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Fair v. Mahally

United States District Court, E.D. Pennsylvania

November 25, 2014


LEROY FAIR, Petitioner, Pro se, DALLAS, PA.




This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Leroy Fair (" Petitioner"), who is currently incarcerated at SCI-Dallas. For the reasons that follow, I recommend that the petition be denied.


On November 17, 2005, after a bench trial before the Honorable William J. Mazzola of the Court of Common Pleas of Philadelphia County, Petitioner was found guilty of attempted murder, eight counts of aggravated assault, carrying firearms without a license, and criminal conspiracy related to a shooting incident which occurred on October 14, 2004, in Philadelphia, Pennsylvania. N.T. 11/18/05 at 62-63.[2] The Pennsylvania Superior Court set forth the relevant facts as follows:

On the evening of October 14, 2004, Detective Ronald Dove, Detective James Waring, Officer Thomas Hood, and Officer Edward Allen were investigating a shooting incident that occurred earlier in the day in the neighborhood of 33rd and Cumberland Streets in Philadelphia. Charles Wesley was the target of that shooting. Detectives Dove and Waring were standing on 33rd Street, speaking to Gene Palmer about the incident. Officers Hood and Allen were sitting in a Ford Taurus parked nearby on the street. Wesley was walking south on 33rd Street, with Sharee Norton and her two children, Sharron Norton and Shanya Wesley.
A group of men, which included [Petitioner], Kyle Little, Mufusta [sic] McCloud, Ronald Alston, and Edmond Jackson, was walking toward them. The men were armed. As they neared Wesley, they started shooting. The officers exited their vehicle. Officer Allen pushed Palmer to the ground. Officer Hood radioed for assistance from other officers in the area. Detective Waring, Norton, and her children took cover. In total, between 50 and 80 shots were fired by the gunmen. No one was injured. Wesley ran north on 33rd Street. The gunmen ran west on Cumberland toward 34th Street. The detectives and the officers pursued the gunmen. Ultimately, [Petitioner] was apprehended at Temple University Hospital.
The police found three vehicles near the scene of the shooting that had keys in the ignition. [Petitioner's] fingerprints were on the door of one of the vehicles. His personal identification card was in the vehicle. Subsequently, [Petitioner's] cousin, Richard Fair, learned from the police that [ one of the guns used in the shooting was of the same type of gun that he owned. Richard Fair then spoke to [Petitioner]. [Petitioner] admitted to taking two of his cousin's guns a few days earlier.

Commonwealth v. Fair, No. 1570 EDA 2006, Memorandum at 1-3 (Pa. Super. Aug. 8, 2008) (attached to response at Doc. 18-1) (" S.Ct. Op.-Direct"). On January 27, 2006, Judge Mazzola sentenced Petitioner to a prison term of 13 1/2 to 27 years.[3] As Judge Mazzola noted in a later opinion, he denied Petitioner's post-sentence motions challenging the sufficiency and weight of the evidence, and the discretionary aspects of sentence. See Commonwealth v. Fair, CP- 51-CR-0305881-2005, Opinion at 1 (Phila. C.C.P. Oct. 20, 2011) (attached to response at Doc. 18-2) (" PCRA Op.").

Petitioner filed a direct appeal to the Superior Court, raising three claims: (1) whether the evidence was sufficient to sustain the attempted murder, aggravated assault, and conspiracy verdicts, (2) whether the verdicts were against the weight of the evidence, and (3) whether Petitioner was entitled to relief upon the claims raised by his co-defendants Lyle Little, Mustafa McCloud, [4] Edmond Jackson, and Ronald Alston. See S.Ct. Op.-Direct at 3-4. On August 8, 2008, the Superior Court affirmed the judgment of sentence, finding certain arguments waived and denying others on the merits. Id. at 8. Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On July 6, 2009, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (" PCRA"), 42 Pa. C.S.A. § § 9541-9551, followed by an amended PCRA petition filed by appointed counsel on March 23, 2010. The counseled amended petition raised two claims of ineffective assistance of trial counsel, namely that counsel was ineffective for (1) failing to call the victim, Charles Wesley, as a defense witness, and (2) failing to challenge eyewitness Sheree Norton's in-court identification of Petitioner. PCRA Op. at 1-2. On June 22, 2011, Judge Mazzola dismissed the PCRA petition without a hearing. Id. at 2.

Petitioner appealed to the Superior Court, raising the same issues of ineffectiveness of counsel presented to the PCRA court, as well as a request for a hearing. See PCRA Op. at 2. Judge Mazzola recommended affirming, considering Petitioner had " not established the existence of any real facts that would indicate that [he] did not receive adequate representation or a fair trial [and] has not demonstrated any prejudicial or reversible error on the part of the court or his counsel or a manifest abuse of discretion." Id. at 30. On October 31, 2012, the Superior Court affirmed, adopting the PCRA court's opinion in its entirety. Commonwealth v. Fair, No. 1802 EDA 2011, Memorandum at 2 (Pa. Super. Oct. 31, 2012) (attached to response at Doc. 18-3) (" S.Ct. Op.-PCRA"). Petitioner filed a petition for allowance of appeal in the Pennsylvania Supreme Court, which was denied on June 12, 2013. Commonwealth v. Fair, 620 Pa. 713, 69 A.3d 242 (Pa. June 12, 2013).

On July 31, 2013, [5] Petitioner filed this pro se petition identifying the following six grounds for relief:

Ground One: Whether the evidence was sufficient to sustain the attempted murder, aggravated assault, [and] conspiracy verdict.
Ground Two: Whether the verdict was against the weight of the evidence.
Ground Three: Whether [Petitioner] is entitled to relief [based upon] the claims raised by his co-defendants.
Ground Four: Trial counsel was ineffective for failure to call witness (Charles Wesley) who was also a victim on case and the only one to prove petitioners [sic] innocence.
Ground Five: Trial counsel was ineffective for failing to challenge the identification of the petitioner by filing a motion to quash the transcript or file a motion to suppress the identification.
Ground Six: [PCRA] counsel was ineffective for not citing trial counsel ineffectiveness for not calling [a] witness who would provide exculpatory testimony.

See Doc. 1 at 5-14 (ECF pagination). On February 27, 2014, Petitioner filed a memorandum of law which identified and addressed only the two claims of ineffectiveness of trial counsel. See Doc. 14 at 3-13. The District Attorney filed a response on April 21, 2014, arguing that the two claims Petitioner addressed in his memorandum of law are meritless. See Doc. 18 at 12-20. By way of footnote, the District Attorney further argues that Petitioner abandoned the remaining claims asserted in the petition, and that in any event they do not provide a basis for relief. Id. at 20 n.10.


The federal courts' habeas review is limited in nature. The Antiterrorism and Effective Death Penalty Act (" AEDPA"), which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir. 2000). AEDPA increased the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim " resulted in a decision contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; " or if (2) the adjudication " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct, rebuttable only by clear and convincing evidence. Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).

The Supreme Court has explained that " [u]nder the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to " the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The " unreasonable application" inquiry requires the habeas court to " ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. As the Third Circuit has noted, " an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court ...

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