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Davon L. Clark, Ga-5971 v. Superintendent

November 3, 2011

DAVON L. CLARK, GA-5971, PETITIONER,
v.
SUPERINTENDENT, ET AL.,



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

MEMORANDUM and ORDER

Davon L. Clark, an inmate at the State Correctional Institution at Huntingdon, has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Clark is currently serving a fifteen and three-quarter to thirty-one and a half year sentence imposed following his conviction, by a jury, of burglary, attempted rape, aggravated indecent assault and aggravated assault at No. CP-65-CR-3571-2002 in the Court of Common Pleas of Westmoreland County Pennsylvania. This sentence was imposed on September 29, 2004.*fn1

An appeal was taken to the Superior Court in which the questions presented were:

1. Whether the trial court erred in the denial of Appellant=s request to voir dire and/or remove juror Kristina Ghrist given an established prima facia case of juror bias?

2. Whether the trial court erred in the denial of Appellant=s Motion for Judgment of Acquittal/Arrest of Judgment as the verdict was against the weight of the evidence and the evidence was legally insufficient to support the verdict?

3. Whether the trial court erred in denying Appellant=s evidence from establishing Tyrone Moore as the actual perpetrator of this crime?*fn2

On February 10, 2006, the judgment of sentence was affirmed.*fn3 No further relief was sought in the appellate courts of the Commonwealth.

On March 7, 2006, a post-conviction petition was filed and relief was denied on July 16, 2007.*fn4 An appeal was taken to the Superior Court in which the questions presented were:

I. Whether trial counsel is ineffective for failing to request voir dire of a juror and a mistrial immediately upon being made aware of potential for bias or prejudice by said juror.

II. Whether appellate counsel was ineffective for failing to raise alleged ineffectiveness of trial counsel for failing to request a mistrial upon becoming aware of potential bias and prejudice of a juror.

III. Whether the trial court erred as a matter of law in refusing to allow any testimony in regards to potential juror bias.

IV. Whether appellate counsel was ineffective for failing to raise on direct appeal the trial court=s allowance of in court voice identification of the alleged victim on rebuttal.*fn5

On September 30, 2008, the denial of post-conviction relief was affirmed.*fn6

A petition for allowance of appeal to the Pennsylvania Supreme Court was filed in which the sole issue was:

Whether appellant was entitled to an evidentiary hearing regarding possible juror bias related to the claim that trial counsel was ineffective for failure to apprise the trial court in a timely manner of said juror bias.*fn7

On April 28, 2009, leave to appeal was denied.*fn8

The instant petition was executed on April 26, 2010.*fn9 In the petition, Clark contends he is entitled to relief on the following grounds:

1. Whether trial counsel was ineffective for failing to request voir dire of juror and a mistrial immediately upon being aware of ...


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