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Gee v. Kerestes

June 16, 2010


The opinion of the court was delivered by: Anita B. Brody, J.



Edward Gee ("Gee") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I referred the petition to Chief Magistrate Judge Rueter for a Report and Recommendation ("R&R") in accordance with 28 U.S.C. § 636(b)(1)(B). Judge Rueter recommended that I deny the petition. Gee filed objections. For the reasons discussed below, I will overrule Gee's objections, adopt the R&R with one exception, and deny the petition for a writ of habeas corpus.


The R&R recites the factual and procedural background of this case. I will mention here only those facts relevant to Gee's objections. On January 28, 2000, Gee was convicted of third-degree murder and carrying a firearm without a license. Gee was identified as the driver in a drive-by shooting in which the victim was killed by a single shot that came from the passenger-side window of the vehicle. After the shooting, Gee engaged the police in a car chase and was only apprehended after his car was involved in an accident. (R&R at 1 & n.1.)

At trial, the court was informed that Gee had prior convictions for robbery and theft. The court ruled that the prior convictions were admissible for impeachment purposes if Gee testified. (R&R at 10.) After the prosecutor and Gee's trial counsel advised him as to the purposes for which his prior convictions could be used (namely, to assess his credibility), Gee confirmed to the trial court that he understood these purposes and subsequently chose not to testify. (Gov't's Resp. to Pet'r's Obj. at 3.) During summation, the prosecutor referred to Gee as "a murderer." (R&R at 19.) Gee's trial counsel did not object to the prosecutor's comment, but the trial court provided a cautionary instruction to the jury, explaining that closing arguments were not evidence and were not to be treated as such. (R&R at 21-22.) In his Post Conviction Relief Act ("PCRA") petition, Gee argued, among other things, that his trial counsel's failure to object to this comment deprived him of the effective assistance of counsel.

Gee's PCRA petition was ultimately denied by the Superior Court of Pennsylvania. The Supreme Court of Pennsylvania denied Gee's request for discretionary review. Gee then filed the instant petition for a writ of habeas corpus. (R&R at 3.)


This petition is governed by the revisions to the federal habeas statute enacted in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to AEDPA, [W]hen a federal court reviews a state court's ruling on federal law, or its application of federal law to a particular set of facts, the state court's decision must stand unless it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Lam v. Kelchner, 304 F.3d 256, 263 (3d Cir. 2002) (quoting 28 U.S.C. § 2254(d)(1)). A state court decision is "contrary" to clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or if it "confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, habeas relief should be granted "when the state court 'correctly identifies the governing legal rule but applies it unreasonably to the facts of a . . . case.'" Lam, 304 F.3d at 263 (quoting Williams, 529 U.S. at 407-08); see also Waddington v. Sarausad, 129 S.Ct. 823, 831 (2009) ("Where . . . it is the state court's application of governing federal law that is challenged, the decision must be shown to be not only erroneous, but objectively unreasonable." (internal quotation marks omitted)).

Where a petition for a writ of habeas corpus has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made. . . . [The court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b).


Gee raises four claims in his habeas petition: (1) that his conviction resulted from state court errors that had the cumulative effect of denying him a fair trial; (2) that the evidence supporting his conviction was insufficient to persuade a jury of guilt beyond a reasonable doubt; (3) that his conviction was obtained through prosecutorial misconduct; and (4) that his trial and direct appeal counsel were ineffective. (R&R at 3-4.) Judge Rueter concluded that each claim should be denied and recommended that I deny the petition.

Gee filed four objections to the R&R:

(1) that Judge Rueter erroneously concluded that Gee was not deprived of fundamental fairness in his trial where Gee had refused to testify under the mistaken belief that the trial court had ruled that Gee's ...

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