The opinion of the court was delivered by: Eduardo C. Robreno, J.
James Washington ("Petitioner") is a prisoner at State Correctional Institution Rockview. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Habeas Petition") challenging his custody. U.S. Magistrate Judge Strawbridge recommended denial of the Habeas Petition and Petitioner raised eleven objections. For the reasons that follow, the Court will sustain Petitioner's objection regarding denial of his Confrontation Clause rights and issue a conditional writ of habeas corpus to free Petitioner from custody unless he is retried by the Commonwealth within 120 days.
Petitioner is currently serving two consecutive life sentences and a concurrent term of ten to twenty years of imprisonment based on convictions for second-degree murder, robbery, and criminal conspiracy. Report & Recommendation 2, ECF No. 15 [hereinafter "R&R"]. The convictions stem from the robbery and murder of two employees of a Dollar Express store in Philadelphia, Pennsylvania, on February 24, 2000. Id. at 1. Petitioner, Willie Johnson, Romont Waddy, and James Taylor conspired to commit the robbery. Id. at 2. Taylor, a former employee of the store, conceived of the plan to commit the robbery based on his knowledge of the store and its operations. Id. Petitioner, the only conspirator with access to a vehicle, would drive. Id. When the conspirators executed the plan, Johnson, who carried a firearm, murdered the two employees with single shots to the head. Id. Thereafter, Taylor learned that he became a person of interest in the murder, subsequently surrendered, and provided a statement to the police. Id. He entered into a plea agreement whereby he agreed to testify against his co-conspirators in exchange for a sentence of imprisonment not more than 55 to 110 years. Id.
Petitioner, Johnson, and Waddy were tried together in the Philadelphia Court of Common Pleas before the Honorable Steven R. Geroff. Id. The Commonwealth sought the death penalty against Johnson. Id. On the fifth day of jury selection, Waddy's counsel, joined by counsel for co-defendants, objected that the prosecutor employed peremptory challenges in a racially discriminatory manner. Id. at 3. On the record, Judge Geroff allowed the prosecutor, Judith Rubino, Esquire, to explain her rejection of eleven Africa-American venire persons. Id. After concluding that the prosecutor did not engage in race-based jury selection, the court proceeded with jury selection.*fn1 Id.
On November 5, 2001, the jury found Petitioner guilty of two counts of second-degree murder, two counts of robbery, and one count of criminal conspiracy. Id. On July 31, 2003, the Pennsylvania Superior Court affirmed his convictions. Commonwealth v. Washington, 832 A.2d 545 (Pa. Super. Ct. 2003) (table). And on March 16, 2004, the Pennsylvania Supreme Court denied Petitioner's direct appeal. Commonwealth v. Washington, 847 A.2d 1285 (Pa. 2004) (table).
On January 24, 2005, Petitioner collaterally attacked his convictions under the Pennsylvania Post Conviction Relief Act ("PCRA"). The PCRA court denied Petitioner's PCRA petition. Commonwealth v. Washington, No. CP-51-CR-1003091-2000, slip op. at 1 (Pa. Ct. Com. Pl. June 9, 2008). The Pennsylvania Superior Court affirmed. Commonwealth v. Washington, 981 A.2d 938 (Pa. Super. Ct. 2009) (table). And on May 18, 2010, the Pennsylvania Supreme Court denied his appeal. Commonwealth v. Washington, 995 A.2d 353 (Pa. 2010) (table).
On June 10, 2010, Petitioner filed the instant Habeas
Petition that raises claims of ineffective assistance and constructive denial of counsel and claims that various trial court decisions violated his constitutional rights. Habeas Pet. 11. The Court referred the matter to Magistrate Judge Strawbridge for a report and recommendation. Judge Strawbridge issued a fifty-page report recommending denial of the Habeas Petition on the merits. Petitioner timely objected. Pet'r's Objections 1, ECF No. 18. And the matter is now ripe for disposition.*fn2
The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. Section 2254 R. 10 ("A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636."); see also 28 U.S.C. § 636(b)(1)(B) (2006 & Supp. IV 2011). A prisoner may object to the magistrate judge's report and recommendations within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. R. 72.1(IV)(b). The Court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court does not review general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) ("We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific." (internal quotation marks omitted)). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Therefore, the Court will conduct a de novo review of those portions of the Report and Recommendation to which Petitioner objects.
On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d) (2006).
Petitioner raises eleven objections to the Report and Recommendation. For the following reasons, the Court will sustain objection ten, which relates to Petitioner's confrontation rights, and issue a conditional writ of habeas corpus on that ground. For the sake of completeness, the Court considers and overrules Petitioner's remaining objections.
A. Co-Defendant's Redacted Statement
In his tenth objection, Petitioner argues the state trial court violated his confrontation rights under the Sixth Amendment.*fn3 On direct appeal, the Pennsylvania Superior Court rejected Petitioner's claim that the trial court violated his rights under the Confrontation Clause by allowing a witness to read from parts of co-defendant Waddy's redacted confession. Commonwealth v. Washington, No. 723 EDA 2002, slip op. 4-5 (Pa. Super. Ct. July 31, 2003). Names and nicknames in the statement were replaced with words such as "the other guy" and "the driver" before a witness read from the statement in response to questions. R&R 47. And before the witness read parts of the statement to the jury, Judge Geroff instructed the jury that the evidence relates only to defendant Waddy and not any other defendant. Trial Tr. vol. 1, 58:7-19, Nov. 1, 2001.
Judge Strawbridge determined that the Pennsylvania Superior Court's decision was not contrary to, or an unreasonable application of, federal law. Judge Strawbridge noted that co-defendant Waddy's statement was not subject to the requirements of the Confrontation Clause because co-defendant Waddy did not testify against Petitioner, either in person or through an admitted statement. R&R 49. Although Taylor identified Petitioner as "the driver" at trial, only by inference could Waddy's redacted statement refer to Petitioner. Moreover, Taylor was subject to extensive cross-examination. Therefore, Judge Strawbridge determined that Petitioner had no right under the Confrontation Clause to cross-examine co-defendant Waddy regarding the redacted statement. Id.
Upon de novo review of Judge Strawbridge's Report and Recommendation, the Court holds that Petitioner was deprived of his rights under the Confrontation Clause when the trial court allowed a witness to read from co-defendant Waddy's redacted statement. "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Because the right of confrontation includes the right to cross-examine adverse witnesses, "where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand." Richardson v. Marsh, 481 U.S. 200, 206 (1987).
Generally, witness testimony in a joint trial is not "against" a defendant when the trial court instructs the jury not to consider the testimony against that defendant. See id. This is so because the court presumes that "the jury can and will follow the trial judge's instructions to disregard such information." Bruton v. United States, 391 U.S. 123, 135 (1968). "Nevertheless, . . . there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." Id. Thus, in Bruton, the Court held that a defendant is deprived of his right to confront witnesses against him when a ...