The opinion of the court was delivered by: M. Faith Angell United States Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this Court is a counseled petition for writ of habeas corpus filed, pursuant to 28 U.S.C. §2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution [SCI] Rockview in Bellefonte, Pennsylvania, where he is serving a life sentence for first-degree murder, a concurrent term of ten (10) to twenty (20) years for aggravated assault, one (1) to two (2) years for recklessly endangering other persons, and two and one-half (2 1/2 ) to five (5) years for possessing an instrument of crime. For the reasons set forth below, it is recommended that the habeas petition be denied and dismissed without an evidentiary hearing.
The background of this case was set forth by the trial court as follows:
On September 6, 1999, at approximately 5:00 p.m., Anibal Ocasio and his passenger, Yusuf-Amin Woodruff, drove in a white Grand Am to an apartment complex on 51st Street between Chancellor and Walnut Streets in Philadelphia. As Mr. Ocasio parked, the [petitioner] walked up to the passenger side of the car and fired a gun shot into Mr. Woodruff's stomach. The [petitioner] then fired two shots into Mr. Ocasio.
The gunshot split Mr. Woodruff's kidney and liver. He was in the hospital for three weeks. Mr. Ocasio was less fortunate; he died of his injuries.
Commonwealth [witness] Candace Radix was personally acquainted with the [petitioner], having known him for four or five months prior to the murder. At trial, she testified that on the day of the shooting, she saw a white car drive by as she stood on the corner of 51st and Walnut talking to the [petitioner]. She testified that the [petitioner] turned away from her and remarked "It's been a long time since he shot some one." NT 11/5/2003 at 68. Ms. Radix testified that she had only taken her eyes off the [petitioner] briefly when she heard a shot. She turned her head in the direction of the noise, saw the [petitioner] lean into the white car, and fire two more shots. Then, she saw the driver slump down into the seat. Understandably, she left the area immediately. Yusuf-Amin Woodruff, the surviving shooting victim, corroborated her testimony that that the [petitioner] was the shooter.
Commonwealth v. Jones, C.P. No. 0212-1200, slip op. at 2-3 (C.C.P. Philadelphia County, March 8, 2004); Commonwealth's Response to Petition for Writ of Habeas Corpus*fn2, Exhibit A. Following a jury trial before the Honorable Pamela Pryor Dembe of the Philadelphia Court of Common Pleas, Petitioner was convicted of first-degree murder, aggravated assault, recklessly endangering other persons, and possessing an instrument of crime.
On January 14, 2004, Mr. Jones was sentenced to life in prison for the murder conviction, a concurrent term of ten (10) to twenty (20) years' imprisonment for the aggravated assault conviction, a term of two and one-half (2 1/2 ) to five (5) years' imprisonment for the possessing an instrument of crime conviction (to run consecutively to the assault sentence and concurrent to the life sentence), and a term of one (1) to two (2) years' imprisonment for the recklessly endangering other persons conviction (to run concurrently to the life sentence and consecutively to the assault conviction). Id.
Petitioner filed a direct appeal to the Pennsylvania Superior Court, raising the following issues:
Was the jury's verdict of murder in the 1st degree against the weight and sufficiency of the evidence?
Did the trial court err as a matter of law in allowing the Commonwealth to exclude African Americans as prospective jurors in violation of Batson v. Kentucky?
Did the trial court err in permitting prosecutorial misconduct during the opening and closing statements made by the Assistant District Attorney?
Commonwealth v. Jones, No. 221 EDA 2004, slip op. at 3 (Superior Court, December 15, 2004); Commonwealth's Response, Exhibit B. On December 15, 2004, the Superior Court affirmed the judgment of sentence. See Commonwealth v. Jones, 869 A.2d 9 (Pa. Super. 2004) (table).
Mr. Jones did not seek discretionary review in the Supreme Court of Pennsylvania, thus making his judgment final on January 14, 2005.
On October 14, 2005, Mr. Jones signed and dated a timely pro se petition under Pennsylvania's Post conviction Relief Act, 42 Pa.C.S.A. §9541, et seq. (PCRA), and it was filed with the court on November 7, 2005.*fn3 Counsel was appointed to represent Petitioner. An amended PCRA petition was filed. "After careful review of the pleadings, the PCRA Court filed a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907 on March 5, 2007.... The petition was formally dismissed by an order entered on April 13, 2007." Commonwealth v. Jones, C.P. No. 0212-1200, slip op. at 1-2 (C.C.P. Philadelphia County, June 8, 2007); Commonwealth's Response, Exhibit C.
Petitioner appealed the dismissal of his PCRA petition to the Pennsylvania Superior Court, raising the following issue:
Whether the PCRA Court erred by dismissing the [petitioner's] petition as frivolous where prior counsel who represented the [petitioner] at trial and on appeal was ineffective for failing to properly raise and preserve the issue of improper comments made by the prosecutor during closing argument thereby depriving the [petitioner] of his state and federal constitutional right to a fair trial, due process and equal protection under the law?
Commonwealth v. Jones, No. 1298 EDA 2007, slip op. at 2-3 (Superior Court, June 3, 2008); Commonwealth's Response, Exhibit C. In a June 3, 2008, Opinion, the Superior Court affirmed the denial of PCRA relief. Id. at 8.
On July 2, 2008, Mr. Jones sought allowance of appeal in the Pennsylvania Supreme Court, raising one claim:
The Superior Court erred in holding that the PCRA Court had not erred by dismissing the [petitioner's] petition as frivolous where prior counsel who represented the [petitioner] at trial and on appeal was ineffective for failing to properly raise and preserve the issue of improper comments made by the prosecutor during the closing argument thereby depriving the [petitioner] of his state and federal constitutional right to a fair trial, due process and equal protection under the law.
Commonwealth's Response, Exhibit C. The Court declined review on December 16, 2008. See Commonwealth v. Jones, 962 ...