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Walker v. Folino

United States District Court, Third Circuit

August 6, 2013

ROBERT WALKER, Petitioner,
LOUIS FOLINO, et al., Respondents.




On November 11, 2012, Petitioner Robert Walker filed a pro se Petition for Writ of Habeas Corpus. (Doc. No. 1.) On December 3, 2012, the Court referred this case to United States Magistrate Judge Timothy R. Rice. (Doc. No. 2.) On February 19, 2013, Respondents filed a Response in Opposition. (Doc. No. 7.) On April 19, 2013, Petitioner filed a “Traverse to State’s Answer and Incorporated Memorandum of Law.” (Doc. No. 10.) On April 30, 2013, Judge Rice issued a Report and Recommendation that the Petition be denied with prejudice. (Doc. No. 11.) On June 26, 2013, Petitioner filed timely Objections to the Report and Recommendation. (Doc. No. 15.)[1] For reasons that follow, the Court will overrule Petitioner’s Objections and adopt the Report and Recommendation of Judge Rice.


Pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge may designate a magistrate judge to file proposed findings and recommendations for a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. “Within fourteen days after being served with a copy [of the magistrate judge’s report], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1). Local Civil Rule 72.1.IV(b) requires an objecting party to “specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections.” With respect to pro se litigants, however, this rule may be relaxed. See McCabe v. Pennsylvania, 419 F.Supp.2d 692, 695 (E.D. Pa. 2006) (treating pro se litigant’s letter to court as objection).

The district judge “shall [then] make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). “Although [the] review is de novo, [a district judge] [is] permitted, by statute, to rely upon the magistrate judge’s proposed findings and recommendations to the extent [the judge], in the exercise of sound discretion, deem[s] proper.” Owens v. Beard, 829 F.Supp. 736, 738 (M.D. Pa. 1993) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)). The Third Circuit has “assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate’s report before adopting it as the decision of the court.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987).


On December 6, 2004, Petitioner strangled Jolie Garrison (“the Victim”), his girlfriend and the mother of his five children, killing her. (Doc. No. 11 at 1.) Petitioner was tried on a charge of first-degree murder in the Court of Common Pleas of Delaware County. (Id.) At trial, Petitioner admitted that he strangled the Victim, but asserted that he did so in self-defense following an argument and the ensuing struggle. (Id.) Petitioner’s counsel stipulated to the admission of police statements given by Petitioner’s three sons. (Id.) V.W., age 15, “stated that around midnight on December 6, he heard his parents arguing and saw the Victim throw [Petitioner’s] belongings down the stairs and go into her room while [Petitioner] picked up his things.” (Id. at 1–2.) B.W., age 9, “said he shook the Victim in bed around 6:00 a.m. When the Victim did not respond, [Petitioner], who was also lying in the bed, got up and took B.W. to school rather than let him take the bus as usual.” (Id. at 2 (citation omitted).) C.W., age 10, “stated that before leaving for school at 7:00 a.m., he said goodbye to the Victim, who turned, looked at him, and said ‘bye.’”[2] (Id.)

On March 18, 2007, the jury convicted Petitioner of first-degree murder. (Doc. No. 11 at 2; Doc. No. 1 at 1.) He was sentenced to life imprisonment. (Doc. No. 11 at 2.) In May 2008, the Pennsylvania Superior Court affirmed his conviction. (Id. (citing Commonwealth v. Walker, 954 A.2d 44 (Pa. Super. Ct. 2008).) On October 8, 2008, the Pennsylvania Supreme Court denied review. (Id. (citing Commonwealth v. Walker, 959 A.2d 320 (Pa. 2008).)

On July 20, 2009, Petitioner filed a pro se petition challenging his conviction and sentence pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”). (Id. at 2–3.) Petitioner argued that his trial counsel was ineffective for, among other things: (1) stipulating to the admission of the police statement given by C.W.; and (2) failing to call a forensic pathologist, Dr. Dimitri L. Contostavlos, as an expert witness. (Id. at 3.)

The PCRA court appointed counsel, who later sought leave to withdraw because he concluded Petitioner’s claims were meritless. (Id.) The PCRA court denied counsel’s request (id.), and dismissed Petitioner’s claim related to the stipulated admission of the witness’s police statement. (Id. (citing Commonwealth v. Walker, CP-23-CR-6666-2004 (Ct. Com. Pl. Del. April 14, 2011).) The PCRA court refused to consider Petitioner’s claim regarding the failure to call Dr. Contostavlos because he failed to include any facts to support the claim. (Id. at 7.) On November 7, 2011, the Pennsylvania Superior Court affirmed the PCRA court. (Id. at 3 (citing Commonwealth v. Walker, No. 578 EDA 2011 (Pa. Super. Ct. November 7, 2011).) On May 23, 2012, the Pennsylvania Supreme Court denied review. (Id. (citing Commonwealth v. Walker, 55 A.3d 523 (Pa. 2012).) The Pennsylvania Supreme Court also denied reconsideration. (Id.)

On November 7, 2012, Petitioner timely filed the instant Petitioner for Writ of Habeas Corpus. (Doc. No. 1.) The Petition sets forth the following two claims for relief:

1. “Trial counsel rendered constitutionally ineffective assistance at trial by agreeing to enter into a stipulation with the prosecution to the testimony of [C.W.] that acquiesced in the admission of disputed and highly damaging testimony” (id. at 65–72); and 2. “Trial counsel rendered constitutionally ineffective assistance in failing to call as an ...

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