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Bayete v. Wetzell

United States District Court, W.D. Pennsylvania

May 2, 2018

CHIKUYO ASINIA BAYETE Petitioner,
v.
JOHN WETZEL, et al. Respondents.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          Barbara Jacobs Rothstein, U.S. District Court Judge

         I. INTRODUCTION

         Before 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.

         II. BACKGROUND

         In 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:

         On 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.

         A 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 them.

         Petitioner 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.

         Petitioner testified at trial and his testimony was consistent with the statement he gave to the police.

         The 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)).

         Thereafter 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)).

         The 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 courts.

         III. LEGAL STANDARD

         Where 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 ...


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