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Moore v. Diguglielmo

August 25, 2009

THOMAS J. R. MOORE, PETITIONER
v.
DAVID DIGUGLIELMO, RESPONDENT



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

MEMORANDUM OPINION

Thomas J.R. Moore ("Petitioner"), a state prisoner, having been convicted of, inter alia, second degree murder, i.e., felony murder while committing a burglary of an occupied home, is serving a life sentence. Petitioner shot his co-actor in the burglary. Petitioner now seeks to attack his murder and related convictions via the present habeas petition. All parties have consented to the exercise of plenary jurisdiction by the Magistrate Judge. Dkt. [50] & [54].

Because many of his issues are procedurally defaulted, they may not be addressed on the merits. As to those issues not procedurally defaulted, Petitioner fails to establish entitlement to relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") by failing to even argue the state courts' disposition was contrary to or an unreasonable application of Supreme Court precedents and, thus, the petition is properly dismissed.

I. Relevant Procedural and Factual History

The Post Conviction Relief Act ("PCRA") Court summarized the facts underlying the crime and the testimony at trial as follows:

On the afternoon of May 13, 1988 at approximately 2:30 p.m. Theresa Allen and her family were at home, a split level residence located at 975 Garden City Drive, Monroeville, Pennsylvania. Ms. Allen was spending a relatively quite afternoon in the company of her family which consisted of her brother, LaVaughn Johnson, her offspring Andre Allen, Marcus Allen, Nicole Anderson and [Nicole's son and Theresa's grandson] Dion Anderson. Theresa was in her bedroom with her son Andre, age 6, watching television and talking on the telephone when a man came into the room and attacked her. This individual, Douglas Baskin, informed Ms. Allen that "this is a stickup" and that he wanted all of her money and jewelry. (Trial Transcript at 47). Young Andre alighted from his mother's room in order to enlist the aid of his uncle, LaVaughn Johnson, who was asleep elsewhere in the house. LaVaughn Johnson stated that he was aroused by Andre who had told him that "someone was beating on Mom." (Trial Transcript at 138). LaVaughn tried to rouse himself from his resting place only to find that someone had taped his ankles together with duct tape while he was slumbering. (Trial Transcript at 137). LaVaughn, after freeing himself from his sticky fetters, ran up the stairs to his sister's bedroom. En route he encountered two men. LaVaughn tried to grab one of the men. As he did so, the other man shot LaVaughn in the shoulder blade. (Trial Transcript at 140-44).

Nicole Anderson, Theresa Allen's daughter, was in her own bedroom watching television when "a man camp [sic] up... and held a gun up to me...' (Trial Transcript at 110). Nicole Anderson also testified that another man was lurking near a linen closet but that she could not see his face. (Id.). Also present in the room were Marcus Allen, Nicole's younger brother, and her infant son Dion Anderson. The intruder, whom Nicole identified [both at trial and at the coroner's inquest*fn1 ] as the defendant, ordered her to lie facedown and then relieved her of her jewelry. While in this position Nicole heard the sound of gunshots. At this point, Nicole got up from the floor, telephoned the police and fled from the house with her child in her arms.

Theresa Allen stated while she was in the bedroom with Baskin, she heard someone coming up the stairs and then heard gunshots (Trial Transcript at 49).

Then, according to Theresa Allen, a well-dressed black man entered her bedroom, and then shot at Baskin 2 or 3 times. (Trial Transcript at 50). The assailant then fled the scene. Theresa Allen subsequently identified the assailant as being the defendant [at least twice, once in a photographic array, and also at trial*fn2 ].

Dkt. [52-10] at 5 to 6 (indenting of paragraphs added). In addition to the positive identifications of Petitioner as the perpetrator, there was other overwhelming circumstantial evidence that Petitioner was the perpetrator. In the course of its PCRA opinion addressing an ineffectiveness claim, the Superior Court noted the following:

[Appellant] could not have been prejudiced by this absence of this cumulative testimony. This is particularly true given the overwhelming circumstantial evidence presented in this matter that placed [Appellant] at the scene of the crime. [Appellant] was positively identified by two victims as the person who entered [their] residence, armed with a gun[,] demanding jewelry and other valuables. A briefcase that several witnesses identified as belonging to [Appellant] both from its general appearance as well as because it bore a distinctive sticker, [i.e., a AAA sticker,] was found at the scene. The briefcase contained documents related to a political campaign which bore the signature of persons who were willing to volunteer for that campaign. Two of the people who signed the documents, Christine Barbee and Sandra Roberts, identified their signatures on those documents[.] [Notes of Testimony Trial, 4/4/90, at 220, 226]. The briefcase also contained a photo identification card for [Appellant]. [Id. at 206]. Fingerprints lifted from three separate documents found in that briefcase matched [Appellant's] known prints. [Id. at 333].

In addition, at the approximate time of the [crime], a witness who lived near the Allen residence [the scene of the crime] saw a man walking in the direction of the Allen home carrying a briefcase bearing an AAA sticker. The man was dressed in a suit and [was] wearing a baseball cap.*fn3 He was walking with another man who also wore a baseball cap. [Id. At 165]. Another witness from the neighborhood also saw a man walking towards and entering the Allen residence around 2:30 p.m. on May 13, 1990. He [i.e., the man walking] was wearing a suit and a blue baseball cap [and was] carrying a briefcase accompanied by another man. He [i.e., the witness] said that they entered the residence without knocking. [Id. at 174-75]. A third neighbor saw a man wearing a brown suit run from the direction of the Allen residence....... [Id. at 2169-70, 172]. She did not report seeing him carrying anything. Although these witnesses could not identify [Appellant] as the man they saw that afternoon, their description of his appearance and what he was wearing was consistent with the description provided by the victim [apparently meaning Theresa Allen] who later identified [Appellant] from a photographic array and in court. Moreover, their observations of him going to the Allen residence accompanied by another man [and] carrying a briefcase and wearing a blue baseball cap and then running from that area, alone without the cap or the briefcase is compelling circumstantial evidence that he was present at the Allen residence and then left,, leaving behind the... hat and the briefcase.

Dkt. [52-10] at 36-37 (indenting of paragraphs added).

Petitioner filed a direct appeal, represented by the same attorney who represented him at trial, Dkt. [52-10] at 34, and the Superior Court affirmed, Dkt. [52-4] at 2 to 28, the trial court's denial of relief. Dkt. [51-5] at 34 to 42. Thereafter, on or about January 19, 1996, Petitioner filed a pro se PCRA petition, whereafter counsel was appointed but then was later permitted to withdraw in or about January 8, 1997, without ever having filed an amended PCRA petition. Due to an oversight, new counsel was not simultaneously appointed and the pro se PCRA petition languished for several years. In May 2000, the PCRA court entered an order directing Petitioner to inform the court how he wished to proceed. Petitioner indicated he wanted new counsel to be appointed. New counsel was appointed, who eventually filed a no merit letter and a petition to withdraw. In September 2002, the PCRA court issued two orders, one a notice of intent to dismiss the PCRA petition and the second order granted the attorney leave to withdraw. On October 9, 2002, Petitioner filed a response to the court's notice of intent to dismiss. Nothing further occurred on the docket until July 18, 2005, when the PCRA court dismissed the PCRA petition.

Meanwhile, on October 26, 2004, the Petitioner filed the instant habeas petition, apparently asking, inter alia, that exhaustion of his state court remedies be excused based upon the delay of the PCRA court in adjudicating his pro se PCRA petition. The Court ordered that the petition be served and that the Respondent file an answer. Dkt. [2]. After receipt of the answer, the Court ordered on July 15, 2005, that exhaustion would not be excused but that monitoring of the state court proceedings would be commenced by this Court and that the Respondent was to file monthly status reports indicating the progress of the case in the state courts if any. Petitioner appealed that order to the District Judge, who eventually affirmed. Dkt. [14]. Unbeknownst to this Court, and somewhat serendipitously, the PCRA court on July 15, 2005 denied the PCRA petition but that order was not entered on the state court docket until July 18, 2005. The District Judge, in denying Petitioner's appeal and affirming the undersigned's order which did not excuse exhaustion but did require monitoring of the state court proceedings, noted the fact that the PCRA court had denied the PCRA petition during the pendency of the habeas proceedings in this Court.

Back in state court, Petitioner filed an appeal of the PCRA court's denial of relief. After an appeal to the Superior Court and a remand of the case from that Court back to the PCRA trial Court, Petitioner was eventually ordered by the PCRA Court to file a Statement of Matters Complained of on Appeal. Dkt. [52-9] at 29 - 30. Petitioner filed his statement. Dkt. [52-9] at 31 to 35. Petitioner filed a supplemental statement as well. Dkt. [59-2] at 37 to 42. The PCRA court filed its opinion in support of its denial of the PCRA petition. Dkt. [52-10] at 1 to 21. Petitioner did not file a new brief on appeal to the Superior Court but apparently relied upon the brief he had filed in the Superior Court on his first appeal, which was before the Superior Court had ordered a remand. Dkt. [52-10] at 24 n.5. Hence, Petitioner's brief to the Superior Court and the issues he raised therein are available at Dkt. [52-8]. On October 24, 2007, the Superior Court affirmed the denial of relief. Dkt. [52-10] at 22 to 40. On December 13, 2007, we received the last status report from the Respondent indicating that Petitioner did not file a Petition for Allowance of Appeal in the State Supreme Court and that the time for doing so had run. Dkt. [44].

Consequently on December 20, 2007, we ordered the Petitioner to inform us how he wished to proceed. Dkt. [45]. Petitioner indicated that he wanted to file an amended habeas petition. Dkt. [46]. Petitioner filed his amendment to the original habeas petition, which amendment merely added two issues to the originally filed habeas petition. Dkt. [48]. Hence the operative petitions are Dkt. [1] and Dkt. [48]. The Respondent was directed to file a new answer. Dkt. [49]. The Respondent complied. Dkt. [51] & [52].

The petition is ripe for disposition. The claims that Petitioner raises are as follows: Ground One: Petitioner submits that he filed his Post Conviction Relief act petition in the Clerk of Courts Office of Allegheny County on January 16, 1996. He avers that there are not available to him corrective remedies in that trial court which over the time-frame of 8 years and 10 months has failed and refused to adjudicate the ...


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