United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
ELIZABETH T. HEY, Magistrate Judge.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution - Rockview at Bellefonte, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed without prejudice as unexhausted.
I. PROCEDURAL HISTORY
On August 5, 2010, after a trial before the Honorable Sandy L.V. Byrd, a jury convicted Johnson of aggravated assault and possession of an instrument of crime ("PIC"). N.T. 8/5/11 at 78. The charges arose from the shooting of Kamal Murray on the night of May 13, 2008, in the 5900 block of Turner Street in West Philadelphia. N.T. 8/3/11 at 87-88, 146-47. Judge Byrd sentenced Johnson to a term of 12½-to- 25 years' imprisonment (10 -to- 20 years for aggravated assault and a consecutive term of 2½-to- 5 years for PIC). N.T. 9/1710 at 15-16; Commonwealth v. Johnson, CP-51-CR-0005617-2009, Criminal Docket (Phila. C.C.P.).
Johnson filed a timely notice of appeal and statement of matters complained of on appeal. The Superior Court quoted Johnson's arguments as follows:
1. Did the lower court error [sic] by admitting [sic] the prosecutor and Detective Murray to read into evidence the victim's prior inconsistent statement, to be used as substantive evidence, where, the testimony and evidence showed the statement was not signed and adopted by the victim?
2. Did the lower court error [sic] by admitting [sic] Officer Bonner to read Officer Ayers['] incident report into evidence, to be used as substantive or impeachment evidence, where there was no evidence indicating the amount of time elapsed between perceiving the event and the making of the statement and where the victim never adopted the summary in the report as his own statement, thus, did the statement qualify as a present sense impression?
3. Did the Commonwealth have sufficient evidence to prove beyond a reasonable doubt that Appellant was the person who committed the crime, i.e., circumstantial evidence strong enough to avoid speculation and conjecture?
4. Did the lower court error [sic] in regards to the above questions as to amount to a deprivation of the Appellant's Fifth Amendment Right to due process, and his Sixth Amendment right to a fair trial, both rights which are incorporated in Pennsylvania by and through Artic[le] I Section 9 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution?
Commonwealth v. Johnson, No. 2664 EDA 2010, at 4-5 (Pa.Super. Jul. 27, 2012) (attached to Resp. at Exh. B). On July 27, 2012, the Superior Court affirmed the judgment of sentence. Id. at 5-9. Johnson did not seek review in the Pennsylvania Supreme Court.
On May 13, 2013, Johnson filed a PCRA petition claiming:
1. Counsel was ineffective for failing to object to the admission of Officer Ayers' police report when he did not testify in court and Petitioner did not have the opportunity to confront Officer Ayers.
2. Counsel was ineffective for failing to object to Officer Bonner's testimony regarding prior inconsistent statements made by the victim, and for failing to request a cautionary instruction or impeach Officer Bonner.
3. Counsel was ineffective for failing to object to the jury instruction regarding consideration of Officers Ayers' and Bonner's testimony.
4. Counsel was ineffective for failing to investigate and call exculpatory witnesses at trial and ...