RIVERA v. HARRY et al

Filing 28

MEMORANDUM AND ORDER THAT BASED ON PETITIONER'S OBJECTIONS, THE COURT DECLINES TO ADOPT THE REPORT AND RECOMMENDATION AS TO PETITIONER'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS (COUNTS 1 AND 2) AND REMANDS TO MAGISTRATE JUDGE RICHARD A. LL ORET TO DETERMINE WHETHER THE COURT SHOULD HOLD AN EVIDENTIARY HEARING ON THESE CLAIMS. THE COURT APPROVES AND ADOPTES THE REPORT AND RECOMMENDATION WITH RESPECT TO PETITIONER'S CLAIM THAT HE DID NOT RECEIVE A FULL AND FAIR PCRA HEARING (COUNT 3 ) AND THIS CLAIM IS DISMISSED WITH PREJUDICE. THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY AS TO PETIONER'S CLAIM THAT HE DID NOT RECEIVE A FULL AND FAIR PCRA HEARING (COUNT 3). SIGNED BY HONORABLE KAREN S. MARSTON ON 1/10/22. 1/10/22 ENTERED & E-MAILED.(fdc)

Case 2:20-cv-03990-KSM Document 28 Filed 01/10/22 Page 1 of 2

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

CIVIL ACTION

DIEGO RIVERA,
Petitioner,

NO. 20-3990-KSM
v.
LAUREL HARRY, et al.,
Respondents.
ORDER
AND NOW, this 10th day of January, 2022, upon consideration of the Petition for a Writ
of Habeas Corpus (Doc. No. 1), the Report and Recommendation of Magistrate Judge Richard A.
Lloret (Doc. No. 11), Petitioner’s Objections to the Magistrate Judge’s Report and
Recommendation (Doc. No. 13), Petitioner’s Supplemental Objections to the Report and
Recommendation of the Magistrate-Judge (Doc. No. 20), Respondents’ Response to Rivera’s
Objections (Doc. No. 24), and Petitioner’s Second Supplemental Objections to the
Commonwealth’s First Response to Petitioner’s First Set of Supplemental Objections to the
Report and Recommendation of the Magistrate-Judge (Doc. No. 26), it is ORDERED as
follows:
1.

Based on Petitioner’s objections, the Court DECLINES to adopt the Report and

Recommendation as to Petitioner’s ineffective assistance of counsel claims (Counts 1 and 2) and
REMANDS to Magistrate Judge Richard A. Lloret to determine whether the Court should hold
an evidentiary hearing on these claims.
2.

The Court APPROVES and ADOPTS the Report and Recommendation with

respect to Petitioner’s claim that he did not receive a full and fair PCRA hearing (Count 3) and
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Case 2:20-cv-03990-KSM Document 28 Filed 01/10/22 Page 2 of 2

this claim is DISMISSED with prejudice.
3.

There is no probable cause to issue a certificate of appealability as to Petitioner’s

claim that he did not receive a full and fair PCRA hearing (Count 3).
IT IS SO ORDERED.
/s/ Karen Spencer Marston
KAREN SPENCER MARSTON, J.

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