Allen v. Burns

• Decision Date: 25 May 2016
• Docket Number: Civil Action No. 2: 13-cv-1776
• Parties: AMIR RASHEID ALLEN, Petitioner, v. DANIEL P. BURNS, Superintendent, and THE DISTRICT ATTORNEY OF ALLEGHENY COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

AMIR RASHEID ALLEN, Petitioner, v. DANIEL P. BURNS, Superintendent, and THE DISTRICTATTORNEY OF ALLEGHENY COUNTY, and THE ATTORNEYGENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 2: 13-cv-1776

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

May 25, 2016

Senior District Court Judge Terrence F. McVerry

United States Magistrate Judge Cynthia Reed Eddy

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I.RECOMMENDATION

It is respectfully recommended that the petition for a writ of habeas corpus filed by Petitioner, Amir Racheid Allen, pursuant to 28 U.S.C. § 2254, be dismissed and that a certificate of appealability be denied.

II.REPORT

A.Relevant and Procedural Background

Petitioner, Amir Rasheid Allen("Petitioner" or "Allen"), is a state prisoner confined at the State Correctional Institution - Forest in Marienville, Pennsylvania.He is challenging the judgment of sentence that was imposed upon him by the Court of Common Pleas of Allegheny County on January 3, 2007.The Superior Court of Pennsylvania described the evidence presented at trial as follows:

The Commonwealth's evidence established that on April 8, 2005, the victim, Robert Yetts, was walking with his wife, Melissa, his seven (7) year old son and was carrying his one (1) year old son.The defendant approached the victim and his family, told the victim to step away from his family, and then shot the victim in the chest.The defendant fled and the victim eventually died from his wounds.Evidence as to motive established that the victim and his wife had separated in May of 2004.Approximately six (6) months later, she began a relationship with the defendant.On the night of April 7, 2005the defendant and Melissa were at her house waiting for pizza to be delivered.When the defendant went down to answer a knock at the door, believing it was the pizza being delivered, the victim was there demanding to speak to his estranged wife.A physical confrontation between the victim and the defendant ensued at the conclusion of which the defendant ran from the house.The defendant claimed that the victim then stayed in the apartment with his wife and an argument between them ensured.

After the defendant left the scene, he called the police and indicated there was a domestic disturbance going on at Melissa's apartment.The police went there and asked if her husband was there.She said no, and the police left.The victim eventually left his wife's residence with the understanding that he would return in the morning so that could continue to discuss the future of their relationship.The victim returned the next day at approximately 8:00 a.m.He and his family were walking towards his car when the defendant pulled up, exited his car and shot the victim.

As the victim lay bleeding in the street, Pittsburgh Detective Jill McCoy, happened to drive by and stopped to investigate when she saw the victim fall to the ground.She approached the victim and could not detect a pulse.She summoned other officers and a medic unit.She also spoke with Melissa Yetts who told her that she knew who did this.Yetts provided a description of the vehicle the defendant fled in, but did not immediately identify the defendant by name to Detective McCoy.Neither Detective McCoy nor an off duty firefighter who provided first aid to the victim noticed a weapon on or about the victim.The first uniformed officers on the scene interviewed Melissa Yetts.She told them that the defendant shot her husband, gave a description of the defendant and of the vehicle he was driving, a large, gray Buick.

The Commonwealth also introduced two 911 calls made by the defendant during the early morning hours of April 9(sic) in which he reported that the victim had entered Melissa Yetts house and that he believed that she was in danger.The patrolman who responded to that call also testified.He related that he spoke with Melissa Yetts at around 4:00 a.m. and she reported that her husband was no longer there.The officer did not see any evidence that she had been harmed or that her husband remained in the home.He communicated this information to the defendant, who remained in the area.

The defendant claimed at trial that Melissa Yetts was mistaken in her identification of him as the person she saw shoot her husband.He denied that he shot the victim.

Commonwealth v. Allen, 437 WDA 2007, 963 A.2d 561(Pa. Super. Ct.2008), (unpublished memorandum), appeal denied, 74 A.3d 1029(Pa.2009)(table)(hereinafter referred to as "Allen-2").

Allen was tried by jury between October 5 and 10, 2006, before the Honorable Jeffery A. Manning.Allen was convicted of Murder of the First Degree.On November 3, 2006, Allen was sentenced to a mandatory sentence of life imprisonment.Attorney David Chontos represented Allen during trial, at sentencing, and on direct appeal.

Allen, through Attorney Chontos, filed a timely Notice of Appeal with the Pennsylvania Superior Court, which was docketed at 437 WDA 2007.On appeal, Allen raised the following issues:

Argument A: Alibi Instruction Was Wrong Because It Allowed The Jury To Use His Failure To Prove The Alibi As Evidence Of His Guilt

Argument B: Eyewitness Identification Instruction Was Wrong Because Environmental Factors Were Present Impinging Upon The Opportunity to Observe

Brief for Appellant.(ECFNo. 14-2, Exh. 4at 18, 24.)The Superior Court, by Memorandum dated September 10, 2008, affirmed the judgment of sentence and on April 1, 2009, the Pennsylvania Supreme Court denied further review.

On March 26, 2010, Allen filed a timely pro se petition for relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 - 9546.The PCRA court appointed Scott Coffey, Esquire, to represent Allen who filed an amended petition raising the following claims:

Claim 1 - Quinn Lee Bowman has revealed newly discovered evidence that he was the killer of Robert Yetts, and that Defendant had absolutely nothing to do with the murder.

Claim 2 - Trial /Appellate Counsel was ineffective for failing to preserve a claim that the trial court erred in its alibi charge since it failed to convey that Defendant's failure to prove his alibi cannot be used as evidence of guilt, causing this claim to be waived on direct appeal.

Claim 3 - Trial /Appellate Counsel was ineffective for failing to timely object to, ask for a curative instruction or raise an issue on appeal that the trial court erred in failing to grant a mistrial after Melissa Yetts, out of the blue, testified that Defendant apologized for shooting the victim.

Claim 4 - Trial /Appellate Counsel was ineffective for failing to cross-examine Melissa Yetts about a card that she sent to Defendant while he was incarcerated after the shooting.

Amended PCRA Petition.(ECFNo. 14-2, at 40 - 63).On January 6, 2012, the PCRA court(who was the trial judge who presided over Allen's criminal trial and sentencing) ordered a hearing on the after-discovered evidence issue and dismissed the three claims of ineffective assistance of counsel.Judge Manning appointed Patrick J. Thomassey, Esquire, to represent the witness, Quinn Lee Bowman("Bowman").On April 26, 2012, at the first PCRA hearing, the court ordered that Bowman undergo a mental health evaluation.After being found competent to testify, Bowman testified at Allen's second PCRA hearing held on May 7, 2012.The PCRA court took the matter under advisement and on September 12, 2012, filed a Memorandum Opinion and Order of Court denying relief finding that the testimony of Bowman was "simply not credible, when considered with the evidence presented at trial and, had such evidence been presented, would not likely to have changed the outcome."PRCA Court1925(a) Memorandum Opinion and Order, 9/10/2012(ECFNo. 14-3at 4 - 12)("Allen-3").

Allen, through Attorney Coffey, filed a timely Notice of Appeal, which was docketed at No. 1504 WDA 2012.On appeal, Allen raised the following four claims:

1.Did the trial court err in denying appellant's PCRA petition after two hearings since Quinn Lee Bowman revealed and testified to newly discoveredevidence that he was the killer of Robert Yetts, and that Appellant had absolutely nothing to do with the murder?

2.Did the trial court err in denying Appellant's PCRA petition since trial /appellate counsel was ineffective for failing to preserve a claim that the trial court erred in its alibi charge since it failed to convey that Appellant's failure to prove his alibi cannot be used as evidence of guilt, causing this claim to be waived on direct appeal?

3.Did the trial court err in denying Appellant's PCRA petition since trial /appellate counsel was ineffective for failing to timely object to, ask for a curative instruction or raise an issue on appeal that the trial court erred in failing to grant a mistrial after Melissa Yetts, unexpectedly, testified that Appellant apologized for shooting the victim?

4.Did the trial court err in denying Appellant's PCRA petition since trial /appellate counsel was ineffective for failing to cross-examine Melissa Yetts about a card that she sent to Appellant while he was incarcerated after the shooting.

Brief for Appellant.(ECFNo. 14-3, at 18).

In its March 12, 2013, Memorandum, the Superior Court affirmed the dismissal of the PCRA Petition.(ECFNo. 14-4at 1-18).The Pennsylvania Supreme Court denied further review on September 12, 2013.Allen, pro se, filed a timely Petition for Writ of Certiorari with the United States Supreme Court, which was denied on June 30, 2014.Allen v. Pennsylvania, 134 S. Ct. 2880(2014).

While the Petition for Writ of Certiorari was pending, on December 12, 2013, Allen initiated the present proceedings in this Court by filing a pro se petition for writ of habeas corpus.Respondents filed an Answer on May 9, 2014.(ECF No. 13).The matter is ripe for disposition.

B.Standard of Review

1. 28 U.S.C. § 2254

This case is governed by the federal habeas statute applicable to...