TAPPER v. KERESTES et al

Filing 44

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S OBJECTION TO THE REPORT AND RECOMMENDATION IS OVERRULED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED WITH PREJUDICE WITHOUT AN EVIDENTIARY HEARING; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; AND THE CLERK OF COURT SHALL MARK THIS CASE AS CLOSED.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/3/18. 8/3/18 ENTERED AND COPIES MAILED TO PROS SE PETITIONER AND E-MAILED.(rv)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IAN TAPPER,
Petitioner,
v.
JOHN KERESTES, et al.,
Respondents.

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CIVIL ACTION
NO. 15-3712

O R D E R
AND NOW, this 3rd day of August, 2018, after review of
the Report and Recommendation of United States Magistrate Judge
Marilyn Heffley (ECF No. 40) and Petitioner’s objection thereto
(ECF No. 43), it is hereby ORDERED as follows:
1.

The Report and Recommendation is APPROVED and

ADOPTED;1

1

A district conducts a de novo review and determination of
the portions of the report and recommendation by a magistrate judge to
which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b)
(providing requirements for filing objections to magistrate judge’s
proposed findings, recommendations or report). “District Courts,
however, are not required to make any separate findings or conclusions
when reviewing a Magistrate Judge’s recommendation de novo under 28
U.S.C. § 636(b).” Hill v. Barnacle, 655 Fed. App’x 142, 147 (3d Cir.
2016). The district “court may accept, reject, or modify, in whole or
in part, the findings and recommendations” contained in the report. 28
U.S.C. § 636(b)(1)(C).

2.

Petitioner’s Objection to the Report and

Recommendation is OVERRULED;2

2

Petitioner brings one claim for habeas relief: that
“Collateral Estoppel barred retrial for the remaining Robbery count
and/or barred evidence related to acquitted counts.” Habeas Pet. at 5,
ECF No. 1. Specifically, he contends that the acquittals of attempted
murder, aggravated assault, and possessing an instrument of crime,
necessarily decided issues – in his favor – that were central to his
conviction, by a second jury, of robbery. Magistrate Judge Marilyn
Heffley filed a report and recommendation (“R&R”) that the petition be
denied with prejudice without an evidentiary hearing. ECF No. 13. The
Court rejected the R&R because it did not include a review of the
trial court records in accordance with Ashe v. Swenson, 397 U.S. 436,
444-46 (1970). See ECF No. 17. In the same Order, the Court remanded
the case back to Judge Heffley for a second R&R. Id. Judge Heffley
then filed the instant, second R&R, ECF No. 40, to which Petitioner
filed an objection. ECF No. 43.
In his objection, Petitioner argues that that the second
R&R, ECF No. 40, fails to include the Ashe analysis that was missing
in the initial R&R, ECF No. 13. See Obj., ECF No. 43. This objection
it is without merit.
The R&R, after “examining the record of [the] prior
proceeding, taking into account the pleadings, evidence, charge, and
other relevant matter,” Ashe, 397 U.S. at 444, correctly concluded
that the first jury was never asked to make a determination as to
whether Petitioner had threatened the victim with, or put him in fear
of, immediate bodily injury. See R&R 20, ECF No. 40. In contrast, the
second jury “could have grounded its verdict upon” a determination
that Petitioner threatened the victim with, or put him in fear of,
immediate bodily injury, which is “an issue other than that which the
defendant seeks to foreclose from consideration” United States v.
Rigas, 605 F.3d 194, 218 (3d Cir. 2010) (quoting Ashe, 397 U.S. at
444), i.e. the use of a gun. Accordingly, Petitioner has not met his
burden to show that the threat or fear of such injury was an issue
necessarily decided by the first jury, such as might implicate
collateral estoppel or Double Jeopardy. See Rigas, 605 F.3d at 219;
Ashe, 397 U.S. at 444-45; see also Yeager v. U.S., 557 U.S. 110, 121
(2009).
As the Court has previously noted, see ECF No. 17, and the
R&R discusses, see R&R 4-5, although the state court did not correctly
apply the Ashe standard, that does not require this Court to grant the
petition, because “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams v.

2

3.

The Petition for a Writ of Habeas Corpus (ECF No.

1) is DENIED and DISMISSED WITH PREJUDICE without an evidentiary
hearing;

4.

A certificate of appealability shall not issue;3

5.

The Clerk shall mark this case CLOSED.

and

AND IT IS SO ORDERED.

s/Eduardo C. Robreno
EDUARDO C. ROBRENO, J.

Taylor, 529 U.S. 362, 410 (2000). A state court’s application of
federal law is “unreasonable” if the decision, “evaluated objectively
and on the merits, resulted in an outcome that cannot reasonably be
justified.” Werts v. Vaughn, 228 F.3d 178, 197 (3d Cir. 2000) (quoting
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 890 (3d Cir. 1999)
(en banc)). Here, the state court’s application of federal law, albeit
incorrect, was not unreasonable because, for the reasons explained
above and in the R&R, the same outcome is reasonably justified under a
correct Ashe analysis. See Werts, 228 F.3d at 197.
3

A certificate of appealability may issue only upon “a
substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2), which Petitioner has not shown. Moreover,
Petitioner has not shown that reasonable jurists could debate whether
his petition should be resolved in a different manner or that the
issues presented are adequate to deserve encouragement to proceed
further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

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