boyfriend [i.e., Daniel Gunde] arguing with three young black men. A crowd of people became involved. Ms. Fettis went to check on the situation and saw one of the black men point a gun at her daughter's boyfriend. James told her to go back home. Ms. Fettis returned home and asked Mr. Mioduski to go retrieve James. Ms. Fettis watched as Mr. Mioduski went to James and started to bring him back toward the house. She then saw Appellant shoot Mr. Mioduski while his back was turned. At trial, she had no doubt that Appellant was the shooter. Mr. Mioduski was struck while his back was turned and could not identify his shooter.

Crystal Groubert was being driven through the area at the time of the incident. She positively identified Appellant as one of the three young black men displaying weapons in a crowd of people engaged in a [sic] altercation. She heard gunshots after passing through the area and returned to the scene.

Pittsburgh Police Officer James Fazio responded to the report of the incident. He discovered a vehicle at the scene that had sustained damage to the body, flat tires and smashed windows [which had been done by the crowd of individuals who had been engaged in the confrontation with the three black men because that car was the car they believed belonged to the three]. . . . On the front passenger seat, police discovered a pamphlet for a Glock semi-automatic pistol and fifteen Pennsylvania license plates. Police also found a total of six .40 caliber shell casings and two bullet fragments at the scene on Butler Street.

On July 12, 1993, Georgia Police Officer Timothy Charles Scott was on duty in uniform and a marked vehicle. A man in a vehicle with Pennsylvania tags was driving ahead of the officer and suddenly flagged officer Scott to the side of the road. Appellant asked Officer Scott for directions and then left. Officer Scott decided he wanted to question the man and so he attempted to stop the vehicle. The vehicle sped off, and the two cars ended up in a high-speed chase into a neighboring county, where Office Scott finally stopped Appellant, who was apprehended and returned to Pittsburgh. Appellant was to appear for trial on January 18, 1995, but failed to do so. An arrest warrant was issued.

Georgia Police Officer Thomas Shaw was in uniform on patrol in a marked car on March 25, 1995, when he saw a gold-colored Mitsubishi Eclipse with a Pennsylvania license plate parked at a roadside barbecue restaurant. Officer Shaw pulled off and waited for the driver to exit the restaurant. A black male, approximately Appellant's height, approached the car, and when asked, produced a temporary Georgia driver's license in the name of Gregory Collins. His address was listed as 771 Pinehurst Terrace, Atlanta, and his date of birth as October 26, 1961. Officer Shaw detained the man to check his information by computer but was unable to do so due to a computer problem. Officer Shaw released the individual but kept the vehicle. On March 25, 1995, that vehicle was searched, and police discovered a .40 caliber semi-automatic Glock pistol.

On April 15, 1995, Officer Scott Tiffin of the Grantville Georgia Police Department lawfully stopped a vehicle. The driver, Appellant, produced a permanent driver's license with the name Gregory Collins, date of birth, October 26, 1961, and address 771 Pinehurst Terrace, Atlanta. Officer Triffin later determined that the driver was actually Appellant and that a warrant had been issued for him in connection with the Lawrenceville shooting. At that point, Appellant was taken into custody and returned to Pennsylvania.

Dr. Robert Levine, a criminalist in the Allegheny County Crime Lab, testified that he received from the police six spent .40 caliber cartridge cases and several bullet fragments from the scene of the Butler Street shooting. He also received the Glock .40 caliber semi-automatic pistol on May 4, 1995 that Georgia police recovered from the vehicle Appellant was driving. Dr. Levine testified that he examined the weapon and the casings recovered from the scene of the Lawrenceville shooting and determined that the casings had been fired from the .40 caliber Glock found in Appellant's vehicle in Georgia.

Dkt. [17-9] at 27 to 31.

Petitioner raises the following issues in this habeas petition:

A. Trial counsel was ineffective for failing to identify, interview, subpoena, and/or utilize at trial the available testimony of numerous exculpatory eyewitnesses who were identified in available police reports and who had materially exculpatory information [namely, the following witnesses].

1). Mr. B. McDonald . . . .

2). Mr. Micheal [sic] Gunde . . . .

3). Mr. Daniel Gunde . . . .

4). Anna Marie Fettis . . . .

5). Mr. Terrence Mullins . . .

6). Mr. Chuck Curcio . . . .

7). Mr. Kenneth Osburn . . . .

8). Mr. Steve Bocka . . . .

9). Mr. James Fettis . . . .

10). All of the City of Pittsburgh Police Officers and Detectives who prepared the above [eyewitness] reports [from the foregoing witnesses].

B. The only eyewitness who claims to have seen Mr. Grant shoot Mr. Mioduski was Marsha Fettis. Trial counsel was ineffective in failing to adequately investigate this case so as to properly cross-examine and impeach prosecution witness Marsha Fettis with many available prior inconsistent statements and significant disparities and discrepancies with ...

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