GRIMSLEY v. GILMORE et al

Filing 46

ORDERED THAT THE MOTION FOR EXTENSION OF TIME (DOC. NO. 36) IS DENIED AS MOOT. THE SUPPLEMENTAL REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO. 1) IS DENIED; THERE IS NO BASIS FOR THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY AND THE CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 11/28/17. 11/28/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DARNELL GRIMSLEY,
Petitioner,
CIVIL ACTION

v.
TOM MCGINLEY 1, et al.,

N0.16-1118
Respondents. :

ORDER
AND NOW, this 28th day of November 2017, upon careful and independent consideration

of the petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF Doc. No. 1), United States
Magistrate Judge Lynne A. Sitarski's comprehensive Report and Recommendation (ECF Doc. No.
31), Petitioner's prose "reconsideration" construed as objections to Judge Sitarski's Report and
Recommendation (ECF Doc. No. 37), Petitioner's Motion for extension of time to file a reply
(ECF Doc. No. 36) followed Petitioner's failure to file a Reply to the Respondents' Response
(ECF Doc. No. 28) within the thirty days permitted by Judge Sitarski following mailing of the
Respondents' Response to an incorrect address as detailed in Judge Sitarski's Supplemental
Report and Recommendation (ECF Doc. No. 43) addressing only the issue of timeliness and
raising no new substantive issues not already addressed in the Report and Recommendation (ECF
Doc. NO. 37), it is ORDERED:
1.

Mr. Grimsley's Motion for an extension (ECF Doc. No. 36) is DENIED as moot as

Judge Sitarski granted the Motion for an extension until October 19, 2017 to reply to the
Respondents' Response (ECF Doc. No. 43);
1

Mr. Grimsley is presently incarcerated at SCI Coal Township. (ECF Doc. No. 11). We
substituted Tom McGinley, the Superintendent of SCI Coal Township, as a Respondent. See Rules
Governing Section 2254 Cases, Rule 2 (requiring the current custodian to be named as
respondent).

2.

Judge Sitarski's Report and Recommendation (ECF Doc. No. 31) and

Supplemental Report and Recommendation (ECF Doc. No. 43) are APPROVED and

ADOPTED.
3.

Mr. Grimsley's Petition for a writ for habeas corpus under 28 U.S.C. § 2254 (ECF

Doc. No. 1) is DENIED as to each of his fourteen grounds for relief following his murder
conviction in a second trial, exhaustion of state appellate rights challenging his conviction, claims
under the Post-Conviction Relief Act and exhaustion of state appellate rights on his PCRA claim
all of which Judge Sitarski fully addressed in her comprehensive Report and Recommendation
and, following our independent review 2 , we find no basis for sustaining Mr. Grimsley's
arguments;
4.

There is no basis for the issuance of a certificate of appealability 3 ; and,

5.

The Clerk of Court shall CLOSE this case.

2

Mr. Grimsley raises several issues: (1) ineffective assistance of trial counsel for failure to visit
petitioner; (2) ineffective assistance of trial counsel for failure to investigate and failure to call
witnesses; (3) ineffective assistance of trial counsel for failing to raise a Rule 600 claim; (4)
ineffective assistance of trial counsel for failure to investigate Mr. Barnes's criminal history; (5)
ineffective assistance of trial counsel for failing to call an expert witness; (6) ineffective assistance
of appellate counsel; (7) unfair appeal due to incomplete copy of transcripts and related
ineffectiveness claim; (8) trial court error in allowing the deceased's family members to be
witnesses and related ineffective assistance claim; (9) trial court error in admitting inflammatory
photographs and related ineffective assistance claim; (10) prosecutorial misconduct; (10)
sufficiency of the evidence; (11) weight of the evidence; and (12) PCRA court error in dismissing
PCRA petition and ineffective assistance of PCRA counsel. We closely reviewed each of Mr.
Grimsley's claims and Judge Sitarski's comprehensive Report and Recommendation. We
conclude Judge Sitarski fully and correctly addressed each of his claims.
3

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

2