Dixon v. Mahally

MEMORANDUM

PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE

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Pending before the Court^[1] is the Petition for a Writ of Habeas Corpus (ECF 1) filed by state prisoner Darnell Dixon (“Petitioner”) under 28 U.S.C. § 2254. For the reasons set forth below, the Court will deny the Petition and will deny a certificate of appealability as to each claim.

I. Relevant Background^[2]

In this habeas case, Petitioner challenges the judgment of sentence imposed upon him by the Court of Common Pleas of Allegheny County at criminal docket number CP-02-CR-17215-2008 for the November 8, 2008 second-degree murder of Michael Ross (the “victim” or “Ross”) during the robbery of his clothing store, CC&M.

As discussed below, the Commonwealth introduced evidence at Petitioner's trial to demonstrate that he and his nephew and co-defendant, Edward Dixon (“Edward”), entered the clothing store armed with guns and demanded cash from the victim. The store was located in a high-crime area and the victim had a .38 caliber handgun nearby and defended himself with it. The victim was shot at least nine times during the robbery and died at the scene. Petitioner was also shot during the incident. (See Resp's Ex. 14 at 79-83.)

Petitioner and Edward ran from the scene and witnesses observed them getting into Edward's SUV, which was parked nearby. Edward then drove Petitioner to Mercy Hospital. Medical personel there reported to police that they were treating an individual who had been shot. The police interviewed Edward, who initially denied having any involvement in the crimes at the victim's store. When the police advised him that there were potential witnesses who could place him at the scene of the crime, Edward admitted that he and Petitioner entered the victim's store with masks over their faces and demanded money from the victim at gunpoint. Edward also stated that Petitioner and the victim shot at each other. Edward said that he fired shots into the floor in an attempt to scare the victim. (Id. at 83-87.)

At Petitioner's trial, the Commonwealth proceeded under the theory that the Petitioner and Edward were both armed during the robbery and that Petitioner shot the victim numerous times using a .22 caliber Ruger pistol that investigators subsequently recovered from a hidden panel in Edward's SUV. Edward was likely using a .32 caliber handgun during the commission of the robbery (which was not recovered). The Commonwealth introduced DNA and ballistic evidence (through its experts, Walt Lorenz and Dr. Robert Levine, respectively) to support its theory of the case. The DNA profile found on the grip of the .22 caliber pistol was consistent with Petitioner's profile. The victim and Edward were excluded as contributors. (Trial Tr. at 345.)

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James McGee, ^[3] a homicide detective with the Pittsburgh Police Department, interviewed Petitioner at Mercy Hospital three days after the shooting, on November 11, 2008. At Petitioner's trial, Det. McGee testified that during this interview Petitioner admitted that he and Edward went to the victim's clothing store on November 8, 2008. Petitioner stated that he remembered entering the store and the victim coming out “from around the corner [with] a gun in his hand.” (Trial Tr. at 242.) Petitioner further stated that “he heard a bunch of yelling, people yelling from the back room and he heard a lot of gunshots at which time he ran out of the store and ran down to go where” Edward parked his SUV. (Id.) Petitioner told Det. McGee that when he was running towards the SUV he started to have difficulty breathing, realized that he had been shot, and then directed Edward to drive him to the hospital. (Id.) Petitioner told Det. McGee that he did not know how he got shot. (Id. at 243.)

Petitioner initially was charged with one count each of criminal homicide, 18 Pa.C.S. § 2501(b), robbery, 18 Pa.C.S. § 3701(a)(1)(i), and conspiracy to commit robbery, 18 Pa.C.S. § 903(a)(1). Similar charges were filed against Edward. The trial court subsequently granted Petitioner's motion to sever his case from Edward's case.

On November 21, 2008, Petitioner waived a preliminary hearing. The court appointed Attorney Thomas N. Farrell (“trial counsel”) to represent Petitioner. On January 15, 2009, the Commonwealth filed an Information charging Petitioner with the three counts sets forth above and also with one count of carrying a firearm without a license, 18 Pa.C.S. § 6106(a)(1).

At a pre-trial hearing held on October 18, 2010, the Commonwealth moved to add another firearm charge (possession of a firearm by person prohibited, 18 Pa.C.S. § 6105(a)(2)(i)) to the

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Information. (Trial Tr. at 5.) That request was granted and Petitioner waived his right to have that added firearm charge tried to the jury.^[4] (Id. at 5-8.)

On October 20, 2010, the trial court held a hearing on Petitioner's motion to supress the statement he gave to Det. McGee. (Id. at 9.) The trial court denied that motion at the conclusion of the hearing. (Id. at 24-28.) It then proceeded to trial.

In its Appellate Rule 1925(a) opinion issued after Petitioner filed a direct appeal, the trial court provided the following summary of the evidence introduced at Petitioner's trial:

On November 8, 2008, Michael Ross was the owner and operator of a business known as CC&M Fashions located on Hodgkins Street in the Northside Section of the City of Pittsburgh Ross sold t-shirts and other sports-related wearing apparel from the store; however, because his father and grandfather who had previously operated the store were robbed or attempted to be robbed on several occasions, Ross rarely kept more than sixty dollars on the premises and he also had a thirty-eight-caliber revolver in his desk drawer. Ross opened his store sometime between 11:30 a.m. and 12:00 p.m. and shortly thereafter, Ross' father [Fred] came to the store and assisted him and was working in the back of the store storing additional items that Ross had for sale

Earlier on November 8, 2008, Ross had attempted to call his girlfriend, Christine Johnson. They had made numerous phone calls to each other; however, they had not been able to reach each other. At approximately 1:00 p.m., Ross and Johnson were finally able to reach each other on the telephone and were talking for several moments when she heard someone come into the store. Apparently Ross believed that he had disconnected the phone connection but he had not and Johnson was able to hear what was going on in the store. Johnson heard Ross say to someone who had come into to the store, “Take your hoodie off” and also heard the individual who came into the store say, “Give me your money.” She then disconnected this conversation and called 911 to report a robbery that was taking place at Ross' business

Fred Ross, who was working in the back of the store, knew that his son was on the phone and decided to deal with the inventory in the storage area. While he was working in the back of the store, he heard Michael Ross yell to him, “Dad, it's on.” Fred Ross then came to the front of the store and partially obscured by several racks of clothing saw two young, black males come into the store, both of whom were dressed in black and had what appeared to be black masks on. Both of the men that Fred Ross saw were armed and one of the two was yelling at Michael Ross to

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“Give up the money.” The two intruders were focused on Michael Ross and not Fred Ross and he was able to run out the front door and across the street to a Kuhn's Market where he had hoped to find a Pittsburgh Police Officer or security guard to assist him in the prevention of this robbery. Once he was outside of the store he heard several gunshots and turned to see the two intruders leaving the store and heading down toward Ingram Street. Fred Ross went into the store and saw Michael Ross lying on the floor and realized that there was nothing he could do for him.

Victoria Zuback, (hereinafter referred to as “Zuback”), was walking her dog along Ingram Street when she heard a series of gun shots. Shortly after hearing those gunshots, she heard the sound of footsteps approaching her and when she turned to look, she saw two individuals dressed in black, with black masks on. The first individual went to a large SUV that was parked in front of a house and [she] saw that individual go to the rear of the vehicle, open the left rear door and appear to put something in the back, close the door and then get into the driver's seat. Shortly thereafter she heard another individual heading toward the SUV and saw that individual get into the front passenger seat and then saw the vehicle leave the scene.

Jamal El-Main, (hereinafter referred to as “El-Main”), was in his bedroom on the second floor of his home [on] Ingram Street and was about to change his clothes so he could go out and rake the leaves. When he was looking out his bedroom window, he noticed a large SUV parked in front of his house, which was parked in the wrong direction. El-Main went to his son's bedroom to get a better look at the vehicle and in looking out his son's bedroom window, he saw an individual all dressed in black reach the SUV, go to the back rear, open up the rear door and attempt to dispose of something. He then saw that individual get into the driver's seat. He also saw that there was someone else in the passenger seat and although he did not have a full view of them he was able to determine that there was someone there because he saw his legs. El-Main went down the stairs but by the time he got down the stairs, the SUV was gone. When he observed the driver of the SUV, he noticed that his hair was messed up like