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Sterling Ellis v. Louis Folino

July 5, 2011

STERLING ELLIS, PETITIONER,
v.
LOUIS FOLINO, ET AL.,
RESPONDENTS.



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

Hon. Martin C. Carlson

Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Martin C. Carlson, filed on May 3, 2011, which recommends that the petition for habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Sterling Ellis ("Petitioner" or "Ellis") be denied and that a certificate of appealability should not issue. Petitioner has filed objections to the R&R, to which the Respondents have filed an opposition. Accordingly, this matter is ripe for our review.

For the reasons that follow, the R&R shall be adopted in its entirety, the petition shall be denied without a certificate of appealability, and the Clerk shall be directed to close this case.

I. REVIEW OF MAGISTRATE JUDGE'S R&R

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. § 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).

III. DISCUSSION

A. BACKGROUND

The facts and procedural history of this case are well known to the parties and the Court, thus we shall only briefly summarize them herein.*fn1 Following a two-day jury trial in the Court of Common Pleas of York County, Pennsylvania, Ellis was convicted of burglary and conspiracy. The crime, which had taken place in January 2004, involved and agreement between Ellis and four co-conspirators to rob an elderly York County couple in their home. On August 16, 2004, the trial judge sentenced Ellis to two concurrent 10-to-20 year jail terms for the offenses, finding that there were "many aggravating circumstances in this case and no mitigating circumstances." (Doc. 43, p. 7).*fn2

The instant petition, which was stayed until Petitioner's state court post-conviction proceedings had been fully litigated, presents essentially four claims to the Court. They are: (1) Ellis' assertion that trial counsel was ineffective in failing to object to the trial judge's jury charge; (2) Ellis' contention that counsel was ineffective in not resisting what Ellis regards as an excessive sentence in this case; and (3&4) that counsel's cross-examination of Detective Fetrow was ineffective and that the trial judge acted improperly by issuing a clarifying instruction regarding the Detective's conflicting testimony.*fn3

B. RECOMMENDATION

Magistrate Judge Carlson recommends that Ellis' petition be denied because the claims therein fail both because some of the claims are procedurally barred and because all of the claims advanced by Ellis are lacking in merit.

First, Magistrate Judge Carlson finds that Ellis' interrelated claims regarding the performance of trial counsel and the conduct of the trial judge with respect to Detective Fetrow's testimony are procedurally barred as well as meritless. Magistrate Judge Carlson notes that Ellis did not lodge a timely objection at trial, pursue these claims on direct appeal or address these issue in the state PCRA litigation, thus they are procedurally barred. In any event, the Magistrate Judge concludes that Ellis' claims fail on their merits, finding that counsel was pursuing a tactically sound strategy, that being to draw a favorable distinction between his client and his co-conspirators in terms of relative culpability and that the trial judge's instruction to the jury "ensured that defense counsel's point was accurately conveyed and understood by the jury." (Doc. 43, p. 32).

Next, Magistrate Judge Carlson determines that Ellis' claim regarding the jury instructions fails because Ellis has not shown that the state court ruling regarding counsel's failure to object to the jury instructions was contrary to or involved an unreasonable application of clearly established case law, or was based upon an unreasonable determination of the facts. Specifically, Ellis contended that the trial court's use of various examples in its closing instructions to the jury was erroneous. Magistrate Judge Carlson concluded, and we agree, that the trial judge provided the jury with careful, detailed instructions regarding the Commonwealth's burden of proof, the elements of the offenses, direct and circumstantial evidence, and the way in which the jury should ...


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