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Clark v. Diguglielmo

August 16, 2010

JULIUS J. CLARK, PETITIONER,
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Magistrate Judge Bissoon

Judge Fischer

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Petition for Writ of Habeas Corpus filed by Julius J. Clark be dismissed and that a certificate of appealability be denied.

II. REPORT

Petitioner, Julius J. Clark, was found guilty by a jury of two counts of Robbery in the Court of Common Pleas of Allegheny County, Pennsylvania, on July 7, 2005. Clark was sentenced to an aggregate term of 10 to 20 years imprisonment on March 7, 2005.

The evidence presented at trial established that Kathleen Scott and Josephine Vozza were each confronted, and then robbed, a short distance from one another, and within the span of about 30 minutes, on the evening of December 16, 2003. Both women had just exited cars in front of their homes, and the assailant shoved each of them and demanded that they give him their purses. Mrs. Scott and her son each positively identified Petitioner from a photo array. Josephine Vozza did not look at her assailant after she was shoved to the ground, but her son, Fernando Vozza, watched the robbery and attempted to intervene, but Petitioner motioned as if he had a handgun hidden in his jacket and Mr. Vozza stepped away. Mr. Vozza identified Petitioner from a photo array, and also observed the license plate of the black Subaru Petitioner used. Police observed Petitioner in the car later same evening, but Petitioner fled when police approached (Doc. 11-5, pp. 2-3, 9).

Petitioner filed a counseled direct appeal raising three claims:

1. Did the trial court abuse its discretion in failing to grant Clark's request for severance of the two robbery charges?

2. Is the evidence sufficient to convict Petitioner of robbery involving serious bodily injury where no bodily injury was caused?

3. Did the prosecutor commit misconduct during closing arguments, and did the trial court err is addressing a question asked by the jury, with respect to the threat made against non-victim Mr. Vozza?

(Doc. 11-2, p. 40). The judgment of sentence was affirmed on March 13, 2006 (Doc. 11-5, pp. 1-14). Petitioner's subsequent Petition for Allowance of Appeal was denied by the Supreme Court of Pennsylvania on August 29, 2006 (Doc. 11-6, p. 36).

Petitioner thereafter filed a petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. ยง 9541, et esq., on February 7, 2007. Counsel was appointed and an amended petition was filed along with a ...


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