IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DENNIS RODGERS : CIVIL ACTION 

:

 v. :

:

DAVID DIGUGLIELMO, et al. : NO. 04-4010 

MEMORANDUM

Padova, J. March 17, 2009

Petitioner Dennis Rodgers (“Rodgers”) has filed the instant Petition for Writ of Habeas

Corpus, attacking several Pennsylvania state criminal convictions imposed in June 1993. Magistrate

Judge Lynne A. Sitarski issued a Report and Recommendation on October 31, 2008, recommending

that the Petition be granted in part and denied in part. Presently before the Court are Rodgers’

Objections to the Report and Recommendation. For the following reasons, we overrule Rodgers’

Objections and approve and adopt the Report and Recommendation in a manner consistent with this

Opinion.

I. BACKGROUND

On June 4, 1993, following a jury trial in theCourt ofCommon Pleas of Philadelphia County,

a jury convicted Rodgers of first-degree murder, robbery, conspiracy, possession of an instrument

of crime, possession of a controlled substance with intent to deliver, and a violation of the

Pennsylvania Corrupt Organizations Act (“Pa. C.O.A.”). See Commonwealth v. Rodgers, No. S.P.

2237 PHL 1994 (C.C.P. Phila. June 15, 1995), at 1 (hereinafter “Trial Court Opinion”). Rodgers had

a capital penalty hearing, at which the jury sentenced him to a term of life imprisonment without

parole for the first degree murder conviction. Id. The trial court also sentenced Rodgers to

concurrent terms of imprisonment for the Pa. C.O.A. conviction (10 to 20 years), the conspiracy

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 1 of 17
The issues raised were: 1

(1) Whether the trial court erred in permitting a Commonwealth witness to give the legal

conclusion that an out of state witness cannot be arrested on his outstanding bench

warrants when summoned to testify in the Commonwealth; and

(2) Whether the evidence was insufficient to sustain the verdict of corrupt organizations.

2

conviction (5 to 10 years), and the weapons offense conviction (21⁄2 to 5 years). Id. at 2. The trial

court suspended sentence as to the robbery and drug convictions. Id.

Following his sentencing, Rodgers filed post-verdict motions with the trial court, challenging

the sufficiency of the evidence and the trial court’s rulings on various evidentiary issues, all of which

the trial court denied. See id. at 3-11. Thereafter, Rodgers’ filed a direct appeal to the Superior

Court raising two claims, both of which the Superior Court rejected. See Rodgers v. 1

Commonwealth, 669 A.2d 412 (Pa. Super. Ct. Sept. 18, 1995) (Table). The Supreme Court of

Pennsylvania denied allowance of appeal. SeeCommonwealth v. Rodgers, 674 A.2d 1070 (Pa. Mar.

12, 1996) (Table).

On February 27, 1997, Rodgers filed a pro se PCRA petition, in which he alleged 12 errors,

including several at issue in the instant Petition. On September 22, 2000—following the

appointment of counsel—an amended PCRA petition was filed that raised only three arguments:

(1) Whether the Appellate [sic] was ineffective for failing to

allege trial counsel’s ineffectiveness for failing to object to

evidence of Appellant’s bad character, specifically alleged

prior crimes of violence as this evidence deprived Appellant

of a fair trial?

(2) Whether the appellate counsel was ineffective for failing to

allege trial counsel’s ineffectiveness for permitting

inadmissable [sic] hearsay evidence to be introduced?

(3) Whether the appellate counsel was ineffective for failing to

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 2 of 17
The Supreme Court of Pennsylvania rendered its decision in Kendrick on February 20, 2007. 2

3

allege trial counsel’s ineffectiveness for failing to request a

“corrupt source” charge with respect to the testimony of an

accomplice, Vanessa Scott Jones?

Commonwealth v. Rodgers, No. 173 EDA 2002 (Pa. Super. Ct. Dec. 6, 2002), at 2 (hereinafter

“PCRA Appeal Opinion”). The PCRA court denied Rodgers’ petition on October 31, 2001, and

Rodgers appealed to the Superior Court. See id. at 1. With his PCRA appeal still pending, Rogers

filed a Petition for Writ of Mandamus with the Superior Court seeking the appointment of new

PCRA counsel because his attorney would not assert certain claims Rodgers had raised in his

original pro se Petition. The Superior Court denied the Petition for Writ of Mandamus on March

27, 2002, but suggested that counsel seek remand to the trial court to address the allegations of his

ineffectiveness. See Commonwealth v. Rodgers, No. 173 EDA 2002 (Pa. Super. Ct. Mar. 27, 2002)

(per curiam), at 1 (citing Commonwealth v. Lawrence, 596 A.2d 165, 168 (Pa. Super. Ct. 1991)).

On December 6, 2002, the Superior Court affirmed the PCRA court’s ruling. (See PCRA Appeal

Opinion at 1.) The Supreme Court of Pennsylvania denied allowance of appeal on June 23, 2004.

See Commonwealth v. Rodgers, 853 A.2d 361 (Pa. June 23, 2004) (Table).

On August 24, 2004, Rodgers filed the instant Petition pursuant to 28 U.S.C. § 2254, to

which he attached two pro se Memoranda in Support. (Docket No. 1.) On December 23, 2004, we

suspended the case pending a decision by the Supreme Court of Pennsylvania in Kendrick v. District

Attorney, 916 A.2d 529 (Pa. 2007), that would determine the validity of Rodgers’ Pa. C.O.A.

conviction. On October 27, 2005, counsel entered an appearance on Rodgers’ behalf. On March 1,

2007, we removed the case from civil suspense, and counsel filed a third Memorandum in Support 2

on June 28, 2007, which elaborated on the claims asserted in Rodgers’ two pro se Memoranda, raised

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 3 of 17
Magistrate Judge Sitarski also recommended that the writ be stayed by 180 days to allow 3

the Commonwealth of Pennsylvania to vacate the Pa. C.O.A. conviction and to re-sentence Rodgers.

4

new claims not appearing in either the original petition or the pro se submissions, and dropped some

of Rodgers’ pro se claims.

On October 31, 2008, Magistrate Judge Sitarski filed a Report and Recommendation (“R &

R”), recommending that the Petition be granted with respect to Rodgers’ Pa. C.O.A. conviction but

be denied in all other respects. Magistrate Judge Sitarski further found no probable cause to issue 3

a certificate of appealability. Rodgers filed the following counseled objections to the R & R:

(1) Objection to incomplete findings of fact.

(2) Objection to conclusion that relief should be limited to

Petitioner’s conviction for corrupt organizations.

(3) Objection to the magistrate judge’s conclusion that trial

counsel was not ineffective for failing to sufficiently object to,

or for actively eliciting, evidence and argument as to other

crimes, alleged abuse, irrelevant drug dealing, possession of

firearms, demonstration firearms and references to hearsay

statements by Jones’ children.

(4) Objection to the magistrate judge’s conclusion that trial and

direct appeal counsel were not ineffective for failing to make

an argument for petitioner based on the rationale which was

eventually made explicit in [Commonwealth v. Besch, 674

A.2d 655 (Pa. 1996)] – and to the conclusion that this

argument was not timely raised in this proceeding.

(5) Objection to the magistrate judge’s conclusion that

petitioner’s ineffectiveness claim related to the jury charge on

reasonable doubt and malice is procedurally defaulted, and to

the failure to recommend relief on this count.

(Objections at 1.) We address each objection in turn.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 4 of 17
5

II. DISCUSSION

A. Objection One

Rodgers objects to the statement of facts in the R & R because it “do[es] not adequately take

into account the sources of various testimonies given, nor do[es] [it] properly distinguish among

those alleged facts established by testimony relevant to the charges of murder and possession . . . and

those facts which were rendered admissible solely as a result of the discredited corrupt organizations

prosecution.” (Objections at 2.) Rodgers does not object to any findings of fact as affirmatively

incorrect; he merely argues that the findings of fact are incomplete. Moreover, Rodgers has offered

a statement of facts in support of this objection identical to that which he presented to Magistrate

Judge Sitarski. We find that the R & R adequately addresses the relevant facts in its analysis of

Rodgers’ discrete legal claims. Magistrate Judge Sitarski appropriately derived her statement of

facts directly from the trial court’s opinion, and “a determination of a factual issue made by a State

court shall be presumed to be correct.” 28 U.S.C. § 2254(e). Finally, Rodgers has not demonstrated

how the findings of facts, even if incomplete, justify rejecting the R & R on that basis.

Consequently, we overrule this objection.

B. Objection Two

Rodgers generally objects to Magistrate Judge Sitarski’s limiting “relief” on his Pa. C.O.A.

charge to merely vacating his conviction on that charge. He contends that his conspiracy conviction

should also be vacated pursuant to Griffin v. United States, 502 U.S. 46 (1992), because the Pa.

C.O.A. offense (of which he could not be convicted as a matter of law) was one of several possible

objects that the jury may have relied upon in returning the conspiracy conviction. He further argues

that he should receive a new trial on all the remaining charges because of the “wide-ranging, highly

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 5 of 17
Rodgers also has not argued that his failure to exhaust this claim should be excused. 4

6

prejudicial and otherwise inadmissible evidence” adduced to procure his Pa. C.O.A. conviction. 

(Habeas Pet. at 19.) Magistrate Judge Sitarski determined that Rodgers’ evidentiary claims lacked

merit because the challenged evidence was admissible to support his other convictions; she did not

address Rodgers’ claim that his conspiracy conviction was improper under Griffin. Nevertheless,

we find that all of Rodgers’ claims are procedurally defaulted and deny them on that basis. 

Rodgers failed to exhaust his Griffin claim because he never presented his argument to the

Pennsylvania courts. We therefore cannot consider this claim. See 28 U.S.C. § 2254(b)(1)(A). We 4

nevertheless recognize that Rodgers did assert his evidentiary claims in his pro se PCRA petition,

arguing that “a new trial is required because the evidence of the corrupt organization [sic] spilled

over into the murder trial and made the trial a drug trial, and the jury was prejudiced beyond repair

when they heard all this testimony from a dozen witnesses concerning alleged drug deals and gun.”

(Pro se PCRA Pet. at 6.) However, PCRA counsel was subsequently appointed, and he submitted

an amended PCRA petition that alleged merely trial counsel’s ineffectiveness for failing to: (1)

make various evidentiary objections; (2) seek a mistrial; and (3) request a curative instruction. (See

Memo. in Support of Am. PCRA Pet. at 3-7.) Counsel did not directly challenge the substantive

admissibility of the evidence with respect to Rodgers’ non-Pa. C.O.A. charges. Rodgers argues that,

on the basis of these PCRA submissions, his claims have been properly exhausted in the state courts.

We disagree. 

First, a post-conviction petition claiming ineffective assistance of counsel does not exhaust

the issues underlying the ineffective assistance claim. See Garcia v. Palakovich, Civ. A. No. 05-

3479, 2006 WL 1620191, at *2 (E.D. Pa. Apr. 25, 2006) (“[A]n ineffective assistance claim involves

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 6 of 17
7

a different legal theory and does not exhaust the underlying claim of trial court error . . . .”); see also

Turner v. Artuz, 262 F.3d 118, 123 (2d Cir.), cert denied, 534 U.S. 1031 (2001) (“A court

considering ineffective assistance might never reach the underlying constitutional claims, and the

rejection of the ineffective assistance claims without detailed comment does not bespeak any

necessary ruling on the underlying constitutional claim.”). In this case, the PCRA courts merely

determined that trial counsel was not ineffective for failing to raise meritless evidentiary objections,

and considered the admissibility of the challenged evidence only in the context of whether counsel

rendered effective assistance. They did not rule on the constitutional implications of admitting the

challenged evidence. Thus, Rodgers’ counseled PCRA petition asserting ineffectiveness of counsel

did not exhaust the issues now before us.

Second, no Pennsylvania court entertained the substantive arguments raised in Rodgers’ pro

se PCRA petition because, under state law, only Rodgers’s counseled PCRA petition was

considered. The Supreme Court of Pennsylvania has made clear that criminal appellants are not

entitled to “hybrid representation”—that is, they cannot simultaneously have counsel and act as cocounsel. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993); see also Commonwealth v.

Pursell, 724 A.2d 293, 301 (Pa. 1999) (citing Ellis, 626 A.2d at 1137). As such, PCRA courts are

not required to consider “pro se filings of defendants when qualified counsel represent those

defendants.” Pursell, 724 A.2d at 302 (citing Commonwealth v. Rogers, 645 A.2d 223 (1994)). A

pro se brief may be accepted for filing purposes, but it is not reviewed if a counseled brief is filed

at any time. See Commonwealth v. Castro, 766 A.2d 1283, 1288 n.11 (Pa. Super. Ct. 2001) (citing

Ellis, 581 A.2d at 600); see also Smith v. Nish, Civ. A. No. 07-1279, 2008 WL 4616850, at *5 n.2

(W.D. Pa. Oct. 16, 2008) (citing Cox v. Blaine, Civ. A. No. 00-5188, 2003 WL 22238986, at *5

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 7 of 17
A PCRA petition, “including a second or subsequent petition, shall be filed within one year 5

of the date the judgment becomes final . . . .” 42 Pa. Cons. Stat. Ann. § 9545(b)(1). “A judgment

becomes final at the conclusion of direct review . . . or at the expiration of time for seeking the

review.” Id. § 9545(b)(3). There are three exceptions to one-year time limit, which apply if the

petition alleges and the petitioner proves: (1) the government unlawfully interfered with the raising

of the claim; (2) the claim is predicated upon facts either unknown to or which could not be

ascertained by the petitioner through due diligence; or (3) the claim involves a newly recognized

constitutional right that has been held to apply retroactively. Id. § 9545(b)(1). Because Rodgers

merely raises evidentiary challenges and asserts the applicabilityof a constitutional right that already

existed at the time of his trial in 1993 (Griffin was decided in 1992), he does not qualify for any of

these exceptions.

The deadline for filing a petition for writ of certiorari with the Supreme Court of the United

States is 90 days after the final judgment of the state court of last resort. See Rules of the Supreme

Court of the United States, Rule 13(1). The Supreme Court of Pennsylvania denied allocatur on

March 12, 1996. Thus, Rodgers generally had to file all claims with the PCRA court no later than

June 10, 1997. He did not; therefore, his unfiled claims are procedurally defaulted. Moreover, even

if one of the three aforementioned exceptions to the one-year filing deadline did apply, Rodgers

cannot satisfy the statute’s requirement that petitions invoking such exceptions be filed within 60

days of the date the claim could have been presented. See 42 Pa. Con. Stat. Ann. § 9545(b)(2).

8

(E.D. Pa., July 23, 2003)). Because the Pennsylvania courts do not consider such pro se filings, and

because this procedural rule is firmly established and regularly followed by the Pennsylvania courts,

see generally Molina v. Lawler, Civ. A. No. 08-343, 2008 WL 5054558, at *6 (E.D. Pa. Nov. 21,

2008) (citing cases), the claims contained in such filings are deemed unexhausted; thus, we

ordinarily must dismiss such claims. See Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). 

Even though the state courts would not now consider Rodgers’ unexhausted claims because

they are untimely under state law, we may still consider them in the first instance if Rodgers can 5

establish that his procedural default should be excused. See Doctor v. Walters, 96 F.3d 675, 681-83

(3d Cir. 1996). In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court set out two bases

for excusing otherwise defaulted claims, holding that

[i]n all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred unless

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 8 of 17
9

the prisoner can [1] demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or [2]

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice. 

501 U.S. at 750 (emphasis added); see also Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000)

(citations omitted). 

To demonstrate “cause and prejudice,” the petitioner must show “‘some objective factor

external to the defense that impeded counsel’s efforts to comply with the State’s procedural rule.’”

Slutzker, 393 F.3d at 381 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (emphasis added).

Rodgers argues that his evidentiary claims were not exhausted, and thus procedurally defaulted,

because counsel was ineffective for failing to raise such claims in the counseled PCRA filing. This

argument lacks merit. A petitioner has no constitutional right to counsel in post-conviction

proceedings. Coleman, 501 U.S. at 752 (citing Pennsylvania v. Finley, 481 U.S. 551 (1990)). Where

an attorney fails to raise certain arguments in the state post-conviction proceedings, it is the

petitioner who “‘must bear the risk of the attorney error that results in a procedural default.’” Id. at

752-53. As such, a petitioner cannot claim the ineffective assistance of PCRA counsel as cause to

excuse his default. See id. at 752 (citing Wainwright v. Torna, 455 U.S. 586 (1982)); see also 28

U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral

post-conviction proceedings shall not be a ground for relief in a proceeding arising under section

2254.”) Consequently, we find that Rodgers does not qualify for the “cause and prejudice” exception

because he asserts only PCRA counsel’s ineffectiveness to excuse his default. 

We also find that Rodgers fails to satisfy the “miscarriage of justice” exception with respect

to his non-Pa. C.O.A. convictions. “To establish actual innocence, [a] petitioner must demonstrate

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 9 of 17
10

that, ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have

convicted him.’” Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513

U.S. 298, 327-328 (1995)) (internal quotations omitted). However, one cannot qualify for this

exception merely because he is technically innocent, i.e., because his conviction is merely legally

insufficient. Id. at 623-24 (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Rather, “[t]o be

credible, [an actual innocence] claim requires [a] petitioner to support his allegations of

constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Schlup, 513 U.S. at 324; see also Goldblum v. Klem, 510 F.3d 204, 225 (3d Cir. 2007) (“First, a

court must decide ‘whether the [petitioner] has presented new reliable evidence . . . not presented

at trial.’” (quoting Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004)))

In this case, Rodgers alleges actual innocence of all charges in his pro se Memorandum in

Support, but he has not offered new, reliable evidence of factual innocence to establish that this

exception applies to his non-Pa. C.O.A. convictions. Instead, Rodgers has merely alleged technical

innocence as to his non-Pa. C.O.A. convictions. Consequently, we find that Rodgers’ claims are

inexcusably, procedurally defaulted and overrule this objection.

C. Objection Three

Rodgers argues that trial counsel was ineffective for not objecting to evidence relating to his

alleged prior abuse of his girlfriend, his involvement in the drug business, and his possession of a

firearm like that used to kill the victim, as well as for failing to seek a mistrial after evidence was

admitted tending to show that his girlfriend’s children placed him at the murder scene. Magistrate

Judge Sitarski determined that the PCRA court properly ruled against Rodgers’ evidence-based

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 10 of 17
The instruction was given because defense counsel objected to the district attorney’s closing 6

arguments regarding the child’s statement. During summation, the district attorney stated, “Every

question Mr. Rodgers was asked on the stand, he tried to explain it away. The seven year old was

lying. The five year old was lying.” (N.T. 6/3/93 at 674.) After the prosecutor’s summation,

defense counsel objected to “[his] reference to calling a seven year old and a five year old lying

[sic],” reminded the court that it “had sustained [her] objections at the time of trial about the seven

year old,” and “ask[ed] for a cautionary instruction to the jury to disregard that statement.” (Id. at

684.)

11

ineffectiveness claims because the admission of each challenged piece of evidence was either

consistent with Pennsylvania’s laws of evidence or amounted to harmless error. See Commonwealth

v. Rodgers, No. 9211-3465 (C.C.P. Phila. May 6, 2002) at 3-5 (hereinafter “PCRA Opinion”).

Magistrate Judge Sitarski concluded that the PCRA court’s rulings were consistent with federal law

and, thus, were entitled to deference under the Antiterrorism and Effective Death Penalty Act of

1996 (codified at, inter alia 28 U.S.C. § 2254). Magistrate Judge Sitarski also concluded that

Rodgers had failed to demonstrate that the trial judge would have granted him a mistrial had counsel

asked for one, in light of the reasons articulated by the PCRA court and the fact that a curative

instruction was given during the charge at trial counsel’s request. (See N.T. 6/3/93 at 691 (“Some

6

mention was made of a seven year old and five year old in the closing statement of the District

Attorney. Please disregard that particular reference.”).) We agree with Magistrate Judge Sitarski’s

conclusions.

Beyond repeating verbatim the arguments he made below, Rodgers specifically objects to

Magistrate Judge Sitarski’s piecemeal consideration of the evidentiary challenges, rather than their

cumulative impact on the effectiveness of trial counsel’s representation. He also appears to argue

that trial counsel was ineffective for failing to object to the challenged evidence because the Pa.

C.O.A. conviction has since been vacated. Both contentions lack merit.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 11 of 17
12

First, although Rodgers assails the manner in which Magistrate Judge Sitarski considered his

evidentiary claims because he contends such consideration did not take into account the cumulative

effect of the alleged defects, we find no error with Magistrate Judge Sitarski’s analysis. The PCRA

court found that the only alleged error trial counsel actually committed was failing to object to the

testimony that Rodgers had possessed a gun on a prior occasion. As Magistrate Judge Sitarski

observed, however, the PCRA court determined that such error was “minor” compared to Rodgers’

admission to a witness that he shot the deceased because the deceased had tried to rape Rodgers’

girlfriend. (PCRA Opinion at 4.) Consequently, there was no need to examine the “cumulative”

effect of a single harmless error, and we reject Rodgers’ contention to that effect.

Second, the reasonableness of counsel’s failure to object to the admissibility of evidence

must be viewed “as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690. At the time of

Rodgers’ trial, the Pennsylvania court did apply the Pa. C.O.A. to illegitimate enterprises. See, e.g.,

Commonwealth v. Yacoubian, 489 A.2d 228, 231 (Pa. Super. Ct. 1985) (“Neither the preamble nor

the express language of the [Pa. C.O.A.] prevents its proscription from reaching enterprises

organized and existing for illegal purposes.”); Commonwealth v. Besch, 614 A.2d 1155 (Pa. Super.

Ct. 1992). Thus, any objection trial counsel might have raised would have been denied as meritless.

 (See, e.g., Trial Court Opinion at 4-5 (finding that evidence of Rodgers’ drug dealing conduct was

admissible to prove the Pa. C.O.A. charge).)

Rodgers nevertheless contends that trial counsel should have objected to his Pa. C.O.A.

conviction because, during the pendency of his post-trial motions, the Supreme Court of

Pennsylvania granted allocatur in Besch v. Commonwealth, 674 A.2d 655 (Pa. 1996), the case in

which that court first held that the Pa. C.O.A. applied only to legitimate enterprises. See id. at 659.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 12 of 17
13

However, as the Supreme Court of Pennsylvania recently observed—in a case involving allegations

that counsel had provided ineffective assistance for failing to assert this argument before Besch was

decided— nothing in Pennsylvania jurisprudence pre-Besch foreshadowed a narrowed interpretation

of the Pa. C.O.A., and trial counsel “cannot be deemed ineffective for failing to predict a change or

development in the law.” Commonwealth v. Williams, 936 A.2d 12, 28 (Pa. 2007) (citation

omitted). As such, Rodgers’ objection fails to the extent that he argues trial counsel should have

objected to the evidence on the basis of the then-proper Pa. C.O.A. charge. The fact that the

Supreme Court of Pennsylvania determined several years afterRodgers’ trial that the Pa. C.O.A. did

not apply to illegitimate enterprises has no bearing on whether counsel’s performance at trial was

effective, particularly when the change in the law was unforeseeable. Consequently, we overrule this

objection.

D. Objection Four

Rodgers argues that trial and direct appeal counsel were ineffective for failing to argue that

the Pa. C.O.A. only applied to legitimate enterprises because “the writing was on the wall” that the

Supreme Court of Pennsylvania was going to rule as such. Magistrate Judge Sitarski concluded that

such a claim was procedurally defaulted because it had only been raised in Rodgers’ pro se PCRA

petition. She likewise found that, even if not defaulted, this claim lacked merit. Nevertheless,

Magistrate Judge Sitarski determined that this claim was moot because she recommended that the

Pa. C.O.A. conviction be overturned. We agree that this claim is moot. Consequently, Rodgers has

received all of the habeas relief to which he is entitled on his Pa. C.O.A. claim, and we overrule the

objection.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 13 of 17
The first of the challenged instructions told the jury that they “may convict the defendant 7

on the basis of a single prosecution witness if [they] believe beyond a reasonable doubt that the

witness was truthful and believe that what the witness said happened is in fact what happened, and

believe that the testimony of the witness covers each element of the offense charged.” (N.T. 6/3/93

at 692.) The second instruction told the jury that “[l]egal malice may be inferred and found from the

attending circumstances of the act resulting in death.” (Id. at 695-96.)

14

E. Objection Five

Rodgers argues that trial counsel was ineffective for failing to object to two portions of the

jury charge that “together tended to relieve the Commonwealth of the burden of proving its case

beyond a reasonable doubt.” (Counseled Memo. in Support at 31.) Magistrate Judge Sitarski 7

concluded that this claim was procedurally defaulted and that it could not come in under the

“miscarriage of justice” exception because, although Rodgers is actually innocent of the Pa. C.O.A.

charge, he has not shown that he was actually innocent of the other charges of which he was

convicted.

Rodgers objects to this finding, contending that it was “not by any lack of diligence on [his]

part that his ineffectiveness issues relating to the jury charge were never addressed by either the

Court of Common Pleas or the Superior Court of Pennsylvania.” (Objections at 26.) Rather, he

argues it was PCRA counsel’s failure to include this claim (and other claims), over his vigorous and

explicit opposition, that caused him to default. As noted above, however, the fact that Rodgers

raised this issue in his pro se PCRA petition does not mean that his claim was exhausted. Rodgers’

counseled PCRA petition did not raise this argument, and the PCRA court never considered it.

PCRA counsel’s ineffectiveness cannot constitute the requisite cause and prejudice to justify

Rodgers’ default because it is not a constitutional defect. We therefore agree with Magistrate Judge

Sitarski that this claim is defaulted.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 14 of 17
15

Rodgers further argues that, even if defaulted, this claim qualifies for the miscarriage of

justice exception because of his claim of actual innocence as to the Pa. C.O.A. charge. He contends

that Magistrate Judge Sitarski incorrectly found that he does not qualify for the exception because

she did not cite to any case law “requiring that actual innocence on every count charged is required

to negotiate the miscarriage of justice gateway.” (Objections at 30.) We find that the actual

innocence exception necessarilyapplies on a count-by-count basis, and the burden therefore remains

on Rodgers to establish actual innocence as to each of the convictions he now collaterally attacks.

Here, Rodgers has offered no new evidence to show that no reasonable juror would have found him

guilty of the non-Pa. C.O.A. charges simply because he is innocent of the Pa. C.O.A. conviction.

See Coleman, 513 U.S. at 327 (citing Carrier, 477 U.S. at 496 ). Consequently, we find that

Rodgers does not qualify for the miscarriage of justice exception as to his non-Pa. C.O.A.

convictions and overrule this objection.

III. CONCLUSION

Upon careful consideration of Rodgers’ Objections of the Report and Recommendation and

Respondents’ responses thereto, we find that none of Rodgers’ objections has merit. Consequently,

we approve and adopt Magistrate Judge Sitarski’s Report and Recommendation in a manner

consistent with this Opinion.

An appropriate Order follows.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 15 of 17
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DENNIS RODGERS : CIVIL ACTION 

:

 v. :

:

DAVID DIGUGLIELMO, et al. : NO. 04-4010 

ORDER

AND NOW, this 17th day of March, 2009, upon careful and independent consideration of the

Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Docket No. 1) and all attendant

and responsive briefing, and after review of the Report and Recommendation of United States

Magistrate Judge Lynne A. Sitarski (Docket No. 47), Petitioner’s Objections to the Report and

Recommendation (Docket No. 48), and Respondents’ response thereto (Docket No. 49), IT IS

HEREBY ORDERED that:

1. Petitioner’s Objections to the Report and Recommendation of Magistrate Judge

Lynne A. Sitarski are OVERRULED.

2. The Report and Recommendation is APPROVED and ADOPTED consistent with this

Memorandum-Order.

3. The Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is

GRANTED only with respect to Petitioner’s Pennsylvania Corrupt Organizations Act

conviction; it is denied in all other respects.

4. The execution of the writ will be stayed 180 days to allow the state court to vacate the

Petitioner’s Pa. C.O.A. conviction and to re-sentence Petitioner.

5. Because Petitioner has failed to make a substantial showing of the denial of a

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 16 of 17
 constitutional right, we decline to issue a certificate of appealability under 28 U.S.C.

§ 2253(c)(2).

6. The Clerk shall CLOSE this case statistically.

BY THE COURT:

 /s John R. Padova 

John R. Padova, J.

Case 2:04-cv-04010-JP Document 51 Filed 03/18/09 Page 17 of 17