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Hassan-El v. Pierce

United States District Court, Third Circuit

October 22, 2013

AKBAR HASSAN-EL, Petitioner,
v.
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.[1]

Akbar Hassan-El. Pro se petitioner.

Maria Knoll, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.

MEMORANDUM OPINION

GREGORY M. SLEET, District Judge.

Pending before the court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner Akbar Hassan-El ("Hassan-El"). (D.I. 2; D.I. 6; D.I. 7) For the reasons discussed, the court will deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

As set forth by the Delaware Supreme Court in Hassan-El v. State, 911 A.2d 385, 388 (Del. Oct. 26, 2006), the facts leading to Hassan-El's arrest and conviction are as follows:

Shortly after 10 p.m. on July 18, 2001, the Wilmington Police responded to a 911 call concerning a shooting at 10th and Madison Streets. When the police arrived, they found a man who had sustained an apparent gunshot wound lying inside a Jack and Jill Ice Cream truck. The victim, Abdullah Alameri, was unresponsive and was pronounced dead a short time after he was transported to Christiana Hospital. Following an autopsy, it was determined that Alameri had died as a result of a single gunshot wound to his chest.
Inside the ice cream truck, the police recovered a 9mm shell casing near the driver's seat and a 25-caliber casing under a floor mat. The police also found a 25-caliber projectile that had lodge itself in the track of a sliding window on the passenger side of the truck. After the truck was processed by the police, it was returned to the Ja ck and Jill Company in Philadelphia. In the course of cleaning the truck, one of the Company's employees found a second projectile, a 9mm bullet, embedded in a shirt that was located on a shelf in the rear of the truck. The projectile was then turned over to the police.
Shortly after the shooting, the police conducted a neighborhood canvass to find out if anyone living nearby the shooting scene had seen or heard anything. The police also learned that an individual named Keith Flowers had called 911 about the shooting. When the police interviewed Keith Flowers, he told them about an individual named Robert "Whiteboy" Zayas.
During the course of the investigation, the police learned that Zayas had purchased a soda from the ice cream truck driver at 9th and Madison Streets just minutes before the shooting. The police also learned from a Tracida Bailey that her boyfriend Marcus Archy may have had information about the shooting. At the time of the shooting, Archy was living on 9th Street, near the corner of 9th and Madison.
In October 2001, Archy was in jail and asked Bailey to contact the police and tell them Archy had information about the shooting. At trial, Archy testified that he knew Zayas, Guy and Hassan-El from the neighborhood. Archy testified that on the night of the shooting, he first saw the ice cream truck at the corner of 9th and Madison. He also saw Hassan-El, who told him that "something crazy was about to go down, " but did not say what it was.
Archy testified that he saw Guy and Zayas on the sidewalk in front of Guy's house, which was on Madison, midway between 9th and 10th Streets. He also saw Hassan-El walking toward Guy and Zayas. Archy then began walking west on 9th Street, toward his house, when he heard gunshots. He looked up the street and saw Zayas, Guy and Hassan-El running toward 10th Street headed east.
Several minutes later, Archy saw Hassan-El coming down Madison Street. Archy testified that Hassan-El told him that Guy shot the ice cream man. Hassan-El told Archy that Guy had a 25-caliber weapon. Hassan-El also told Archy that he too had fired a shot, but that it did not hit the ice cream man. Archy testified that he did not see any of the three men with a weapon that evening and that Hassan-El seemed shocked about what had happened. A short time after this conversation with Hassan-El, Archy saw Zayas, who also told him that Guy had shot the ice cream man.
Keith Flowers testified at the trial that he had made the 911 call to the police just after the shooting. He also testified that when the police first contacted him, he did not want to get involved with the case and initially told them that he did not know anything about the shooting. At trial, Flowers testified he lived next door to Guy and that he also knew Hassan-El, who lived around the corner on 9th Street. On the evening of the shooting, Flowers had been out looking to buy some marijuana. When he came out of his house, Flowers saw Guy, Hassan-El and Zayas standing on the sidewalk.
Flowers testified that as he was walking toward his house, he saw the ice cream truck parked at the corner of 9th and Madison. He saw the truck continue up Madison Street to 10th Street and then he heard gunshots. He did not see who fired the shots. He saw three people near the truck, whom he identified as Zayas, Guy and Hassan-El. Flowers testified that he did not see their faces, but recognized them by the clothing they were wearing. He then saw the three men run east on 10th Street. He returned to his house to call 911.
Zayas testified that just before the shooting, he had bought a soda and a pretzel from the ice cream man at 9th and Madison. He then realized that the soda was frozen and he wanted to return it. He walked up Madison Street, where he saw Guy and Hassan-El "laying low in-between the steps" and "in the bushes a little bit." According to Zayas, Hassan-El told him about a plan to rob the ice cream man. Zayas told them their idea was stupid. They asked Zayas to flag down the ice cream truck. Zayas testified that he did not want to do it, but he also wanted to exchange his soda.
The ice cream truck pulled over at 10th and Madison, and Zayas went up to the truck and asked to exchange his soda. As Zayas was standing at the window, he watched Guy and Hassan-El come up to the truck. They had t-shirts around their faces. He saw Guy with a gun. He did not see Hassan-El with a gun. Hassan-El tried to boost Guy up through the window of the truck. Zayas heard two shots and saw Guy fire a shot that hit the ice cream man.
All three of them then fled down an alleyway that ran behind Guy's house, parallel to Madison Street. Zayas then ran back to the ice cream truck to see about the condition of the ice cream man. A short time later, Zayas approached Archy, and, according to Archy, was upset. Zayas told Archy that both Hassan-El and Guy had fired their guns, but that Guy had shot the ice cream man. Zayas also told Archy that he was scared because he was one who flagged down the truck. Zayas then went home because he was scared.

Id.

Hassan-El and Tyrone Guy were indicted on charges of first degree intentional murder, first degree felony murder, possession of a firearm during the commission of a felony, attempted first degree robbery, and second degree conspiracy. Id. at 387. Guy and Hassan-El were tried together before a jury in November 2003; that proceeding ended in a mistrial after the jury informed the court that it was unable to reach an unanimous verdict as to either defendant. Id.

After the mistrial, the State elected to try the defendants separately. Id. On May 27, 2005, a Delaware Superior Court jury convicted Hassan-El of first degree murder, second degree murder, possession of a firearm during the commission of a felony (PFDCF), attempted robbery, and second degree conspiracy. Id. at 388. Hassan-El was sentenced to life plus forty-five years in prison. The Delaware Supreme Court affirmed his convictions and sentence. Id. at 399.

In June 2007, Hassan-El filed his first motion for post-conviction relief under Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), which the Superior Court denied. See State v. Hassan-El, 2008 WL 3271229 (Del. Super. Ct. July 31, 2008). The Delaware Supreme Court affirmed that decision. See Hassan-El v. State, 966 A.2d 347 (Table), 2009 WL 234625 (Del. Feb. 2, 2009). Hassan-El filed a second Rule 61 motion in August 2009. The Superior Court denied the motion, and the Delaware Supreme Court affirmed that decision. State v. Hassan-El, 2010 WL 359697 (Del. Super. Ct. Jan, 27, 2010); Hassan-El v. State, 2010 WL 3673003 (Del. Sept. 21, 2010).

II. GOVERNING LEGAL PRINCIPLES

A. The Antiterrorism and Effective Death Penalty Act of 1996

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "to reduce delays in the execution of state and federal criminal sentences... and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 206 (2003). Pursuant to AEDPA, a federal court may consider a habeas petition filed by a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA imposes procedural requirements and standards for analyzing the merits of a habeas petition in order to "prevent ...


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