1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LARRY CULLISON : CIVIL ACTION

:

v. : NO. 04-5001 

:

SUPERINTENDENT WOLFE et al. :

MEMORANDUM AND ORDER

Juan R. Sánchez, J. November 21, 2005

Larry Cullison, who is serving a sentence of thirty-five to seventy years incarceration for

three counts of robbery and related charges, asks this Court for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 on five grounds, four of which were completely and ably addressed in the report

of Magistrate Judge Peter B. Scuderi, recommending dismissing the petition. Cullison raises three

procedural objections to the Report and Recommendation, which I review de novo pursuant to 18

U.S.C. § 636. Finding each without merit, I will adopt the Report and Recommendation of

Magistrate Judge Scuderi.

FACTS

Cullison was convicted of robbing a Herr’s Potato Chip Distribution Center in Philadelphia

on November 23, 1994. Four men, each carrying a gun, entered the factory and forced two

employees to lie on the floor and the third to take them to the room in which $50,000 in cash was

on a table in a red bag. Cullison and his co-conspirators were arrested after a former conspirator

traded information on the Herr’s robbery for his freedom on an unrelated charge. A fifth man, an

employee of Herr’s, was also charged. The employee and one of the robbers pleaded guilty and

testified against the other three at trial. After the guilty verdict, Cullison was sentenced on February

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1Section 2244(d)(1) provides: 

A 1-year period of limitations shall apply to an application for writ of habeas corpus by a

person in custody pursuant to the judgment of a State court. The limitations period shall run

from the latest of – 

(A) the date on which the judgment became final by the conclusion of direct review

or the expiration of the time for seeking such review;

(B) the date on which the impediment for filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was initially recognized by the

2

24, 1997, to three consecutive terms of ten to twenty years incarceration on the three robbery

convictions, five to ten years for conspiracy and five years probation for possession of an instrument

of crime.

The Superior Court affirmed Cullison’s conviction on direct appeal on March 27, 2000,

Commonwealth v. Cullison, 757 A.2d 990 (Pa. Super. 2000) (table), and the Pennsylvania Supreme

Court denied allocatur on August 16, 2000, Commonwealth v. Cullison, 766 A.2d 1243 (Pa. 2000)

(table). On November 29, 2000, Cullison filed a pro se petition under the Post Conviction Collateral

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. On April 23, 2002, the PCRA court dismissed

Cullison’s petition without a hearing and the Superior Court affirmed on September 16, 2003.

Commonwealth v. Cullison, 835 A.2d 829 (Pa. Super. 2003) (table). The Pennsylvania Supreme

Court denied allocatur on February 20, 20004. Commonwealth v. Cullison, 844 A.2d 551 (Pa. 2004)

(table). Cullison filed this petition for writ of habeas corpus on November 18, 2004. 

Cullison’s petition is timely because a state prisoner has one year after his judgment of

sentence becomes final to file a petition for writ of habeas corpus under the Antiterrorism and

Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, codified in relevant

part at 28 U.S.C. §§ 2241-55. A properly filed state petition tolls the one-year limitation of AEDPA.

28 U.S.C. § 2244(d).1 Cullison’s judgment of sentence became final on November 5, 2000, ninety

Case 2:04-cv-05001-JS Document 15 Filed 11/22/05 Page 2 of 8
Supreme Court, if the right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence. 

2The claim is sufficiently close to the claim Cullison advanced on direct appeal regarding a defective

warrant – in both instances Cullison alleges a police officer materially misstated the source of his

information about Cullison’s participation – to be previously litigated in state court. If the claims

are not identical then Cullison presents an unexhausted claim, contrary to the habeas statute. 28

U.S.C. § 2254(a). If they are not identical, this Court may excuse a futile return to state court under

28 U.S.C. § 2254(b)(1). A new PCRA petition would be time-barred. 42 Pa.C.S. § 9545(b)(1). This

Court may excuse procedural defaults on a showing of cause and prejudice. Coleman v. Taylor, 501

U.S. 722, 750 (1990). Cullison has shown no prejudice because two informants identified him to

police before his arrest, giving authorities ample probable cause on which to issue a warrant.

3

days after the Pennsylvania Supreme Court denied his petition for direct appeal. Only twenty-four

days of the AEDPA’s 365 days ran before Cullison filed his PCRA petition. Another 272 days

expired from the date the state supreme court refused to hear his appeal from the denial of his PCRA

until Cullison filed his timely habeas petition.

In his petition, Cullison argued his arrest was unlawful, he was denied an opportunity to

confront one of the witnesses against him, he received ineffective assistance of counsel for failing

to object to the prosecutor’s closing argument, he was denied appellate rights, and he received

ineffective assistance of appellate counsel. Magistrate Judge Scuderi properly found Cullison’s first

claim under the Fourth Amendment to have been fully and fairly litigated in state court and,

therefore, not cognizable under a habeas petition.2 Stone v. Powell, 428 U.S. 465, 494 (1976);

Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994). 

Cullison’s second claim, that the failure of one of the robbery victims to testify at trial

deprived him of his Sixth Amendment right of confrontation, is procedurally defaulted by his failure

to raise it on direct appeal. On direct appeal, Cullison framed the claim as one brought on

sufficiency of the evidence. The Superior Court held the evidence was sufficient to convict Cullison

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3

 Since Cullison’s direct appeal, the law of Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977)

(holding claims of ineffective assistance of counsel must be brought at the first change of counsel),

has changed. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (holding claims of ineffective

assistance of counsel may only be brought collaterally). The holding of Grant is retroactive only to

cases which were pending at the time or cases in which the intermediate appellate coaurt had already

addressed the issues. Commonwealth v. Bethea, 828 A.2d 1066, 1070 (Pa. 2003). Cullison’s case

was governed by Hubbard.

4This claim was not addressed in the Report and Recommendation. Since the claim is baseless it

would not change the recommendation.

4

of robbery without the witness’s testimony. Cullison has failed to show cause and prejudice

sufficient for this Court to consider the merits of the procedurally defaulted claim. Coleman v.

Taylor, 501 U.S. 722, 750 (1990).

Cullison raised his third claim – the ineffectiveness of trial counsel – in his PCRA petition

but abandoned it on appeal. When Cullison failed to raise the ineffective assistance of counsel claim

on direct appeal,

3

 he created an independent and adequate state procedural ground for denying the

claim. Harris v. Reed, 489 U.S. 255, 262 (1989); Johnson v. Pinchak, 392 F.3d 551, 556 (3d Cir.

2004). Cullison has not proved cause and prejudice to revive the procedurally defaulted state claim.

Cullison’s fourth claim, that his appeal rights were compromised, is unexhausted and absurd.

He did not raise the issue in the state courts and he was afforded every appeal step available to

Pennsylvania defendants in both his direct and his collateral appeals with the exception of a petition

for certiorari to the U.S. Supreme Court. There is no need to address this claim further. 

Cullison effectively exhausted his fifth habeas claim,4 ineffective assistance of appellate

counsel, by asserting it in his PCRA petition and in his appeal from the PCRA denial. Cullison gave

the state courts a full “opportunity to pass upon and correct alleged violations of [his] federal rights.”

Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998). Cullison’s complaint is that he was deprived

of his Sixth Amendment Right to Counsel by the ineffectiveness of his appellate counsel who failed

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to appeal the question of prosecutorial misconduct in closing argument. Cullison identifies four

instances in which he claims the prosecutor impermissibly vouched for Commonwealth witnesses.

Cullison believes his appellate counsel should have raised the question of misconduct in the

prosecutor’s closing when he argued the co-defendants knew who they committed the crime with

and stated the co-defendants were going to serve time for their roles in the robbery. Both the PCRA

court and the Superior Court found no violation when a prosecutor’s vouching for his witness is

“commensurate with the prior attacks upon the credibility of the Commonwealth’s witnesses.”

Commonwealth v. Gwaltney, 442 A.2d 236, 240 (Pa. 1982).

This Court may grant a writ of habeas corpus only if the state court adjudication “resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);

Yarborough v. Alvarado, 124 S. Ct. 2140, 2144 (2004). Under the “unreasonable application”

clause, a federal habeas court may grant the writ if the state court identifies the correct governing

legal principle, but unreasonably applies that principle to the facts of the prisoner's case. Williams

v. Taylor, 529 U.S. 362, 413 (2000). This Court must first decide what is the applicable, clearly

established law. Williams, 529 U.S. at 390; see also Williams v. Price, 343 F.3d 223, 234 (3d Cir.

2003). 

Cullison is arguing the two state courts unreasonably concluded failure to raise the issue was

not ineffective assistance of counsel because the prosecutor’s arguments fell within the range of

allowable vigor and no counsel is required to raise a baseless claim. Commonwealth v. Wilkerson,

416 A.2d 477, 479 (Pa. 1980). The state courts correctly identified the applicable federal law, the

Sixth Amendment right to counsel requires competent counsel. Strickland v. Washington, 466 U.S.

668 (1984). The defendant must show counsel’s performance was deficient, without strategic or

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reasonable basis, and the deficiency prejudiced the defendant. Strickland, 466 U.S. at 697. 

This Court’s next inquiry is whether the state courts reasonably applied that principle to

Cullison’s claim of ineffective assistance of appellate counsel. Williams, 529 U.S. at 413. Both

courts found the prosecutor’s arguments within the realm of vigorous advocacy; thus, raising the

claim on direct appeal would have been futile. Effective assistance of counsel does not include

raising baseless claims. Therefore, the state courts reasonably applied the clearly established federal

law. Cullison is not entitled to relief on any of his claims.

Cullison raises three objections to the Report and Recommendation: the failure to grant a new

trial, the failure to grant an evidentiary hearing, and the failure to remand the case for exhaustion.

 Cullison’s first objection fails because, as we have seen, none of his grounds would warrant the

grant of his writ. 

The decision whether to hold an evidentiary hearing on a writ of habeas corpus is

discretionary with the court. R. Governing Section 2254 Cases in U.S. Dist. Cts. 8. As directed by

the Rule, I have reviewed “the answer, any transcripts and records of state-court proceedings, and

any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.”

Id. Since I find no factual question which could be resolved through a hearing, I decline to grant a

hearing.

This Court is without authority to grant Cullison’s third objection, in which he asks this

Court to remand for exhaustion. Cullison misunderstands the foundation of a writ of habeas corpus.

The “unique purpose of habeas corpus” is “to release the applicant for the writ from unlawful

confinement.” Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980). This Court is without authority to

grant a new trial or remand for exhaustion. This Court may only deny or grant the writ. When a writ

is granted, this Court may impose delaying conditions but may not change a state court judgment.

Case 2:04-cv-05001-JS Document 15 Filed 11/22/05 Page 6 of 8
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Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998). Since Cullison was unable to prove his trial

was so flawed his continued imprisonment would be without foundation, this Court will deny the

writ without a hearing. 

An appropriate order follows.

Case 2:04-cv-05001-JS Document 15 Filed 11/22/05 Page 7 of 8
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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LARRY CULLISON : CIVIL ACTION

:

v. : NO. 04-5001 

:

SUPERINTENDENT WOLFE et al. :

ORDER

And now this 21st day of November, 2005, it is hereby ORDERED:

• The Report and Recommendation of Magistrate Judge Scuderi is ADOPTED;

• Petitioner’s objections are OVERRULED;

• The Petition for Writ of Habeas Corpus is DENIED; and,

• No certificate of appealability will issue.

BY THE COURT:

 \s\ Juan R.Sánchez 

 Juan R. Sánchez, J.

Case 2:04-cv-05001-JS Document 15 Filed 11/22/05 Page 8 of 8