MEMORANDUM OPINION AND ORDER

CHARLES WEINER, Senior District Judge

Rodney Derrickson, a prisoner in state custody, has filed a petition for writ of habeas corpus challenging his state court convictions for second degree murder, aggravated assault, reckless endangerment, possession of an instrument of crime, and robbery. He is serving a mandatory sentence of life. For the reasons which follow, the petition is denied.

Background.

Following a hung jury in this first trial, Derrickson was convicted by a jury of the second degree murder of Patrick Cassidy. The evidence revealed that in the early morning of December 14, 1994, Cassidy left his home in Exton to purchase cocaine. He went to the William Penn housing project in Chester and sat in his car. Mark Harris approached the vehicle and offered to sell him marijuana. At about the same time, Derrickson approached the car and offered to sell him cocaine. Cassidy had what appeared to be a $100 bill in his hand. Derrickson reached into the car and took the keys from the ignition, threw them into the back seat and demanded that Cassidy give him his money. Cassidy tried to put the money between his legs on the car seat. Derrickson produced a weapon and fired two shots at Cassidy. Although mortally wounded, Cassidy was able to locate the car keys and attempted to drive off. He drove only a short distance before he struck a parked car. Cassidy was found dead in his car, the cause of death was loss of blood due to gunshot wounds in his chest and left arm.

In post-trial briefs to the Common Pleas Court, Derrickson raised two issues: a Batson v. Kentucky 476 U.S. 79 (1986) challenge regarding a peremptory challenge of an African-American venireman, and whether the Commonwealth improperly impeached its own eye witness, Mark Harris. The trial court denied the motion, finding the Commonwealth had articulated a legitimate reason for challenging the one African-American venireman (her age, on the ground that it could effect her concentration), while seating another African-American on the jury. It also concluded that permitting the impeachment evidence was not an abuse of discretion because the witness deviated from his prior recorded statements.

Derrickson raised the same two issues before the Superior Court in his direct appeal. The Superior Court also rejected the arguments in an opinion dated November 13, 1996. Derrickson's petition for allowance of appeal was denied by the Pennsylvania Supreme Court by order of May 15, 1997.

Derrickson filed a PCRA petition in the Court of Common Pleas on March 18, 1996. Counsel was appointed. Derrickson elected to withdraw that petition without prejudice; an amended petition was filed in September 1997. That petition raised several ineffective assistance of trial counsel issues:

(1) failure to adequately investigate the facts;

(2) failure to effectively cross examine prosecution witnesses Mark Harris regarding prior inconsistent statements and possible witness tampering;

(3) failure to request an instruction of an "incontrovertible physical fact" regarding the identification of the firearm;

(4) failure to object to the prosecutor's summation; and

(5) failure to move to quash the amended information filed by the Commonwealth, which reinstated the robbery charge dismissed at the preliminary hearing; and several miscellaneous other issues.

The Common Pleas judge rejected all of Derrickson's PCRA arguments in an opinion dated December 29, 1997.

Before the Superior Court, Derrickson appealed only three of his ineffective assistance claims: the failure to appeal the reinstatement of the robbery charge, the failure to cross examine Harris regarding his prior inconsistent statements, and the failure to object to the prosecutor's summation. Following a substitution of counsel, Derrickson's new attorney sought to amend the brief, which was granted.

The Superior Court affirmed the denial of the PCRA petition by opinion filed June 11, 1999. Derrickson's petition for allowance of appeal of the PCRA decision was denied by the Pennsylvania Supreme Court on March 14, 2000.

On July 24, 2000, Derrickson filed his petition for federal habeas relief raising both exhausted and unexhausted claims. We granted him a period of time to decide whether he wished to proceed on the exhausted claims contained in the petition, or return to state court in order to attempt to exhaust his remaining claims. Derrickson elected to attempt to exhaust his remaining claims and on January 19, 2001, we granted him permission to withdraw.

Derrickson apparently did nothing to pursue his unexhausted claims until November 18, 2002, when he filed a state habeas petition. In that petition, he asserted that his second PCRA counsel was ineffective for failing to raise the issue that his first PCRA counsel was ineffective for not filing an amended petition preserving 19 claims of ineffective assistant of Derrickson's direct appeal counsel. The Court of Common Pleas notified Derrickson of its intent to dismiss the petition without hearing, to which Derrickson filed a response and an amended response. The petition was in fact dismissed without hearing by opinion dated May 1, 2003. The court treated the petition as a second PCRA petition; it determined the petition was untimely and that the court lacked jurisdiction to consider it, since it was not filed within one year of the date Derrickson's conviction became final. The court found no basis for relief from the bar on second or subsequent petitions because there was no assertion of a miscarriage of justice, and all of Derrickson's issues had been previously litigated, waived, or were time barred.

Derrickson appealed this order to the Superior Court, asserting the treatment of his state habeas petition as a second PCRA petition, or the failure to treat it as an extension of his first PCRA petition, was error. By opinion dated March 16, 2004, the Superior Court affirmed, finding that Derrickson should have raised his ineffectiveness claims in his first petition and thus the second petition was untimely.

The current petition.

On June 9, 2004, Derrickson moved to reinstate his previously withdrawn federal habeas petition. On July 14, 2004, he filed an amended petition with leave of court raising the following issues:

(1) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for not objecting to the reinstatement of the robbery charge;

(2) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to argue that the evidence was insufficient to support a conviction for second degree murder;

(3) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for unreasonably advising Derrickson not to testify;

(4) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to impeach the credibility of Mark Harris with prior inconsistent statements;

(5) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to cross examine Harris concerning an assault upon him by Commonwealth witnesses Frank Richardson;

(6) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to the trial court's allegedly inadequate alibi instruction;

(7) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to call character witnesses;

(8) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to the prosecutor's summation;

(9) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to object to Harris' testimony as hearsay;

(10) removal of the African-American venireman was unconstitutional;

(11) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to adequately cross examine Harris regarding coaching of this testimony;

(12) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to move to transfer the case to juvenile court;

(13) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to provide adequate advice regarding accepting a plea bargain;

(14) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to secure the testimony of Steven Kurek; and

(15) direct appeal counsel was ineffective for failing to raise trial counsel's ineffectiveness for failing to request a jury instruction on voluntary manslaughter and incontrovertible physical facts.

Discussion.

We analyze these claims according to the precepts of Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) which altered habeas review of state convictions brought under § 2254. Under AEDPA, a petitioner must demonstrate that the state court's adjudication of the merits "resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." See Penry v. Johnson, 530 U.S. 782, 121 S. Ct. 1910 (2001) (explaining two-prong standard); Williams v. Taylor, 529 U.S. 362, 403-04 (2000) (same). Additionally, state court findings of fact are to be presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). This presumption applies even if the finding was made by a state court of appeals rather than by the state trial court.Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001).

The Supreme Court has said that "a state court decision will be `contrary to' our clearly established precedent if the state court either `applies a rule that contradicts the governing law set forth in our cases,' or `confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'" Penry, 532 U.S. at 792. A state court decision is an "unreasonable application of" the Supreme Court's precedent if the court "correctly identifies the governing legal rule but applies it unreasonable to the facts" of the case. Id.

Ordinarily, federal habeas review is barred if petitioner has procedurally defaulted. Coleman v. Thompson, 501 U.S. 722 (1991). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Id. at 731-732. The default will be excused if petitioner can demonstrate that a failure to consider his claims will result in a miscarriage of justice. Id. at 750. The United States Supreme Court has repeatedly held that the scope of the miscarriage of justice exception is a narrow one. Sawyer v. Whitley, 112 S.Ct. 2514 (1992); McCleskey v. Zant, 449 U.S. 46 (1991); Dugger v. Adams, 489 U.S. 401 (1989). This exception only applies when "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). The Supreme Court has suggested that the test for actual innocence is whether there is "a fair probability that, in light of all the evidence, including that to have been . . . wrongly excluded or to have become available only after trial, the trier of the fact would have entertained a reasonable doubt of his guilt."Kuhlmann v. Wilson, 477 U.S. 436, 454-5 n. 17 (1986).

The procedural default in this case was the failure of the petitioner to include all his claims in a timely filed PCRA petition. Under Pa. Cons. Stat. Ann. tit. 42, § 9545(b), a PCRA petition "shall be filed within one year of the date the judgment becomes final." Exceptions are provided in the statute in cases where the delay was the result of interference by government officials, the facts supporting the claim were unknown, and where the right asserted is a newly recognized one. The state PCRA court specifically found the second petition was untimely and that none of these exceptions applied. The Superior Court affirmed the dismissal on this same ground.

Accordingly, the claims not raised in the first PCRA petition were not properly preserved in the state courts, they have been procedurally defaulted, and must be dismissed. We find Derrickson has presented no cogent argument that the procedural default will result in a miscarriage of justice, given the weight of the evidence presented in his state court trial. That leaves only the three claims actually raised in the first PCRA petition that were then pursued before the Superior Court and also raised in this petition: the failure to appeal the reinstatement of the robbery charge, the failure to cross examine Harris regarding his prior inconsistent statements, and the failure to object to the prosecutor's summation.

Reinstatement of the robbery charge.

The state court record shows that Derrickson was originally charged with murder, robbery and related other offenses. Following the preliminary hearing, the robbery charge was dismissed by the district justice. Thereafter, the Commonwealth filed a petition for special leave to amend the information. A rule to show cause was scheduled on the petition and a hearing was held. The Commonwealth argued the district justice erred in dismissing the robbery charge because the Commonwealth had made out a prima facie showing of the elements of the offense. The court granted the petition from the bench, after reviewing the transcript of the preliminary hearing held before the district justice. Derrickson was found guilty of the charge at the second trial; the decision to reinstate the charge was not raised on direct appeal.

The Superior Court agreed with the PCRA court that the failure to raise the issue on direct appeal did not constitute ineffective assistance of counsel. It held that in Pennsylvania the test of whether an amendment to the information violates due process is whether the defendant has been placed on notice of the criminal conduct of which he is accused and whether there is prejudice arising from a last minute addition of substantive charges of which the defendant is uninformed. Commonwealth v. Grekis, 601 A.2d 1284 (Pa. Super 1992). Where the original indictment or information involves the same basic elements and evolved from the same factual situation as the crimes alleged in the amendment, defendant is deemed to have been placed on notice regarding his alleged criminal conduct. Commonwealth v. Stanley, 401 A.2d 1166, 1175 (Pa. Super 1979).

The Superior Court concluded that the robbery charge was a substantive change to the original information because it alleged a different crime, but that this factor was not determinative. The robbery charge arose out of the same set of facts as the murder charge, and was the underlying crime to the second degree, felony murder charge. The Court found that Derrickson was alerted to the charge at the preliminary hearing, and was informed of its reinstatement at the rule to show cause hearing some five months prior to the first trial. The Court found no prejudice to Derrickson from the reinstatement because his alibi defense was equally applicable to the robbery charge and the murder charge. Accordingly, the Court determined that the failure to raise the issue on direct appeal did not constitute ineffective assistance because counsel cannot be ineffective for raising a meritless claim.

We find this decision was not contrary to, or an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. The Supreme Court law governing a cause of action for ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668, 684 (1984). A claim for ineffective counsel must meet the two-part test advanced by the Strickland court. First, petitioner must show that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, [petitioner] must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. More precisely, petitioner must show that (1) his attorney's performance was unreasonable under prevailing professional norms, and, unless prejudice is presumed, that (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.

Several important factors are considered in evaluating an attorney's performance under Strickland. First, there are no detailed rules or guidelines for counsel to follow for any particular set of circumstances. "Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions . . . [thereby putting counsel at odds with] the overriding mission of vigorous advocacy of the defendant's cause."Strickland, 466 U.S. at 689. The Court recognized that it is much easier to find fault with counsel's choices after those choices have been implemented and have been proven unsuccessful. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effect of hindsight . . ." Id. Thus, in judging counsel's conduct the court will view counsel's choices in light of all the circumstances while at the same time keeping in mind that "[t]here are countless ways to provide effective assistance in any given case." Id. The Supreme Court concluded that these factors, along with considerations of counsel's independence and attorney client trust, gave counsel a strong presumption that his conduct "falls within the wide range of reasonable professional assistance." Id.

Because the Superior Court determined that a direct appeal of the issue would have been meritless under Pennsylvania law, its conclusion that the failure to raise the issue could not constitute ineffective assistance was not an unreasonable application of Strickland. Strickland requires a showing that the result would have been different had counsel not been ineffective. Given the Superior Court's determination of the actual merits of the claim, there was no ineffectiveness that could have changed the result of Derrickson's direct appeal.

Harris' testimony.

Harris was an eye witness to the shooting. He gave a statement to the police and testified at the preliminary hearing and at both trials. At the second trial, he attempted to alter his prior testimony, placing another person at the scene of the crime. He also testified that detectives coached his prior testimony. Confronted by the prosecutor with his prior testimony, he then agreed his prior testimony was accurate.

Derrickson argued that trial counsel should have explored the claim that Harris was coached. The PCRA court found that trial counsel conducted a thorough cross examination of Harris, used prior inconsistent statements for impeachment, but that the jury chose to believe the testimony that inculpated Derrickson. The PCRA court concluded the allegation of ineffectiveness was meritless.

The Superior Court applied the rule of Commonwealth v. Roberts, 545 Pa. 460, 465 (1996), that counsel is ineffective where the underlying claim has arguable merit, counsel's omission had no reasonable basis designed to advance the interests of the appellant, and there is a reasonable probability that the outcome of the proceeding would have been different. The Court found that Derrickson failed to establish the "outcome" prong of the test, holding that there was other eye witness testimony that Derrickson shot Cassidy, and that Harris admitted the prior unequivocal testimony was accurate. Also for these reasons, the Court also found there was no reasonable purpose served by counsel questioning Harris further on whether he was coached.

We find this was not an unreasonable application of the Strickland standard. The Superior Court was well grounded when it concluded that Derrickson failed to demonstrate prejudice arising from the failure to pursue the impeachment testimony. Other eye witnesses offered testimony substantially similar to Harris' original version. Pursuing the impeachment would have only highlighted the fact that the new inconsistent testimony was not credible. Under Strickland, courts will not second guess counsel's strategic decisions; rather, we evaluate the reasonableness of an attorney's conduct in light of all the circumstances as they existed at the time of the conduct. Id. at 690. The choice not to pursue impeachment may well have been such a strategic decision. In sum, the test employed by the Superior Court was not at odds with theStrickland standard. Thus there is no basis for habeas relief.

The Prosecutor's Summation.

During his closing speech to the jury, the assistant district attorney stated: "I'm asking you, ladies and gentlemen, now to follow the example of Jackie Harris to do your duty and I ask you to find Rodney Derrickson guilty of First Degree Murder and Robbery. Thank you." Derrickson argued to the Superior Court that this was a misstatement of the duty of the jury and deprived him of a fair trial. Likewise, he argues here that this statement told the jury it was their duty to find Derrickson guilty.

The Superior Court, citing Commonwealth v. Young, 692 A.2d 1112, 1115 (Pa. Super 1997), held that a prosecutor's comment must mislead or inflame the jury to such a degree that they cannot fairly weigh the evidence and render a dispassionate verdict. It rejected Derrickson's assertion that the prosecutor had implied the jury had a duty to find him guilty, and found the remark did not mislead or inflame the jurors. We find this is not an unreasonable application of Supreme Court law.

In Darden v. Wainwright, 477 U.S. 168 (1985), the Supreme Court held that a closing statement in which the prosecutor called the defendant an animal and implied that the death penalty was the only way to prevent him from murdering again, reflected an offensive emotional reaction by the prosecutor and was improper, but did not deny the defendant due process. The Court held that where the summation does not manipulate or misstate the evidence, nor implicate other specific rights of the accused, such as the right to counsel or to remain silent, it does not infect the trial with unfairness so as to make the resulting conviction a denial of due process.

This test is indistinguishable from the one used by the Superior Court. Both required a showing that the statement misrepresented the evidence. As the Superior Court determined the summation was not a misrepresentation of the evidence, Derrickson has failed to meet the standard of AEDPA for habeas relief. Moreover, the Superior Court determined there was no prosecutorial misconduct because the statement did not imply the jury had a "duty" to find Derrickson guilty. We agree that this is the only rational interpretation of the prosecutor's meaning. Nothing in the statement could be read to imply such a duty. Rather, the obvious reference was to the witness recognizing her duty to put her friendship with Derrickson aside and come forward with her evidence.

Conclusion.

For the reasons stated, the petition for writ of habeas corpus is denied.

ORDER

A certificate of appealability is GRANTED only as to the three issues decided herein on their merits.

IT IS SO ORDERED.