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Eugene Jacobs v. Louis Folino

May 9, 2011

EUGENE JACOBS
v.
LOUIS FOLINO, ET AL.



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

MEMORANDUM

I. Introduction

On March 7, 2007, Eugene Jacobs ("Petitioner") filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming as Respondent Louis Folino, Superintendent of Pennsylvania State Correctional Institution - Green (SCI Greene), and raising five grounds for relief (ECF No. 1). At that point, the state court proceedings had not terminated, and the Court stayed Petitioner's petition and placed the case in suspense on April 25, 2007, directing Petitioner to notify the Court within 30 days of the termination of state court proceedings (ECF No. 4).

On December 28, 2009, instead of sending a notice, Petitioner filed a new § 2254 petition and supporting memorandum of law, docketed as Civil Action Number 09-6143. The Court ordered new petition transferred to Civil Action No. 07-925, removed the case from suspense, and referred the matter to Magistrate Judge Arnold C. Rapoport for a Report & Recommendation ("R & R") on the merits (ECF No. 8). Jacobs filed a memorandum of law in support of his petition on February 19, 2010 (ECF No. 10), and filed additional Motions for the Release of Documents and for Financial Assistance and/or Discovery Materials on February 22, 2010 (ECF Nos. 13, 14). The Government responded to Petitioner's habeas petition on April 5, 2010 (ECF No. 17).

On August 10, 2010, Magistrate Judge Rapoport filed a comprehensive Report and Recommendation (ECF No. 28) and Petitioner filed objections (ECF No. 29). Respondent filed a brief in response (ECF No. 30). Upon careful review of the objections, it appears that Petitioner has filed nineteen objections, but they are highly repetitive and overlapping in their content. It should be noted that although the Petitioner has filed nineteen numbered objections, the objection numbered "8" raises two separate issues, there is no number 11, and there are two objections titled "12." Thus, in all, there are twenty objections.

The Court has ascertained six categories into which all the objections fall, although some objections may involve more than one of the categories. The Court has decided to proceed by analyzing the seven categories set forth below in Section V. After review, the Court concludes that none of Petitioner's objections have any validity and that the Magistrate Judge's Report and Recommendation should be approved and adopted.

II. Factual and Procedural Background

A. Events Leading to Petitioner's Conviction

The Pennsylvania Superior Court outlined the facts of the case in its opinion on direct appeal. Commonwealth v. Jacobs, No. 3402 Phila. 1998 (Pa. Super. Ct. Dec. 1, 1998); Resp. Ex. A; ECF No. 17-1.

On October 1994, Justina Northern attended a party hosted by one of her co-workers, Darlene Bey. Id. at 1. Ms. Bey introduced Ms. Northern to Jacobs, Ms. Bey's cousin. Id. at 1. Jacobs and Ms. Northern developed a "close relationship." Id. On December 26, 1994, Petitioner drove with Ms. Northern to visit a friend of Ms. Northern's, Vicky Butler. Id. Ms. Butler never saw Ms. Northern alive after that day. Id.

On January 16, 1995, Ms. Northern's children gathered, concerned because they had not heard from her for several days and had been unable to reach her by phone. Id. at 1-2. Ms. Northern's son Darrell contacted the building supervisor who, after summoning the police, was able to gain entry. Id.

The officers discovered Ms. Northern's body lying on her bed. She had suffered two gunshot wounds. Id. The police found no sign of forced entry. Id. at 2-3. The door was locked from the outside with a key and the door had been sealed with tape from the inside. The windows were locked and the blinds drawn; pillows had been placed against the fresh air vents and the heat to the apartment had been turned off. Id. The medical examiner determined that Ms. Northern had died as a result of the gunshot wounds between January 9-11, 1995.

When Ms. Northern's children were allowed to enter the apartment, days later, they discovered their mother's 1990 gray Subaru Royale automobile, as well as her MAC card, credit cards, and other items of value from the apartment were missing. Id.

At trial, the Commonwealth presented evidence establishing that Jacobs had used Ms. Northern's MAC card successfully on ten occasions, withdrawing a total of $490.00 from Ms. Northern's account. Id. at 3-4. The assistant vice-president of security for Mellon Bank testified that surveillance videotape captured Jacobs making four withdrawals at the same location on January 11, 1995, using an accurate PIN number. Id. at 4. Jacobs made an additional five withdrawals and one inquiry into account information between January 12 and 13, 1995. Id. The surveillance footage showed a car similar in model, design, and color to Ms. Northern's in the background, behind Jacobs. Id. The Commonwealth also presented evidence that Jacobs had used Ms. Northern's Wanamaker's department store charge card on six separate occasions between January 13 and 14, 1995, signing Ms. Northern's name for each purchase. Id.

On February 21, 1995, Ms. Northern's car was found parked near to the home of Petitioner's girlfriend, Tanya Vaugn. Id. at 5. Police questioned Ms. Vaughn, who initially identified the car as one in which she had ridden with Jacobs and had seen him driving on at least three occasions since the date of the murder. Id.

On February 14, 1995, Petitioner arrived at police headquarters, in response to a telephone request to submit to questioning in Ms. Northern's murder. Id. At first, Petitioner denied possession of Ms. Northern's MAC card and told the police that Ms. Northern did not own such cards. Id. He was then shown the MAC surveillance photos and was given Miranda warnings. He acknowledged his rights, waived his right to remain silent, and provided police with a voluntary statement, admitting that he had taken the MAC card from a table in Ms. Northern's apartment and taken the Wanamaker's card while shopping with Ms. Northern. Id. He stated that he decided to use the cards without her permission when he realized she had not noticed their loss. Id. He admitted using Ms. Northern's car, but claimed she had given him permission. Id. He denied stealing the automobile and claimed not to recognize it in the surveillance photographs. Id. He also denied killing Ms. Northern. Id. He was released. Id.

Police issued a warrant for Petitioner's arrest on April 8, 1995, and arrested him on September 14, 1995. Id. at 6. On October 2, 1996, a jury found Eugene Jacobs guilty of first degree murder, robbery, theft and possessing instruments of a crime. He was sentenced on October 4, 1996, to life imprisonment.

B. State Court Post-Trial Proceedings

Trial counsel filed a timely appeal, but failed to file a brief, resulting in dismissal. Id. at 7. Post-conviction counsel was appointed and filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541-9546, resulting in the reinstatement of Petitioner's right to file an appeal nunc pro tunc on October 20, 1998. The direct appeal presented three issues: (1) whether trial counsel was ineffective for failing to object to allegedly inflammatory and prejudicial statements - characterizing Jacobs as a "Don Juan" and a thief - made by the prosecutor during closing statements, (2) whether the trial court erred in denying Petitioner's Motion to Suppress two statements given by appellant to investigating detectives, and (3) whether the verdict of first-degree murder was against the weight of the evidence. Id. at 7. The Superior Court issued an opinion on December 1, 1999, rejecting Petitioner's arguments. See Resp. Ex. A. Jacobs did not seek review before the Pennsylvania Supreme Court.

On November 20, 2000, Jacobs filed a timely pro se PCRA petition. Commonwealth v. Jacobs, No. 3246 Phila. 2003 (Pa. Super. Ct. Dec, 23, 2003); Resp. Ex. C at 2; ECF No. 17-3.*fn1

Counsel was appointed and filed an amended petition arguing only that appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to investigate alibi witnesses. Resp. Ex. C at 1. After the PCRA court notified Jacobs of its intent to dismiss the petition without a hearing, Jacobs filed a pro se response. Resp. Ex. C at 2. The PCRA court denied the petition on October 2, 2002, and Jacobs filed a pro se appeal on October 21, 2002. Id.

While PCRA counsel remained counsel of record, as informed by the Court of Common Pleas, counsel never entered an appearance before the Superior Court. Jacobs filed a pro se brief raising the following seven issues: (1) the evidence was insufficient to support conviction; (2) appellate counsel provided ineffective assistance for (a) failure to raise trial counsel's ineffectiveness and (b) failure to investigate alibi witnesses, as well as, error by trial court in not permitting Plaintiff to call known alibi witnesses; (3) ineffectiveness of trial counsel for failure to object to court's reasonable doubt instruction; (4) trial court error in allowing violations under Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986), regarding admission of prior inconsistent statements;*fn2 (5) ineffectiveness of trial counsel for failure to inform trial court that Plaintiff was known to juror; (6) ineffectiveness of appellate counsel for failure to raise trial counsel ineffectiveness and failure to object to perjured testimony; and (7) structural error arising out of the failure to disclose helpful evidence to defense. Id. at 3-4.

Finding Jacobs to have been denied his right to PCRA counsel under state law, the Superior Court remanded the case for appointment of counsel. Id. at 5. The PCRA court appointed new counsel, who filed an appellate brief on May 10, 2004. Commonwealth v. Jacobs, 974 A.2d 1184 (Table) (Pa. Super. Ct. April 9, 2009); Resp. Ex. D at 3; ECF No. 17-4. As described by the Magistrate Judge in the R & R,

Thereafter a four year process of counseled filings, pro se filings, remands and appointments of new counsel followed, result[ed] in Petitioner's fourth appointed attorney filing an appellate brief on November 26, 2008 (Resp. Ex E), followed by Jacobs filing a pro se brief requesting another remand to seek new counsel and permission to file a supplemental brief. Resp. Ex. D. at 3. The Superior Court found no basis to order a remand, holding that the supplemental claim Jacobs sought to include, a claim of ineffectiveness of his then current PCRA counsel for failing to assert a claim of actual innocence, was meritless.

R & R at 6-7. The Superior Court considered the three claims raised in a November 26, 2008 counseled appellate brief and rejected all claims as without merit. Resp. Ex. D at 6-7; Resp. Ex.

E.

III. The Parties Contentions

A. Habeas Petitions

The point headings in Petitioner's § 2254 habeas petition list three claims. First, Jacobs asserts that PCRA counsel provided ineffective assistance for failing to raise the ineffectiveness of appellate counsel as a result of the failure to preserve a claim that evidence was insufficient to sustain his conviction because the prosecution admitted it had no evidence that Jacobs was at the crime scene. Pet. at 39. Second, Jacobs asserts that both trial and appellate counsel failed to raise an alibi defense and actual innocence, in spite of willing alibi witnesses. Pet. at 46. Third, Petitioner asserts that the police obtained statements from him in violation of his Miranda rights because he was not permitted to leave the police station until he had given his statement. Pet. at 41. Although not listed in the point headings of his brief, Petitioner asserts two additional claims. Petitioner asserts a layered ineffectiveness claim regarding the failure to raise what he has characterized as a violation under Commonwealth v. Brady, dealing with trial counsel's failure to obtain a curative instruction regarding the Commonwealth's attempt to introduce evidence of a prior inconsistent statement by a prosecution witness. Pet. at 19. Finally, Petitioner asserts trial and appellate counsel failed to inform the court that a juror had neglected to disclose to the trial court that she had grown up with Petitioner and harbored ill feelings towards him. Pet. at 32.

B. Summary of the R & R

Magistrate Judge Rapoport reviewed Petitioner's claims for federal habeas relief and recommended that they be denied. In particular, Magistrate Judge Rapoport concluded that (1) all of Petitioner's claims asserting that PCRA counsel was ineffective are specifically excluded from federal habeas relief under 28 U.S.C. ยง 2554(I); (2) Petitioner's claims related to the sufficiency of evidence, failure to raise an alibi defense, failure to raise objections regarding juror misconduct; and violation of Miranda rights were not exhausted and are now barred; (3) Petitioner's claim regarding direct appeal counsel's failure to raise a sufficiency of the evidence argument was without merit, in light of the "overwhelming," if largely circumstantial, evidence establishing each element of first-degree murder; (4) Petitioner's alibi evidence could not establish a complete alibi for the murder and, therefore, could neither establish actual innocence, nor ineffectiveness of trial or appellate counsel; (5) the Superior Court correctly stated and applied federal constitutional law to determine that Jacobs was not "in custody" during police interrogation; (6) Petitioner did not show prejudice as a result of trial counsel's failure to ...


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