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Malik Hood v. Louis Folino

March 8, 2012

MALIK HOOD
v.
LOUIS FOLINO, ET AL.



The opinion of the court was delivered by: J. William Ditter, Jr., J.

MEMORANDUM

Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Malik Hood and the response thereto. Hood, who is currently incarcerated in the State Correctional Institution in Waynesburg, Pennsylvania, challenges his incarceration for first degree murder and weapons violations. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY:

The state court summarized the facts leading up to Hood's arrest as follows:

On November 24, 1997, the victim, Anthony Taylor, was seen engaged in a heated argument with Hood standing outside of Taylor's residence at 229 Creighton Street. The argument focused on Taylor's anger over Hood's use of Taylor's property as a headquarters for Hood's drug business. At some point, Taylor entered a neighbor's house and called 911 because "there was going to be some trouble because the kids would not get out of his house." After calling the police, Taylor returned to the street and again argued with Hood outside his residence. Hood pulled out a gun and fired it directly at Taylor, [fatally] wounding him in the heart, liver, leg and stomach. The police immediately canvassed the neighborhood for witnesses but no one came forward.

In August 1999, the police decided to go to the home of each person who had called 911 on the night of the murder. They located two eyewitnesses, Cuddlene Ross and Lisa Wragg. Ms. Ross testified at trial that she saw Hood pull a gun from his waistband and gesture with it, and then she heard a shot and saw the victim fall. She ran inside to call 911 and as she was dialing, she heard several more shots. It is well founded in the evidence that although there were many witnesses to the shooting, very few were willing to come forward and cooperate with the police. The cooperation of Cuddlene Ross, coupled with the understandable fear that ran through her neighborhood, was an admirable example of bravery and social consciousness.

Ms. Wragg, who lived nearby at the time of the shooting, initially told police that Hood was the man she saw shoot and kill Taylor, and she positively identified him by way of a photo array. She also provided the police with a written statement in which she answered with the name "Malik" to the question "Do you know who shot and killed Anthony Taylor on 11/24/97?" At trial, she testified that Taylor was shot by an unidentified individual in a car during a drive-by shooting, however, she acknowledged her earlier written and oral statements to the police, and gave no explanation for the inconsistencies with her trial testimony. She also testified that her mother, Pauline Wragg, had made a telephone call to 911 from the house after the shooting.

During additional interviews with Ross and Wragg, the Commonwealth developed information to support a protective order to keep the identities of these witnesses, as well as their statements, from being disclosed prior to trial because the witnesses were fearful of retaliatory measures. The Honorable Renee Cardwell Hughes granted the Commonwealth's motion for a protective order after an ex parte hearing on August 22, 2000.

Commonwealth v. Hood, 872 A.2d 175, 178-179 (Pa. Super. March 14, 2005) (citations omitted)

On November 4, 2002, a jury in the Court of Common Pleas of Philadelphia County found Hood guilty of first degree murder and firearms violations. The Honorable James A. Lineberger sentenced Hood to life imprisonment on the murder charge and one to two years consecutive sentences for each of the two weapons violations:

Hood filed a direct appeal arguing that:

1) he was deprived of the right to pretrial discovery and his right to counsel because the Commonwealth was permitted to conceal from his trial attorney the identity and statements of key Commonwealth witnesses and because trial counsel was precluded from participating in the hearing where the lower court ruled that this information would be kept from counsel until the time of trial;

2) the trial court erred in allowing the Commonwealth to present testimony regarding the content of police radio calls made to 911 by unidentified witnesses which incriminated Hood where there was no independent proof that these declarants actually witnessed the shooting; and

3) the trial court erred in refusing to grant relief due to prosecutorial misconduct where the cross-examination of a defense alibi witness revealed that Hood had been in prison subsequent to this offense but prior to his arrest.

The Pennsylvania Superior Court affirmed the judgment of sentence on March 14, 2005. Commonwealth v. Hood, 872 A.2d 175 (Pa. Super. March 14, 2005). The Pennsylvania Supreme Court denied Hood's petition for allowance of appeal on October 27, 2005. Commonwealth v. Hood, 889 A.2d 88 (Pa. Oct. 27, 2005).

On June 19, 2006, Hood filed a pro se petition in the state court under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Hood then retained counsel who filed an amended petition claiming ineffective assistance of trial counsel for failure to:

1) challenge the pretrial protective order for the three eyewitnesses;

2) request an extension of the one hour continuance to investigate the three "surprise" witnesses;

3) investigate the crime scene to discredit the witnesses or find additional witnesses;

4) properly question the alibi witness;

5) object to the admission or request a mistrial after the admission of the 911 tapes; and

6) investigate or present the testimony of asserted eyewitness Kerper Yenglee.

The court denied Hood's PCRA petition on November 10, 2008. Petitioner raised one issue on appeal to the Superior Court, that trial counsel was ineffective for failing to investigate or present alleged eyewitness Kerper Yenglee. On August 26, 2009, the Superior Court affirmed the denial of the PCRA petition. Commonwealth v. Hood, 948 A.2d 1014, No. 2741 EDA 2008 (Pa. Super. Aug. 26, 2009) (unpublished memorandum). Hood's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on June 23, 2010. Commonwealth v. Hood, 997 A.2d 1175 (Pa. June 23, 2010).

Hood filed a petition for a federal writ of habeas corpus on July 31, 2010*fn1 ,claiming that:

1) the trial court erred when it permitted the Commonwealth to conceal the identity and police statements of two eyewitnesses thereby abridging Petitioner's right to counsel throughout the entire proceeding;

2) the trial court erred in allowing the Commonwealth to present the content of incriminating 911 calls without any independent proof of the declarants who alleged to have witnessed the shooting;

3) the trial court erred in failing to call a mistrial due to prosecutorial misconduct when the prosecutor repeatedly questioned an alibi witness about Petitioner's prior incarceration and criminal activity;

4) ineffective assistance of trial counsel for failure to effectively challenge a protective order;

5) ineffective assistance of trial counsel due to counsel's failure to request a one hour continuance to investigate an alleged surprise witness, the witness's statements to police, and the alleged threats that led to the protective order;

6) ineffective assistance of trial counsel due to counsel's failure to investigate the crime scene;

7) ineffective assistance of trial counsel due to counsel eliciting character testimony from an alibi witness thereby opening the door to Petitioner's prior convictions;

8) ineffective assistance of trial counsel due to counsel's failure to request a mistrial after the Commonwealth's witness stated that she did not place a 911 call to the police; and

9) ineffective assistance of PCRA counsel due to counsel's failure to properly frame his claim of after discovered evidence offered by eyewitness Kerper Yenglee.

Respondents have filed an answer to Hood's habeas petition asserting that Hood is not entitled to federal habeas relief because his claims are procedurally ...


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