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Pippen v. McGrady

United States District Court, E.D. Pennsylvania

March 12, 2015

NYAKO ODELL PIPPEN, Petitioner,
v.
JAMES McGRADY, et al., Respondents.

ORDER

PAUL S. DIAMOND, District Judge.

Petitioner Nyako Odell Pippen has filed counseled Objections to Magistrate Judge Rice's Report and Recommendation regarding his Petition for habeas relief. (Doc. Nos. 26, 27); 28 U.S.C. § 2254. I will overrule the Objections, accept Judge Rice's recommendations, and deny the Petition.

I. STANDARD OF REVIEW

I must review de novo those portions of the Report to which timely, specific objections have been filed. 28 U.S.C. § 636(b)(1)(C). I may "accept, reject, or modify, in whole or in part" the Judge Rice's findings or recommendations. Id .; Brophy v. Halter, 153 F.Supp.2d 667, 669 (E.D. Pa. 2001). As to those portions to which no objections have been made, I must "satisfy [myself] that there is no clear error on the face of the record in order to accept the recommendation." Fed.R.Civ.P. 72(b) Advisory Committee Notes; see Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining the district court's responsibility "to afford some level of review" when no objections have been made).

II. BACKGROUND

The Commonwealth charged that on January 25, 2007, Petitioner conspired with five other people to rob Sharron "Gees" Grinnage at his home. (Doc. No. 31-4; N.T. 1/15/08 at 73-74, 107, 120; 1/16/08 at 65-66.) Petitioner and one co-conspirator stayed outside the home, and Petitioner left before the robbery actually occurred. (N.T. 1/17/08 at 176.) Two co-conspirators entered Grinnage's residence and demanded money from a woman there. (N.T. 1/15/08 at 49-52.) One of the co-conspirators struggled with the woman and ultimately shot her in the neck, killing her. (N.T. 1/15/08 at 56-57, 105, 168-70, 175.) All the co-conspirators subsequently went to Petitioner's house. (N.T. 1/15/08 at 101-04.) Cell phone records confirm that the shooter spoke with Petitioner before and after the shooting. (N.T. 1/15/08 at 195, 197-201.)

On January 18, 2008, a state court jury convicted Petitioner of second degree murder, conspiracy to commit robbery, robbery, and unsworn falsification to authorities. (N.T. 1/18/08 at 161-62.) The trial judge sentenced him to life imprisonment for second degree murder and lesser prison terms for the related offenses. (Resp., Doc. No. 9, Ex. B, at 4-5.) Petitioner appealed to the Pennsylvania Supreme Court, which affirmed. Commonwealth v. Pippen, No. 3142 EDA 2008 (Pa. Super. Ct. June 18, 2009). (Supp. Resp., Doc. No. 22, Ex. A.) The Pennsylvania Supreme Court denied allocatur. Commonwealth v. Pippen, 502 MAL 2009 (Pa. 2009). (Supp. Resp., Doc. No. 22, Ex B.)

In November 2010, Petitioner sought relief under the Post-Conviction Relief Act, alleging trial counsel's ineffectiveness. (Supp. Resp., Doc. No. 22, Exs. C-E.) The PCRA Court denied relief, and the Superior Court affirmed. (Supp. Resp., Doc. No. 22, Ex. F at 1-2.)

Petitioner filed the instant Habeas Petition on June 19, 2013, making multiple ineffectiveness claims. (Doc. No. 1.) The Commonwealth responded on August 29, 2013, arguing that the Petition was untimely. (Doc. No. 9.) Petitioner replied, and Judge Rice ordered the Commonwealth to file a supplemental response addressing the merits of Petitioner's claims. (Doc. Nos. 14, 16.) The Commonwealth did so on January 31, 2014. (Doc. No. 22.)

Judge Rice filed his Report and Recommendation on July 11, 2014. (Doc. No. 26.) He concluded that: 1) the Petition was timely pursuant to the prisoner mailbox rule; and 2) none of Petitioner's ineffectiveness claims had merit. (Id.); see Williams v. Brooks, 435 F.Supp.2d 410, 419 (E.D. Pa. 2006) (explaining the prisoner mailbox rule). Petitioner filed Objections on July 23, the Commonwealth responded on September 2, and Petitioner replied on September 3. (Doc. Nos. 27, 29, 30.)

III. OBJECTIONS

A. Unopposed Recommendation

Neither Party has objected to the Judge Rice's ruling that Petitioner's claims were timely. My review of the Report as to unopposed recommendations is limited to satisfying myself "that there is no clear error on the face of the record." Fed.R.Civ.P. 72(b) Advisory Committee Notes; Henderson, 812 F.2d at 878. Having reviewed the Report with respect to this recommendation, I see no clear error. Accordingly, I will adopt the Report with respect to that finding.

B. Factual and Procedural History

Petitioner objects to the Judge Rice's statement that Petitioner "designated each co-conspirator's role in the robbery." (Doc. No. 26 at 1; Pet'r's Objections, Doc. No. 27 at 1.) Judge Rice's finding is confirmed by the trial record. See N.T. 1/15/08 at 82 ("A: [H]e said... he was supposed to tie the lady up and look for the money. And he said... Yako and Melvin were supposed to wait for Gees. Q: Who told him this information? A: I believe [Petitioner]."); 1/17/08 at 19 ("A: [Petitioner], basically, said that Dave and Isaiah were to go into the house, and me and Gigi were to knock on the door."). Moreover, Judge Rice ...


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