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Hicks v. Diguglielmo

United States District Court, Third Circuit

August 29, 2013



R. BARCLAY SURRICK, District Judge.

Presently before the Court is Petitioner Jermaine Hicks's pro se [1] Petition for Writ of Habeas Corpus (ECF No. 1) and Objections (ECF Nos. 17, 18) to the Report and Recommendations of Magistrate Judge Wells (ECF No. 37). For the following reasons, Hicks's objections will be overruled and his Petition will be denied.


A. Factual History[2]

On November 27, 2001, at approximately 5:00 a.m., Wa Lee left her home for work at Dunkin' Donuts, which was located on the corner of Broad and Snyder Streets in Philadelphia, Pennsylvania. As Lee walked along 15th Street, Petitioner grabbed her and dragged her into an alleyway behind St. Agnes Hospital. Petitioner was armed with a handgun. He held the gun to the victim's mouth, beat her with it, and threatened to kill her if she did not cooperate with him. He then raped her. Several witnesses heard Lee's screams and called 911 to report that a woman was being attacked. The police responded within minutes of the witnesses' calls. Upon their arrival, the officers saw Petitioner on top of the victim, with his pants down around his knees, in the process of raping her. An officer ordered Petitioner to get off the victim and to place his hands in plain view. Petitioner failed to comply with the officer's instruction and attempted to retrieve a gun from his jacket. Once Petitioner reached for his gun, the officer fired and struck Petitioner. Both the victim and Petitioner were taken to Thomas Jefferson Hospital where they were treated for their injuries. The officers recovered Petitioner's gun, pants, and underwear, which were stained with the victim's blood.

The events of that early morning were recorded by a surveillance camera. Due to the nature of the recording equipment at St. Agnes Hospital, a special machine was needed to enhance the images for viewing. Despite significant efforts by the police to obtain the necessary equipment, the machine was not available for use at the time of Petitioner's trial. Petitioner's counsel did not request a continuance and did not mention the video when he sought additional discovery during trial. The original non-enhanced videotape was shown at trial. In the enhanced videotape, subsequently obtained by the assigned detective and shown at a hearing on the motion for extraordinary relief, a white van is seen backing into the loading dock where the crime occurred. The video also shows one person dragging another person into the alley and the responding officers arriving at the crime scene. No further clarifying information was seen on the enhanced videotape.

B. Procedural History

On November 8, 2002, following a jury trial presided over by Judge Sandy L.V. Byrd of The Court of Common Pleas in Philadelphia County, Petitioner was convicted of rape, aggravated assault, possession of an instrument of crime, and terroristic threats. Specifically, Petitioner was convicted of dragging the victim into an alleyway at St. Agnes Hospital and then assaulting and raping her. On February 27, 2003, following the denial of Petitioner's motion for extraordinary relief, Petitioner was sentenced to an aggregate term of twelve and a half to twenty-five years imprisonment.

Petitioner filed a direct appeal in the Superior Court of Pennsylvania. On January 31, 2005, the Superior Court affirmed Petitioner's judgment of sentence. On December 28, 2005, the Pennsylvania Supreme Court denied Petitioner's petition for allowance of appeal. Subsequently, on August 14, 2006, Petitioner filed a pro se petition for relief under 42 Pa. C.S.A. §§ 9541, et seq. , the PCRA. ( Pro Se Pet., ECF No. 1.) Counsel was appointed and filed an amended petition on March 23, 2007. The PCRA Court dismissed the petition on January 31, 2008. The Superior Court affirmed the PCRA Court's dismissal of the petition. On September 10, 2009, Petitioner filed the instant Petition seeking habeas corpus relief under 28 U.S.C. § 2254. Petitioner asserts the following claims: (1) the Commonwealth violated Brady v. Maryland , 373 U.S. 83 (1963), by withholding the surveillance tape that contained extrinsic after-discovered evidence; (2) a claim of after-discovered evidence based on the surveillance tape; (3) trial counsel was ineffective under Strickland v. Washington , 466 U.S. 668 (1984), for failing to contradict inaccurate medical evidence; (4) trial counsel was ineffective under Strickland for failing to procure the necessary equipment to present the surveillance video at trial; and (5) trial counsel was ineffective under Strickland for failing to develop the record regarding the presence of Officer Valerie Brown's gun at the scene of the crime. (Pet.'s Mem. 1, ECF No. 1.)

In accordance with 28 U.S.C. § 636(b)(1)(B), the matter was referred to Magistrate Judge Caracappa for a report and recommendation. "District judges have wide discretion on how they choose to treat reports and recommendations from magistrate judges." Knox v. Barnhart , No. 05-6613, 2007 WL 674591, at *2 (E.D. Pa. Feb. 28, 2007) (citing United States v. Raddatz , 447 U.S. 667, 680 (1980)). Under Section 636(b)(1)(C), "[a] judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). We review de novo those portions of the Magistrate Judge's Report and Recommendation ("R&R") to which specific objections have been made. Id. ; Fed.R.Civ.P. 72(b); see also Thomas v. Arn , 474 U.S. 140, 141-42 (1985) ("[A] United States district judge may refer... petitions for writ of habeas corpus [ ] to a magistrate, who shall conduct appropriate proceedings and recommend dispositions.... [A]ny party that disagrees with the magistrate's recommendations may serve and file written objections to the magistrate's report, and thus obtain de novo review by the district judge.") (internal quotation marks omitted). Here, the R&R recommended that all of Petitioner's habeas claims be dismissed or denied without an evidentiary hearing. (R&R 2-3, ECF No. 37.) Petitioner has filed Objections to the Magistrate Judge's R&R. (Objections, ECF No. 41.)


Pursuant to 28 U.S.C. § 2254, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A federal district court reviewing a Section 2254 petition "must determine whether the state court's adjudication of the claims raised was either (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented." Washington v. Beard , 867 F.Supp.2d 701, 705 (E.D. Pa. 2012). Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), reviewing federal courts are to afford deference to any claim that is adjudicated on the merits in state court. See 28 U.S.C. § 2254(d); Johnson v. Folino , 735 F.Supp.2d 225, 232 (E.D. Pa. 2010). In determining whether a state court's application of federal law was "unreasonable, " the reviewing federal court applies an objective standard, such that the relevant application "may be incorrect but still not unreasonable." Duncan v. Morton , 256 F.3d 189, 196 (3d Cir. 2001) (citing Williams v. Taylor , 529 U.S. 362, 409-10 (2000)). The test applied on federal habeas review is whether the state court decision "resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent." Matteo v. Superintentendent, SCI Albion , 171 F.3d 877, 890 (3d Cir. 1999) ( en banc ). In such an inquiry, the petitioner bears the burden to establish that precedent "requires [a] contrary outcome." Id. at 888. Section 2254 instructs that courts are to apply a presumption of correctness to factual findings of a state court, which can only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Duncan , 256 F.3d at 196. The presumption of correctness applies equally to state trial and appellate courts, Johnson , 735 F.Supp.2d at 233, and implicit factual findings of state courts, Campbell v. Vaughn , 209 F.3d 280, 285-86 (3d Cir. 2000).


In the R&R, the Magistrate Judge recommended that all of Petitioner's claims be dismissed or denied. (R&R 2-3.) Specifically, in the R&R, the Magistrate Judge recommended that Petitioner's habeas claim with respect to the Brady violation ("Claim One") be dismissed, finding that the Superior Court's rejection of Petitoner's claim was not contrary to, or an unreasonable application of, clearly established federal law. ( Id. at 10.) The Magistrate Judge also found that Petitioner's second claim of after-discovered evidence ("Claim Two") was procedurally defaulted because it was not presented to the state courts as a federal constitutional claim and thus, cannot be considered on the merits. ( Id. at 4-5.) With regard to Petitioner's third, fourth, and fifth claims under Strickland , the Magistrate Judge found that although the claims were exhausted at the state level, they lacked merit. ( Id. at 11-13.) Petitioner objects to all of the Magistrate Judge's findings, arguing that all of his claims have merit and that Claim Two was not procedurally defaulted.[3]

A. Brady Claim ...

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