United States District Court, M.D. Pennsylvania
SCHWAB, M. J.
MALACHY E. MANNION, United States District Judge
Jerry Reeves, an inmate confined in the Smithfield State
Correctional Institution, Huntingdon, Pennsylvania, filed,
through counsel, a petition for writ of habeas corpus
pursuant to 28 U.S.C. §2254 which was superseded by an
amended petition. (Doc. 1, Doc. H). Petitioner attacks his
2010 second-degree murder conviction and life sentence
without parole imposed by the Court of Common Pleas for
Dauphin County, Pennsylvania. By Report and Recommendation
dated October 17, 2016, Magistrate Judge Schwab recommended
that petitioner Reeves' petition for writ of habeas
corpus be dismissed as untimely. She determined that
petitioner did not identify any possible basis for equitable
tolling and that he failed to meet the requirements of a
claim of actual innocence. (Doc. 38).
November 7, 2016, petitioner filed objections to Judge
Schwab's report with a brief in support attached. (Doc.
40, Doc. 40-1). To overcome AEDPA's statute of
limitations, petitioner alleges newly discovered evidence of
actual innocence and he claims that Judge Schwab "failed
to analyze his actual innocence in light of all the evidence,
old and new." Petitioner relies, in part, on
McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924
(2013) (Supreme Court "[held] that actual innocence, if
proved, serves as a gateway through which a petitioner may
pass whether the impediment is a procedural bar.[ ], or, [ ],
expiration of the statute of limitations.").
reasons discussed below, the court will ADOPT Judge
Schwab's report and OVERRULE petitioner's objections
since petitioner fails to meet the threshold requirements
that his evidence is in fact "new" and by
convincing the court that "in light of the new evidence,
no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt." Id. at 1928
STANDARD OF REVIEW
objections are timely filed to the report and recommendation
of a magistrate judge, the district court must review de novo
those portions of the report to which objections are made. 28
U.S.C. §636(b)(1): Brown v. Astrue, 649 F.3d
193.195 (3d Cir. 2011). Although the standard is de novo, the
extent of review is committed to the sound discretion of the
district judge, and the court may rely on the recommendations
of the magistrate judge to the extent it deems proper.
Rieder v. Apfel. 115 F.Supp.2d 496. 499 (M.D.Pa.
2000) (citing United States v. Raddatz. 447 U.S.
667. 676 (1980)).
those sections of the report and recommendation to which no
objection is made, the court should, as a matter of good
practice, "satisfy itself 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 also Univac Dental Co. v.
Dentsplv Intern., inc.. 702 F.Supp.2d 465.469 (M.D.Pa.
2010) (citing Henderson v. Carlson. 812 F.2d 874,
878 (3d Cir. 1987) (explaining that judges should give some
review to every report and recommendation)). Nevertheless,
whether timely objections are made or not, the district court
may accept, not accept, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
28 U.S.C. 3636(b)(1): Local Rule 72.31.
Judge Schwab stated the complete procedural and factual
history of this case, (Doc. 38, at 2-19), and since the
petitioner did not object to it, the court will not repeat it
herein and it will be adopted. See Butterfield v.
Astrue, 2010 WL 4027768, *3 (E.D.Pa. Oct. 14, 2010)
("To obtain de novo determination of a
magistrate [judge's] findings by a district court, 28
U.S.C. §636(b)(1) requires both timely and specific
objections to the report.") (quoting Goney v.
Clark, 749 F.2d 5, 6 (3d Cir.1984)). The court will
briefly address the background and restrict its discussion
below to the relevant background as it pertains to the
petitioner's objections. The facts of this case are also
thoroughly discussed in the amended petition as well as the
briefs of the parties and, the history is substantiated by
the exhibits. (Doc. H, Doc. 15, Doc. 34. Doc. 34-1. Doc. 35).
a jury trial which concluded on June 23, 2010, petitioner was
found guilty in the Court of Common Pleas of Dauphin County,
of murder of the second-degree, robbery-inflict serious
bodily injury and, firearms not to be carried without a
license in relation to an armed robbery on May 25, 2006. On
the same date, Reeves was sentenced to life in prison without
did not file any post-sentence motions with the Dauphin
22, 2010, Reeves filed a timely Notice of Appeal of his
judgment of sentence to the Pennsylvania Superior Court. On
July 1, 2011, the Superior Court of Pennsylvania affirmed
Reeves' judgment of sentence. Reeves did not file a
petition for allowance of appeal to the Pennsylvania Supreme
Court. Thus, on July 31, 2011, Reeves' judgment of
sentence became final.
July 31, 2011 through July 29, 2012, Reeves did not have any
properly filed appeal pending with any state court. On July
30, 2012, petitioner filed a petition for relief under the
Pennsylvania Post Conviction Relief Act ("PCRA"),
42 Pa.C.S.A. SS9541. et seq., with the
Dauphin County Court. On November 26, 2012, the Dauphin
County Court, sitting as the PCRA court, dismissed
Reeves' PCRA petition without an evidentiary hearing.
December 7, 2012, Reeves filed a notice of appeal with the
Pennsylvania Superior Court regarding the dismissal of his
PCRA petition. On November 7, 2013, the Superior Court
affirmed the Dauphin County Court's order dismissing
Reeves' PCRA petition.
then filed a petition for allowance of appeal to the
Pennsylvania Supreme Court regarding the dismissal of his