DAVIS v. MCGINLEY et al

Filing 28

ORDERED THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOOPTED; PETITIONER'S OBJECTIONS ARE OVERRULED; THE PETITION IS DISMISSED; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE GENE E.K. PRATTER ON 7/25/18. 7/26/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED.(jpd,)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
OZZIE DAVIS,
Petitioner,
v.
THOMAS MCGINLEY et al.,
Respondents.

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CIVIL ACTION

No. 16-3807

ORDER
AND NOW, this 24th day of July, 2018, upon consideration of Petitioner Ozzie Davis’s
Petition for Writ of Habeas Corpus (Doc. No. 1), and the Respondents’ response thereto (Doc. No.
21), Petitioner’s Reply (Doc. No. 22), U.S. Magistrate Judge Lynne A. Sitarski’s Report &
Recommendation (Doc. No. 24), Petitioner’s Objections (Doc. No. 27), and the state court record, it is
ORDERED that:
1. The Report & Recommendation (Doc. No. 24) is APPROVED and ADOPTED;
2. Petitioner’s Objections are OVERRULED. 1
3. The Petition is DISMISSED with prejudice.
4. There is no probable cause to issue a certificate of appealability. 2

1

Petitioner objects to the Report and Recommendation, raising substantially the same arguments
that he has raised in his prior filings in this matter. Magistrate Judge Sitarski thoroughly addressed
Petitioner’s arguments and correctly concluded that none of them had merit. Mr. Davis particularly
objects to Magistrate Judge Sitarski’s conclusions regarding (1) the sufficiency of the evidence against
him and (2) his Bruton claim.
First, the Court agrees with Magistrate Judge Sitarski’s conclusion that there was sufficient
evidence to support both of Mr. Davis’s convictions. Second, “[g]iven this strong evidence that
Petitioner conspired with Chaco to murder Lewis, this Court does not have ‘grave doubt’ about
whether the Bruton violation had a substantial and injurious effect or influence in determining the
jury’s verdict.” Report & Recommendation, at 30 (Doc. No. 24). Therefore, for the reasons ably
outlined by Magistrate Judge Sitarski in her Report and Recommendation, the Petition must be denied.
2

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). A petitioner must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

5. The Clerk of Court shall mark this case CLOSED for all purposes, including statistics.

BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

McDaniel, 529 U.S. 473, 484 (2000); Lambert v. Blackwell, 387 F.3d 210, 230 (3d Cir. 2004). There
is no probable cause to issue a certificate in this action.