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Kelly v. Rozum

October 5, 2009

JAMES KELLY, PETITIONER,
v.
GERALD L. ROZUM, ET AL., RESPONDENTS



The opinion of the court was delivered by: Gene E.K. Pratter, J.

MEMORANDUM

Petitioner James Kelly was convicted of murder and conspiracy. Petitioner's § 2254 petition alleges that his trial counsel was ineffective. Magistrate Judge Rice reviewed the record and the parties' submissions and issued a Report and Recommendation reflecting his conclusion that all of Petitioner's claims should be denied as procedurally defaulted, non-cognizable, or meritless. Petitioner objected to the Report and Recommendation.

There is an no apparent conflict regarding the applicable caselaw, and the Court concludes that Judge Rice addressed all of the issues carefully and in depth. Nevertheless, several of the arguments advanced by Petitioner, particularly regarding whether there would have been a "reasonable probability of a different outcome" if defense counsel had called Rev. James Becoat, Ms. Denise Holsey-Miller, Mr. Lex Traylor, and Ms. Joan Arrington to testify at the trial, prompted the Court to address Petitioner's objections in additional detail. Accordingly, the Court allowed supplemental briefing regarding Petitioner's objections to the Report and Recommendation.

After receiving and reviewing all of the parties' submissions, the Report and Recommendation, and the ample state court record, the Court determines that the parties have had sufficient opportunity to articulate their arguments and that oral argument is not necessary. For the reasons that follow, the Court shall approve and adopt Judge Rice's Report and Recommendation.

I. Petitioner's Objections to the Report and Recommendation and Supplemental Briefing

In the initial objections, Petitioner's counsel asserted that his trial counsel was ineffective because he failed to 1) "[p]rovide an alibi notice where the obvious defense was alibi"; 2) "[c]all an alibi witness (Rev. BeCoat) [sic] who was actually present just outside the court room"; 3) "[c]all two witnesses (Holsey Miller and Traylor) who knew petitioner and saw two men (neither of them petitioner) who were highly probable as the actual shooters; these witnesses were known to defense counsel, or should have been"; and 4) "[c]all petitioner as a witness, on spurious grounds." No other grounds were listed in this initial set of objections. See Objections to Report and Recommendations of Magistrate Judge Timothy R. Rice, Docket No. 27, at 2.

Petitioner then filed a letter, pro se, which included his own set of objections. See Letter from Mr. Kelly, Docket No. 28. These objections were much more expansive than the objections that his attorney had filed. Shortly thereafter, counsel sent a letter to the Court noting that he was "happy to confirm and adopt Mr. Kelly's Objections as well as the ones [counsel] filed, if that meets with your approval." March 12, 2009 Letter from Counsel. The Court allowed supplemental briefing, and counsel submitted a more expansive, supplemental brief that addressed additional claims that had been mentioned in Petitioner's pro se letter but were not mentioned in counsel's original set of objections to the Report and Recommendation.

II. Defaulted Claims and/or Waived Claims

In the supplemental brief, Petitioner's counsel presents many arguments that were not addressed in his original set of objections to the Report and Recommendation, and that involve claims that Judge Rice properly found to be procedurally defaulted or waived. See Report and Recommendation at 13-15, 18. For instance, Petitioner argues that the primary witness against him, Ernestine Williams, only identified Petitioner after going through a "flawed" and "suggestive" identification procedure. He also argues that his trial counsel failed to object to certain taped testimony, as he should have, and failed to file an appeal after the trial. Petitioner also questions the credibility of various snippets of testimony and other evidence, pointing out supposed "discrepancies" in what seems to be a "weight of the evidence" argument. He hints that the police may have committed various Brady violations. Finally, he argues that his trial counsel failed to call Petitioner to the stand, as he should have in light of Pennsylvania Rule of Evidence 609; indeed, Petitioner asserts that Petitioner was never even asked whether he wanted to testify on his own behalf. See Mem. on Behalf of Pet. James Kelly ("Kelly Supplemental Mem."), Docket No. 32, at 2-8.

Notably, Petitioner does not argue that these issues were not procedurally defaulted or waived. Instead, he merely states:

I do not propose to analyze each instance where counsel dropped the ball in respect of the layering and wavier issues. Suffice it to say that I rely on the failure to present all available witnesses, and particularly Reverend Becoat, as a ground that has never been waived or abandoned. However, the other instances of ineffectiveness are important to show that Kelly's conviction was a "miscarriage of justice" under Pennsylvania law. Kelly Supplemental Mem. at 10.

With the invocation of the phrase "miscarriage of justice," as Judge Rice surmises, Petitioner seems to be alluding to a general argument that a petitioner may obtain federal habeus review of claims that were defaulted pursuant to independent and adequate state procedural rules if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." See Report and Recommendation at 18-19 (emphasis added, and case citations omitted). However, Petitioner does not address the high threshold for showing "miscarriage of justice," and the Court agrees with Judge Rice that Petitioner has not offered anything to show that Petitioner has met this requirement. See Report and Recommendation at 18-20.*fn1 Indeed, Petitioner offers no evidentiary basis or legal analysis for the proposition that no reasonable juror could or would have found him guilty. Accordingly, the Court concludes that Judge Rice correctly declined to consider Petitioner's procedurally-defaulted and waived claims.

Even if the claim regarding the failure to call Petitioner to the stand were not procedurally defaulted, it would be unpersuasive, given the likelihood that Petitioner's criminal record would have either justified the professional judgment of counsel not to call Petitioner as a witness or, if Petitioner did testify, would have added to the substantial weight of the case against him.

Petitioner argues that he should have been called to the stand and that his prior convictions would not have come out because he "had been convicted in 1978 of robbery and in 1984 for retail theft, and his time had been served." Kelly Supplemental Mem. at 7, n. 11. However, Petitioner does not specify when he was released from confinement for these convictions, which would bear on when his "10-year look-back" term started. See Pa. R. Evid. 609. The decision not to ...


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