The opinion of the court was delivered by: McLaughlin, J.
Petitioner Lamont Gist filed a petition for habeas corpus in this Court pursuant to 28 U.S.C. § 2254. The petitioner, who is currently incarcerated in the State Correctional Institution at Graterford, Pennsylvania, challenges his conviction for first degree murder, aggravated assault, and possessing instruments of a crime. The habeas petition was referred to the Honorable Magistrate Judge Linda K. Caracappa. Judge Caracappa has filed a Report and Recommendation, recommending that the petition be denied and dismissed and that there is no basis for the issuance of a certificate of appealability. The petitioner has filed objections to the Report and Recommendation, which for the first time have requested an evidentiary hearing on newly-acquired evidence. For the reasons below, the Court dismiss the petition and deny the petitioner's request for an evidentiary hearing and a certificate of appealability.
A. The Petitioner's Trial
At around 10:40 p.m. on August 30, 1996, in a parking lot off Germantown Avenue in Philadelphia, Ruben Simmons was shot and killed and Brian Johnston was shot and injured. The petitioner, Lamont Gist, was arrested and charged with the shootings. He was tried before a jury for first degree murder, aggravated assault, and possession of the instruments of a crime in the Criminal Trial Division of the First Judicial District of Pennsylvania, Philadelphia, from July 23 to August 1, 1997.
At trial, the prosecution contended that Gist had shot Ruben Simmons and Brian Johnston as the culmination of an escalating series of conflicts among Gist, Simmons, Johnston, and their friends. The prosecution's key witness was Brian Johnston, who identified Gist as the man who shot both him and Simmons. The defense contended that Gist was not the shooter and that Simmons and Johnston had been shot by another man, Anthony Grant, also known as "Roster," who had also been part of the escalating hostilities. The defense's key witness was Abid Stevens who testified that he had seen Grant shoot Simmons and Johnston.*fn1
a. Johnston's Testimony Concerning the Shooting Brian Johnston testified at trial that he was with Ruben Simmons all day on August 30, 1996. That night, as Johnston and Simmons were driving in Simmons' car, Simmons received a page. Johnston and Simmons then drove to the parking lot off Germantown Avenue and joined a group of four or five people who were there shooting dice. Johnston recognized one of the people already there as Abid Stevens.
Johnston testified that Abid Stevens left the group and, several minutes later, Lamont Gist walked up, said to Ruben Simmons, "I heard you were looking for me," and began shooting. Johnston testified that he saw Gist shoot Johnston, and then everyone scattered and began to run. Johnston ran halfway down the block and hid, but saw Gist coming towards him on the other side of the street. Johnston ran back toward the parking lot, and Gist fired two shots at him, hitting him in the foot. Johnston kept running until he was able to get into a car and be driven to a friend's house at 330 Vernon Street where the police were called. Johnston testified that Anthony "Roster" Grant was not present when he was shot. 7/24/97 N.T. at 11-13, 22-28, 41, 58-59, 65, 69-75, 82.
The government presented testimony from two police officers who responded to the call from 330 Vernon Street. Both Officers James Middleton and Jeffery Hannan testified that they arrived separately at 330 Vernon and spoke to Johnston who identified the person who shot him and Ruben Simmons as "Lamont" or "Mont." Johnston was taken to the hospital where he repeated his identification of Lamont as the shooter. After being discharged, Johnston was taken to the homicide division where he gave a statement and identified Lamont Gist out of a photo array as the person who shot him and Ruben Simmons. 7/24/97 N.T. at 91, 96, 100-102; 7/25/97 N.T at 34-38.
b. The Physical Evidence Concerning the Shooting
The government also offered testimony concerning the physical evidence of the crime from the medical examiner, an officer of the mobile crime detection unit, and a ballistic expert. Twelve, fired 40-caliber cartridge casings were recovered by the police, ten in the parking lot where Ruben Simmons was shot and two found 300 feet away near where Brian Johnston was shot. A copper jacket from a bullet was also recovered in the parking lot. Ballistic evidence indicated all twelve cartridges were ejected from the same gun, a semi-automatic. No tests could be performed on the copper jacket or from fragments recovered from Ruben Simmons body. 7/24/97 N.T. at 142-45, 153-54; 7/25/97 N.T. at 8-9, 13-15.
The medical examination of Ruben Simmons' body showed three gunshot wounds. Simmons had a wound on his right little finger and palm consistent with a defensive injury caused by his putting his hands up to protect himself from a gun. He also had a shallow wound in his chest from a small bullet fragment, possibly the same bullet that hit his hand. The third wound was from a bullet that entered the back of Simmons' head and exited underneath his left eye, severing his brain from his spinal cord and causing his death. Simmons' body also had scrapes and abrasions consistent with collapsing from a standing position. From the lack of stippling on the wounds, the medical examiner opined that each shot that hit Simmons was fired from a gun that was at least two or two and a half feet from Simmons' body. 7/24/97 N.T. at 122-141.
c. Evidence of Earlier Incidents Between Gist and Simmons and Between Simmons and Grant
In addition to evidence concerning the events of the night of August 30, 1996, the government also introduced evidence of prior altercations between Gist, Simmons, Johnston, and Anthony "Roster" Grant.
(1) August 15, 2009, Shooting Involving Simmons, Johnston, Gist, Stevens, and Anthony "Roster" Grant
In his direct examination by the prosecution, Brian Johnston testified that two weeks before the shooting, in the evening of August 15, 1996, he had been with Simmons and another friend, Kadir Greene, when Simmons went to pick up his car at the house of another friend. They drove to the house in Greene's truck. Simmons went inside while Greene and Johnston waited in the truck. Johnston testified that he saw Gist and Abid Stevens walking towards them with guns. Gist and Stevens pulled Johnston from the truck and began punching him and hitting him with their guns. Johnston then ran from the scene. 7/24/97 N.T. at 36-40.
The government also presented testimony concerning the August 15, 1996, incident from Kadir Greene, who described himself as a friend of both Johnston and Simmons and of Gist and Abid Stevens. Greene testified that earlier on August 15th, Simmons got into a fist fight with a man named Eric Forbes, whom Greene described as one of Simmons' friends. Forbes believed Simmons had stolen money and drugs from Forbes' house. Before the fight, Simmons gave his gun to another friend named Anthony Middleton to hold. Anthony "Roster" Grant then took the gun from Middleton. After the fight, Simmons went looking for his gun and confronted Grant. When Grant denied having the gun, Simmons hit Grant in the head with a bottle and took the gun back. Grant and Simmons then parted ways. A short time later, at around 5:00 that afternoon, Greene saw Grant, Abid Stevens, and Lamont Gist drive by Simmons in a car and look at him. 7/23/97 N.T. at 127-134, 162-63, 165-69.
Greene also testified about the incident later that evening at the Whitehead house. He testified that he, Simmons and Johnston had gone to the house to pick up Simmons' car and that, while Simmons was inside, Gist, Stevens, and Grant walked up. Stevens and Gist drew guns. Gist's gun had a laser pointer that projected a red beam of light on its target. Stevens then pulled Brian Johnston from Greene's truck, and Gist and Stevens began to hit him with their guns. After the beating, Grant, Stevens, and Gist began to move away, and Greene lost track of Johnston. Simmons then came out of the house with a gun, and Greene saw a spot of light from a laser sight come from Gist's direction towards Simmons. Simmons jumped off the porch of the house with his gun drawn, and Greene ducked down in his truck and heard shots fired. Greene and Simmons got in Greene's truck and drove off. Greene testified that, after he dropped Simmons off, he went back to Gist and Stevens and told them "don't play with guns" while he was there. Greene testified that he remained friendly with Gist, Stevens, and Grant and with Johnston and Simmons, despite their hostility towards each other. 7/23/97 N.T. at 135-146, 149-51, 183-85.
(2) Simmons and Johnston's Kidnapping of Anthony "Roster" Grant Sometime between August 15 and August 30, 1996
On cross-examination, Brian Johnston testified that, one day, sometime between August 15 and August 30, 1996, he and Simmons took Anthony "Roster" Grant from the house where Grant was staying and brought him to Johnston and Simmons' house, where they tied him to a chair in the basement and hit him. They then left him alone in the basement and, when they returned half an hour later, Grant was gone. Johnston testified that he and Simmons took Grant and beat him up in retaliation because "Lamont [Gist] was going around shooting our friends." 7/24/97 N.T. at 47-55.
(3) The August 30, 1996 "Peace Meeting"
Brian Johnston testified that, in the afternoon of August 30, 1996, the day of the shooting, a "peace meeting" was held at a playground on Chew Avenue. The people attending were Johnston, Simmons, Abid Stevens, Grant, and Gary Payne Smith. Lamont Gist did not attend. Johnston testified that the purpose of the meeting was to settle or "squash" the hostilities that had begun since the "truck incident" on August 15th. At the end of the meeting, all those attending shook hands, and Johnston testified that he believed the parties' differences had been worked out. 7/24/97 N.T. at 41-45.
d. The Search of Gist's Apartment and the Recovery of Two Guns
The government presented testimony from Detective Charles Permit concerning his arrest of Lamont Gist and his subsequent search of the house where Gist was found. A warrant for Gist's arrest was issued August 31, 1996. Detective Permit testified that, acting on a tip he received from an unnamed confidential informant, he arrested Gist on September 11, 1996, at the apartment of Joanne McDowell. He obtained McDowell's consent to search the apartment. In the search, Detective Permit found two loaded nine millimeter handguns in the bedroom of the apartment in a laundry bag placed inside a box on the floor of the bedroom closet. 7/24/97 N.T. at 162-63, 170-71, 196-97.
The government's ballistic expert testified on direct examination that he had examined the two guns recovered from the apartment where Gist was arrested. He testified that the serial number of one of the guns had been removed by abrasion, but he had been able to restore it. He also testified both on direct examination and on cross that neither of the two guns was a match to the cartridge casings fired at the scene of Simmons and Johnston's shooting. 7/25/97 N.T. at 7, 16, 31-32.
e. Abid Steven's Statement that Anthony "Roster" Grant was the Shooter and Abid Steven's Identification as a Prime Suspect in Anthony "Roster" Grant's Murder
The government presented testimony from Detective Eugene Wyatt, the assigned detective on the case, concerning his interviews with Brian Johnston the night of the shooting and his subsequent preparation of an arrest warrant for Lamont Gist on August 31, 1996. On cross-examination, Wyatt was asked about an interview he had with Abid Stevens on September 7, 1996. Wyatt testified that Stevens told him that Anthony "Roster" Grant had shot Ruben Simmons and Brian Johnston. On redirect, Detective Wyatt testified that Abid Stevens was in police custody on September 7, 1996, on an unrelated charge, when he told officers he had information on the Simmons-Johnston shooting. Detective Wyatt also testified that he subsequently learned that Grant had been shot and killed on September 6, 1996, the day before Abid Stevens identified Grant as the shooter. On recross, Detective Wyatt was asked whether the police had investigated Grant's death and responded that Abid Stevens was the prime suspect in Grant's death:
Q: By the way, has your office conducted an investigation into the shooting death of Anthony ["Roster"] Grant?
A: Yes, Abid Stevens is the prime suspect. 7/25/97 N.T. at 34-35, 38-39, 41-42, 45-47.
a. Testimony of the Defense's Alibi Witness The defense presented testimony from Joanne McDowell, Lamont Gist's girlfriend, and the owner of the apartment where Gist was arrested. McDowell testified that Gist moved in with her on August 12, 1996, and stayed with her until his arrest on September 11, 1996. McDowell left every weekday from 5:00 a.m. to 3:30 p.m. to go to work and Gist would watch her two children. She testified that every day, Gist was at her apartment when she came home from work and that they never left the house during the time that she was home. On the day of the shooting, August 30, 1996, McDowell testified that she was off work and that she and Gist remained in the apartment the entire day and night, looking after her kids, watching TV, and then going to bed. 7/28/97 N.T. at 17-23.
On cross-examination, the prosecutor brought out inconsistencies between McDowell's testimony and what she had told the police at the time of Gist's arrest. In her formal statement to the police after Gist's arrest, McDowell did not say that she and McDowell had been together the night of the shooting. McDowell explained this by saying she had not been asked whether they had been together at that time. McDowell admitted that she had told the police when Gist was arrested that he did not live with her. McDowell explained the inconsistency by saying that Gist was staying with her, but did not live with her. When asked the day of the arrest whether Gist used the front or back door when visiting her, McDowell said he used the back door. McDowell explained that this answer was consistent with her trial testimony that Gist had never left her apartment, because she had been referring to how Gist entered her apartment when he arrived a month earlier on August 12, 1996. McDowell had been asked the day of the arrest what kind of car Gist drove and she had responded that he drove a green Volvo. At trial McDowell testified that Gist had bought the green Volvo two days before his arrest from a friend who had parked it near her house, but Gist had never driven it. McDowell also testified that, although she knew that Gist had been with her the night of the shooting, she still asked Gist whether he had shot Simmons and Johnston. 7/28/97 N.T. at 43-51, 56-61, 67-70, 79-85.
b. Testimony Concerning Hostility Between Simmons and Anthony "Roster" Grant
The defense called Gary Payne Smith, one of the participants in what Brian Johnston described as a "peace meeting" held in the afternoon of the day of the shooting, August 30, 1996. He testified that the persons attending the meeting were Smith, Abid Stevens, Anthony "Roster" Grant, Ruben Simmons, and Brian Johnston. Lamont Gist did not attend. Smith testified that he organized the meeting to discuss and settle the animosity between Simmons and Grant. He testified that Grant was seeking money from Simmons because Simmons had shot Grant in the leg and that Grant wanted the money in return for not saying anything about the shooting if he were questioned in court. Grant and Simmons also discussed Grant's being kidnapped by Simmons and Brian Johnston. Smith testified that the meeting ended without an agreement and that Grant told Simmons that he would see him in court. Smith said that he observed that Grant feared Simmons. 7/28/97 N.T. at 92-99.
c. Testimony from Eyewitnesses to the Shooting Who Could Not Identify the Shooter
The defense presented testimony from three men who were at the Germantown Avenue parking lot when Simmons and Johnston were shot: Tariq Fowler, Michael Brown, and Robert Daniels. These three men each testified that they were at the dice game the night of August 30, 1996 with Abid Stevens and that Simmons and Johnston arrived at the game sometime later. All three testified that someone walked up and began shooting but that none of them saw the shooter. They each testified that they knew both Lamont Gist and Anthony "Roster" Grant and that none of the three saw either Gist or Grant at the parking lot the night of the shooting. 7/28/97 N.T. at 110-111, 114-120, 134-36, 137-47, 161, 166-70, 175, 178-79.
d. Abid Stevens' Testimony Identifying Grant As the Shooter
Abid Stevens was called as a witness for the defense. At the time of his testimony, he was seventeen and incarcerated in a state juvenile facility for weapon and drug offenses. Stevens testified that he had been arrested on September 7, 1996, and at that time gave a statement to Detective Wyatt about the shooting of Simmons and Johnston. Stevens told Detective Wyatt that the shooter was Anthony "Roster" Grant, whom Stevens described as a good friend. Although Grant had been killed the day before, Stevens said that he did not know that Grant was dead at the time he gave his statement. 7/29/97 N.T. at 37-41, 44.
Stevens also said that Detective Wyatt had visited him in the juvenile facility approximately two and a half weeks before his testimony at Gist's trial and had questioned him about Grant's murder. Stevens said Wyatt told him that Gist had been involved in four homicides and a number of shootings and that Wyatt had heard that Stevens had been present at some of them. Wyatt told Stevens that, if Stevens and Gist had been involved in shooting Grant, then Stevens should tell the truth, but that, if Stevens was involved and lied to him, then Wyatt would make sure that Stevens did more time than Gist. Stevens testified that Wyatt also questioned Stevens again about who had shot Simmons, and Stevens again told him that Grant was the shooter. 7/29/97 N.T. at 42-44.
Stevens testified that, on the night of August 30, 1996, he was at the parking lot off Germantown Avenue, with a group of men playing dice. About a half an hour after Stevens arrived, Ruben Simmons and Brian Johnston drove by, parked their car nearby, and walked up to the game. Simmons participated in the betting, but Johnston just watched. Stevens testified that, after a couple of minutes, Simmons asked Johnston to go to their car and get a beer. Johnston went to get the beer, and Stevens testified that he did not see Johnston again that night. Stevens testified that, a minute or two after Johnston left, a man walked up and shot Simmons. 7/29/97 N.T. at 44-51, 54.
Stevens testified that, while both he and Simmons were leaning over the game, someone walked up and said, "You looking for me, pussy." Stevens testified that he was not paying attention to the man who approached, but recognized him as Grant by his accent. He then saw the man point a gun at Simmons' chest. Simmons grabbed for the gun and both men struggled for it. Stevens testified that, as they each pulled for the gun, Simmons tripped and the gun went off and hit him in the hand. Stevens said that, as Simmons turned to run, one or two shots were fired, and Simmons fell to the ground. Stevens said that he then ran away to a friend's house. He testified that he then went to his house to retrieve a firearm and take it to another friend's house, so that the police would not find it if they came to question him. 7/29/97 N.T. at 51-55.
Stevens testified that he did not see Lamont Gist on the night of the shooting on August 30, 1996 and that he had not seen Gist since July and did not see him again until after he was arrested on September 7, 1996. Stevens also testified that he told a friend named Brian Randle about the shooting, telling him that Grant shot Simmons. 7/29/97 N.T. at 50, 58-60.
On cross-examination, Stevens admitted that he never got a good look at the face of the person who shot Simmons, and that he recognized the shooter as Grant only because of his voice. Stevens conceded that he could not say for sure that Gist was not present the night of the shooting and that he could not say for sure that Gist wasn't the shooter. Stevens reiterated that the shooter's gun went off while Simmons and the shooter were struggling for the gun and while the two were two or three feet apart. Stevens denied telling Brian Randle that Gist shot Simmons. Stevens also denied being present on August ...