United States District Court, W.D. Pennsylvania
LISA PUPO LENIHAN, Chief Magistrate Judge.
Steven Mykel Bailey ("Petitioner"), a state prisoner incarcerated at the State Correctional Institution at Pittsburgh, has petitioned this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Petition will be denied.
Petitioner challenges his 2005 convictions for murder in the first degree, four counts of recklessly endangering another person, and carrying a firearm without a license. In his Petition, he raises the following claims for relief:
1. Trial counsel was ineffective for failing to request a jury instruction regarding Tammy Brown and Kelly Shipton denying that they told police that Petitioner stated before the shooting of Steele that "his days are numbered."
2. Trial counsel was ineffective for failing to request a jury instruction regarding voluntary manslaughter, imperfect self-defense and self-defense.
3. Trial counsel was ineffective for failing to request a jury instruction regarding the crimen falsi conviction of Charmaine Holloway.
4. Appellate counsel was ineffective for failing to raise a sufficiency claim regarding first-degree murder.
5. Trial counsel was ineffective for failing to properly communicate and consider the plea offer, and appellate counsel was ineffective for failing to raise this claim in post-sentence motions.
6. Trial counsel was ineffective for failing to investigate Petitioner's mental health conditions at the time of the shooting, which included severe depression and attention deficit disorder, and appellate counsel was ineffective for failing to raise this claim in post-sentencing motions.
7. Trial counsel was ineffective for forcing Petitioner to testify at trial, and appellate counsel was ineffective for failing to raise this claim.
8. Trial counsel was ineffective for failing to request a cautionary instruction regarding rebuttal witness Charmaine Holloway, and appellate counsel was ineffective for failing to raise this claim.
9. Trial counsel was ineffective for failing to properly cross-examine Commonwealth witness Coley Davis, and appellate counsel was ineffective for failing to raise this claim.
10. Trial counsel was ineffective for failing to colloquy Juror Number 10 and appellate counsel was ineffective for failing to raise this claim.
11. Trial counsel was ineffective for failing to assure the presence of Judge Nauhaus at jury selection since Petitioner never waived his right to have a judge present.
Relevant Facts and Procedural History
The facts as recited by the Pennsylvania Superior Court are as follows:
On the afternoon of June 8, 2004, Derrick Steele, the victim, accosted Tammy Brown, [Petitioner's] fiancee, while she was walking with her girlfriend, Kelly Shipton, and three children on Perrysville Avenue in the city of Pittsburgh. As Ms. Brown walked down the street carrying her and [Petitioner's] one-year-old daughter, the victim began yelling at Ms. Brown, threatening to kill [Petitioner] and demanding to speak with him concerning a long-standing argument between the two men. As the confrontation escalated, Ms. Brown became hysterical and had Ms. Shipton call [Petitioner] on Ms. Brown's cell phone. When he answered the phone, [Petitioner] could hear the victim shouting, "Where is your man? Get your man[!] Tell that mother fucker he's dead, " could hear his fiancee yelling "get off me, stop hitting me, " and heard his daughter crying.... A neighborhood fire station captain observed this "heated argument" and watched the victim walk away from Ms. Brown as a police car approached. Ms. Brown walked to a nearby pharmacy with Ms. Shipton and the children.
Within a few minutes, [Petitioner] arrived at the pharmacy, picked up Ms. Brown, Ms. Shipton and the three children and drove them to Ms. Brown's house. [Petitioner] then drove a short distance to Mr. Bill's Tap & Grill Bar, where he pulled up parallel to the front entrance, put his foot on the brake, and saw the victim outside with two other men. [Petitioner] then reached across the front passenger seat of his car, aimed his gun in the direction of the men, and fired two shots. As the victim retreated into the bar, [Petitioner] fired two more shots after him into the glass in the door to the bar. One of these bullets penetrated the victim's head, killing him instantly.
As a result of this incident, [Petitioner] was charged with one count each of criminal homicide and carrying a firearm without a license, and four counts of recklessly endangering another person. The Honorable Lester G. Nauhaus presided over [Petitioner's] five-day jury trial in January 2005. The Commonwealth presented the testimony of several witnesses, including that of the victim's girlfriend, Charmaine Holloway. Ms. Halloway [sic] related an incident which had occurred seven months earlier when [Petitioner] had pulled a gun and threatened the victim.
In his defense, [Petitioner] testified that he had been threatened by the victim several times over the last few months, that he was scared of the victim, and that he had been shot at by the victim in March 2004. In addition, [Petitioner] testified that on the day of the shooting, as he pulled up in front of the bar, he saw the victim reach under his shirt for a shiny object that [Petitioner] thought might be a nickel-plated gun based upon previous confrontations with the victim. Finally, both Ms. Brown and Ms. Shipton testified on [Petitioner's] behalf and provided their account of events concerning [Petitioner] and the victim. The trial court instructed the jury on first-degree murder, third-degree murder, voluntary manslaughter and involuntary manslaughter. On January 10, 2005, the jury returned its guilty verdicts.
On March 15, 2005, the court sentenced [Petitioner] to life imprisonment without the possibility of parole for first-degree murder and to concurrent sentences of one to two years' incarceration for the remaining five convictions. [Petitioner] obtained new counsel and filed post-sentence motions raising claims of ineffective assistance of trial counsel. Judge Nauhaus presided over [Petitioner's] August 16, 2005 hearing on the post-sentence motions, which the court subsequently denied.
(ECF No. 8-4 at 1-4.)
On April 17, 2007, the Superior Court of Pennsylvania affirmed the judgment of the Court of Common Pleas in affirming Petitioner's judgment of sentence. Petitioner filed a Petition for Allowance of Appeal, which was denied by the Supreme Court of Pennsylvania on December 20, 2007.
On October 1, 2008, Petitioner, through appointed counsel, filed an Amended Petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann §§ 9541 et seq. On January 29, 2009, Judge Nauhaus denied relief.
Petitioner filed a timely Notice of Appeal and on October 1, 2010, the Superior Court affirmed the judgment of the PCRA Court denying him post-conviction relief. On March 30, 2011, the Supreme Court of Pennsylvania denied his Petition for Allowance of Appeal.
On April 19, 2011, Petitioner filed a second PCRA petition, pro se, alleging the existence of newly discovered evidence. He submitted the testimony of a witness, Mark Brown, who indicated that he did not testify truthfully at the trial and saw another witness, Cooley Davis, pick up a gun from the victim, and then run from the scene. As of the filing of the Petition for Writ of Habeas ...