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Johnson v. Fobina

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


December 21, 2006

DARNELL JOHNSON, PETITIONER
v.
RAYMOND FOBINA; THE DISTRICT ATTORNEY OF THE COUNTY OF THE COUNTY OF ALLEGHENY; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, RESPONDENTS

The opinion of the court was delivered by: Judge Joy Flowers Conti

Magistrate Judge Amy Reynolds Hay

MEMORANDUM ORDER

This case was referred to Magistrate Judge Amy Reynolds Hay for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §§ 636(b)(1)(A) and (B), and Rules 72.1.3 and 72.1.4 of the Local Rules of Court.

The magistrate judge's report and recommendation ("R&R") dated November 22, 2006, recommended that the Petition for Writ of Habeas Corpus be denied and that a certificate of appealability be denied. The parties were allowed ten days from the date of the R&R to file objections. Objections were filed by the Petitioner [Doc. No. 12].

Petitioner raises two objections. First, he objects to the magistrate judge's finding that the state court's decision that he had not demonstrated sufficient prejudice to justify a severance from his co-defendant was not contrary to law. Petitioner continues to press the same argument previously raised on this issue and adds nothing new. The Pennsylvania Superior Court determined that Petitioner's alibi defense was not antagonistic to his co-defendant's statement that Petitioner was the shooter and, further, that statement was never admitted for the jury's consideration. As the magistrate judge noted, the state court determined that Petitioner had not demonstrated sufficient prejudice to justify a severance. That determination is not contrary to Supreme Court precedent. See Zafiro v. United States, 506 U.S. 534, 539 (1993).

As well, Petitioner continues to press a second argument, that an arrest warrant signed and issued by a deputy coroner is illegal. Plaintiff cites to the decision of the Pennsylvania Supreme Court in Commonwealth v. Little, 314 A.2d 270 (Pa. 1974), in support of his argument. The Little decision, however, did not decide the issue raised here. Id. at 272 n.2. Moreover, as the magistrate judge properly recognized: "It has long been clear that in cases involving either violent or suspicious deaths [which occurred here] a coroner or his properly authorized designee may act as an issuing authority." Commonwealth v. Smouse, 594 A.2d 666, 668 (Pa. Super. Ct. 1991).

After de novo review of the pleadings and documents in the case, together with the R&R and objections thereto, the following order is entered:

IT IS HEREBY ORDERED that the R&R of the magistrate judge dated November 22, 2006 [Doc. No. 11] is ACCEPTED and ADOPTED as the opinion of the Court.

In accordance with the foregoing, therefore, the Petition for Writ of Habeas Corpus is DENIED and a certificate of appealability is also DENIED.

IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, if the plaintiff/defendant desires to appeal from this Order he must do so within thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed.R.App.P.

JOY FLOWERS CONTI UNITED STATES DISTRICT JUDGE

20061221

© 1992-2006 VersusLaw Inc.



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