Rush v. Beard, Civil Action No. 08-4843

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtRODRIGUEZ, District Judge
PartiesLARRY RUSH, Petitioner, v. JEFFREY BEARD, et al., Respondents.
Docket NumberCivil Action No. 08-4843
Decision Date01 August 2018

LARRY RUSH, Petitioner,
JEFFREY BEARD, et al., Respondents.

Civil Action No. 08-4843


August 1, 2018




Jennifer L. Givens, Esq.
Cristi Charpentier, Esq.
Federal Community Defender Office
For the Eastern District of Pennsylvania
Capital Habeas Corpus Unit,
Curtis Bldg., Suite 545 West
Independence Square West
Philadelphia, PA 19106
On behalf of Petitioner

John W. Goldsborough, Esq.
Thomas W. Dolgenos, Esq.
District Attorney's Office
Federal Litigation Unit
Three South Penn Square
Philadelphia, PA 19107-3499
On behalf of Respondents

RODRIGUEZ, District Judge1

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This matter comes before the Court upon the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 by Petitioner Larry Rush ("Petitioner"), an inmate sentenced to death and confined at SCI-Greene in Waynesburg, Pennsylvania. (Pet., ECF No. 1.) On December 14, 2010, Petitioner filed his "Memorandum of Law in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254." ("Petr's Mem.," ECF No. 86.) Respondents filed their "Response to Petition for Writ of Habeas Corpus" on October 26, 2011. ("Respondents' Brief," ECF No. 105.) Petitioner filed "Petitioner's Reply in Further Support of Pet. for Writ of Habeas Corpus" on July 16, 2012. ("Petr's Reply," ECF No. 116.) Respondents filed "Sur-reply to Petitioner's Reply" on September 6, 2012. ("Respondents' Sur-reply," ECF No. 118.) Pursuant to Federal Rule of Civil Procedure 78, the Court now decides the petition on the record and briefs, however, reserving Ground Nine of the petition for determination after an evidentiary hearing. For the reasons discussed below, the Court affirms the conviction.


On June 28, 1988, a jury convicted Petitioner of committing murder on May 8, 1987, in Philadelphia, Pennsylvania. (Respondents' Brief, Ex. L, ECF 105-57 at 121-22.)2 The trial was held in the former Career Criminal Program of the Court of Common Pleas of Philadelphia, presided over by the Honorable James D. McCrudden. (Id. at 31.) Judge McCrudden had also presided over two criminal cases against Petitioner, which were "aggravator cases" with respect to the death penalty in this matter; sexual assault and robbery of Annamay Little and Denise Kellar on April 15, 1987, in a Rittenhouse Square florist shop; and the stabbing of Edna Nitterauer on May 4, 1987, in a Chestnut Hill bookstore. (Id. at 22-24 and n. 11, 12.) On direct appeal of

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Petitioner's conviction, the Pennsylvania Supreme Court made the following finding of facts, which are accepted as true unless rebutted by clear and convincing evidence, pursuant to 28 U.S.C. § 2254(e)(1). Commonwealth v. Rush ("RUSH I"), 646 A.2d 557 (Pa. 1994).

In the afternoon of May 8, 1987, Veranica3 James Hands had planned to meet her husband and friends at a shopping mall. She did not arrive as planned, so her husband went looking for her. He went to their apartment on the upper two floors of a three-story duplex on Federal Street in Philadelphia. He was surprised to find the door to the building and the door to their apartment unlocked. On the stair landing of the third-floor bedroom, he found his wife's body, clad in a bathrobe and partially covered with a blanket and pillows. She was eight-and-a-half months pregnant and had been bound, gagged and stabbed to death. She had more than fifty stab wounds, some puncturing vital organs and fatally penetrating her unborn baby.

The third floor of the apartment had been partially ransacked. Pocket change, paper currency, an imitation Rolex watch, Mrs. Hands' high school ring, gold chain bracelet, other watches, rings and jewelry, and a pair of fingerless sporting gloves were missing from the bedroom. There were no signs of forcible entry into the apartment. A bedroom window was open. Typically, the window was only opened when Mrs. Hands looked out to see who was ringing the doorbell.

Late on the day of the crime, Rush appeared at his acquaintance's, Jerry McEachin, residence. Rush seemed nervous and scared. He showed McEachin a "MAC" card bearing Mrs. Hands' name, a high school ring bearing her initials, other jewelry, coins and paper currency, and a pair of fingerless sporting gloves.

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Rush repeatedly looked out the window, telling McEachin he was looking to see if the police were after him. Rush said he just stabbed his cousin in her apartment on Federal Street, and he had stabbed a woman in the past. McEachin saw blood on Rush's shoelaces. Rush explained that he washed the blood from the knife after the stabbing and put it back in its place in the victim's apartment.

That day, police learned that Rush had been living on the first floor of the building where the victim lived. They went to Rush's mother's home, and when Rush approached and saw the police, he fled. The next day, around 2:00 a.m., McEachin saw Rush hiding under a truck in front of McEachin's home. Rush asked whether any police were in the vicinity. Rush and McEachin then tried to use Mrs. Hands' MAC card, and they visited several jewelers to sell some of her jewelry. Later, Rush threw his shoes in a dumpster and told McEachin he hoped he had not left any bloodstains or footprints at the crime scene.

Police recovered the jewelry Rush sold and identified it as belonging to Mrs. Hands. Rush's fingerprints were found on containers where Mrs. Hands kept her pocket change in her bedroom. Rush's thumbprint was found in blood on a doorjamb by Mrs. Hands' body.

Harold James, a former police officer, was the victim's father and Rush's second cousin. At trial, he testified that after he learned of his daughter's murder, he visited the crime scene. He then went to the police station to speak to a homicide detective. While waiting, he encountered Aaron Pringle, who lived in the first-floor apartment of Mrs. Hands' building. Pringle told James that Rush had also been living on the first floor. James spoke with a detective and told him that Rush should be the prime suspect. James' testimony contained no reference to Pringle saying anything incriminating about Rush.

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A police officer testified that when Rush was arrested, he was found hiding behind some clothes in a closet at the home of one of his friends. Rush did not know that the arrest was for a different crime. At trial, to counter the impression that Rush was hiding from the police because he was guilty of killing Mrs. Hands, defense counsel asked the officer what crime he was there to arrest Rush for, and the officer responded that it was for stabbing a lady in a bookstore on Germantown Avenue. Rush had instructed his counsel to elicit this testimony and insisted that he do so. Defense counsel brought this to the attention of the court out of concern for the effect on the jury of evidence of an extraneous crime. The court instructed counsel to proceed on Rush's directive. Rush was convicted and sentenced to death.

On direct appeal, the Pennsylvania Supreme Court held that the evidence was more than sufficient to establish guilt beyond a reasonable doubt for first degree murder, including Petitioner's detailed admissions to McEachin, his possession of the victim's property, and his bloody fingerprint at the crime scene.

The Pennsylvania Supreme Court also held the trial court did not err in admitting testimony of Petitioner's 1979 conviction for robbery, burglary, aggravated assault and attempted rape. The victim of the crime was permitted to describe the attack to establish the identity of the perpetrator of the crimes because the crimes were so similar "that logically the same person has committed both acts." RUSH I, 646 A.2d at 560.

In both cases the intruder gained non-forcible entry, ostensibly by ringing the doorbell. Both victims were neighbors of the appellant and had only recently been introduced to him. Both were attacked while alone in their third floor bedrooms in apartment buildings where appellant resided on the first floor. The victims, both of whom were black, female, and relatively young, had their underclothing or nightclothes pulled from them. Both were then physically restrained and attacked with knives obtained from their own apartments. The assailant repeatedly stabbed both victims until death (or, in the 1979 attack, apparent death) occurred. Mrs. Hands was stabbed more than

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fifty times, and the victim of the previous attack was stabbed eight times. In each case the apartment was ransacked, yet the only valuables taken were small items from the bedroom, i.e., coins, watches, etc. In each case the perpetrator cleaned the borrowed knife and left it at the scene of the crime.... The trial court carefully instructed the jury as to the limited purpose, to wit, identification of the perpetrator, for which evidence of the prior crime could be considered.

Id. at 561.

Petitioner also challenged admission of Harold James' testimony that he "told Detective Morton that as a result of my conversation with Pringle that [Rush] should be the prime suspect." Id. at 562. The court held Petitioner was not prejudiced by his counsel's failure to object to the testimony.

Petitioner also argued his counsel was ineffective for failing to object to the prosecutor's "very brief remark" during closing argument "that the specific intent to kill necessary to a conviction for murder of the first degree could be inferred from the severity of the victim's wounds, the fact that the victim was bound and gagged, and testimony given by the victim of the stabbing that appellant committed in 1979." Id. The court held that defense counsel had in fact objected that the evidence of the 1979 crime could only be considered for identity of the perpetrator, and the trial court gave a curative instruction.

Petitioner also contended that his counsel should have objected to the prosecutor's statement in closing argument "that Harold James, the victim's father, told a police detective that [Rush] should...

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