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Johnson v. Folino

November 23, 2009

JOHNSON, PETITIONER,
v.
FOLINO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

Before the Court is petitioner Roderick Johnson's ("Petitioner") motion to depose Berks County Sheriff Eric Weaknecht ("Sheriff Weaknecht") concerning Petitioner's claim for an alleged violation of Brady v. Maryland. The subtext of this motion implicates whether Petitioner's alleged Brady claim has been procedurally defaulted in state court.

Petitioner's alleged Brady violation pertains to undisclosed impeachment evidence related to certain government witnesses who testified unfavorably at Petitioner's trial. Petitioner proposes to depose Sheriff Weaknecht regarding the administrative policies and procedures of the Berks County Sheriff's Office concerning the issuance of gun permits in general and how the policy was applied to Commonwealth witness George Robles. This request relates to Petitioner's claim that a witness against him unlawfully possessed a gun permit with the assistance of the Berks County Sheriff's Office.

For the reasons that follow, the Court finds that Petitioner's alleged Brady violation is unavailable for review due to procedural default in the state court, and therefore, Petitioner's motion to depose Sheriff Weaknecht will be denied as moot.

I. BACKGROUND

On July 14, 1998, Petitioner, was convicted of first- degree murder and related charges in the Berks County Court of Common Pleas with respect to the November 1, 1996 shooting death of Jose Martinez ("Martinez"). (Petition for Writ of Habeas Corpus ¶ 4.) On July 15, 1998, Petitioner was sentenced to life imprisonment without parole. (Id.) The Commonwealth's case relied heavily on testimony of three witnesses: George Robles ("Robles"), Luz Cintron ("Cintron," Robles' girlfriend) and Mylta Velazquez ("Velazquez," Petitioner's estranged girlfriend). (Id. at ¶¶ 17-21.)*fn1

Velazquez testified that Petitioner told her that he shot Martinez and was a "hit man." (Id. at ¶ 17.) Cintron, who knew Petitioner through Robles, testified that she overheard a conversation in November 1996 in which Petitioner admitted responsibility for shooting Martinez while driving with his co-defendant Richard Morales ("Morales"). (Id. at ¶ 18.) Robles, who was an acquaintance of Petitioner, likewise testified that Petitioner made incriminating statements directly to him regarding Martinez's homicide. (Id. at ¶¶ 21, 27.)

A. Petitioner's Alleged Brady Evidence

Petitioner's Brady claim is founded mainly on the theory that Robles maintained a corrupt relationship with police officers for the City of Reading, and that Petitioner was denied access to evidence which establishes this corrupt relationship and impeaches the testimony of Robles. Petitioner further maintains that the Commonwealth withheld impeachment evidence concerning Cintron, Velazquez, and Morales in violation of Brady. The relevant Brady material relied upon by Petitioner with respect to each witness is as follows:

Cintron:(1) affidavits by several investigators produced post-trial recounting a statement by Cintron that she was coerced into testifying by the investigating police officers and Robles; (2) a Reading Police Report dated July 7, 1998, two days before Cintron testified at Petitioner's trial, in which she is listed as a suspect in an assault case; and (3) an inconsistent statement in a police report investigating Robles' involvement in a February 27, 1996 shooting incident concerning a contradiction in Robles' whereabouts during the incident.

Velazquez: affidavits by defense investigators produced post-trial containing statements from Velazquez that she testified against Petitioner only after being threatened by the investigating officers with criminal conspiracy charges.

Morales: a police report by Reading Police Detective Vega stating that he saw Morales near the scene of the homicide after it occurred and that Detective Vega had seen Morales at the courthouse prior to the homicide.

Robles:*fn2 (1) Robles was a member of a group identified as the Nyte Life Clique (NLC) through which Robles engaged in criminal activities and otherwise "ran the streets;" (2) Robles' statement that he smoked marijuana in the presence of Reading Police Detectives Angel Cabrera ("Cabrera") and Bruce Dietrich ("Dietrich"), and was told by Cabrera that his "potpourri and marijuana did not mix too well," but that Robles was not arrested for this conduct; (3) a statement by Robles that Detectives Cabrera, Dietrich, and Vega would question him regarding certain criminal activities and that Robles was complimented by Cabrera and Dietrich about his intelligence in the way Robles "ran things;" (4) a statement by former Berks County Detective Joseph Stajkowski that Cabrera and Dietrich were involved in illegal narcotics trafficking; (5) a letter from Robles to Cabrera stating "I'll do anything" to be released from custody; (6) an investigation involving an April 25, 1996 shooting incident at 644 Bingham Street in which Robles' latent fingerprint was found on a cigar box, which contained 103 bags of crack cocaine and cash, and was recovered from the shooting suspect; (7) that Cabrera and Dietrich returned a safe containing a gun and a cell phone recovered during the investigation of the April 25, 1996 incident to Robles; (8) that Robles was a suspect in the investigation of a February 27, 1996 incident in which an individual (allegedly Robles) assaulted Angel Alvarez and Alberta Collins by threatening them with a firearm; (9) during the investigation of an August 1, 1997 shooting incident in Reading, Pennsylvania, Robles was identified at the scene of the alleged incident (in addition to several other individuals), questioned by police, found to be in possession of a handgun which used similar casings to those fired, and had this weapon confiscated by police but returned to him at a later date; (10) that Robles was questioned as a suspect in the investigation of a September 18, 1997 shooting in Reading for which Robles was never charged; (11) that a gun belonging to Robles was involved in a November 7, 1997 shooting incident at 545 Cedar Street in Reading and Robles was not prosecuted; and (12) numerous affidavits and statements indicating that Robles was heavily involved in narcotics activity.

B. Discovery Obtained in These Proceedings

Discovery has been ongoing in this matter since January 4, 2007, when the Court granted Petitioner's motion for discovery. (doc. nos. 53, 59.) Initially, the Court set a discovery deadline of March 21, 2007. Every deadline was met by yet another discovery request by Petitioner. Ultimately, the Court required the parties to show cause why discovery should not be closed. (doc. no. 113.) In response, Petitioner filed another motion for further discovery seeking (1) discovery already ordered by the Court but not yet produced; and (2) leave to take depositions. (doc. no. 115.) The Court granted the motion in part and denied the motion in part. (doc. no. 120.)*fn3

At this time, the Court concludes that Petitioner has been accorded ample opportunity to engage in a comprehensive discovery process to develop a full and accurate record with respect to the alleged Brady claims.*fn4

II. PROCEDURAL HISTORY*fn5

Petitioner filed a direct appeal of his sentence on August 14, 1998. The Superior Court affirmed the decision on July 15, 1999, and the Pennsylvania Supreme Court denied Petitioner's allowance of appeal on December 30, 1999.

On December 21, 2000, Petitioner filed his first any and all police reports in Assignment No. 22604-96, and (c) permit Petitioner's counsel to review the evidence seized and disposition sheets for each item seized, as reported in Reading Police reports and documents for Assignment No. 19948-96 (doc. no. 110); ! Respondents shall produce any and all documents and reports related to the January 13, 1999, search warrant involving 211 Mulberry St., Reading, PA, including but not limited to the reports in Assignment No. 2306-99 (doc. no. 110); ! Respondents shall produce any and all documents and reports concerning or related to Reading Police contacts with Robles up to and including 2004 for any contacts that concern or relate to Petitioner, his case, a related case or investigation, or a case or investigation concerning co-defendants Shawnfatee Bridges or Richard Morales (doc. no. 110); ! Reading Police Assignment No. 55610-95, the report on the shooting of McCarthy Hernandez (doc. no. 120); and ! March 1998 contact between Reading Police and Cintron (doc. no. 120).

Petition for Post-Conviction Relief pursuant to 42 Pa. C.S.A. § 9543 ("PCRA") and was denied relief on November 29, 2001. This denial was affirmed by the Superior Court on January 8, 2003, and the Pennsylvania Supreme Court denied Petitioner's further request for relief on March 22, 2004. During the pendency of appeal from his first PCRA petition, Petitioner filed a second PCRA petition on September 12, 2003, which was later refiled on April 13, 2004. Petitioner sought to supplement this second PCRA petition with alleged Brady material, but the Court of Common Pleas refused to grant this request and denied Petitioner's second PCRA petition on September 22, 2004. The Court of Common Pleas held that Petitioner's newly asserted Brady claim was untimely under the PCRA statute and none of the statutory exceptions were applicable. The Superior Court affirmed the denial of this second PCRA petition on September 22, 2005.

During the interim in which Petitioner's first and second PCRA petitions were under review by the Pennsylvania state courts, Petitioner filed the instant habeas petition. Petitioner filed the petition in this matter on June 25, 2004, and the Court has accommodated Petitioner in several instances in staying certain aspects of these proceedings in order to facilitate exhaustion of Petitioner's state court petitions.

On June 19, 2007, August 2, 2007, and November 16, 2007, Petitioner filed his third, fourth, and fifth "protective" PCRA petitions, respectively. These petitions were dismissed by the Court of Common Pleas on December 6, 2007, again based upon the untimeliness of the petitions. The Superior Court affirmed this decision on January 22, 2009.

During a telephone conference held in this matter on July 23, 2009, this Court instructed the parties to submit briefing on the exhaustion issue with respect to Petitioner's Brady claim only in order to determine whether additional discovery on this issue was necessary and whether the Brady claim is ripe for review by this Court. The ...


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