United States District Court, W.D. Pennsylvania
RONALD G. WARRICK, Petitioner,
STATE OF PENNSYLVANIA and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
LISA PUPO LENIHAN, Chief Magistrate Judge.
Ronald G. Warrick ("Warrick" or "Petitioner") has petitioned the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his May 21, 2007 judgment of sentence for Third Degree Murder at case number XXXXXXXXX in the Court of Common Pleas of Allegheny County. He was sentenced to a term of incarceration of not less than twenty (20) years nor more than forty (40) years. In his petition, he raises two claims: (1) that the trial court failed to reinstruct the jury on voluntary manslaughter, and (2) that the evidence was insufficient to convict him for third degree murder. The petition, however, is untimely and must be dismissed.
A. Relevant Factual History
As set forth by the Pennsylvania Superior Court in its Memorandum Opinion dated February 17, 2010, a summary of the pertinent facts are as follows:
On June 6, 2005, Othmane Lahmamsi ("the victim") and his friend, Mohcine El Joufri ("El Joufri") went to get lunch together. The victim was driving his uncle's car. While en route, the victim received a call on his cell phone. After talking with the caller, the victim informed El Joufri that they had to make a "quick stop" so that he could give six pounds of marijuana to "Dave." According to El Joufri, although he had known Dave to buy an ounce of marijuana from them on previous occasions, they had never dealt with such a large quantity of the contraband. El Joufri did not know Dave's last name that day, but later learned that his name was David King ("King"). El Joufri testified that there had been no friction or violence during any of the prior drug transactions.
In a second call, King gave the victim directions to Dix Way, an alleyway off of Larimer Avenue. As they drove down the alley, El Joufri saw a black male whom he did not recognize. After passing this man, the victim and El Joufri saw King waving for them to stop. Once stopped, King introduced the black male ([Warrick]) to them. According to El Joufri, there was a man on the nearby porch who [Warrick] referred to as his landlord. Because [Warrick] did not want to "do this" in front of his landlord, he told the victim to back up his car, and the victim complied. King then entered the rear passenger-side of the vehicle, while [Warrick] got in the car and sat behind the victim.
El Joufri testified that, after entering the car, [Warrick] pulled a gun from his waistband and said, "Sorry to do this to you, but this is how it's going down." As he continued to point the gun back and forth between the victim and El Joufri, [Warrcik] opened the car door and got partially out of the car, his right leg remaining inside the vehicle. [Warrick] then demanded that the victim give him the keys to the car and that the victim pop the trunk. When they told him they did not have anything, [Warrick] responded, "I'm not fucking kidding you. I'll blow your head off. Give me the keys."
The victim then began to open his car door and told [Warrick] that he would give him the keys. He also looked back at King and said, "I can't believe this is how you do me." Id. at 58. The victim then reached toward the ignition but, instead of grabbing the keys, hit the accelerator of the vehicle. In response, [Warrick] fatally shot the victim in the head. The car continued to move forward until it crashed into a telephone pole. [Warrick] and King were seen running to a vehicle parked on a nearby street and speeding from the scene. El Joufri testified that he panicked, and dialed 9-1-1. Remembering that there was marijuana in the car's trunk, and worrying about what the victim's parents would think upon learning that their son dealt drugs, El Joufri grabbed everything from the trunk and threw it into a nearby wooded area. El Joufri testified that neither he nor the victim had a gun during the incident.
When police arrived at the scene, a very distraught El Joufri told them that two men had stopped their car to get directions. Once they stopped, the men opened the car door, demanded everything they had in their pockets, and told them to open the trunk. However, when interviewed at headquarters later that day, he told the police the truth about what had transpired, told them that he knew the one perpetrator as "Dave, " and gave a description of both men. He also told the police that he had dumped marijuana in the woods and took them to the location, where they recovered approximately five pounds of marijuana. Based on El Joufri's description of "Dave, " the police used a photo imaging machine to generate pictures. After viewing hundreds of pictures, El Joufri positively identified King's photograph. A warrant was issued for King's arrest and he was taken into custody in Atlanta, Georgia on June 9, 2005.
After further investigation, the police showed a photo array to El Joufri, who immediately identified [Warrick] as the shooter. A warrant was issued for [Warrick's] arrest, but the police were unable to locate him. Subsequently, the police sought assistance from the fugitive task force, and [Warrick] was eventually arrested six months later in Florida. [Warrick] waived his Miranda  rights and agreed to give a tape-recorded statement to the police.
At trial, [Warrick] testified on his own behalf. He stated that he had been friends with King for fifteen years and that he would often accompany King when King would purchase marijuana. According to [Warrick], when he accompanied King, he would usually carry a gun and provide protection should anything go wrong. In return, [Warrick] would receive an ounce of marijuana. On the day in question, King arrived at [Warrick's] mother's house and asked [Warrick] to ride with him to buy a pound of marijuana. According to [Warrick], King provided him with the gun and the two men drove to meet King's connection at Dix Way.
Upon arriving at Dix Way, [Warrick] entered the car behind the driver (the victim), while King entered the rear behind the passenger (El Joufri). [Warrick] testified that the victim began to back the car up when King asked for "weed, " and El Joufri demanded the money. Because [Warrick] did not believe the transaction was proceeding in the usual manner, he and King began to exit the vehicle. According to [Warrick], at that point both the victim and El Joufri produced handguns and pointed weapons at him and King. [Warrick] testified that before he could exit the car completely, the victim began to drive away which caused him to be dragged by the vehicle. Fearing for his life, [Warrick] testified that he pulled out his own gun and fired in the general direction of the guns that were pointed at him. He further testified that once he was completely outside the vehicle, he fired his weapon a second time because someone in the vehicle was still moving. [Warrick] stated that he then dropped his gun and ran until he caught up with King. The two men then entered their vehicle and left the scene.
[Warrick] further testified that he returned to his mother's house. He claimed that he did not know that he had hit anyone when he fired his weapon, and only learned about the victim's death when someone in his family told him that the victim's family was offering a reward for information about the gunman. Fearing that there ...