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Willie Smith, Cg-6604 v. John Kerestes

August 13, 2012

WILLIE SMITH, CG-6604, PETITIONER,
v.
JOHN KERESTES, ET AL., RESPONDENTS.



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

MEMORANDUM and ORDER

Willie Smith, an inmate at the State Correctional Institution Mahanoy has presented a petition for a writ of habeas. 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.

Smith is serving a life sentence following his conviction by a jury of first degree murder at No. CP-37-CR-993-2003 in the Court of Common Pleas of Lawrence County, Pennsylvania. This sentence was imposed on September 3, 2004.*fn1

An appeal was taken to the Superior Court in which the issues, as set forth by that court were:

1. The trial court erred in determining that the jury questionnaire was appropriate where it failed to ask if a prospective juror could follow the law regarding the testimony of police officers.

2. The trial court erred by admitting autopsy photos of the victim that were not probative of the intent of the defendant.

3. The verdict is against the weight of the evidence where the only Commonwealth witnesses testifying as to the defendant's intent rendered inconsistent testimony.*fn2

On November 23, 2005 the judgment of sentence was affirmed and a petition for allowance of appeal to the Pennsylvania Supreme Court was not filed.*fn3

Smith filed a timely post-conviction petition and relief was denied on December 20, 2006.*fn4 An appeal was taken to the Superior Court in which the issues presented were:

1. Whether Appellant's PCRA counsel was ineffective for failing to call certain material witnesses on his behalf during the PCRA hearing?

2. Whether Appellant's PCRA counsel was ineffective for failing to properly raise and litigate the claim of racial discrimination in the jury selection process?

3. Whether Appellant's PCRA counsel was ineffective for failing to properly rise and litigate a claim challenging the trial court's instruction to the jury on first degree murder under the United States and Pennsylvania Constitutions?

4. Whether Appellant's PCRA counsel was ineffective for failing to raise prior counsel's ineffectiveness in waiving on direct appeal a claim challenging the weight of the evidence to support conviction under Pennsylvania law?

5. Whether Appellant's PCRA counsel was ineffective for failing to properly raise and litigate a claim challenging Appellant's conviction on first-degree murder under Pennsylvania law?

On February 20, 2008, the Superior Court vacated the denial of post-conviction relief in part and remanded the matter to the trial court. The Superior affirmed the denial of relief on the issues relating to the sufficiency of the evidence, the weight of the evidence, the failure to call PCRA witnesses, and jury instructions regarding alcohol/drug use by the petitioner but remanded for a determination of whether or not trial counsel was ineffective for not requesting a jury instruction of the issue of voluntary intoxication and racial discrimination in the jury selection process.*fn5

On remand new counsel was appointed and a second post-conviction petition was filed. On November 14, 2008, relief was denied and subsequently an appeal to the Superior Court was filed in which the issues presented were:

I. Whether error was committed [by the post-conviction court] denying . [the] PCRA petition . in deciding that his claim does not meet the prerequisites for granting PCRA relief; including:

(A). Whether a violation of the Constitution of the United States and/or of the Commonwealth of Pennsylvania occurred in unlawfully sustaining petitioner's guilty verdict and conviction?

(B). Whether . appellant's guilty verdict and conviction have been unconstitutionally sustained as a result of prior defense (trial and/or PCRA) counsel ineffectiveness due to one or more of:

(i) A failure to pursue the claim that the jury venire unlawfully excluded a representative ...


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