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McCalvin v. Mooney

United States District Court, E.D. Pennsylvania

December 11, 2014

PURNELL McCALVIN
v.
SUPT. VINCE MOONEY, et al.

ORDER

LEGROME D. DAVIS, District Judge.

AND NOW, this 10th day of December, 2014, upon consideration of the Report and Recommendation of United States Magistrate Judge Carol Sandra Moore Wells (Doc. No. 23) and Petitioner Purnell McCalvin's objections thereto (Doc. No. 27), and upon independent review of the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. No. 3), as amended (Doc. No. 9), it is hereby ORDERED as follows:

1. Petitioner's objections to the Report and Recommendation (Doc. No. 27) are OVERRULED.
2. The Report and Recommendation (Doc. No. 23) is APPROVED and ADOPTED as modified by this Order.
3. Petitioner's Petition for Writ of Habeas Corpus (Doc. No. 3), as amended (Doc. No. 9), is DISMISSED without an evidentiary hearing.
4. No certificate of appealability shall issue.
5. The Clerk of Court shall mark this matter CLOSED for statistical purposes.

Discussion

I. Background

In 2009, the Pennsylvania Court of Common Pleas of Berks County convicted Petitioner Purnell McCalvin of possession with intent to deliver a controlled substance and criminal conspiracy. See Commonwealth of Pa. v. McCalvin, No. 1897 MDA 2010, 1-2 (Pa.Super. Ct. Sept. 12, 2011). Pursuant to 18 Pa. Const. Stat. § 7508(a)(3)(iii), the court sentenced Petitioner to seven to fifteen years imprisonment and imposed a $50, 000 fine. Id . In his federal habeas petition, Petitioner raises seven grounds for relief that we consider in turn.[1] (See Habeas Pet. 29-78, [2] Doc. No. 3; Am. Habeas Pet., Doc. No. 9.) The Report and Recommendation ("R&R") recommends dismissing the habeas petition (R&R 13, Doc. No. 23), and Petitioner responds by raising several objections to the R&R (Pet'r's Objs. to R&R, Doc. No. 27). We evaluate each of Petitioner's objections de novo as we analyze the claims to which they relate. 28 U.S.C. § 636(b)(1)(C) (instructing that a court must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made"). We overrule each of Petitioner's objections, and we conclude by adopting the R&R as modified by this Order.

II. Unlawful Amendment to the Bills of Information

First, Petitioner argues in his habeas petition that "the [t]rial [c]ourt erred by permitting the Commonwealth to amend the Bills of [I]nformation after the close of the Commonwealth's case to change the date of [the] [a]lleged [c]riminal [a]ctivity." (Habeas Pet. 29-42.) The R&R recommends dismissing this claim as non-cognizable. (R&R 4.) To the extent that Petitioner is claiming a state law violation (see Habeas Pet. 32-35, 39-42), we adopt the recommendation and dismiss this claim. A federal court may grant habeas relief to a state prisoner only for violations of federal law. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991).

The R&R neglects to consider, however, that Petitioner's claim may also assert a violation of federal law, and we find that this is in fact the case. Petitioner first suggests a violation of federal law in his habeas petition (Habeas Pet. 35-36, 38), and he asserts such a violation more clearly in his objections to the R&R (Pet'r's Objs. to R&R 7). Specifically, Petitioner contends that the amendment to the Bills of Information violated his Fifth Amendment right to a grand jury (Habeas Pet. 35), his Fourth Amendment right regarding the particularity of warrants (id. at 38), his Fourteenth Amendment right to due process (Pet'r's Objs. to R&R 7), [3] and his Fourteenth Amendment right to equal protection (id.). We therefore find that Petitioner asserts federal law violations that are cognizable on federal habeas review.

We also find that Petitioner has exhausted these federal law claims in state court as the Antiterrorism and Effective Death Penalty Act ("AEDPA") requires. 28 U.S.C. § 2254(b). Despite Petitioner's failure to state explicitly that he was raising federal claims when he challenged the amendment to the Bills of Information on direct appeal, see Concise Statement of Matters Complained of on Appeal ("Statement of Direct Appeal"), McCalvin, No. 1711-2008 (Ct. of Common Pleas Dec. 23, 2010), we must liberally construe Petitioner's habeas petition, Rainey, 603 F.3d at 198, and Petitioner plainly intended to raise a federal due process challenge. See Smith v. Vaughn, No. 96-8482, 1997 WL 338851, at *6 (E.D. Pa. June 17, 1997) (concluding that a petitioner's claim that the Commonwealth had unlawfully amended the Bills of Information is "by its very nature one of due process and therefore petitioner's failure to label it as such in state court does not act as a procedural bar to examination of it on the merits here") (citing ...


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