Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-12-2002

Johnson v. Vaughn
Precedential or Non-Precedential:

Docket No. 00-2180




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Recommended Citation
"Johnson v. Vaughn" (2002). 2002 Decisions. Paper 272.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/272


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                                                                                          NOT

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                          No. 00-2180
                          ___________

                         MARCUS JOHNSON
                           Appellant
                               v.

 DONALD T. VAUGHN, ET. AL.; THE DISTRICT ATTORNEY OF THE COUNTY
     OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF
                         PENNSYLVANIA.
                          ___________

        On Appeal from the United States District Court
            for the Eastern District of Pennsylvania

     District Court Judge: The Honorable Herbert J. Hutton
               (D.C. Civil Action No. 99-cv-4786)
                          ___________

           Submitted Under Third Circuit LAR 34.1(a)
                         April 2, 2002

     Before: SLOVITER, FUENTES, and MICHEL, Circuit Judges

                    (Filed: April 11, 2002)

                    _______________________

                      OPINION OF THE COURT
                    _______________________


FUENTES, Circuit Judge:
     Marcus Johnson appeals the District Court’s Order, approving and adopting the
Report and Recommendation of the Magistrate Judge, and thereby denying his petition
for a writ of habeas corpus from his Pennsylvania conviction and life sentence for felony
murder. We granted Johnson a Certificate of Appealability (CAPP), pursuant to 28
U.S.C. 2253(c), limited to the single issue of whether Johnson’s counsel was ineffective
for failing to seek a cautionary jury instruction relating to witness identification, pursuant
to Pennsylvania v. Kloiber, 

(1954). Because we find no error in the District
Court’s decision, we will affirm.
     On July 30, 1991, Johnson and co-defendant Curtis Simmons were found guilty by
a jury, in the Pennsylvania Court of Common Pleas, of murder in the second degree under
Pennsylvania’s felony murder statute, criminal conspiracy, burglary, and two counts of
robbery. The charges arose out of Johnson and Simmons’ collaboration in the robbery of
a corner pizza shop in West Philadelphia, during which the store’s 69-year old owner was
beaten to death and then locked in his restaurant’s refrigerated meat locker. The court
imposed mandatory life sentences for the murder convictions but deferred further
sentencing until it reviewed pre-sentencing reports and post-verdict motions for both
defendants.
     On February 2, 1993 the Judge in the Court of Common Pleas denied Johnson’s
motions but reserved judgment as to Simmons’ post-verdict motions. The judge
eventually granted Simmons’ motion for a new trial, based on Simmons claim of
ineffective assistance of counsel for failing to request a cautionary jury instruction
regarding uncertain witness identification testimony, pursuant to Pennsylvania v. Kloiber,

(1954). In Kloiber, the court held that "where the witness is not in a
position to clearly observe the assailant, or he is not positive as to identity, or his posit
statements as to identity are weakened by qualification or by failure to identify defendant
on one or more prior occasions...the Court should warn the jury that the testimony as to
identity must be received with caution." See, 

.
     The Commonwealth appealed the Judge’s decision to grant Simmons a new trial
but the appeal was rejected in Commonwealth v. Simmons, 

(Pa. Super.
1994). Prior to the commencement of his new trial, Simmons pled guilty to third degree
murder. Johnson eventually exhausted all of his appeals in the Pennsylvania courts and,
on September 23, 1999, filed a petition for a writ of habeas corpus in the District Court
for the Eastern District of Pennsylvania. Johnson’s petition raised various claims relating
to his trial. His principal claim was that his trial counsel rendered ineffective assistance i
failing to request a cautionary jury instruction regarding uncertain witness identification
testimony.
     In April 2000, the Magistrate Judge filed a 20-page Report recommending denial
of Johnson’s claims and dismissal of his petition. See, App. at 17-36. In July 2000, the
District Court issued an Order in which it approved and adopted the Magistrate Judge’s
Report and Recommendation, and denied Johnson’s Petition for habeas relief. See, App.
at 37. In its Order, the District Court also determined that no probable cause existed to
issue a CAPP because Johnson had not "made a substantial showing of the denial of a
constitutional right." 

petition for leave to appeal the District Court’s denial of habeas
relief, we granted a CAPP on the question of whether Johnson’s counsel was ineffective
for failing to seek a jury instruction pursuant to Pennsylvania v. Kloiber." Also, we
directed the Clerk to appoint counsel for Johnson. See, App. at 22.
     After a thorough and careful review of the record, we now affirm the Order of the
District Court, substantially for the reasons stated by the Magistrate Judge in her
persuasive and well-reasoned Report. We pause only to note that, even though Johnson’s
co-defendant, Simmons, was granted a new trial for substantially the same claim that
Johnson now makes, the Magistrate Judge clearly identified the distinguishing factors
that allowed her to determine that "[Johnson] failed to show that his trial counsel’s
alleged deficient conduct prejudiced his defense," as required under the applicable
Supreme Court precedent. See, Strickland v. Washington 

, 694 (1994).
Specifically, the Magistrate Judge noted that eyewitness testimony was the only direct
evidence placing co-defendant Simmons at the scene of the crime. However, Johnson
gave a statement to the police in which he placed himself at the crime scene as an
accomplice. As the Magistrate Judge pointed out, this confession brought Johnson
squarely within the definition of an accomplice to a felony under Pennsylvania law. See,
18 Pa. C.S.A. 2502(b) (stating that "[a] criminal homicide constitutes murder of the
second degree when it is committed while defendant was engaged as a principal or an
accomplice in the perpetration of a felony." [emphasis added]). In addition, two
witnesses offered further incriminating identification testimony when they stated at trial
that Johnson had tried but failed to rob the same pizza shop the week before, and had told
them that he was going to return there to "get that money."
     In sum, we agree with the Magistrate Judge’s conclusion that Johnson is "unable to
show that, ’there is a reasonable probability that, but for [his] counsel’s [alleged]
unprofessional errors, the result of the proceeding would have been different." App. at 36,
quoting, 

.
     For these reasons, the judgment of the District Court is AFFIRMED and Johnson’s
petition for habeas relief is DENIED.
____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                        /s/ Julio M. Fuentes
Circuit Judg