IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK D. JONES, :

:

Petitioner : No. 4:06-CV-00102

:

v. : Petition Filed 1/13/06

:

LOUIS FOLINO, : (Judge Muir)

:

:

Respondent :

ORDER

July 10, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On January 13, 2006, Frederick D. Jones, an inmate at

the State Correctional Institution, Waynesburg, Pennsylvania,

filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Jones is serving a 20 to 40 year sentence for third

degree murder. This case was assigned to us but referred to

Magistrate Judge J. Andrew Smyser for preliminary consideration. 

On April 10, 2006, Magistrate Judge Smyser filed a 15-

page report recommending that Jones’s petition be denied. On

April 24, 2006, Jones filed objections to the report of

Magistrate Judge Smyser. Jones did not file a brief in support

of those objections at the same time in accordance with the Local

Rules of Court. However, the objections contained legal

argument and by order of May 15, 2006, were construed as

objections and a brief in support thereof. The order also

authorized Respondent to file a brief in opposition. On June 20,

2006, Respondent filed a brief in opposition. The objections

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became ripe for disposition on July 5, 2006, when the time for

filing a reply brief expired. 

When objections are filed to a report of a magistrate

judge, we make a de novo determination of those portions of the

report or specified proposed findings or recommendations made by

the magistrate judge to which there are objections. United

States v. Raddatz, 447 U.S. 667 (l980); 28 U.S.C. §636(b)(l);

Local Rule 72.3l. District judges have wide discretion as to how

they treat recommendations of the magistrate judge. Id. Indeed,

in providing for a de novo review determination rather than a de

novo hearing, Congress intended to permit whatever reliance a

district judge, in the exercise of sound discretion, chooses to

place on a magistrate judge's proposed findings and

recommendations. Id. See also Mathews v. Weber, 423 U.S. 26l,

275 (l976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. l984).

The facts surrounding the murder were summarized by the

state trial court as follows:

In the late evening of November 6, 1998, Shannon Greer,

the deceased, and another individual by the name of

Taquan Bostic, became involved in a verbal

confrontation in the area of North Hartley Street

and Park Street in the City of York. Bostic started

to become physical with Greer when one (1) of Greer’s

cousins, Daniel Moreno, tried to get Greer to walk

away. [Jones] walked behind [Greer] amd fired one (1)

bullet from a handgun into the back of Greer’s

head. Neither Greer nor Bostic had any weapons. 

Following the shooting, [Jones] fled to 

Wrightsville, Georgia, where he was arrested four

(4) days later.

Based on these facts the jury found Jones guilty of third degree

murder. 

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Before a state prisoner can seek federal habeas relief,

the prisoner is required to exhaust all state court remedies.

Picard v. Connor, 404 U.S. 270, 278 (1971). If a prisoner fails

to do so, exhaustion can be excused if there is presently no

state court remedy available. Carpenter v. Vaughn, 296 F.3d 138,

146 (3d Cir. 2002). However, even though exhaustion is excused

the prisoner cannot obtain federal review unless the prisoner

demonstrates “cause” for the failure to exhaust and “prejudice”

resulting therefrom or that failure to consider the claims on the

merits would result in a fundamental “miscarriage of justice.”

Id.

Jones contends that he was denied meaningful appellate

review, was denied access to trial transcripts, that all

appointed counsel had conflicts of interest, that trial counsel

prevented him from testifying by advising him not to do so, that

trial counsel failed to object to evidence about prior bad acts,

and that appellate counsel was ineffective. Magistrate Judge

Smyser concluded that Jones is prohibited from presenting in

federal court all of the claims except one. That one claim is

that trial counsel was ineffective when he advised Jones not to

testify. The basis for this conclusion is that Jones did not

exhaust the claims in state court with the exception of one

ineffective assistance of counsel claim and that Jones’s failure

to exhaust all of the claims except one prevented him at this

time under state procedural rules from receiving any further

relief in state court on the unexhausted claims. As result of

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his failure to present the claims in state court, Magistrate

Judge Smyser concluded that Jones procedurally defaulted or

waived the claims, and that he had not established cause or a

justification for excusing the procedural default or waiver which

would entitle him to federal review. Magistrate Judge Smyser

further concluded that Jones failed to establish that there would

be a miscarriage of justice if he did not receive federal review

of all of his claims. 

As for the one claim that is properly before us,

Magistrate Judge Smyser reviewed it on the merits and concluded

that the state court’s determination that trial counsel was not

ineffective for advising Jones not to testify “did not result in

a decision contrary to, or involving an unreasonable application

of, clearly established federal law and did not result in a

decision based on an unreasonable determination of the facts in

light of the evidence presented in the state proceedings.” 

Magistrate Judge Smyser utilized the proper standard of

review. 28 U.S.C. § 2254 states in pertinent part as follows:

An application for writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the

claim–

(1) resulted in a decision that was contrary to,

or involved and unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in 

light of the evidence presented in the State

Court proceeding.

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Jones contends that his trial counsel erroneously believed that

Jones’s prior criminal record of convictions not involving false

statements or dishonesty could be used against him if he

testified. Jones further contends that trial counsel advised him

not to testify based on that erroneous belief. The state court

concluded after a post-conviction hearing that trial counsel knew

that Jones’s convictions would not be admissible and that there

were several other reasons for advising Jones not to testify,

including the following: the trial was going well in trial

counsel’s opinion and there was nothing that Jones could say that

would improve his chance of acquittal; Jones had told trial

counsel that he had retrieved his handgun before going outside

and the retrieval of the handgun could support an inference of

premeditation; and trial counsel believed that Jones’s trial

testimony would conflict with a statement that Jones had given to

a law enforcement agent. 

Under the circumstances it is clear that trial counsel

was not ineffective. Jones was facing the possibility of a jury

verdict of first degree murder and a sentence of life

imprisonment without the possibility of parole. Jones’s

testimony at trial would have only increased the probability of

that verdict and sentence. As a result of his declining to

testify, the jury did not hear evidence that may have persuaded

it to find Jones guilty of first degree murder. 

Jones’s objections which are a rehash of the arguments

presented to Magistrate Judge Smyser are without merit. 

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Magistrate Judge Smyser thoroughly supported his recommendation

in the 15 page report. That report is free from error and we

shall adopt it as our own. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. The report of Magistrate Judge J. Andrew Smyser

filed on April 10, 2006, is adopted in toto.

2. Jones’s petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 is denied.

3. The Clerk of Court shall close this case.

4. Any appeal from this order will be deemed lacking

in probable cause, i.e., a substantial showing of the denial of a

constitutional right, and a certificate of appealability will not

issue. 

 

 s/Malcolm Muir 

 MUIR, U.S. District Judge

MM:gs

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