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Paye v. Erlingard

United States District Court, E.D. Pennsylvania

August 22, 2014

SAYE R. PAYE, Petitioner,
v.
MR. ERLINGARD, et al., Respondents.

OPINION

JOEL H. SLOMSKY, District Judge.

I. INTRODUCTION

Before the Court is the pro se Petition of Saye R. Paye ("Petitioner"), a state prisoner, for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On November 22, 2013, United States Magistrate Judge David R. Strawbridge issued a Report and Recommendation, recommending that the Petition be denied and that a certificate of appealability not be issued ("the Report"). (Doc. No. 18.) In December 2013, Petitioner filed Objections to the Report. (Doc. Nos. 20, 21.) The Court has reviewed all pertinent documents, and for reasons that follow, will approve and adopt the Report (Doc. No. 18), denying the Petition (Doc. No. 1) with prejudice.[1]

II. BACKGROUND

The following factual account is taken from the Report:[2]

[Petitioner] was stopped by police and arrested in January 2002 within minutes of robbing a man on a Philadelphia street. The victim, having followed police in pursuit, identified [Petitioner] and his accomplice, as the perpetrators. The victim's wallet was found on the sidewalk within a few feet of where [Petitioner] was stopped, and a replica gun, displayed by [Petitioner]'s accomplice in the robbery, was found on the accomplice. After being released on bail, [Petitioner] failed to appear for trial and remained at large for four years. He was ultimately apprehended and in October 2007 was tried, separately from his confederate, by a jury seated before the Honorable Amanda Cooperman [the Trial Judge]. He was convicted of robbery, criminal conspiracy, and [possession of an instrument of crime]. Still represented by trial counsel, he appealed his conviction, challenging the sufficiency of the evidence. The Pennsylvania Superior Court reviewed the evidence admitted at trial and, finding it sufficient to support the convictions, affirmed. See Commonwealth v. Paye, No. 205 EDA 2008 (Pa.Super. Ct. Feb. 4, 2009). The Pennsylvania Supreme Court denied allocatur. See Commonwealth v. Paye , 983 A.2d 1248 (Pa. Aug. 18, 2009).
On or about January 29, 2010, [Petitioner] filed a pro se petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9541, et seq. (the "PCRA"), seeking relief on the grounds that improper jury instructions were given, that the victim had not properly identified him, and asserting that counsel was ineffective for failing to include meritorious issues on appeal. He supplemented his petition several months later purporting to provide case law support for his claims, focusing heavily on Commonwealth v. Dickson , 918 A.2d 85 (Pa. 2007), and also arguing that the prosecution misled the jury and the trial court with respect to the jury instructions. Court-appointed counsel was permitted to withdraw after filing a Finley letter. See Commonwealth v. Finley , 550 A.2d 213 (Pa.Super. Ct. 1997). The PCRA Court then dismissed [Petitioner]'s petition. The Superior Court affirmed, finding that the claims that alleged trial court error were forfeited when they were not presented on direct appeal and finding [Petitioner]'s other claims to have been inadequately supported in his pleadings and brief. See Commonwealth v. Paye, No. 3215 EDA 2010, 38 A.3d 908 (Pa.Super. Ct. Nov. 1, 2011), applic. for re-arg. denied (Jan. 10, 2012).
On or about May 24, 2012, [Petitioner] filed his petition for writ of habeas corpus. (Doc. No. 1.) He provided a "Supplemental Submission... With Case Law Support" on July 25, 2012. (Doc. No. 6.) Respondents filed their Response on October 1, 2012. (Doc. No. 9.) [Petitioner] filed a reply brief on October 29, 2012. (Doc. No. 12.)
[Petitioner]'s request for relief under 28 U.S.C. § 2254 presents a host of allegations of improprieties in the manner in which he was identified by the victim; the prosecutor's comment to the jury about the legal instruction they would receive from the court; the fact that his convictions related to the display of a gun that he did not, himself, possess; and his contention that counsel at various stages of trial, appeal, and post-conviction review failed to preserve and present meritorious claims.

(Doc. No. 18 at 2-5) (certain internal citations omitted). On November 22, 2013, the Magistrate Judge issued the Report, concluding that Petitioner's claims were without merit and recommending that the petition be denied. (Id. at 1.) On December 9, 2013, Petitioner filed an Objection to the Report (Doc. No. 20), and on December 26, 2013, Petitioner filed Supplemental Objections. (Doc. No. 21.) For reasons that follow, the Court will adopt the Report and denying Petitioner's claims for relief.

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, 111 S.Ct. 1217, 113 L.Ed.2d 190 (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)).

IV. THE MAGISTRATE JUDGE PROPERLY ANALYZED THE PETITION

Petitioner's pro se Objections do not "specifically identify the portions" of the Report to which he objects. Savior , 2012 WL 4206566, at *1. The Objections are difficult to understand, but it appears that the gravamen of Petitioner's concerns stem from the fact that he was convicted of possession of an instrument of crime ("PIC"), even though he did not actually possess a weapon during the robbery. Petitioner was convicted of PIC based upon co-conspirator liability. Viewing his Objections liberally, the Court has discerned three principle objections to the Report, all relating to the Magistrate Judge's analysis of the law regarding PIC and conspiracy.[3] First, Petitioner objects to the Magistrate Judge's analysis of his argument that the prosecutor made improper statements during her closing argument. Specifically, Petitioner contends that the prosecutor improperly suggested to the jury that she knew how the trial court was going to instruct the jury on the law of co-conspirator liability. Second, Petitioner objects to the Magistrate Judge's failure to apply Tumey v. State of Ohio , 273 U.S. 510, 520 ...


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