United States District Court, M.D. Pennsylvania
A. RICHARD CAPUTO, District Judge.
This matter is before the court on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Robert Jenkins. (Doc. 1, Pet.) Mr. Jenkins challenges his York County Court of Common Pleas convictions for possession with intent to deliver (PWID) a controlled substance (cocaine),  criminal conspiracy to possess with intent to deliver a controlled substance (cocaine),  false identification to law enforcement,  and two counts of possession of a controlled substance (cocaine and marijuana). Following a jury trial, he was sentenced to an aggregate term of eleven to twenty-two years' imprisonment. (Doc. 27-2, ECF p. 193, Commonwealth of Pennsylvania v. Jenkins, 928 A.2d 1124 (Pa.Super. 2007)(Table, 279 MDA 2006).)
Based on consideration of the Petition, the Response (Doc. 27, Resp.), Mr. Jenkins' Reply (Doc. 30, Reply), the state record, and the applicable law, the Petition will be denied. Additionally, a certificate of appealability will not be issued.
A. Factual Background
Mr. Jenkins is challenging the validity of his conviction and sentence for several drug-related offenses imposed by York County Court of Common Pleas. The Pennsylvania Superior Court set forth the following statement of facts in its opinion affirming Mr. Jenkins' convictions:
[O]n March 19[, 2005, ] at approximately 9:35 in the morning[, ] York City Police officers received a dispatch from County Control advising that a homicide suspect by the name of Akeem Cole was seen going into an address on North Penn Street. At that time various police officers responded to the residence. Officer Blake McBride ["Officer McBride"] took up a position in the alley to the rear of the residence. Officer McBride was familiar with the homicide suspect and had seen pictures of him during line[-]ups.
Detective [James] McBride ["Detective McBride"] overheard another police officer broadcast on the radio that there was a subject sitting on the front porch of the residence and gave a description of him as a black male wearing a red jacket. Upon Officer Hansen's arrival this subject fled back into the residence. Officer McBride then saw this particular individual exit a third floor window out onto the second floor balcony. Officer McBride yelled to the subject to not move and to let him see his hands. The subject then immediately went right back into the window again.
After other officers arrived Officer McBride went to the first floor apartment and ascertained that the second and third floor apartments did not have immediate access to the first floor. While the police officers were in the first floor apartments they heard various footsteps on the second floor above them. They also heard a toilet flushing. The officers then knocked on the door of the second floor apartment and a female carrying a baby came downstairs and opened the door. She was asked if anybody else was in the apartment and she advised [them] that there was one other person in the apartment. She responded to this question the same [way] a number [of] times. The police officers called upstairs to have the other individual come downstairs and [Jenkins] then did come downstairs. The police again asked whether anybody else was in the upstairs apartment and they again were advised that no one else was upstairs. Finally, a third person did appear from the upstairs apartment and he was taken into custody.
Due to the fact that the police officers were unsure as to whether or not anybody else was in the upstairs apartment, the police decided to enter the apartment to look for Akeem Cole, the homicide suspect. As they entered the apartment they saw various contraband, including a freezer bag with marijuana residue, marijuana residue around the toilet seat in the bathroom, and sandwich baggies and a digital scale in the kitchen, as well as packages of marijuana. Also in the kitchen they found a glass Pyrex pot with white chunky substances caked around the outside of the pot. At this time they obtained a search warrant for the residence.
[ ] Officer McBride noted that when he received a radio transmission from Officer Hansen he did not know whether the subject that [Officer Hansen] saw flee into the residence was Akeem Cole or not. Officer McBride stated that when he saw the individual appear from the window coming out of the residence that he had no idea whether it was Akeem Cole or not.
(Doc. 27-2, ECF pp. 191-193, Commonwealth of Pennsylvania v. Jenkins, 988 A.2d 721 (Pa.Super. 2009)(Table, 2229 MDA 2008).)
The following additional facts are gleaned from the trial transcript. As Officer Blake McBride, Officer Lawson and Sergeant Mehring entered the second floor apartment, they announced their presence as police officers and ordered anyone present to come out. (Doc. 27-1, ECF pp. 95-96). A "very strong odor of marijuana" was present as they ascended the stairs. ( Id. ) They continued to search the second and third floor area for additional individuals. They concluded their security sweep, search when they determined neither Akeem Cole nor any other individual was present in the second or third floor apartment. ( Id., ECF p. 98.)
However, during the sweep of the second and third floor apartment, police observed drugs and drug paraphernalia the kitchen and bathroom of the apartment. ( Id., ECF p. 97.) At the conclusion of their security sweep, Officer McBride contacted Detective McBride and advised him of the presence of drug and other contraband. ( Id., ECF p. 98.) The house was then secured while Detective McBride prepared and obtained a search warrant for the second and third floor apartment. ( Id., ECF pp. 111-12.)
Upon obtaining the search warrant, Detective McBride advised the on-site detectives that he "had a signed search warrant and they could start searching." ( Id., ECF p. 111.) An inventory of items seized from the apartment was made. The seized items included sandwich baggies, baking soda, and a black digital scale seized from the kitchen. ( Id., ECF p. 115-16.) Two additional digital scales were found elsewhere in the apartment. ( Id., ECF p. 122 and p. 129.) Approximately a pound of marijuana was confiscated from the apartment's toilet trap. ( Id., ECF p. 136.) Two baggies of cocaine hydrochloride were found inside the kitchen refrigerator. ( Id., ECF p. 140 and pp. 320-322.) Over 100 grams of cocaine was discovered during the search.
Several letters addressed to Norma Gonzalez were seized from the kitchen. ( Id., ECF pp. 117-18.) The letters were taken by the police "for the fact [they] verify their address." ( Id., ECF p. 160.) The parties stipulated that the letters were addressed to Ms. Gonzalez but the contents of the letters were meant for someone else who used the nickname "Black". ( Id., ECF p. 157, pp. 160-162, pp. 266-67.) Based on the return address of many of the envelopes, it was clear that many of the letters came from individuals incarcerated at various state correctional facilities. ( Id. ) At trial Mr. Jenkins' attorney objected to the admission of letters that were sent by Mr. Jenkins, a/k/a Roy Jeeter, while he was incarcerated. ( Id., ECF p. 244). The court agreed with counsel that the introduction of such testimony would prejudice Mr. Jenkins. ( Id., ECF p. 344.) Additionally, while the jury did hear testimony that many of the letters came from individuals in prison, the parties agreed that the letters themselves, including their envelopes, would not be accessible to the jury during their deliberations. ( Id., ECF pp. 344-45.)
A loaded.45 caliber semiautomatic handgun was found in the bottom of a cupboard in the kitchen. ( Id., ECF p. 123.) Also found in the kitchen were two Western Union receipts for Robert Jenkins: one was for $200.00 sent to "a Johnson in Bronx, New York" and the other was for $400.00 sent to "Ms. Johnson". ( Id., ECF p. 128.) A photo album was also taken from the apartment. ( Id., ECF pp. 163-164, and p. 265.) Mr. Jenkins appears in some of the photos as do other unidentified individuals. ( Id., ECF pp. 265-66.)
Money was also recovered from the scene. Approximately $150.00 in cash was found in the kitchen. ( Id., ECF pp. 131-32.) An additional $100.00 was found in a vehicle that was left running in front of the residence that day. ( Id., ECF pp. 132-33.) Additional monies were recovered from the occupants of the home. Carlos Morales had $777.00 in cash on his person when searched at the police station. The money was located in his right front pocket and the toes of his sneakers. ( Id., ECF p. 133.) Officer Clarkson recovered $444.00 in cash from "Mr. Jenkins, or Jeeter, whichever one you want to call him." ( Id. ) The $444.00 was broken down in the following denomination: "19 twenty-dollar bills, 2 torn twenty-dollar bills, 4 five dollar bills, and 4 one-dollar bill." ( Id. ) Four different cell phones were also "taken off Mr. Jenkins." ( Id., ECF p. 134.)
Ms. Gonzalez testified at trial that she received a deal in exchange for her testimony for the Commonwealth. ( Id., ECF p. 272.) Several drug charges were dropped and she agreed to plead guilty to conspiracy to deliver cocaine. ( Id., ECF pp. 272-73.)
Ms. Gonzalez testified that her name was on the lease for the second and third floor apartment at 315 North Penn Street house. Her rent was $550.00 per month. ( Id., ECF p. p. 257.) She stated that she earned approximately $200.00 per week babysitting for Melissa Parker and a friend named Rosa. ( Id., ECF p. 219, pp. 270-271.) Police contacted Ms. Parker to verify Ms. Gonzalez's story and her source of income. Detective Shaffer concluded that Ms. Gonzalez's statements as to her income were inconsistent with what Ms. Parker related. ( Id., ECF pp. 119-120.)
Ms. Gonzalez also testified that on March 19, 2005, Robert Jenkins was living with her and their daughter in the second and third floors of the house at 315 North Penn Street. ( Id., ECF p. 73, pp. 241-43, p. 255.) Mr. Jenkins had keys to the apartment. ( Id., ECF p. 260.) Although he was not working, he "went half and half" with Ms. Gonzalez on all of the bills. ( Id., ECF p. 271.) Ms. Gonzalez testified that Mr. Jenkins stored his clothing in the third floor closets of the apartment and his numerous pairs of boxed sneakers in the second floor living room. ( Id., ECF p. 255-56.) Sixty to seventy pairs of men's sneakers were confiscated from the apartment. ( Id., ECF p. 217.) The police also confiscated expensive clothing from the apartment. ( Id., ECF p. 267.)
During the arrest booking process, Mr. Jenkins identified himself as the same and was photographed and fingerprinted. ( Id., ECF pp. 145-46.) The results of his fingerprints came back for a Roy Jeeter, not Robert Jenkins. When confronted with this information, Mr. Jenkins admitted to being Roy Jeeter and provided the police with his proper date of birth and social security number. ( Id., ECF p. 146.)
Carlos Morales, when interviewed by the police, stated that he went to 315 North Penn Street to smoke marijuana with Mr. Jenkins. ( Id., ECF p. 220.) On cross-examination by Mr. Morales' counsel, Detective Shaffer was asked if Mr. Morales indicated that "Jenkins was his marijuana-smoking buddy?" ( Id. ) Detective Shaffer responded, "Marijuana-smoking buddy, that is correct." ( Id. ) He also told the police he brought about one ounce of cocaine, a small bag of marijuana, and the.45 caliber handgun with him to the apartment. (Doc. 27-1, ECF pp. 210.)
B. Procedural Background
On July 14, 2005, Mr. Jenkins filed a timely pretrial motion to suppress. (Doc. 27-2, ECF pp. 5-10.) A hearing on the motion was held on September 1, 2005. (Doc. 27-2, ECF pp. 11-75.) The motion was denied on the same day. (Doc. 27-2, ECF pp. 76-69.)
On September 15, 2005, following a jury trial, Robert Jenkins was convicted of possession of cocaine with intent to deliver, criminal conspiracy for the same, simple possession of cocaine, simple possession of marijuana, and false identification to law enforcement. He was found not guilty of possession with intent to deliver marijuana. (Doc. 27-2, ECF p. 81.)
On November 21, 2005, he was sentenced to an aggregate term of eleven to twenty-two years in a state correctional institution. (Doc. 27-2, ECF pp. 79-83.) When determining Mr. Jenkins' sentence for possession with intent to deliver cocaine, the sentencing court noted that it was Mr. Jenkins' second drug offense and that the parties disputed whether or not he should be charged with the full amount of the cocaine found inside the apartment, over 100 grams. (Doc. 27-2, ECF pp. 81-82.) The sentencing court stated that based on the evidence adduced at trial, it was satisfied that Mr. Moralez and Mr. Jenkins were accomplices involved in a "cocaine vending operation." (Doc. 27-2, ECF pp. 82.) Accordingly, the court held Mr. Jenkins responsible for the entire amount of cocaine found in the house, and sentenced him to the mandatory minimum of seven to fourteen years' imprisonment. Next, the sentencing court imposed a five to ten year sentence on the firearm application. ( Id., ECF p. 82.) Mr. Jenkins' counsel objected as to this aspect of the sentence since Mr. Jenkins was never charged with a firearms offense at all. ( Id. ) On November 28, 2005, Mr. Jenkins filed a motion for modification of sentence (Doc. 27-2, ECF pp. 84-89), which was denied on December 28, 2005, following a hearing. ( Id., ECF pp. 90-94.)
Mr. Jenkins filed a timely notice of appeal. ( Id., ECF pp. 95-100.) The following four claims were addressed by the Pennsylvania Superior Court on direct appeal:
1. Whether the trial court erred by denying Jenkins's suppression Motion when the evidence was seized as a result of an unlawful warrantless search, which was the basis for the subsequent search warrant?
2. Was it error to deny Jenkins's suppression Motion when the search was unlawfully begun before the search warrant was on the premises and before it was shown or read to Jenkins or any resident?
3. Whether there was sufficient evidence as a matter of law to support Jenkins's criminal conspiracy conviction?
4. Did the trial court abuse its discretion by imposing a consecutive sentence for criminal conspiracy which was unreasonable, excessive, and grossly disproportionate to the sentences of his co-defendants?
( Id., ECF p. 194, Commonwealth v. Jenkins, 928 A.2d 1124 (Pa.Super. Ct. 2007).) On April 11, 2007, the Pennsylvania Superior Court affirmed the judgment of sentence. ( Id., ECF pp. 191-208.) Mr. Jenkins then filed a timely petition for allowance of appeal with the Pennsylvania Supreme Court. ( Id., ECF pp. 109-161.) That court denied the petition on September 28, 2007. ( Id., ECF p. 209, See Commonwealth v. Jenkins, 594 Pa. 676, 932 A.2d 1286 (Pa. Sept. 28, 2007)(Table, No. 390 MAL 2007).) Mr. Jenkins did not petition for certiorari to the United States Supreme Court.
On October 1, 2007, Mr. Jenkins filed a timely petition (Doc. 27-2, ECF pp. 217-241) pursuant to the Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541 et seq. In his Petition he raised the following claims based on the alleged ineffectiveness of his counsel, Richard F. Maffett, Jr., who represented him at trial, sentencing and on direct appeal, and who failed to:
(1) object to Detective Shaffer's hearsay testimony that co-defendant Morales stated he was Jenkins' ...