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Smith v. Kerestes

June 15, 2009


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


Presently before the Court is Petitioner Curtis Smith's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner and Respondents have filed timely objections to the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski. After conducting a de novo review of the Report and Recommendation and upon consideration of Petitioner's and Respondents' objections thereto, the Court will overrule the objections, approve the Report in substantial part, and adopt the Recommendation.


On July 30, 2001, after a jury trial before the Honorable Gary F. DiVito of the Court of Common Pleas of Philadelphia County, Petitioner was convicted of attempted murder, aggravated assault, simple assault, burglary, and conspiracy.*fn1 On October 26, 2001, Judge DiVito sentenced Petitioner to ten to twenty years of imprisonment for attempted murder, three to six years of imprisonment for burglary, and six to twelve months of imprisonment for simple assault. Petitioner filed a direct appeal. On December 18, 2002, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Smith, 817 A.2d 1185 (Pa. Super. 2002) (table). Petitioner did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.

On June 10, 2003, Petitioner filed a pro se petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. § 9541, et seq. Counsel was appointed to represent Petitioner, and filed amended and supplemental amended petitions. On July 13, 2005, the PCRA court dismissed Petitioner's petition. On December 12, 2006, the Superior Court affirmed the PCRA court's dismissal of Petitioner's PCRA petition. Commonwealth v Smith, 918 A.2d 792 (Pa. Super. 2006) (table). Thereafter, Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court and this petition was denied on August 10, 2007. Commonwealth v. Smith, 929 A.2d 645 (Pa. 2007) (table).

On December 29, 2007,*fn2 Petitioner filed the instant petition for a federal writ of habeas corpus claiming: (1) trial court error for failing to instruct the jury that identification evidence presented at trial should be viewed with caution; (2) ineffective assistance of trial counsel for failing to object to the trial court's ex parte communication with the jury; and (3) trial court error for improperly applying Pennsylvania's deadly weapons enhancement at sentencing.


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") grants to persons in state or federal custody the right to file a petition in a federal court seeking the issuance of a writ of habeas corpus. See 28 U.S.C. § 2254. AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petition for habeas corpus may only be granted if: (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Werts, 228 F.3d at 196.

The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams, 529 U.S. at 389-390). The Court in Williams further stated that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Hameen, 212 F.3d at 235 (citing Williams, 529 U.S. at 388-389). "In further delineating the 'unreasonable application of' component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 389).


1. Trial Court Error for Failing to Instruct the Jury that Identification Evidence Should be Viewed with Caution

In his first claim, Petitioner alleges that the trial court erred when it failed to instruct the jury that the identification evidence presented at trial should be viewed with caution. Petitioner argues that the trial court should have given a Kloiber instruction to the jury because the only identification witness presented at trial "testified that she was only able to see Petitioner's face for a total of 3 - 4 seconds." See Pet. at 9.

In Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), the Pennsylvania Supreme Court held that a cautionary instruction as to identification evidence should be given: where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

Kloiber, 106 A.2d at 826-827. However, when "the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross examination, positive and unqualified, the testimony as to identification need not be received with caution - indeed the cases say that 'his positive testimony as to identity may be treated as the statement of fact.'" Id.

In denying this claim on direct appeal, the state court first determined that based upon its review of the record, the trial court was not required to give a Kloiber charge. Commonwealth v. Smith, No. 167 EDA 2002, at p. 5, attached as Resp't Ex."A." The state court reasoned that a Kloiber charge was not required because:

Ms. Queenan's testimony identifying [Petitioner] as the perpetrator of the crime was unequivocal and consistent. During a thorough cross-examination, Ms. Queenan remained firm in her ability to view the perpetrator and her identification of [Petitioner] as the perpetrator. [Petitioner] did not present any evidence that Ms. Queenan failed to identify [Petitioner] on a prior occasion.

Id. The state court also found that even though a Kloiber charge was not required, the trial court had, in fact, issued a Kloiber charge at trial. Id. On the issue of the eyewitness identification, the trial court instructed the jury:

First, with respect to the identification of [Petitioner]. In her testimony Jamie Queenan has identified [Petitioner] as one of the two persons who entered the house and committed the crimes alleged. The defense has challenged the accuracy of that identification.

A victim or a witness can sometimes make [a] mistake in trying to identify a criminal. If certain other factors are present, the accuracy of identification testimony may be received with caution. For example if the witness was in a bad position, if there was poor lighting or other reasons why the witness would not have a good opportunity to observe the criminal.

If you believe that one or more of these factors are present, then you may consider with caution the testimony of Jamie Queenan identifying [Petitioner] as the person who or one of the persons who committed the crime.

Id. (See N.T. 7/27/2001, at p. 82-84). This instruction comports with Pennsylvania's Suggested Standard Jury Instruction regarding identification testimony when accuracy is in doubt.*fn3

Therefore, contrary to Petitioner's argument that a Kloiber instruction was not given, I find that the trial court did indeed issue a Kloiber instruction.

Because the state court's finding on this issue is not contrary to United States Supreme Court precedent, nor an unreasonable determination of the facts, this claim will be denied. 28 U.S.C. § 2254(d).

2. Ineffective Assistance of Trial Counsel for Failing to Object to the Trial Court's Ex Parte Communication with the Jury

Petitioner next claims that trial counsel was ineffective for failing to object to two instances of ex parte communication between the trial court judge and the jury while the jury was deliberating. Specifically, Petitioner complains that the trial court judge improperly entered the jury room, without the presence of counsel, on two separate occasions to speak with the jury.

Claims of ineffective assistance of counsel generally are governed by Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court set forth the standard for a petitioner seeking habeas relief on the grounds of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687. Because "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable," a court must be "highly deferential" to counsel's performance and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. In determining prejudice, "the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

"It is past question that the rule set forth in Strickland qualifies as 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. at 391. Thus, Petitioner is entitled to relief if the Pennsylvania courts' rejection of his claims was either ...

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