RICHARDSON v. KERESTES et al

Filing 32

ORDERED THAT PETITIONER'S THIRD, FOURTH, FIFTH, SEVENTH AND WIGHTH OBJECTIONS ARE OVERRULED; PETITIONER'S FIRST, SECOND AND SIXTH OBJECTIONS ARE OVERRULED WITH PREJUDICE AS MOOT; THE REPORT AND RECOMMENDATION IS APPROVED ADN ADOPTED IN PART AS SET FORTH IN MY NOTICE DATED 12/27/17; GROUND ONE AND CLAIMS 3(b) AND 4(C) OF THE AMENDED PETITION ARE DENIED; CLAIMS 3(C), 4(A), 4(B) OF THE AMENDED PETITION ARE DISMISSED AS PROCEDURALLY DEFAULTED; GROUND THREE OF THE AMENDED PETITION IS DISMIS SED AS PROCEDURALLY DEFAULTED AND A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; IT IS FURTHER ORDERED THAT THE ABOVE CAPTIONED CASE IS REFERRED TO THE HONORABLE CAROLE SANDRA MOORE WELLS FOR A REPORT AND RECOMMENDATION ON PETITIONER'S REMAININ G CLAIMS SET FORTH IN MY NOTICE DATED 12/27/17, ETC. THE CLERK OF COURT SHALL SEND A COPY OF THIS ORDER AND NOTICE TO PETITIONER FORTHWITH. SIGNED BY HONORABLE PAUL S. DIAMOND ON 12/27/17. 12/28/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

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

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Civ. No. 15-4687

ORDER
AND NOW, this 27th day of December, 2017, upon consideration of Petitioner’s pro se
Amended Petition for Writ of Habeas Corpus (Doc. No. 14), Traverse (Doc. No. 20), Objections
to the Report and Recommendation (Doc. No. 26), and Reply to Respondents’ Response to
Petitioner’s Objections (Doc. No. 30), Respondents’ Response to Petition for Writ of Habeas
Corpus (Doc. No. 19) and Response to Petitioner’s Objections (Doc. No. 29), and Magistrate
Judge Carol Sandra Moore Wells’s Report and Recommendation (Doc. No. 22), and after
independent review of the record, it is hereby ORDERED that:
1. Petitioner’s

third, fourth, fifth, seventh, and eighth Objections (Doc. No. 26) are

OVERRULED;
2. Petitioner’s first, second, and sixth Objections (Doc. No. 26) are OVERRULED without
prejudice as moot;
3. The magistrate’s Report and Recommendation is APPROVED and ADOPTED in part,
as set forth in my Notice dated December 27, 2017;
4. Ground One and Claims 3(b) and 4(c) of the Amended Petition (Doc. No. 14) are
DENIED;
5. Claims 3(c), 4(a), 4(b), and 4(d) of the Amended Petition (Doc. No. 14) are DISMISSED
as procedurally defaulted;

6. Ground Three of the Amended Petition (Doc. No. 14) is DISMISSED as procedurally
defaulted insofar as it states a single claim of cumulative error based on Claims 3(a), (b),
and (c); and
7. A certificate of appealability shall NOT ISSUE.
It is FURTHER ORDERED that:
1. The above-captioned case is REFERRED to the Honorable Carol Sandra Moore Wells,
United States Magistrate Judge, for a Report and Recommendation on Petitioner’s
remaining claims, as set forth in my Notice dated December 27, 2017;
2. Pursuant to Local Civil Rule 72.1.IV(c), all issues and evidence shall be presented to the
United States Magistrate Judge, and new issues and evidence shall not be raised after the
filing of the Report and Recommendation if they could have been presented to the United
States Magistrate Judge;
8. On remand, the Parties shall each FILE a memorandum no later than January 31,
2018, addressing: (1) whether Petitioner presented a claim of cumulative prosecutorial
misconduct to the state courts; and (2) whether the Superior Court was nonetheless
required to address Petitioner’s individual prosecutorial misconduct claims cumulatively;
9. In their memorandum, Respondents shall also ADDRESS: (1) whether the trial court’s
decision not to grant a mistrial for manifest necessity under Pennsylvania Rule of
Criminal Procedure 605 was independent of federal law; (2) if not, what standard of
review should apply to Claim 2(d); and (3) whether Petitioner is entitled to an evidentiary
hearing as to his actual innocence. Respondents shall ATTACH Petitioner’s post-trial
motions and appellate briefs as exhibits to their memorandum; and

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10. The CLERK OF COURT shall SEND a copy of this Order and the Notice dated
December 27, 2017, to Petitioner FORTHWITH.

AND IT IS SO ORDERED.
/s/ Paul S. Diamond
_________________________
Paul S. Diamond, J.

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