BROOKER V. OBERLANDER, et al.

Filing 77

ORDERED: THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. PETITIONERS PRE-DISPOSITION MOTION FOR APPOINTMENT OF COUNSEL, EXPANSION OF THE RECORD AND RULE 6 PRE-DISPOSITION DISCOVERY (ECF NO. 2) IS DENIED. PETITIONERS MOTION TO AMEND AND SUPP LEMENT INITIAL WRIT OF HABEAS CORPUS (ECF NO. 37) IS DENIED. THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED AND DISMISSED WITH PREJUDICE.THE CLERK OF COURT IS DIRECTED TO CLOSE THIS CASE. SIGNED BY CHIEF JUDGE MITCHELL S. GOLDBERG ON 1/3/2025. 1/3/2025 ENTERED AND COPIES E-MAILED. NOT MAILED TO PRO SE.(sg)

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

MIKECHEL BROOKER,
Civil Action

Petitioner,

No. 19-cv-5569

v.
MICHAEL OBERLANDER,
Respondent.

ORDER
AND NOW, this 3rd day of January, 2025, upon consideration of pro se Petitioner
Mikechel Brooker’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in
State Custody (ECF No. 1), the Response in Opposition (ECF No. 10), and following review of
the Report and Recommendation of United States Magistrate Judge Marilyn Heffley issued on
October 28, 2021 (ECF No. 38), and Petitioner’s Objections thereto (ECF No. 71), I hereby find
as follows:
1.

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim unless the merits of
the claims were first adjudicated in State court, and the state court decision was contrary to, or
involved an unreasonable application of clearly established federal law, as determined by the U.S.
Supreme Court, or involved an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. 28 U.S.C. § 2254(b)(1), (2), (d); Williams v. Taylor, 529
U.S. 362 (2000).

2.

In her Report and Recommendation filed October 28, 2021, Judge Heffley carefully

considered all of the issues raised by Petitioner, including those in his Motion to Amend and
Supplement which he filed on September 30, 2021, and found all of them to be either meritless
and/or procedurally defaulted.
3.

After carefully reviewing Judge Heffley’s Report, I find it to be well-reasoned, and

fully supported by the law and the records from Brooker’s case.
4.

5.

Brooker makes four objections to the Report and Recommendation:
•

To Judge Heffley’s alleged “reliance” on the Superior Court’s opinion in his case,
particularly as it relates to witness Antoinette Gray’s pre-trial statements to the
police officers investigating the murder of Barry Jacobs;

•

To Judge Heffley’s findings that Petitioner could not make the showing necessary
under Martinez v. Ryan, 566 U.S. 1 (2012) to excuse his procedural default because
his PCRA counsel was ineffective in failing to raise several of his claims;

•

To Judge Heffley’s alleged “reliance” on Pennsylvania Rule of Evidence 803.1,
and on the Superior Court opinion issued with regard to his co-defendant Ellison’s
PCRA claims; and

•

To the denial of his request for discovery and an evidentiary hearing on ballistics
evidence.
Despite his articulation of the objections as set forth above, Petitioner’s objections

simply re-argue the claims which he made in his Petition for Writ of Habeas Corpus and in his
Motion to Amend and Supplement. Indeed, Brooker is once again reiterating that the trial court’s
admission of the testimony of Elizabeth Gray, Eleanor Sampson, Detective Verrecchio, and the
Commonwealth’s ballistics expert, Kenneth Lay, was improper and violative of his rights under
the Constitution’s Due Process and Confrontation clauses. As noted above, all of these arguments
have been considered, thoroughly examined and analyzed, and found meritless. While he may
believe the conclusions reached in the Report and Recommendation are wrong, it is nevertheless
incumbent upon Petitioner to show that in its evidentiary rulings and the other decisions made in

his case, the state court unreasonably applied or acted in a fashion which was contrary to clearly
established federal law. He has not done so. And, as noted by Judge Heffley in footnote 9, the
claims which Brooker seeks to raise in his counseled Motion to Amend and Supplement his Initial
Writ of Habeas Corpus (ECF No. 37), lack merit, and his Pre-Disposition Motion for Appointment
of Counsel is moot. Those motions shall therefore also be denied on the grounds of futility and
mootness. See, Goldblum v. Klem, 510 F.3d 204, 221 (3d Cir. 2007); Hill v. City of Scranton, 411
F.3d 118, 134 (3d Cir. 2005). In thus failing to make the showing necessary to obtain habeas relief
under § 2254, Brooker’s objections are overruled.
WHEREFORE, it is hereby ORDERED:
1.

The Report and Recommendation is APPROVED and ADOPTED.

2.

Petitioner’s Pre-Disposition Motion for Appointment of Counsel, Expansion of the

Record and Rule 6 Pre-Disposition Discovery (ECF No. 2) is DENIED.
3.

Petitioner’s Motion to Amend and Supplement Initial Writ of Habeas Corpus (ECF

No. 37) is DENIED.
4.

The Petition for Writ of Habeas Corpus is DENIED and DISMISSED with prejudice.

5.

Petitioner has failed to make a substantial showing of the denial of a constitutional

right pursuant to 28 U.S.C. § 2253(c)(2), or that reasonable jurists could debate whether or agree
that the Petition should have been resolved differently. Accordingly, no certificate of appealability
shall issue. See, Slack v. McDaniel, 529 U.S. 473, 483-484 (2000).

6.

The Clerk of Court is DIRECTED to CLOSE this case.
BY THE COURT:

/s/ Mitchell S. Goldberg
___________________________
Mitchell S. Goldberg,
J.