United States District Court, W.D. Pennsylvania
Maureen P. Kelly Chief United States Magistrate Judge
Davis (“Petitioner”) was convicted of robbery,
simple assault and recklessly endangering another person and
was sentenced to an aggregate term of imprisonment of 7
½ years to 15 years followed by a six year period of
raises three Grounds for Relief in the instant Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (the “Petition”). Because none
of the Grounds merits the grant of federal habeas relief, the
Petition will be denied. Because jurists of reason would not
find denial of the Petition debatable, a Certificate of
Appealability will also be denied.
Pennsylvania Superior Court summarized the factual background
of this case as follows in its Opinion dated October 24,
On January 23, 2006, at approximately 11:50 p.m., Appellant
robbed the victim at gunpoint while she was crossing Bates
Street in the Oakland section of Pittsburgh. Appellant
approached the victim in the middle of the street, grabbed
her arm, pointed a gun at her, and demanded, “Give me
everything, ” before he pushed her to the ground on the
side of the road, stood over her, and repeated his demand.
N.T, 5/22/08, at 82-84.
As the incident unfurled, on-duty uniformed University of
Pittsburgh Police Officer Norbert Kuczma was driving his
personal vehicle to his post.
While at the intersection of Bates and Meyran Streets,
Officer Kuczma observed Appellant assault the victim. Officer
Kuczma approached the scuffle in his vehicle, rolled down the
passenger window, and inquired if there was a problem.
Unaware that Officer Kuczma was a police officer, Appellant
approached the open passenger window of the vehicle, leaned
in, and, looking directly at the police officer, stated that
everything was fine. Id. at 66. Officer Kuczma
noticed that Appellant's right hand was holding his
jacket pocket as if he were concealing a weapon. Concerned
that Appellant might pose a danger, he advised him,
“Don't go anywhere, I want to talk to you.”
Id. at 67. Realizing that Officer Kuczma was a
police officer, Appellant fled from Bates Street toward
Boulevard of the Allies.
Officer Kuczma radioed Appellant's description and
direction of flight to other police officers in the area. The
flash information advised that Appellant might be armed.
Id. at 70. Minutes later, University of Pittsburgh
Police Officers Preston Peterson and Scott Dubrosky apprehend
Appellant nearby. The police officers executed a weapons
frisk, but nothing was found. Id. at 104. At that
juncture, Appellant asked the police why they had chased him
and Officer Peterson answered that they wanted to talk to him
because he fit the description of a robbery suspect.
Appellant responded, “How can you arrest me for
something if I don't have a gun?” Id. at
105. Significantly, at that point in the interdiction,
Appellant had not been informed that the robbery suspect was
believed to have possessed a gun.
Officer Kuczma proceeded to the location where his fellow
officers detained Appellant, and he positively identified
Appellant as the assailant who was attacking the victim on
Bates Street. Id. at 73-74. Likewise, the victim
arrived at that location and identified Appellant as her
assailant. Id. at 85-86, 95-97. Subsequently, at
Appellant's preliminary hearing, the victim reported that
she was only seventy to eighty percent sure that Appellant
was the criminal. She noted that she could not remember 100
percent of the details of the evening and that, due to the
darkness and her anxiety during the ordeal, she did not see
some of her assailant's features. Appellant was held over
As the victim was unavailable to testify at Appellant's
jury trial, her preliminary hearing testimony was read into
the record. Id. at 81-97. Additionally, the
Commonwealth presented the eyewitness observations and
identification testimony of Police Officer Kuczma. Through
Officer Peterson's testimony, it introduced
Appellant's query, “How can you arrest me for
something if I don't have a gun?” Id. at
Pa. Superior Court slip op., ECF No. 12-10 at 1 - 3.
State Procedural History
23, 2008, Petitioner was convicted of inter alia, third
degree murder. No direct appeal was filed at that time. On
March 26, 2009, Petitioner filed a Post Conviction Relief Act
(“PCRA”) Petition, which ultimately resulted in
the reinstatement of Petitioner's direct appeal rights on
February 22, 2010. Accordingly, on March 16, 2010, Petitioner
filed a direct appeal to the Superior Court. In response to
Petitioner's Concise Statement of Matters Complained of
on Appeal, the trial court issued its opinion on May 19,
2010, explaining the reasons for denying relief. ECF No.12-2
at 62 - 67. On December 3, 2010, the Superior Court affirmed
the trial court and adopted the trial court's opinion as
its own. ECF No. 12-3 at 36 - 37. On December 30, 2010,
Petitioner filed a Petition for Allowance of Appeal to the
Pennsylvania Supreme Court which denied it on July 26, 2011.
ECF No. 12-5 at 3. On May 30, 2012, Petitioner filed a PCRA
Petition, which was denied, after a hearing, by the PCRA
Court, on October 22, 2012. ...