RODRIGUEZ v. ROZUM et al

Filing 19

ORDER AS FOLLOWS: THE REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE LINDA K. CARACAPPA DATED 9/29/11, IS APPROVED AND ADOPTED IN PART AND REJECTED IN PART. PETITIONER'S PETITION UNDER 28 U.S.C. SEC. 2254 FOR WRIT OF HABEAS CORPUS BY A PERSO N IN STATE CUSTODY IS GRANTED AND PETITIONER'S SECOND-DEGREE MURDER CONVICTION AND SENTENCE AND AGGRAVATED ASSAULT AND ATTEMPTED MURDER CONVICTIONS ARE VACATED AND SET ASIDE. PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE SUSTAINED IN PART AND OVERRULED IN PART, ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 6/13/12. 6/13/12 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_____________________________________
DAVID RODRIGUEZ,
Petitioner,
v.
GERALD L. ROZUM, THE DISTRICT
ATTORNEY OF THE COUNTY OF
PHILADELPHIA, and THE ATTORNEY
GENERAL OF THE STATE OF
PENNSYLVANIA,
Respondents.
_____________________________________

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CIVIL ACTION

NO. 11-393

ORDER
AND NOW, this 13th day of June, 2012, upon consideration of Petitioner’s Petition
Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Document No.
1, filed January 21, 2011), Petitioner’s Memorandum of Law in Support of Petition for Writ of
Habeas Corpus (Document No. 6, filed March 23, 2011), and Respondents’ Response to Petition
for Writ of Habeas Corpus (Document No. 11, filed July 18, 2011); and after review of the
Report and Recommendation of United States Magistrate Judge Linda K. Caracappa (Document
No. 13, filed September 29, 2011), Petitioner’s Objections to Report and Recommendation
(Document No. 14, filed October 17, 2011), and Petitioner’s Memorandum of Law in Support of
Petitioner’s Objections to the Report & Recommendation (Document No. 15, filed October 18,
2011), for the reasons set forth in the Memorandum dated June 13, 2012, IT IS ORDERED as
follows:

1.

The Report and Recommendation of United States Magistrate Judge Linda K. Caracappa
dated September 29, 2011, is APPROVED and ADOPTED IN PART and REJECTED
IN PART as follows:
a.

That part of the Report and Recommendation of United States Magistrate Judge
Linda K. Caracappa dated September 29, 2011, relating to petitioner’s
sufficiency-of-the-evidence claim is REJECTED. Petitioner’s Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody is
GRANTED and petitioner’s second-degree murder conviction and sentence and
aggravated assault and attempted murder convictions1 are VACATED and SET
ASIDE. The execution of the writ of habeas corpus is STAYED for 180 days
from the date of this Order to permit the Commonwealth of Pennsylvania to grant
petitioner a new trial and, if petitioner is found guilty, a new sentencing;

b.

That part of the Report and Recommendation of United States Magistrate Judge
Linda K. Caracappa dated September 29, 2011, relating to petitioner’s claim
based on retroactive application of state law is APPROVED and ADOPTED as
amplified by this Court’s Memorandum dated June 13, 2012, and petitioner’s
claim based on retroactive application of state law is DISMISSED;

2.

Petitioner’s Objections to Report and Recommendation are SUSTAINED IN PART and
OVERRULED IN PART as follows:

1

As set forth in the attached Memorandum, petitioner was convicted of second-degree
murder, aggravated assault, and attempted murder. However, he was only sentenced on the
second-degree murder count.

a.

Petitioner’s First and Third Objections, relating to petitioner’s sufficiency-of-theevidence claim, are SUSTAINED;

b.

Petitioner’s Second Objection, relating to petitioner’s claim based on retroactive
application of state law, is OVERRULED;

3.

A certificate of appealability WILL NOT ISSUE with respect to petitioner’s claim based
on retroactive application of state law because reasonable jurists would not debate this
Court’s rulings. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484,
(2000).

BY THE COURT:

/s/ Hon. Jan E. DuBois
JAN E. DUBOIS, J.