BENNETT v. GLUNT et al

Filing 26

ORDER denying 25 Motion to present new evidence because the Court is precluded from considering such new evidence by the exhaustion and procedural default doctrines to the extent that Petitioner has not presented such new evidence in support of ne w claims to the State Courts. To the extent that Petitioner did present such new claims to the State Courts, this Court is bound to review the State Courts' disposition of those new claims based on the record created before the State Courts and cannot consider evidence presented for the first time to a federal habeas court. Signed by Magistrate Judge Maureen P. Kelly on 10-7-2014. A copy of the Order together with this Notice of Electronic Filing are being sent to Petitioner at his address of record via first class mai. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVALIN CHARLES BENNETT,
Petitioner,

)
)
)
vs.
)
)
STEPHEN A. GLUNT; CATHLEEN
)
CANE, The Attorney General of the State )
of Pennsylvania,
)
Respondents. )

Civil Action No. 13-1775
Magistrate Judge Maureen P. Kelly
Re: ECF No. 25

ORDER
On September 18, 2014, Devalin Charles Bennett (“Petitioner”) filed what he captioned
as a “60(b) Motion for Newly Discovered Evidence” whereby he seeks to have this Court
consider “new evidence.” ECF No. 25. The “new evidence” consists of an affidavit from
Raymond Starks, who avers that a crucial prosecution witness, i.e., Antoinette Hooten, told
Starks in May 1998, that, in exchange for a deal with the prosecution, she had testified
untruthfully at the coroner’s inquest held in connection with Petitioner’s murder charges. ECF
No. 25 at 2. The affidavit was executed on June 12, 2014. Significantly, Petitioner does not
inform the Court as to when he learned of the averments of Raymond Stark. In addition, the
“new evidence” also apparently consists of an “unsworn declaration” by Charmella Bennett,
Petitioner’s sister that she does “’BELIEVE’ to the best of [her] recollection that during the time
Ronald Minifield was killed . . . DAVALIN CHARLES BENNETT, was at my house” and
further that she is “willing to testify if need be to the contents and facts in these
ASSUMPTIONS.” ECF No. 25-1. Petitioner’s sister did not sign the unsworn declaration.
The Court, construing the instant Motion as one for leave to present new evidence,
DENIES the instant Motion, substantially for the reasons given in the Court’s previous Order,

ECF No. 24, denying for the most part both Petitioner’s Motion to Amend, ECF No. 19 and
Petitioner’s Motion to Supplement, ECF No. 20. More specifically, to the extent that Petitioner
has not presented this “new evidence” to the State Courts in support of any new claims based
thereon, the new claim(s), supported by the new evidence, is/are not exhausted as required by the
federal habeas doctrine of exhaustion and, because more than 60 days have passed since the
execution of the affidavit by Raymond Starks, it appears that any such new claim supported by
the “new evidence” would be procedurally defaulted. Slutzker v. Johnson, 393 F.3d 373 (3d
Cir. 2004). Moreover, we find that the unsworn declaration by Petitioner’s sister does not even
constitute new evidence insofar as it lacks any evidentiary value because of what she stated in
the declaration and because she did not sign the declaration and even if she had, it stretches
credulity to believe that she only recently remembers that Petitioner was at her home on
December 26, 1997, the night of the murder and so, such “evidence” would not be new.
To the extent that the “new evidence” supports claims that Petitioner did raise before the
State Courts, which the State Courts rejected on the merits and those claims are also raised in the
currently pending habeas petition, the Court may not consider any such new evidence under
Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (federal court review of a state court
conviction under Section 2254 is limited to the record created before the state courts).
Accordingly, for the foregoing reasons, Petitioner’s 60(b) Motion for Newly Discovered
Evidence is DENIED.

BY THE COURT:
s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE

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Date: October 7, 2014
cc:

Davalin Charles Bennett
DX-9353
SCI Houtzdale
P.O. Box 1000
Houtzdale, PA 16698-1000
All Counsel of Record Via CM-ECF

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