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Philmingo Jamison v. John Kerestes

July 6, 2011


The opinion of the court was delivered by: Judge Conner


Presently before the Court is a petition for writ of habeas corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254 by petitioner Philmingo Jamison ("Jamison") and the Report of the Honorable Martin C. Carlson, United States Magistrate Judge, recommending that the Court grant Jamison habeas relief. (Doc. 54). The respondent has filed objections to the magistrate's report and recommendation ("R&R"). (Doc. 58). For the reasons set forth below, the Court will adopt in part, and reject in part the R&R and grant habeas relief.

I. Background*fn1

In the early morning hours of July 19, 2000, in York, Pennsylvania, Dennis Naylor was killed. He was sitting in the front seat of his vehicle, parked in an area known for drug trafficking and violence, when he sustained four gunshot wounds. (Doc. 12-3, at 82-84, 89-100). Two eye witnesses to the crime identified the petitioner, Philmingo Jamison, as the killer. Dereck Sease, the first eyewitness, initially named a New York drug dealer as the killer, but later changed his story and implicated Jamison. (Doc. 12-5, at 12-37). The second eyewitness, Lizabeth Ray, first told authorities that Jamison and another individual both shot at Naylor after an argument erupted, but later claimed that Jamison was the sole shooter. (Doc. 12-7, at 8-31). Police arrested Jamison and searched his home on August 3, 2000, recovering a firearm and ammunition. (Doc. 12-6, at 10-11). Notably, the firearm and ammunition did not match any of the forensic evidence recovered at the scene of the crime. In addition, fingerprints recovered at the scene failed to link Jamison to the killing. (Id.)

When he was initially taken into custody, Jamison informed police that, on the night of the killing, he rode his bicycle to a bar, departed by himself just before closing, and rode straight home. (Doc. 12-6, at 9-10). In part, this account comported with the eyewitnesses that the killer was on a bicycle. (See Doc. 12-5, at 17, 19; Doc. 12-7, at 16, 20). In September 2000, police charged Jamison with first degree murder, third degree murder, involuntary and voluntary manslaughter in connection with the slaying. (Doc. 12, at 1-4).

Trial commenced on June 4, 2001 in the Court of Common Pleas of York County, Pennsylvania. Jamison was represented at trial by now deceased attorney Harold Fitzkee, Esquire ("Attorney Fitzkee"). Prior to trial Attorney Fitzkee noticed the government of his intention to present an alibi defense on behalf of Jamison. (Doc. 12-2, at 19). At trial, however, Attorney Fitzkee made no attempt to introduce an alibi defense. Instead, the arresting officer, who testified during the Commonwealth's case-in-chief, testified to Jamison's initial statement to the police that he was at a bar across town on the night of July 19, 2000, and rode straight home near closing time. (Doc. 12-6, at 9-10). Through this witness the Commonwealth also established that Jamison's home address was within two and one-half blocks of the crime scene. (Doc. 12-6, at 12).

The arresting officer further testified to the search of Jamison's residence that uncovered the weapon and ammunition. (Doc. 12-6, at 10-11). The following exchange occurred:

Commonwealth: Tell the jury what you found in his home, what guns and ammunition you found in his home.

Detective Spence: In a cigar box I found a bunch of nine millimeter rounds. I found a Ruger P95DC, which is a black semiautomatic handgun; another full box of nine millimeter ammo; a pair of silver nick's that was loaded with nine millimeter that was filled; a black bag which contained .45 caliber rounds and nine millimeter rounds; a Foot Locker bag which contained rifle ammunition and a box that had four shotgun rounds and other rifle ammunition.

Commonwealth: So you found ammunition for a nine millimeter, a shotgun, a .45, but you only found one gun?

Detective Spence: Right.

Commonwealth: You didn't find any .40 caliber handgun? Detective Spence: No, I did not.

Commonwealth: Did you find any gun or ammunition that matched any of the evidence in this case, the bullets that killed Dennis Naylor or the gun?

Detective Spence: No, no ammunition or gun that matched the caliber that killed Mr. Naylor.

Commonwealth: In fact, Detective, you initially arrested Jermaine

Johnson for this crime; is that correct?

Detective Spence: Yes, we did. (Doc. 12-6, at 10-11). On cross-examination, Attorney Fitzkee again highlighted that neither the weapon nor the ammunition found in Jamison's home matched the weapon used to kill the victim. (Doc. 12-7, at 1). The Commonwealth further mentioned the weapon and ammunition in its opening and closing statements, both times indicating that it did not match the crime scene evidence. (Doc. 12-3, at 85-86; Doc. 12-7, at 56).*fn2

The two purported eye witnesses also testified as to what they saw in the early morning hours of July 19, 2000. At the time of trial, both eye witnesses were in jail for their own crimes, Sease for selling drugs, Ray for theft, and both hoping that their testimony would result in leniency in the government and court's handling of their own cases. (Doc. 12-5, at 13; 12-7, at 8-10). However, only Ray had an agreement with the government in exchange for her testimony. (Doc. 12-5, at 13, 31; Doc. 12-7, at 9-10). Both eyewitnesses identified the killer as Jamison and explained that he was riding a bicycle. (Doc. 12-5, at 17, 19; Doc. 12-7, at 16, 20).

At the conclusion of the case, the trial judge instructed the jury on the charges against Jamison. When instructing the jury on first degree and third degree murder, the trial judge inappropriately provided the jury with the penalties associated with a conviction of each crime. (Doc. 12-7, at 71-72). However, the trial judge did not inform the jury of the penalties for a conviction of voluntary or involuntary manslaughter, the remaining two charges against Jamison. (Doc. 12-7, at 72-75). When the judge asked counsel if there were any additions or corrections to the charges, Attorney Fitzkee responded in the negative. (Doc. 12-7, at 75). The jury returned a guilty verdict to the charge of third degree murder and Jamison was sentenced to 20 to 40 years imprisonment.

Jamison's initial appeal to the Pennsylvania Superior Court was dismissed on procedural grounds due to counsel's failure to file a statement of errors. (Doc. 12-3, at 19). However, the Pennsylvania Superior Court restored Jamison's direct appeal rights in 2003 subsequent to his filing of a pro se post conviction relief act petition. (Doc. 12-3, at 19). The Pennsylvania Superior Court affirmed his conviction on June 22, 2004. (Doc. 12-3, at 18-25). On July 13, 2005, Jamison filed a second pro se post conviction relief act petition challenging his conviction, raising ineffective assistance of counsel arguments. (Doc. 2-1, at 4). After a hearing on the petition, the trial judge denied Jamison's request for relief. (Doc. 12-3, at 47). The Pennsylvania Superior Court affirmed the denial on December 28, 2007 (Doc. 12-2, at 14-19; Doc. 12-3, at 1-7),*fn3 and the Pennsylvania Supreme Court denied Jamison's request for allocatur on July 16, 2008. (Doc. 12-1, at 50).

Jamison filed the instant petition for writ of habeas corpus on July 8, 2008, asserting many of the same ineffective assistance of counsel claims that he previously presented to the state court in his second post conviction relief petition. (Doc. 1). Jamison claims that his trial counsel was ineffective for: (1) failing to object to the weapon and ammunition testimony and gang affiliation testimony; (2) neglecting to present an alibi defense; and (3) failing to object to the trial court's erroneous jury instruction providing the penalties for first and third degree murder. (Id.) On March 11, 2011, Magistrate Judge Carlson issued a report recommending that the Court grant Jamison relief and remand the matter to the York County Court of Common Pleas for a new trial. (Doc. 54, at 17). Judge Carlson concluded that Attorney Fitzkee provided ineffective assistance of counsel by failing to object to the admission into evidence of references to the "irrelevant" weapon and ammunition discovered in the search of Jamison's residence, the "unexplained and unjustified failure to present an alibi defense," (Doc. 54, at 37), and the failure to object to the jury instruction omitting the penalty information for ...

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