United States District Court, E.D. Pennsylvania
BARCLAY SURRICK, J.
before the Court is Petitioner Darryl Newkirk's pro
se Petition for Writ of Habeas Corpus, pursuant to 28
U.S.C. § 2254 (ECF No. 1). Petitioner seeks relief on
the grounds that he was denied the effective assistance of
counsel. The Honorable Carol Sandra Moore Wells, United
States Magistrate Judge, prepared a Report and Recommendation
(“R&R”), pursuant to 28 U.S.C. §
636(b)(1)(B). (R&R, ECF No. 12.) Petitioner has filed
objections to the Report and Recommendation. (Objections, ECF
No. 13.) For the following reasons, the Report and
Recommendation of the Magistrate Judge will be approved and
adopted, and the Petition for writ of Habeas Corpus will be
denied without an evidentiary hearing.
Pennsylvania Superior Court summarized the facts leading to
Petitioner's conviction as follows:
This case began on April 13, 1998. Around 2:30 p.m., when
Holly James and Lois DeVita returned to their home in the Old
City section of Philadelphia, [Petitioner] greeted them. He
was their cleaning person. After gardening for about an hour,
Ms. James went to her room to lie down; she put music on and
closed the door. At some point while Ms. James was upstairs
resting, [Petitioner] admitted co-defendant Darryl Robinson
(“Robinson”) into the house. [Petitioner] then
took Ms. DeVita to the basement where he bound her with
extension cords, clothing and duct tape, beat her, covered
her face and head with a thick towel, and taped a garbage bag
over her head. He also sexually assaulted her with a hard,
blunt object. Later, when Ms. James came downstairs, Robinson
grabbed her, took her to the basement, and bound her with
extension cords and duct tape. [Petitioner] and Robinson fled
in Ms. DeVita's vehicle. Between 7:00 and 7:30 p.m., Ms.
James was able to free herself. She discovered Ms.
Devita's body, tried to perform CPR, but Ms. DeVita was
dead. Ms. James then ran to a neighbor's house for help.
Ms. DeVita had died between 4:00 and 5:00 p.m. of
asphyxiation caused by the electrical cord being tied tightly
around her neck.
[Petitioner] and Robinson stole a MAC card, money, and Ms.
DeVita's Toyota RAV 4, in which Robinson drove them to
southwest Philadelphia. Around midnight, when [Petitioner]
was driving the vehicle, he rear-ended another car. He and
Robinson fled the accident scene, left the vehicle a few
blocks away, and then traveled to the Frankford section of
the city where they hid in the apartment of Shera Jackson,
who was the girlfriend of Roland Thomas. Mr. Thomas was a
friend of [Petitioner] and Robinson.
On April 17, 1998, Officer Joseph Domico received information
from [Petitioner's] ex-girlfriend that he could be found
in the Frankford section of the city. Officer Domico went to
that area and saw [Petitioner] at a payphone. The officer
called [Petitioner] over to the patrol car, but [Petitioner]
ran and Officer Domico pursued him on foot. [Petitioner]
escaped by jumping over a five foot fence and dropping
fifteen feet to the street below. The next day, Officer
Domico received information that [Petitioner] might be found
in Shera Jackson's apartment in the Frankford section of
the city. Officer Domico and a more experienced officer,
Officer Robert Walls, went to the address where Officer Walls
knocked on the door and identified himself. The officers
heard several male voices from inside the apartment. A few
minutes later Shera Jackson answered the door and gave the
officers permission to enter and search the apartment.
Officer Walls found [Petitioner] and Robinson hiding in a
Commonwealth v. Newkirk, No. 1391 EDA 2003, slip op.
at 1-3 (Pa. Super. Ct. 2005). Following his arrest,
Petitioner provided police with oral and written statements
in which he admitted to being present for the murder, and
participating in the robbery.
to trial in the Court of Common Pleas of Philadelphia County,
Petitioner filed a motion to suppress his statements to
police. The Honorable Jane C. Greenspan denied the motion. On
November 18, 1999, a jury found Petitioner guilty of first
degree murder, burglary, involuntary deviate sexual
intercourse, criminal conspiracy, and two counts of robbery.
On February 8, 2000, Petitioner received a mandatory life
sentence on the murder charge, and additional prison terms to
be served consecutively for burglary, robbery, criminal
conspiracy, and involuntary deviate sexual intercourse.
Petitioner did not initiate a timely direct appeal, the Court
of Common Pleas granted leave to file a direct appeal
nunc pro tunc. Petitioner filed a direct appeal in
the Pennsylvania Superior Court, complaining that the trial
court erred by: (1) denying his motion to suppress his oral
statements to the police; (2) allowing a witness, Roland
Thomas, to testify to Petitioner's planning of the
robbery; and (3) permitting the Commonwealth to impeach
Thomas' testimony. The Superior Court affirmed
Petitioner's conviction. Commonwealth v.
Newkirk, 883 A.2d 692 (Pa. Super. Ct. 2005). The
Pennsylvania Supreme Court denied Petitioner's request
for review on December 29, 2005. Commonwealth v.
Newkirk, 892 A.2d 822 (Pa. 2005). Petitioner did not
seek certiorari in the United States Supreme Court.
April 27, 2006, Petitioner filed a pro se petition
for collateral relief pursuant to Pennsylvania's Post
Conviction Relief Act (“PCRA”), 42 Pa. Cons.
Stat. Ann. § 9541 et seq.., in the Court of
Common Pleas. Counsel was appointed, and subsequently
requested the court's permission to withdraw, citing a
lack of meritorious appellate claims. The court then notified
Petitioner of its intention to dismiss the petition without a
hearing. Petitioner filed a pro se objection,
asserting ineffective assistance of trial counsel for failing
to investigate and raise an alibi defense. Petitioner also
claimed that both trial and PCRA counsel had been deficient
in failing to investigate a claim of racial animus in jury
selection, pursuant to Batson v. Kentucky, 476 U.S.
79 (1986). On June 12, 2007, the court dismissed
Petitioner's PCRA Petition and granted counsel leave to
filed an appeal of the dismissal of his PCRA Petition to the
Pennsylvania Superior Court, arguing that: (1) the Court of
Common Pleas abused its discretion in dismissing his PCRA
Petition and letting his PCRA counsel withdraw; and (2) his
PCRA counsel was ineffective for seeking to withdraw. The
Pennsylvania Superior Court affirmed the trial court's
dismissal on January 27, 2009. Commonwealth v.
Newkirk, 968 A.2d 794 (Pa. Super. Ct. 2009). Petitioner
did not seek further review.
February 19, 2009,  Petitioner filed the instant Petition
pursuant to 28 U.S.C. § 2254. (Pet. 11, ECF No. 1.)
Petitioner raises four claims. First, Petitioner asserts that
his trial counsel was ineffective for failing to raise a
claim under Batson. Second, Petitioner argues that
his trial counsel was ineffective for failing to present an
alibi defense. Third, Petitioner argues that his trial
counsel was ineffective for failing to litigate an alleged
discovery violation under Brady v. Maryland, 373
U.S. 83 (1963). Finally, Petitioner claims that his direct
appellate counsel was ineffective for failing to argue that
the weight and sufficiency of the evidence was inadequate to
justify Petitioner's conviction for first-degree murder.
Commonwealth responds that Petitioner's claims are
procedurally defaulted and that they should be dismissed.
Alternatively, the Commonwealth argues that the claims lack
merit and should be denied. The R&R recommended
dismissing Petitioner's fourth claim as procedurally
defaulted, and denying Petitioner's first three claims as
meritless. In response, Petitioner timely filed Objections,
which restated his first three grounds for habeas relief
while abandoning his fourth claim.
De Novo Review of a Report and Recommendation
to 28 U.S.C. § 636(b)(1)(B) and the local rules of this
Court, a district judge may designate a magistrate judge to
file proposed findings and recommendations. Any party may
file written objections in response to those findings.
Id. § 636(b)(1)(C). In the Eastern District of
Pennsylvania, Local Rule 72.1.IV(b) governs a
petitioner's objections to a magistrate judge's
Report and Recommendation. Under this Rule, a petitioner must
“specifically identify the portions of the proposed
findings, recommendations or report to which objection is
made and the basis for such objections . . . .”
Savior v. Superintendent of Huntingdon SCI, No.
11-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012)
(quoting Local R. Civ. P. 72.1.IV(b)). Once objections are
filed, the district judge “shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. [The judge] may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1)(C). The Third
Circuit has “assumed that the normal practice of the
district judge is to give some reasoned consideration to the
magistrate's report before adopting it as the decision of
the court.” Henderson v. Carlson, 812 F.2d
874, 878 (3d Cir. 1987).
Habeas Review under 28 U.S.C. § 2254
claim adjudicated by a state court is considered under the
standard of review established by the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
This standard provides that a federal district court cannot
grant a writ of habeas corpus on a previously adjudicated
claim, unless the state court's adjudication of the
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the ...