SAUNDERS v. MAHALLY et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE LYNNE A. SITARSKI, AND THAT PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED. IT IS FURTHER ORDERED THAT THE PETITION IS DENIED WITH PREJUDICE, AND THAT A CERTIFICATE OF APPEALABILITY IS DENIED. THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 1/24/17. 1/25/17 ENTERED AND COPIES MAILED TO PRO SE' AND E-MAILED. (ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE ATTORNEY GENERAL OF THE
STATE [sic] OF
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA,
O R D E R
NOW, this 24th
day of January, 2017, upon
consideration of the following documents: 1
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus
By a Person in State Custody, which petition was filed by
petitioner pro se on May 27, 2016 (“Petition”), 2 together
Memorandum of Law in Support of Writ of Habeas
Corpus Petition Filed Pursuant to 28 U.S.C. § 2254;
After the Report and Recommendation of Judge Sitarski was issued,
my chambers received a letter from an individual who identified herself as
Michelle L. Daugherty, in which she urges the court to give petitioner “a
fair review”. Accompanied with the letter are the signatures of a multitude
of individuals. I recognize and appreciate the support of all of the
individuals who provided their signatures. However, this letter in no way
impacts my decision for a variety of reasons. Most importantly, petitioner
has been given a fair review, and would have been provided a fair review even
in the absence of the letter. Furthermore, there is no indication whatsoever
that the individuals who provided their signature have any personal knowledge
of any of the material issues in this matter.
The Petition is deemed filed on the date mailed, May 27, 2016,
not the date docketed, May 31, 2016. See Houston v. Lack, 487 U.S. 266,
108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).
Response to Petition for Writ of Habeas Corpus, which
response was filed September 23, 2016 (“Response”);
Report and Recommendation of United States Magistrate
Judge Lynne A. Sitarski dated and filed December 29, 2016
Petitioner’s Objection to the Report and Recommendation
of United States Magistrate Judge Lynne. A. Sitarski,
Filed December 29, 2016, which Objection was filed by
petitioner pro se on January 10, 2016 3 (“Objections”),
it appearing that petitioner’s Objections to Magistrate Judge
Sitarski’s Report and Recommendation are essentially a
restatement of arguments raised in his Petition; it further
appearing after a de novo review 4 of this matter, Magistrate
Judge Sitarski’s Report and Recommendation correctly determined
the legal and factual issues presented in the Petition,
The date stamp on the envelope containing the Objections
indicates that it was mailed on January 10, 2017.
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 novo 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 72.1(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 (1980). Indeed, by
providing for a de novo determination, rather than a de novo 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.
IT IS ORDERED that petitioner’s Objections to the
Report and Recommendation of Magistrate Judge Sitarski are
Petitioner raises three claims in his Petition: (1) “[p]rosecutorial [m]isconduct in [v]iolation of [petitioner’s] Due Process [rights]”
based on the prosecutor allegedly using perjured testimony, without which
petitioner believes he would not have been convicted; (2) [c]onstitutional
[v]iolation as it [r]elates to Brady when [the prosecution] failed to
disclose impeachment evidence of its witness ‘Toro’ where the Commonwealth
knew or should know[n] of the perjured testimony . . . [and that] Mr. Toro
was incarcerated at the time he alleged petitioner confessed to the crime”;
and (3) “[p]etitioner is [f]actual[ly] [i]nnocent of the [c]rimes”.
Magistrate Judge Sitarski correctly found that claims one and two
of the Petition are unexhausted and procedurally defaulted, which petitioner
does not deny. See 28 U.S.C. § 2254(b)(1). Therefore, such claims are only
reviewable if petitioner can demonstrate (a) cause for the default and actual
prejudice; or (b) that failure to consider the claims will result in a
fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 452453, 120 S.Ct. 1587, 1592, 146 L.Ed.2d 518, 552-553 (2000); Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2456, 115 L.Ed.2d 640 (1991).
In his Objections, petitioner does not articulate cause for his
procedural default. Furthermore, Magistrate Judge Sitarski correctly
concluded that petitioner failed to demonstrate a “miscarriage of justice.”
To meet the “miscarriage of justice” standard, petitioner must present new,
reliable evidence which shows that “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Schlup v. Delo,
513 U.S. 298, 321, 115 S.Ct. 851, 864, 130 L.Ed.2d 808, 832 (1986).
Petitioner contends that “new evidence” demonstrates that the
testimony of the Commonwealth’s “key witness”, Jose Toro, was fabricated and
that without this testimony he would not have been convicted. Petitioner
claims that it was impossible, as Mr. Toro testified at trial, that
petitioner confessed to him the November 27, 2002 murder for which petitioner
was convicted within the days following the crime. He alleges that Mr. Toro
was actually incarcerated during that time--specifically, from November 22,
2002 through October 22, 2003. Petitioner submitted, among other things, an
affidavit of Jose Toro recanting his testimony. He also provided an
affidavit of Marcus Toro, Jose Toro’s brother, stating that Jose Toro was
incarcerated from November 22, 2002 until October 2003.
Magistrate Judge Sitarski correctly concluded that petitioner
failed to meet the high standard of demonstrating actual innocence. See
Schlup, 513 U.S. at 321, 115 S.Ct. at 864, 130 L.Ed.2d at 832. The evidence
submitted, including Exhibit C to the Petition, show that Jose Toro was
released on bail on September 19, 2002, and not in custody again until
December 11, 2002, which debunks petitioner’s theory that Mr. Toro was in
prison at the time of the confession.
(Footnote 5 continued):
IT IS FURTHER ORDERED that the Report and Recommendation is approved and adopted.
IT IS FURTHER ORDERED that the Petition is denied with
IT IS FURTHER ORDERED that 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:
_/s/ JAMES KNOLL GARDNER____
James Knoll Gardner
United States District Judge
(Continuation of footnote 5):
Furthermore, Magistrate Judge Sitarski correctly found that the
affidavits of Jose and Marcus Toro, which were provided almost twelve years
after the events at issue and which are contradicted by other evidence, lack
credibility and do not meet the “reliable evidence” standard. See Schlup,
513 U.S. at 321, 115 S.Ct. at 864, 130 L.Ed.2d at 832 (1986); see also
Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 869, 122 L.Ed.2d 203,
With respect to petitioner’s third claim of actual innocence,
Magistrate Judge Sitarski correctly concluded that this claim, even if
cognizable, would fail because it would require an even higher burden of
proof than the “miscarriage of justice” standard discussed above with respect
to petitioner’s other claims. See Gibbs v. Diguglielmo, No. 09-cv-04766,
2015 WL 93934 at *4 (E.D.Pa. Jan. 5, 2015) (Rufe, J.) (explaining that the
Third Circuit has not addressed whether a freestanding claim of actual
innocence is cognizable on habeas review, but that if it were, the Supreme
Court has suggested it would require an even higher standard than Schlup).
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