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Derrick Harvey v. Joseph Folino

September 28, 2012

DERRICK HARVEY
PETITIONER,
v.
JOSEPH FOLINO, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Legrome D. Davis, J.

ORDER

This petition for a writ of habeas corpus concerns the quality of representation Petitioner Derrick Harvey ("Harvey" or "Petitioner") received during his 1998 trial in the Philadelphia County Court of Common Pleas. It also brings into close focus the Antiterrorism and Effective Death Penalty Act of 1996's ("AEDPA") mandated deference to the factual findings of a state court. Presently pending is a Report and Recommendation submitted by Magistrate Judge Arnold C. Rapoport which, after careful analysis, recommends denial of the petition. (Doc. No. 44).

The procedural history of this action is as follows. Following a bench trial in the Philadelphia Court of Common Pleas, Harvey was convicted of first degree murder and a sentence of death imposed. Upon appeal to the Pennsylvania Supreme Court, the judgment of sentence was vacated and the matter remanded for a new sentencing hearing. The trial court subsequently imposed a sentence of life imprisonment and Harvey filed a timely Post-Conviction Relief Act ("PCRA") petition. Post-conviction counsel filed a Finley, or "no-merit" letter, and in 2009 the Pennsylvania Superior Court denied Petitioner's request for collateral relief. Thereafter, pursuant to the provisions of 28 U.S.C. § 2254, Harvey filed the instant petition for a writ of habeas corpus. We referred the matter to the magistrate, who has submitted a Report and Recommendation ("R & R") and the Petitioner has interposed objections. (Doc. No. 47). We approve and adopt the R & R and deny the petition for a writ of habeas corpus. The request for a certificate of appealability is denied.

We write simply to supplement Judge Rapoport's conclusions, in particular to contribute our views on how the facts of Petitioner's offense severely curtailed the strategic options available to trial counsel. Only from an understanding of the facts of Petitioner's case can a reviewing court truly appreciate the difficulty trial counsel faced in mounting a viable defense. Context truly matters. While certain aspects of the proceedings in the state court were atypical, it is our firm conclusion that this petition should not be granted. As we examine the performance of counsel, we must appreciate the unassailable nature of the government's evidence and also that this strong evidence substantially restricted counsel's strategic options. In sum, the quantum and quality of the government's evidence contributes to the template against which we measure counsel's performance and determine whether a deficient performance or ensuing prejudice is present.

The following facts underlie the present petition. On January 10, 1998, Petitioner shot his cousins, Shawn and Charity Wilkins, in their home in Philadelphia. Charity, who lost sight in her left eye as a result of this incident, was thirteen and her brother Shawn, who was killed, was twenty-two. Immediately prior to the homicide, Charity was on the first floor of the home baby-sitting two young children, aged three and four. When Petitioner and her brother Shawn arrived at the house, both men immediately went upstairs to the decedent's bedroom and closed the door. A few minutes later, Charity heard gunshots. She promptly headed upstairs, retrieved the sleeping child, and returned downstairs. Harvey, armed with two guns, then came on the staircase. He pointed one gun at Charity and commanded her to come upstairs. Charity complied, and sat on the bed in Shawn's bedroom. There, Charity saw her brother motionless in the corner, although she did not appear to realize that he was dead. Petitioner, still pointing the guns at her, ordered her to lie on the floor. When Charity refused, telling Harvey she was watching the children and had to go downstairs to tend to them, he directed her to lie on the bed. When she complied, he shot her in the left temple causing her to lose consciousness. She awakened to the sound of banging on the front door and went downstairs. She opened the front door and met another cousin, Joseph Seagraves. He took her to the home of a neighbor and the neighbor put a towel around Charity's head. The three sat on the porch and awaited transportation to the hospital. Charity was admitted to Children's Hospital for sixteen days. Having sustained three separate gunshot wounds to the head, she had lost sight in her left eye. Homicide detectives interviewed her in the hospital on January 11, 1998, the day after she was shot.

On January 12, 1998, two days after the shootings, Philadelphia Police Homicide Detective Joseph Bamberski spoke with Petitioner. When he learned that Harvey was sixteen, Bamberski arranged for Harvey's mother to come to the station. The detective advised Petitioner's mother that her son was going to be arrested for murder and allowed the two to speak privately for thirty to forty-five minutes. When their private conversation concluded, both advised the detective that Harvey wished to make a statement. According to Harvey's mother, the detective simply advised Harvey to tell the truth. Following the appropriate warnings and waiver of rights, Harvey gave a statement which was recorded verbatim. All pages of the statement were initialed by the Petitioner and his mother and, after review of the final statement, neither made any corrections. In this statement, Harvey advised the detective that when he entered the Wilkins residence with Shawn, "his little sister," Charity, was in the home. (October 27, 1998 Trial Tr. at 39). The two men went upstairs and Harvey gave Wilkins currency in exchange for drugs. Shawn counted the money, which was:

"a little off, so he smacked me. Then he pulled his gun out of his pocket and set it on the bed. Then he started walking towards me, and I grabbed the gun that was on the dresser and I shot him. I aimed the gun at him first, and I told him to back up. He was backing up, and I thought he was going to reach for his gun, so I shot him.

Then his little sister came running up the steps. She pushed open the door, and that's when I shot her. After I shot her, I laid Charity on the bed. And there were two little kids downstairs who were crying, so I went downstairs and set the kids on the couch. I heard somebody knocking on the door, so I left out the back." (October 27, 1998 Trial Tr. at 39).

The remaining Commonwealth evidence was presented by way of stipulation. Following transportation of the body of Shawn Wilkins to the Office of the Medical Examiner, a search was conducted and the victim did not have any weapons or cash. A search of the rear of the property did not yield any physical evidence, although the rear door was "hanging on its hinges." (October 27, 1998 Trial Tr. at 13). Police found six fired cartridge cases in the decedent's bedroom, four .40 caliber jackets and two .22 caliber casings. Nine packets of cocaine and one mutilated projectile were also found in the bedroom. (October 27, 1998 Trial Tr. at 13-14).

The testimony of the two pathologists who conducted the autopsy was also presented by stipulation. Their examination revealed that Wilkins had been shot six times, twice in the back of the head, once in the lip, twice in his rear torso and once in the upper arm. (October 27, 1998 Trial Tr. at 16). Evidence of close range firing was absent. Wilkins had no trace of drugs or alcohol in his system. Three mutilated projectiles were recovered from Wilkins' body. (October 27, 1998 Trial Tr. at 17). Charity was shot three times, once in the temple, the cheek and the neck.

In his pro se § 2254 petition, Harvey asserted six separate claims of ineffective assistance of trial counsel. In his claims, Petitioner contends that trial counsel failed to: (1) properly consult with Petitioner prior to trial; (2) investigate the credibility of Petitioner's confession before advancing a self-defense claim; (3) investigate and seek to suppress the involuntary confession;

(4) obtain Petitioner's consent prior to entering into factual stipulations; (5) interview and effectively cross-examine the Government's primary witness, Charity Wilkins; and (6) identify, during a pretrial investigation, the facts which ultimately made the pursuit of the self-defense claim untenable.

Following submission of the R & R Harvey interposed two additional objections, contending that Magistrate Rapoport erred because he "should have reviewed Harvey's claims de novo." (Doc. No. 47, at 7.) He also contends that the magistrate erred in concluding that certain claims had been litigated in state court. (Doc. No. 47, at 3-7.) We disagree and find that because the ...


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