SMITH v. LAMAS et al

Filing 21

ORDER THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITHOUT AN EVIDENTIARY HEARING; THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT IS DIRECTED TO MARK THIS CASE CLOSED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 4/14/14. 4/14/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONEDR AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
PERCY SMITH,
:
Petitioner,
:
:
v.
:
:
MARIROSA LAMAS, et al.,
:
Respondents.
:
__________________________________________:

CIVIL ACTION

No. 13-2987

ORDER
AND NOW, this 14th day of April, 2014, upon careful and independent consideration of
the petition for writ of habeas corpus, and after review of the Report and Recommendation of
United States Magistrate Judge Thomas J. Rueter (Doc. No. 15) and the Objections filed by
Petitioner, it is hereby ORDERED that:
1.

Petitioner’s objections (Doc. No. 20) are OVERRULED;1

2.

The Report and Recommendation of United States Magistrate Judge Thomas J.
Rueter (Doc. No. 15) is APPROVED and ADOPTED;

1

The basis for Petitioner’s objections to the Report and Recommendation is not entirely
clear. Petitioner raised only a single issue at the state post-conviction stage: whether his lawyers
were constitutionally ineffective for failing to assert his speedy-trial rights under the
Pennsylvania Rules of Criminal Procedure. But this claim turns on a question of state law that
was resolved against Petitioner in his PCRA appeal, where the Superior Court concluded that the
Commonwealth did not violate the relevant Pennsylvania rule. (Superior Court PCRA Opinion,
at 4-5 n.3.) Because an objection based on the rule would have been meritless under state law,
counsel was not constitutionally ineffective for failing to make it. Werts v. Vaughn, 228 F.3d
178, 203 (3d Cir. 2000).
If Petitioner’s habeas petition is read as raising a claim that counsel was ineffective for
failing to assert his speedy-trial rights under federal constitutional law, it faces a difference
problem: this is the first time Petitioner has presented that claim to any court. As such, the
Report and Recommendation correctly concludes that the claim is unexhausted, and no relief can
be granted now, even if Petitioner were entitled to it (which he would not be). 28 U.S.C. §
2254(b)(1).

3.

The petition for a writ of habeas corpus is DENIED WITHOUT AN
EVIDENTIARY HEARING;

4.

There is no basis for the issuance of a certificate of appealability; and

5.

The Clerk of Court is directed to mark this case CLOSED.

BY THE COURT:

/s/ Mitchell S. Goldberg
____________________________
MITCHELL S. GOLDBERG, J.