OLIVER v. SMITH et al

Filing 81

ORDERED THAT THE REPORT AND RECOMMENDATION (ECF NO. 77) IS PRELIMINARILY NOT ADOPTED AND THIS MATTER IS REMANDED TO JUDGE HEY FOR FURTHER PROCEEDINGS, CONSISTENT WITH THIS ORDER REGARDING PETITIONERS INEFFECTIVENESS CLAIM FOR FAILURE TO CALL ALIBI WITNESSES. UPON COMPLETION OF THIS HEARING, JUDGE HEY SHALL SUBMIT AN AMENDED REPORT AND RECOMMENDATION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 5/19/22. 5/20/22 ENTERED AND COPIES E-MAILED.(jaa, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MONTRELL OLIVER,
Petitioner,
v.
SUPERINTENDENT BARRY SMITH,
ET AL.,
Respondents.

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CIVIL ACTION

No. 16-cv-5537

ORDER
AND NOW, this 19th day of May, 2022, upon consideration of Petitioner Montrell Oliver’s
“Petition for Writ of Habeas Corpus” (ECF No. 45), Respondent the District Attorney of
Philadelphia County’s “Response to Amended Petition for Writ of Habeas Corpus” (ECF No. 50),
Petitioner’s “Memorandum in Reply to Respondent’s Response” (ECF No. 61), the Report and
Recommendation of the United States Magistrate Elizabeth T. Hey (ECF No. 77), and Petitioner’s
“Objection to Report and Recommendations” (ECF No. 79), I find the following:
1. On February 17, 1998, Petitioner was convicted in the Philadelphia Court of Common
Pleas of first-degree murder, three counts of robbery, two counts of aggravated assault, and
one count each of conspiracy and possessing an instrument of crime. The conviction
stemmed from a drug-related incident in which Petitioner and two co-defendants robbed
three men at gunpoint and shot into their car as they drove away, killing one of the
passengers. Petitioner filed his counseled petition for writ of habeas corpus on March 18,
2019, and I referred the case to the Honorable Elizbeth T. Hey for a Report and
Recommendation.

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2. Petitioner raises a total of nine claims for relief. One of his claims concerns his trial
counsel’s ineffectiveness for failing to call alibi witnesses. As to that claim, Respondents
waived procedural default and agreed that an evidentiary hearing was necessary. However,
after the evidentiary hearing was scheduled, but before it took place, Respondents
conceded that Petitioner was entitled to relief on the alibi claim, and the parties submitted
joint stipulations with an agreed upon statement of facts supporting their joint position that
Petitioner was entitled to relief without the need for a hearing. (ECF Nos. 73, 75).
3. More specifically, the parties stipulated that trial counsel had investigated Petitioner’s alibi
defense and identified two potential alibi witnesses, June Bell and Jadean Whitmore,
neither of whom were called as witnesses at trial. (ECF No. 75). Ms. Bell and Ms.
Whitmore provided affidavits dated February and May of 2018, which are attached to
Petitioner’s petition, asserting that they were willing to testify at Petitioner’s trial.
According to the affidavits, Ms. Bell would have testified that she met Petitioner at Ms.
Whitmore’ residence on the night of the murder, and that she and Petitioner left Ms.
Whitmore’s residence and spent the night at a friend’s apartment on Spring Garden Street.
Ms. Whitmore would have testified that she saw Petitioner leave her residence with Ms.
Bell, and that he did not return until 11:00 am the following day.
4. On August 27, 2021, Judge Hey issued a Report recommending that Petitioner be granted
relief on his alibi claim, and that relief be denied as to all remaining claims. Judge Hey
had initially determined that it was appropriate to hold an evidentiary hearing regarding the
alibi claim. However, after the District Attorney’s office conceded relief and submitted
stipulations, Judge Hey agreed to accept the parties’ stipulations in lieu of holding a
hearing. (ECF No. 77, p. 20). When analyzing the merits of Petitioner’s alibi claim, Judge

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Hey noted “while acknowledging that [Ms. Bell and Ms. Whitmore’s] testimony would not
be unimpeachable, the parties maintain ‘that their testimony would have been sufficiently
credible such that it likely would have raised a reasonable doubt as to [Petitioner’s] guilt.”
(ECF No. 77, p. 30) (quoting the parties’ Stipulations ¶ 39). Accordingly, Judge Hey relied,
at least partially, on the lawyers’ assessment of the witnesses’ credibility when she
recommended granting relief on that claim, without a hearing.
5. Courts have an obligation to conduct an independent examination of the record “in all cases
where the Federal Government or a State confesses that a conviction has been erroneously
obtained.” Wharton v. Vaughn, 01-cv-6049, 2022 WL 1488038, at *n. 2 (E.D. Pa. May
11, 2022) (quoting Sibron v. New York, 392 U.S. 40, 58 (1968)). This necessarily includes
a judge’s assessment of the witnesses’ credibility. This principle is particularly important
here, as the credibility of these witnesses is at the center of Petitioner’s claim that his lawyer
was ineffective for not presenting their testimony at trial.
6. For these reasons, I find that an evidentiary hearing should be held so that Judge Hey may
fully assess the testimony of Ms. Bell and Ms. Whitmore before determining whether
Petitioner is entitled to relief on his alibi claim. 1
7. WHEREFORE, for the foregoing reasons, it is hereby ORDERED that:
1.

The Report and Recommendation (ECF No. 77) is PRELIMINARILY NOT

ADOPTED.

When Judge Hey originally scheduled the evidentiary hearing in this case, she indicated in her
Order that she would take evidence on three of Petitioner’s claims: his alibi claim, and two additional claims
regarding decisions defense counsel and the Commonwealth made during trial regarding the identity of a
man named Jimmy Whitney. In her Report, Judge Hey ultimately concluded that these additional claims
were meritless. As I initially agree with Judge Hey’s analysis of those additional claims, the evidentiary
hearing I am ordering should be limited to evidence on the alibi claim only.
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2.

This matter is REMANDED to Judge Hey for further proceedings, consistent with

this Order regarding Petitioner’s ineffectiveness claim for failure to call alibi witnesses.
Upon completion of this hearing, Judge Hey shall submit an amended Report and
Recommendation.

BY THE COURT:

/s/ Mitchell S. Goldberg
MITCHELL S. GOLDBERG, J.

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