DUCKETT v. PITKINS et al

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE HENRY S. PERKIN. IT IS FURTHER ORDERED THAT THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/30/17. 4/3/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHRISTOPHER LEE DUCKETT,

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Petitioner

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v.
MR. DAVID PITKINS,
SUPERINTENDENT;
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA,
SETH WILLIAMS; and
THE ATTORNEY GENERAL OF THE
STATE [SIC] OF
PENNSLYVANIA, KATHLEEN
KANE,

Civil Action
No. 14-cv-03710

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Respondents

0 R D E R

NOW,

thi~day

of March, 2017, upon consideration

of the following documents:

(1)

Form for Use in Applications for Habeas Corpus Under
28 U.S.C. § 2254, which form was filed by petitioner
prose on June 12, 2014 ("Petition")

(Document 1);

(2)

Amended Petition to Habeas
28 u.s.c. Sec 2244 File[d]
amended petition was filed
November 7, 2014 ("Amended

Corpus Pursuant to
on June 12, 2014, which
by petitioner pro se on
Petition") (Document 13);

(3)

Response to Petition for Writ of Habeas Corpus, which
response was filed December 17, 2014 ("Response")
(Document 16);

(4)

Supplemental Response to Petition for Writ of Habeas
Corpus, which supplemental response was filed August 24,
2015 (~Supplemental Responsen) (Document 34);

{5)

Amended for Habeas Corpus Relief to Article 1, Section 14, of Pennsylvania Constitution and Under
28 U.S.C. § 2254, which amended petition was filed

by petitioner pro se on October 19, 2015 ("Second
Amended Petition") (Document 36);
(6)

Amended for Habeas Corpus Relief to Article 1, section 14, of Pennsylvania Constitution and under
28 U.S.C. § 2254, which amended petition was filed
by petitioner pro se on August 10, 2016 ("Third
Amended Petition") (Document 38);

(7)

Report and Recommendation of United States Magistrate
Judge Henry s. Perkin dated and filed September 30,
2016

(8)

I "R&R")

(document 39); and

Objection to Report and Recommendation, which
Objections were filed by petitioner pro se on October
28, 2016 ("Objections")

(Document 43);

it appearing that the Objections are a restatement of the
arguments raised in the Petition and subsequent amendments; it
further appearing, after a de nova review of this matter, 1 that
the Report and Recommendation of Magistrate Judge Perkin
correctly determined the pertinent legal and factual issues
presented in the Petition,

1

The extent of review of a Magistrate Judge's Report and Recommendation is committed to the discretion of the district court. Jozefick v.
Shalala, 854 F.Supp. 342, 347 (M.D.Pa. 1994). However, the district court
must review de nova those portions of the R&R to which objection is made.
28 U.S.C. § 636(b) (1) (c). The court may ~accept, reject, or modify, in whole
or in part, the magistrate's findings or recommendations." Brophy v. Halter,
153 F.supp,2d 667, 669 (E.D.Pa. 2001) (Padova, J.); Rule 72.l(IV)(b) of the
Rules of Civil Procedure for the United States District Court for the Eastern
District of Pennsylvania.
Furthermore, district judges have wide latitude regarding how
they treat recommendations of the magistrate judge, See united States v.
Raddatz, 447 U.S. 667, 100 S.Ct, 2406, 65 L.Ed.2d 424~980), Indeed, by
providing for a de novo determination, rather than a de nova hearing,
Congress intended to permit a district judge, in the exercise of the court's
sound discretion, the option of placing whatever reliance the court chooses
to place on the magistrate judge's proposed findings and conclusions. I may
accept, reject, or modify, in whole or in part, any of the findings or
recommendations made by the magistrate judge. Id.

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IT IS_ORDERED that the Objections are overruled. 2
IT IS FURTHER ORDERED that the Report and
Recommendation of Magistrate Judge Perkin is approved and
adopted.
IT IS FURTHER ORDERED that the Petition, Amended
Petition, Second Amended Petition, and Third Amended Petition
are denied. 3
2

Petitioner spends the bulk of his Objections complaining about
trial counsel's failure to present an alibi defense. This claim was
thoroughly addressed in the R&R.
Petitioner also complains that trial counsel failed to object to
the prosecutor's reference to ~ghetto codeu in his closing argument, which
petitioner claims amounted to prosecutorial misconduct. Specifically, the
prosecutor opined that ~ghetto code" prevents individuals living in certain
neighborhoods from cooperating with police. See R&R at pages 31-32. This
claim was also thoroughly addressed by the R&R. Nonetheless, petitioner
insists that this statement in the prosecution's closing argument amounted to
~vouchingu for the credibility of a government witness.
The prosecutor's remark did not amount to improper vouching
because it did not draw upon the prosecutor's own integrity or position to
boost the witness's credibility. Rather, as explained in the R&R, it was an
invited response to the question posed by trial counsel during his closing
argument of why the witness did not voluntarily go to the police to provide
information.
Petitioner renews in his Objections a claim that trial counsel,
James Bruno, Esquire, was ineffective by virtue of his ~mental state 8 • See
Objections at page 43. This claim was first alleged in petitioner's Third
Amended Petition, filed without leave after this matter had already been
referred to Magistrate Judge Perkin for a Report and Recommendation.
Petitioner alleges that the Disciplinary Board of the Supreme
Court of Pennsylvania temporarily suspended Attorney Bruno from the practice
of law by an Order dated February 26, 2013. According to petitioner, a
physician testified before the Disciplinary Board and diagnosed Attorney
Bruno with Attention Deficit Hyperactivity Disorder (uADHD 8 ) .
I cannot conclude that Attorney Bruno rendered petitioner with
ineffective assistance based alone on the fact that Attorney Bruno was
diagnosed with ADHD years later. To establish ineffective assistance of
counsel, petitioner must demonstrate that: (a) counsel's performance was so
deficient that ~counsel was not functioning as the 'counsel' guaranteed the
(Footnote 3 continued):

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IT IS FURTHER ORDERED that, because no reasonable
jurist could find this ruling debatable, a certificate of
appealability is denied.
IT IS FURTHER ORDERED that the Clerk of Court shall

mark this case closed for statistical purposes.
BY THE COURT:

~~~~~~
United States District Judge

(Continuation of footnote 3):
defendant by the Sixth Amendment"; and (b) ~the deficient performance
prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
The R&R thoroughly assessed each of petitioner's non-defaulted
claims for why trial counsel's performance was allegedly deficient. Moreover, petitioner made a disciplinary complaint against Attorney Bruno for his
alleged failure to respond to petitioner's inquiries. The Pennsylvania Supreme
Court's Office of Disciplinary Counsel dismissed petitioner's complaint after
Attorney Bruno informed them that he had met with petitioner numerous times
to prepare for trial. See Third Amended Petition, Exhibit C.
Petitioner submitted a document entitled Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania, in
which the Disciplinary Board recommended suspending Attorney Bruno's law
license for one year based in part on difficulties sterruning from Attorney
Bruno suffering from ADHD. See Third Amended Petition, Exhibit D. This court
may not consider this evidence because it was never presented to the state
courts. See Cullen v. Pinholster, 563 U.S. 170, 185, 131 S.Ct. 1388, 14001401, 179 L.Ed.2d 557 (2011).
Moreover, petitioner did not present the document to this court
until he filed a Third Amended Petition without leave of court, after the
matter had already been referred for a Report and Recommendation, and without
the opportunity for the Commonwealth to respond to it.
Even if this document had been presented to the state courts and
submitted to this court in a timely and appropriate fashion, it would not
establish ineffective assistance of counsel. The recommendation indicates
that it was based upon a disciplinary complaint against Attorney Bruno made
on October 19, 2011, which is more than five and a half years after Attorney
Bruno represented petitioner during the period leading up to his March 21,
2006 trial. It is therefore not pertinent to petitioner's case.

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