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Ajamu-Osagboro v. Patrick

June 2, 2009

MUTI A. AJAMU-OSAGBORO, PETITIONER,
v.
GEORGE PATRICK, WARDEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Yohn, J.

Memorandum

Petitioner Muti A. Ajamu-Osagboro has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a life prison sentence following his convictions for second degree murder, robbery, and criminal conspiracy. Petitioner asserts: that at trial the Commonwealth withheld exculpatory evidence; that petitioner received ineffective assistance of counsel at trial, during his appeal, and in the post-conviction relief process; and that state courts denied his right to due process during the appeal and post-conviction relief proceedings. After conducting a de novo review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa, and upon careful consideration of petitioner's objections thereto and the parties' submissions,*fn1 the court will overrule the objections, approve and adopt the Report and Recommendation, and dismiss petitioner's claims as not cognizable or untimely.

I. Facts and Procedural History*fn2

On November 4, 1981 following a bench trial before the Honorable Charles L. Durham of the Pennsylvania Court of Common Pleas of Philadelphia County, Judge Durham convicted petitioner of second degree murder, robbery, and conspiracy. The convictions arose out of the events of January 2, 1981. That day petitioner and four co-conspirators-Richard Phelps, William Elliot, Mark Robinson, and Joseph Thomas-robbed a grocery store, and in the process Phelps shot and killed Sook Ja Yu ("the victim"), who, with her husband, owned the store, located at 12th and Mt. Vernon Streets in Philadelphia.

Earlier that day, the conspirators had met at various times to plan the robbery and secure a gun to use in the crime. At trial, petitioner testified that he did not participate in these discussions, but did join the four other conspirators in the early evening, as they walked to the store with the intention of robbing it. Petitioner admitted that he heard the others discussing a robbery and saw their weapons. At the store, petitioner and Robinson entered and then exited minutes later to tell the others that there were no customers present. Petitioner, however, testified that he told the group to "pull up, it's not cool"*fn3 and then walked away from the store. While petitioner and Robinson remained outside the store outside, Elliot, Thomas, and Phelps entered with Phelps carrying a gun. Thomas left the store shortly after he saw the victim's husband. Upon exiting, Thomas joined Robinson and petitioner, who were fleeing the store. Elliot and Phelps remained and confronted the victim. A shot was fired, and Elliot and Phelps fled, catching up to the other conspirators. Phelps then announced to the others that he shot the victim.

Following post-trial motions, Judge Durham sentenced petitioner to life in prison for second degree murder and two terms of four to ten years each for robbery and conspiracy respectively, to be served concurrently with the life sentence. On April 19, 1984, the Superior Court of Pennsylvania affirmed the judgment of sentence. Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court because, as he claims, his attorney failed to file that document, as petitioner instructed, and did not notify petitioner of the Superior Court's decision until September 11, 1984, well after the time to file an allowance of appeal had passed.*fn4

On January 8, 1997, almost sixteen years later, petitioner collaterally attacked his conviction via a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq. (2008). Through counsel, petitioner filed an amended petition on January 18, 1997. Petitioner claimed that: (1) at his original trial the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) the court denied him his Sixth Amendment right to a jury trial; and (3) he received ineffective assistance of counsel. On March 31, 1998, the Honorable Gary S. Glazer denied the petition and on April 7, 1998 denied petitioner's motion for reconsideration.

Petitioner claims that he appealed that decision by filing a notice of appeal on April 27, 1998. Under the Pennsylvania Rules of Appellate Procedure, to perfect an appeal of a lower court decision, a party must file "a notice of appeal with the clerk of the lower court within the time allowed by Rule 903," along with proof of service and any order for transcript. Pa. R. App. P. 902 (2009) ("Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal."); see also Pa. R. App. P. 905(a) (setting forth required materials to accompany notice of appeal for filing with clerk of court). Judge Glazer's order dismissing his PCRA petitioner had attached to it a document that informed petitioner that his notice of appeal "must be filed with the following: Active Criminal Records, Criminal Motions Counter, 206 Criminal Justice Center, 1301 Filbert Street, Philadelphia, PA 19107." (See Exs. to Resp'ts.' Resp. to Pet. for Writ of Habeas Corpus, Ex. E - PCRA Court Order Filed March 31, 1998, Ex. A.) Petitioner, however, mailed a copy of his notice of appeal to Judge Glazer and the District Attorney, but failed to file it with the clerk of court, as required by Pa. R. App. P. 902 and Pa. R. App. P. 905. Other than petitioner's unsupported claim,*fn5 petitioner presents no evidence that he filed the notice of appeal with the clerk of court and the clerk's docket does not contain a such a filing.

On April 30, 1998, because he received a copy of the purported appeal, Judge Glazer instructed petitioner to file a statement of matters complained of as required under Pa. R. App. P. 1925(b). Petitioner claims that he filed his 1925(b) statement on May 12, 1998. Judge Glazer issued an opinion supporting his denial of that petition on May 20, 1998.*fn6

On August 31, 2000, petitioner filed a second PCRA petition claiming various Brady violations based on the prosecution's withholding of exculpatory evidence that petitioner had recently uncovered. Specifically, petitioner alleged that he learned of the reduced sentence and other incentives given to Joseph Thomas, a key prosecution witness, in exchange for his testimony against petitioner. This second PCRA petition did mention petitioner's pending appeal of the dismissal of his first PCRA petition. On September 5, 2000, petitioner also filed an Application for Permission to File Supplemental Pleading and Motion to Remand to the PCRA Court on the Basis of Newly-Discovered Evidence with reference to his pending appeal-essentially seeking to consolidate the claims of his second PCRA petition with those of his first. On February 13, 2001, Judge Glazer dismissed the second PCRA petition in accordance with Pennsylvania law due to petitioner's prior pending PCRA appeal in the Superior Court.*fn7

See Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that "subsequent PCRA petition cannot be filed until the resolution of review of [any] pending PCRA petition"). Petitioner claims that because he did not receive a notice of the dismissal of his second PCRA petition, Judge Glazer must have failed to send him this notice in violation of Pa. R. Crim. P. 907(4).*fn8 (Objections U.S. Magistrate Judge's Report and Recommendation to Pl./Pet'r's Writ of Habeas Corpus 5.) No appeal was filed.

On June 16, 2003, through counsel, petitioner filed a third PCRA petition based on newly discovered evidence of prosecutorial misconduct and Brady violations, both of which allegedly occurred at petitioner's original trial. On October 31, 2003, petitioner added a claim of ineffective assistance of counsel in a supplemental petition. In neither pleading, did petitioner allege specifically that he had a pending appeal of the dismissal of his first PCRA petition.*fn9

Sometime later, petitioner's counsel learned that the Superior Court had not yet received petitioner's appeal concerning his first PCRA petition. On January 26, 2004, petitioner filed a motion to compel the clerk of court to transmit that appeal to the Superior Court. Petitioner claimed that because he had proof of mailing a copy of the notice of appeal to Judge Glazer, he therefore must have mailed it to the clerk of court, who then failed to transmit the appeal to the Superior Court. Alternatively, petitioner claimed that mailing the appeal to Judge Glazer constituted substantial compliance with the rules of appellate procedure and that this compliance warranted transmitting the appeal. On the same day petitioner filed this motion, the Honorable M. Teresa Sarmina granted it and also dismissed petitioner's third PCRA petition due to the prior pending appeal. The Commonwealth moved to quash the appeal, arguing that Judge Sarmina lacked jurisdiction to restore petitioner's appellate rights as to the dismissal of his first PCRA petition.

On August 22, 2006, the Superior Court quashed petitioner's appeal of his first PCRA petition. The court treated petitioner's motion to transmit his appeal as "essentially a nunc pro tunc appeal from the dismissal of [petitioner's] first PCRA [p]etition." Commonwealth v. Ivey, No. 826 EDA 2004, slip op. at 3 (Pa. Super. Ct. Aug. 22, 2004). Consequently, the court assessed the motion's timeliness under the PCRA, "the sole means for restoration of PCRA appellate rights." Id. The court determined that because the petition before it sought reinstatement of petitioner's appellate rights, but was filed on January 26, 2004, the petition was patently untimely by virtue of the statute of limitations. 42 Pa. Cons. Stat. Ann. § 9545(b)(1) (setting limitations period for PCRA claims at one year beginning from date conviction became final). The court then looked to an exception to this limitations period under § 9545(b)(1)(i), which was invoked by petitioner's claim of governmental interference due to the failure of the clerk of court to transmit his notice of appeal to the Superior Court. The court found that for the motion to be timely under the exception petitioner needed to bring his motion within sixty days of learning that the government interfered with his right to appeal. 42 Pa. Cons. Stat. Ann. § 9545(b)(2). The court found that assuming arguendo that the clerk of court did fail to transmit petitioner's appeal to the Superior Court in 1998, petitioner had not specified in his petition filed on January 26, 2004 when he learned of this failure to transmit. Consequently, petitioner could not establish that he filed his request for reinstatement of his appellate rights within sixty days of learning of this assumed governmental interference. Therefore, the request was not timely and Judge Sarmina lacked jurisdiction to reinstate petitioner's appellate rights. As petitioner had long since lost his right to appeal the dismissal of the first PCRA petition, the Superior Court quashed the appeal. On November 20, 2006, the Superior Court denied petitioner's request for a rehearing en banc.

On November 18, 2006, petitioner filed pro se this petition for a writ of habeas corpus and raised these claims:

(1) The Commonwealth violated Brady by failing to disclose to the defense that the prosecution granted favors to its chief witness and to another witness, Joseph and Marshall Thomas, in exchange for their testimony;

(2) The prosecutor committed a Brady violation by failing to disclose that one of the Commonwealth's witnesses, Rebecca Harvey, did not identify petitioner at his co-defendant's earlier trial;

(3) The state courts violated his due process rights by failing to give notice in connection with his claim of ineffective assistance of trial and appellate counsel, thus foreclosing his appellate rights;

(4) The state courts violated his due process rights by denying him an evidentiary hearing as to the newly discovered evidence and recantations of Joseph and Marshall Thomas and the implication of prosecutorial misconduct arising out of those recantations;

(5) Trial and appellate counsel provided ineffective assistance because they failed to investigate and call certain witnesses;

(6) Trial and appellate counsel provided ineffective assistance because they failed to rebut the testimony of Joseph Thomas that the robbery was planned at Richard Phelps's home;

(7) Trial and appellate counsel provided ineffective assistance because they failed to elicit key prior inconsistent statements of Joseph Thomas;

(8) Trial and appellate counsel provided ineffective assistance because they failed to elicit testimony from Richard Phelps that he never implicated petitioner in an ...


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