Opinion
Civil Action No. 03-CV-3090.
November 8, 2004
REPORT AND RECOMMENDATION
Presently before this court is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner, Aaron Fox, is a state prisoner currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. For the reasons set forth below, this court recommends that the petition be DENIED with prejudice.
FACTUAL AND PROCEDURAL HISTORY
On June 2, 1979, following a jury trial before the Honorable Robert Latrone in the Court of Common Pleas of Philadelphia County, Fox was found guilty of first-degree murder, and possession of an instrument of a crime. Fox retained new counsel to represent him on postverdict motions. Fox's post-verdict motions were denied after an evidentiary hearing on July 7, 1981. Fox was sentenced to an aggregate term of life imprisonment.
Fox retained new counsel and filed a timely notice of appeal to the Superior Court of Pennsylvania. The Superior Court affirmed the judgment of sentence on March 18, 1986. Commonwealth v. Fox, 512 A.2d 50 (Pa.Super. 1989) (table). Fox's petition for reargument was denied on May 21, 1986. Fox did not seek permission to appeal in the Supreme Court of Pennsylvania.
Ten years later, in 1996, Fox filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq. Counsel was appointed and filed an amended petition. There was a delay in the resolution of this petition due to the death of the trial judge and the recusal of the second judge assigned to this case. On November 15, 2000, the PCRA court dismissed the petition without a hearing.
Fox filed a timely appeal of the denial of PCRA relief to the Pennsylvania Superior Court. The Superior Court affirmed the order of the PCRA court on January 2, 2002. Commonwealth v. Fox, 797 A.2d 371 (Pa.Super. 2002) (table). On June 6, 2002, Fox's petition for allocatur was denied by the Supreme Court of Pennsylvania. Commonwealth v. Fox, 803 A.2d 733 (2002) (table).
On May 14, 2003, Fox filed the instant pro se petition for a writ of habeas corpus alleging that trial counsel was ineffective for failing to: 1) object to the prosecutor's misconduct for allegedly providing inducements to a witness to testify; 2) object to the prosecutor's misconduct for failing to disclose exculpatory evidence provided by Harry Carey El; 3) call an eyewitness, Jose Daomaral, to testify; 4) to properly cross-examine Police Officer Rocks regarding the statement given to him and for failing to request a mistrial once the statement was revealed; and 5) request a mistrial and/or cautionary instruction to the jury when a spectator disrupted the trial during the testimony of defense witness, Mr. Boyer. Fox also alleges that direct appeal counsel was ineffective for failing to raise each of these claims of trial counsel ineffectiveness. The Commonwealth has responded that Fox's claims are without merit. On December 22, 2003, Fox filed a traverse, and on December 24, 2003, he filed a supplemental traverse.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254 (b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999);Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254 (c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of the petitioner's constitutional rights. Picard, 404 U.S. at 275 (quotingWilwording v. Swenson, 404 U.S. 249, 250 (1971)). Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Thus, each constitutional claim presented in a habeas petition must be exhausted. 28 U.S.C. § 2254 (c); Tillet v. Freeman, 868 F.2d 106 (3d Cir. 1989).
Here, there is no claim that the issues raised were not fairly presented to the state court and a review of the state court record reveals that each claim was pursued in state court. Thus, this court finds that the claims are exhausted and subject to federal habeas review. However, in order to be eligible for federal habeas relief, Fox must establish that the state court's adjudication of the merits of his claims: "1) 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; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254 (d) (1), (d) (2); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).
The United States Supreme Court in Williams set forth a two-part test for analyzing claims under § 2254 (d) making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, 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 the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts. Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. See also Early v. Packer, 537 U.S. 3, 10-11 (2002) (federal courts may not substitute their own judgment for that of the state court).
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different absent the alleged ineffectiveness of counsel. Strickland v. Washington, 446 U.S. 668, 695 (1984). To prevail, petitioner must satisfy a two-pronged test by establishing that: (1) counsel's performance was deficient; and (2) counsel's deficient performance prejudiced the defense. Id. at 687.
A strong presumption exists that counsel's conduct falls within the wide range of reasonably professional assistance. Id. at 689. To demonstrate that counsel's performance was deficient, the petitioner must show that counsel's representation fell below an objective standard of reasonableness based on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 688, 690. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.
The determination of whether a state court erred in denying a claim of ineffective assistance of counsel requires this court to review whether the state court's application of Strickland was objectively unreasonable. See Woodford v. Viscotti, 537 U.S. 19, 24-25 (2002) (". . . it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision applied Strickland incorrectly."); see also Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir. 2000) (same). In addition, "counsel cannot be deemed ineffective for failing to raise a meritless claim." Id. at 203 (citing Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154 (1999)). Consequently, it is only the "rare claim" of ineffectiveness that should succeed. See Buehl v. Vaugn, 166 F.3d 163, 169 (3d Cir. 1999).
First, Fox contends that trial counsel was ineffective for failing to object to the prosecutor's misconduct for providing inducements to a Commonwealth witness, Warren Robinson, to testify. Fox also claims that direct appeal counsel was ineffective for failing to raise this issue on appeal. In considering this claim on collateral review, the Superior Court found as follows:
Appellant faults counsel for failing to allege prosecutorial misconduct because one eyewitness was provided with inducements to testify favorable for the prosecution. At trial, Warren Robinson testified as an eyewitness, identifying appellant as the person who shot Lynch. Appellant now submits, as afterdiscovered evidence, an affidavit from Robinson stating that the prosecutor coerced him into testifying by threatening to send him back to Michigan to serve out a sentence from which he had been paroled, and by providing him with cash, a hotel room, new clothes, and alcohol.
The PCRA permits the submission of after-discovered evidence where the evidence is exculpatory and would have changed the outcome of the trial if it had been introduced. 42 Pa. C.S.A. § 9543(a)(2)(vi). To qualify under this section, the new evidence must (1) have been discovered only after trial and must not have been discoverable through the exercise of due diligence; (2) be exculpatory and not merely cumulative or corroborative; (3) not be used to impeach a witness; and (4) be of such a nature and character that it would compel a different result. Commonwealth v. Cobbs, 759 a.2d 932 (Pa.Super. 2000).
As the Commonwealth points out, Robinson waited twenty years to recant his testimony. Recantation testimony is considered unreliable, because it involves an admission of perjury. Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994). In addition, Robinson was not the only eyewitness to the crime. In relying on Robinson's affidavit, appellant asks us to ignore the testimony of eyewitness El, who knew appellant for twenty years and testified that he saw appellant shoot Lynch. We conclude that Robinson's recantation testimony does not impugn the verdict, and appellant is not entitled to relief on this basis.Commonwealth v. Fox, No. 31 EDA 2001 (Pa.Super. slip op. filed 1/2/02) at 4-5.
Thus, the Superior Court concluded that the PCRA court was correct in rejecting this claim. A review of the notes of testimony provides further support for the conclusion of the state court. Clearly, Robinson was a reluctant witness. He had advised the detectives investigating this shooting that he would provide them with the identification of the perpetrators of this crime, but he would not testify against them at trial. Robinson ignored subpoenas to testify at trial. He testified that he did not want to be involved in the case because he was scared and because he was avoiding his parole officer. Despite his fears, Robinson ultimately testified at trial "because of what [Fox] did . . . He shot a friend of mine, in the back, and killed him." (N.T., 5/21/79 at 219).
The record also contradicts Fox's claim that Robinson testified against him because of improper inducements from the Commonwealth. In fact, it was at the trial court's direction and only after his testimony had begun, that Robinson was taken into protective custody until his testimony could be completed. Id. at 236. Robinson's testimony continued the next day. He explained that he was on parole from a robbery conviction in Michigan, but had stopped reporting because he did not want to testify in this case. Id. at 257-58. Robinson also testified that the prosecutor had offered to "straighten out the matter with my parole people . . . if I cooperate." Id. at 258. Again, Robinson stated that he was testifying now because he knew the victim and cared about him. Id. at 259. No other promises had been made in exchange for his testimony. Id. at 259-60. On cross-examination, Robinson remained consistent in his testimony. Id. at 219-239.
At the conclusion of Robinson's testimony, the trial court conducted a side-bar conference during which Robinson's continued safety was discussed. At this time, trial counsel made it clear that he did not wish to elicit further testimony concerning Robinson's safety or the Commonwealth's efforts to protect him. Id. at 311-314. This record establishes that Fox, his trial counsel, and the jury were well aware of all of the circumstances surrounding Robinson's testimony. All promises were disclosed and the only threat to Robinson was from Fox and his friends. Here, the state court's rejection of Robinson's recantation is objectively reasonable. Woodford, 537 U.S. at 24-25; Werts, 228 F.3d at 204.
Next, Fox claims that the prosecutor committed misconduct by failing to disclose exculpatory evidence. Fox contends that a police officer's investigation notes concerning a "statement" given by Harry Carey El to the police on the day of the incident should have been provided prior to trial counsel under Brady v. Maryland, 373 U.S. 83 (1963). Fox asserts further that trial counsel and appellate counsel were ineffective for failing to raise a Brady violation.
The Superior Court, after considering the testimony of the police officer, found "that he made some notations following his conversation with El at Misericordia Hospital prior to trial, but these writings were not a verbatim account of El's remarks, and not a `statement' of the witness, but simply notes that he took." Commonwealth v. Fox, No. 31 EDA 2001, at 4. Thus, the Superior Court concluded that there was no Brady violation, and therefore, trial and appellate counsel could not be found ineffective for failing to raise a meritless claim.
Accepting the factual findings of the state court, in the absence of clear and convincing evidence to the contrary, this court must conclude that the state court's conclusion is correct. In Brady, 373 U.S. at 87, the Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." To demonstrate aBrady violation, a petitioner must show that evidence was suppressed, that it was favorable to him, and that it was material to guilt or punishment. Id. See also Moore V. Illinois, 408 U.S. 786, 794-795 (1972).
Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Agurs, 427 U.S. 97, 109-110 (1975) ("The mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of trial does not establish `materiality' in the constitutional sense"). A reasonable probability is a probability sufficient to undermine confidence in the outcome. United States v. Bagley, 473 U.S. 667, 678 (1985). See also Kyles v. Whitley, 514 U.S. 419 (1995) (Brady claim sustained by showing that the favorable evidence withheld could reasonably be taken to put the whole case in a such a different light as to undermine confidence in the verdict). However, "there is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case." Agurs, 427 U.S. at 109-10. Brady does not require the prosecution to disclose preliminary and speculative information that is merely "not inculpatory." Id.
The record reveals that on cross-examination, El testified that he first told Police Office Rocks what he had witnessed five to ten minutes after the incident. He did not recall if he was recorded, but he did know that he had not signed anything. (N.T. 5/24/79, at 409-410). Trial counsel informed the court that he was not in possession of any written statement memorializing this interview and asked that the Commonwealth produce any such writing. The prosecutor responded that he did not have any such statement, but that the assigned officer would be arriving within minutes. Id.
Officer Rocks testified at trial that he interviewed El at Misericordia Hospital and made notes of the interview. Id. at 577, 582-583. The notes were provided to defense counsel during trial. Officer Rocks also testified that El told him who shot the victim. Id. at 578. Trial counsel's objection to this question was sustained by the trial court.Id. On cross-examination, Officer Rocks testified that this writing consisted of a notion "Received info — doers," and three names: Aaron Fox, John Grant, and Carlos Berry. Id. at 587.
The record also reveals that El provided a signed statement to Detective Lubiejewski on August 7, 1978, two months after the incident.Id. at 425. This statement gave El's full account of what occurred that night, including the names of Grant and Berry, and was the subject of extensive cross-examination at trial. Id. at 425-452. El also testified at trial the it was, without question, Fox who had shot the victim. Id. at 507.
After reviewing the record, this court finds that the factual findings of the state court and its application of Brady to those facts were not contrary to, or an unreasonable application of, established federal law. The notes of Officer Rocks' conversation with El did not constitute a written statement, nor did it contain material and exculpatory information unknown to the defense. Having determined that there was noBrady violation, the state court properly rejected Fox's claim of ineffective assistance of counsel for failing to assert a baseless claim. Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11. Counsel cannot be deemed ineffective for failing to raise a meritless claim. Werts, 288 F.3d at 203.
Next, Fox asserts that trial was ineffective for failing to call Jose (Oseas) Doamaral as an eyewitness at trial and that appellate counsel was ineffective for failing to raise the issue on direct appeal. This claim was first raised during Fox's state collateral review, and the Superior Court held that it was without merit.
In order to succeed in a claim of ineffectiveness of counsel for failing to call a witness, appellant must establish: (1) the identity of the witness; (2) that counsel knew or should have known of the existence of the witness prior to trial; (3) that the witness would have provided material evidence at the time of trial; and (4) that the potential testimony of the witness was so essential to the defense that its absence resulted in an unfair verdict. Commonwealth v. Speight, 677 A.2d 317 (1996). The proposed testimony, however, is merely cumulative to that of another defense witness, Wilmer Boyer, who lived in the neighborhood and testified that he saw someone else standing over the deceased immediately after the shots were fired. N.T., 5/29/1979, at 632-36. Counsel is not ineffective for failing to produce cumulative evidence. Commonwealth v. McKendrick, 514 A.2d 144 (Pa.Super. 1986).Commonwealth v. Fox, No. 31 EDA 2001 at 6-7. The Commonwealth argues that the state court's decision to deny relief was reasonable and does not contradict any United States Supreme Court precedent because this evidence was merely cumulative to another witness' testimony. The record supports this assertion.
The PCRA court, reviewed the testimony from the trial and the evidentiary hearing, and found as follows:
In the investigation interview record taken by defendant's investigator, Daomaral states that immediately after the shooting, which he did not witness, he saw a man standing over the victim. This man, he alleges, was definitely not defendant although he "did not get to study the man" who fled west on Osage Avenue. The man, he recalled was lighter and thinner than the defendant, and had a beard.
At trial, Wilmer Boyer was called as a defense witness. He also testified that he did not witness the shooting but that immediately thereafter, he saw a small man, approximately 150 lbs., standing over the body. He testified that he was positive that the man he saw was not defendant; he "wasn't big enough and he wasn't dark enough." While he did not mention a beard on this unidentified man, he testified that defendant had a beard the last time he saw him which was two days before the shooting. Boyer testified that he did not see a gun in the man's hand and that this unidentified man fled west on Osage Avenue. Boyer also testified that he did not see defendant or Jose Daomaral on the day of the shooting, both of whom he knew.
The only element that Daomaral's proffered testimony would add is that the unidentified man was holding a gun — evidence directly contradicted by Boyer. Daomaral stated that trial counsel knew of his existence at the time of the trial and that he was surprised that he was not called to testify, especially in light of the fact that his wife did testify for defendant. He did not state how trial counsel knew of his existence or if he informed trial counsel that he was willing to testify.Commonwealth v. Fox, No. 1940 Oct. Term 1978 (PCRA slip op., filed Jan. 18, 2001) at 4-5.
On review, the Superior Court agreed with the PCRA court that the testimony of Daomaral was merely cumulative to that of Wilmer Boyce and concluded that counsel was not ineffective for failing to produce cumulative evidence. Commonwealth v. Fox, No. 31 EDA 2001, at 6-7.
Again, in the absence of clear and convincing evidence to the contrary, this court accepts the factual findings of the state court. Having determined that the testimony of Daomaral was cumulative to that of Boyce, the state court was correct to reject this claim of ineffective assistance of counsel. Here, it was reasonable for trial counsel to offer the testimony of Boyce over that of Daomaral as it was consistent in most relevant facts and the jury would not hear Daomaral's description of the suspect having a beard after Boyce testified that two days prior to the shooting Fox had a beard. Daomaral's testimony is also less credible because Boyce testified that he did not see Daomaral at the scene.
Moreover, Fox did not satisfy the state court that trial counsel was aware of this witness and had been informed that the witness was available to testify. Even if Fox had established that the testimony was material and essential to his defense, he was also required to prove counsel's knowledge of the witness's testimony and his availability to testify at trial in order to prevail on any claim that counsel was ineffective for failing to call this witness.
The trial strategies of counsel made after an investigation of the law and facts relevant to plausible options are virtually unchallengeable.Strickland, 466 U.S. at 690. After consideration of this claim, this court cannot conclude that the state court's determination was contrary to, or an unreasonable application of, clearly established federal law, or that it based on an unreasonable determination of the facts.Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11.
Next, Fox contends that trial counsel was ineffective for failing to properly cross-examine Police Officer Rocks and El regarding the notes of Officer Rocks' interview of El. Fox also asserts that trial counsel was ineffective for failing to request a mistrial once the "statement" was revealed. Fox further asserts that post-verdict and direct appeal counsel were ineffective for failing to raise these claims.
A review of the state court record reveals that, after consideration of post-verdict motions and an evidentiary hearing, the trial court concluded that its trial ruling on the admissibility of Officer Rocks' testimony concerning the contents of his notes was erroneous. In its post-trial opinion, the trial court determined that Officer Rocks should have been permitted to testify on direct examination concerning the contents of his notes because El was present and testified at trial. See Trial Court Opinion (J. Latrone, July 9, 1981) at 97-101. As a result, the trial court also rejected Fox's claim that trial counsel was ineffective for eliciting the names of the "doers" on cross-examination of Officer Rocks. Id. The trial court reasoned that this claim was without arguable merit and that trial counsel could not be ineffective for eliciting testimony on crossexamination that should have been admitted on direct examination. Id. at 99-100. Further, the trial court found that trial counsel had a reasonable basis for eliciting this testimony based on trial counsel's testimony at the post-verdict motions evidentiary hearing. Specifically, the trial court found that the cross-examination was designed to discredit El's identification and impeach the credibility of his testimony. Id. at 100-101. The Superior Court affirmed the trial court's ruling on this claim and adopted the trial court opinion in support of its decision. Commonwealth v. Fox, No. 02047 Philadelphia 1981 (Pa.Super., slip op. filed Mar. 18, 1986) at 2.
On collateral review, Fox asserted that trial counsel was ineffective in his crossexamination of El because he failed to question El concerning the statement he made to Officer Rocks. Fox also contends that trial counsel should have a moved for a mistrial when it was discovered that this statement existed. Again, the state courts rejected these claims as meritless. The Superior Court found that there was no Brady violation because the notes did not constitute a statement, and thus, there were no grounds for a mistrial. Commonwealth v. Fox, No. 31 EDA 2001 at 3-4. The Superior Court found further that trial counsel's cross-examination of El was "extensive," and that Fox failed to demonstrate any prejudice as a result of Rock's crossexamination. Id. at 6.
After reviewing the state court record, this court finds no fault with the determinations of the state courts. For the reasons discussed above, the notes of El's conversation with Officer Rocks do not constitute a statement. As a result, there were no grounds for a mistrial and trial counsel cannot be found ineffective for failing to make a baseless claim. Werts, 228 F.3d at 203. Moreover, after a review of the record, this court cannot conclude that the state court's determination that trial counsel was not ineffective in his cross-examination of El and Rocks was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. Woodford, 537 U.S. at 24-25;Early, 537 U.S. at 11.
Finally, Fox claims that trial counsel was ineffective for failing to request a mistrial or curative instruction to the jury when the victim's girlfriend disrupted the trial during the testimony of defense witness, William Boyer, and that direct appeal counsel was ineffective for failing to raise this claim. The Superior Court considered this claim on collateral review and found as follows:
Appellant also charges ineffectiveness of trial counsel for failing to request a mistrial and/or cautionary instructions after a spectator's disruptive behavior. He refers to a woman, later identified as the girlfriend of the victim, who had to be removed from the courtroom because she was giving signals during the testimony of Boyer. The issue is meritless. The woman in question was apparently signaling Boyer, who was then testifying, about what his answers should be. The judge ordered the jury and the witness out of the room, instructed the prosecutor to speak to her, and told the woman to leave the courtroom for the rest of Boyer's testimony. N.T. 646-648.
The declaration of a mistrial and giving cautionary instructions to the jury are both within the discretion of the trial court. Commonwealth v. Begley, 780 A.2d 605 (2001); Commonwealth v. Chambers, 685 A.2d 96 (1996). Our review of the record indicates that the interruption was short, and clearly not deemed serious by the court. It is not clear where the sympathies of the disruptive woman were placed, as she did not call out but merely gestured. We find no ineffectiveness for trial counsel's failure to pursue a meritless claim. Commonwealth v. Tilley, 595 A.2d 575 (1991).Commonwealth v. Fox, No. 31 EDA 2001, at 7-8.
After reviewing the trial transcripts of this exchange, this court must again conclude that the state court's finding that this claim was without merit is not contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. Woodford, 537 U.S. at 24-25; Early, 537 U.S. at 11. It appears that when the trial court noticed this woman making gestures during the cross-examination of Boyer, he removed the jury and the witness from the courtroom. (N.T. 5/29/79-5/30/79, at 645-46). Based on his observations of this woman, the trial court believed she was coaching the witness by "signaling" and "gesticulating." Id. at 646-47. Upon inquiry, the court determined that the woman was the victim's girlfriend, who appeared to be reacting to the witnesses testimony. Id. The court was concerned that the conduct would elevate from this non-verbal communication and as a result asked that she leave the courtroom for the remainder of the witness's testimony. Id. 648.
This conduct does not rise to the level of an "outburst," or even a disruption, as asserted by Fox. This aside was brief and there is nothing in the record to indicate that the jury was in anyway aware of this woman's actions. Nor did the trial court express a concern that the fairness of the trial had been compromised, rather, it is clear that the trial court acted to insure that the trial would be fair. In fact, it appears that those present, the trial court, prosecutor, and defense counsel, were satisfied that the woman's gestures were probably unintentional and that situation had been remedied by her removal from the courtroom. Under these circumstances, this court must find that this claim is baseless and that trial counsel was not ineffective. Werts, 228 F.3d at 203.
Accordingly, having concluded that the claims raised in this petition do not require the grant of federal habeas corpus relief, this court makes the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. It is further RECOMMENDED that there is no probable cause to issue a certificate of appealability.