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Anwar East v. Gerald Rozum

June 29, 2011

ANWAR EAST,
PETITIONER,
v.
GERALD ROZUM, RESPONDENT.



MEMORANDUM

On May 11, 2010, petitioner Anwar East filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 22, 2010, Magistrate Judge Rice filed a thorough and carefully reasoned Report and Recommendation ("R&R") that recommends denying the petition. See Docket No. 13. On December 16, 2010, East filed objections to the R&R. Having reviewed the R&R, East's objections, and the entire record in this action, the court will adopt the recommendations of the R&R and deny the petition.

I. Background*fn1

In the early morning of October 17, 1997, Leroy Thompson was fatally shot in his car. When police arrived at the crime scene, an eyewitness, Alexander Velez, reported that he had witnessed the shooting from his porch. Velez said that he saw the car stop near his house, and then saw a passenger get out, fire five shots at the driver, and flee. The police recovered five bullet casings from the scene. See R&R at 1--2.

A few months later, on February 26, 1998, East was arrested after a police officer saw him discard a gun. The police recovered the gun, and test firing revealed that it was the same gun used in the murder. Velez identified East as the shooter by picking his picture out of two photographic arrays in July 1998 and by identifying him in a lineup three months later. See id. at 2.

East was charged with first-degree murder and possession of an instrument of crime. The District Attorney's office gave discovery to defense counsel that included, among other things, the statement of Rasheeda Jones. See id. at 3. Jones gave an interview to the police on July 31, 1998, in which she reported hearing that another man, "Marquise," had killed Leroy Thompson. See Docket No. 11-11 (investigation interview record) at 3. Jones said in the interview that she would not describe the source of the information as "a very truthful person." Id. at 5.

East's trial took place from April 11 to 17, 2000. At the outset of the trial, the judge gave the following preliminary jury instruction concerning witness credibility:

You are the judges of the credibility and weight of all the evidence, including the testimony of witnesses. . . . In judging credibility and weight you should use your understanding of human nature and your common sense. Observe each witness as he or she testifies. Be alert for anything in his or her words, demeanor, or behavior on the witness stand, or for anything in the other evidence in the case which might help you to judge the truthfulness, accuracy, and weight of his or her testimony.

Trial Vol. 2 at 10--11.*fn2

Velez, who at the time of the trial was in jail awaiting sentencing on a drug charge, testified that East was the shooter. Defense counsel cross-examined Velez at length regarding his criminal record, his most recent conviction for selling drugs, his pending sentencing, and his history of drug use. East's counsel also returned to the topics of Velez's credibility, prior convictions, and criminal sentencing during closing argument. See R&R at 2.

In addition, the officer who arrested East for possessing the firearm testified that East had pointed the gun in his direction before discarding it. Pursuant to an agreement between counsel, the officer did not mention that he was responding to a report of an armed robbery at the time. Defense counsel did not immediately object to the officer's testimony that East pointed a gun at him, but moved for a mistrial the next day, asserting that the testimony violated the agreement. The trial courtdenied the motion, but offered to give a curative instruction. Such an instruction was later given, with East's approval. See id. at 2--3.

East was found guilty on both counts on April 17, 2000, and was sentenced to life imprisonment for the murder charge and 30 to 60 months of imprisonment for possessing an instrument of a crime, to be served concurrently. See id. at 1. East did not file a timely direct appeal, but his direct appeal rights were later reinstated after he filed a timely petition pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. See id. at 5.

On direct appeal to the Pennsylvania Superior Court, East argued that: (1) the evidence was insufficient to show a specific intent to kill; (2) a mistrial should have been granted because the police officer's testimony violated counsels' agreement; (3) the trial court erred by not giving a bias instruction concerning Velez's criminal charges; (4) the trial court erred by failing to give a cautionary instruction regarding Velez's identification testimony; (5) the trial court erred by giving insufficient jury instructions concerning general witness credibility; and (6) trial counsel was ineffective for failing to request jury instructions concerning Velez's possible bias, general jury instructions concerning witness credibility, and an instruction warning the jury to view Velez's testimony with caution. See Docket No. 11-3 (direct appeal opinion) at 4--5. The Superior Court affirmed the trial court's judgment on April 1, 2004. The Pennsylvania Supreme Court denied East's petition for allowance of appeal on August 5, 2004. See R&R at 6.

East filed a second pro se PCRA petition on January 5, 2005. He was appointed counsel, and his counsel filed an amended petition on May 19, 2006. The amended petition argued that trial counsel was ineffective for (1) failing to request a bias instruction and (2) failing to request an instruction warning the jury to view Velez's testimony with caution. The PCRA court dismissed East's petition on November 19, 2007. The Superior Court affirmed the dismissal on July 16, 2009, and the Pennsylvania Supreme Court denied appeal on December 29, 2009. See id.

East filed a timely pro se federal habeas corpus petition on May 11, 2010. The petition alleges that: (1) the trial court abused its discretion by failing to give jury instructions concerning Velez's credibility and possible bias; (2) the prosecutor violated counsels' agreement by questioning the police officer regarding whether East pointed a gun at him; (3) the prosecutor violated Brady v. Maryland,373 U.S. 83 (1963), by failing to disclose potentially exculpatory evidence; (4) trial defense counsel was ineffective for failing to request jury instructions about Velez's possible bias; (5) trial counsel was ineffective for failing to present alibi evidence; (6) ...


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