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Abdullah v. SCI Dallas

February 9, 2010

NAREE ABDULLAH, PETITIONER
v.
WARDEN SCI DALLAS, ET AL., RESPONDENT



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

MEMORANDUM AND ORDER

This case comes before me on a habeas corpus petitioner's objections to the Report and Recommendation (R&R) of a magistrate judge. The Honorable Carol Sandra Moore Wells, United States Magistrate Judge, has recommended that the habeas corpus petition be denied and dismissed because the petitioner's multiple claims are either time barred, procedurally defaulted, or lack merit. Although I conclude that a de novo review of the record was not warranted, I will overrule Abdullah's objections and adopt the magistrate judge's recommendation that the writ be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 1993, the petitioner, Naree Abdullah, and co-defendants Jermaine Trice, Gregory Womack, Julius Jenkins, and Atil Finney traveled to North Philadelphia in Womack's station wagon. Along the way they picked up Demond Jackson who asked for a ride. Womack parked the car around the corner from Lilly's Market. Abdullah, Trice, Jenkins, and Finney entered the market while Womack and Jackson stayed in the car. Once inside the store, Jenkins pulled out a gun and shot the store owner through his jaw and neck, causing him to bleed to death.*fn1 Abdullah and the other three men returned to Womack's car with Trice carrying a cash register. Womack drove the car to Abdullah's house where the cohorts divided the money.*fn2

Several days later, Abdullah, Finney, Trice, and Jenkins were arrested after a separate robbery.

On March 13, 1996, at the conclusion of a trial in the Court of Common Pleas of Philadelphia County before the Honorable John J. Poserina, Jr., a jury found Abdullah guilty of second-degree murder, three counts of robbery, and criminal conspiracy. Abdullah was sentenced to life imprisonment for second degree murder running consecutively with a five to ten year sentence for one count of robbery.*fn3

Judge Poserina refused Abdullah's motion for new trial, the Superior Court affirmed the judgment and sentence, and the Pennsylvania Supreme Court refused to allow an appeal.

As a result of a subsequent petition filed pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq., Judge Posserina held a hearing during which Demond Jackson disavowed his trial testimony that Abdullah had accompanied the other defendants into the market. Instead, Jackson now said that Abdullah had stayed in the car with Womack and him.

Judge Posserina found Jackson's recantation was not credible and again refused a motion for a new trial. The Superior Court affirmed, concluding that Judge Poserina was correct in making a credibility assessment of Jackson's testimony and rejecting affidavits by Finney and Jenkins as being corroborative. Again, the Supreme of Pennsylvania denied an appeal.

Abdullah then filed this counseled petition for federal habeas relief pursuant to 28 U.S.C. § 2254, raising five issues.

(1) He was denied his Sixth Amendment right of confrontation;

(2) He was tried before a death-qualified jury;

(3) Evidence and comment about an unrelated crime were permitted;

(4) Testimony and comment about the credibility of a prosecution witness were permitted; and

(5) New evidence showed actual innocence.

Subsequently Abdullah filed a traverse*fn4 claiming a discrepancy between the "factual findings" of the Pennsylvania Superior Court and those of the trial court that he ...


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