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Newkirk v. Lawler

United States District Court, E.D. Pennsylvania

March 10, 2017



          R. BARCLAY SURRICK, J.

         Presently 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.


         The 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 closet.

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.

         Prior 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.

         Although 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.

         On 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.[1] 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 withdraw.

         Petitioner 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.

         On February 19, 2009, [2] 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. (Pet. 9.)

         The 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.


         A. De Novo Review of a Report and Recommendation

         Pursuant 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).

         B. Habeas Review under 28 U.S.C. § 2254

         Any 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 claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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