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Jones v. Fisher

United States District Court, E.D. Pennsylvania

February 10, 2014

LEVAR K. JONES
v.
JOHN FISHER, et al.

ORDER

STEWART DALZELL, District Judge.

AND NOW, this 10th day of February 2014, upon consideration of petitioner Jones's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 1), our December 1, 2013 Order referring this matter to the Honorable David R. Strawbridge for a report and recommendation (docket entry # 3) pursuant to Local Rule 72.1 and 28 U.S.C. §636(b)(1)(B), defendants' response (docket entry # 17), Judge Strawbridge's October 16, 2013 report and recommendation ("R&R") (docket entry # 24) to which petitioner filed objections on December 10, 2013 (docket entry # 28), and the Court finding that:

(a) On November 21, 2000, Jones was convicted of second-degree murder, robbery, aggravated assault, possessing an instrument of a crime and criminal conspiracy for his participation in the armed robbery of a convenience store during which the cashier was killed, R&R at 2;

(b) The store owner testified at trial that Jones stood behind the man with a gun and yelled "don't shoot" moments before the gunshot that killed the cashier and another witness who knew Jones identified him by his voice, id.;

(c) At trial, the Commonwealth also showed a security videotape recording of the shooting, twice at regular speed and once in slow motion, extending the 28-second tape over eleven minutes, id. at 13; see also Pet. Obj., Ex. C at 7;

(d) In his habeas petition, Jones raises three claims about the slow-motion showing: he contends first that trial counsel failed to object to the use of the video "as putting an uncharged defendant (shooter) on trial to convict" him; next, that trial counsel failed to request a limiting instruction about the video; and last, he claims that his direct appeal and Post Conviction Relief Act ("PCRA") counsel were ineffective for failing to raise the issue of the video's use in slow motion at trial, R&R at 6;

(e) Judge Strawbridge concluded that Jones's first claim was procedurally defaulted, id., and that Jones could not show, for the other two claims, how he was prejudiced by the inclusion of the slow motion video, id. at 19 and 20, and therefore Judge Strawbridge was unable to recommend that habeas relief be granted on either claim, id.;

(f) Jones contests these conclusions, Pet. Obj. at 3;

(g) Accordingly we "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which" petitioner objects, see 28 U.S.C. § 636;

(h) Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts are to grant considerable deference to state court decisions:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless adjudication of the claim-
(1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) Resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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