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Raymond Lopez v. Louis Folino

August 30, 2012

RAYMOND LOPEZ
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 Raymond Lopez and the response thereto. Lopez, who is currently incarcerated in the State Correctional Institution in Greene County, Pennsylvania, challenges his incarceration for first degree murder. For the reasons that follow, the petition will be denied.

FACTS AND PROCEDURAL HISTORY:

The state court summarized the facts as follows:

In September 2000, [Lopez], his nephew Emilio (sic) Martinez, and Brithard Bullard (aka "JR") drove from Camden, New Jersey to Philadelphia to purchase drugs. After purchasing PCP and heroin, [Lopez] suggested they go to Hunting Park and smoke the drugs. Bullard drove, with Martinez seated in the front passenger seat and [Lopez] seated behind Bullard. While parked, [Lopez] distracted Martinez by telling him to look in the bushes. [Lopez] then shot Bullard in the back of the head with a handgun, killing him instantly. Martinez went into shock, and [Lopez] pulled him out of the car and ordered him to go with him. The two men ran several blocks, got into a car, and drove back to New Jersey. [Lopez] threatened Martinez not to talk about the killing.

In 2001, [Lopez] was imprisoned at Trenton State Prison for an unrelated crime. In May 2001[,] [Lopez] appeared, with counsel, at an extradition hearing for him to stand trial in Philadelphia for the murder of Bullard. [Lopez] invoked his rights to remain silent and to have counsel present both orally and by signing a non-waiver of rights form. In July 2001, Detective Dougherty and another Philadelphia detective transported [Lopez] from Trenton to the Philadelphia police station. At the station, Detective Dougherty started a biographical information form for [Lopez], which becomes a part of every homicide file. Detective Dougherty was not assigned to or familiar with the case. As Detective Dougherty asked [Lopez] how to spell his name and for his date of birth, [Lopez] volunteered he wanted to "tell the truth about what happened to JR." Detective Dougherty asked [Lopez] to be patient and told him that he first had to complete the biographical form and tell him certain things before [Lopez] could speak about the case. Detective Dougherty left the room and familiarized himself with the case. When he returned, Detective Dougherty read [Lopez] his Miranda rights. Detective Dougherty then reviewed a preprinted form with [Lopez], asking if Lopez understood each of his Miranda rights. In pertinent part, [Lopez] indicated he understood his right to speak with a lawyer before answering police questions, and that a lawyer would be provided to him if he could not afford one. [Lopez] indicated he did not want to speak to a lawyer or have one present during questioning. [Lopez] memorialized his understanding by writing "yes" and "no' where appropriate and signing the form. [Lopez] then gave a statement to Detective Dougherty, telling him another individual had shot Bullard.

Commonwealth v. Lopez, 859 A.2d 832, No. 1544 EDA 2003, at 1-3 (Pa. Super. July 22, 2004) (unpublished memorandum).

On April 25, 2003, a jury in the Court of Common Pleas of Philadelphia County found Lopez guilty of first degree murder. The Honorable Pamela Pryor Dembe sentenced Lopez to life imprisonment.

Lopez filed a direct appeal arguing that:

1) he was deprived of the right to remain silent and his right to counsel because the police failed to honor the invocation of his rights and re-initiated questioning rendering his statements involuntary and constitutionally invalid;

2) the trial court erred in ruling that the Commonwealth could introduce evidence of Lopez's prior contact with the criminal justice system if the defense opened the door by attacking the voluntary nature of Lopez's statement to police;

3) the trial court erred in denying the defense motion to redact portions of Lopez's statement to delete references to money owed to pay for a lawyer;

4) the trial court erred by denying defense counsel's request to call two witnesses; and

5) the trial court erred in instructing the jury.

The Pennsylvania Superior Court affirmed the judgment of sentence on July 22, 2004. Commonwealth v. Lopez, 859 A.2d 832 (Pa. Super. July 22, 2004). The Pennsylvania Supreme Court denied Lopez's petition for allowance of appeal on June 6, 2005. Commonwealth v. Lopez, 875 A.2d 1074 (Pa. June 6, 2005).

On October 14, 2005, Lopez filed a pro se petition in the state court under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. asserting the following claims:

1) all previous counsel were ineffective for failing to raise and preserve a claim that the evidence was insufficient to support a verdict;

2) appellate counsel was ineffective for failing to argue on appeal that trial counsel was ineffective for failing to call Detective Kean;

3) appellate counsel was ineffective for failing to argue on appeal that the prosecutor deprived him of a fair trial by vouching for the credibility of his witnesses;

4) appellate counsel was ineffective for failing to argue on appeal that trial counsel was ineffective for not objecting to the court's charge on accomplice liability;

5) all previous counsel were ineffective for failing to argue that Lopez's statement should have been suppressed as it violated his rights under Miranda;

6) all previous counsel were ineffective for failing to object at trial to the removal of persons from the courtroom; and

7) all previous counsel were ineffective for failing to allege that the prosecutor "suborned" perjury with respect to Emiliano Martinez's testimony.

Counsel appointed to represent Lopez in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), certifying that he had reviewed the entire record and concluded that there were no meritorious issues to advance before the PCRA court. The court denied Lopez's PCRA petition on June 26, 2006.

Lopez raised three issues on appeal to the Superior Court:

1) ineffective assistance of trial counsel due to counsel's failure to raise a defense consistent with Lopez's version of events;

2) due process violations caused by prosecutorial misconduct when the prosecutor gave his opinion that Lopez's version of the events was a lie and that the murder was an execution with Lopez as the executioner; and

3) the trial court erred by failing to grant a mistrial when trial counsel objected to the prosecutor vouching for the credibility of its witness, Emiliano Martinez.

On December 20, 2007, the Superior Court affirmed the denial of the PCRA petition. Commonwealth v. Lopez, 945 A.2d 764, No. 2132 EDA 2006 (Pa. Super. Dec. 20, 2007) (unpublished memorandum). Lopez's petition for allowance of appeal to the Supreme Court of Pennsylvania was denied on May 6, 2008. Commonwealth v. Lopez, 947 A.2d 736 (Pa. May 6, 2008).

Lopez filed a petition for a federal writ of habeas corpus on March 2, 2009,*fn1 claiming that:

1) he was deprived of the right to remain silent and his right to counsel because the police failed to honor the invocation of his rights and re-initiated questioning rendering his ...


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