CURRY v. BRITTAIN et al

Filing 18

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; PETITIONER'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE OVERRULED; THE PETITION UNDER 28 USC, SECTION 2254 FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE; PETITIONER' ;S REQUEST FOR APPOINTMENT OF COUNSEL AND AN EVIDENTIARY HEARING ARE DENIED; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED; A CERTIFICATE OF APPEALABILITY WILL NOT ISSUE.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 10/29/18. 10/29/18 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HISHAMU CURRY,
Petitioner,

CIVIL ACTION
NO. 17-04842

v.
KATHY BRITTAIN, et. al.,
Respondents.
ORDER

AND NOW, this 29th day of October, 2018, upon consideration of the Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus filed by pro se petitioner Hishamu
Curry, the record in this case, the Report and Recommendation of Magistrate Judge
Timothy Rice to deny Curry’s Habeas Corpus Petition, (ECF No. 14), Curry’s Objections
to the Report & Recommendation, (ECF No. 16) and Curry’s Supplemental Objections,
(ECF No. 17), it is ORDERED that:
1. The Report and Recommendation of United States Magistrate Judge Rice,
(ECF No. 14), is APPROVED and ADOPTED;
2. Curry’s Objections to Judge Rice’s Report & Recommendation are
OVERRULED;1
3. Curry’s Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is
DENIED with prejudice;
The Court conducts a de novo review of the contested portions of the R&R. See Sample v.
Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In conducting the de novo review, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). In his objections, Curry repeats the same arguments
made in support of his Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus. The Court agrees
with Judge Rice’s findings for the reasons stated in the Report and Recommendation which this
Court has approved and adopted.
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4. Curry’s request for appointment of counsel and an evidentiary hearing are
DENIED;2
5. The Clerk of Court shall mark this case CLOSED.
6. A certificate of appealability will not issue because reasonable jurists would
not debate (a) this Court’s decision that the petition does not state a valid claim of the
denial of a constitutional right and (b) the propriety of this Court’s procedural ruling
with respect to Curry’s claim. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484 (2000).
BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

The Court agrees with Judge Rice’s finding that Curry is not entitled to counsel or a hearing.
Curry has no constitutional right to counsel in federal habeas proceedings, Pennsylvania v. Finley,
481 U.S. 551, 555 (1987), but a federal court may appoint counsel for a financially eligible petitioner
if “the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Where a pro se petitioner in a
habeas corpus case “makes a colorable claim, but lacks the means to adequately investigate, prepare
or present the claim, counsel may be appointed.” Woods v. Gilmore, No. CV 16-6365, 2017 WL
2720226, at *2 (E.D. Pa. June 23, 2017). Here, Curry has not raised a colorable claim, as the
petition is “noncognizable, procedurally defaulted or meritless.” (R.&R. 1.)
Moreover, federal courts in habeas cases have discretion to grant a hearing only where a
petitioner provides new evidence or otherwise explains how his claim would be advanced by an
evidentiary hearing. See Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir. 2000). Where courts have
such discretion, courts look to whether a “new evidentiary hearing would be meaningful, in that a
new hearing would have the potential to advance the petitioner's claim.” Id. Curry has failed to
show how a hearing would meaningfully advance his claim.
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