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Burrell v. Tennis

September 21, 2010

COREY BURRELL
v.
FRANKLIN TENNIS, ET AL.



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

MEMORANDUM

Before the court is the application of Corey Burrell, a state prisoner, for a writ of habeas corpus under 28 U.S.C. § 2254. He seeks either a new trial or at least a remand to the Court of Common Pleas for Philadelphia County for re-sentencing.

After review of the state court record, Magistrate Judge Linda K. Caracappa filed a Report and Recommendation that the application be denied and dismissed. Burrell filed objections. The matter is now here for de novo review. See 28 U.S.C. § 636(b). When a Magistrate Judge has made a Report and Recommendation for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this court "shall make a de novo determination of those portions of the recommendation to which [the] the objection is made. A judge ... may accept, reject or modify, in whole or in part, the findings or recommendation made by the magistrate." 28 U.S.C. § 636(b).

I.

Burrell's application is governed by the AEDPA, which amended 28 U.S.C. § 2254. Under § 2254, when a federal court reviews a state court's determination of federal law, the state court's decision must stand unless it, "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Thomas v. Carroll, 581 F.3d 118, 124 (3d Cir. 2009) (quoting 28 U.S.C. § 2254(d)). A state court decision is contrary to clearly established federal law if: (1) its conclusion is "opposite to that reached by this Court on a question of law," or; (2) it "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours [the Supreme Court]." Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court can unreasonably apply Supreme Court precedent in two ways: (1) "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407.

II.

On February 4, 2002, a jury in the Court of Common Pleas of Philadelphia found Burrell guilty of six counts of robbery and one count each of aggravated assault, conspiracy, and possession of a criminal instrument. He was sentenced to 23-46 years' imprisonment on March 28, 2002. Soon thereafter, he filed a motion for reconsideration of sentence which was denied.

On direct appeal to the Pennsylvania Superior Court, Burrell argued that the trial court abused its discretion at sentencing by improperly considering his refusal to accept a plea offer and his failure to show remorse, and finally by failing to give proper consideration to his rehabilitation. The Superior Court affirmed the trial court. He did not move for an allowance of appeal to the Pennsylvania Supreme Court.

On June 2, 2004, Burrell filed, in the state court, a pro se petition for collateral relief under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. Burrell claimed that: (1) he suffered an impermissibly suggestive in-court identification process at the preliminary hearing; (2) the trial court improperly admitted a handgun into evidence; and (3) the trial court erred in failing to start the trial promptly as required under Rule 600(g) of the Pennsylvania Rules of Criminal Procedure. His counsel filed an amended petition, which added new claims. One of the new claims averred that the trial court erred in admitting other act evidence and in failing to provide a limiting instruction to the jury regarding the use of this evidence. Additionally, Burrell asserts that trial counsel was ineffective for not appealing the admission of other act evidence and for not requesting a limiting instruction from the judge.

The PCRA court denied post-conviction relief. The Pennsylvania Superior Court affirmed.

Burrell filed a petition for allowance of appeal to the Pennsylvania Supreme Court in which he asserted that the Pennsylvania Superior Court erred in finding that certain documents were not a part of the certified record. The Pennsylvania Supreme Court remanded the matter to the Superior Court. The Superior Court, after reviewing the new information, reaffirmed the decision of the PCRA Court. The Pennsylvania Supreme Court denied Burrell's petition for allowance of appeal.

Magistrate Judge Caracappa addressed all five claims that Burrell initially raised in his timely § 2254 petition. However, he only briefed three of the five claims in his Memorandum of Law, and now only objects to the Magistrate Judge's Report and Recommendation with respect to those same three issues. He contends before this court that: (1) the trial court erred in admitting the introduction of other act evidence and counsel was ineffective for not appealing this issue and for failing to ask for a limiting instruction for the jury; (2) there were violations of due process, equal protection, and the prohibition against cruel and unusual punishment, when the trial judge sentenced him more heavily because of his refusal to accept a plea agreement; and (3) the state court erred in finding that counsel was not ineffective for failing to investigate and present juvenile court and mental health records in connection with his sentencing.

III.

The underlying facts of this case, as established at trial and viewed in the light most favorable to the Commonwealth, are as follows. On April 27, 2000, six college students were socializing in a house located at 534 North 35th Street in Philadelphia. Two of them, Jeffrey MacAdam and Ryan Mulrain, were residents and the four others, Jacob Nye, Gabrielle Moreno, Brendon Mahoney, and John Latacz, were visiting. At approximately 11 p.m. four males, including Burrell, co-defendant Rashad Cunningham, and co-conspirators Syheim Cunningham and Raheem Smith, knocked on the door, and MacAdam admitted them. MacAdam occasionally sold marijuana and believed that the four males were there to make a ...


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