FOWLER v. MOONEY et al

Filing 23

ORDER THAT UPON CONSIDERATION OF PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. SEC. 2254 FILED BY PRO SE PETITIONER, ROBERT FOWLER, THE RECORD IN THIS CASE, THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE RICHARD A. LLORET AND THE OBJECT IONS TO THE MAGISTRATE'S REPORT AND RECOMMENDATION, IT IS ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED. THE OBJECTIONS TO THE REPORT ARE OVERRULED FOR THE REAS ONS SET FORTH BELOW. A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE BECASUE REASONABLE JURISTS WOULD NOT DEBATE THIS COURT'S DECISION THAT THE PETITION DOES NOT STATE A VALID CLAIM OF THE DENIAL OF A CONSTITUTIONAL RIGHT OR THE PROPRIETY OF THIS COURT'S PROCEDURAL RULINGS WITH RESPECT TO PETITIONER'S CLAIM. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/9/15. 11/10/15 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(gs)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROBERT FOWLER,
Petitioner,

CIVIL ACTION

v.
VINCENT MOONEY,
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA, and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

NO. 14-1768

ORDER
AND NOW, this 9th day of November, 2015, upon consideration of Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by pro se petitioner, Robert Fowler, the
record in this case, the Report and Recommendation of United States Magistrate Judge Richard
A. Lloret dated August 31, 2015, and Objections to the Magistrate’s Report and
Recommendation, IT IS ORDERED as follows:
1.

The Report and Recommendation of United States Magistrate Judge Richard A.

Lloret dated August 31, 2015, is APPROVED and ADOPTED;
2.

The Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by pro

se petitioner, Robert Fowler, is DENIED and DISMISSED;
3.

The Objections to the Report and Recommendation filed by pro se petitioner,

Robert Fowler are OVERRULED for the reasons set forth below; and,
4.

A certificate of appealability will not issue because reasonable jurists would not

debate (a) this Court’s decision that the petition does not state a valid claim of the denial of a
constitutional right, or (b) the propriety of this Court’s procedural rulings with respect to
petitioner=s claim. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The decision of the Court is based on the following:
1. Objections covered in the R&R.
Pro se petitioner filed a hodgepodge of Objections including new claims asserted after
issuance of the Report and Recommendation (R&R) by Magistrate Judge Richard A. Lloret.
Most of the Objections were covered in the R&R. Specifically, the objections on pages one (1)
through six (6), the objection on page seven (7) relating to police “mocking up” the crime scene,
the objection on page seven (7) relating to ineffectiveness of counsel for failure to include
arguments on appeal, the objection on page eight (8) relating to Commonwealth control of the
knife, and the second objection relating to “mocking up” the crime scene set forth on page nine
(9) were addressed in the R&R which was approved and adopted by the Court. All such
objections are rejected for the reasons stated in the R&R.
2. Remaining objections.
The remaining objections –the objection relating to police perjury (page seven (7), the
objection relating to the ineffectiveness for failure to include arguments on appeal based on the
original appeal in state court (page seven (7), and the objection on page nine (9) in which pro se
petitioner states the Magistrate Judge lied in the R&R – are non-specific new claims. They were
not presented to the magistrate judge. Finally, pro se petitioner invokes the writ of coram nobis
at page seven (7). This is a new claim not presented to the magistrate judge. Moreover, the
remedy of coram nobis is unavailable to pro se petitioner because, inter alia, he is in custody.
See Obado v. New Jersey 328 F.3d 716,718 (3rd Cir. 2003).
With respect to the new claims, Local Rule of Civil Procedure 72.1(IV)(c) provides as
follows:
“All issues and evidence shall be presented to the magistrate judges, and unless
the interest of justice requires it, new issues and evidence shall not be raised after
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the filing of the Magistrate Judge’s Report and Recommendation if they could
have been presented to the magistrate judge.”
The Court concludes that the interest of justice does not require consideration of the new
claims because all such claims could have been presented to the magistrate judge by pro se
petitioner, and he failed to do so. Thus, the objections purporting to raise new claims not
presented to the magistrate judge are overruled.
More is required of a habeas petitioner than to “scatter some makeshift needles in the
haystack of the…record.” Martens v. Shannon, 836 F.2d 715,717 (1st Circ. 1998). Rules2(c)(1)
and (2) of the Rules Governing Section 2254 cases require that a petition “specify” all grounds
for habeas relief and state the facts supporting each ground. If a petitioner fails to adequately
specify his claims, as in this case, they are subject to dismissal without an evidentiary hearing.
See Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991).
All of the objections raising new claims excepting only that involving the writ of coram
nobis are non-specific. Pro se petitioner raises issues but does not explain how the issues are
related to his case. They are overruled for that additional reason.

BY THE COURT:
/s/ Hon. Jan E. DuBois
DuBOIS, JAN E., J.

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