HARMER v. CAPOZZA et al

Filing 48

MEMORANDUM ORDER THAT JUDGE RICE'S 7/12/2019 REPORT AND RECOMMENDATION (DOC. NO. 40 ) IS APPROVED IN PART. PETITIONER'S OBJECTIONS ARE OVERRULED IN PART AND GRANTED IN PART. THE PETITION FOR A WRIT OF HABEAS CORPUS AND FIRST AND SECOND SUP PLEMENTAL PETITIONS ARE DENIED AND DISMISSED WITH PREJUDICE. A CERTIFICATE OF APPEALABILITY IS ISSUED AS OUTLINED HEREIN. THE CLERK OF COURT SHALL CLOSE THIS CASE. SIGNED BY HONORABLE MARK A. KEARNEY ON 8/29/2019. 8/29/2019 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEPHEN M. HARMER
v.

CIVIL ACTION
N0.18-175

MARK CAPOZZA, et al.

ORDER
AND NOW, this 29 th day of August 2019, upon careful and independent consideration of
the Petition for a writ of habeas corpus (ECF Doc. No. 1), Petitioner's first supplemental habeas
Petition (ECF Doc. No. 5), Petitioner's second supplemental habeas Petition (ECF Doc. No. 9),
Response (ECF Doc. No. 15), Petitioner's Reply (ECF Doc. No. 16), United States Magistrate
Judge Timothy R. Rice's July 12, 2019 Report and Recommendation (ECF Doc. No. 40),
Petitioner's Objections (ECF Doc. No. 43), Opposition (ECF Doc. No. 45), Petitioner's Reply
(ECF Doc. No. 46), and for reasons in the accompanying Memorandum, it is ORDERED:
1.

Judge Rice's July 12, 2019 Report and Recommendation (ECF Doc. No. 40) is

APPROVED in part;
2.

We overrule Petitioner's Objections (ECF Doc. No. 43) in part and grant the

Objections in part but find the granted Objections do not warrant granting the Petition;
3.

We DENY and DISMISS the Petition for a writ of habeas corpus (ECF Doc. No.

1) and first and second supplemental Petitions (ECF Doc. Nos. 5, 9) with prejudice;
4.

We issue a certificate of appealability as to Petitioner's claim of his trial counsel's

inherent conflict automatically requiring a finding of ineffective assistance under the Sixth

Amendment based on an undisclosed successive representation of a co-defendant in the same
criminal case; 1 and,
5.

1

The Clerk of Court shall CLOSE this case.

See 28 U.S.C. § 2253(c)(2),(3).
2