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Saleem Butler v. Jerome Walsh

November 30, 2012

SALEEM BUTLER,
PETITIONER,
v.
JEROME WALSH, THE DISTRICT ATTORNEY OF THE COUNTY OF DELAWARE, AND THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA RESPONDENTS.



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

MEMORANDUM

I.INTRODUCTION

This case arises out of petitioner Saleem Butler's conviction in the Court of Common Pleas of Delaware County for conspiracy to commit murder. Butler filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. United States Magistrate Judge Lynne A. Sitarski submitted a Report and Recommendation to the Court, recommending that the Court dismiss the petition as untimely. Butler objected. The Court sustained Butler's objections, held that the petition was timely, and referred the case back to Judge Sitarski to consider "(1) whether any of petitioner's claims are procedurally defaulted, (2) the merits of any of petitioner's claims that are not procedurally defaulted, and (3) any other issues deemed appropriate." Butler v. Walsh, 846 F. Supp. 2d 324, 332 (E.D. Pa. 2012).

Judge Sitarski submitted a Supplemental Report and Recommendation ("R & R") in which she recommended that the Court deny Butler's petition. Butler once again filed Objections. For the reasons that follow, the Court approves and adopts the R & R in full and writes only to explain its decision to overrule Butler's Objections.

II.BACKGROUND

The background of this case is set forth in detail in the R & R and will be recited in this Memorandum only as necessary to address Butler's Objections.

A. Factual Background

Butler was convicted of conspiracy to commit Jamar Johnson's murder on May 17, 2004. (Trial Court Opinion, March 3, 2005 at 2.) Prior to the murder, Johnson had been driving in the City of Chester and pulled over and parked behind Butler's car. (Id. at 3.) He then got out of his car and talked to Butler. (Id.) As Johnson returned to his own car, he was shot and killed. (Trial Court Opinion, March 3, 2005 at 3.) In addition to Butler, there were two other people on the street at the time: Sherwood Bridgeford and Owen Anderson. (Id.) All three were arrested, and Bridgeford was tried as a co-defendant with Butler. (Id. at 5.)

Before trial, Butler moved to dismiss the charges against him pursuant to Pennsylvania Rule of Criminal Procedure 600, which concerns speedy trial rights. (Id. at 7.) The court denied the motion. (Id.)

At trial, Butler's attorney elicited testimony about a .44 caliber gun that was found in Butler's car. (Tr. 5/11/2004 at 312-13.) No .44 caliber bullets or casings were found at the scene. (Id.) Butler's counsel believed that this evidence supported his argument that Butler did not fire any of the shots that killed Johnson. (Id. at 319; Tr. 10/23/2008 at 42-44.) At a "precharge conference," Butler requested that the jury be instructed on the charge of manslaughter, which the trial court denied. (Tr. 5/14/04 at 108-109.)

Butler was found guilty of conspiracy to commit murder. (Trial Court Opinion, March 3, 2005 at 2.)

B. Procedural Background

(a) Direct Appeal

Butler appealed his conviction to the Pennsylvania Superior Court. (Superior Court Opinion, April 6, 2006.) He raised three arguments based on state law: (1) that the trial court erred by failing to grant his motion to dismiss pursuant to Rule 600; (2) that the trial court erred by failing to grant his request to instruct the jury on the crime of manslaughter; and (3) that the evidence was insufficient to support a guilty verdict. (Id. at 7; Appellant's Brief at 3.) The ...


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