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Kirk v. McGinley

United States District Court, W.D. Pennsylvania

January 19, 2017

DEANTHONY KIRK, KG-1155, Petitioner,
v.
SUPT. MCGINLEY, et al., Respondents.

          MEMORANDUM AND ORDER

          Robert C. Mitchell United States Magistrate Judge

         Deanthony Kirk, an inmate at the State Correctional Institution at Pine Grove has presented a petition for a writ of habeas corpus. For the reasons set forth below the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

         Kirk is presently serving a life sentence imposed following his conviction by a jury of three counts of first degree murder and two counts of criminal attempt at No. CP-02-CR-10539-2010 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was imposed on November 1, 2011.[1]

         An appeal was taken to the Superior Court in which the issues presented were:

1. The Court erred in not excluding the photographs taken from Mr. Kirk's phone and submitted into evidence as the photos were more prejudicial than probative when they depicted Mr. Kirk holding a gun which was not the murder weapon, and cash, which was not taken in the alleged robbery.
2. The Court erred when it did not strike the testimony of Gregory Matthews and Franklin Brown when Attorney Foreman made a motion to strike based on the testimony being prejudicial and not probative.
3. Mr. Kirk was denied his United States and Pennsylvania Constitutional rights to due process and confrontation clause rights when Dr. Levine testified as to the ballistic results of testing conducted by Deborah Cater.[2]

         On August 2, 2013, the judgment of sentence was affirmed.[3] Allowance of appeal was denied by the Pennsylvania Supreme Court on November 26, 2013.[4]

         A timely post-conviction petition was filed. That petition was dismissed on October 15, 2014 and an appeal was filed but ultimately dismissed for failure to file a brief.[5]

         In the instant petition executed on May 31, 2016 and received in this Court on June 3, 2016, the petitioner contends he is entitled to relief on the following ground:

The petitioner is being illegally detained by respondent Thomas S. McGinley here at S.C.I. Coal Township[6] pursuant to a void judgment of an unlawful order issued by the Court of Common Pleas of Allegheny County - Criminal Division which this respondent asserts provide such authority to restrict this petitioner's liberty with such detention.
Supporting Facts: Due to the issued judgment from the provided court I am being unconstitutionally confined, and with this Court['s] lack of jurisdiction to impose a lawful order for purposes of execution on 18 Pa.C.S. 2501(2) criminal homicide violates the petitioner['s] due process thus giving this respondent no authority to have this petitioner committed and confined within such custody of the state.[7]

         The background to Kirk's conviction is set forth in the August 2, 2013 Memorandum of the Superior Court:

On June 14, 2010, Brittany Poindexter arrived at apartment 24-B in the Crawford Village housing complex in McKeesport, Pennsylvania.[8] Brittany's brother, Jahard Poindexter, lived at the apartment with his boyfriend, Marcus Madden. Jahard and Marcus were hosting a birthday party for Brittany, who was turning 18 on June 15, 2010. Several friends and family members were gathered at the party and stayed until approximately 11:00 p.m., leaving five individuals inside the apartment, Tre Madden (who was also Brittany's boyfriend, and Brittany's friend, Angela Sanders.
These five people were sitting in the living room of the apartment when, at approximately 1:00 a.m., there was a knock on the door. Marcus got up and opened the door to find Appellant's co-defendant, Isaiah Hereford. Hereford asked Marcus for a cigarette and, when Marcus opened the screen door to hand him one, Hereford and another masked individual burst through the door brandishing guns. Hereford began screaming, "Get down, where's the money." Marcus backed away from the door and got down on the ground near his brother, Tre. At the same time, Jahard stood up from the couch and began walking in the direction of a stash of money that he and Marcus kept in the apartment. At that moment, the two armed men began firing repeatedly into the room. Marcus grabbed his brother Tre's hand and ducked his head down as the shots continued to ring out. He heard Brittany screaming and smelled gunpowder. Brittany, who was on the couch next to Tre, curled up with her back against him and put a pillow over her face in an attempt to protect her head from the bullets. When the shooting stopped, Brittany, who was uninjured, retrieved her cell phone and dialed 9-1-1. She saw that Tre had blood coming from his arm, Marcus and Angela were both on the ground, and her brother, Jahard, was no longer inside the apartment. As she was speaking with the 9-1-1- operator, Marcus began screaming, "where's Jay, " referring to Jahard. Marcus then ran outside the apartment and discovered Jahard lying in the middle of the street.
Shortly thereafter, McKeesport Police Officer Dereck Stitt arrived at the scene. He first observed Jahard Poindexter lying in front of apartment 24-B. He checked Jahard's vital signs and determined that he was deceased. Officer Stitt also saw Marcus outside. Marcus had a minor wound from a bullet that grazed his head. When Officer Stitt went inside the apartment, he found Angela Sanders, who was deceased, and Tre Madden, who was breathing and had a slight pulse. ...

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