Bass v. Clark

340 F.Supp.3d 463

Tyree BASS, Petitioner,

v.Michael CLARK, et al., Respondents.

CIVIL ACTION NO. 16-5026

United States District Court, E.D. Pennsylvania.

Filed December 12, 2018

Tyree Bass, Albion, PA, pro se.

Catherine Kiefer, Philadelphia District Atty's Office, Philadelphia, PA, for Respondents.

ORDER

CYNTHIA M. RUFE, District Judge.

AND NOW , this 11^th day of December 2018, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, and all related filings, and upon review of the Report and Recommendation ("R & R") of United States Magistrate Judge Timothy R. Rice, and Petitioner's objections, it is hereby ORDERED that:

1. Petitioner's Motion to Supplement Objections [Doc. No. 28] is GRANTED .¹

2. The Objections are OVERRULED and the R & R [Doc. No. 22] is APPROVED and ADOPTED² ;

3. The Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE and without an evidentiary hearing;

4. There is no probable cause to issue a certificate of appealability³ ; and

5. The Clerk of Court is directed to CLOSE the case.

It is so ORDERED .

REPORT AND RECOMMENDATION

TIMOTHY R. RICE, U.S. MAGISTRATE JUDGE

Petitioner Tyree Bass, a prisoner at the State Correctional Institution in Albion, Pennsylvania, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges, inter alia, ineffective assistance of trial counsel based on a detailed series of errors. For the reasons described below, I recommend dismissing his petition with prejudice.

FACTUAL AND PROCEDURAL HISTORY

In March 2010, Bass was convicted by a jury of second degree murder, attempted murder, aggravated assault of an unborn child, conspiracy to commit arson, and possession of an instrument of crime, for shooting Kevin Cook and his pregnant fiancée, Emine Hajredinaj. See Commonwealth v. Bass, CP-51-CR-0005903-2008, Dkt. ("Crim. Dkt.") at 4-5. Evidence at trial showed two men had brought a red gas can and two Molotov cocktails to the area outside Cook's Philadelphia home late on January 29 and early on January 30, 2008. Commonwealth v. Bass, at 5-7 (C.C.P. Aug. 11, 2010) ("Tr. Ct. Op."). One man, wielding a shotgun, killed Hajredinaj and severely injured Cook and his then-unborn child by firing directly into their stopped car. Id.

Police officers described the scene of the crime, and the surviving victim, Kevin Cook, testified. N.T. 2/22/10 at 4-91. At the time of the shooting, Cook lived with Hajredinaj, their one-year-old daughter, and his teenage cousin. Id. at 91-92. His sister, Cassandra Cook-Powell, her husband, Charles Powell, and their two children were also staying with them. Id. Cook met Bass several weeks before the shooting through a mutual friend, Kenny Watts. Id. at 137, 147. Some time before the shooting, Cook had driven Cassandra to Bass's home, where she broke the windows because Bass owed her money. Id. at 114. Two days before the shooting, Cook heard Bass tell Cassandra to "watch her back." Id. at 183.

The night of the shooting, Cook and Hajredinaj made a quick, late-night visit to McDonald's. Id. at 97. Upon their return, Bass approached Cook's car with a shotgun. Id. at 97-98. Cook spoke to Bass for several minutes, explaining that Cassandra was not home, Hajredinaj was pregnant, and children were in the house. Id. at 98-100. Bass fired directly into the car, before fleeing on foot with his co-conspirator. Id. at 98-100, 105. Powell was the first family member to come outside after the shooting, and Cook told Powell that Bass had shot him. Id. at 190-91. Cook's neighbor, Victor Clark, drove him to the hospital in a white car. Id. at 106-07, 215. Cook did not identify Bass to Clark, telling him only "somebody shot me." Id. at 106-07, 215, 232. Cook briefly spoke to a police officer at the hospital, where he again failed to identify Bass. Id. at 106-07; see also N.T. 2/24/10 at 99 (Cook told officer at hospital he had been shot by two black males, one of whom wore a "skully" cap). Cook then lost consciousness, and remained in a coma for approximately two weeks. Id. at 107.

After Cook had testified for two-and-a-half hours, the trial recessed. Id. at 192-204. In chambers, the trial court expressed concern that Cook was "break[ing] down," and limited defense counsel's questioning to discrepancies between Cook's various statements. Id.

The following day, Cassandra testified that Watts had arranged for her to be paid $1,000 for helping Bass secure a large tax refund. N.T. 2/23/10 at 6-7. When Bass received an approximately $4,000 refund but refused to pay her, she broke the windows of his home with a brick. Id. at 10, 42. Cassandra acknowledged that, in exchange for her testimony, the Commonwealth had agreed not to prosecute her for breaking Bass's windows or for assaulting an officer who responded to the shooting. Id. at 17-18. She further acknowledged fighting with her husband the night of the shooting, and admitted the fight had left blood in her car. Id. at 61.

Defense counsel had Cassandra read aloud her police statement, in which she detailed her illegal agreement with Bass. Id. at 76-89. At sidebar, the Commonwealth contended this violated an earlier trial court order, and requested a limiting instruction. Id. at 81. The court instructed the jury to disregard the question and answer. Id. at 85, 90.

Watts corroborated Cassandra's testimony about the tax scam, and explained he was supposed to have received a $200 referral fee. Id. at 95, 108. Watts said Bass had threatened to get a shotgun rather than pay Cassandra's fee, and Watts heard Bass threaten Cassandra after she broke his windows. Id. at 95-97. Watts also corroborated Cook's account of socializing with Bass. Id. at 104-05. On cross-examination, Watts read his police statement, in which he admitted he had spoken with Powell shortly after the shooting, but Powell had not told him who shot Cook. Id. at 134-35.

Police testified the red gas can was not filled with regular gasoline, but diesel fuel or some other petroleum distillate. N.T. 2/24/10 at 14-17. Michael Green, Cook's teenage cousin, testified he was home the night of the shooting and saw two men outside, although he could not tell if either one was Bass because he could not see their faces. Id. at 71-72.

Detective John Harkins, who took Cook's statement in the hospital, testified that Cook had not mentioned that he had identified Bass to Powell earlier. Id. at 200. Harkins acknowledged that police had questioned Cook only once, the day he emerged from his coma, and had not contacted him again before Bass's preliminary hearing. Id. at 205-06, 218. Harkins further testified Watts had provided a 267 phone number to reach Bass, but that it had not been registered to Bass or Bass's girlfriend, and that a search of Bass's home yielded no evidence related to the shooting. Id. at 205-06.

Before putting on the defense, counsel notified the court that Bass's former girlfriend, Jillian Sanders, said police had threatened to charge her with perjury if she testified. Id. at 54-55. Outside the presence of the jury, Harkins testified he had told Sanders he did not believe her alibi for Bass, that people who lied under oath were subject to perjury charges, and that perjury convictions had to be reported to employers. Id. at 62-63. The trial court told defense counsel that, if Sanders refused to testify, counsel should ask her about the detective's statements so the jury could "just hear everything and make their own decisions." Id. at 66. Counsel also informed the court that Powell was avoiding their subpoena, likely due to an outstanding bench warrant. Id. at 74.

Sanders testified that, on the night of the murder, she had been at a bar with Bass from 10:00 p.m. to 2:00 a.m. Id. at 93-94. Although Sanders said she accompanied Bass when he surrendered at the police station, she did not tell them about Bass's alibi because she did not see an opportunity to do so, and no police contacted her. Id. at 95-96. She also said she did not notify Bass's counsel of the alibi at Bass's preliminary hearing. Id. at 113. She identified her cellphone and home phone numbers, and acknowledged that she had regularly let Bass use her phone. Id. at 127-28. She testified she did not recognize the 267 number. Id. She said Bass had filed his tax return through H & R Block on January 30, 2008, and confirmed that Watts was supposed to have received a referral fee. Id. at 133. She testified that she had her cell phone with her all day on the day of the shooting. Id. at 137.

Outside the presence of the jury, Bass told the court he had directed his lawyers to call Sanders as a witness, and also to subpoena Tunique Wright, Lewis Gerard, Michael Burns, Brendan Leahy, Thomas Neilson, and Charles Powell. Id. at 142. Counsel advised the court that Powell was still avoiding their subpoena, and that they had advised against calling the other witnesses. Id. at 142-46. The court found Bass had knowingly and voluntarily demanded the testimony. Id. at 146, 151.

The next day, Leahy testified that, on the night of the shooting, he ran into a man on Penn Street who asked him if he was a cop, and then indicated that he was carrying a gun. N.T. 2/26/10 at 10. In his statement to police, Leahy had described the man as "a dark-skinned male in his mid-30s" with a "light mustache" who was 5'8? tall, about 130 pounds, and wearing dark jeans and a black hoodie. Id. at 12. On cross-examination, he acknowledged that he did not have a clear memory of the individual and never saw him carry a shotgun or run. Id. at 15-16. Next, Gerard testified that, on the night of January 30, 2008, he had sold a red container of gasoline to a beardless Hispanic male in his 30s with a close haircut and a red jacket. Id. at 22-23. On cross-examination, he acknowledged that his store did not sell diesel fuel, and on re-direct he conceded the sale took place around midnight. Id. at 25-26.

On March 1, 2010, Neilson testified that, on the night of the shooting, he had heard car doors...