This information is taken from the Petition for Writ of 1

Habeas Corpus, the Response, the Reply, the Sur-Reply, the

Response to New Matter in the Sur-Reply, and all attachments to

those pleadings. 

The evidence at trial established that on November 16, 2

1982, Rollins walked into the R&F Bar around midnight and

approached Darrell Williams, also known as Saheed. Rollins told

Williams that he wanted to talk about his brother Freddy, also

known as Mioshi, who had been killed prior to November 16, 1982. 

Rollins and Williams sat in a booth in the bar to talk. 

Rollins told Williams that he knew that Williams had knowledge of

where the people who were involved in Mioshi’s death lived. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________

:

SAHARRIS ROLLINS, : CIVIL ACTION

:

 Petitioner, :

:

v. : NO. 04-2544

:

JEFFREY BEARD, et al., :

:

 Respondents. :

________________________________:

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE

 

REPORT AND RECOMMENDATION

Saharris Rollins has filed a counseled Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons that

follow, I recommended that the Petition should be denied with

prejudice and dismissed without an evidentiary hearing.

I. PROCEDURAL HISTORY.1

On July 21, 1988, following a five-day jury trial with coDefendant Eddie Ward, Rollins was found guilty of first degree

murder. The Honorable Michael R. Stiles of the Court of Common 2

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 1 of 37
Rollins asked Williams where they lived, and Williams told him

across the street. Rollins then said that he wanted to get them

and that he was going to go in and kill them. 

At that point, Kevin Johnson, the deceased, walked into the

bar to get change to buy a pack of cigarettes. Williams pointed

out Johnson as one of the men who lived at the house where those

involved with Mioshi’s death lived. Rollins then loaded his gun

under the table, said he was going to kill Johnson, got up, and

left the bar. Williams then also got up and left the bar. 

Outside the bar, Rollins said to Williams, “This dude is gone.” 

A short time later, Johnson left the bar. Williams heard a

gunshot and turned to see Rollins fire two or three more shots

into Johnson. Rollins and Williams fled the scene.

Two other witnesses, Charlene Wiggins and Crawford Matthews,

testified at trial that, after hearing the initial gunshot, they

turned to see Rollins firing repeatedly at the victim. 

Johnson was pronounced dead at 12:40 a.m. on November 16,

1982. On November 17, 1982, a postmortem examination was

conducted and the medical examiner determined the cause of death

was homicide as a result of the combined effects of the four

bullet wounds to the body. (Resp. Ex. A at 2-3.)

2

Pleas of Philadelphia County sustained a demurrer to the murder

charge filed by Ward. On June 19, 1989, Judge Stiles denied

Rollins’s post-verdict motions and sentenced Rollins to life

imprisonment. (Resp. Ex. A.)

Rollins filed a timely direct appeal with the Pennsylvania

Superior Court, claiming that the trial court: (1) abused its

discretion by refusing to grant him additional peremptory

challenges; (2) erred in denying Rollins’s requests for a jury

instruction under Commonwealth v. Kloiber, 106 A.2d 820 (Pa.

1954), concerning the jury’s consideration of identification

testimony and an instruction advising the jury on the effect of

the prosecution’s deal with Darrell Williams, one of Rollins’s

accomplices who testified against Rollins in exchange for a

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 2 of 37
The pro se petition was filed on January 14, 1997, two days 3

before the state time bar for Rollins to seek collateral review

expired. (See Resp. Ex. C.)

I note that neither party has appended Rollins’s original 4

or counseled PCRA petition. On July 2, 2001, the PCRA court

filed an opinion setting forth its reasons for dismissing the

PCRA petition, in which the court set out the claims presented. 

The entire reasoning of the court follows:

 Defendant claims prosecutorial misconduct occurred

when false information was provided to obtain a capital

jury. Judge Stiles decided the evidence did not

support the aggravating circumstance of knowingly

creating a grave risk of death to another person. This

decision was reached following an evaluation of the

evidence. The decision that the bystanders were too

far away to the [sic] subjected to a grave risk of

death was made following an evaluation of the evidence

presented at trial. Prosecutorial misconduct did not

occur. As such counsel could not be ineffective for

failing to object to a death qualified jury.

3

guilty plea to third degree murder; and (3) erred in instructing

the jury on malice. (Pet. Reply Ex. E.) The Superior Court

affirmed the judgments of sentence on March 1, 1990. (Resp., Ex.

B, Commonwealth v. Rollins, 576 A.2d 1138 (Pa. Super. Ct. 1990).) 

On August 24, 1992, the Pennsylvania Supreme Court denied the

petition for discretionary review. See Commonwealth v. Rollins,

0268 E.D.A.D. 1990 (Pa. Aug. 24, 1992). 

Rollins filed a timely pro se petition under the

Pennsylvania Post Conviction Relief Act, 42 Pa. C.S.A. § 9541, et

seq. (“PCRA”) on January 14, 1997. Counsel was appointed and, 3

on December 7, 1999, filed an amended PCRA petition. The

Commonwealth filed a Motion to Dismiss on April 16, 2001, which

the PCRA court granted by order of May 30, 2001. (Resp. Ex. C.) 4

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 3 of 37
 Defendant argues that trial counsel was

ineffective for not objecting to the jury being allowed

to deliberate in their hotel. This claim is specious. 

More importantly, defendant cannot establish that this

arrangement for the continued deliberations prejudiced

his case.

 Defendant raises a Batson challenge. He claims

racial discrimination was involved in the selection of

the jury. Defendant’s claim is general and without

specifics. Moreover, the record does not support his

claim.

 Since none of the defendant’s claims have merit,

defendant’s final allegation that the cumulative effect

renders his trial unfair is without merit.

 For these reasons, the Commonwealth’s motion to

dismiss was granted.

(Resp. Ex. C at 1-2.) 

Rollins also claimed that the PCRA court had erred in 5

dismissing the petition without a hearing. (Resp. Ex. E.)

4

Rollins, represented by his appointed PCRA counsel, appealed

the dismissal to the Pennsylvania Superior Court, arguing: (1) a

violation of Batson v. Kentucky, 476 U.S. 79 (1986); (2) trial

counsel was ineffective for not objecting to the designation of

his case as a capital murder based on what Rollins alleged was a

false and misleading aggravating circumstance; and (3) the trial

court erred in its decision to permit the jury to continue

deliberating at its hotel. (Resp. Ex. E.) On March 13, 2002, 5

new counsel entered her appearance on behalf of Rollins, and on

October 17, 2002, the Superior Court granted new counsel’s motion

to file a supplemental brief. Counsel thereafter sought and was

granted numerous extensions of time to file the supplemental

brief, but on March 24, 2003, when the instant case was submitted

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 4 of 37
5

to the Superior Court panel, no supplemental brief had actually

been filed. (See Resp. Sur Reply Ex. A.) On May 30, 2003, based

on the briefs filed by Rollins’s former counsel and the

Commonwealth, the Superior Court affirmed the denial of PCRA

relief. (Resp. Ex. D, Commonwealth v. Rollins, No. 1942 EDA

2001.) 

On July 15, 2003, Rollins filed an amended petition for

allowance of appeal with the Pennsylvania Supreme Court. (Pet.

Reply Mem. Ex. A.) In it, he argued that: 1) PCRA counsel was

ineffective for failing to raise claims; 2) trial counsel was

ineffective – and PCRA counsel was ineffective for failing to

raise trial counsel ineffectiveness – for: a) failing to

interview witnesses and conduct a pre-trial investigation, b)

failing to look into what occurred at an earlier preliminary

hearing where similar charges were dismissed, and c) failing to

request impeachment evidence in the Commonwealth’s possession;

and 3) the Commonwealth failed to disclose Brady material. (Id.) 

On March 3, 2004, the Pennsylvania Supreme Court denied Rollins’s

amended petition for allowance of appeal.

Rollins filed the instant federal habeas petition on June

10, 2004, raising twelve issues. Those issues are: (1) a denial

of effective assistance of trial counsel for (a) failure to

conduct any investigation into the case, (b) failure to file an

omnibus pre-trial motion or other motions, and (c) failure to

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 5 of 37
6

investigate the preliminary hearing where the same charges were

dismissed; (2) his conviction was obtained by failure of the

prosecution to turn over Brady evidence favorable to Rollins; (3)

a violation of due process because the prosecution thwarted his

PCRA proceedings and the PCRA court permitted his attorney to

ignore his issues and not investigate his case; (4) both

prosecutorial misconduct in using jury strikes in a racially

discriminatory manner, and trial counsel ineffectiveness in

failing to object the prosecution’s jury strikes; (5) a denial of

due process due to the Commonwealth’s empaneling a deathqualified jury in a non-capital case and trial counsel

ineffectiveness in failing to object to the Commonwealth’s

actions; (6) a denial of due process when a death-qualified jury

convicted him in a non-capital case, and trial counsel

ineffectiveness in failing to object to or argue this error; (7)

a violation of constitutional rights arising from the jury being

permitted to conduct improper deliberations in a hotel room as

opposed to proper deliberations in a jury deliberation room, and

trial counsel ineffectiveness in failing to object to or argue

this error; (8) the trial court violated Rollins’s due process by

acting arbitrarily and denying Rollins an appropriate number of

peremptory challenges, and trial counsel’s argument was

ineffective; (9) the trial court unconstitutionally refused to

provide the required instructions on identification and witness

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 6 of 37
In his Reply Memorandum and Proffer of Facts to Support the 6

Petition, Rollins withdraws his tenth claim for relief, i.e.,

that the trial court’s instructions on malice, intent and the

liability of each defendant were vague and unconstitutional,

violated Rollins’s right to a proper jury verdict, and impeded a

finding of not guilty, or guilty of a lesser charge, or of a

degree less than first or manslaughter, and counsel did not make

an effective objection or argument.

7

credibility, and counsel’s argument was ineffective; (10) the

trial court’s instructions on malice, intent, and the liability

of each defendant were vague and unconstitutional, violated

Rollins’s right to a proper jury verdict, and impeded a finding

of not guilty, or guilty of a lesser charge, or of a degree less

than first degree murder or manslaughter, and counsel did not

make an effective objection or argument; (11) direct appeal

counsel provided ineffective assistance for not raising and/or

effectively arguing all of his federal issues; and (12) due to

ineffective assistance of counsel and violations of due process,

Rollins’s conviction and the denials of relief in state court are

unconstitutional. 

6

On July 21, 2004, this case was referred by the Honorable J.

Curtis Joyner for preparation of a Report and Recommendation. In

its Response filed on December 10, 2004, the Commonwealth

contends that some of these claims are procedurally defaulted,

all are meritless, and none are entitled to federal habeas

review. 

Rollins requested appointment of counsel, and on January 28,

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 7 of 37
8

2005, based upon the fact that the Federal Defender’s Office was

already representing Rollins in a separate habeas action, I

granted Rollins’s request for appointment of counsel and directed

that a Reply, if any, to the Response should be filed by

Rollins’s counsel on or before March 14, 2005. Counsel was

thereafter granted various unopposed extensions of time to file

the Reply by August 15, 2005. Thereafter, counsel for

Respondents and counsel for Rollins attempted to devise a global

settlement of Rollins’s two habeas cases. When settlement

discussions proved fruitless, Respondents were ordered to file a

Sur-Reply to the Petition. Rollins filed a Supplement to his

Reply Memorandum and Proffer of Facts in Support of the Petition

on May 15, 2006. Respondents filed their Sur-Reply to the

Petition on June 1, 2006; Rollins filed a Memorandum in Response

to the New Matter Contained in the Commonwealth’s Sur-Reply on

June 21, 2006. 

II. DISCUSSION.

A. Rollins’s First Issue – Ineffective Assistance of Trial

Counsel.

Rollins’s claims that trial counsel was ineffective when he:

(1) failed to conduct any investigation; (2) failed to file pretrial motions; and 3) failed to investigate the March 1984

preliminary hearing where similar charges against him were

dismissed. These issues were presented to the state courts only

in Rollins’s amended petition for allowance of appeal to the

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 8 of 37
9

Pennsylvania Supreme Court, following the Superior Court’s

affirmance of the dismissal of his PCRA petition. I recommend

that each of these claims is procedurally defaulted with no

showing of cause and prejudice or a miscarriage of justice. I

also recommend that, even if not defaulted, they have no merit.

1. The Exhaustion Doctrine and Procedural Default.

The federal habeas statute requires that prisoners exhaust

their claims in state court before seeking relief from the

federal courts. See 28 U.S.C. § 2254(b)(1)(A) (“An application

for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted

unless it appears that . . . the applicant has exhausted the

remedies available in the courts of the State.”). Absent

exceptional circumstances, a federal court may not determine the

merits of a habeas corpus petition until the petitioner has

exhausted all means of available relief under state law. 28

U.S.C. § 3354(b); O’Sullivan v. Boerkel, 526 U.S. 838, 839

(1999); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). 

Principles of comity “dictate that when a prisoner alleges that

his continued confinement for a state court conviction violates

federal law, the state courts should have the first opportunity

to review this claim and provide any necessary relief.” 

O’Sullivan, 526 U.S. at 844-45. The petitioner bears the burden

of proving that he has exhausted available state remedies. 

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 9 of 37
10

Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990).

“Just as in those cases in which a state prisoner fails to

exhaust state remedies, a habeas petitioner who has failed to

meet the State’s procedural requirements for presenting his

federal claims has deprived the state courts of an opportunity to

address those claims in the first instance.” Coleman v.

Thompson, 501 U.S. 722,731-732 (1991). A state procedural rule

is “independent” and “adequate” – and thus effective to preclude

(or “procedurally default”) habeas review - only if: (1) the

state procedural rule speaks in unmistakable terms; (2) all state

appellate courts have refused to review the petitioner's claims

on the merits; and (3) the state courts’ refusal in this instance

is consistent with other decisions. Doctor v. Walters, 96 F.3d

675, 683-84 (3d Cir. 1996). Elaborating on the third

requirement, the United States Court of Appeals for the Third

Circuit has noted that the state procedural rule must be

evenhandedly administered and “consistently and regularly

applied.” Id. at 684 (quoting Johnson v. Mississippi, 486 U.S.

578 (1988)). It is sufficient that the procedural rule be

“applied in a ‘consistent and regular manner’” “in the ‘vast

majority of cases’.” Id. (quoting Dugger v. Adams, 489 U.S. 401,

410 n. 6 (1989)).

The default will be excused if petitioner can demonstrate

that a failure to consider his claims will result in a

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11

miscarriage of justice. Id. at 750. The United States Supreme

Court has repeatedly held, however, that the scope of the

miscarriage of justice exception is a narrow one. Sawyer v.

Whitley, 505 U.S. 333 (1992); McCleskey v. Zant, 499 U.S. 467

(1991); Dugger, 489 U.S. at 401. This exception only applies

when “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Murray v. Carrier,

477 U.S. 478, 496 (1986). The Supreme Court has suggested that

the test for actual innocence is whether there is “a fair

probability that, in light of all the evidence, including that to

have been . . . wrongly excluded or to have become available only

after trial, the trier of the fact would have entertained a

reasonable doubt of his guilt.” Kuhlmann v. Wilson, 477 U.S.

436, 454-55 n.17 (1986). 

The procedural default in this case was the failure of the

petitioner to include these claims in his timely filed PCRA

petition. It is clear from the record that Rollins raised these

claims for the first time in his Petition for Allowance of Appeal

to the Pennsylvania Supreme Court, following the Superior Court’s

affirmance of the dismissal of his PCRA petition. In

Commonwealth v. Griffin, 644 A.2d 1167, 1170 (Pa. 1994), the

Pennsylvania Supreme Court held that “[i]n order to preserve a

claim of ineffectiveness of counsel under the PCRA, the claims

must be raised at the earliest stage in the proceedings at which

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 11 of 37
12

the allegedly ineffective counsel is no longer representing the

defendant.” Id. at 1171. The Pennsylvania Supreme Court

specifically decided that a claim of trial or appellate error is

waived if raised for the first time in an appeal of a PCRA

petition. Id. (citing Commonwealth v. Hubbard, 372 A.2d 687 (Pa.

1977)). Unless raised in the PCRA petition itself, any

assertions of ineffectiveness are waived under Pennsylvania law. 

Id. (citing Commonwealth v. McNeal, 426 A.2d 606 (Pa. 1981)).

I recommend that this waiver rule is an independent and

adequate state procedural rule that Rollins violated. As the

time for filing any new state petition to exhaust these claims

has long since expired, they are unexhausted and procedurally

defaulted with no showing of cause and prejudice or miscarriage

of justice.

2. Constitutional Ineffectiveness.

Even if they were not defaulted, I recommend that none of

these claims of constitutional ineffectiveness has merit. First,

Rollins does not provide any context to support his assertion

that his trial counsel did not investigate his case. Respondents

point to Rollins’s trial counsel’s utilization of the notes of

testimony from the grand jury proceedings to impeach those

witnesses who had appeared before the grand jury. Respondents

also note that counsel’s failure to file pre-trial motions,

without more, fails to allege a colorable claim of

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 12 of 37
13

ineffectiveness. See Kimmelman v. Morrison, 477 U.S. 365 (1986)

(holding that the failure to file a motion to suppress is not per

se ineffectiveness).

The cause of action for ineffective assistance of counsel is

based on the Sixth Amendment right to counsel, and exists “in

order to protect the fundamental right to a fair trial.” 

Lockhart v. Fretwell, 506 U.S. 364, 368 (1993)(quoting Strickland

v. Washington, 466 U.S. 668, 684 (1984)). A claim for

ineffective counsel must meet the two-part test advanced by the

Strickland court. First, petitioner must show that counsel “made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment. 

Second, [petitioner] must show that the deficient performance

prejudiced the defense. This requires a 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. More precisely, petitioner must show that (1) his

attorney’s performance was unreasonable under prevailing

professional norms, and, unless prejudice is presumed, that (2)

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result would have been different. 

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

Several important factors are considered in evaluating an

attorney’s performance under Strickland. First, there are no

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 13 of 37
14

detailed rules or guidelines for counsel to follow for any

particular set of circumstances. “Any such set of rules would

interfere with the constitutionally protected independence of

counsel and restrict the wide latitude counsel must have in

making tactical decisions...[thereby putting counsel at odds

with] the overriding mission of vigorous advocacy of the

defendant’s cause.” Strickland, 466 U.S. at 689. The Court

recognized that it is much easier to find fault with counsel’s

choices after those choices have been implemented and have been

proven unsuccessful. “A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting

effect of hindsight. . .” Id. Thus, in judging counsel’s

conduct the court will view counsel’s choices in light of all the

circumstances while at the same time keeping in mind that

“[t]here are countless ways to provide effective assistance in

any given case.” Id. The Supreme Court concluded that these

factors, along with considerations of counsel’s independence and

attorney client trust, gave counsel a strong presumption that his

conduct “falls within the wide range of reasonable professional

assistance.” Id. 

A. Failure to File Pre-trial Motions.

Under Strickland, Rollins is required to explain what motion

his counsel should have filed and why such a motion would have

been arguably meritorious. Rollins’s bald assertion that his

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 14 of 37
15

counsel did not file discovery or other pre-trial motions is

meaningless because Rollins offers no information that the

motions, if filed, would have produced some other desired result,

or that Rollins’s case was prejudiced in the absence of any of

these motions.

B. Failure to Investigate.

Rollins’s other ineffectiveness claims allege that trial

counsel failed to investigate the March 1984 preliminary hearing

or conduct any other investigation. I recommend that Rollins has

not established that counsel’s performance was constitutionally

deficient or that the trial outcome would have been different but

for this omission. The record reflects that trial counsel

explored the fact that the Commonwealth’s eyewitnesses to the

crime had previously refused to implicate Rollins and had given

contradictory versions of the crime to the police when the

witnesses testified before the grand jury. Accordingly, I

recommend that this assertions of trial counsel ineffectiveness

has merit.

B. Rollins’s Second Issue – the Commonwealth Failed to

Provide Him With Brady Material; Derivative Ineffective

Assistance.

Rollins’s next claim is that the prosecution failed to turn

over Brady material relevant to the credibility of the

Commonwealth’s key witnesses. See Brady v. Maryland, 373 U.S. 83

(1963). Rollins claims that this argument was exhausted when his

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 15 of 37
16

PCRA appeal attorney presented it to the state court. 

Respondents contend, on the contrary, that this claim was not

among those raised by Rollins’s PCRA counsel on appeal from the

denial of post conviction relief; that Rollins cannot rely on any

argument intended to be asserted by replacement PCRA counsel

because she did not actually file any supplemental brief on

Rollins’s behalf despite numerous extensions by the Superior

Court to enable her to do so; and the Superior Court found that

Rollins’s first PCRA counsel remained counsel of record.

I recommend that the Brady issue is procedurally defaulted

with no showing of cause and prejudice or miscarriage of justice. 

Rollins may not rely on any “supplemental” claims that his second

counsel may have intended to raise but that were never actually

filed. Moreover, any attempt to raise the issue on appeal, even

if consummated, could not be considered an exhaustion of state

remedies, given the above described state law waiver rule

involving claims not raised at the earliest stage of the PCRA

process. Accordingly, Rollins’s later inclusion of the claim in

his Amended Petition for Allowance of Appeal also cannot

constitute exhaustion.

The claim also has no merit. Rollins claims that trial

counsel did not demand Brady material, but again fails to

identify the unrequested material. The prosecution disclosed the

prior criminal records of three eyewitnesses, Charlene Wiggins,

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 16 of 37
17

Crawford Matthews, and Darrell Williams. These individuals

testified to their drug and alcohol use at the time of their

observations of the crime, and their prior inconsistent

statements and testimony about the crime.

Annette Carter, a prosecution witness, testified that she

had conveyed a threatening message to Charlene Wiggins on behalf

of co-defendant Eddie Ward to ensure that Wiggins would not

testify. Carter testified that she had been arrested two weeks

before her trial testimony and had been held for court the week

before. On cross-examination, trial counsel attempted to

insinuate that Carter was a drug dealer who had received

favorable treatment from the police who had not arrested her for

such activity and while Carter denied the accusation, the jury

was free to reject Carter’s testimony. 

Respondents note that even if there was additional

impeachment testimony which should have been disclosed under

Brady, this fact alone does not constitute a violation of Brady. 

A Brady claim has three components: (1) the undisclosed evidence

must be favorable to the accused either because it is exculpatory

or because it is impeaching; (2) the evidence must have been

suppressed by the state wither willfully or inadvertently; and

(3) the undisclosed evidence must be material in that the absence

of this evidence must have resulted in a trial which was unfair. 

Strickler v. Greene, 527 U.S. 263, 283-284 (1999); Hollman v.

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 17 of 37
18

Wilson, 158 F.3d 177 (3d Cir. 1998). Assuming that Rollins could

show that the unspecified evidence allegedly not disclosed would

have been useful for impeachment purposes, he cannot show that

the absence of this additional impeachment evidence probably

would have resulted in a different outcome. Given the amount of

impeachment evidence that was presented to the jury, any

additional impeachment evidence was simply not material and

therefore Rollins cannot meet the third Brady prong. 

The record shows that the jury knew of the prior criminal

records of the eyewitnesses. With respect to Charlene Wiggins,

the jury knew that she admitted to being high when she observed

the crime and that, at first, Wiggins had refused to testify and

had given contradictory statements. With respect to Crawford

Matthews, the jury knew that he was a convicted burglar, that he

was a former cocaine user and, that, initially, he had refused to

cooperate with the police investigation. The jury also heard

Matthews acknowledge that he was unhappy to be testifying at all. 

Lastly, with respect to Darrell Williams, the jury knew that he

had testified against Rollins in exchange for pleading guilty to

the lesser crime of third degree murder and had received a

sentence of “time in” to twenty-three months, which was less than

the sentence he might have received if he had refused to

cooperate and proceeded to trial where he could have been

convicted of murder as an accomplice.

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 18 of 37
19

In light of this impeachment evidence, it is unlikely that

Rollins will be able to show that additional undisclosed

impeachment evidence consisting of pending criminal charges and

non-specific “reasons to fabricate” would have led to a different

result. Respondents note that this case is similar to Hollman v.

Wilson, 158 F.3d 177 (3d Cir. 1998), a case in which the Third

Circuit focused in significant impeachment evidence introduced at

trial which the jury could have relied upon to find that the

witness was not credible. The Third Circuit concluded that the

additional impeachment evidence would not have resulted in a

different verdict. In Rollins’s case, given the extensive

impeachment evidence with respect to the prosecution’s

eyewitnesses, Rollins cannot show that the additional information

which he claims was not disclosed and which would have been

useful for impeachment would have led to a different verdict. 

Thus, I recommend that this claim, even if exhausted, has no

merit.

C. Rollins’s Third Issue – The Prosecution Tried to

“Thwart” His PCRA.

Rollins next asserts that the Commonwealth “thwarted” his

PCRA proceedings, in violation of his due process rights. 

Rollins contends that his court-appointed PCRA counsel was

“allowed by the court to ignore his issues and [did] not

investigate his case.” (Pet. at 10b.) This claim is

procedurally defaulted because it was never presented to any

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 19 of 37
Although both Rollins and the Commonwealth cite to the 7

notes of testimony of the jury selection to bolster their

arguments, neither party included the testimony as an exhibit to

their papers. 

20

state courts. Moreover, as Respondents correctly note, any claim

by Rollins for ineffective assistance of PCRA counsel is not

cognizable under 28 U.S.C. section 2254(i). 

D. Rollins’s Fourth Issue – Whether the State Court’s

Rejection of Rollins’s Batson Claim, and the related

Ineffective Assistance of Counsel Claim, Were

Reasonable Applications of Federal Law.

Rollins alleges that the Commonwealth used jury strikes in a

racially discriminatory manner, and that the state court erred

when it rejected Rollins’s claim that his trial counsel was

ineffective for not objecting to this alleged error. Respondents

argue that any claim pursuant to Batson v. Kentucky, 476 U.S. 79

(1986), is procedurally defaulted. 

The Commonwealth asserts – and Rollins does not contend

otherwise – that during jury selection, Rollins’s trial counsel

objected to three peremptory challenges by the prosecutor; that

defense counsel raised a Batson objection; that the trial judge

found that the relevant facts and circumstances did not establish

a prima facie case of racial discrimination by the prosecutor;

and the court did not ask the prosecutor to explain her reasons

for striking any of the jurors in question. (Resp. Br. at 30;

Pet. Reply Br. at 35-36.) It is also clear from the record that 7

Rollins did not raise a substantive Batson claim on direct

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21

appeal. (Pet. Reply Ex. E.) Accordingly, I recommend that the

substantive Batson claim is unexhausted and procedurally

defaulted with no showing of cause and prejudice or miscarriage

of justice.

The derivative ineffective assistance claim based on trial

counsel’s failure to preserve the Batson claim is exhausted

because it was raised in Rollins’s PCRA petition. On appeal, the

Superior Court held, under Pennsylvania law, that counsel was not

ineffective. The Superior Court’s recitation of the Pennsylvania

standard for ineffective assistance, i.e., that the underlying

claim has merit, that counsel had no reasonable basis for his

conduct, and resulting prejudice (meaning that the outcome of the

proceeding would have been different), has been found to be

materially identical to the test enunciated in Strickland. See

Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000). The Third

Circuit has ruled that the Pennsylvania standard is not “contrary

to” Strickland, and therefore, “the appropriate inquiry is

whether the Pennsylvania courts’ application of Strickland to

[petitioner’s] ineffectiveness claim was objectively

unreasonable, i.e., the state court decision, evaluated

objectively and on the merits, resulted in an outcome that cannot

reasonably be justified under Strickland.” Werts, 228 F.3d at

204. 

I recommend that the state courts’ application of Strickland

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 21 of 37
The Superior Court stated: 8

 Appellant first argues he is entitled to

relief because the Commonwealth used its

peremptory strikes in a racially

discriminatory manner, striking potential

jurors for the sole reason they, like

appellant, were black. In support of his

argument appellant references the

controversial 1987 training tape of the

Philadelphia District Attorney’s Office,

compiled one year prior to his 1988 trial,

wherein assistant district attorneys were

purportedly advised to select jurors in a

racially discriminatory fashion. In

conjunction with this constitutional Batson

argument, appellant raises a Brady challenge,

arguing “the prosecution [was obliged] to

provide this important evidence to the

defense in this case[.]” Appellant’s brief

at 9. In order to preserve this issue for

our consideration, appellant cloaks it in an

allegation prior counsel was ineffective “for

failing to properly object to the

prosecutor’s racially biased use of

peremptory strikes and for failing to

properly litigate the issue on direct

appeal.” Id.

 The standard of review for a postconviction relief Order is whether the record

supports the PCRA court’s determination and

whether that determination is free of legal

error. Commonwealth v. Allen, 557 Pa. 135,

732 A.2d 582 (1999). The standard for

determining ineffectiveness of counsel is

whether (1) there is arguable merit to the

underlying claim; (2) counsel’s chosen course

of action has a reasonable basis designed to

22

was not unreasonable. The Superior Court determined that the

underlying Batson claim had no merit because the trial court

determined that Rollins did not make a prima facie showing of

racial discrimination in the peremptory strikes, and Rollins also

had failed to demonstrate prejudice on collateral review. The 8

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effectuate his client’s interests; and (3)

the defendant demonstrates prejudice. 

Commonwealth v. Bess, 789 A.2d 757 (Pa.

Super. 2002). This ineffectiveness standard

is the same for claims made pursuant to the

PCRA. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

 “In order to establish a prima facie

case of racial discrimination in jury

selection, the defendant must make a record

identifying the race of the venire persons

stricken by the Commonwealth, the race of

prospective jurors acceptable to the

Commonwealth but stricken by the defense, and

the racial composition of the final jury.” 

Commonwealth v. Marshall, 810 A.2d 1211, 2002

Pa. LEXIS 2400 (Pa. November 22, 2002).

 We conclude, and appellant concedes, the

record is silent as to the ultimate racial

makeup of his jury. On this basis alone we

may dismiss appellant’s argument as he has

failed to satisfy the standard for relief set

forth in Marshall. Moreover, appellant has

failed to establish any prejudice endured as

a result of this alleged error by the

Commonwealth. See Bess, supra. Lastly, a

review of the transcript indicates there is

no legitimate basis for appellant’s argument

jury selection was tainted. Appellant’s

argument must fail.

(Resp. Ex. D at 2-3.)

23

Superior Court also stated that, “a review of the transcript

indicates there is no legitimate basis for [Rollins’s argument

that] jury selection was tainted.” (Resp. Ex. D. at 3.) Because

the Superior Court recognized and applied the correct underlying

substantive law to determine that the Rollins had failed to make

a meritorious showing, I recommend that its application of the

Strickland standard was not objectively unreasonable. 

E. Rollins’s Fifth and Sixth Issues – Denial of Due

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24

Process in Empaneling a Death-Qualified Jury; Denial of

Due Process from Being Convicted by a Death-Qualified

Jury; Derivative Ineffective Assistance of Counsel.

I treat the next two issues together because they assert the

same core claim, namely that the trial court’s decision to

empanel a death-qualified jury, when the Commonwealth provided no

notice or evidence of aggravating factors it intended to pursue,

violated Rollins’s due process rights and his right to an

impartial jury. 

Rollins presented and exhausted these claims in his PCRA

petition. The PCRA court rejected them stating: 

 Defendant claims prosecutorial misconduct occurred

when false information was provided to obtain a capital

jury. Judge Stiles decided the evidence did not

support the aggravating circumstance of knowingly

creating a grave risk of death to another person. This

decision was reached following an evaluation of the

evidence. The decision that the bystanders were too

far away to the [sic] subjected to a grave risk of

death was made following an evaluation of the evidence

presented at trial. Prosecutorial misconduct did not

occur. As such counsel could not be ineffective for

failing to object to a death qualified jury.

(Resp. Ex. C at 1.) On appeal from the PCRA court, the Superior

Court summarized Rollins’s argument: 

 Next, appellant argues he is, “entitled to relief

from his conviction because the prosecutor engaged in

impropriety by impaneling a capital jury in a noncapital case, thus denying [him] his rights to due

process and a fair trial[.]” . . . Piggy-backed to

this claim is the allegation of prior counsel’s

ineffectiveness, “for failing to raise, litigate and

pursue this issue at the time of trial and during posttrial motions[.]”

(Resp. Ex. D at 4.) After setting out its standard of review for

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See Commonwealth v. Paxton, 821 A.2d 594 (Pa. Super. Ct. 9

2003) (“It is within the discretion of the trial court to

determine whether a defendant has been prejudiced by misconduct

or impropriety to the extent that a mistrial is warranted. 

Relief will be granted for prosecutorial misconduct only where

the unavoidable effect of the prosecutor’s conduct was to

prejudice the jury members so as to form in their minds a fixed

bias towards the accused and to impede their ability to

objectively weigh the evidence and render a true verdict.”)

25

prosecutorial misconduct, the Court continued: 9

The record indicated no such prejudicial conduct

by the Commonwealth. At the time the prosecution

decided to seek the death penalty, the facts supported

the Commonwealth’s reasonable belief defendant has

knowingly created a grave risk of death to another

person by firing his weapon within the range of several

bystanders. In support of its decision, the

Commonwealth points to the testimony of witnesses Sandy

Wiggins and Crawford Matthews indicating appellant had

fired his .357 handgun repeatedly in proximity to

bystanders within the block. The prosecution stated it

also based its decision on the averment by police

officers that a bullet from the gun used by appellant

had the ability to travel 2 or 3 blocks. . . . We

logically can conclude the Commonwealth also was aware

of this testimony by Commonwealth witnesses prior to

jury selection. Following trial, and before the jury

returned its verdict, the court heard oral argument

from the prosecution and the defense concerning the

applicability of the death penalty based on the

aggravated circumstance of grave risk of death to

others. . . . The court, however, did not find the

Commonwealth presented false and misleading evidence to

support the aggravating factor; rather, it concluded

only that the bystanders in question were too far

removed form [sic] the scene so as to be in danger. . .

. The court instructed the jury:

In this particular case the only possible

aggravating circumstance was whether the

defendant knowingly created a risk of death

to other people in addition to the victim and

I decided as a matter of law given the

evidence we have heard that there is not

sufficient evidence that anyone else, the

defendant knowingly created a grave risk of

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26

death to someone other than the victim at the

time of the shot. There is not sufficient

evidence of that for you to have to decide

whether the death penalty is appropriate and

as a result of your verdict the penalty of

life imprisonment will be imposed. 

. . . Appellant has presented this Court with no

evidence of prosecutorial misconduct. . . . Moreover,

in light of the fact the death penalty was not imposed,

he has endured no prejudice as a consequence of this

death-qualified jury. There is no merit to appellant’s

prosecutorial misconduct argument, and counsel is not

ineffective on this basis.

(Resp. Ex. D at 6-8 (internal citations omitted).)

Rollins argues that the prosecutor’s statement to the trial

court in support of death-qualifying the jury – that there

existed the aggravating factor of the murder having occurred on a

crowded street – was false. (Pet. Reply Mem. at 53.) He also

argues that the state courts’ conclusions that facts supported

the Commonwealth’s reasonable belief that the grave risk

aggravating factor applied was “nothing more than a figment of

the imaginations of the court and the Commonwealth.” (Id. at

59.) 

I recommend that Rollins’s argument ignores the law

applicable to federal habeas review of fact finding by state

courts. According to the precepts of Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), state court findings of fact

are to be presumed correct unless the petitioner rebuts the

presumption with clear and convincing evidence. See 28 U.S.C. §

2254(e)(1). This presumption applies even if the finding was

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27

made by a state court of appeals rather than by the state trial

court. Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir.), amended,

253 F.3d 1150 (9th Cir. 2001). The Superior Court’s findings

that: 1) Rollins had fired his .357 handgun repeatedly in

proximity to bystanders within the block; 2) police officers had

averred that a bullet from the gun had the ability to travel 2 or

3 blocks; and 3) the Commonwealth did not present false and

misleading evidence to support the aggravating factor, constitute

factual findings entitled to the presumption of correctness under

AEDPA. Rollins has offered no evidence, let alone clear and

convincing evidence, to support his assertion that the Superior

Court’s findings are incorrect.

The Superior Court’s conclusion that the facts supported the

Commonwealth’s reasonable belief that Rollins knowingly created a

grave risk of death to another person by firing his weapon within

the range of several bystanders, is a legal conclusion that,

under AEDPA, must be shown to be contrary to, or to involve an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States. See Penry

v. Johnson, 532 U.S. 782 (2001) (explaining two-prong standard);

Williams v. Taylor, 529 U.S. 362, 403-04 (2000) (same). 

Likewise, the state courts’ ultimate conclusions that there was

no prosecutorial misconduct or ineffective assistance of counsel

violation, and that Rollins suffered no prejudice from being

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28

tried by a death-qualified jury, are also legal conclusions. 

Based upon the facts as found by the state courts, I recommend

that these conclusions were not contrary to, or an unreasonable

application of, clearly established Supreme Court law. 

The Supreme Court has held that prosecutorial misconduct

occurs where the prosecutor has “so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). 

Moreover, the appropriate standard of review for such a claim on

writ of habeas corpus is “the narrow one of due process, and not

the broad exercise of supervisory power.” Id. at 642. I

recommend that the Superior Court’s decision, that there was no

prosecutorial misconduct because the Commonwealth had a

reasonable factual basis for seeking a death-qualified jury, was

not contrary to nor an unreasonable application of Darden. The

state courts found as fact that no false and misleading evidence

had been presented as part of the Commonwealth’s efforts to

support the aggravating factor. Rather, after all the evidence

was presented at the guilt phase of Rollins’s trial, the trial

court determined that the bystanders in question were too far

removed from the point of the shooting so as to be in danger. As

Rollins can point to nothing to show that the Commonwealth acted

to “infect the trial with unfairness,” his prosecutorial

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29

misconduct / due process claims based on the empaneling of a

death-qualified jury, and his conviction thereby, fails. 

Additionally, because any objection counsel may have made to

death-qualifying the jury would have been without merit, the

failure of counsel to object to a death-qualified jury can not

constitute ineffective assistance of counsel. 

F. Rollins’s Seventh Issue: Violation of Constitutional

Rights from Jury Deliberations in a Hotel Room;

Derivative Trial Counsel Ineffectiveness.

This issue was raised and exhausted in Rollins’s PCRA

petition. (Resp. Ex. E at 15.) The Superior Court found this

claim was meritless, stating:

 Appellant next argues that he is entitled to a new

trial because the jury was allowed to deliberate in

their hotel, absent proper court supervision, thereby

inviting jury tampering, misconduct, or undue

influence. He again contends counsel was ineffective

for not objecting to the court permitting such

deliberation. Appellant fails to allege, however, any

specific harm that came from allowing the jury to

deliberate in the hotel, or how the outcome of his

trial could have been different if counsel had

objected. Such speculation, without factual or legal

support, does not provide a basis for relief. . . . 

Moreover, the record indicates that prior to allowing

the jury to continue its deliberations at its hotel,

the court cautioned the jurors, who had been

deliberating all day, that they first must have dinner,

may only deliberate for a “reasonable time,” must all

remain together, may not have contact with anyone other

than their fellow jurors, and must get a “reasonable”

night’s sleep. N.T., 7/20/88 at 467-468. There was no

error.

(Resp. Ex. D at 8-9 (internal citation omitted).) Rollins argues

that this decision was error; that permitting the jury to

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30

deliberate at its hotel, without proper court supervision can

easily result in jury misconduct, tampering or undue influence.

I recommend that the Superior Court decision was not

contrary to nor an unreasonable application of Supreme Court law. 

As identified by Rollins, the applicable case law is Mattox v.

United States, 146 U.S. 140, 150 (1892), and Smith v. Phillips,

455 U.S. 209, 217 (1982). In Mattox, the bailiff who had charge

of the jury while it was deliberating made improper statements

within the jury’s hearing. In addition, a newspaper containing a

story about the trial was introduced into the jury room. Id.

142. The Court held that: 

It is vital in capital cases that the jury should pass

upon the case free from external causes tending to

disturb the exercise of deliberate and unbiased

judgment. Nor can any ground of suspicion that the

administration of justice has been interfered with be

tolerated. Hence, the separation of the jury in such a

way as to expose them to tampering may be reason for a

new trial, variously held as absolute; or prima facie,

and subject to rebuttal by the prosecution; or

contingent on proof indicating that a tampering really

took place. . . . Private communications, possibly

prejudicial, between jurors and third persons, or

witnesses, or the officer in charge, are absolutely

forbidden, and invalidate the verdict, at least unless

their harmlessness is made to appear.

Id. at 149-50. In Smith, a juror had submitted an application

for employment as an investigator in the office of the district

attorney during the trial. In concluding that there was no due

process violation arising from the juror’s action – or the

district attorney’s failure to disclose the fact to the court or

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31

the defense – the Supreme Court stated: “Due process means a jury

capable and willing to decide the case solely on the evidence

before it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurrences when

they happen.” Id., 455 U.S. at 217. Rollins argues that

permitting the jury to deliberate at the hotel, outside of the

trial judge’s ever watchful supervision, violated his due process

rights.

As the Superior Court stated, Rollins failed to allege in

his PCRA petition any specific harm arising from the trial

court’s permitting the jury to deliberate at the hotel, or how

the outcome of his trial could have been different if counsel had

objected. He makes no such assertion here either of any improper

communication or influence upon the jury’s deliberations. 

Accordingly, I recommend that the state court decision, holding

that permitting the deliberations to continue at the hotel did

not violate Rollins’s due process rights, was not contrary to nor

an unreasonable application of Maddox and Smith.

G. Rollins’s Eighth Issue: Violation of Due Process by

Denying Rollins an Appropriate Number of Peremptory

Challenges; Derivative Ineffective Assistance.

This issue was raised and exhausted in Rollins’s direct

appeal. The Pennsylvania Superior Court examined the issue of

whether the trial court’s refusal to grant Rollins additional

peremptory challenges during jury selection was an abuse of the

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32

court’s discretion and a denial of equal protection under the

state and federal constitutions. The Superior Court stated:

As to the alleged abuse of discretion, appellant has

not set forth any actions by the court which would

evidence such an abuse. Because the Commonwealth was

seeking the death penalty against appellant, twenty

peremptory challenges were evenly divided between

appellant and his co-defendant, pursuant to PA. R. CRIM.

P. 1126(a)(3) and (b)(1). Had appellant been tried

alone, he would have been allowed twenty peremptory

challenges of his own, but we do not find the court’s

refusal to increase the number of appellant’s

challenges an abuse of discretion, inasmuch as there is

no constitutional right to any peremptory challenges. 

Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367

(1985). The court properly interpreted and applied the

Rules within its discretion, and we find this aspect of

appellant’s claim without merit.

(Resp. Ex. B at 2.) In his federal petition, Rollins

acknowledges that a criminal defendant has no constitutional

right to peremptory challenges or additional peremptory

challenges; however, he argues that once the Commonwealth has

granted a defendant peremptory challenges, it becomes a statecreated liberty interest protected by the Fourteenth Amendment to

the Constitution. (Pet. Reply Mem. at 65 (citing Vansickel v.

White, 166 F.3d 953, 957 (9th Cir. 1999))). 

I recommend that the Superior Court’s holding was not

contrary to Supreme Court law. Rollins’s citation to the Ninth

Circuit opinion in Vansickel is of dubious value. In Vansickel,

the Ninth Circuit relied upon its own holding in United States v.

Martinez-Salazar, 146 F.3d 653, 658 (9th Cir. 1998) for the

proposition that “due process would be violated if a trial court

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33

permitted a defendant to exercise fewer than the number of

peremptory challenges authorized by law.” Martinez-Salazar was

itself overruled by the United States Supreme Court one year

after the Vansickel decision. See United States v.

Martinez-Salazar, 528 U.S. 304 (2000). In its opinion in

Martinez-Salazar, the Supreme Court specifically held that

peremptory “challenges are auxiliary; unlike the right to an

impartial jury guaranteed by the Sixth Amendment, peremptory

challenges are not of federal constitutional dimension.” Id. at

311. Because there is no constitutional right to any peremptory

challenges at all, there can be no constitutional right to a

certain number of challenges. Nothing in the Superior Court’s

decision conflicts with this binding Supreme Court law.

H. Rollins’s Eleventh Issue: Due Process Violation

Stemming from the Trial Court’s Instructions on Malice;

Derivative Ineffective Assistance.

With respect to Rollins’s claim that he was entitled to a

new trial because the trial court improperly instructed the jury

regarding malice, the Superior Court stated on direct appeal

that:

 Appellant’s final argument is the trial court

erred in including malice as an element of murder. 

This argument is entirely without merit. Appellant

contends the court, in its instructions, equated malice

with specific intent to kill, thus impeding a voluntary

manslaughter verdict. On the contrary, the court’s

instruction stated:

The difference between murder and

manslaughter lies in the fact that to

constitute murder the unlawful killing must

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34

have been done with malice. Where an

unlawful killing has been done without malice

the crime rises no higher then manslaughter. 

Malice then has a special legal meaning. 

Malice may be of two kinds, either direct or

expressed malice as where there was a

particular hatred on [sic] ill will against a

particular person or implied or indirect

malice as in the case of a crime committed

with depravity of heart, cruelty,

recklessness of consequences and a

disposition of mind regardless of social

duty. If any person has so acted, he’s

regarded in the eyes of the law as having

acted with malice. Malice is the thing which

distinguishes murder from other types of

homicide.

(N.T., 7/19, 88, p. 426).

 As the Crimes Code only divided murder into

degrees, the common law definition of murder, and with

it the element of malice, remains. Legal malice

continues to be the dividing line between murder and

manslaughter. Commonwealth v. Young, 494 Pa. 224, 431

A.2d 230 (1981); Commonwealth v. Hart, ____ Pa. Super.

________ A.2d ____ (No. 2807 Philadelphia 1988, filed

11/8/89). A jury instruction containing this element

was not improper in a murder case.

(Resp. Ex. B at 5-6.) 

In his federal petition, Rollins argues that the malice

instruction was 1) unconstitutionally vague, and 2)

unconstitutionally impeded a finding of not guilty or guilty on a

lesser homicide charge. The Commonwealth argues that none of

these habeas issues was fairly presented to the state courts

because Rollins direct appeal arguments did not raise any federal

constitutional issues. I agree and recommend that Rollins’s

Eleventh Issue was never fairly presented to the state courts.

“In order to satisfy the exhaustion requirement, a federal

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35

habeas claim must have been ‘fairly presented’ to the state

courts. . . . This means that a petitioner must ‘present a

federal claim’s factual and legal substance to the state courts

in a manner that puts them on notice that a federal claim is

being asserted.’” Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir.

2005) (internal citations omitted). A claim is not fairly

presented if the state court “must read beyond a petition or

brief . . . that does not alert it to the presence of a federal

claim.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). Mere

similarity of the federal and state issues is insufficient to

prove exhaustion. Duncan v. Henry, 513 U.S. 364, 366 (1995). 

The relevant inquiry is whether the petitioner presented in state

courts the legal theory and supporting facts asserted in the

federal habeas petition. Nara v. Frank, 488 F.3d 187, 198 (3d

Cir. 2007); Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). 

The issue Rollins litigated in his direct appeal was whether

the trial court erred in charging the jury on malice as an

element of the crime of murder, when no such element is found in

the Pennsylvania statute defining murder. (Pet. Reply Mem. Ex.

E. at 20.) He also argued,

It is thus clear that malice is not only a concept far

too vague for even handed application, but that its

presence in the case serves to prevent meaningful

consideration of voluntary manslaughter since the test

for malice may readily be found to be a specific intent

to kill and accordingly, once found, it absolutely bars

a voluntary manslaughter verdict. 

Case 2:04-cv-02544-JCJ Document 43 Filed 05/01/08 Page 35 of 37
Rollins contends that he did cite a federal decision, 10

United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir.

1974). The issue in Johnson was whether due process was denied

in the trial court’s refusal of a request for a voluntary

manslaughter instruction. It was cited in support of Rollins’s

assertion that the trial court’s instruction on malice erected a

bar to the return of a voluntary manslaughter verdict under the

Pennsylvania murder statutes. (Pet. Reply Mem. Ex. E. at 23-24.)

Because I recommend that all of Rollins’s substantive 11

issues fail, I likewise recommend that his Eleventh and Twelfth

issues, asserting generalized ineffective assistance of counsel

claims, also fail.

36

(Id. at 23.) Rollins, although he employed the concept of

vagueness, he cited no federal decisions to support his vagueness

argument, and cited no specific federal constitutional 10

provision, so as to alert the state court that he was attempting

to raise a void for vagueness claim under the Due Process clause

of the federal constitution. For this reason, I recommend that

the issue was never fairly presented to the state courts, and is

now procedurally defaulted with no showing of cause and prejudice

or miscarriage of justice.11

For all of these reasons, I make the following:

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37

RECOMMENDATION

AND NOW, this 1 day of May 2008, IT IS RESPECTFULLY st

RECOMMENDED that this matter should be DISMISSED without an

evidentiary hearing. I further RECOMMEND that there is no

probable cause to issue a certificate of appealability. 

The Petitioner may file objections to this Report and

Recommendation. See Local Civ. Rule 72.1. Failure to file

timely objections may constitute a waiver of any appellate

rights.

BY THE COURT:

 /s/ Arnold C. Rapoport 

ARNOLD C. RAPOPORT

UNITED STATES MAGISTRATE JUDGE

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