PAUL G. SIMMONS Petitioner
PA STATE ATTORNEY GENERAL, et al. Respondents
J. WILLIAM DITTER, JR., J.
Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Paul G. Simmons and Respondents’ answer thereto. Simmons is currently incarcerated in the State Correctional Institution in Huntingdon, Pennsylvania. For the reasons that follow, the petition will be denied.
FACTS AND PROCEDURAL HISTORY:
After a jury trial, Simmons was found guilty of attempted kidnapping, robbery, simple assault, theft by unlawful taking or disposition, conspiracy to commit kidnapping, conspiracy to commit robbery, conspiracy to commit simple assault, and conspiracy to commit theft by unlawful taking. The following facts supporting the convictions were introduced into evidence at trial:
On January15, 2002, Chris Marcano (“Marcano”) and his father, Selwyn Marcano, were outside the Renaissance Bistro (“bar”) in Reading, Pennsylvania. The bar is owned by Selwyn Marcano. Marcano and his father were attempting to unlock the front door when a sports utility vehicle approached, coming from the wrong direction on a one-way street. The vehicle parked in the driveway and two men got out, one of whom was [Simmons]. When they approached Marcano, he asked if anything was wrong, at which point [Simmons] and the other individual began striking Marcano and his father.
Marcano tripped over a flower pot, and [Simmons] was punching and kicking him. The men began dragging Marcano toward the vehicle, at which point Marcano grabbed onto a sign pole. During the altercation, [Simmons] took a bag of money from Marcano’s father. Marcano loosened his grip on the sign pole, and they continued to drag him to the vehicle. Marcano was clinging onto the outside of the vehicle to avoid being shoved inside. There were two other men in the sports utility vehicle; Marcano heard the driver say, “There are too many people, let’s get out of here, ” and the man in the back seat stated, “To hell with it, let’s just shoot him here, shoot him here.” The man in the back seat was identified as co-defendant Maurice Price. Eventually a crowd gathered and the assailants drove away.
Commonwealth v. Simmons, No. 652 MDA 2003, at 1-2 (Pa. Super. April 5, 2004) (unpublished memorandum) (citations omitted). On March 24, 2003, Simmons was sentenced to a term of 11½ to 25 years of imprisonment.
Simmons filed a direct appeal arguing that (1) the evidence was insufficient to support his convictions for attempt to commit kidnapping and conspiracy to commit kidnapping; and (2) ineffective assistance of trial counsel for failing to request a limiting instruction to the jury regarding a witness’s statement. The Pennsylvania Superior Court affirmed the judgment of sentence on April 5, 2004. Commonwealth v. Simmons, No. 652 MDA 2003 (Pa. Super. April 5, 2004) (unpublished memorandum). Simmons did not file a petition for allowance of appeal in the Pennsylvania Supreme Court.
On August 16, 2004, Simmons filed a pro se petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Con. Stat. § 9541, et seq., requesting leave to file a nunc pro tunc petition for allowance of appeal to the Pennsylvania Supreme Court. Simmons’ request was granted. The Pennsylvania Supreme Court denied his petition for allowance of appeal on December 13, 2005. Commonwealth v. Simmons, 703 MAL 2005 (Pa. Dec. 13, 2005).
On May 15, 2006, Simmons filed a second pro se PCRA petition and appointed counsel filed an amended PCRA petition. Simmons presented the following claims:
1) ineffective assistance of counsel for failing to challenge his excessive sentence;
2) ineffective assistance of counsel for failing to have juror number 2 removed from case;
3) trial court error for failure to remove juror number 2; and 4) appellate counsel was ineffective for failing to properly present the aforementioned claims on appeal.
After the court held an evidentiary hearing on August 10, 2009, appointed counsel filed a brief in support of Simmons’ amended PCRA petition on September 17, 2009. The PCRA court denied Simmons’ petition on November 2, 2009. The Pennsylvania Superior Court affirmed the denial of PCRA relief on November 8, 2010. Commonwealth v. Simmons, No. 2049 MDA 2009 (Pa. Super. Nov. 8, 2010). The Pennsylvania Supreme Court denied Simmons’ petition for allowance of appeal on March 1, 2011. Commonwealth v. Simmons, No. 877 MAL 2010 (Pa. March 1, 2011).
Thereafter, Simmons filed this timely petition for a federal writ of habeas corpus claiming:
1) trial and appellate counsel were ineffective for failing to challenge his excessive sentence;
2) trial court error in failing to remove juror number 2;
3) trial counsel was ineffective for failing to remove juror number 2 thereby violating his right to a fair and impartial jury; and
4) the evidence at trial was insufficient to support his convictions for attempted kidnapping.
Respondents have filed an answer to Simmons’ habeas petition asserting that Simmons is not entitled to federal habeas relief because his claims are meritless.
A. Standard of Review
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petition for habeas corpus may only be granted if (1) the state court’s adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, “clearly established Federal law, as determined by the Supreme Court of the United States;” or if (2) the adjudication resulted in a decision that was “based on an unreasonable ...