The opinion of the court was delivered by: Rufe,j.
Before the Court are Petitioner Stephen Jones's Objections to the Report and Recommendation filed by United States Magistrate Judge Lynne A Sitarski ("R&R"). Petitioner objects to the Magistrate Judge's legal conclusion as to each claim presented in the Petition. As a result his objections exactly mirror his claims.
On October 10, 2002, at approximately 11:00 p.m., Marcus Miller, David Lee, and Eric Lewis were standing outside the New China Kitchen Restaurant on 17th Street in North Philadelphia, when a group of several young men walked by and entered the restaurant. As the group was walking past the three men, Lee and Miller made comments. Shortly after having entered the restaurant, the group of young men exited, surrounded Miller, Lee, and Lewis, and opened fire. Lewis and Miller were wounded. Lee was killed. Lewis and Miller identified Petitioner as one of the shooters.
On March 16, 2005, following a jury trial presided over by the
Honorable M. Teresa Sarmina of the Court of Common Pleas of
Philadelphia County, Petitioner was convicted of third degree murder,
criminal conspiracy, and two counts of aggravated assault.*fn1
On April 29, 2005, Petitioner was sentenced to an aggregate
term of thirty-five to seventy years of incarceration.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),*fn2 applies to an application for a writ of habeas corpus on behalf of a person "in custody in violation of the Constitution or laws or treaties of the United States" pursuant to a state court judgment.*fn3 Where a habeas petition, such as the one in this case, is referred to a magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1), a district court judge conducts a de novo review "of those portions of the report or specified proposed findings or recommendations to which objection is made" and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."*fn4
A federal court may not grant habeas relief of the claims were "adjudicated on the merits in State court" unless the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5
As stated, Petitioner objects to the entirety of the R&R's legal findings and to the conclusion that the Petition should be denied without any more analysis than his Petition. The Court agrees with the thorough and well-reasoned analysis as stated in the R&R and therefore, approves and adopts the R&R in its entirety. The Court states briefly herein the substantive basis for denial of Petitioner's claims.
A.Claims Regarding Sentencing
Petitioner asserts two types of claims regarding sentencing. First, Petitioner argues that the trial court abused its discretion by sentencing him to the maximum sentence on all charges. He asserts that trial counsel was ineffective for failing to preserve this issue and that appellate counsel were ineffective for failing to properly raise the issue on direct appeal [Claim 1/Objection1]. Second, he submits that the trial judge erred in applying the Deadly Weapons Enhancement ("DWE") during sentencing [Claim 2/Objection 2]. He argues that trial counsel was ineffective for failing to properly preserve an objection to the application of this enhancement [Claim 3(a)/Objection 3(a)].
1. Claim One/Objection One
The severity of a sentence alone does not warrant habeas relief unless the sentence exceeds statutory limits or is wholly unauthorized by federal law.*fn6 The "statutory maximum . . . is the maximum sentence that Judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant."*fn7 Judges have broad authority to exercise discretion in imposing a sentence within a statutory range.*fn8 Moreover, where a state court trial judges exercises this ...