OLIVER v. SMITH et al

Filing 97

ORDER THAT THE REPORT AND RECOMMENDATIONS AS AMENDED IS APPROVED AND ADOPTED. THE PETITION FOR WRIT OF HABEAS CORPUS IS GRANTED WITH RESPECT TO PETITIONER'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO INVESTIGATE AND PRESENT TESTIM ONY FROM ALIBI WITNESS. EXECUTION OF THE WRIT IS STAYED FOR 180 DAYS TO PERMIT THE COMMONWEALTH TO RETRY PETITIONER. IN ALL OTHER RESPECTS, THE WRIT IS DENIED. A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; ETC.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 1/9/24. 1/9/24 ENTERED AND E-MAILED.(JL)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________
:
MONTRELL OLIVER,
:
CIVIL ACTION
:
Petitioner,
:
:
v.
:
:
No. 16-cv-5537
SUPERINTENDENT BARRY SMITH,
:
ET AL.,
:
:
Respondents.
:
_______________________________________:
ORDER
AND NOW, this 9th day of January 2024, 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), Transcript of
the Evidentiary Hearing dated Aug. 24, 2022, (ECF No. 89), Judge Hey’s “Amended Report and
Recommendation” (ECF No. 93), and Petitioner’s “Objection to Report and Recommendations”
(ECF No. 94), it is hereby ORDERED that:
1.

The Report and Recommendation, as amended, (ECF No. 93) is APPROVED
AND ADOPTED.

2.

The petition for writ of habeas corpus is GRANTED with respect to Petitioner’s
claim of ineffective assistance of counsel (“IAC”) for failing to investigate and
present testimony from alibi witnesses.

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3.

Execution of the writ is STAYED for 180 days to permit the Commonwealth to
retry Petitioner.

4.

In all other respects, the writ is DENIED.

5.

A certificate of appealability shall not issue.

BY THE COURT:

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

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