Edward Gee v. Kerestes .

• Decision Date: 17 June 2010
• Docket Number: Civil Action No. 09-825.
• Citation: 722 F.Supp.2d 617
• Parties: Edward GEE, Petitioner, v. John KERESTES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

722 F.Supp.2d 617

Edward GEE, Petitioner,

v.John KERESTES, et al., Defendants.

Civil Action No. 09-825.

United States District Court,E.D. Pennsylvania.

June 17, 2010.

Edward Gee, Frackville, PA, pro se.

Joshua Scott Goldwert, Philadelphia District Attorney's Office, Philadelphia, PA, for Defendants.

MEMORANDUM

ANITA B. BRODY, District Judge.

I. Introduction

Edward Gee (“Gee”) petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I referred the petition to Chief Magistrate Judge Rueter for a Report and Recommendation (“R & R”) in accordance with 28 U.S.C. § 636(b)(1)(B). Judge Rueter recommended that I deny the petition. Gee filed objections. For the reasons discussed below, I will overrule Gee's objections, adopt the R & R with one exception, and deny the petition for a writ of habeas corpus.

II. Background

The R & R recites the factual and procedural background of this case. I will mention here only those facts relevant to Gee's objections. On January 28, 2000, Gee was convicted of third-degree murder and carrying a firearm without a license. Gee was identified as the driver in a drive-by shooting in which the victim was killed by a single shot that came from the passenger-side window of the vehicle. After the shooting, Gee engaged the police in a car chase and was only apprehended after his car was involved in an accident. (R & R at 1 & n. 1.)

At trial, the court was informed that Gee had prior convictions for robbery and theft. The court ruled that the prior convictions were admissible for impeachment purposes if Gee testified. (R & R at 10.) After the prosecutor and Gee's trial counsel advised him as to the purposes for which his prior convictions could be used (namely, to assess his credibility), Gee confirmed to the trial court that he understood these purposes and subsequently chose not to testify. (Gov't's Resp. to Pet'r's Obj. at 3.) During summation, the prosecutor referred to Gee as “a murderer.” (R & R at 19.) Gee's trial counsel did not object to the prosecutor's comment, but the trial court provided a cautionary instruction to the jury, explaining that closing arguments were not evidence and were not to be treated as such. (R & R at 21-22.) In his Post Conviction Relief Act (“PCRA”) petition, Gee argued, among other things, that his trial counsel's failure to object to this comment deprived him of the effective assistance of counsel.

Gee's PCRA petition was ultimately denied by the Superior Court of Pennsylvania. The Supreme Court of Pennsylvania denied Gee's request for discretionary review. Gee then filed the instant petition for a writ of habeas corpus. (R & R at 3.)

III. Standard of Review

This petition is governed by the revisions to the federal habeas statute enacted in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Pursuant to AEDPA,

[W]hen a federal court reviews a state court's ruling on federal law, or its application of federal law to a particular set of facts, the state court's decision must stand unless it is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

Lam v. Kelchner, 304 F.3d 256, 263 (3d Cir.2002) (quoting 28 U.S.C. § 2254(d)(1)). A state court decision is “contrary” to clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in ^{reme Court} cases,” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e] ^reme Court and nevertheless arrives at a result different from [its] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, habeas relief should be granted “when the state court ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a ... case.’ ” Lam, 304 F.3d at 263 (quoting Williams, 529 U.S. at 407-08, 120 S.Ct. 1495); see also Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009) (“Where ... it is the state court's application of governing federal law that is challenged, the decision must be shown to be not only erroneous, but objectively unreasonable.” (internal quotation marks omitted)).

Where a petition for a writ of habeas corpus has been referred to a magistrate judge for a Report and Recommendation, the district court “shall make a de novo determination of those portions of the report ... to which objection is made.... [The court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b).

IV. Discussion

Gee raises four claims in his habeas petition: (1) that his conviction resulted from state court errors that had the cumulative effect of denying him a fair trial; (2) that the evidence supporting his conviction was insufficient to persuade a jury of guilt beyond a reasonable doubt; (3) that his conviction was obtained through prosecutorial misconduct; and (4) that his trial and direct appeal counsel were ineffective. (R & R at 3-4.) Judge Rueter concluded that each claim should be denied and recommended that I deny the petition.

Gee filed four objections to the R & R:

(1) that Judge Rueter erroneously concluded that Gee was not deprived of fundamental fairness in his trial where Gee had refused to testify under the mistaken belief that the trial court had ruled that Gee's prior convictions were admissible as substantive evidence;

(2) that Judge Rueter erroneously rejected Gee's claim that there was insufficient evidence adduced at trial to support his murder conviction;

(3) that Judge Rueter erroneously rejected Gee's claim that his conviction was obtained as a result of prosecutorial misconduct; and(4) that Judge Rueter erroneously rejected Gee's claim that his trial and direct appeal counsel were ineffective.

(Pet'r's Obj. at 2-6.) I will consider these in turn, each on the merits. After reviewing the record, I conclude that Gee's objections are overruled, adopt the R & R-with one exception-and deny the petition for a writ of habeas corpus.

A. Impeachment with Previous Convictions

Gee's first objection to the R & R relates to Judge Rueter's conclusion that Gee was not deprived of fundamental fairness in his trial due to the trial court's ruling that evidence of his prior convictions was admissible for impeachment purposes. Gee asserts that he chose not to testify because he mistakenly believed that his prior convictions could be used as substantive evidence, rather than as evidence pertaining solely to his credibility. (Pet'r's Obj. at 2.) Gee believes that if the jury had heard his testimony, it would concluded that he lacked the required culpability for the offenses. This, Gee submits, is a denial of fundamental fairness at trial. Id.

The Commonwealth argues that Gee's objection is a novel claim that he has not previously presented to any court and is therefore procedurally defaulted. (Gov't's Resp. to Pet'r's Obj. at 2.) However, under 28 U.S.C. § 2254(b)(2), an application for a writ of habeas corpus may be denied on the merits, notwithstanding the petitioner's failure to exhaust remedies in the state's courts. Therefore, although the government is likely correct that Gee failed to exhaust this claim, I will address it on its merits.

In presenting the issue before Judge Rueter, Gee simply claimed that the trial court's ruling on the admissibility of his prior convictions denied him a fair trial. Judge Rueter correctly noted in his R & R that Gee's questioning of the trial court's ruling is only cognizable under federal habeas review to the extent that the trial court's ruling can be said to have deprived Gee of fundamental fairness in his trial. ( See R & R at 12, quoting Laird v. Horn, 159 F.Supp.2d 58, 98-99 (E.D.Pa.2001) (“[E]videntiary errors made by the state court are not considered to be of constitutional proportions ... unless the error deprives the defendant of fundamental fairness in his criminal trial.”)). See also Bisaccia v. Att'y Gen., 623 F.2d 307, 312 (3d Cir.1980) (same).

Judge Rueter properly concluded that Gee was not deprived of fundamental fairness in his trial because of the “longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and his testimony assailed like that of any other witness.’ ” Portuondo v. Agard, 529 U.S. 61, 69, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000) (quoting Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)). This rule applies even though “[a] defendant might refuse to testify simply out of fear that he will be made to look bad by clever counsel, or fear that his prior convictions will prejudice the jury.” Id. at 67, 120 S.Ct. 1119 (internal quotation marks omitted). The Supreme Court has recognized a defendant's decision not to take the stand as “a choice of litigation tactics.” Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Gee now claims that he chose not to testify because he mistakenly believed that his prior convictions could be used as substantive evidence that he committed the crimes for which he was accused. (Pet'r's Obj. at 2.) Yet, as the government describes in detail, both the prosecutor and Gee's trial counsel specifically advised Gee in open court as to what the jury would and would not be entitled to conclude from his previous convictions for crimes of dishonesty. At the direction of the trial court, Gee confirmed that he understood the purposes for which his prior convictions could be used. (Gov't's Resp. to Pet'r's Obj. at 3.) Thus, Gee cannot now claim that his decision not to testify was uninformed. His decision not to testify was a strategic choice that, under clearly established federal law, does not give rise to a deprivation of fundamental fairness claim. Consequently, I overrule Gee's objection to Judge Rueter's...