United States District Court, E.D. Pennsylvania
MEMORANDUM OPINION INTRODUCTION
I. QUIÑONES ALEJANDRO, J.
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.
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
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 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.
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).
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.
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 ...