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Eckert v. Grioux

United States District Court, E.D. Pennsylvania

January 12, 2017

DAVID ERKERT Petitioner-pro se
NANCY GIROUX, et al. Respondents



         Petitioner David Erkert (“Petitioner” or “Erkert”), a Pennsylvania state prisoner who is proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and asserts that his trial, appellate, and post-conviction relief counsel were ineffective. [ECF 1]. On November 12, 2015, in accordance with Title 28 U.S.C § 636(b)(1)(A) and Local Civil Rule 72.1.IV(c), the habeas corpus petition was referred to United States Magistrate Judge Timothy R. Rice for a Report and Recommendation (“R&R”). [ECF 2]. On April 29, 2016, Magistrate Judge Rice issued the R&R, in which he recommended that the petition for a writ of habeas corpus be denied. [ECF 9]. Petitioner filed timely objections to the R&R. [ECF 11]. This matter is ripe for a de novo determination of the objections to portions of the report.

         After a thorough de novo review of the state court record, the habeas corpus petition, the memorandum of law in support of the habeas corpus petition, [ECF 6], the R&R, and Petitioner's specific objections, for the reasons stated herein, Petitioner's objections are overruled, the R&R is approved and adopted, and the petition for a writ of habeas corpus is denied.[1]


         Because the R&R provides a thorough summary of the facts in this matter, this Court will only highlight the relevant evidence necessary to address Petitioner's objections. Succinctly, the facts are:

In February 2004, Petitioner was indicted in the Delaware County Court of Common Pleas on two cases: (1) one involving three charges of involuntarily deviant sexual intercourse (the “IDSI case”); and (2) the other involving attempted murder, aggravated assault, terroristic threats, retaliation against a witness, and possession of a weapon (the “attempted murder case”). In December 2005, the trial court consolidated the two cases. In March 2006, Petitioner was tried before a jury which was presided over by the Honorable Ann Osborne. Briefly, the pertinent evidence presented at trial is as follows:
In the summer of 2003, 16-year-old W.M., his older brother, and his brother's girlfriend went to Erkert's home to consume alcohol. Erkert, who was 36, was friends with W.M.'s brother and some of W.M.'s friends. After drinking, W.M. passed out and awoke to find Erkert on top of him performing oral sex. When W.M. told him to stop, Erkert punched him and continued to sexually assault him. Erkert took W.M. home and threatened to hurt him if he told anyone about the incident. Erkert sexually assaulted W.M. twice more in 2003.
In early 2004, W.M. told his father, M.M., about the sexual assaults by Erkert. W.M. and M.M. went to the police station where W.M. provided a statement to Detective Beese about the sexual assaults. The police attempted to contact Erkert about the charges, but could not locate him. Late one night approximately one week later, Erkert broke into M.M. and W.M.'s home armed with a machete. Erkert threatened to kill M.M. and struck him with the machete. He also attempted to locate W.M., who was hiding in a closet. M.M. eventually restrained Erkert until the police arrived.
Erkert was arrested and, a few days later, provided a statement to Detective Beese. Erkert admitted to having oral sex with W.M. on three occasions, but stated W.M. had initiated the sex and consented. He further admitted to going to W.M.'s home late one night to speak to W.M. about his false accusations to the police. He said he was not in the right state of mind and brought a machete for his protection.
During the voir dire process, a potential juror, Ms. Kohler, stated that Detective Beese, a witness for the prosecution, was a close family friend and that despite this association, she could be fair and impartial. Neither the prosecutor nor defense counsel moved to strike or challenge Ms. Kohler's qualifications during their respective selection process. Ms. Kohler was selected as an alternate juror. On the third day of trial, a juror became unavailable and Ms. Kohler was substituted in place of said juror. Prior to being seated, however, the trial judge again questioned Ms. Kohler regarding her relationship with Detective Beese. Ms. Kohler stated that Detective Beese lived near her and when she was younger she had an affectionate relationship with him, and had named her cat after him. She reiterated that her relationship with Detective Beese would not affect her ability to be fair and impartial. Again, neither party asked any questions or objected to her serving on the jury.
At the conclusion of his trial, Petitioner was convicted of attempted murder, two counts of aggravated assault, possession of a weapon, retaliation against a witness, burglary, and three counts of involuntarily deviant sexual intercourse. He was subsequently sentenced to an aggregate term of thirty-five and one-half (35.5) to seventy-three (73) years of incarceration, to be followed by thirty-five (35) years of probation.[2]

         On October 20, 2015, Petitioner timely filed the underlying pro se petition for writ of habeas corpus. [ECF 1]. In his habeas petition, Petitioner asserts ineffective assistance of counsel claims, claiming that: (1) trial counsel was ineffective for causing him to waive his right to testify; (2) trial counsel was ineffective for failing to strike Ms. Kohler, a biased juror; and (3) his PCRA counsel was ineffective for failing to argue that appellate counsel was ineffective for failing to argue that the consolidation of his IDSI case with the attempted murder case violated his constitutional right to testify at trial. (Id. at 5-9).

         As stated, the habeas petition was referred to Magistrate Judge Rice, who submitted a well-reasoned R&R addressing Petitioner's habeas claims and recommending that the petition be denied. Petitioner filed timely objections to the R&R.


         Where objections to an R&R are filed, the court must conduct a de novo review of the contested portions of the R&R, see Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided that the objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 607 (3d Cir. 1984). In conducting its de novo determination, a court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. 28 U.S.C. § 636(b)(1). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. United States v. Raddatz, 447 U.S. 667, 675-76 (1980); Goney, 749 F.2d at 7. Objections which merely rehash an argument presented to and considered by a magistrate judge are not entitled to de novo review. Becker v. Tennis, 2011 WL 2550544, at *1 n.3 (E.D. Pa. June 23, 2011) (court declining to address contentions included in petitioner's objections, concluding that they are “nothing more than a restatement of the underlying claims contained in his petition.”) (citing Morgan v. Astrue, 2009 WL 3541001, at *3 ...

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