DOCKERY v. GIROUX et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 3/27/17. 3/27/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NANCY GIROUX, et al.,
March 27, 2017
Before the Court is Ricky Dockery's ("Petitioner") pro se Petition for a Writ of Habeas
Corpus. On November 18, 2014, Petitioner filed the instant Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
On February 13, 2017, Magistrate Judge Henry S. Perkin issued a Report and
Recommendation ("R&R") recommending that the Petition be denied. (Doc. No. 28 at 35.) On
March 3, 2017, Petitioner filed Objections to the Magistrate Judge's Report and
(Doc. No. 30.)
The Court has reviewed this case de novo, including
Petitioner's Objections, and for reasons that follow, the Court will adopt Magistrate Judge Henry
S. Perkin's Report and Recommendation to deny the Petition.
The facts in this case are taken from the Report and Recommendation of United States
Magistrate Judge Henry S. Perkin (Doc. No. 28.) and are as follows:
On direct appeal, the Pennsylvania Superior Court summarized the facts of this
case as follows:
On the night of April 6, 2005, at approximately 10:50 p.m., Allan
[sic] Johnson was shot and killed outside 1933 South 18th Street,
Philadelphia[.] Ten minutes earlier, Johnson had been walking up
the 1900 block of South l 81h Street towards Mifflin Street, when he
stopped to talk to Aziza Sidberry, a friend from the
neighborhood[.] Johnson was leaning up against a van as he spoke
About ten minutes into the conversation, [Appellant] rode up on a
black and gray mountain bike in between the vehicle that Johnson
was leaning on and the car in front of him. [Appellant] then pulled
out a silver .9[sic] millimeter handgun and fired three shots at
Johnson. Johnson was hit in the neck and the chest, and later died.
Sidberry watched [Appellant] ride off on the bike towards Mifflin
Dr. Bennett Preston, Assistant Medical Examiner of the City of
Philadelphia, conducted an autopsy on the decedent's body which
revealed that the decedent had been hit once in the left neck and
once in the left chest. Dr. Preston, who removed ballistic evidence
from the decedent's body, also determined that the cause of death
was multiple gunshot wounds and the manner of death was a
Officer Joseph Cosgrove found three fired cartridge cases from a .9
millimeter handgun next to the decedent. Police Officer Kenneth
James Lay of the Philadelphia Firearms Identification Unit
examined the ballistic evidence recovered from the crime scene.
Officer Lay determined that all three fired cartridge cases were .9
millimeter Luger, manufactured by Remington, and they were all
fired from the same firearm.
Mr. Lay also examined the ballistic evidence recovered from the
decedent's body, and determined that the two bullets that hit
Johnson were fired from the same gun, and were consistent with .9
millimeter fired projectiles.
After a defense motion in limine, the Court allowed the
introduction of 25 .9 millimeter bullets recovered from a magazine
of an UZI [sic] recovered from defendant's resident pursuant to the
execution of a search warrant. In the magazine, Detective Steven
Mostovyk found 25 rounds of .9 millimeter semiautomatic
ammunition, 20 of which were Remington manufacture. The
magazine that the ammunition was found in was not from the
Commonwealth v. Dockery, 1434 EDA 2007 (Pa. Super. July 28, 2008), pp. 2-3
(quoting Trial Ct. Op., July 25, 2007, pp. 2-3); Resp., Ex. A at 1-3. Respondents
[n]either the gun nor the magazine were admitted as evidence. On
the first day of trial, Petitioner made a motion in limine and told
the trial court that the Commonwealth "[w]ishes to [ ] introduce
into evidence the magazine." (N.T. 5/16/07, 5.) The prosecutor
explained that 20 of the rounds in the magazine were the "same
caliber, same manufacturer" as the fired cartridges at the crime
scene, and that all 25 rounds were capable of being fired from a
wide variety of handguns (Id., 8-10). The trial court properly ruled
that the ammunition was admissible (Id., 10).
In accordance with that ruling, a police officer who had
participated in the search of Petitioner's house testified that police
had not found the murder weapon. (N.T. 5117/07, 250.) He stated
that police found 25 .9 millimeter bullets in a magazine, and
specified that the magazine, was not the murder weapon. The
expert further testified that .9 millimeter bullets fit many types of
.9 millimeter guns, and that it is easy to remove bullets from one
gun and use them in a different gun.
Resp., p. 3 n.1.
(Doc. No. 28 at 1-2.)
B. Procedural History
A jury trial was held before the Honorable Jeffery P. Minehart in the Court of Common
Pleas, Philadelphia County. At the conclusion of that trial, the jury convicted Petitioner of one
count of first-degree murder and one of count possessing an instrument of crime ("PIC''). (Doc.
No. 28 at 1.) Following the conviction, Petitioner was sentenced to a mandatory sentence of life
without parole for the murder conviction and a concurrent sentence of two and one-half years
incarceration on the PIC conviction. (Id.) Next, Petitioner filed a timely notice of appeal to the
Superior Court of Pennsylvania. On July 18, 2007, Judge Minehart issued his decision for the
benefit of the appellate court. (Id. at 2). Judge Minehart's decision was filed on July 25, 2007.
(Id. at 2-3, citing Commonwealth v. Dockery, Phila. CCP July 25, 2007 (No. CP 0507-0311
1/1).) On July 28, 2008, the Pennsylvania Superior Court affirmed the judgment of sentence.
(Id. at 3, citing Commonwealth v. Dockery, 959 A.2d 961 (Pa. Super. 2008) (No. 1434 EDA
2007) (unpub. mem.); Resp., Ex.A.).) On December 3, 2008, the Pennsylvania Supreme Court
denied Petitioners' request for an allowance of appeal. (Id., citing Commonwealth v. Dockery,
454 EAL 2008, 962 A.2d 1195 (Pa. 2008).)
On October 26, 2009, Petitioner filed a prose PCRA petition. (Id.) On January 15, 2010,
counsel was appointed for Petitioner. On December 30, 2010, pursuant to Commonwealth v.
Finley, PCRA counsel filed a no-merit letter. 1 550 A.2d (Pa. Super. Ct. 1988). He was replaced
by new counsel who again filed a no-merit letter. The PCRA Court issued a notice pursuant to
Pa. R. Crim. P. 907 stating that the Petition would be dismissed without a hearing.
Petitioner filed pro se objections to this Notice. (Id.) Counsel filed a supplemental Finley letter
addressing these objections. (Id.) On May 8, 2013, the PCRA Court dismissed the Petition by
Order. (Id.) Petitioner appealed and the PCRA Court issued its decision for the benefit of the
appellate court on July 23, 2013. (Id.) On April 15, 2014, the Pennsylvania Superior Court
affirmed the PCRA Court's dismissal of the Petition. (Id., citing Commonwealth v. Dockery, 102
A.3d 541 (Pa. Super. 2013) (table, No. 1454 EDA 2013); Resp., Ex. B.) On October 6, 2014, the
Pennsylvania Supreme Court denied the Petition for allowance of appeal.
Commonwealth v. Dockery, No. 296 EAL 2014.)
In Commonwealth v. Finley, a prisoner filed a pro se petition for post-conviction relief. 550
A.2d 213 (Pa. Super. Ct. 1988). He was appointed counsel who filed a "no merit letter" with
the court. The Superior Court of Pennsylvania found that the appointed counsel's "no-merit
letter" coupled with the court's independent review of evidence in light of the pro se postconviction requests for relief comported with prisoner's entitlement to effective counsel.
Thereafter, Petitioner filed this action. On February 13, 2017, United States Magistrate
Judge Henry S. Perkin filed his Report and Recommendation, finding the Petition to be without
merit and recommending its dismissal. Petitioner's filed Objections, which are now ripe for
STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(l)(B) and the local rules of this Court, a district judge is
permitted to designate a magistrate judge to make proposed findings and recommendations on
petitions for post-conviction relief. Any party may file objections in response to the magistrate
judge's Report and Recommendation. 28 U.S.C. § 636(b)(l)(C). Whether or not an objection is
made, a district judge "may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The [district] judge may also receive further
evidence or recommit the matter to the magistrate judge with further instructions." Id.
must be assumed that the normal practice of the district judge is to give some reasoned
consideration to the magistrate's report before adopting it as the decision of the court."
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); see also 28 U.S.C. § 636(b).
In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner's
objections to a magistrate judge's Report and Recommendation. Under that rule, a petitioner
must "specifically identify the portions of the proposed findings, recommendations or report to
which objection is made and the basis for such objections[.]"
Savior v. Superintendent of
Huntingdon SCI, No. 11-5639, 2012 WL 4206566, at* 1 (E.D. Pa. Sept. 20, 2012). Upon review,
"[a district judge] shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C).
De novo review is non-deferential and generally permits the district court to conduct an
"independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238
(1991). "Although [the] review is de novo, [a district judge] [is] permitted, by statute, to rely
upon the magistrate judge's proposed findings and recommendations to the extent [the judge], in
the exercise of sound discretion, deem[s] proper." Owens v. Beard, 829 F. Supp. 736, 738 (M.D.
Pa. 1993) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).
a. Petitioner's Objection That There Was Insufficient Evidence to Convict Him
is Without Merit
Petitioner objects to Magistrate Judge Perkin's findings about the sufficiency of evidence
used at trial to convict him. He claims that eyewitness Aziza Sidberry: 1) was prepared by the
prosecution to say certain facts, including that she was told there would be a bike in the
courtroom and she would need to identify if it "either looks similar or [if it was] the exact same
bike," 2) lacked actual knowledge that Petitioner was the shooter, and 3) was compensated for
her testimony in the amount of $6,377.48. (Doc. No. 30 at 6.)
In considering the insufficiency of evidence argument, a petition for writ of habeas
corpus must persuade the Court that the evidence, viewed in the light most favorable to the
prosecution, could not move a rational trier of fact to find guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979).
The ultimate question is whether the
prosecution provided evidence to support the substantive elements of the offense as defined by
state law. Id. at 324, n.16. Under the AEDPA, review for sufficiency of evidence requires a
determination as to whether the state court disposition was an objectively unreasonable
application of Jackson, supra. Williams v. Taylor, 529 U.S. 362, 379-90 (2000). The Petitioner
has the burden of showing that the state court's analysis was "objectively unreasonable."
Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
In this case, Magistrate Judge Perkin thoroughly reviewed Petitioner's claim for
insufficiency of evidence. He noted that the claims of Petitioner were raised in state court and
were found to be without merit.
Petitioner argued that Aziza Sidberry's testimony was
insufficient because she was prepared by the prosecution to say certain facts, lacked actual
knowledge that Petitioner was the shooter, and was compensated for her testimony in the amount
of $6,3 77.48. Magistrate Judge Perkin reviewed these contentions and correctly found that,
In his Response to the Commonwealth's Response to the Petition, Petitioner
challenges the testimony of Aziza Sidberry "the Commonwealth's prepared and
compensated sole witness, and not because of the presence of contradictions, but
primarily because of it's unreliability. There are a number of factors that would
cause one to look upon the testimony of Aziza Sidberry with a jaundiced eye."
Pet'r's Resp., p.8. As correctly noted by the Respondents, the determination of
witness credibility, the resolution of conflicts in evidence, and the drawing of
reasonable inferences from proven facts all fall within the province of the fact
finder and are therefore beyond the scope of federal habeas corpus review.
(Doc. No. 28 at 13, citing Herrera v. Collins, 506 U.S. 390, 401 (1993).)
Based on the
determination "that the evidence adduced at trial was sufficient to support Petitioner's
convictions [and] was in no way contrary to, or an unreasonable application of the Jackson
standard," this Court agrees with the conclusions made by Magistrate Judge Perkin. (Id. at 13.)
As a result, Petitioner's claim for insufficiency of evidence will be denied.
b. Petitioner's Objection Regarding Prosecutorial Misconduct is Without Merit
Next, Petitioner objects to Magistrate Judge Perkin's finding that Petitioner's conviction
should not be overturned because of prosecutorial misconduct.
Magistrate Judge Perkin
carefully considered Petitioner's allegations and found that they were already considered by the
state courts. Magistrate Judge Perkin found that the state court did not unreasonably reject the
claims. The claims of prosecutorial misconduct asserted by Petitioner include: 1) the prosecutor
referenced inadmissible evidence on two separate occasions during the opening argument which
tainted the jury with evidence that would never be made part of the record or did not exist, 2) the
prosecutor improperly attempted to create false evidence over objections, specifically in
referencing the recovery of the bicycle recovered from Jahleel Thomas' house, and 3) in closing
arguments the prosecutor improperly commented on evidence ruled inadmissible by the trial
court and then commented on defense counsel's motive for objecting. (Doc. No. 30 at 10.)
The Court must decide if the prosecutorial misconduct, "so infected the trial with
unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright,
477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Petitioner must
show that the conduct was so egregious that it amounted to a denial of due process. Ramseur v.
Beyer, 983 F.2d 1215, 1239 (3d Cir. 1992), cert. denied, 508 U.S. 947 (1993). The error must
have had a "substantial and injurious effect" on the verdict. Brecht v. Abramson, 507 U.S. 619,
The state court's decision on the claims of prosecutorial misconduct was thoroughly
reviewed by Magistrate Judge Perkin and has been reviewed independently by this Court.
Magistrate Judge Perkin found no ground for reversible error considering the applicable law.
Likewise, this Court finds that the claims of prosecutorial misconduct do not show any reversible
error occurred in this case. (Doc. No. 30 at 22.) As a result, Petitioner's objection to Magistrate
Judge Perkin's finding on this issue is without merit.
c. Petitioner's Objection Relating to Counsel's Deficient Performance is
In his third argument, Petitioner objects to Magistrate Judge Perkin's finding that even
though a fact witness, Jahleel Thomas, was never contacted by Petitioner's trial counsel or PCRA
counsel, the failure to do so did not result in a deficient performance by either counsel. (Doc.
No. 30 at 11.) This argument was previously considered by the state court.
In order to constitute ineffective assistance of counsel, a petitioner must satisfy the two
well-known prongs of Strickland: 1) that counsel's performance was deficient and 2) that
counsel's deficient performance caused the petitioner prejudice. Strickland v. Washington, 466
U.S. 668 (1984). When a state court rejects an ineffective assistance of counsel claim, a federal
court can grant habeas relief only if the decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States." 28 U.S.C. § 2254(d)(l); Vega v. Klem, No. Civ. A. 03-5485, 2005 WL 3216738, at *6
(E.D.Pa. Nov. 29, 2005).
Here, Petitioner argues that his trial counsel was ineffective for not contacting and not
using Jahleel Thomas as a witness at trial and also that PCRA counsel was ineffective for not
pursuing this matter on collateral review. 2 Specifically, Petitioner states that Thomas would have
testified "that the bicycle [allegedly used by Petitioner in commission of the crime] never left
Thomas' house or possession on the day of the shooting." (Doc. No. 28 at 30.) Petitioner filed
an affidavit from Jahleel Thomas which was executed several months after this instant Petition
In it, Thomas stated that he was willing to testify, but that he was never
contacted or interviewed by Petitioner's counsel. (Id.) In his Report and Recommendation,
Magistrate Judge Perkin found:
Respondents note that Thomas was Petitioner's good friend and subject to
possible accomplice liability if he provided the bicycle used in the crime. Thus,
he had an obvious motive to lie. Moreover, Petitioner overestimated the
importance of the bike, which was only a small part of the evidence against him.
In contrast, Ms. Sidberry immediately told police that she knew the shooter and
unwaveringly identified Petitioner as the shooter. She knew Petitioner before the
The Court should only consider the claim of ineffective assistance of trial counsel because
under 28 U.S.C. § 2254(i), "[t]he ineffectiveness or incompetence of counsel during Federal of
State collateral post-conviction proceedings shall not be a ground for relief in a proceeding
arising under section 2254."
shooting and stood face-to-face with the shooter. (N.T., 5/16/07, pp. 125, 126.)
Just after the shooting, she gave police an accurate and detailed description of
Petitioner. She also unequivocally identified Petitioner as the shooter at the
preliminary hearing and at trial. (Id. at 145, 173.) Ms. Sidberry's account of the
shooting was corroborated by the physical evidence at the scene, and by the
recovery of .9 millimeter bullets from Petitioner's house like the ones used in the
shooting. Given the strong evidence against Petitioner, it is unreasonable that [ ]
Thomas's impeachable testimony would have resulted in a different verdict or
that trial counsel's decision not to call [ ] Thomas would have been a reasonable
(Doc. No. 28 at 30-31.)
This Court agrees with the assessment of Magistrate Judge Perkin and the state courts.
Counsel cannot be deemed ineffective for failing to pursue a meritless claim. Here, pursuing an
interview of Jahleel Thomas would not have changed the outcome of the trial or in any way
shown deficiency on the part of trial counsel. The same is true for PCRA counsel. Accordingly,
Petitioner has failed to offer sufficient evidence to prove a contrary application of federal law as
required by 28 U.S.C. § 2254(d)(l) and has failed to meet his burden regarding ineffective
assistance of counsel.
The Report and Recommendation of Magistrate Judge Perkin dated February 13, 2017,
will be approved and adopted and Petitioner's Habeas Petition (Doc. No. 1) will be denied.
(Doc. No. 28.) A Certificate of Appealability will not be issued based on the analysis contained
in the Magistrate Judge Perkin's Report and Recommendation, as approved and adopted by this
Court, that a reasonable jurist could not conclude that the Court is incorrect in denying and
dismissing the Writ of Habeas Corpus. An appropriate Order follows.
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