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Torres-Rivera v. Bickell

United States District Court, Eastern District of Pennsylvania

November 10, 2014




AND NOW, this 10th day of November, 2014, upon consideration of petitioner Jose A. Torres-Rivera’s June 6, 2013[1] pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry #1), our July 7, 2013 Order referring this matter to the Honorable Elizabeth T. Hey for a Report and Recommendation, Judge Hey’s August 26, 2014 Report and Recommendation (“R&R”) (docket entry #12), and petitioner’s pro se objections thereto (docket entry #16), and the Court finding that:

(a) On August 26, 2014, Judge Hey issued her R&R that petitioner’s petition for the writ of habeas corpus be denied and that we decline to issue a certificate of appealability, R&R at 1;

(b) Local Rule 72.1 IV(b) provides that “[a]ny party may object to a magistrate judge’s proposed findings, recommendations or report under 28 U.S.C. 636(b)(1)(B) … within fourteen days after being served with a copy thereof” by filing “written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections;” As Judge Hey notes on page 5 of her, the federal court employs the “mailbox rule, ”

(c) In our September 5, 2014 Order, we granted petitioner an extension of time in which to file his objections to the R&R, which he did on November 5, 2014;

(d) We make a de novo determination of those portions of the report or specified proposed findings or recommendations to which petitioner objects, see 28 U.S.C. § 636;

(e) The R&R recounts the factual and procedural history of petitioner’s case, which is as follows;

(f) On August 20, 2010, following a trial before the Honorable Jeffrey K. Sprecher of the Berks County Court of Common Pleas, a jury convicted petitioner of first-degree murder and firearms not to be carried without a license, R&R at 1;

(g) Judge Sprecher, later summarizing the evidence, explained that video surveillance captured petitioner shooting one Carmelo Isasas Muniz on March 2, 2009, outside a club, id. at 2;

(h) On September 23, 2010, Judge Sprecher sentenced petitioner to life in prison for first-degree murder and a concurrent prison term of twenty to forty months on the firearms count, id. at 2-3;

(i) The sentencing court denied petitioner’s post-sentence motion, and petitioner filed a timely notice of appeal, complaining that (1) the trial court erred in denying petitioner’s motion for a new trial where the murder verdict was against the weight of the evidence and (2) the sentence of life imprisonment violated the Eighth Amendment, as petitioner was mentally retarded, id. at 3;

(j) On December 2, 2010, Judge Sprecher recommended that the appeal be denied, concluding that the issues were meritless, Commonwealth v. Torres-Rivera, No. CP-06-CR-1903-2009, Opinion (Berks C.C.P. Dec. 2, 2010), id. at 3;

(k) The Public Defender’s office represented petitioner up until this point, and on March 14, 2011, new counsel, attorney Jay Nigrini, filed an entry of appearance in the Superior Court and filed a praecipe to discontinue the appeal, certifying that the appellant agreed to the discontinuance, id.;

(l) No further action was taken in petitioner’s direct case, id.;

(m) On March 22, 2011, petitioner filed a petition pursuant to Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9551, arguing that he was denied effective assistance of counsel on four separate grounds, [2] R&R at 4;

(n) Judge Sprecher held a hearing over three days during which he heard testimony from petitioner and his trial attorney, Richard Joyce, and then denied the PCRA petition on the merits[3] on February 9, 2012, id.;

(o) On appeal to the Superior Court, petitioner raised only one of his four claims, namely the improper remarks in the prosecutor’s closing argument, id.;

(p) On September 12, 2012, the Superior Court affirmed, concluding that the claim lacked merit for reasons similar to what the PCRA court adopted, Commonwealth v. Torres-Rivera, 60 A.3d 850 (table), No. 378 MDA 2012, at 6-11 (Pa. Super. Sept. 12, 2012);

(q) The Pennsylvania and United States Supreme Courts denied review, Commonwealth v. Torres-Rivera, 64 A.3d 632 (table), No. 812 MAL 2012 (Pa. Apr. 9, 2013), cert denied, 134 S.Ct. 144 (Oct. 7, 2013);

(r) Petitioner timely[4] filed his federal habeas petition on June 6, 2013;

(s) The petition included four numbered claims, which Judge Hey construed as six different claims, based on the substance of the errors alleged, R&R at 5;

(t) Petitioner argues, by Judge Hey’s account, [5] that his trial counsel provided ineffective assistance of counsel by failing to (1) try to suppress evidence identifying him as the shooter, (2) challenge the weight of the evidence, (3) challenge the sufficiency of the evidence, (4) investigate an alibi witness, (5) interview witnesses at the scene who would have proven ...

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