COLON v. WETZEL et al

Filing 10

ORDERED THAT PURSUANT TO 28 U.S.C. SECTION 636(B)(1)(C), THE REPORT AND RECOMMENDATION ISSUED BY THE HONORABLE HENRY S. PERKIN IS ADOPTED. JOSE COLON'S PETITION FOR THE WRIT OF HABEAS CORPUS, PURSUANT TO 28 U.S.C. SECTION 2254 IS DISMISSED, WITH PREJUDICE AND WITHOUT ISSUANCE OF A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE GERALD A. MCHUGH ON 7/10/18. 7/11/18 ENTERED AND COPIES MAILED TO PETITIONER AND EMAILED TO COUNSEL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE COLON,
Petitioner,
v.
JOHN WETZEL and
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondents.

:
:
:
:
:
:
:
:
:

Civil Action
No. 16-4596

ORDER
This 10th day of July, 2018, it is hereby ORDERED that, pursuant to 28 U.S.C. §
636(b)(1)(C), the Report and Recommendation (“R & R) issued by the Honorable Henry S.
Perkin (ECF No. 7) is adopted. Jose Colon’s Petition for the Writ of Habeas Corpus, pursuant to
28 U.S.C. § 2254 (ECF No. 1) is DISMISSED, with prejudice and without issuance of a
certificate of appealability.
Even setting aside the issue of whether Petitioner’s brief to the Pennsylvania Superior
Court substantially complied with Pennsylvania Rule of Appellate Procedure 2119(a) pursuant to
Rolan v. Coleman, 680 F.3d 311 (3d Cir. 2012), he had ample opportunity to raise the basis for
his ineffective assistance claim before and at trial but failed to do so. The Pennsylvania Superior
Court found that such failure constituted waiver under 42 Pa. Cons. Stat. § 9544(b). Since that is
an independent and adequate state-law ground, see Boyd v. Walmart, 579 F.3d 330, 369 (3d Cir.
2009), that claim, his only, is procedurally defaulted, and the Petition is denied accordingly.
/s/ Gerald Austin McHugh
United States District Judge