United States District Court, E.D. Pennsylvania
JOEL H. SLOMSKY, District Judge.
Before the Court is the Second Amended Petition of Simon Pirela a/k/a Salvador Morales ("Petitioner") for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 36.) Petitioner contends that he is entitled to relief because he is actually innocent of the underlying crimes for which he was convicted in state court. He also seeks relief based on a variety of alleged constitutional violations, including violations of his Sixth Amendment right to effective assistance of counsel and his Fourteenth Amendment right to due process of law.
Following a review of the filings by the parties and the pertinent state court records, United States Magistrate Judge Henry S. Perkin issued a Report, recommending that the Second Amended Petition for Writ of Habeas Corpus be denied and that a certificate of appealability not be issued. (Doc. No. 62.) Petitioner filed a timely response to the Report and Recommendation, containing his objections. (Doc. No. 67.) Those objections are now before the Court.
On March 19, 1984, sitting without a jury,  the Honorable Joseph T. Murphy of the Philadelphia County Court of Common Pleas found Petitioner guilty of second-degree murder, criminal conspiracy, and robbery in connection with the shooting death of Ignacio Slaffman ("Slaffman") on August 15, 1982. (Doc. No. 62 at 5.) On March 27, 1985, Judge Murphy sentenced Petitioner to a mandatory life sentence without the possibility of parole for the second-degree murder conviction. (Id.) On June 12, 1986, the Superior Court of Pennsylvania affirmed the judgment of sentence. Commonwealth v. Pirella, 513 A.2d 1077 (Pa.Super. Ct. 1986) (unpublished memorandum opinion). On December 29, 1986, the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Pirela, No. 1622 EDA 2009, 3 (Pa.Super. Ct. May 4, 2011) (unpublished memorandum opinion). Court-appointed counsel, Edward Schulgen, Esquire, represented Petitioner at his preliminary hearing, trial, and in all direct appeal proceedings. (Doc. No. 62 at 1-2.)
The Superior Court of Pennsylvania described the facts and procedural history of the case as follows:
In 1984, [Petitioner] and his co-defendant, Heriberto Pirela, were convicted of second-degree murder, robbery, and criminal conspiracy as a result of their involvement in the robbery of a pizzeria in Philadelphia in 1982. During the course of the robbery, the pizzeria's owner [Slaffman] was shot and killed. In addition to these two men, Orlando "Dice" Maisonet ("Maisonet"), Ervin "Corvo" Martinez ("Martinez"), Heriberto "Eddie" Colon ("Colon"), Jorge "Georgie" Figueroa, and a man known as "Chicago" participated in the crime.
At trial, the Commonwealth's main witness was Colon, who had pleaded guilty to third-degree murder and robbery for his part in the crime. Colon explained how the group had planned and executed the robbery/murder. It was alleged that Colon leaped over the counter and ordered everyone in the pizzeria down on the floor. [Petitioner] emptied the cash register and took a metal cashbox kept under the counter. When the owner tried to grab one of the robbers, Maisonet shot him in the stomach. The robbers fled in a getaway car and divided the proceeds. [Petitioner] and his brother then buried the guns used.
As part of his defense, [Petitioner] attempt to call Carlos Edwardo Tirado ("Tirado") and Martinez in an effort to demonstrate that Colon was not present at the time of the robbery. Prior to trial, Martinez admitted his involvement in the robbery/murder and entered a plea of guilty to third-degree murder and robbery. According to trial counsel's offer of proof, Tirado was not directly involved in the crime. Rather, according to his statement to police, Tirado said that the robbers came to his house immediately after the crime occurred and told him what had happened. The Commonwealth had not charged Tirado with any crime.
[Tirado and Martinez] asserted their Fifth Amendment right against self-incrimination. Tirado's lawyer, Edwin Miller, advised him not to testify based upon a conversation he had with Tirado which led him to believe that Tirado might testify to more than what he said in his statement to the police and, thereby, incriminate himself. The trial court denied trial counsel's request for a hearing to test the validity of Tirado's assertion of his Fifth Amendment privilege. Martinez's lawyer, Louis Small, advised Martinez not to testify based upon Martinez's involvement in the murder. Rather than request a hearing, trial counsel asked the trial court to grant Martinez immunity. This request was also denied.
* * *
Almost ten years [after the Pennsylvania Supreme Court denied allowance of appeal], on June 25, 1996, [Petitioner] filed a PCRA petition claiming, inter alia, that he had newly discovered evidence that demonstrated Colon had given perjured testimony at [Petitioner's] 1984 trial. [Petitioner] stated that Colon had testified for the Commonwealth in the 1992 trial of Maisonet and gave a version of events that differed in some respects to the version he gave at [Petitioner's] 1984 trial. [Petitioner] argued that this proved Colon committed perjury at his trial. Following a hearing, the PCRA court determined that each of [Petitioner's] claims were meritless. [The Superior Court of Pennsylvania] affirmed the denial of relief on August 23, 1999. Commonwealth v. Pirela, 745 A.2d 45 (Pa.Super. Ct. 1999) (unpublished opinion). A panel of this court reasoned:
The evidence offered by [Petitioner] does not meet the [test for after discovered evidence]. While Colon did testify in 1992 that he lied when he testified in 1984 that [Petitioner] ordered Maisonet to kill the victim, Colon's testimony at both trials clearly was consistent to the fact that [Petitioner] fully participated in the planning and execution of the robbery/murder. Thus, the fact that Colon, in a trial held eight years after [Petitioner's] trial, stated that he lied about the circumstances leading to the shooting of the victim would not compel a different result. The PCRA court, therefore, properly denied [Petitioner] relief on this basis.
Id. at *7. The Pennsylvania Supreme Court denied allowance of appeal on February 3, 2000. Commonwealth v. Pirela, 751 A.2d 188 (Pa. 2000).
In the meantime, Maisonet appealed his murder conviction and was awarded a new trial. A retrial was held on January 10, 2005 and Colon testified again. Maisonet was ultimately acquitted of all charges. Thereafter, on December 21, 2005, [Petitioner] filed a second PCRA petition. In this petition, [Petitioner] raised a newly-discovered evidence claim asserting that Colon must have lied at his trial as he gave different testimony at Maisonet's re-trial. The PCRA court found [Petitioner's] petition time-barred and denied relief on March 30, 2009.
Pirela, No. 1622 EDA 2009 at 1-5. On May 4, 2011, the Superior Court of Pennsylvania affirmed the PCRA court's denial of Petitioner's second PCRA petition as time-barred. Id. at 10.
On October 20, 2000, after the Pennsylvania Supreme Court denied allowance of appeal for Petitioner's first PCRA petition, Petitioner filed a pro se Petition for a Writ of Habeas Corpus in this Court. (Doc. No. 1.) On February 1, 2001, Robert Brett Dunham, Esquire, of the Federal Defender's Office entered his appearance on behalf of Petitioner. (Doc. No. 62 at 9.) Petitioner has been represented by counsel since then and is no longer proceeding pro se. On October 29, 2001, Petitioner filed an Amended Petition for a Writ of Habeas Corpus. (Doc. No. 22.) On December 17, 2008, the Court referred the case to United States Magistrate Judge Henry S. Perkin for a Report and Recommendation. (Doc. No. 28.) Petitioner was given leave to file an amended petition. (Doc. No. 30.) On June 11, 2009, Petitioner filed a Second Amended Petition. (Doc. No. 36.) On February 27, 2014,  following a review of all the filings by the parties and the state court record, the Magistrate Judge issued a Report, recommending that the Second Amended Petition for Writ of Habeas Corpus be denied and that a certificate of appealability not be issued. (Doc. No. 62.) Petitioner filed timely objections to the Report and Recommendation. (Doc. No. 67.) Those objections are now before the Court for consideration.
III. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge is permitted to designate a magistrate judge to make proposed findings and recommendations on petitions for post-conviction relief. Any party may file objections in response to the magistrate judge's Report and Recommendation. Id. at § 636(b)(1)(C). Whether or not an objection is made, a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The [district] judge may also receive further evidence or recommit the matter to the magistrate judge with further instructions." Id . "[I]t must be 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). See also 28 U.S.C. § 636(b).
In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner's objections to a magistrate judge's Report and Recommendation. Under that rule, a petitioner must "specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections[.]" Savior v. Superintendent of Huntingdon SCI, No. 11-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012). Upon review, "[a district judge] shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). De novo review is non-deferential and generally permits the district court to conduct an "independent review" of the entire matter. Salve Regina College v. Russell , 499 U.S. 225, 238 (1991). "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)).
In his Second Amended Petition for a Writ of Habeas Corpus, Petitioner set forth ten (10) grounds for relief based on his actual innocence claim and various constitutional violations. (Doc. No. 36.) The Magistrate Judge found Petitioner's claims to be without merit and recommended that the Second Amended Petition be denied. (Doc. No. 62.) Petitioner subsequently filed a response to the Report and Recommendation, lodging four (4) specific objections to the Magistrate Judge's findings. (Doc. No. 67.) The Court will address each objection seriatim. For reasons that follow, the Court will adopt and approve the Magistrate Judge's Report and Recommendation, denying Petitioner's claims for relief.
A. Petitioner's First Objection to the Report and Recommendation is Without Merit Because His Freestanding Claim of Actual Innocence is Not Cognizable
In his Second Amended Petition, Petitioner argued that he is entitled to habeas relief because he is actually innocent of the underlying crimes for which he was convicted. (Doc. No. 36 at 30.) According to Petitioner, he "was not present during the robbery/murder of Ignacio Slaffman." (Id. at ¶ 70.) Instead, he alleges that, at the time of the crime, he was in bed with his common-law wife, Maritza DeJesus. (Id. at ¶ 75.) The Magistrate Judge recommended that this freestanding claim of actual innocence be denied because this is not a capital case, and therefore, this claim is not cognizable on federal habeas review. (Doc. No. 62 at 21.) Petitioner objects to ...