BROASTER v. SUPERINTENDENT SCI HOUTZDALE et al

Filing 26

ORDER AS FOLLOWS: THE PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C. SEC. 2254 IS CONDITIONALLY GRANTED ON THE GROUND THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBJECT TO IMPROPER JURY INSTRUCTIONS REGARDING THE INFERENCES THE JURY COULD D RAW FROM PETITIONER'S POSSESSION-THREE MONTHS AFTER THE MURDER-OF A DIFFERENT HANDGUN OF THE SAME CALIBER AS THE MURDER WEAPON; PETITIONER'S CONVICTION AND SENTENCE ARE VACATED. RESPONDENTS SHALL RELEASE PETITIONER FROM CUSTODY UNLESS HE IS RETRIED WITHIN 180 DAYS OF THE DATE OF THIS ORDER. IT IS FURTHER ORDERED THAT: THE R & R OF U.S. MAGISTRATE JUDGE CAROL SANDRA MOORE WELLS DATED 2/25/11, IS APPROVED IN PART AND REJECTED IN PART; PETITIONER'S OBJECTIONS TO THE R & R ARE OVERRULED IN PART AND SUSTAINED IN PART. SIGNED BY HONORABLE JAN E. DUBOIS ON 8/4/11. 8/5/11 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LARKEEM BROASTER,
Petitioner,
CIVIL ACTION

v.
SUPERINTENDENT SCI HOUTZDALE,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, SETH
WILLIAMS, and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA, THOMAS CORBETT,

NO. 10-3591

Respondents.
ORDER
AND NOW, this 4th day of August 2011, upon consideration of petitioner Larkeem
Broaster's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Documents No.1, 2,
filed July 22,2010), the related submissions of the parties, the record in this case, the Report and
Recommendation C'R & R") of United States Magistrate Judge Carol Sandra Moore Wells dated
February 25, 2011 (Document No. 20, filed February 25,2011), Petitioner's Objections to the
R & R (Document No. 23, filed April 15, 2011), and respondents' Response to Petitioner'S
Objections (Document No. 24, filed May 9, 2011), for the reasons set forth in the Memorandum
dated August 4,2011, IT IS ORDERED as follows:
1.

The Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 is

CONDITIONALLY GRANTED on the ground that trial counsel was ineffective for failing to
object to improper jury instructions regarding the inferences the jury could draw from
petitioner's possession-three months after the murder--of a different handgun ofthe same

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caliber as the murder weapon;
2.

That part of the Petition which seeks relief on the ground that trial counsel was

ineffective for failing to object to the failure of the court to give a jury instruction specifically
addressing witness Orlando O'Neal's credibility in light of his pending robbery charge at the
time he made inculpatory statements against petitioner is DENIED; and
3.

Petitioner has withdrawn that part ofthe Petition which seeks relief on the ground

that trial counsel was ineffective for failing to object to the portion of the state court's concluding
instructions which described petitioner's exercise of his Fifth Amendment right as a "failure" to
testify. Accordingly, that claim is MARKED "WITHDRAWN"; and
4.

Petitioner's conviction and sentence are VACATED. Respondents shall

RELEASE petitioner from custody unless he is retried within 180 days of the date of this Order.
IT IS FURTHER ORDERED that:
1.

The R & R of United States Magistrate Judge Carol Sandra Moore Wells dated

February 25, 2011, is APPROVED IN PART AND REJECTED IN PART, as follows:
a.

Those parts of the R & R relating to Grounds One and Three of the Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2254 are APPROVED and
ADOPTED as MODIFIED in this Order and accompanying Memorandum;
and

b.

That part of the R & R relating to Ground Two of the Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2254 is REJECTED;

2.

Petitioner's Objections to the R & R are OVERRULED IN PART AND

SUSTAINED IN PART, as follows:
a.

That part of the Objections relating to Ground One of the Petition for Writ

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of Habeas Corpus Under 28 U.S.C. § 2254 is OVERRULED; and
b.

That part of the Objections relating to Ground Two of the Petition for Writ
of Habeas Corpus Under 28 U.S.C. § 2254 is SUSTAINED.

BY THE COURT:

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JAN E. DUBOIS, J.

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