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Macey v. Lawler

July 27, 2010

EDWARD MACEY
v.
ROBERT LAWLER



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

MEMORANDUM RE: PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT & RECOMMENDATION

I. INTRODUCTION

Petitioner Edward Macey filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 27, 2008. (Doc. 1). The undersigned referred the case to Magistrate Judge Jacob P. Hart for a Report and Recommendation ("R & R") on the merits. Magistrate Judge Hart filed his R & R on December 30, 2009 (Doc. 22), and presently before the Court are Petitioner's objections.

Upon independent and thorough review, and for the reasons stated below, this Court denies Petitioner's objections and accepts Magistrate Judge Hart's R & R.

II. BACKGROUND & PROCEDURAL HISTORY

After a jury trial on December 18, 2003 before the Honorable Jane C. Greenspan of the Philadelphia Court of Common Pleas, Petitioner was found guilty of the murder of Yusef Taylor and related offenses. Petitioner's conviction arose out of a shootout between rival gangs at a playground in Philadelphia on June 25, 1998. According to the Commonwealth, Petitioner, along with fellow gang member Taylor, chased after and shot at members of a rival gang, including Anwar White. During the chase, petitioner shot Taylor in the shoulder and in the back of the head, and Taylor died. White, as well as two bystanders-Kimberly Haines and Sharissa Maddox-were also shot but survived. Petitioner was charged with the murder of Taylor and other offenses as to White, Haines, and Maddox. At trial, the Commonwealth called Rasheem Campbell, a member of the same gang as Petitioner, and Kreame Clark, the cousin of Taylor, to testify; each had identified Petitioner as the shooter in previous police statements. When called to testify, however, both Clark and Campbell recanted these statements. The Commonwealth also had subpoenaed Haines, White, and Maddox to testify, but they failed to appear at trial.

Petitioner was found guilty of first-degree murder as to Taylor, aggravated assault as to Haines and White, and criminal conspiracy and violations of the uniform firearms act. Petitioner was acquitted of aggravated assault as to Maddox. On April 22, 2004, Petitioner was sentenced to life imprisonment for the murder of Taylor, concurrent terms of ten to twenty years for conspiracy and aggravated assault, and one to five years for the firearms violation.

Petitioner filed a direct appeal, challenging the sufficiency of the evidence underlying his conviction. The Superior Court of Pennsylvania issued affirmed the conviction and sentence. Commonwealth v. Macey, 885 A.2d 578 (Pa. Super. 2005) (table). The Pennsylvania Supreme Court denied Macey's petition for allowance of appeal nunc pro tunc.

Petitioner then filed a petition for post-conviction collateral relief under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa. C.S. § 9545 et. seq. Petitioner's appointed counsel for the PCRA petition filed a "no-merit" letter, pursuant to Commonwealth v. Finley, 379 Pa. Super. 390, 500 A.2d 213 (1998), and sought to withdraw from representation. The PCRA court issued a Notice of Intent to Dismiss the petition without a hearing, pursuant to Pa. R. Crim. P. 907, to which Petitioner submitted a response. The PCRA court then ordered dismissal of the petition and granted appointed counsel's request to withdraw. Petitioner appealed to the Superior Court, which affirmed the dismissal of his PCRA petition and subsequently denied his petition for re-argument. Commonwealth v. Macey, 945 A.2d 764 (Pa. Super. 2006) (table). Petitioner did not seek allocatur.

On June 27, 2008, Macey filed the instant Petition for Writ of Habeas Corpus, asserting the following grounds for relief: (1) he was denied his Sixth Amendment right to compulsory process because neither the trial court nor his counsel informed him that he had the right to compel Haines and White to testify; (2) trial counsel provided constitutionally ineffective assistance under the Sixth Amendment because counsel (a) neither invoked compulsory process to call Haines or White as witnesses nor informed Petitioner of his right to do so, and (b) failed to properly handle Campbell and Clark as witnesses; (3) he was denied his Fourteenth Amendment right to a full and fair hearing because PCRA counsel failed to properly present his Sixth Amendment claim; (4) the PCRA court's findings are "unreasonable," thus denying Petitioner his Fourteenth Amendment right to a decision supported by record evidence; and (5) the dismissal of Petitioner's timely application for re-argument denied him his First Amendment right of access to the courts.

After reviewing the Petition, Magistrate Judge Hart appointed counsel for Petitioner and scheduled an evidentiary hearing to address Petitioner's claims regarding compulsory process and ineffective assistance as to Haines and White. A hearing was held on September 22, 2009, at which both Petitioner and his trial counsel, Thomas McGill, testified. Petitioner and Respondent each submitted supplemental briefing after the hearing.

III. SUMMARY OF THE MAGISTRATE JUDGE'S R & R

Magistrate Judge Hart reviewed Petitioner's claims for federal habeas relief and recommended that they be denied. (Doc. 22). In particular, Magistrate Judge Hart concluded that: (1) Petitioner was not deprived of his Sixth Amendment right to compulsory process because he never invoked it; (2) Petitioner did not show that trial counsel's failure to compel White and Haines to testify and to advise Petitioner of his Sixth Amendment right was unreasonable trial strategy, or that this testimony would have changed the outcome of his trial; (3) Petitioner's claims that the PCRA court failed to support its decision by record evidence, and that he was denied access to the courts, are not cognizable on habeas review because they do not pertain to the underlying conviction; and (4) Petitioner's claim that PCRA counsel was ineffective is specifically excluded from federal habeas relief under 28 U.S.C. § 2554(I).

IV. PETITIONER'S OBJECTIONS

Petitioner's appointed counsel filed objections to the Magistrate Judge's R & R on January 13, 2010. Petitioner filed his own pro se objections to the R & R on January 15, 2010. As to his compulsory-process claim, Petitioner objects that he should not be faulted for failing to invoke this right at trial because he was unaware of it that time, and any waiver of the right must be personal and informed. Petitioner also objects to Magistrate Judge Hart's analysis of his claim that trial counsel provided constitutionally ineffective assistance by failing to compel White and Haines to testify or to advise Petitioner of his right to compel their testimony, and asserts counsel was also ineffective because he failed to conduct a reasonable investigation of Petitioner's case and failed to obtain prison records regarding Clark that would have undermined the veracity of Clark's incriminating police statement. Lastly, Petitioner objects to Magistrate Judge Hart's characterization of his claims relating to the proceedings before the PRCA courts as "irrelevant."

The Commonwealth filed a Response to Petitioner's Objections on March 12, 2010, (Doc. 27), in response to which Petitioner filed a pro se ...


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