The opinion of the court was delivered by: Mary A. McLAUGHLIN, J.
AND NOW, this 5th day of December, 2011, upon consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the respondents' answer and amended answers thereto, the petitioner's objections to the Report and Recommendation, and after review of the Report and Recommendation of United States Magistrate Judge David R. Strawbridge (Docket No. 12), IT IS HEREBY ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petitioner's objections are OVERRULED;
3. The Petition for Writ of Habeas Corpus is DISMISSED and DENIED; and
4. Petitioner has neither shown a denial of a constitutional right, nor established that reasonable jurists would disagree with this Court's disposition of his claims. Consequently, a certificate of appealability is DENIED.
5. The Clerk of Court shall mark this case closed for statistical purposes.
IT IS FURTHER ORDERED that, upon consideration of the petitioner's Motion for Limited Discovery (Docket No. 13), the motion is DENIED.
The Court discusses below only objections that were not addressed in the Report and Recommendation. To the extent the petitioner's objections merely rehash arguments in his habeas petition, the Court adopts the Report and Recommendation.
1. Fantauzzi objects that he is not at fault for failing to develop the factual basis for his Brady claim based on the criminal records of eyewitnesses because the Commonwealth has exclusive control over the information. Obj. at 3. Accordingly, Fantauzzi moves for limited discovery of the criminal records of the two eyewitnesses, Milagros Fantauzzi*fn1 and Ricardo Ferrer-Rios.
Even if Milagros Fantauzzi and Ferrer-Rios had criminal records when they testified, and even if the Commonwealth suppressed the criminal records, however, Fantauzzi's Brady claim still fails because he has not demonstrated prejudice.
This is not a case where the prosecution's eyewitnesses have testified in a manner entirely adverse to the defendant. In this case, Milagros Fantauzzi and Ferrer-Rios testified at trial that their prior identifications of Fantauzzi as the shooter were mistaken. Although their pre-trial written statements were unfavorable to Fantauzzi, their trial testimony was not. Thus, as a preliminary matter, it is not clear that any criminal records of the eyewitnesses would even be "favorable" to the petitioner under Strickler v. Greene. 527 U.S. 263, 281-82 (1999).
Nevertheless, the Court need not decide whether the criminal records would be favorable because Fantauzzi has not shown that they could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, as required under Strickler. 527 U.S. at 290. Both eyewitnesses already changed their testimony once from pre-trial to trial. The effect of further impeachment of their character for truth-telling is unclear at best, and could potentially even be detrimental to Fantauzzi's defense. Thus, Fantauzzi has failed to demonstrate prejudice from any withholding of potential criminal records.
2. The Report and Recommendation concludes that the prosecutor's comments during closing argument regarding the children of Milagros Fantauzzi and Ricardo Ferrer-Rios were not so improper as to constitute misconduct that violated due process. R&R at 24-26. Fantauzzi ...