Green v. Wolfe

Full title: TYRONE GREEN v. WILLIAM J. WOLFE, et al

Court: United States District Court, E.D. Pennsylvania

Date published: Aug 3, 2004

Civil Action No. 03-6879 (E.D. Pa. Aug. 3, 2004)

Opinion

Civil Action No. 03-6879.

August 3, 2004

REPORT AND RECOMMENDATION

DIANE WELSH, Magistrate Judge

Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by Tyrone Green pursuant to 28 U.S.C. § 2254. For the reasons which follow, the habeas petition should be denied and dismissed.

I. BACKGROUND ¹

1 Unless otherwise noted, the following facts were compiled from the habeas petition, the Response thereto of the District Attorney of Chester County, and the state court record forwarded by the Clerk of Court of the Court of Common Pleas of Chester County.

In its memorandum opinion affirming the denial of petitioner's post conviction appeal, the Superior Court set forth the relevant facts of this case:

This matter stems from a robbery/homicide which occurred in a laundromat in Coatesville, Pennsylvania, on December 18, 1993. The facts of this case are as follows: Approximately one (1) week prior to the incident, Troy Davis and Darrick Hall discussed robbing a laundromat in Coatesville for the purpose of securing money for the upcoming holidays. They decided that a third person would be needed, because neither of them had a car. Also, a third person was needed because Troy Davis was known in Coatesville, and he therefore would not enter the laundromat with Darrick Hall.

On the morning of December 18, 1993, Troy Davis was told to meet Darrick Hall at a specific location in Philadelphia. Darrick Hall arrived in a green car driven by [petitioner]. In the car, Darrick Hall said he would go to the counter in the laundromat, and [petitioner] said he would watch the door. Darrick Hall and Troy Davis had previously agreed that Troy Davis' role would be to drive the car because he was familiar with the Coatesville area; however, Troy Davis ended up sitting in the back seat. Troy Davis then gave [petitioner] directions to Coatesville, and later directed [petitioner] to park behind a grocery store approximately one (1) block from the laundromat. The car was left running, with Troy Davis still in the back seat. [Petitioner] and Darrick Hall approached an employee at the front counter, while [petitioner] remained at the door. Darrick Hall's attempt to obtain money from the employee failed, and Darrick Hall shot the employee twice, causing his death. [Petitioner] drove, and Troy Davis directed him to a house belonging to Wayne Moody. Wayne Moody was acquainted with Troy Davis, and allowed the three (3) men to remain in his basement for a short period of time. Wayne Moody was unaware of the robbery/homicide which had just occurred. The three (3) men then left Coatesville and returned to Philadelphia. Eventually, all three (3) men were arrested. Darrick Hall was tried, convicted and received a death sentence. Troy Davis pled guilty and was sentenced to eight (8) to sixteen (16) years of imprisonment.

See Commonwealth v. Green, No. 1666 EDA 2001, Mem. Op. at 1-3 (Pa.Super. filed Nov. 15, 2002).

Following a jury trial in the Court of Common Pleas of Chester County, petitioner was convicted of recklessly endangering another person, possessing an instrument of crime, and carrying a firearm without a license.² Id. at 3. However, the jury was unable to reach a decision on the charge of murder in the second degree (accomplice liability) or robbery. Id.

2 Petitioner was found not guilty of conspiracy to commit robbery and conspiracy to commit recklessly endangering another person. See Pa. Super. Ct. Op. filed 11/15/02, at 3 (quoting Trial Court Opinion dated 1/31/01, at 2-3).

Following a retrial commencing on March 4, 1997, the jury found petitioner guilty of murder in the second degree and robbery. Id. at 3. Petitioner was sentenced to: life in prison for the murder conviction; one to two (1-2) years in prison for recklessly endangering another person, to be served consecutively to the life sentence; two to five (2-5) years in prison for carrying a firearm without a license, to be served consecutively to the other two counts; and one to two (1-2) years in prison for possessing an instrument of crime, to be served concurrently with the sentence for carrying a firearm without a license. Id.

On December 31, 1997, the Superior Court of Pennsylvania affirmed the judgment of sentence. Id. (citing Commonwealth v. Tyrone Green, 706 A.2d 1252 (Pa.Super. 1997) (table)). The Supreme Court of Pennsylvania denied petitioner's request for allowance of appeal on June 8, 1998. See Pa. Super. Ct. Op. filed 11/15/02, at 3 (citing Commonwealth v. Tyrone Green, 724 A.2d 936 (Pa. 1998) (table)).

On February 19, 1999, petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46, and he then retained counsel. See Pa. Super. Ct. Op. filed 11/15/02, at 3. Following an evidentiary hearing held on November 1, 2000, the PCRA Court denied the petition on January 31, 2001. Id. at 3-4.

Petitioner appealed pro se to the Pennsylvania Superior Court, and the Superior Court remanded the case for appointment of counsel. Id. at 4. On May 22, 2002, the PCRA Court appointed counsel to represent petitioner. Id. However, petitioner ultimately chose to proceed pro se during his appeal to the Superior Court. Id. On November 15, 2002, the Superior Court affirmed the PCRA Court's denial of the petition. Id. at 37. The Supreme Court of Pennsylvania denied allowance of appeal on December 2, 2003. See Commonwealth v. Green, 839 A.2d 351 (Pa. Dec. 2, 2003) (table).

Petitioner thereafter filed the present petition for writ of habeas corpus in this Court. In his petition, petitioner alleges the following grounds for relief: (1) the trial court violated the doctrines of collateral estoppel and double jeopardy; (2) the Commonwealth improperly added the offense of accomplice liability to the jury instructions; (3) ineffective assistance of trial counsel in eliciting testimony regarding petitioner's prior convictions and bad acts; (4) the trial court erred in denying petitioner's motion for mistrial based upon a witness's testimony that petitioner participated in the planning of the robbery; (5) prosecutorial misconduct and ineffective assistance of counsel in failing to raise the issue of improper comments made during testimony; (6) a violation of petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966); (7) prosecutorial misconduct in showing the jury prejudicial pictures of the victim, trial court error in failing to order a mistrial when jurors saw the prejudicial pictures, and ineffective assistance of counsel in failing to object to the pictures being shown. See Hab. Pet. ¶ 12; Petitioner's Br. at 1-41. The District Attorney of Chester County thereafter filed a Response to the habeas petition requesting that the Court deny the petition on the grounds that petitioner's seventh claim is procedurally defaulted, and in any event, all of his claims warrant no habeas relief. See Resp. to Hab. Pet. at 29-107.

II. DISCUSSION

(A) Exhaustion and Procedural Default

"It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus unless the petitioner has first exhausted the remedies available in the state courts."Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. § 2254(b)(1)(A)), cert. denied, 532 U.S. 919 (2001); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Specifically, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); see Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001), cert. denied, 535 U.S. 957 (2002).

Requiring exhaustion of state remedies "addresses federalism and comity concerns by `afford[ing] the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'" Lambert, 134 F.3d at 513 n. 18 (citing Toulson, 987 F.2d at 986). Although the exhaustion rule is a matter of comity and not jurisdiction, it "should be strictly adhered to because it expresses respect for our dual judicial system." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990)); see Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996) ("Pursuing state remedies is not a mere formality").

The petitioner bears the burden of proving all facts entitling him to a discharge from custody as well as demonstrating that he has met all procedural requisites entitling him to relief. Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). Thus, the habeas petitioner carries the burden of proving, among other things, exhaustion of available state remedies. Lambert, 134 F.3d at 513; Toulson, 987 F.2d at 987.

In the present case, it appears that petitioner has presented his first six claims to the Pennsylvania courts. In particular, it appears that petitioner raised his first claim on direct appeal, see Commonwealth v. Green, No. 1463 PHL 97, Mem. Op. at 1 (Pa.Super. filed Dec. 31, 1997), and he raised his second through sixth claims on appeal pursuant to the PCRA, see Pa. Super. Ct. Op. filed 11/15/02, at 4. Since it appears that petitioner has given the Pennsylvania courts "one full opportunity" to address his first six claims, petitioner has satisfied the exhaustion requirement with regard to those claims, and this Court may address the merits of those claims. See O'Sullivan, 526 U.S. at 844-45.

With regard to petitioner's seventh claim, as respondent points out, see Resp. to Hab. Pet. at 102-06, it appears that petitioner failed to fairly present that claim to the Pennsylvania courts on direct appeal or in his PCRA appeal. See, e.g., Pa. Super. Ct. Op. filed 11/15/02, at 4; Pa. Super. Ct. Op. filed 12/31/97, at 1. Thus, the Pennsylvania courts did not have "one full opportunity to resolve" petitioner's seventh claim during "one complete round of the State's established appellate review process." See O'Sullivan, 526 U.S. at 844-45; see Wenger, 266 F.3d at 223.

"The failure to `fairly present' federal claims in state court bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted."Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir.) (citingColeman v. Thompson, 501 U.S. 722, 731 (1991)), cert. denied, 123 S. Ct. 195 (2002). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quoting Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). In addition, the doctrine "facilitates the proper review of the federal claims, for those claims `that have been fully exhausted in state courts will more often be accompanied by a complete factual record to aid the federal courts in their review.'" Cristin, 281 F.3d at 410 (quoting Lundy, 455 U.S. at 519).

In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:

In all cases in which a state prisoner has defaulted his federal claims in state court[,] . . . 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 the failure to consider the claims will result in a fundamental miscarriage of justice.

See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S. at 753); see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), cert. denied, 532 U.S. 980 (2001).

In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts, 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'"Id. (quoting Murray, 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin, 281 F.3d at 412 (quoting Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)); see Schlup v. Delo, 513 U.S. 298, 316 (1995).

Here, it appears that petitioner no longer has a remedy by which the state courts could consider his seventh claim because he is now barred from raising that claim in a second PCRA Petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, since petitioner's judgment of conviction became final in 1998, a second PCRA petition would now be time-barred under the PCRA's one-year time limit on filing petitions, including second or subsequent petitions.³ See Walker, 56 Fed. Appx. at 578 n. 1; see also Lines v. Larkins, 208 F.3d 153, 164-66 (3d Cir. 2000), cert. denied, 531 U.S. 1082 (2001).

3 42 Pa. C.S.A. § 9545(b)(1) states: "Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final. . . ." Walker v. Frank, 56 Fed. Appx. 577, 578 n. 1 (3d Cir. Jan. 14, 2003) (emphasis added), cert. denied, 124 S. Ct. 91 (2003); see also Hendel v. Vaughn, 1998 WL 470159, at *5 n. 8 (E.D. Pa. Aug. 10, 1998).

Thus, petitioner's seventh claim is procedurally defaulted in the Pennsylvania courts. To the extent that petitioner claims ineffective assistance of counsel as "cause" for his default, that claim must fail. Initially, it is noted that the conduct of counsel on collateral appeal cannot amount to cause that would excuse a failure to properly litigate a claim in state courts.See Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert. denied, 504 U.S. 944 (1992) ("Ineffectiveness of counsel does not provide sufficient cause to excuse procedural default when counsel is not constitutionally mandated."); Cristin, 281 F.3d at 420 (citing Coleman, 501 U.S. at 752) (there is no constitutional right to counsel at the PCRA level of appeal);see also 28 U.S.C. § 2254(i) (Supp. 2002) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Moreover, petitioner proceeded pro se on PCRA appeal to the Superior Court. See Pa. Super. Ct. Op. filed 11/15/02, at 4. Therefore, he cannot blame ineffective assistance of counsel for his failure to fairly present his seventh claim to the Superior Court on his PCRA appeal. Since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his underlying default, the Court may not consider the merits of petitioner's defaulted claim. See Cristin, 281 F.3d at 409 n. 5 (quoting Coleman, 501 U.S. at 750); see also Werts, 228 F.3d at 194.

(B) Legal Standard Under 28 U.S.C. § 2254

Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132 (Apr. 26, 1996), precludes federal habeas relief as to:

any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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,⁴ 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) (footnote added) (emphasis added); see Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.), cert. denied, 122 S. Ct. 269 (2001). In Williams v. Taylor, 529 U.S. at 412-13, the Supreme Court interpreted the standard under § 2254(d)(1) as follows:

4 "Clearly established Federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta" of the Supreme Court's decisions as of the time of the relevant state court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000); Ross v. Vaughn, 2001 WL 818359, at *3 (E.D. Pa. Jan. 16, 2001); see Lockyer v. Andrade, 123 S. Ct. 1166, 1172 (2003).

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 than [the Supreme] 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 [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

The Court of Appeals for the Third Circuit observed in Matteo v. Superintendent, SCI Albion, 171 F.3d 877 (3d Cir.) (en banc), cert. denied, 528 U.S. 824 (1999),⁵ that to prove entitlement to habeas relief under the "contrary to" provision of § 2254(d)(1), "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedentrequires the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. "This standard precludes granting habeas relief solely on the basis of simple disagreement with a reasonable state court interpretation of the applicable precedent." Id. at 197 (quoting Matteo, 171 F.3d at 888).

5 Prior to the Supreme Court's decision in Williams v. Taylor, the Court of Appeals for the Third Circuit construed the standard of review under § 2254(d)(1) in Matteo. The Third Circuit has since stated that its opinion in Matteo is in accord with the Supreme Court's decision in Williams. See Werts, 228 F.3d at 197.

When making the "unreasonable application" inquiry, the federal habeas court should ask "whether the state court's application of clearly established federal law was objectively unreasonable."Williams, 529 U.S. at 409 (emphasis added); see Chadwick v. Janecka, 312 F.3d 597, 607 (3d Cir. 2002) (citing Williams, 529 U.S. at 409, and Matteo, 171 F.3d at 891), cert. denied, 538 U.S. 1000 (2003). In applying the "unreasonable application" provision of § 2254, "[t]he federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 891 (emphasis added); see Chadwick, 312 F.3d at 607 (citing Matteo, 171 F.3d at 891); Werts, 228 F.3d at 197.

The Supreme Court stressed that an application of federal law may be incorrect but still not unreasonable. Williams, 529 U.S. at 411; see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Thus, mere disagreement with a state court's conclusions is insufficient to justify relief. Williams, 529 U.S. at 411;Matteo, 171 F.3d at 891. In determining whether the state court's application of the Supreme Court precedent is objectively reasonable, habeas courts may consider the decisions of federal courts of appeals and district courts. Id. at 890; Ross, 2001 WL 818359, at *4.

With regard to findings of fact, § 2254(e)(1) provides that a state court's determination of a factual issue⁶ is "presumed to be correct" and further provides that a habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1) (emphasis added); see Chadwick, 312 F.3d at 607;Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. "This presumption applies to the factual determinations of both state trial and appellate courts." Duncan, 256 F.3d at 196; see Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). Furthermore, under Supreme Court and Third Circuit precedent, the presumption of correctness under the habeas statute applies toimplicit factual findings as well as the express findings of the state courts. See Campbell v. Vaughn, 209 F.3d 280, 285-86, 290 (3d Cir. 2000), cert. denied, 531 U.S. 1084 (2001).

6 Factual issues are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators.'" Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996) (quoting Townsend v. Sain, 372 U.S. 293 (1963)).

(C) Double Jeopardy and Collateral Estoppel

In his first claim, petitioner alleges that the trial court violated the doctrines of double jeopardy and collateral estoppel. See Hab. Pet. ¶ 12(A). Specifically, petitioner argues that his acquittal of conspiracy to commit robbery and conspiracy to commit recklessly endangering another person, see Pa. Super. Ct. Op. filed 11/15/02, at 3 (quoting Trial Court Opinion dated 1/31/01, at 2-3), "totally barred his subsequent prosecution because petitioner's lack of intent to rob was decided in his favor" in the previous trial, see Petitioner's Br. at 6 (emphasis added).

The Double Jeopardy Clause of the Fifth Amendment states, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V (emphasis added); see United States v. Coleman, 862 F.2d 455, 457 n. 3 (3d Cir. 1988), cert. denied, 490 U.S. 1070 (1989). Thus, "[t]he Double Jeopardy Clause protects a defendant in a criminal proceeding against multiple punishment or repeated prosecutions for the same offense." See United States v. Leppo, 641 F.2d 149, 152 (3d Cir. 1981).

"The basic test for determining whether two offenses are the `same offense' for double jeopardy purposes is the `same elements' test set forth in Blockburger v. United States," 284 U.S. 299, 304 (1932). United States v. $184,505.01 in United States Currency, 72 F.3d 1160, 1169 (3d Cir. 1995) (citingUnited States v. Dixon, 509 U.S. 688 (1993)), cert. denied, 519 U.S. 807 (1996). Under the "same elements" test, a court "inquires whether each offense contains an element not contained in the other; if not, they are the `same offense' and double jeopardy bars additional punishment and successive prosecution."United States v. Watkins, 339 F.3d 167, 176 (3d Cir. 2003) (citing United States v. Bailey, 111 F.3d 1229, 1236 (5^th Cir. 1997) (quoting Dixon, 509 U.S. at 696)), cert. denied, 124 S. Ct. 1505 (2004).

Here, in addressing petitioner's claims during petitioner's direct appeal, the Superior Court of Pennsylvania cited Ashe v. Swenson, 397 U.S. 436 (1970): "The [F]ifth [A]mendment double jeopardy clause insures that no citizen shall be twice placed in jeopardy for the same offenses. Among other things, the clause protects an individual who has successfully defended himself in a prior proceeding from having to once again face prosecution for the same crime." See Pa. Super. Ct. Op. filed 12/31/97, at 2-3 (citing Ashe, 397 U.S. at 445). In addition, the Superior Court pointed out that: "In determining whether two offenses are the same for double jeopardy purposes, we utilize the `same elements' test set forth originally in Blockburger." See Pa. Super. Ct. Op. filed 12/31/97, at 3.

In applying these standards to petitioner's case, the Superior Court explained that to sustain a conviction for criminalconspiracy under Pennsylvania law, "the Commonwealth must have established that [petitioner] `(1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy." See Pa. Super. Ct. Op. filed 12/31/97, at 3 (citing Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996)) (emphasis added). The Superior Court further explained that, under Pennsylvania law, "[t]o sustain a conviction on accomplice liability theory, no agreement is necessary, only aid is required." See Pa. Super. Ct. Op. filed 12/31/97, at 3 (citing 18 Pa. C.S.A. § 206) (emphasis added). Moreover, the Superior Court observed that "the requisite level of aid for this finding is minimal; the least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice." See Pa. Super. Ct. Op filed 12/31/97, at 3 (citing Commonwealth v. Calderini, 611 A.2d 206, 208 (Pa.Super. 1992), alloc. denied, 625 A.2d 1190 (Pa. 1993)).

The Superior Court further pointed out that "[d]espite the similarities between conspiratorial culpability and accomplice liability, a jury verdict concluding that an individual is not a conspirator does not require a concomitant conclusion that the same individual is not an accomplice." See Pa. Super. Ct. Op. filed 12/31/97, at 3 (quoting Commonwealth v. Tolbert, 670 A.2d 1172, 1185 (Pa.Super. 1995)). Thus, "[t]he jury in [the previous] trial could have reasonably found that despite the absence of an agreement, the [petitioner's] actions aided his codefendant's in their criminal activity." See Pa. Super. Ct. Op. filed 12/31/97, at 35 (quoting Commonwealth v. Boykin, 419 A.2d 92, 94 (Pa.Super. 1983)).

Therefore, the Court found that "there are elements that must be proven to convict on a theory of criminal conspiracy, i.e., an agreement, that do not have to be proven to convict on complicity theory." See Pa. Super. Ct. Op. filed 12/31/97, at 3. Accordingly, the Superior Court concluded that the "Commonwealth was entitled to retry [petitioner] for accomplice liability notwithstanding [petitioner's] previous acquittal of conspiracy."See Pa. Super. Ct. Op. filed 12/31/97, at 5.

As the Supreme Court stated in Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Accordingly, in the present case, this Court must defer to the state court regarding its finding on Pennsylvania law, including the Court's explanation on the elements of the crimes with which petitioner was charged under Pennsylvania law.See Estelle, 502 U.S. at 67-68. In addition, under § 2254(e)(1), this Court must presume that the Superior Court's factual determinations are correct where petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196.

Here, since the crimes with which petitioner was charged in the second trial contain different elements from the crimes with which he was acquitted in the first trial, double jeopardy did not bar petitioner's second trial. See, e.g., Watkins, 339 F.3d at 177 (citing United States v. Felix, 503 U.S. 378, 389 (1992), and Callanan v. United States, 364 U.S. 587, 593 (1961)) ("it is well established that conspiracies and substantive offenses are separate and distinct offenses requiring proof of different elements" and "a substantive crime and a conspiracy to commit that crime are not the `same offence' for double jeopardy purposes"); $184,505.01 in United States Currency, 72 F.3d at 1170 (applying the Blockburger "same element" test). Hence, the Superior Court's denial of petitioner's claim was consistent with federal constitutional requirements, and the state court reasonably applied theBlockburger standard in concluding that petitioner's second trial did not violate double jeopardy principles. See Pa. Super. Ct. Op. filed 12/31/97, at 3-5.

Petitioner further argues that the trial court should have excluded evidence of "all prior knowledge or prior conversation concerning petitioner and [his] allege[d] co-defendant committing the robbery." See Petitioner's Br. at 8 (emphasis added). Thus, petitioner alleges that the trial court violated the doctrine of collateral estoppel.

In a criminal proceeding, the protection of collateral estoppel is embodied in the Fifth Amendment guarantee against double jeopardy. Ferenc v. Dugger, 867 F.2d 1301, 1303 (11^th Cir. 1989) (citing Ashe v. Swenson, 397 U.S. 436 (1970)), cert. denied, 493 U.S. 828 (1989). Whereas "the parent doctrine," double jeopardy, prohibits prosecution of the crime itself, collateral estoppel "simply forbids the government from relitigating certain facts in order to establish the fact of the crime." Ferenc, 867 F.2d at 1303 (quoting United States v. Mock, 604 F.2d 341, 343 (5^th Cir. 1979)).

In quoting Ashe, the Superior Court observed that, under collateral estoppel, "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future proceeding."See Pa. Super. Ct. Op. filed 12/31/97, at 2-3 (quoting Ashe, 397 U.S. at 445); see also Ferenc, 867 F.2d at 1303. "The double jeopardy clause protects against relitigation of an issuenecessarily determined in the defendant's favor by a valid and final judgment." United States v. Console, 13 F.3d 641, 664 (3d Cir. 1993) (citing Ashe, 397 U.S. at 442-45) (emphasis added),cert. denied, 511 U.S. 1076 (1994); see Purter v. Heckler, 771 F.2d 682, 689 n. 5 (3d Cir. 1985) ("collateral estoppel . . . refers to the effect of a judgment in foreclosing relitigation of all matters that were actually and necessarily determined in a prior suit. (emphasis added)).

Thus, "the collateral estoppel component of the Double Jeopardy Clause" does not exclude evidence "simply because it relates to alleged criminal conduct for which a defendant has been acquitted." Console, 13 F.3d at 665 n. 28 (quoting Dowling v. United States, 493 U.S. 342, 348 (1990)). Nor does "[t]he double jeopardy clause . . . preclude the government from relying on the same evidence to prove successively charged offenses." See Console, 13 F.3d at 665 n. 28 (citing United States v. Pungitore, 910 F.2d 1084, 1107 n. 21 (3d Cir. 1990), cert. denied, 500 U.S. 915 (1991)). "Where a previous judgment of acquittal was based upon a general verdict, as is usually the case," a court must "examine the record of a prior proceeding" and determine "whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." See Console, 13 F.3d at 665 n. 28 (quoting Ashe, 397 U.S. at 444).

Thus, in addressing petitioner's claim, the Superior Court pointed out that "where one or several other rational explanations for the jury's actions exist, admission of evidence will not be excluded on collateral estoppel grounds." See Pa. Super. Ct. Op. filed 12/31/97, at 6 (quoting Commonwealth v. Tolbert, 670 A.2d 1172, 1181 (Pa.Super. 1995)). The Superior Court further observed:

For the reasons set forth in the first issue (relating to double jeopardy), evidence of broad criminal intent will not be excluded simply because of the previous acquittal for criminal conspiracy. However, the prosecution would not be permitted to introduce evidence of an agreement between [petitioner] and his alleged coconspirators, as an `agreement' or `plan' is the very essence of a conspiracy.

See Pa. Super. Ct. Op. filed 12/31/97, at 6 (citing 18 Pa. C.S.A. § 903) (parenthetical added). Upon reviewing the record on petitioner's direct appeal, the Superior Court found that the trial court had ruled that, although evidence of prior knowledge and criminal intent were admissible, references to a "plan" related to the robbery were not admissible.⁷ See Pa. Super. Ct. Op. filed 12/31/97, at 7; see also id. at 7 n. 5 (quoting trial judge's statement that "[a]ny reference to a plan among the three of them is excluded based on the jury's verdict that he was not guilty of conspiracy" (emphasis added)).

7 Moreover, in it decision affirming the denial of petitioner's PCRA petition, the Superior Court reiterated: "In [petitioner's] second trial, the Trial Judge ruled that although [petitioner] was charged as an accomplice, he had already been acquitted of conspiracy; therefore, any reference to a plan or conspiracy between [petitioner] and his two co-actors would be excluded." See Pa. Super. Ct. Op. filed 11/15/02, at 24 (emphasis added).

In light of the aforementioned explanations of accomplice liability and conspiracy under Pennsylvania law, the Superior Court explained: "[T]he jury may have found that, although there was criminal intent, there was no agreement. Our review of the record does not refute this possibility." See Pa. Super. Ct. Op. filed 12/31/97, at 8. Therefore, the Superior Court determined: "Consequently, the issue of [petitioner's] criminal intent was not necessarily decided in the first trial, and the only evidence that required exclusion was that specifically relating to an agreement. This is exactly what the trial judge excluded."⁸ Id. at 8 (emphasis added).

8 It is also noted that during petitioner's PCRA appeal, the Superior Court found that "the Trial Judge emphasized to the jury that [petitioner] was not being charged with conspiracy or with making an agreement with either of the other men involved," see Pa. Super. Ct. Op. filed 11/15/02, at 26 (citing N.T. Trial 3/6/97, at 724), and that "the jury was not led to believe that [petitioner] participated in the planning of the robbery," see id. at 26.

As explained above, this Court must defer to the state court regarding its conclusions on state-law questions. See Estelle, 502 U.S. at 67-68. Furthermore, under § 2254(e)(1), this Court must presume that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Here, the trial court excluded the evidence "specifically relating to an agreement," see Pa. Super. Ct. Op. filed 12/31/97, at 8. Furthermore, the jury in the first trial only necessarily determined the lack of an agreement or plan on the part of petitioner, but the jury did not necessarily determine petitioner otherwise had a lack of criminal intent. Therefore, petitioner's claim that the trial court should have excluded evidence of "all prior knowledge or prior conversation concerning petitioner and [his] allege[d] co-defendant committing the robbery," see Petitioner's Br. at 8 (emphasis added), is without merit.

The state court's adjudication of petitioner's claim did not "result 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 28 U.S.C. § 2254(d). Accordingly, petitioner's claim does not warrant habeas relief. See id.

(D) Accomplice Liability Instruction

Petitioner next claims that the Commonwealth improperly added the offense of accomplice liability to the jury instructions "without notice." See Hab. Pet. ¶ 12(B). Initially, it is noted that petitioner's claim alleges a violation of Pennsylvania law, in particular Pennsylvania Rule of Criminal Procedure 564.⁹ See Petitioner's Br. at 12-14 (citing Rule 564 and Pennsylvania caselaw).

9 Pa. R. Crim. P. 564 provides: "The court may allow an information to be amended when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice."

Under 28 U.S.C. § 2254(a), this Court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a) (emphasis added). Thus, issues presented to the federal habeas court which involve a state law matter only do not entitle petitioner to federal habeas corpus relief. See Estelle, 502 U.S. at 67-68). Therefore, here, where petitioner presents a claim alleging a violation of state law, his claim is not cognizable in a § 2254 petition, and habeas relief is therefore not available.

Even if the present petition were construed as alleging ineffective assistance of counsel in failing to raise such a claim, petitioner's claim would not warrant habeas relief. The merits of ineffective assistance claims are governed by the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 390. In Strickland, the Supreme Court set forth the now-familiar standard for reviewing a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires 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; see Williams, 529 U.S. at 390.¹⁰

10 An inquiry into effective assistance of counsel is a mixed question of law and fact. Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996). Therefore, an ineffective assistance claim "require[s] the application of a legal standard to the historical-fact determinations." Id. (quoting Townsend v. Sain, 372 U.S. 293, 310 n. 6 (1963)).

To establish ineffective assistance, a "defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690.

In meeting the prejudice prong of an ineffective assistance claim: "Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; see Williams, 529 U.S. at 391.

Although Strickland discussed a two-prong test in evaluating claims of ineffective assistance, it is unnecessary for a court to address both components of the inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 694. Therefore, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." Id.

In addressing petitioner's claim on petitioner's PCRA appeal, the Superior Court observed that, under Pennsylvania law: "A defendant may be convicted as an accessory though only charged as a principal. As long as the defendant is put on notice that the Commonwealth may pursue theories of liability that link the defendant and another in commission of crimes, the defendant cannot claim that the Commonwealth's pursuit of such a theory surprised and prejudiced the defendant." See Pa. Super. Ct. Op. filed 11/15/02, at 20 (quoting Commonwealth v. Spotz, 716 A.2d 580, 588 (Pa. 1998), cert. denied, 526 U.S. 1070 (1999)) (emphasis added); see also Commonwealth v. Potts, 566 A.2d 287 (Pa. 1989); Commonwealth v. Perkins, 401 A.2d 1320 (Pa. 1979). In denying petitioner's claim, the Superior Court also found that in this case: "[T]he Commonwealth clearly put [petitioner] on notice during its opening statement that it would pursue a theory of accomplice liability for both the homicide and the robbery charges." See Pa. Super. Ct. Op. filed 11/15/02, at 20 (citing N.T. Trial 3/4/97, at 244-45) (emphasis added).

Again, the Court must defer to the state court regarding its conclusions on state law, see Estelle, 502 U.S. at 67-68, and under § 2254(e)(1), the Court must presume that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Under the circumstances in the present case, the Superior Court determined that the fact that the trial court properly instructed the jury on accomplice liability was proper under Pennsylvania law. See Pa. Super. Ct. Op. filed 11/15/02, at 20; see also Commonwealth v. Smith, 482 A.2d 1124, 1126 (Pa.Super. 1984). Since petitioner's claim was meritless under Pennsylvania law, it cannot be said that the failure of petitioner's counsel to raise such a claim constituted ineffective assistance of counsel. Under Strickland, "[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument." United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999); see also Reinert v. Larkin, 211 F. Supp.2d 589, 595 (E.D. Pa. 2002) (habeas relief unavailable where counsel fails to raise a meritless claim); Fahy v. Horn, 2003 WL 22017231, at *50 (E.D. Pa. Aug. 26, 2003) (same). Therefore, habeas relief is unavailable on this claim.

(E) Prior Convictions and Bad Acts

Petitioner next claims that his trial counsel rendered ineffective assistance in eliciting testimony regarding his prior convictions and bad acts. See Hab. Pet. ¶ 12 (C); see also Pa. Super. Ct. Op. filed 11/15/02, at 6. Specifically, petitioner contends that trial counsel's introduction of petitioner's prior convictions resulted in prejudicial testimony. See Hab. Pet. ¶ 12; see also Pa. Super. Ct. Op. filed 11/15/02, at 7.

In addressing petitioner's ineffective assistance claims, the Superior Court of Pennsylvania applied the legal standard under Pennsylvania law and cited Commonwealth v. Stevens, 739 A.2d 507, 512 (Pa. 1999) (citing Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999)). See Pa. Super. Ct. Op. filed 11/15/02, at 6. Both federal and Pennsylvania courts have acknowledged that Pennsylvania has, in essence, adopted the Strickland standard for ineffective assistance claims. See, e.g., Brand v. Gillis, 210 F. Supp.2d 677, 684 (E.D. Pa. 2002) (citing Werts, 228 F.3d at 203) (Pennsylvania standard governing ineffective assistance claims "has been found to be materially identical" to the Strickland test), aff'd, 82 Fed. Appx. 278 (3d Cir. Dec. 2, 2003); Kimball, 724 A.2d at 332 (quoting Commonwealth v. Pierce, 527 A.2d 973, 977 (Pa. 1987)) ("Pennsylvania's standard [for ineffective assistance of counsel claims] and Strickland `constitute the identical rule of law.'"). Thus, the standard applied by the state court in addressing the merits of petitioner's ineffective assistance claims was not "substantially different from the relevant precedent of [the Supreme Court]," and the state-court's decision was in accord with Strickland. See Williams, 529 U.S. at 405-06; Appel, 250 F.3d at 209; Werts, 228 F.3d at 204 (finding that application of Pennsylvania's standard governing ineffective assistance claims was not contrary to established Supreme Court precedent).

Furthermore, petitioner has failed to show that "the state court [was] confronted [with] a set of facts that [were] materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrive[d] at a result different from [the Supreme Court's] precedent." See Williams, 529 U.S. at 406. Consequently, the standard applied by the state court was not "contrary to" the Supreme Court's well-established rule governing ineffective assistance of counsel. See Williams, 529 U.S. at 405-06; Werts, 228 F.3d at 204; Brand, 210 F. Supp.2d at 684 ("The Third Circuit has ruled that [the Pennsylvania] standard is not `contrary to' Strickland").

The Superior Court noted that "the prior convictions at issue here are a robbery/assault and an unauthorized use of a motor vehicle." See Pa. Super. Ct. Op. filed 11/15/02, at 7. Quoting the Supreme Court of Pennsylvania, the Superior Court observed that, under Pennsylvania law, "evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statement, and the date of conviction or the last day of confinement is within ten years of the trial date." See Pa. Super. Ct. Op. filed 11/15/02, at 6-7 (quoting Commonwealth v. Randall, 528 A.2d 1326, 1329 (Pa. 1987)). The Superior Court further explained that while "assault is not considered crimen falsi," "robbery and unauthorized use of a motor vehicle are both crimen falsi, or crimes involving dishonesty or false statement, and may be introduced for impeachment purposes." See Pa. Super. Ct. Op. filed 11/15/02, at 7 (citing Pennsylvania cases).

The Superior Court described the testimony of petitioner's trial counsel at the November 1, 2000 PCRA hearing in pertinent part:

Trial counsel . . . explained that [petitioner] was facing a great deal of evidence, including his own confession to being involved in the robbery and evidence that he stood at the laundromat door with a handgun in his waistband It was understood between himself and [petitioner] that, as a matter of trial strategy, [petitioner] would have to testify in order to explain his confession as well as why he was at the laundromat with a gun. [Petitioner's trial counsel] believed it was necessary that [petitioner] appear open and honest so that the jury would find his testimony credible. To that end, [petitioner's attorney] concluded that it was necessary to have [petitioner] address his prior convictions before the Commonwealth had the opportunity to use them as impeachment.¹¹ [Petitioner's counsel] did not want to be in the position of having to rebut the impeachment evidence. He was hopeful that even though one of the prior convictions was a robbery, its negative impact would be minimized if the jury understood why [petitioner] committed the robbery and understood that he did not use a gun. [Petitioner's attorney] also explained that he used the same strategy in [petitioner's] first trial, and, given the overwhelming evidence against [petitioner], the result was "pretty good."¹² N.T. PCRA Hearing, 11/1/00, at 32. He noted that he was surprised that [the victim's] testimony regarding the robbery differed from [petitioner's], because he believed that [petitioner's] version of events was correct. He claimed that [petitioner] appeared to be truthful, and that the Commonwealth did not refute [petitioner's] version of the robbery in the first trial.

See Pa. Super. Ct. Op. filed 11/15/02, at 10-11 (footnotes in original). In denying petitioner's claim, the Superior Court found:

11 It was understood that the Commonwealth would in fact use the prior convictions for impeachment purposes.

12 [Petitioner] was acquitted of conspiracy to commit robbery and conspiracy to commit reckless endangerment. The jury was unable to reach a verdict on robbery and second degree murder. [Petitioner] was convicted only of reckless endangerment and two (2) firearms violations.

With regard to [counsel's] decision to reveal [petitioner's] prior convictions as a preemptive strike, we hold that [counsel] had a reasonable strategic basis for his action and was, therefore, not ineffective. It was vital that [petitioner] be considered credible by the jury, because there was virtually no evidence in his favor other than his own testimony. Having [petitioner] explain that the prior robbery was a personal matter which resulted from someone stealing from his girlfriend, and that the unauthorized use of a motor vehicle was the unfortunate result of having borrowed a friend's car, as well as the fact that he obtained a gun because he had been attacked and feared for his safety, certainly served to make [petitioner] appear more credible than he would have had the prosecutor brought to light his prior convictions following his direct testimony. Also, [the victim's] testimony could not have been avoided. Had the prior convictions been introduced by the prosecutor as impeachment on cross-examination, [petitioner] would have attempted to explain the circumstances on re-direct, ¹³ and inevitably [the victim] would have been called to rebut [petitioner's] explanation. Moreover, as stated by [petitioner' trial counsel], [petitioner's] version of events did not differ from [the victim's] on the underlying facts. They differed only on the motive, [petitioner] claiming he wanted to retrieve the necklace and [the victim] claiming that [petitioner] stole money.

13 At trial, following [the victim's] testimony, [petitioner] insisted on taking the stand a second time to re-assert that his version of events was correct.

Pa. Super. Ct. Op. filed 11/15/02, at 14 (footnote in original) (emphasis added).

With regard to evidence of the prior assault charges in particular, the Superior Court found that the prosecutor "was careful to avoid mention of the assault charge and conviction." Id. at 16. The Court also found that although Detective David Grandizio did improperly briefly mention the assault charges "early in his testimony," he "did not mention them again, limiting the remainder of his testimony to the robbery conviction." Id. "[B]ecause [petitioner] had already admitted to striking [the victim of the prior robbery/assault] with a tire iron, and because the detective's comment was an isolated incident and not taken advantage of by the prosecutor," petitioner was not "prejudiced by the comment."Id.

Petitioner also alleges that he was prejudiced by the testimony of his supervising parole agent, who was called as a defense witness to testify as to petitioner's good behavior while on parole. See Petitioner's Br. at 16; see also Pa. Super. Ct. Op. filed 11/15/02, at 16-18. As the Superior Court noted, petitioner is apparently claiming that trial counsel's assistance was ineffective in calling the parole agent to testify. See id. at 16.

The Superior Court described relevant portions of the parole agent's testimony as follows:

[The parole agent] served as [petitioner's] parole agent from April of 1993 to December of 1993. He testified that [petitioner] reported approximately twenty (20) times from April to December and that urinalysis conducted as a result of those visits was consistently negative. He testified that [petitioner] missed only one (1) appointment without cause, but that [petitioner] did report the following day. [Petitioner] received a written warning for missing that appointment. In response to a proposed scenario by the prosecutor on cross-examination, [the parole agent] indicated that had [petitioner] carried a weapon or left the city limits he would have violated his parole and would have been taken into custody. He added that [petitioner] had never had a weapon on him at his appointments.

See Pa. Super. Ct. Op. filed 11/15/02, at 16-17. The Court concluded that petitioner was not prejudiced by the parole agent's testimony. In support of that determination, the Court pointed out:

[The agent] testified favorably toward [petitioner] on direct examination by telling the jury that [petitioner] missed only one (1) appointment in nine (9) months, but came in the very next day. He also testified that the results of [petitioner's] urinalysis were always negative. On cross-examination, he explained that if [petitioner] had possessed a loaded gun or left the city limits he would have violated his parole; however, no proof was offered that [petitioner] had ever done so.

Id. at 18. Furthermore, the Court noted that, although the parole agent commented on crossexamination "that the ramifications of missing an appointment were severe because it may indicate that one had a hot urine," see id. at 18, this was simply a response "to the prosecutor's general inquiry about the penalties for failing to report," and this response "did not imply that [petitioner] missed his appointment for that reason,"see id. The Court concluded that "[i]t is unlikely that in the absence of [the parole agent's] testimony, the verdict would have been different." Id. at 18. Thus, the Superior Court found that trial counsel's conduct was not deficient in eliciting testimony of petitioner's prior convictions and bad acts and that petitioner was unable to show prejudice due to counsel's conduct.

Deferring to the state court's findings regarding the admissibility of evidence of the prior convictions under Pennsylvania law, see Estelle, 502 U.S. at 67-68, and in light of the presumption, under § 2254(e)(1), that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence," see 28 U.S.C. § 2254(e)(1); see also Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196, it cannot be said that petitioner's trial counsel rendered constitutionally deficient conduct in eliciting testimony of the prior convictions. See, e.g., United States v. Leon, 4 Fed. Appx. 341, 347 (9^th Cir. Feb. 12, 2001) (citing Williams, 939 F.2d at 723) ("Trial counsel's decision to elicit this evidence [of the defendant's prior conviction] on direct examination was well within the ambit of reasonable trial strategy, a strategy generally taken `to soften the anticipated blow in the eyes of the jury.'"); United States v. Galloway, 937 F.2d 542, 544-45 (10^th Cir. 1991) (attorney who "elicited the fact of [the defendant's] prior convictions from the defendant during the defendant's testimony on direct examination" did not render ineffective assistance; "[i]n light of the evidence against the defendant, counsel's decision was a legitimate tactical move that this court will not second guess"). Nor can it be said that petitioner satisfied his burden of showing that he was prejudiced by counsel's challenged conduct.See Strickland, 466 U.S. at 694; see also Williams, 529 U.S. at 391.

Therefore, the Superior Court reasonably concluded that trial counsel's conduct did not constitute ineffective assistance and that petitioner failed to demonstrate prejudice. See Pa. Super. Ct. Op. filed 11/15/02, at 7-19. Accordingly, the state court's adjudication of petitioner's claims did not "result 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 28 U.S.C. § 2254(d); see also Duncan, 256 F.3d at 196.

(F) Request for Mistrial

Petitioner next claims that the trial court erred in denying his counsel's request for a mistrial based upon a witness's testimony that petitioner participated in the planning of the robbery. See Hab. Pet. ¶ 12(D); see also Pa. Super. Ct. Op. filed 11/15/02, at 23. In particular, petitioner argues that since a witness at the second trial violated the trial court's ruling excluding references to a plan or conspiracy involving petitioner, the trial court should have granted petitioner's motion for mistrial. See Petitioner's Br. at 20-24.

Initially, it is noted that this claim appears to allege a violation of Pennsylvania law. See Petitioner's Br. at 20-24 (citing Pa. R. Crim. P. and Pennsylvania caselaw). Therefore, since, as explained above, only claims specifically alleging a "violation of the Constitution or laws or treaties of the United States," are cognizable in a § 2254 petition, see 28 U.S.C. § 2254(a), habeas relief is not available on this claim to the extent that petitioner does not allege a violation of federal law. See Estelle, 502 U.S. at 67-68.

In addition, to the extent that petitioner's claim may be construed as an alleged violation of federal law, habeas relief is not warranted. In addressing petitioner's claim, the Superior Court of Pennsylvania observed that "in [petitioner's] second trial, the Trial Judge ruled that although [petitioner] was charged as an accomplice, he had already been acquitted of conspiracy; therefore, any reference to a plan or conspiracy between [petitioner] and his two co-actors would be excluded."See Pa. Super. Ct. Op. filed 11/15/02, at 24. The Superior Court further found that during the testimony of Detective Joseph Daniels, Detective Daniels blurted out a reference to petitioner being involved in the planning of the robbery. Id. at 24, 26. However, the Superior Court concluded that "[petitioner] was not prejudiced by the statement." Id. at 26.

The Superior Court explained that Detective Daniels "was present in the interview room while [petitioner] was interviewed by Detective [David] Grandizio," see id. at 24, and that "the following portion of the direct examination of Detective Daniels forms the basis for [petitioner's] argument:"

[Prosecutor]: Did [petitioner] admit to Detective Grandizio that he was in on the robbery and knew it was a robbery going down?

[Defense counsel]: Objection, your Honor.

[Witness]: Yes.

The Court: Considering we have already heard the testimony from Detective Grandizio, I will allow that question.

[Witness]: The defendant was present and participated in the planning of the robbery and the actual —

[Defense counsel]: Objection, your Honor.

The Court: Objection sustained.

See Pa. Super. Ct. Op. filed 11/15/02, at 24 (quoting N.T. Trial 3/6/97, at 688-691) (emphasis added). The Superior Court further quoted the notes of testimony indicating that there was an immediate sidebar conference, after which the trial judge gave the following instruction to the jury: "The jury is instructed to disregard this witness's previous answer to the question."See Pa. Super. Ct. Op. filed 11/15/02, at 25 (quoting N.T. Trial 3/6/97, at 688-691) (emphasis added).

In order for an improper or prejudicial statement to rise to the level of a due process violation, the remarks, when viewed in the context of the entire trial, must be of "sufficient significance" so as to deny the petitioner a fair trial. See Greer v. Miller, 483 U.S. 756, 765 (1987) (applying rule in the context of prosecutorial misconduct); United States v. Bagley, 473 U.S. 667, 676 (1985) (same); Bowen v. Snyder, 1999 WL 1011972, at *5 (D. Del. Oct. 22, 1999). Here, the standard applied by the Superior Court in denying petitioner's claim was consistent with the relevant precedent of the Supreme Court.See, e.g., Pa. Super. Ct. Op. filed 11/15/02, at 23 (observing that a "mistrial is warranted where the incident upon which the motion is based raises a fixed bias in the mind of the factfinder so as to deny the defendant a fair trial").

In support of its denial of petitioner's claim, the Superior Court pointed out that "[n]umerous witnesses were called in this case, which resulted in four (4) days of testimony," and that "Detective Daniels' statement was the only one which indicated that [petitioner] was involved in the planning of the robbery."See Pa. Super. Ct. Op. filed 11/15/02, at 26. In addition, the Court noted that the "jury was instructed to disregard the detective's statement" and that, "[m]oreover, shortly thereafter,the Trial Judge emphasized to the jury that [petitioner] was not being charged with conspiracy or with making an agreement with either of the other men involved." Id. at 26 (citing N.T. Trial 3/6/97, at 724) (emphasis added). Ultimately, the Superior Court found that "the jury was not led to believe that [petitioner] participated in the planning of the robbery." See Pa. Super. Ct. Op. filed 11/15/02, at 26 (emphasis added).

Again, the Superior Court's factual findings are presumed to be correct, since petitioner has failed to rebut the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);Chadwick, 312 F.3d at 607; Duncan, 256 F.3d at 196. Furthermore, the trial court in this case provided immediate curative instructions. See Pa. Super. Ct. Op. filed 11/15/02, at 25-26; see, e.g., United States v. Smith, 565 F.2d 292, 294-95 (4^th Cir. 1977). Since petitioner has failed to demonstrate that the improper remark denied him a fair trial, the Pennsylvania courts properly found that his claim of a due process violation was without merit. See Greer, 483 U.S. at 766 n. 8 ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions, . . . and a strong likelihood that the effect of the evidence would be `devastating' to the defendant") (citations omitted); United States v. Wallace, 32 F.3d 921, 927 (5^th Cir. 1994) (denying petitioner's claim that trial court erred in denying request for mistrial where witness blurted out improper comment); Escobar v. O'Leary, 943 F.2d 711, 720-21 (7^th Cir. 1991) (where the Court determined that although the defendant's improper comment "was regrettable," the defendant's trial "was not fundamentally unfair and consequently his due process rights were not violated"); Smith, 565 F.2d at 294-95 (denial of defendant's request for a mistrial was not reversible error where defense counsel promptly objected and the trial court sustained the objection and gave a curative instruction telling the jury to disregard the improper question and answer).

Petitioner has not demonstrated that Supreme Court precedent "require[d] the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. Nor has he shown that the Pennsylvania court's decision "resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." See Matteo, 171 F.3d at 891; see also Chadwick, 312 F.3d at 607 (citing Matteo, 171 F.3d at 891); Werts, 228 F.3d at 197. Therefore, the state court's adjudication of petitioner's claim did not "result 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," and his claim does not warrant habeas relief. See 28 U.S.C. § 2254(d).

(G) Prosecutorial Misconduct and Improper Testimony

Petitioner next alleges prosecutorial misconduct due to alleged improper comments made by the prosecutor in closing argument.See Hab. Pet. ¶ 12 ("Ground Five"); Petitioner's Br. at 25-29. Petitioner also alleges in his brief ineffective assistance of trial counsel in failing to object to certain allegedly improper comments made during testimony at trial. See Petitioner's Br. at 25-29.

Under the Supreme Court's holding in Darden v. Wainwright, 477 U.S. 168 (1986), in order to overturn a conviction or sentence for improper prosecutorial comments during summation, petitioner must demonstrate prejudice sufficient to show that the comments deprived him of a fair trial or violated the reliability of the sentencing process.¹⁴ See id. at 181; Henry v. Horn, 218 F. Supp.2d 671, 704 (E.D. Pa. 2002). Where a habeas petitioner claims that a prosecutor's remarks were constitutionally improper, the Court must view the statements in the context of the entire proceeding, and the relevant inquiry is whether the prosecutor's remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Greer, 483 U.S. at 765 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); Henry, 218 F. Supp.2d at 704. Thus, the Supreme Court has instructed that, even when prosecutorial remarks are markedly improper, they are not sufficient to merit reversal unless they deprived the petitioner of a fair trial. See Darden, 477 U.S. at 181; Smith v. Phillips, 455 U.S. 209, 221 (1982); see also Ramseur v. Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992), cert. denied, 508 U.S. 947 (1993); Henry, 218 F. Supp.2d at 704.

14 In Darden, the Supreme Court affirmed the decision of the Eleventh Circuit Court of Appeals that upheld a conviction challenged because the prosecutor had allegedly made prejudicial statements during his closing argument. See Darden, 477 U.S. at 181. In particular, the Darden Court concluded that the prosecutor's comments, though improper, had not deprived the defendant of due process in light of the totality of the situation. Id. at 181; see also Greer, 483 U.S. at 766.

In addressing petitioner's claims, the Superior Court of Pennsylvania applied Pennsylvania's standard for evaluating prosecutorial misconduct claims. See Pa. Super. Ct. Op. filed 11/15/02, at 28; see, e.g., Henry, 218 F. Supp.2d at 704 (where Pennsylvania Supreme Court applied the Pennsylvania standard to habeas petitioner's claim). Specifically, the Superior Court noted that

even where the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its "unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict." The effect of such remarks depends upon the atmosphere of the trial.

See Pa. Super. Ct. Op. filed 11/15/02, at 28 (quotingCommonwealth v. Stolfzfus, 337 A.2d 873, 882 (Pa. 1975)); see also Pa. Super. Ct. Op. filed 11/15/02, at 23 (observing that a "mistrial is warranted where the incident upon which the motion is based raises a fixed bias in the mind of the factfinder so as to deny the defendant a fair trial.") (emphasis added). It has been observed that this Pennsylvania standard "places great emphasis on the effect that improper prosecutorial remarks have upon the fairness of the verdict," which "is also the central concern of Darden." See Henry, 218 F. Supp.2d at 705. Thus, the Pennsylvania standard has been held to be consistent with federal law and not "contrary to" or an "unreasonable application" of controlling Supreme Court precedent. See Fahy, 2003 WL 22017231, at * 50; Henry, 218 F. Supp.2d at 705. Similarly, here, the legal standard as applied by the Superior Court was not "substantially different from the relevant precedent of [the Supreme Court]" and was consistent with clearly established federal law as determined by the Supreme Court. See Smith, 455 U.S. at 221; Greer, 483 U.S. at 766; Fahy, 2003 WL 22017231, at * 50; Henry, 218 F. Supp.2d at 705.

With respect to the specific instances which petitioner alleges constituted prosecutorial misconduct, petitioner initially complains that a portion of the prosecutor's closing argument violated the principle that "guilt must not be a product of fear" and that the prosecutor's comments "played on the fear of the jury." See Petitioner's Br. at 25 (citing Pennsylvania cases).¹⁵ As the Superior Court pointed out, petitioner "objects to a portion of the prosecutor's closing argument which referred to the victim . . . as follows:"

15 Petitioner appears to allege a violation of Pennsylvania caselaw, failing to specifically cite or allege a violation of any federal laws. As explained supra, to the extent that petitioner alleges a violation of state law, his claim is not cognizable under § 2254. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68.

We're here today because, without this defendant, without his knowing, intentional assistance, without his help, [the victim] could walk through the doors of the courtroom, but because he was recruited by Hall, and went in there with more muscle, [the victim] is no longer with us. That's why we're here, and we have proven that.

See Pa. Super. Ct. Op. filed 11/15/02, at 35 (quoting N.T. Trial 3/10/97, at 1184); see also Petitioner's Br. at 25.

In addition, petitioner alleges instances where he believes that, during closing argument, the prosecutor bolstered the credibility of Commonwealth witnesses, Tracey Brake¹⁶ and Melvin Mantai.¹⁷ See Petitioner's Br. at 25-29. In its opinion denying petitioner's claims, the Superior Court quoted "the prosecutor's closing argument as it pertained to Tracey Brake:"

16 "Tracey Brake, a resident of Coatesville, was present in the laundromat at the time of the robbery. Tracey Brake was acquainted with Troy Davis, and recognized Darrick Hall, as a friend of Davis when Hall entered the laundromat, because he had seen Hall with Troy Davis days before the incident. Tracey Brake was not familiar with [petitioner], but saw [petitioner] enter the laundromat with Hall and stand by the door until the gunshots were heard. Tracey Brake told the police if they found Troy Davis they would find the murderer." See Pa. Super. Ct. Op. filed 11/15/02, at 28.

17 "Following [petitioner's] testimony, the Commonwealth called the victim of the robbery/assault, Melvin Mantai, in rebuttal." See Pa. Super. Ct. Op. filed 11/15/02, at 9.

Tracey Brake said, hey, you know, on cross-examination by [defense counsel] — I believe he was very credible. You saw his demeanor, you saw how he testified. He's the one who really basically cracked this case. He said to the police, you find him, you find Davis, you find the shooter. Remember he was trying to establish whether he was in or out when the shots went off, and we were all clear now he was definitely in those doors when the shot went off.

Brake said on cross, well, you have to be a magician to be out of here before then. I think we all got a little bit of a chuckle out of his — it was just his spontaneous response, and spontaneousness such as that reeks of truth.

See Pa. Super. Ct. Op. filed 11/15/02, at 28-29 (quoting N.T. Trial 3/10/97, at 1177). The Superior Court found that "[t]he prosecutor was apparently attempting to use Tracey Brake's testimony to establish that [petitioner] remained inside the laundromat until after the gunshots were fired," see Pa. Super. Ct. Op. filed 11/15/02, at 29.

The Superior Court concluded that, "although the prosecutor did improperly comment on Tracey Brake's credibility, the comment did not prejudice [petitioner]." See Pa. Super. Ct. Op. filed 11/15/02, at 29. In support of this conclusion, the Superior Court found that "[i]n addition to Tracy Brake's testimony, [petitioner's] own witness, Tina Bowman, who was also present during the incident, testified that [petitioner] did not run out of the laundromat until after the shots were fired." Id. at 29 (emphasis added). Therefore, the Court found that "[w]ith or without Tracey Brake's testimony, the jury had a basis for finding that [petitioner] remained in the laundromat until the gunshots were fired." Id.

The Superior Court quoted the "prosecutor's closing argument as it pertained to Melvin Mantai" as follows:

And then I asked [petitioner] the most key question. Are you as certain, sir, about the facts of that robbery in 1988 in the City of Philadelphia as you are certain about your testimony today about your participation in this robbery, and he said, yes, I am.

And what did we have to do for you folks, ladies and gentlemen? We went and found Mr. Mantai. You saw Mr. Mantai. He put Mr. Mantai in this case. You saw that man, the fragility of Mr. Mantai, how fragile he was. And he said he was delivering newspapers on that early morning, 6:00 something a.m., in the streets of Philadelphia.

And we tied this defendant to him through the records, because Mr. Mantai, in his infinite truthfulness, wasn't certain if he could say that's the same guy from seven years ago, so we had to tie it in through the records. That tells you tons about his credibility.

Id. at 30-31 (quoting N.T. Trial 3/7/97, at 1084-85). The Court found that, although "the prosecutor improperly commented on a witness' credibility," "the comments did not prejudice [petitioner]." See Pa. Super. Ct. Op. filed 11/15/02, at 31. In support of this conclusion the Superior Court found the following:

Melvin Mantai's testimony was intended to rebut [petitioner's] version of the 1988 robbery and thereby attack his credibility; however, [petitioner's] and Mantai's versions of the robbery were quite similar. [Petitioner] admitted that he hit Mantai with a tire iron and robbed him, just as Mantai testified. He claimed he confronted Mantai about his girlfriend's chain. Mantai testified previously that his attacker mumbled or said something to him that he did not understand The only difference in their versions is that Mantai claimed that seventeen dollars ($17) was taken, and [petitioner] claimed he took the necklace. It is unlikely that this disparity was sufficient to cause a "fixed bias and hostility" toward [petitioner] in the minds of the jurors.

See Pa. Super. Ct. Op. filed 11/15/02, at 31. Thus, upon making its factual determinations, the Superior Court concluded that the prosecutor's conduct did not warrant a mistrial and that "[t]rial counsel was not ineffective for failing to object to the prosecutor's statements." Id.

The Court must presume under § 2254(e)(1), that the Superior Court's factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. In examining the prosecutor's challenged remarks in the context of the trial as a whole, see Greer, 483 U.S. at 766, it cannot be said that petitioner was deprived of a fair trial. See Darden, 477 U.S. at 181; Smith, 455 U.S. at 221; see also Ramseur, 983 F.2d at 1239; Fahy, 2003 WL 22017231, at *50; Henry, 218 F. Supp.2d at 704. The challenged remarks of the prosecutor did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." See Darden, 477 U.S. at 181.

Therefore, under 28 U.S.C. § 2254(d)(1), the adjudication of the state court was not "contrary to" and did not "involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See Williams, 120 S. Ct. at 1523. Nor has petitioner shown that the state court's decision "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." See 28 U.S.C. § 2254(d)(2); Campbell, 209 F.3d at 290. Accordingly, petitioner's prosecutorial misconduct claims must be denied.¹⁸

18 To the extent that the present petition may be construed as alleging ineffective assistance in failing to raise these prosecutorial misconduct claims, habeas relief is unavailable since petitioner's underlying prosecutorial misconduct claims are without merit. As explained supra, under Strickland, "[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument."Sanders, 165 F.3d at 253; see also Reinert, 211 F. Supp.2d at 595; Fahy, 2003 WL 22017231, at *50.

Along with his prosecutorial misconduct claims, petitioner also complains about portions of Detective David Grandizio's testimony. See Petitioner's Br. at 26-27. In construing petitioner's pro se petition liberally, see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)) (pro se documents are to be liberally construed), the habeas petition may be construed as alleging ineffective assistance of trial counsel in failing to object to a portion of Detective Grandizio's testimony wherein he gave the impression that Darrick Hall gave a statement to police which was not presented at trial, and which contradicted petitioner's original statement. See Petitioner's Br. at 26-27; id. at 25 (identifying his claim as an ineffective assistance claim for failing to object to "improper comments"); see also Pa. Super. Ct. Op. filed 11/15/02, at 32.

The Superior Court found that:

Detective Grandizio testified that [petitioner], in his original statement, told him that Darrick Hall asked [petitioner] to go to Coatesville with him so that Hall could collect a debt that was owed him. They were to pick up Troy Davis because he knew how to get to Coatesville and they did not. Hall asked [petitioner] to come in with him because there may be trouble. [Petitioner] saw Hall and the laundromat employee wrestle over the gun, and [petitioner] ran out. He heard gunshots as he fled.

See Pa. Super. Ct. Op. filed 11/15/02, at 32 (citing N.T. 3/5/97, at 522). The Superior Court quoted Detective Grandizio's testimony in relevant part:

Detective: At this point I had already visualized from all my interviews, speaking with eyewitnesses, already speaking with Mr. Hall, that what Mr. Green was telling me didn't fit the puzzle that we were trying to put together, it just didn't make sense, and I let him know that.

Prosecutor: What did you say to him?

Detective: I told him he was full of it and it didn't work, we already had two people that identified two people in there with two guns, we had no knowledge of anybody collecting on a bet, it was already documented that there was a demand for money, so we already knew that there was an armed robbery, no one went in and asked for money for a bet, or collecting on a debt, it was a demand to give money from the owner or the manager of the store.

Prosecutor: So what happened after you told him, it's not —

Detective: Well, he kept trying to sell this to [Detective] Daniels and myself, and we just kept poking holes in it every time he would come up with something. He tried to minimize his involvement, and we just kept telling him, this isn't working, and eventually I told him that Mr. Hall had already been in and basically the jig was up, we got you, you might as well come clean now and let us know what's going on. And he — it finally sunk in after a while that —

Defense counsel: Objection, your Honor, to what he's saying is in my client's mind.

The Court: Objection is sustained. That calls for speculation.

Detective: After enough times of telling Mr. Green we didn't believe what he was saying, things started to come out that made sense to us and it fit what we had already known, and it led me to believe that now we were getting some of the truth from Mr. Green.

See Pa. Super. Ct. Op. filed 11/15/02, at 32-33 (quoting N.T. 3/5/97, at 523-24).

As discussed with respect to the prosecutorial misconduct claims, "[i]n order for an allegedly prejudicial statement to rise to the level of a due process violation, the remarks, when viewed in the context of the entire trial, must be of `sufficient significance' so as to deny the petitioner a fair trial." Bowen v. Snyder, 1999 WL 1011972, at *5 (D. Del. Oct. 22, 1999) (citing Greer, 483 U.S. at 765, and Bagley, 473 U.S. at 676) (denying habeas petitioner's claim that he was prejudiced by improper remark during witness's testimony). The Superior Court found that Detective Grandizio's comment "`it led me to believe that now we were getting some of the truth from Mr. Green' was improper, in that it implied the prosecution's belief of [petitioner's] second version of events in which he stated he knew they were at the laundromat to commit a robbery." See Pa. Super. Ct. Op. filed 11/15/02, at 24-25 (citing Commonwealth v. Kitchen, 730 A.2d 513 (Pa.Super. 1999)). However, the Court concluded that the detective's statement did not prejudice petitioner.

In support of the Superior Court's denial of petitioner's claim, the Court found:

It is unlikely that that lone comment, phrased as it was, had the "unavoidable effect" of prejudicing the jury to the extent that a true verdict could not be rendered. Moreover, the jury had the opportunity to hear [petitioner's] version of events and judge his credibility themselves when he took the stand They were not relying on Detective Grandizio's assessment of the truthfulness of [petitioner's] statements.

See Pa. Super. Ct. Op. filed 11/15/02, at 35 (emphasis added). Therefore, the Superior Court found that trial counsel's assistance was not ineffective in failing to raise a meritless issue. Id.; see Sanders, 165 F.3d at 253 (underStrickland, "[t]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument"); see also Reinert, 211 F. Supp.2d at 595; Fahy, 2003 WL 22017231, at *50.

Again, the Superior Court's factual findings are presumed to be correct, since petitioner failed to rebut the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Chadwick, 312 F.3d at 607; Duncan, 256 F.3d at 196. Since petitioner has failed to demonstrate that the detective's remarks denied him a fair trial, the Pennsylvania courts properly found that his underlying claim was without merit. See Bowen, 1999 WL 1011972, at *5 (citing Greer, 483 U.S. at 765, and Bagley, 473 U.S. at 676). Moreover, the Superior Court reasonably found that petitioner was not prejudiced by the detective's remarks.See Pa. Super. Ct. Op. filed 11/15/02, at 35.

Petitioner has not demonstrated that Supreme Court precedent "require[d] the contrary outcome." Matteo, 171 F.3d at 888 (emphasis added); see Werts, 228 F.3d at 197. Nor has he shown that the Pennsylvania court's decision "resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." See Matteo, 171 F.3d at 891; see also Chadwick, 312 F.3d at 607 (citing Matteo, 171 F.3d at 891); Werts, 228 F.3d at 197. Therefore, the state court's adjudication of petitioner's claim did not "result 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," and his claim does not warrant habeas relief. See 28 U.S.C. § 2254(d); see also Matteo, 171 F.3d at 888, 891; Werts, 228 F.3d at 197.

(H) Miranda Rights

Finally, petitioner claims that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to being questioned and that he did not waive his Miranda rights as claimed by the Commonwealth. See Hab. Pet. ¶ 12 ("Ground Six"); Petitioner's Br. at 30-36; see also Pa. Super. Ct. Op. filed 11/15/02, at 20. Specifically, he contends that he wasquestioned prior to being informed of his rights, and therefore, he argues that his statements were inadmissible at trial and should have been suppressed. See Hab. Pet. § 12; Petitioner's Br. at 30-36; see also Pa. Super. Ct. Op. filed 11/15/02, at 20-21. He also alleges ineffective assistance of counsel in failing to properly raise the Miranda issue. See Petitioner's Br. at 30.

In addressing petitioner's claim, the Superior Court noted that, following a July 15, 1994 hearing on petitioner's motion to suppress his oral and written statements to police, the trial court filed an opinion and order denying petitioner's motion.See Pa. Super. Ct. Op. filed 11/15/02, at 21. The Superior Court described the state court's findings as follows:

In its opinion, the Trial Court found that [petitioner] had been detained at a parole office when he arrived for a scheduled meeting with his parole officer. The Philadelphia Police were summoned and [petitioner] was arrested, taken into custody, and transported to the police station for questioning. Prior to questioning, Detective Grandizio of Chester County read [petitioner] his Miranda rights from a blue card carried by Detective Grandizio for that purpose. [Petitioner] then orally waived his Miranda rights. After questioning, [petitioner's] statement was typed and read aloud to him. The typed statement included [petitioner's] waiver of Miranda rights. [Petitioner] placed his name at the bottom of each page of the typed statement. The Trial Court also noted that there was no evidence that [petitioner] was coerced into waiving his rights. To the contrary, at his arraignment, [petitioner[remarked to the district justice that he had been treated like a gentleman by the police.

Id. at 21-22 (citing Trial Court Op. filed 10/25/94, at 2-5) (emphasis added). The Superior Court found that a "review of the suppression hearing transcript reveals that the Trial Court's findings are supported by the evidence." See Pa. Super. Ct. Op. filed 11/15/02, at 22.

Upon reviewing the record, the Superior Court also independently found:

Detective Grandizio testified that [petitioner] did not speak to the officers from the time he was arrested until they entered the interview room at the police station, and that while at the station he made no requests of any kind. The detective testified that once inside the interview room he read [petitioner] his Miranda rights from a pre-printed blue card. He testified that [petitioner] said that he understood the rights and agreed to waive them. [Petitioner] was then interviewed for approximately three (3) hours. After the interview, [petitioner's] statement was typed. The Miranda rights and [petitioner's] oral waiver were included in the typed statement. The detective testified that he placed the statement on the table between himself and [petitioner] and read the statement aloud. [Petitioner] signed his name to each page of the statement. N.T. Suppression Hearing 7/15/94, at 78-92. The only testimony which contradicted the detective's testimony was that of [petitioner]. The Trial Court found Detective Grandizio's testimony to be credible, and we will not disturb that determination.

Id. at 22-23 (citation omitted) (emphasis added). Therefore, given the facts as found by the Superior Court, the Court found petitioner's claim to be without merit. Id. at 23.

Under § 2254(e)(1), this Court must presume that the state courts' factual determinations are correct since petitioner fails to "rebut the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Duncan, 256 F.3d at 196; Werts, 228 F.3d at 196. Therefore, this Court must presume, among other things, that Detective Grandizio's testimony was credible, that "[petitioner] did not speak to the officers from the time he was arrested until they entered the interview room at the police station," and that "[p]rior to questioning, Detective Grandizio . . . read [petitioner] his Miranda rights."See Pa. Super. Ct. Op. filed 11/15/02, at 21-23 (emphasis added). It must also be presumed under § 2254(e)(1) that petitioner "said that he understood [his] rights and agreed to waive them" and that he "signed his name to each page of the statement." Id. at 22-23.

Under the circumstances in this case, petitioner made a voluntary, knowing, and intelligent waiver of his Miranda rights. Thus, considering the totality of the circumstances, the state court properly denied petitioner's claim that he was questioned prior to being informed of his rights and that his statements were inadmissible at trial and should have been suppressed, or that his counsel rendered ineffective assistance in failing to challenge the trial court's denial of the suppression motion. See Pa. Super. Ct. Op. filed 11/15/02, at 20-21; see also Hab. Pet. § 12; Petitioner's Br. at 30-36.

Petitioner fails to "demonstrate that Supreme Court precedentrequires the contrary outcome." See Matteo, 171 F.3d at 888 (emphasis added). Nor does petitioner show that "the state court decision, evaluated objectively and on the merits, resulted inan outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo, 171 F.3d at 890 (emphasis added); see Werts, 228 F.3d at 197. Thus, the state court's adjudication of petitioner's claim did not "result 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 28 U.S.C. § 2254(d). Accordingly, the present petition should be denied and dismissed.

Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. "A [COA] should issue `only if the applicant has made a substantial showing of the denial of a constitutional right.'" United States v. Drake, 2002 WL 1020972, at *1 (3d Cir. May 21, 2002) (quoting 28 U.S.C. § 2253(c)(2)); see Miller-EL v. Cockrell, 123 S. Ct. 1029, 1039 (2003); Slack v. McDaniel, 529 U.S. 473, 483 (2000). To establish this, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484; see Miller-EL, 123 S. Ct. at 1040; Drake, 2002 WL 1020972, at *1.

Furthermore, when a federal court denies a habeas petition on procedural grounds without reaching the underlying constitutional claims, the prisoner must demonstrate that jurists of reason would find it debatable: (1) whether the petition states a valid claim of the denial of a constitutional right; and (2) whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484; see Miller-El, 123 S. Ct. at 1046 (Scalia, J., concurring) (observing that Slack held "that a habeas petitioner seeking to appeal a district court's denial of habeas relief on procedural grounds must not only make a substantial showing of the denial of a constitutional right but also must demonstrate that jurists of reason would find it debatable whether the district court was correct in its procedural ruling"); Woods v. Kearney, 215 F. Supp.2d 458, 464 (D. Del. 2002). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack, 529 U.S. at 484;see Woods, 215 F. Supp.2d at 464.

Here, since a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's aforementioned procedurally defaulted claim, see Slack, 529 U.S. at 484; see, e.g., Swisher v. True, 325 F.3d 225, 231 (4th Cir.) (finding that COA should not issue where habeas claim was barred by the procedural default doctrine), cert. denied, 123 S. Ct. 2668 (2003), and since petitioner has not made the requisite showing of the denial of a constitutional right with regard to petitioner's remaining claims, a certificate of appealability should not issue. See Slack, 529 U.S. at 484;Drake, 2002 WL 1020972, at *1. Accordingly, the habeas petition should be denied and dismissed, and a COA should not issue.

My Recommendation follows.

RECOMMENDATION

AND NOW, this day of August 2004, upon consideration of the Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 and the Response thereto, for the reasons provided in the accompanying Report, it is hereby RECOMMENDED that the habeas petition be DENIED and DISMISSED and that a certificate of appealability should not issue.