ALVAREZ v. KERESTES et al

Filing 20

ORDER THAT THE CLERK OF COURT SHALL REMOVE THIS CASE FROM CIVIL SUSPENSE; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED WITH PREJUDICE AND AN EVIDENTIARY HEARING; THE APPLICATION FOR APPOI NTMENT OF COUNSEL IS DENIED; THE PETITION FOR LEAVE TO CONTINUE IN FORMA PAUPERIS IS DISMISSED AS MOOT; THE MOTION FOR RELIEF FROM JUDGMENT IS DENIED; THERE IS NO CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; THE CLERK OF COURT IS DIRECTED TO CLOSE THIS CASE. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 8/25/16. 8/26/16 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
FELIX ALVAREZ
:
Petitioner,
:
:
v.
:
CIVIL ACTION NO. 14-4750
:
:
JOHN KERESTES, et al.
:
Respondents.
:
ORDER
AND NOW, this 25th day of August 2016, upon careful and independent consideration
of the Petition for Writ of Habeas Corpus, and all related filings, and upon review of the Report
and Recommendation (“R&R”) of United States Magistrate David R. Strawbridge, to which no
objections have been filed, it is hereby ORDERED that:
1.

The Clerk is directed to REMOVE the case from Civil Suspense;

2.

The Report and Recommendation is APPROVED and ADOPTED1;

3.

The Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE

and without an evidentiary hearing;
4.

1

The Application for Appointment of Counsel [Doc. No. 14] is DENIED;

Petitioner was convicted of third-degree murder, criminal conspiracy, and lesser charges relating to a
nightclub shooting in Allentown, Pennsylvania. There was no dispute that Petitioner fired the weapon; he argued
self-defense. The R&R thoroughly addressed Petitioner’s claims that trial counsel was ineffective for failing to call
character witnesses, that PCRA counsel was ineffective for failing to assert that appellate counsel was ineffective
and for failing to properly investigate and interview witnesses (or for failing to argue trial counsel’s ineffectiveness
in that regard), and that his Sixth Amendment right to a fair trial was violated when he was required to pay for an
interpreter. The Court agrees with the thorough analysis set forth in the R&R that Petitioner is not entitled to relief
on any of these claims. To the extent that the claims were not procedurally defaulted (and in particular, it does not
appear that Petitioner ever raised the claim regarding the interpreter in state court, and there is nothing in the statecourt record to support it), Petitioner has not shown that that there is a basis for overcoming the deference due to the
decisions of the state courts under 28 U.S.C. § 2254, nor has he shown that he was prejudiced by counsel’s asserted
failures. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

5.

The Petition and Affidavit for Leave to Continue In Forma Pauperis [Doc. No.

15] is DISMISSED AS MOOT as Petitioner has already been granted leave to proceed in forma
pauperis [Doc. No. 2];
6.

The Motion for Relief from Judgment or Order Pursuant to Fed. R. Civ. P. 60(b)

[Doc. No. 16] is DENIED;2
7.

There is no probable cause to issue a certificate of appealability3; and

8.

The Clerk of Court is directed to CLOSE the case.

It is so ORDERED.
BY THE COURT:
/s/Cynthia M. Rufe
____________________
CYNTHIA M. RUFE, J.

2

Petitioner filed this motion after the Pennsylvania Supreme Court denied his petition for allowance of
appeal from a July 17, 2015 decision of the Pennsylvania Superior Court denying as untimely his second PCRA
petition. Although difficult to decipher, it appears that Petitioner argues that his sentence was illegal, but he has
asserted no basis for relief under Rule 60(b), which, pursuant to Gonzalez v. Crosby, 545 U.S. 524, 531 (2005),
requires that Petitioner demonstrate that there was a defect in the integrity of federal habeas proceedings and
extraordinary circumstances. Petitioner instead challenges the rulings of the Pennsylvania state courts.
3

Petitioner has not made a substantial showing of the denial of a constitutional right; there is no basis for
concluding that “reasonable jurists could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation omitted).

2