The opinion of the court was delivered by: Eduardo C. Robreno, J.
Respondents filed the instant motion for reconsideration of the Court's Memorandum and Order dated December 5, 2008. For the reasons that follow, Respondents' motion for reconsideration is granted, and the Court's Memorandum and Order dated December 5, 2008 is vacated in part.
On September 27, 2001, following a jury trial before the Honorable Lynn Bennett-Hamlin in the Court of Common Pleas of Philadelphia County, Petitioner was convicted of voluntary manslaughter. On March 20, 2002, Judge Bennett-Hamlin sentenced Petitioner to seven and one-half to fifteen years imprisonment.
On April 13, 2004, the Pennsylvania Superior Court affirmed the judgment of sentence. Commonwealth v. Johnson, 852 A.2d 1248 (Pa. Super. Ct. 2004). Petitioner filed a petition for allowance of appeal in the Supreme Court of Pennsylvania, which was denied on July 22, 2004. Commonwealth v. Johnson, 856 A.2d 833 (Pa. 2004). On June 28, 2005, Petitioner filed a PCRA Petition for collateral relief. Counsel was appointed and subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. Ct. 1988), certifying that the entire record had been reviewed and that there were no meritorious issues to advance before the PCRA court. Counsel was then permitted to withdraw. Thereafter, Johnson retained private counsel and filed an amended PCRA Petition.
On December 8, 2006, the PCRA court dismissed the petition without a hearing, adopting the reasoning in the Commonwealth's motion to dismiss. Notice Pa. R. Crim. P. 907, Commonwealth v. Johnson, No. 9810-0075 1/2 (Pa. Ct. Com. P., PCRA Unit, Nov. 6, 2006) (citing Commw. Mot. Dismiss). On appeal, Petitioner refuted the PCRA court's decision on two grounds: (1) prosecutorial misconduct; and (2) ineffective assistance of trial and appellate counsel. On December 31, 2007, the Superior Court affirmed the decision of the PCRA court, stating that the sole issue on appeal was ineffective assistance of counsel. Commonwealth v. Johnson, 945 A.2d 763 (Pa. Super. Ct. 2007). A petition for allowance of appeal was not filed with the Pennsylvania Supreme Court.
On January 25, 2008, Petitioner filed a habeas petition claiming: (1) the evidence presented at trial was insufficient to sustain a guilty verdict for voluntary manslaughter; (2) trial court error for failing to sustain defense objections to the prosecutor's closing argument, which shifted the burden of proof and resulted in the denial of a fair and impartial jury and the denial of his constitutional rights under the 6th and 14th Amendments; (3) prosecutorial misconduct by vouching for the credibility of Commonwealth witnesses, offering personal opinions, and referring to Petitioner as "a thief in the cloak of darkness, stealing human life"; (4) ineffective assistance of trial counsel for failing to request that an identification instruction be given to the jury; (5) ineffective assistance of appellate counsel for failing to raise the claim that the prosecutor's closing argument was unduly prejudicial and that the trial court erred in failing to grant a mistrial; and (6) ineffective assistance of appellate counsel for failing to raise the claim that the trial court erred in allowing a witness to testify about prior crimes at sentencing. These same allegations were presented in Petitioner's first and amended PCRA Petitions, as well as in accompanying memoranda in support of his PCRA Petitions.
On December 5, 2008, the Court overruled Petitioner's objections and adopted the Magistrate Judge's Report and Recommendation, in part, as to the claims of insufficiency of the evidence and trial court error. As to the balance of the claims, those the Magistrate Judge found were not exhausted and procedurally defaulted, the objections were sustained, and the Report and Recommendation was disapproved, in part, on the grounds that Petitioner did fairly present such claims at the state level. On December 11, 2008, Respondents filed the instant motion to reconsider the Court's December 5, 2008 decision.
II. MOTION FOR RECONSIDERATION
Respondents now request that the Court reconsider and amend its Memorandum and Order dated December 5, 2008. Respondents argue that the Magistrate Judge accurately found that Petitioner had not exhausted the following claims in the state courts: (1) trial court error for failing to sustain defense counsel objections to alleged prosecutorial misconduct at closing; (2) prosecutorial misconduct by vouching, and prosecutorial misconduct for inflaming the jury's passions; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel. Respondents aver that the Magistrate Judge's analysis was based on the fact that Petitioner failed to present these claims to the state courts on appeal. Specifically, Respondents suggest the Court erred by not pointing to where Petitioner raised the above referenced claims during the PCRA round of appellate review.
The purpose of a motion for reconsideration is to "correct manifest errors of law or fact or to present newly discovered evidence." Harsco Co. V. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Reconsideration is appropriate where the party seeking reconsideration establishes "(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court . . . [issued its previous decision]; or (3) the need to correct a clear error of law or fact or prevent manifest injustice." Max's Seafood Cafe ex rel. Lou Ann v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Respondents allege there is a need to correct a clear error of law or fact in the instant motion for reconsideration.
B. Exhaustion Requirement
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a person in custody as a result of a state court judgment must "fairly present" his federal constitutional claims in state court, thus exhausting his state remedies, before filing his federal habeas petition. 28 U.S.C. §2254(b). The exhaustion requirement provides state courts an "initial opportunity to pass upon or correct alleged violations of its prisoner's federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 (1971). Petitioner bears the burden to show fair presentation of all claims, satisfied by demonstrating the claims brought in federal court are the "substantial equivalent" to those presented in state court. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). Failure to exhaust ...