United States District Court, W.D. Pennsylvania
CATHY BISSOON, Magistrate Judge.
On February 20, 2014, Petitioner, Erik Isom, submitted a petition for writ of habeas corpus and, after he paid the filing fee, the petition was docketed on February 24, 2014. Thereafter, the case was referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. §§ 636(b)(l)(A) and (B), and Rules 72.C and 72.D of the Local Rules for Magistrates.
Petitioner challenges his conviction by a jury on charges of burglary, criminal trespass, attempted theft by unlawful taking, conspiracy to commit burglary and conspiracy to commit theft, and his sentence of three and a half to ten years' imprisonment, imposed by the Court of Common Pleas of Washington County, Pennsylvania on August 15, 2008. The charges arose from an incident on October 15, 2007, in which Pennsylvania State Constable Paul Kosey, Jr., and his partner received a tip about a possible break-in at the YMCA on West Maiden Street in Washington Pennsylvania, which had been closed for some time and was not open to the public. Constable Kosey heard people talking through the open window of the building, and observed three men inside placing scrap metal inside of a plastic bag. The constables reported the incident to the Washington City Police and remained on the scene until the officers arrived, at which point the police arrested Petitioner, Michael McKeefer and James Skidmore.
The petition raises six claims regarding the effectiveness of Petitioner's trial counsel, Jeffrey Watson. On July 24, 2014, Magistrate Judge Mitchell filed a Report and Recommendation (R&R), recommending that the petition be dismissed and that a certificate of appealability be denied. (Doc. 21)
On August 20, 2014, and again on August 21, 2014, Petitioner filed objections (Docs. 28 & 30) to the R&R, and on August 28, 2014, he submitted a supplement thereto (Doc. 31). In addition, he resubmitted a reply to the answer (Doc. 29) that was already in the record as an exhibit to his Motion for Leave to File a Traverse Exceeding Normal Page Limitations. (Doc. 19-2)
With respect to his first claim (counsel ineffectiveness for failing to request a "missing evidence" jury instruction regarding the Commonwealth's failure to introduce or make available at trial the plastic bags supposedly recovered by police from the crime scene), Petitioner contends that the Magistrate Judge: 1) incorrectly concluded that Constable Kosey had no knowledge of whether or not the bags were seized as evidence; 2) misconstrued his claim as a due process claim based on an evidentiary error; 3) incorrectly concluded that he had been caught "red handed" committing the crime; 4) failed to take into consideration that Constable Kosey's account of what he observed directly contradicted the testimony of Sgt. Robertson and Michael McKeefer; 5) incorrectly concluded that, had the plastic bags been produced, they would not have exonerated him when his contention is that, if they existed, they would have revealed the absence of any pipes or metal; 6) incorrectly concluded that he suffered no prejudice from counsel's error; and 7) incorrectly recommended dismissal of this non-frivolous claim without affording him an evidentiary hearing with the assistance of counsel.
Petitioner's challenges focus on the testimony of Constable Kosey, which he contends was inconsistent with other testimony in the record, and on the fact that the Commonwealth did not produce the plastic bags into which the men were accused of placing the scrap metal. However, upon review, his contentions are without merit.
Petitioner cites the fact that Constable Kosey testified that he observed Petitioner holding a yellow screwdriver (T.T. at 8), yet both Sgt. Robertson and Petitioner's co-defendant, Michael McKeefer, testified that McKeefer had the screwdriver and Petitioner had a utility knife or box cutter in his pocket (T.T. at 62-63, 86-87). Nevertheless, Petitioner has not explained the significance of this discrepancy, given that all three men were arrested and charged with the same offenses. Whether or not Petitioner was the man holding the screwdriver is irrelevant.
Petitioner focuses on Constable Kosey's testimony that he saw the three men at all times (T.T. at 12-13), even though he clarified shortly thereafter that two men remained in the room while the third man kept leaving and coming back with scrap metal to put in the bag (T.T. at 20-21). McKeefer testified that, once in the building, the three men split up (T.T. at 70, 78-80), and Sgt. Robertson indicated that the three were apprehended in different parts of the YMCA building (T.T. at 86-87, 89, 94). Again, however, Petitioner has not explained the significance of these minor differences. Whether Constable Kosey saw all three men all of the time or only part of the time, his testimony is that he saw them placing scrap metal into plastic bags.
At trial, Constable Kosey testified that he "did not know" if the police took the plastic bags into evidence (T.T. at 14), and Sgt. Robertson acknowledged that they were not listed in his inventory (T.T. at 96-97). Nevertheless, Petitioner insists that Constable Kosey testified at the preliminary hearing on November 5, 2007 that the "city police" recovered the bags (Prel. Hr'g at 27). He has omitted the fact that, moments later, the following exchange took place:
Q. Now, the pipe you observed these individuals with, was that taken into custody by the police?
A. I hope so. I don't know what they did.
Q. You don't ...