United States District Court, W.D. Pennsylvania
ORDER ADOPTING REPORT AND RECOMMENDATION
Barbara Jacobs Rothstein, U.S. District Court Judge
the Court is the Report and Recommendation of Magistrate
Judge Susan P. Baxter in which she recommends that this Court
deny the Petition for a Writ of Habeas Corpus filed by state
prisoner Chikuyo Asinia Bayete (“Petitioner”).
Dkt. No. 14. Petitioner timely filed objections to the Report
and Recommendation. Dkt. No. 19. Having reviewed the Report
and Recommendation, the objections thereto, the record of the
case, and the relevant legal authorities, the Court will
adopt the Report and Recommendation in full and deny the
Petition for Writ of Habeas Corpus. The reasoning for the
Court's decision follows.
September 2012, a jury in the Court of Common Pleas of Erie
convicted Petitioner of robbery, assault, and related crimes.
The charges stem from the following events as presented by
the Commonwealth to the jury:
November 21, 2011, Petitioner and his brother Shanti Bayete
(“Shanti”) forced their way into the apartment of
Jordan Tracy (“Jordan”) where they assaulted the
occupants (Jordan, his brother Jarod Tracy
(“Jarod”), and their friend Korrine Carson
(“Korrine”)) and stole a safe containing
approximately $3, 000. Jordan, Jarod, and Korrine testified
that the two men had on dark clothing, hosiery covering their
faces, and were wearing plastic gloves. After the robbery,
Petitioner and Shanti fled the apartment on foot. As they
were fleeing, Shanti was shot and died instantly. By this
time, Jordan and Korrine were standing on the apartment
balcony. Jordan testified at trial that after Shanti was
shot, Petitioner kneeled down by Shanti's body and pulled
the hosiery off his (Petitioner's) face. Jordan testified
that he immediately recognized Petitioner as someone he knew.
Jordan yelled at Petitioner “I know who you are,
” and Petitioner ran away.
police officer arrived at the scene of the shooting shortly
thereafter. When he arrived, Jordan and Korrine were standing
by Shanti's body. The police officer testified that
Jordan and Korrine told him that they had just been robbed by
Shanti and another man, and that they could identify the
other man. Another officer who was also responding to the
shooting saw Petitioner running from the direction of the
shooting. He stopped Petitioner and questioned him. The
officer testified that he observed that Petitioner was
wearing a dark coat and had blood on his boots. The officer
further testified that Petitioner told him that his brother
had been shot. The officer took Petitioner back to the scene
of the shooting where Jordan, Korrine, and Jarod identified
him as the other individual who had robbed and assaulted
gave a statement to the police in which he admitted that he
had been kneeling over his brother's body right after the
robbery took place. However, he claimed that he had not
participated in the robbery, but rather, had arrived at the
scene only after the shooting occurred. He claimed that he
had been walking towards Jordan's apartment because he
knew that Shanti had gone there to buy marijuana and he
wanted to see why it was taking his brother so long to
return. He said that as he approached Jordan's apartment
building, he came upon Shanti's body in the street and
that is when Jordan saw him kneeling over Shanti's body.
testified at trial and his testimony was consistent with the
statement he gave to the police.
jury convicted Petitioner of robbery, criminal conspiracy,
burglary, theft by unlawful taking, possessing instruments of
crime, former convict not to possess a firearm, and three
counts of simple assault. The trial court sentenced him to a
lengthy aggregate term of imprisonment and, on November 26,
2012, the Superior Court of Pennsylvania affirmed the
judgment of sentence in a decision issued on February 7,
2014. (ECF No. 5-5, Commonwealth v. Bayete, No. 1169
WDA 2013, slip op. (Pa.Super.Ct. Feb. 7, 2014)).
Petitioner timely filed a motion for collateral relief
pursuant to Pennsylvania's Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541 et seq.
He claimed that his trial counsel provided ineffective
assistance of counsel because they failed to: (1) seek
suppression of the out-of-court identifications that Jordan,
Korrine, and Jarod gave to the police when the Petitioner was
brought back to the scene of the shooting; (2) comply with
the notice requirements of Pennsylvania Rule of Criminal
Procedure 567, thereby precluding the defense from being able
to present the testimony of an alibi witness; (3) object to
the admission of photographs of Shanti's body during
trial; and (4) object to the admission of the evidence that
the Petitioner had previously been convicted of a felony drug
offense. The trial court denied the motion and on September
16, 2015, the Superior Court affirmed the trial court's
denial of Petitioner's request for PCRA relief. (ECF No.
5-6, Commonwealth v. Bayete, No. 1150 WDA 2014, slip
op. (Pa.Super.Ct. Sept. 16, 2015)).
instant petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 followed. Dkt. No. 1. Petitioner raises
the same four claims for relief in this petition as he
asserted in his petition for collateral relief with the state
objections to a magistrate judge's report and
recommendation are timely filed, the district court must
conduct a de novo review of the contested portions
of the report. Sample v. Diecks, 885 F.2d 1099, 1106
n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). In
conducting a de novo review, the court may accept,
reject, or modify, in whole or in part, the factual findings
or legal conclusions of the magistrate judge. 28 U.S.C.
§ 636(b)(1); Owens v. Beard, 829 F.Supp. 736,
738 (M.D. Pa. 1993). Although the review is de novo,
the law permits the court to rely on the recommendations of
the magistrate judge to the extent it deems proper.
United States v. Raddatz, 447 U.S. 667, 675-76
(1980); Ball v. U.S. Parole Comm'n, 849 ...