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Durham v. Piazza

September 9, 2009

DRAYE D. DURHAM, PETITIONER,
v.
JOSEPH J. PIAZZA; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; AND, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS.



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

MEMORANDUM

I. INTRODUCTION

The facts of the case and the issues raised by the pro se Petition for Writ of Habeas Corpus are adequately summarized, for purposes of this Memorandum, in the Report and Recommendation of United States Magistrate Judge Henry S. Perkin dated July 22, 2008. To the extent necessary, Court will refer to those facts and issues without further elaboration in this Memorandum. The Court writes at this time (1) to address petitioner's objection concerning Magistrate Judge Perkin's failure to review the entire state court record and (2) to provisionally approve certain recommendations made by Magistrate Judge Perkin.

Petitioner, in his pro se Petition for Writ of Habeas Corpus and related filings, raised twelve allegations of state court error for federal review.*fn1 (See R&R 5-7.) The claims, as summarized in the Report and Recommendation, are as follows:

1. Gloria Davis: Petitioner claims ineffective assistance of counsel for failing to call Gloria Davis as a witness.

2. Tampering with Evidence: Petitioner claims: (i) prosecutorial misconduct because the prosecutor showed evidence to witnesses in the hallway outside the courtroom; (ii) trial court error for allowing the prosecutor's actions to occur; and (iii) ineffective assistance of counsel for failing to pursue objections on this matter.

3. Improper Closing Argument: Petitioner avers: (i) prosecutorial misconduct for mischaracterizing a witness'[s] testimony, vouching for certain witness[es]' testimony as "truth," and misleading the jury about the lineup; (ii) trial court error for allowing the prosecutor's actions to occur; and (iii) ineffective assistance of counsel for failing to object.

4. Unconstitutional Search and Seizure: Petitioner argues: () trial court error for admitting an improper search warrant and an unauthentic consent form to search Gloria Davis'[s] house; and (ii) ineffective assistance of counsel for failing to raise this issue.

5. Suggestive Identification: Petitioner claims: (i) trial court error for admitting into evidence identification from a suggestive photo array: and (ii) ineffective assistance of counsel for not objecting to the identification.

6. "No Adverse Inference" Instructions: Petitioner asserts: (i) trial court error for not giving proper "no adverse inference" instructions; and (ii) ineffective assistance of counsel for not demanding the instructions.

7. Kloiber Charge: Petitioner claims: (i) trial court error for not giving proper Kloiber charges to the jury; and (ii) ineffective assistance of counsel for not demanding the charge.

8. Excessive Sentencing: Petitioner argues: (i) trial court error for unjustified and manifestly unreasonable sentencing; and (ii) ineffective assistance of counsel for failing to object and preserve sentencing issues.

9. Equal Protection: Petitioner avers: () trial court error for not applying the law equally; and (ii) ineffective assistance of counsel for not raising this issue.

10. Improper Consolidation: Petitioner argues that the trial court erred by consolidating the five ...


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