KIRK v. MCGINLEY et al

Filing 17

MEMORANDUM OPINION & ORDER re 4 Petition for Writ of Habeas Corpus filed by DEANTHONY KIRK dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 1/19/2017. (Mitchell, Robert)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEANTHONY KIRK, KG-1155,
Petitioner,
v.
SUPT. MCGINLEY, et al.,
Respondents.

)
)
)
)
)
)
)

2:16-cv-733

MEMORANDUM and ORDER
Deanthony Kirk, an inmate at the State Correctional Institution at Pine Grove has
presented a petition for a writ of habeas corpus. For the reasons set forth below the petition will
be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a
certificate of appealability will be denied.
Kirk is presently serving a life sentence imposed following his conviction by a jury of
three counts of first degree murder and two counts of criminal attempt at No. CP-02-CR-105392010 in the Court of Common Pleas of Allegheny County, Pennsylvania. This sentence was
imposed on November 1, 2011. 1
An appeal was taken to the Superior Court in which the issues presented were:
1. The Court erred in not excluding the photographs taken from Mr.
Kirk's phone and submitted into evidence as the photos were more
prejudicial than probative when they depicted Mr. Kirk holding a
gun which was not the murder weapon, and cash, which was not
taken in the alleged robbery.
2. The Court erred when it did not strike the testimony of Gregory
Matthews and Franklin Brown when Attorney Foreman made a
motion to strike based on the testimony being prejudicial and not
probative.
3. Mr. Kirk was denied his United States and Pennsylvania
Constitutional rights to due process and confrontation clause
rights when Dr. Levine testified as to the ballistic results of testing
conducted by Deborah Cater.2

1
2

See: Petition at ¶¶ 1-6 as clarified by the answer.
See: Exhibit 4 to the answer.

On August 2, 2013, the judgment of sentence was affirmed.3 Allowance of appeal was denied by
the Pennsylvania Supreme Court on November 26, 2013.4
A timely post-conviction petition was filed. That petition was dismissed on October 15,
2014 and an appeal was filed but ultimately dismissed for failure to file a brief.5
In the instant petition executed on May 31, 2016 and received in this Court on June 3,
2016, the petitioner contends he is entitled to relief on the following ground:
The petitioner is being illegally detained by respondent Thomas S.
McGinley here at S.C.I. Coal Township6 pursuant to a void judgment
of an unlawful order issued by the Court of Common Pleas of
Allegheny County – Criminal Division which this respondent asserts
provide such authority to restrict this petitioner's liberty with such
detention.
Supporting Facts: Due to the issued judgment from the provided court
I am being unconstitutionally confined, and with this Court['s] lack of
jurisdiction to impose a lawful order for purposes of execution on 18
Pa.C.S. 2501(2) criminal homicide violates the petitioner['s] due
process thus giving this respondent no authority to have this petitioner
committed and confined within such custody of the state.7
The background to Kirk's conviction is set forth in the August 2, 2013 Memorandum of
the Superior Court:
On June 14, 2010, Brittany Poindexter arrived at apartment 24-B in
the Crawford Village housing complex in McKeesport,
Pennsylvania.8 Brittany's brother, Jahard Poindexter, lived at the
apartment with his boyfriend, Marcus Madden. Jahard and Marcus
were hosting a birthday party for Brittany, who was turning 18 on
June 15, 2010. Several friends and family members were gathered at
the party and stayed until approximately 11:00 p.m., leaving five
individuals inside the apartment, Tre Madden (who was also
Brittany's boyfriend, and Brittany's friend, Angela Sanders.

3

See: Exhibit 5 to the answer.
See: Exhibit 6 to the answer.
5
See: Exhibit 11 to the answer.
6
At the time the petition was filed, Kirk was incarcerated at the State Correctional Institution in Coal Township.
Subsequently he was transferred to the State Correctional Institution at Pine Grove (ECF No.15).
7
See: Petition at ¶ 12. In his response (ECF No. 16) petitioner appears to be attempting to allege that although
charged with a violation of 18 Pa.C.S.A. §2501 he was convicted and sentenced under 18 Pa. C.S.A. §2502. We
note that §2501 merely defines criminal homicide and sets for the various classifications of criminal homicide while
§2502 defines the various catetorories. Thus, this argument is meaningless.
8
We observe that McKeesport is located within Allegheny County, Pennsylvania .
http://apps.alleghenycounty.us/website/munimap.asp
4

2

These five people were sitting in the living room of the apartment
when, at approximately 1:00 a.m., there was a knock on the door.
Marcus got up and opened the door to find Appellant's co-defendant,
Isaiah Hereford. Hereford asked Marcus for a cigarette and, when
Marcus opened the screen door to hand him one, Hereford and
another masked individual burst through the door brandishing guns.
Hereford began screaming, "Get down, where's the money." Marcus
backed away from the door and got down on the ground near his
brother, Tre. At the same time, Jahard stood up from the couch and
began walking in the direction of a stash of money that he and Marcus
kept in the apartment. At that moment, the two armed men began
firing repeatedly into the room. Marcus grabbed his brother Tre's hand
and ducked his head down as the shots continued to ring out. He
heard Brittany screaming and smelled gunpowder. Brittany, who was
on the couch next to Tre, curled up with her back against him and put
a pillow over her face in an attempt to protect her head from the
bullets. When the shooting stopped, Brittany, who was uninjured,
retrieved her cell phone and dialed 9-1-1. She saw that Tre had blood
coming from his arm, Marcus and Angela were both on the ground,
and her brother, Jahard, was no longer inside the apartment. As she
was speaking with the 9-1-1- operator, Marcus began screaming,
"where's Jay," referring to Jahard. Marcus then ran outside the
apartment and discovered Jahard lying in the middle of the street.
Shortly thereafter, McKeesport Police Officer Dereck Stitt arrived at
the scene. He first observed Jahard Poindexter lying in front of
apartment 24-B. He checked Jahard's vital signs and determined that
he was deceased. Officer Stitt also saw Marcus outside. Marcus had a
minor wound from a bullet that grazed his head. When Officer Stitt
went inside the apartment, he found Angela Sanders, who was
deceased, and Tre Madden, who was breathing and had a slight pulse.
However, as Tre was being transported to the hospital, he went into
cardiac arrest and was pronounced dead on arrival.
An autopsy of each victim revealed that Jahard had been shot three
times, Angela was shot six times, and Tre was shot eleven times.
Ballistic evidence recovered from the scene included eight spent
cartridge casings and one projectile from a 9-millimeter Smith and
Wesson semi-automatic pistol, as well as four spent bullets from a
.38-caliber revolver.
Appellant was implicated in the shooting based on the following
evidence. First, Jameelah Miller, who also lived in the Crawford
Village housing complex, told police that she heard about the murders
shortly after they occurred. Later that same day, Appellant and
another man came to Jameelah's apartment. Appellant had a Smith
3

and Wesson gun and began taking it apart to clear it. Jameelah heard
Appellant state to the other man that "he didn't mean to shoot that
bitch" and that he had "emptied [his] clip." When Jameelah asked
Appellant if he committed the murders of Tre, Jahard, and Angela,
Appellant "looked at [her] and grinned and said …'Mother Fucker is
hungry, I needed to hit a lick.'" Jameelah interpreted "hit a lick" as
meaning to rob someone for money and drugs.
The day after the murders, June 16, 2010, Appellant burglarized the
home of Darnell Davis, Sr., and was apprehended by police as he fled
from that residence by way of a second story window leading onto the
roof. After Appellant was taken into custody, Mr. Davis searched his
roof and discovered a bag with a Smith and Wesson gun inside it.
Ballistics evidence recovered from the scene of the murders, as well
as from Angela Sanders' body, confirmed that the gun discovered on
Mr. Davis' roof was the 9-millimeter Smith and Wesson pistol used in
the triple homicide.
In addition, the gun recovered from Mr. Davis' home was the same
weapon used in a shooting that took place several days before the
murders. Specifically, on June 9, 2010, Detective Gregory Matthews
of the Allegheny County Police Department responded to a report of
shots fired on Versailles Avenue in McKeesport. Ballistics evidence
was collected at the scene and confirmed that the shots were fired
from the same Smith and Wesson pistol found at Mr. Davis' home and
used in the triple homicide.
After Appellant's arrest for the burglary of Mr. Davis' home, he was
questioned by police about the Smith and Wesson gun found at the
scene of that crime. Appellant first told the police that he found the
gun inside Mr. Davis' home. However, when the interrogating officer
informed him that the focus of the investigation was really on the
Crawford Village homicides, Appellant admitted that he brought the
gun with him when he burglarized Mr. Davis' home. When asked how
he had obtained the weapon, Appellant claimed that on the night of
the murders he purchased the gun from two individuals who
approached him in the Crawford Village housing complex offering to
sell him two firearms. However, this story contradicted Appellant's
alibi defense for the homicides, as Appellant had initially told police
that he was "home in bed early on the night of the murders." When
confronted with this contradiction, Appellant replied that he did not
purchase the gun on the same night that the murders took place, but
on the night after the murders. Again, however, that story "didn't
make sense" to the questioning officer as Appellant was taken into
custody on the evening of June 16, 2010 for burglarizing the Davis
residence.
4

In addition to Appellant's admitted possession of one of the firearms
used in the Crawford Village shooting, there was other circumstantial
evidence connecting him to the homicides. For instance, Appellant's
cell phone records revealed that in the hour preceding the shooting,
which commenced at 1:08 a.m., Appellant and Hereford called each
other over a dozen times. At 1:02 a.m., the calls ceased, and there was
no more communication between the two co-defendants until 1:17
a.m.
Moreover, Jade Turner, Appellant's girlfriend, told police that on the
night of the murders, she and Appellant were in apartment 35-G of the
Crawford Village housing complex. That apartment belonged to
Appellant's cousin, Phalan Jones. At 11:45 p.m., Appellant walked
Turner home and then returned to apartment 35-G, where he
sometimes spent the night. Phalan told police that she went to bed at
approximately 12:00 a.m., at which time Appellant was present in her
apartment. However, she could not account for Appellant's
whereabouts at the time the shooting occurred. However, she claimed
that after being awakened by the sound of gunshots, she saw
Appellant in her apartment. After finding out about the murders, Jade
Turner sent text messages to Appellant stating that he was "dumb,"
and she was "so disappointed" in him, and that she knew what he did.
In addition, two days after the murders, a phone matching the one that
belonged to Angela Sanders was discovered under a shrub outside of
Phalan Jones' apartment.
Based on this evidence, Appellant was arrested and charged with
three counts of criminal homicide, two counts of attempted murder,
two counts of aggravated assault, and one count each of robbery,
burglary, carrying a firearm without a license, possession of a firearm
by a minor, and criminal conspiracy to commit robbery. Following a
four-day long jury trial, he was convicted of all the above-stated
offenses, except for possession of a firearm by a minor, for which the
court granted Appellant's motion for a judgment of acquittal…
(transcript references and footnotes omitted).9
As set forth above, in his federal petition Kirk appears to be challenging the
authority of the Court of Common Pleas of Allegheny County to charge, convict
and confine him of the criminal charges. Clearly this claim was never raised in the
courts of the Commonwealth in the first instance.
It is provided in 28 U.S.C. §2254(b) that:
9

See: Respondent's Exhibit 5 at pp. 1-8.

5

An application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that the applicant has exhausted the remedies available in the courts of the State,
or that there is either an absence of available State corrective process or the
existence of circumstances rendering such process ineffective to protect the rights
of the prisoner.
This statute represents a codification of the well-established concept which requires that
before a federal court will review any allegations raised by a state prisoner, those allegations
must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411
U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973);
Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would
be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez,
supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).
If it appears that there are available state court remedies, the court must determine
whether a procedural default has occurred. If a procedural default has occurred, the court must
determine whether cause or prejudice exists for the default, or whether a fundamental
miscarriage of justice would result from a failure to consider the claims. Carter v. Vaughn, 62
F.3d 591 (3d Cir. 1995).10
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413
(2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two
conditions is satisfied - the state-court adjudication resulted in a decision that (1)
“was contrary to ... clearly established Federal law, as determined by the Supreme
Court of the United States,” or (2) “involved an unreasonable application of ...
clearly established Federal law, as determined by the Supreme Court of the
United States.” Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by this
Court on a question of law or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.

10

We note that petitioner filed a second post-conviction petition in the Court of Common Pleas on July 28, 2016
(See: Answer at Ex. 12).

6

That is, the state court determination must be objectively unreasonable. Renico v. Lett, 130 S.Ct.
1855 (2010). This is a very difficult burden to meet. Harrington v. Richter, 131 S.Ct. 770 (2011).
In Coleman v. Thompson, 501 U.S. 722,750 (1991), the Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claim will result in a fundamental
miscarriage of justice.
Because no such showing is made here, a procedural default has occurred and no further
consideration of these issues is warranted here.
However, even if the petition was properly before this Court, Kirk appears to seek to
challenge the jurisdiction of the Court of Common Pleas of Allegheny County. As noted above,
the crime scene, namely McKeesport, Pennsylvania, lies within Allegheny County,
Pennsylvania.
Article V §5 of the Pennsylvania Constitution provides, "there shall be one court of
common pleas for each jurisdictional district … having unlimited original jurisdiction in all
cases..." Thus, while all common pleas courts have jurisdiction to hear any criminal case, those
cases "shall be brought before the issuing authority for the … district in which the offense is
alleged to have occurred…" Pa. R. Crim P. 130. Since, McKeesport is located in Allegheny
County, charges were appropriately filed in the Court of Common Pleas that county.
Accordingly, because the petitioner has failed to challenge the jurisdiction of the Court of
Common Pleas of Allegheny County, Kirk has failed to exhaust the available state court
remedies and his petition here is subject to dismissal. However, even if properly before this
Court his contentions are meritless.
Thus, because petitioner has failed to demonstrate that his conviction was secured in any
manner contrary to the laws of the United States as determined by the Supreme Court, nor that it
was secured in any manner contrary to that Court's determinations, his petition here will be
dismissed. In addition, because reasonable jurists could not conclude that a basis for appeal
exists, a certificate of appealability will be denied.
An appropriate Order will be entered.

7

s/ Robert C. Mitchell
United States Magistrate Judge

8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DEANTHONY KIRK, KG-1155,
Petitioner,
v.
SUPT. MCGINLEY, et al.,
Respondents.

)
)
)
) 2:16-cv-733
)
)
)

ORDER
AND NOW, this 19th day of January 2017, for the reasons set forth above, the
petition of Deanthony Kirk for a writ of habeas corpus (ECF No. 4) is DISMISSED, and because
reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability is
DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge

9