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Jerel Carroll v. David Diguglielmo

April 29, 2011

JEREL CARROLL
v.
DAVID DIGUGLIELMO, ET AL.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J.

MEMORANDUM

Presently before this Court is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Jerel Carroll ("Petitioner") (Doc. Nos. 1 and 6), the Respondents' response thereto ("Response") (Doc. No. 17), and Respondents' supplemental response ("Supplemental Response") (Doc. No. 22). Petitioner is currently incarcerated in the State Correctional Institution in Graterford. For the reasons that follow, the petition will be denied without the need for an evidentiary hearing.

FACTS AND PROCEDURAL HISTORY:

The relevant facts, as set forth by the Pennsylvania Superior Court, are as follows: On December 21, 1997, Kenneth Williams, the decedent, was inside Tex's II Lounge in the 4100 block of Germantown Avenue [Philadelphia, Pennsylvania] talking with Darryl Davis at approximately 12:00 a.m. when an argument between [Petitioner] and Yvonne Jennings erupted.

Messrs. Williams and Davis observed [Petitioner] and Ms. Jennings hitting each other. Concerned for Ms. Jennings safety, the decedent decided to intervene. The bar's bouncer, Anthony Williams identified as "Apple" also intervened. Apple grabbed the woman and the decedent grabbed [Petitioner] by his arms. Apple then exercised control over the situation, and the decedent returned to his conversation with Mr. Davis.

Ms. Jennings was evicted from the bar. Apple blocked [Petitioner's] exit from the bar. [Petitioner] then walked from the entrance of the bar to where the decedent and Mr. Davis were standing and pulled out a gun. Seeing a gun, the decedent jumped behind the bar, and Mr. Davis hid behind a cigarette machine. [Petitioner] reached over the bar and shot three times at the decedent. The decedent was hit twice and died from those gunshot wounds. One bullet entered his left arm, traveled downward where it struck the upper lobe of the left lung and the right ventricle of the heart. The other gunshot entered his abdomen and perforated his colon, kidneys, stomach, and sacrum.

Three .380 [caliber] fired cartridge cases and a bullet were recovered by the police from the bar area. This bullet and the two bullets recovered from the decedent's body were .380 caliber. All three were fired from the same .380 [caliber firearm]. Cassandra Bass, the night shift manager of the bar observed [Petitioner] shooting at the decedent and ran out of the bar to use a pay phone to call the police. Both she and Kenneth Oglesby, an off-duty police officer, identified a black jacket that [Petitioner] was wearing that night.

Commonwealth v. Carroll, 943 A.2d 309, No. 71 EDA 2004, at 1-3 (Pa. Super. Oct, 2, 2007) (unpublished memorandum), attached as Exhibit "D" to Response.

On July 26, 1999, the Honorable Anne E. Lazarus, Court of Common Pleas of Philadelphia County, found Petitioner guilty of first degree murder, related weapons offenses, and reckless endangerment. Judge Lazarus sentenced Petitioner to a term of life imprisonment. On direct appeal, the Pennsylvania Superior Court affirmed the judgment of sentence on January 10, 2001. Commonwealth v. Carroll, 776 A.2d 289, No. 2697 EDA 1999, at 1-4 (Pa. Super. Dec, 13, 2002) (unpublished memorandum), attached as Exhibit "B" to Response. Petitioner failed to file a timely petition for allocatur, and the Pennsylvania Supreme Court denied his petition for leave to file an untimely petition nunc pro tunc on April 20, 2001.

On December 11, 2001, Petitioner filed a pro se petition for post-conviction relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541, et. seq. Counsel was appointed and filed an amended petition. A hearing was held and the PCRA court dismissed Petitioner's petition on March 31, 2004. On October 2, 2007, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Carroll, 943 A.2d 309 (Pa. Super. 2007) (table); No. 71 EDA 2004 (Pa. Super. Oct. 2, 2007), attached as Exhibit "D" to Response. Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court which was denied on March 26, 2008. Commonwealth v. Carroll, 945 A.2d 166 (Pa. 2008); No. 606 EAL 2007 (Pa. 2008) (table).

On May 22, 2008, Petitioner filed a petition for a federal writ of habeas corpus.

Counsel filed a brief in support of Petitioner's petition on September 15, 2008 (Doc. No. 6), advancing the following claims, all of which involve claims of ineffective assistance of counsel:

1. trial counsel provided ineffective assistance when he failed to challenge the credibility of Commonwealth witness Darryl Davis;

2. trial counsel was ineffective for failing to investigate and call witnesses Stephanie Bass and Yvonne Jennings in support of Petitioner's heat of passion, mistaken-belief self-defense, and involuntary intoxication defenses to first degree murder;

3. trial counsel was ineffective for failing to impeach the testimony Officer Kenneth Oglesby;

4. trial counsel was ineffective for failing to raise a voluntary intoxication or diminished capacity defense and for failing to properly investigate such defenses;

5. appellate counsel was ineffective for failing to argue the ineffectiveness of trial counsel with respect to the foregoing and for failing to raise the issue of the prosecution's suppression of evidence;

6. Petitioner was denied due process of law when the Superior Court denied Petitioner access to effective ...


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