Ellington v. Overmyer et al

Filing 40

MEMORANDUM (Order to follow as separate docket entry) (PLEASE SEE MEMORANDUM FOR COMPLETE DETAILS)Signed by Honorable William J. Nealon on 10/24/17. (lh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS BENJAMIN ELLINGTON,:
Petitioner
:
:
v.
:
:
MICHAEL OVERMYER, ET AL., :
Respondents
:

CIVIL NO. 3:14-CV-0019
(Judge Nealon)
(Magistrate Judge Mehalchick)

MEMORANDUM
Background
On January 7, 2014, Petitioner, Thomas Benjamin Ellington, an inmate
formerly confined at SCI-Forest in Marienville, Pennsylvania, filed a pro se
petition for habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner has
since been paroled and currently reside in Georgia. (Doc. 28).
On October 3, 2017, Magistrate Judge Karoline Mehalchick issued a Report
and Recommendation (“R&R”) recommending that the petition be denied and
dismissed with prejudice. (Doc. 38). Neither party has filed objections and the
matter is now ripe for review. For the reasons discussed herein, the R&R will be
adopted, and the petition will be denied and dismissed with prejudice.
Standard of Review
When neither party objects to a magistrate judge’s report and
recommendation, the district court is not statutorily required to review the report,

under de novo or any other standard. Thomas v. Arn, 474 U.S. 140, 152 (1985);
28 U.S.C. § 636(b)(1)(C). Nevertheless, the Third Circuit Court of Appeals has
held that it is better practice to afford some level of review to dispositive legal
issues raised by the report. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.
1987), writ denied, 484 U.S. 837 (1987); Garcia v. I..N.S., 733 F. Supp. 1554,
1555 (M.D. Pa. 1990) (Kosik, J.) (stating “the district court need only review the
record for plain error or manifest injustice”). In the absence of objections, review
may properly be limited to ascertaining whether there is clear error that not only
affects the rights of the plaintiff, but also seriously affects the integrity, fairness, or
public reputation of judicial proceedings. Cruz v. Chater, 990 F. Supp. 375, 377
(M.D. Pa. 1998) (Vanaskie, J.). The district court may accept, reject, or modify, in
whole or in part, the findings and recommendations contained in the report. 28
U.S.C. § 636(b)(1)(C); M.D. Pa. L.R. 72.3.
Discussion
In the Report and Recommendation, Magistrate Judge Mehalchick provides
the factual and procedural background of the case and the applicable standards of
review for a Section 2254 petition, all of which are herein adopted. (Doc. 38, pp.
1-6). Ultimately, Magistrate Judge Mehachick concludes the following: (1) for
Ground Four of the petition that Petitioner was denied due process by not being
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provided with video footage from the prosecution, this claim, which was construed
as a Brady violation, should be dismissed because “failing to preserve ‘potentially
useful evidence’ does not violate due process unless the defendant shows that the
police acted in bad faith,” which Petitioner has not proven in the case at hand, and
because, if no footage existed, the officer was at most negligent in failing to report
the camera malfunction, and negligence does not amount to a due process
violation; (2) for Ground Seven of the petition that the trial court abused its
discretion in its handling of the suppression motion, this claim should be
dismissed because it was not procedurally exhausted in state court or in a PCRA
petition, and Petitioner’s claim that procedural exhaustion should be excused due
to ineffective assistance of counsel for failure to raise abuse of discretion errors on
the part of the trial court and suppression court fail due to lack of evidence; (3) for
Ground Eight of Ineffective Assistance of PCRA Counsel, this claim should be
dismissed because it is “well-established that claims of ineffective assistance of
PCRA counsel are not cognizable on federal habeas review”; (4) for Ground One
of the Ineffective Assistance of Pre-Trial Counsel, this claim, including all of its
sub-points, should be dismissed because any claimed ineffective assistance does
not establish deficient performance in accordance with Strickland as Petitioner has
not demonstrated “any reasonable probability that the result of the proceeding
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would have been different but for LaBar’s actions” and because the PCRA court
did not unreasonably apply the Strickland standard in determining this claim failed
on the merits; (5) for Ground Two of Ineffective Assistance of Trial Counsel, this
claim, including all of its sub-points, should be dismissed because the “PCRA
[c]ourt was not objectively unreasonable in its conclusion that [Petitioner]’s
ineffective assistance of trial counsel claim failed on it merits”; (6) for Ground
Three of Ineffective Assistance of Post-Trial Counsel, this claim should be
dismissed because “Strickland does not require counsel ‘to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be
to assist the [petitioner] at sentencing ... nor does Strickland require counsel to
present such evidence at sentencing in every case,’” and because there is no
evidence that LaBar’s actions were unreasonable or that Petitioner was prejudiced;
(7) for Ground Five of Denial of Due Process at Every Critical Stage of
Proceedings, this claim should be dismissed because, in a challenge for vagueness
of the charges based on a lack of specified distance, a “statute does not require
‘perfect clarity’ to be constitutional” and because 75 Pa.C.S.A. § 3310 is
“sufficiently definite to survive [Petitioner]’s constitutional challenge”; and (8) for
Ground Six of Denial of Due Process at Trial, this claim should be dismissed
because this assertion involves restatements of Petitioner’s ineffective assistance
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of counsel claims already raised. (Doc. 38, pp. 6-37). Ultimately, the Magistrate
Judge recommends that, for the reasons discussed, the petition be denied and
dismissed with prejudice. (Doc. 7, p. 5).
After review, and in the absence of objections, because there is no clear
error with Magistrate Judge Mehalchick’s Report and Recommendation, it will be
adopted as such, and the petition, (Doc. 1), will be denied and dismissed with
prejudice.
A separate Order will be issued.

Date: October 24, 2017
/s/ William J. Nealon
United States District Judge

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