DAVIS v. RADLE et al
ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE APPLICATION FOR A WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED WITH PREJUDICE; A CERTIFICATE OF APPEALABIITY SHALL NOT ISSUE AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/25/12. 6/25/12 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd) (FILED IN ERROR)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TABB BICKELL, et al.,
O R D E R
AND NOW, this 22nd day of June, 2012, upon
consideration of the Report and Recommendation of U.S.
Magistrate Judge Hart and Petitioner’s objections thereto, it is
hereby ORDERED as follows:
(1) The Report and Recommendation (ECF No. 8) is
APPROVED and ADOPTED;1
(2) Petitioner’s Objections to the Report and
Recommendation (ECF No. 10) are OVERRULED;2
Magistrate Judge Hart recommended that the Habeas
Petition be dismissed as untimely but did not discuss the
timeliness of the Habeas Petition and, in fact, considered the
merits of each ground raised in the Habeas Petition. Therefore,
the Court approves and adopts the Report and Recommendation
based on Magistrate Judge Hart’s determination of the merits.
On August 2, 2006, Petitioner received a life sentence
after a jury convicted him of first-degree murder, criminal
conspiracy, and possession of an instrument of crime. On March
1, 2012, after unsuccessful direct and collateral appeals in the
Pennsylvania state courts, Petitioner filed the instant Habeas
Petition challenging his custody. The Court referred the matter
to Magistrate Judge Hart, who returned a Report and
Recommendation to deny the Habeas Petition on the merits.
Petitioner timely objected. The Court now “makes a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1) (Supp. IV 2011).
First, Petitioner claims he was denied his right to
due process when the prosecutor told the jury in her opening
statement that the jury would learn rival drug dealers hired
Smith to kill the victim. On Petitioner’s direct appeal, the
Pennsylvania Superior Court denied this claim because the
prosecutor’s argument did not make it impossible for the jury to
reach a true verdict when the jury later heard testimony from a
witness that someone paid Petitioner $8,000 to kill the victim.
Judge Hart determined that the state court’s decision was not
contrary to, or an unreasonable application of, federal law
because, in considering the entire trial, the court prevented
the prosecutor from arguing in closing argument that the murder
was a contract killing, defense counsel pointed out that the
evidence did not support the prosecutor’s opening argument, and
the prosecutor believed her opening claim would be supported by
the evidence that would be produced at trial.
Petitioner objects to Judge Hart’s determination
because there was no evidence that someone hired Petitioner to
kill the victim and that Petitioner dealt drugs. Pet’r’s Obj. 3.
Petitioner ignores the testimony that someone paid him $8,000 to
kill the victim and fails to consider the prosecutor’s remarks
in the context of the entire trial. Petitioner has not shown the
prosecutor’s remarks during opening argument deprived him of due
process. Therefore, Petitioner’s objection is overruled.
Second, Petitioner claims the trial court erred in
denying a motion in limine to preclude a witness from testifying
that Petitioner was connected to drug activity. The trial court
denied the motion because the evidence was relevant to motive
and provided context for the murder. The Pennsylvania Superior
Court determined that the trial court did not abuse its
discretion in making this evidentiary ruling. Judge Hart
determined that the state court decision was not contrary to, or
an unreasonable application of, federal law because the decision
did not deprive Petitioner of a fundamentally fair trial because
the testimony regarding Petitioner’s connection to drug activity
was sparse, the trial court judge granted
preclude the prosecutor from arguing that
contract killing during closing argument,
testimony did not implicate Petitioner in
Petitioner’s motion to
the murder was a
and the witness’
Petitioner objects that “[n]o evidence nor testimony
shows Petitioner Smith was involved in any illegal drug
activities.” Pet’r’s Obj. 4. Petitioner’s objection fails to
show that the trial court decision resulted in a fundamentally
unfair trial. Therefore, Petitioner’s objection is overruled.
Third, Petitioner claims the evidence was insufficient
to support any of his three convictions. Judge Hart determined
that the Pennsylvania Superior Court’s denial of this claim was
not contrary to, or an unreasonable application of, federal law
because credible evidence showed Petitioner shot the victim at
close range and Petitioner’s co-conspirator testified that the
co-conspirator accompanied Petitioner to commit the murder, that
he witnessed Petitioner use a firearm to murder the victim, and
that he later helped dispose of the firearm Petitioner used.
Petitioner objects that there was no evidence of
malice, that his co-conspirator acted on his own, that there is
no testimony supporting his conviction of criminal conspiracy or
possession of an instrument of crime. Pet’r’s Obj. 4. Petitioner
ignores the credible evidence to which Judge Hart referred the
Report and Recommendation. Petitioner’s bare allegations are
insufficient to overcome the “very heavy burden” he shoulders in
proving that he was convicted based on constitutionally
insufficient evidence. United States v. Ozcelik, 527 F.3d 88, 93
(3d Cir. 2008) (internal quotation marks omitted). Therefore,
Petitioner’s objection is overruled.
Fourth, Petitioner claims he received ineffective
assistance of counsel because his counsel failed to investigate
potential alibi witnesses. Judge Hart determined that the
Pennsylvania Superior Court’s denial of Petitioner’s ineffective
assistance claim was not contrary to, or an unreasonable
application of, federal law because, at trial, Petitioner waived
his right to present a defense. That is, at trial, Petitioner’s
counsel indicated they subpoenaed potential defense witnesses
but, after consulting with Petitioner, decided not to present a
defense. The trial court judge conducted a colloquy with
Petitioner to determine whether he agreed to the trial strategy
(3) The Application for a Writ of Habeas Corpus (ECF
No. 1) is DENIED and DISMISSED WITH PREJUDICE;
(4) A certificate of appealability shall not issue;3
(5) The Clerk shall mark this case CLOSED.
AND IT IS SO ORDERED.
_s/Eduardo C. Robreno____
EDUARDO C. ROBRENO, J.
to voluntarily waive his right to testify and to put on a
Petitioner objects that certain potential alibi
witnesses were not subpoenaed nor put on the stand to testify in
his defense. Pet’r’s Obj. 2. Petitioner admits that his counsel
advised that the potential alibi witnesses would ultimately hurt
his defense because of their prior criminal conduct. See id.
Nevertheless, Petitioner continues to argue that his trial
counsel rendered ineffective assistance and ignores that he
voluntarily waived his right to put on a defense upon advice of
counsel at trial. Petitioner has not overcome the presumption
that his counsel rendered ineffective assistance and that the
decision to call alibi witnesses was part of their trial
strategy. Moreover, Petitioner waived his right to testify and
to present a defense. Therefore, Petitioner’s objection is
Upon entering a final order adverse to Petitioner, the
Court must issue or deny a certificate of appealability (“COA”).
See R. Governing § 2254 Cases 11(a). The Court may issue a COA
“only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2006). In this case, the Court will not issue a COA because
Petitioner has not “demonstrate[d] that reasonable jurists would
find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
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