GARRUS v. JOHNSON et al

Filing 34

ORDER THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE HEY IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 8/18/09. 8/19/09 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED TO COUNSEL. (jpd)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA NAKIA WILLIAM GARRUS v. BARRY JOHNSON, SUPERINTENDENT, et al. : : : : : : CIVIL ACTION NO. 07-0187 ORDER AND NOW, this 18th day of August, 2009, upon consideration of the Petition for Writ of Habeas Corpus (Document No. 1), the Respondents' Answer to Petition for Writ of Habeas Corpus (Document No. 18), the Report and Recommendation filed by United States Magistrate Judge Elizabeth T. Hey (Document No. 30) and the petitioner's objections to the Report and Recommendation in the form of the Response to Honorable Elizabeth T. Hey's Report and Recommendation (Document No. 33), and after a thorough and independent review of the record, it is ORDERED that: 1. 2. The petitioner's objections are OVERRULED; The Report and Recommendation of Magistrate Judge Hey is APPROVED and ADOPTED1; The Magistrate Judge's thorough and well-reasoned report will be approved and adopted with r e s p e c t to the treatm e n t and analysis of the petitioner's claim s . However, we part ways with the Magistrate J u d g e with respect to her recom m e n d a t io n that a certificate of appealability be issued. 1 3. 4. The Petition for Writ of Habeas Corpus is DENIED; and, There is no probable cause to issue a certificate of appealability.2 /s/ Timothy J. Savage TIMOTHY J. SAVAGE, J. 2 In her report, the Magistrate Judge correctly notes that, N e ith e r Shepard [v. United States, 544 U.S. 13 (2005)] nor any other Suprem e Court decision h a s held that, as a m a t t e r of a right to a jury trial preserved in the Sixth Am e n d m e n t , a s e n te n c in g court is precluded from relying on police reports associated with a prior conviction to determ in e that the conviction authorizes im p o s iti o n of a sentence in excess of the o th e r w is e applicable m a x im u m . In the absence of such holding, I cannot conclude that the s ta te courts' determ in a tio n was unreasonable or contrary to establish law. R e p o r t and Recom m e n d a tio n (Doc. No. 30) at 38-39. Nevertheless, she recom m e n d s that a certificate of a p p e a la b ility be issued. A writ of habeas corpus can be granted only if the state court adjudication of the claim satisfies either c o n d it io n set forth in 2454(d). Chadwick v. Janecka, 312 F.3d 597, 605-06 (3d Cir. 2002). Because the s ta te court adjudicated petitioner's claim on the m e r its , the federal court cannot set aside that adjudication u n le s s one of the conditions of 2254(d) is m e t . Garrus does not m a k e any claim that the decision is based on an unreasonable determ in a tio n of the f a c ts in light of the evidence presented in the state court. Consequently, his only ground for habeas relief w o u ld be if the "decision was contrary to, or involved an unreasonable application of, clearly established F e d e r a l law as determ in e d by the Suprem e Court of the United States." 28 U.S.C. 2254(d)(1). The M a g is tr a te Judge concluded, and we agree, that the state court's determ in a tio n was not unreasonable nor c o n t r a r y to established law. Therefore, there is no basis for issuing a certificate of appealability.

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