The opinion of the court was delivered by: Norma L. Shapiro, J.
Hakeim Robinson, an inmate at the State Correctional Institution at Frackville, Pennsylvania, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Magistrate Judge Henry S. Perkin issued a Report and Recommendation ("R&R") recommending the petition be denied. Petitioner's timely objections are overruled in part and sustained in part, but the petition will be denied.
On August 29, 2000, Richard Williams, Jr. was fatally shot inside his apartment in West Philadelphia.*fn1 The Commonwealth alleged the shooting occurred during an unsuccessful robbery devised by Robert Jones, a friend of Williams. Jones, who knew Williams sold marijuana from his apartment, recruited Hakeim Robinson and Fred Porter to participate in a sham drug transaction during which they would rob Williams at gunpoint. Jones anticipated that Williams' girlfriend, Lakeisha Pannell, would be inside the apartment, so he instructed Leonard Arter, an acquaintance of Williams and Pannell, to visit the apartment in advance of the robbery and persuade Pannell to leave.*fn2 Robinson drove Arter and Jones to Williams' apartment, Arter entered alone, and, following a brief exchange, Arter was unable to convince Pannell to leave. Shortly after Arter left, Williams was robbed and murdered.
Robinson, Jones and Porter all confessed involvement in the robbery, but gave conflicting accounts of the murder.*fn3 Robinson gave a sworn confession to police:
Earlier that night I was with two guys out my way. The first guy said he wanted to go get a couple of dollars and wanted me to go with him down to the Bottom. We go and get this third guy who was with his friends. The first guy said we were going down to the bottom to get us a couple dollars.... He meant he was going to rip somebody off. He was setting it up. He was basically telling the third guy just go in and put the gun in his face and he will give you anything you want. * * * We went to Richard's house and we were going to buy a bag or two to make it look good. * * * Me and the first guy go into Richard's house and we conversate. We're in Richard's about three minutes.... Richard had a girl with him. I didn't see her but I knew she was there. I know she dances at bars and stuff. Matter of fact, she dances at the Panther Bar, 35th and Mount Vernon Streets. * * * We had it planned that as I left out of the apartment, the guy with the gun would come rushing into the apartment. That's what happened. He comes in with the gun. He smacks Richard and told him -- Richard to get the hell down and then tells Richard, Where is the shit at? Then he hit the guy again and he was down on the floor and he pointed over to the couch and said it's behind the couch or something like that. I left out and I heard the bang. Later the guy with the gun told me that Richard started fighting and as Richard came towards him, the gun just went off accidentally. (N.T. 4/25/02, 85-96.)
Jones gave two statements to the police. Jones initially claimed he was inside Williams' apartment when Porter forcibly entered and shot Williams during the scuffle. Jones later told police he and Robinson gained entry to Williams' apartment under the pretext of buying marijuana and arranged for Porter to commit the robbery while Jones and Robinson were inside the apartment. Jones stated he did not intend for Porter to kill Williams during the robbery. In Porter's confession, he admitted being near the crime scene, but denied entering Williams' apartment or being involved in the shooting. Porter claimed he was outside the apartment when Robinson and Jones committed the robbery.
Robinson, Jones and Porter were tried jointly. None of the defendants testified at trial, but their redacted confessions were read to the jury. The jury was instructed that each statement could only be offered as evidence against the defendant who made it, not against a co-defendant. None of the defendants presented testimony rebutting the Commonwealth's case. In his closing argument, counsel for Robinson relied on Pannell's testimony that she did not see Robinson in the victim's apartment at the time of the murder. The jury found Robinson, Jones and Porter guilty of second degree murder, robbery and related crimes; each defendant was sentenced to life imprisonment.*fn4
Robinson filed a post-trial motion challenging sufficiency of the evidence; the motion was denied. He timely appealed his conviction to the Pennsylvania Superior court; the appeal was denied. Commonwealth v. Robinson, No. 3138 EDA 2002, slip op. (Pa. Super. Ct. July 9, 2003). He filed a petition for allowance of appeal with the Pennsylvania Supreme Court; the court granted the petition as to the alleged Confrontation Clause violations, but later dismissed the application as improvidently granted. Commonwealth v. Robinson, 851 A.2d. 831 (Pa. 2004) (table).
Robinson petitioned for relief under the Pennsylvania Post Conviction Relief Act, 42 Pa. C.S. §§ 9541-46 ("PCRA"). After an evidentiary hearing, the PCRA court denied relief. Robinson's appeal to the Superior Court was denied. Commonwealth v. Robinson, No. 1127 EDA 2006, slip op. (Pa. Super. Ct. Aug. 27, 2007). Robinson's petition for allowance of appeal to the Pennsylvania Supreme Court was also denied. Commonwealth v. Robinson, 938 A.2d 1052 (Pa. 2007) (table).
The instant petition for a writ of habeas corpus alleges four grounds for relief: (1) presentation of the Jones and Porter confessions to the jury violated the Sixth Amendment Confrontation Clause; (2) ineffective assistance of trial counsel violated the Sixth Amendment right to counsel; (3) prosecutorial misconduct violated the Fifth Amendment right against self-incrimination; and (4) ineffective assistance of direct appeal counsel violated the Sixth Amendment right to counsel. All four claims have been exhausted in state court. The R&R found all four claims lacked merit. Robinson filed timely objections supporting each claim for relief.
Federal courts have jurisdiction over petitions for writs of habeas corpus challenging state confinement in violation of the United States Constitution. 28 U.S.C. § 2241. A district court reviews de novo those portions of a magistrate judge's report and recommendation to which objections were made. See 28 U.S.C. § 636(b)(1)(c).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a writ of habeas corpus for a person serving a state court sentence shall not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "As long as the reasoning of the state court does not contradict relevant Supreme Court precedent, AEDPA's general rule of deference applies." Priester v. Vaughn, 382 F.3d 394, 398 (3d Cir. 2004), citing Early v. Packer, 537 U.S. 3 (2002), Woodford v. Visciotti, 537 U.S. 19 (2002).
A. Confrontation Clause Claims
At trial, the Jones and Porter confessions inculpating Robinson were read to the jury by detectives who investigated the crime. The confessions were not subject to cross-examination because neither Jones nor Porter testified at trial. Their confessions had been redacted by replacing Robinson's name with terms such as, "some guy I know," "the guy with me," and "the guy I knew." (N.T. 4/25/02, at 103-04.) ...