The opinion of the court was delivered by: Chief Judge Kane
Before the Court is Petitioner Willie Gooding's petition for a writ of habeas corpus (Doc. No. 1) pursuant to 28 U.S.C. § 2254, Magistrate Judge Thomas M. Blewitt's Report and Recommendation ("R&R") recommending that the petition be denied (Doc. No. 22), and Petitioner's objections to the R&R (Doc. No. 23). For the reasons that follow, the Court will adopt the R&R with the additional considerations discussed below and deny the petition.
The relevant factual background of this case, as taken from the record and summary of the Pennsylvania Superior Court, is as follows. On November 7, 1996, Terrence Murphy was attempting to rob the house of Crystal Brown, where he knew Petitioner and others engaged in drug trafficking. Murphy was discovered, and in the course of fleeing he fired shots at an individual named Charles Malloy, one of Petitioner's associates. Petitioner, Malloy, Antoine Brown, and Cory Riera set out to locate Murphy, whom they believed to be the shooter because of his reputation for robbing drug dealers. They found Arthur Irick, an associate of Murphy, who led them to the Starlight apartment building where he believed Murphy could be found. After a search of the building did not turn up Murphy, Malloy struck Irick with a gun and dragged him back into their car. The group then drove to a deserted lot where Malloy dragged Irick from the vehicle and shot him in the head four times, killing him. As the group departed the scene, Petitioner told Malloy and the others to "keep this between us." The murder weapon was then dropped in a sewer outside Riera's home.
In the interest of economy, the Court incorporates the uncontested procedural background of the case as presented in the R&R. (Doc. No. 22 at 2-6.) The necessary background for purposes of this memorandum is set out as follows in Judge Blewitt's R&R:
On September 10, 2001, the trial for the murder of Arthur Irick commenced in York County, Pennsylvania, in which the Petitioner was a co-defendant, and was represented by Royce Morris, Esquire. (Doc. 2, p. 2). At the conclusion of the trial . . . the Petitioner was found guilty of murder in the third degree and kidnaping, and he was acquitted of all other charges including first degree murder and conspiracy. (Doc. 2, p. 3 and Doc. 14, p. 3). On October 24, 2001, Petitioner was sentenced to the maximum 20-40 years imprisonment for third degree murder as well as the maximum 10-20 years imprisonment for kidnaping, resulting in a total sentence of 30-60 years imprisonment. (Id.). Petitioner's timely post-sentence motions were denied on November 19, 2001, and on February 25, 2003, the Superior Court affirmed the Petitioner's judgment of sentence. (Id.; See also Commonwealth v. Gooding, 835 A.2d 709 (Pa. Super. 2003)). The Pennsylvania Supreme Court denied the Petitioner's petition for allowance of appeal on November 13, 2003. (Id.; See also Commonwealth v. Gooding, 835 A.2d 709 (Pa. 2003)). For all the direct appeals, Mr. Morris was the Petitioner's counsel. (Id.). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. Thus, as Petitioner recognizes (Doc. 2, p. 7), his judgment of sentence became final on or about February 13, 2004.
On June 10, 2004, Petitioner filed a pro se Petition under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Petitioner claimed that his trial counsel and appellate counsel were ineffective despite the fact that Petitioner was represented by the same counsel at his trial, sentencing and during his direct appeal. (Doc. 19, 12-1-06 Superior Court Memorandum, p. 2). Subsequently, counsel was appointed to represent Petitioner, and on June 25, 2004, David McGlaughlin, Esq., filed a PCRA Petition on Petitioner's behalf. On July 25, 2004, counsel filed a supplemental PCRA Petition for Petitioner.
On August 9, 2004, the PCRA Court held an evidentiary hearing. (Doc. 2, p. 4 and Doc. 14, p. 3). Petitioner was represented by counsel during the hearing. (Id.). One of the bases for Petitioner's PCRA Petition was that direct appeal counsel (i.e. Attorney Morris) was ineffective for failing to preserve the claim challenging the admission of "other crimes" evidence during Petitioner's trial. (Id.). Petitioner states that despite the testimony of Mr. Morris at the PCRA hearing that he did not "comply with the 'technical rule' requiring him to adequately cite to the record," his PCRA Petition was denied on February 28, 2005. (Id.). Petitioner then appealed, pro se, the denial of his PCRA Petition to the Pennsylvania Superior Court, and as the Superior Court stated, he raised the following five issues for review:
A. Whether the Appellant [Petitioner] was denied due process under the United States Constitution and his right to a fair trial by trial court removal of a sitting juror and further prejudiced by trial counsel's failure to raise an objection or seek rehabilitation of the juror.
B. Whether the Appellant was denied due process of law under the United States Constitution based upon trial counsel's failure to object when the trial court gave an improper and erroneous instruction on accomplice liability when Appellant was only charged in the bill of information as a conspirator, not an accomplice.
C. Whether direct appeal counsel was ineffective for failing to properly preserve for appellant review the Appellant's challenge to the admission of uncharged crimes evidence in violation of Rule 404(b) which violated his due process of law under the United States Constitution.
D. Whether PCRA counsel was ineffective for omitting a meritorious issue (the infraction: trial counsel's ineffectiveness for not objecting to trial court error when giving instructions to the jury on the applicable penalties for first and third degree murder), from the original Post Conviction Relief Act (PCRA) [petition] filed pro se.
E. Whether [the] trial court abused its discretion by imposing a sentence far in excess to [sic] the Pennsylvania sentencing guidelines by enhancing Appellant's guideline range to twice what was called for in  204 Pa. Crimes Code in the aggravated range, thus violating Appellant's state and federal rights to due process. (Footnote omitted). (Doc. 19, 12-1-06 Superior Court Memorandum, pp. 3-4). With respect to Petitioner's fifth issue, Claim E., the Superior Court noted that since this issue was "previously raised and disposed of on direct appeal," "this claim may not be considered under the PCRA." (Doc. 19, 12-1-06 Superior Court Memorandum, p. 4, n. 4). (citations omitted). The denial of Petitioner's PCRA Petition was affirmed by the Superior Court on December 1, 2006. (Id., p. 16). Petitioner did not pursue further review with respect to the denial of his PCRA Petition by filing a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. (Doc. 14, p. 3). Petitioner then filed this instant Habeas Petition on July 10, 2007, under 28 U.S.C. § 2254.
The Magistrate Act, 28 U.S.C. § 636, and Fed. R. Civ. P. 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject or modify the R&R, the Court is to make a de novo determination of those portions of the R&R to which objection is made. 28 U.S.C. § 636(b)(1). Petitioner raises three objections to the R&R: (1) the R&R failed to address the claim that introduction of "other crimes" evidence violated Petitioner's right to due process under the Fourteenth Amendment; (2) the R&R did not specifically address 23 examples listed in Petitioner's brief that purportedly show prejudicial references in his trial; and (3) the R&R did not address Petitioner's claim that the trial court erred in failing to give, and counsel was ineffective for failing to request, a cautionary instruction on the limited use of other crimes and bad acts evidence. (Doc. No. 23.)
28 U.S.C. § 2254 provides that a person in custody pursuant to the judgment of a state court may apply for a writ of habeas corpus if the custody was imposed in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). To exhaust state court remedies, the petitioner must "fairly present" all federal claims to the highest state court before bringing them in federal court.*fn1 Stevens v. Delaware Correctional Center, 295 F.3d 361, 369 (3d Cir. 2002) (citing Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002)). The exhaustion requirement may be excused, however, "if requiring exhaustion would be futile, i.e., exhaustion is impossible due to procedural default and state law clearly forecloses review of the unexhausted claim." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000) (citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)). If such a state procedural default has occurred, the court still may not consider the merits of the claims unless the petitioner establishes cause for the procedural default and prejudice or a fundamental miscarriage of justice. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000).
If a habeas petitioner's claim was "adjudicated on the merits" in state court, "the petition may not be granted unless the state court decision 'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States' or 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Simmons v. Beard, 581 F.3d 158, 165 (3d Cir. 2009) (citing U.S.C. § 2254(d)). A decision is contrary to Supreme Court precedent "if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts." Fahy v. Horn, 516 F.3d 169, 189 n.20 (3d Cir. 2008) (quoting Shelton v. Carroll, 464 F.3d 423, 436-37 (3d Cir. 2006)). An unreasonable application of clearly established law occurs where the state court: "(1) unreasonably applies the correct Supreme Court precedent to the facts of a case; or (2) unreasonably extends or refuses to extend that precedent to a new context where it should (or should not) apply." Id.
When the state court decision was not made on the merits, the limitations of § 2254(d) do not apply; the federal habeas court instead applies a pre-AEDPA de novo review of legal questions and mixed questions of law and fact. Simmons, 581 F.3d at 165. In either scenario, state court factual determinations are presumed correct, with the burden on petitioner to ...