IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BOBBY YOUNG : CIVIL ACTION

:

v. :

:

EDWARD J. KLEM, ET AL. : NO. 04-843

ORDER

AND NOW, this 28th day February, 2006, upon careful and

independent consideration of Bobby Young’s pro se petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry

#1), his Memorandum of Law in Support of Habeas Corpus Petition

(docket entry # 13), his Traverse to Respondents’ Response

(docket entry # 14), the Commonwealth’s response to his petition

(docket entry # 10), the Report and Recommendation of the

Honorable M. Faith Angell, Chief United States Magistrate Judge

(docket entry # 15), Young’s Objections to the Report and

Recommendation (docket entry # 16), the Commonwealth’s response

thereto (docket entry # 18), and Young’s Response to Respondents’

Response (docket entry #19), and the Court finding that:

(a) Judge Angell was correct in recommending that

Young’s federal habeas petition was timely filed within one year

of the date his conviction became final, not counting the time

during which Young had a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim pending; see 28 U.S.C. § 2244(d)(2);

(b) Judge Angell correctly recommended that Young’s

Second, Fifth, Sixth and Seventh habeas claims were procedurally

defaulted because Young did not raise the claims in the state

courts and any attempt to return there now would be untimely and

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futile;

(c) Young’s objection of the procedural default

recommendation, based upon his assertion that he directed the

attorney who represented him in his PCRA appeal not to waive any

issue raised in his pro se PCRA petition, lacks merit because the

procedural default occurred when Young failed to raise the

federal issues on the direct appeal of his conviction and the

failure of his PCRA appeal attorney to raise them was irrelevant;

(d) Judge Angell correctly recommended that Young’s

First and Eighth habeas claims, alleging Fourth Amendment

violations, are not subject to habeas review because Young had a

full and fair opportunity to litigate the suppression issues in

state court; see Stone v. Powell, 428 U.S. 465, 494 (1976)

("Where the state has provided an opportunity for full and fair

litigation of a claim under the Fourth Amendment, a state

prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or

seizure was introduced at trial.");

(e) Although Young objects that the state court made

incorrect factual conclusions in deciding the suppression issues,

his objections to the conclusions reached by the state court do

not negate the fact that he was afforded a full and fair

opportunity to litigate the issues there;

(f) Judge Angell was correct in recommending that the

state court decision underlying the Fourth Claim, that trial

counsel was not constitutionally ineffective during the

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suppression hearing, was not contrary to nor an unreasonable

application of the Supreme Court law found in Strickland v.

Washington, 466 U.S. 668, 687 (1984) (counsel is strongly

presumed to have rendered adequate assistance; to overcome

presumption of effective assistance, a defendant must demonstrate

that counsel committed serious mistakes, and that the deficient

representation prejudiced the defense), because the standard

employed by the state court, see Commonwealth v. Wells, 578 A.2d

27, 31-32 (Pa.Super. 1990) (ineffective assistance requires a

showing of an act or omission that was arguably ineffective, that

no reasonable basis designed to effectuate appellant’s interests

could exist for the act or omission, and but for the act or

omission there is a reasonable probability that he result would

have been more favorable to the appellant), does not contradict

the Strickland standard; see Werts v. Vaughn, 228 F.3d 178, 204

(3d Cir. 2000);

(g) Young’s objection to the ineffective assistance

recommendation has no merit because it does not address whether

the state courts used the correct standard, but rather seeks to

relitigate the underlying suppression issue;

(h) Judge Angell was correct in recommending that

Young’s Third Claim, which asserts that certain comments by the

Assistant District Attorney constituted prosecutorial misconduct,

was meritless because the standard for prosecutorial misconduct

the state court employed, see Commonwealth v. Green, 581 A.2d 544

(Pa. 1990) (prosecutor’s comment, even if intemperate, uncalled

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for and improper, does not require new trial unless its

unavoidable effect would be to prejudice the jury), and

Commonwealth v. Pelzer, 612 A.2d 407 (Pa. 1992) (jury is

prejudiced when the remark creates a fixed bias and hostility

toward the defendant to the extent that it cannot weight the

evidence fairly and render a true verdict), is consistent with

Supreme Court law, see Greer v. Miller, 483 U.S. 756, 765 (1987)

(federal habeas relief may be granted when the "prosecutorial

misconduct may 'so infec[t] the trial with unfairness as to make

the resulting conviction a denial of due process.'") (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643, (1974)), United

States v. Bagley, 473 U.S. 667, 676 (1985) (for due process to

have been offended, "the prosecutorial misconduct must be 'of

sufficient significance to result in the denial of the

defendant's right to a fair trial.'") (quoting United States v.

Agurs, 427 U.S. 97, 108 (1976));

(i) To the extent that Young's Third Claim also

asserts the failure of trial counsel to object to the

prosecutor’s comments constituted ineffective assistance, our

discussion above of the Strickland standard and the holding of

Werts applies; 

(j) Young does not raise any specific objection to the

recommendation regarding the Third Claim;

(k) Judge Angell was correct when she determined that

Young’s Ninth Claim, which alleges the state court conclusions

are contrary to and an unreasonable application of Supreme Court

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law, fails to state a independent claim for federal habeas

relief;

(l) Young does not raise any specific objection to the

recommendation regarding the Ninth Claim;

(m) Given the recommendations, and our resolution of

Young’s objections thereto, Young has not made a substantial

showing of the denial of a constitutional right, so as to permit

the issuance of a certificate of appealability;

It is hereby ORDERED that:

1. Young’s objections are OVERRULED;

2. The Report and Recommendation is APPROVED and

ADOPTED;

3. The petition for writ of habeas corpus is DENIED;

4. We decline to issue a certificate of

appealability; and 

5. The Clerk shall CLOSE this case statistically.

BY THE COURT:

 /s/ Stewart Dalzell, J. 

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