United States District Court, E.D. Pennsylvania
TAHREEL M. TOWNSEND
ROBERT GILMORE, et al.
Legrome D. Davis Legrome D. Davis, J.
NOW, this 15th day of March 2017, upon consideration of
Petitioner Tahreel Townsend's Petition for a Writ of
Habeas Corpus (Doc. No. 1), Response in Opposition to
Petition for Writ of Habeas Corpus of the District Attorney
of Lehigh County (Doc. No. 8), Petitioner's Traverse to
Response (Doc. No 12), Magistrate Judge Marilyn Heffley's
Report and Recommendation (Doc. No. 15), Petitioner's
Objection and Reconsideration to Report and Recommendation
(Doc. No. 22), and an independent review of the record before
the Court, it is hereby ORDERED as follows:
Petitioner's Objections to the Report and Recommendation
(Doc. No. 22) are OVERRULED.
Court adopts the Report and Recommendation
(“R&R”) by Magistrate Judge Heffley, and
writes separately only to address Petitioner's objections
to the R&R. In Petitioner's objection, Petitioner
requests, generally, reconsideration of the Magistrate
Judge's R&R. When reviewing an R&R to which a
party has objected, a court must make “a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). Townsend raises
Townsend argues the Magistrate Judge “is not authorized
to hear nor recommend that Petitioner's case be
dismiss[ed].” However, under 28 U.S.C. § 636
(b)(1)(B), a judge may “designate a magistrate judge to
conduct hearings, including evidentiary hearings, and to
submit to a judge of the court proposed findings of fact and
recommendations for the disposition” petitions for writ
of habeas corpus. Here, this Court designated Magistrate
Judge Heffley to submit to the Court recommendations for the
disposition of the petition. Magistrate Judge Heffley did so,
in accordance with § 636 (b)(1)(B). Therefore,
Townsend's objection is overruled.
Townsend argues that the Magistrate Judge erred in
determining that Townsend's confession followed a valid
waiver of Townsend's Miranda rights. In support of this
claim, Townsend asserts, “Detective William J. Lake and
Glenn Granitz, Jr., arranged for another officer to arrest
[him], . . . specifically instructing the officer not to
advise [Townsend] of his [M]iranda rights.” Until now,
Townsend has not argued that his confession should have been
suppressed because he did not receive a Miranda warning.
Instead, in his direct appeal to the Pennsylvania Superior
Court and in his petition for writ of habeas corpus to
federal court, he argued that his confession should have been
suppressed because it was obtained through coercion.
See R&R, 4 11-18; Superior Court Opinion, 2-6.
Specifically, before the Pennsylvania Superior Court,
Townsend asserted he was “startled by the search of the
property and his arrest, ” and that “police had
arrested him on a simple drug charge and so he was unprepared
to answer questions about the murder of Jimmy Ortiz.”
Superior Court Opinion, 2-3. In his federal habeas corpus
petition, Townsend maintained that the officers
psychologically coerced him by depriving him of sleep and
food; he was threatened with being charged with another
homicide; and the confession was given after his arrest for a
separate, unrelated crime. R&R, 7. Magistrate Heffley
properly rejected these arguments.
Townsend's objections to the R&R, Townsend changes
his voluntariness argument, asserting, for the first time,
that he was never given a Miranda warning in the initial,
“informal, ” portion of the interview with the
police, which lasted approximately two hours. Objection and
Reconsideration to Report and Recommendation, 2-3. Townsend
also raises a challenge under Missouri v. Seibert,
542 U.S. 600, 609 (2004), asserting, “[a]t trial
detective Lake acknowledged that Townsend's ultimate
statement was largely a repeat of information obtained prior
to the [M]iranda warnings.” Id. 3.
new arguments are deemed waived because he did not present
these issues before the Magistrate Judge. “While the
Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits
de novo review by the district court if timely objections are
filed, absent compelling reasons, it does not allow parties
to raise at the district court stage new arguments or issues
that were not presented to the magistrate.” Murr v.
United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000).
“[I]ssues raised for the first time in objections to
magistrate judge's report and recommendation are deemed
waived.” United States v. Waters, 158 F.3d
933, 936 (6th Cir. 1998) (citing Marshall v. Chater,
75 F.3d 1421, 1426-27 (10th Cir. 1996))); see also Lee v.
Tennis, 2014 WL 3900230, at *7 (M.D. Pa. Aug. 8, 2014),
aff'd sub nom. Han Tak Lee v. Houtzdale SCI, 798
F.3d 159 (3d Cir. 2015); Stromberg v. Varano, 2012
WL 2849266, at *2 (E.D. Pa. July 11, 2012); Winters v.
Folino, 2012 WL 2812193, at *2 (M.D. Pa. July 10, 2012).
Petitioner has not shown any compelling reason to belatedly
raise the new arguments; these objections are deemed waived.
not waived, the objections are without merit for three main
reasons. First, Townsend fails to cite to the record or
otherwise provide support for the claim that police officers
failed to provide a Miranda warning at the beginning of the
interview. Second, the record provides no basis for the
inference that Townsend had spoken with detectives for two
hours without receiving Miranda warnings, before receiving
Miranda warnings and repeating his statement while being
recorded. Third, although Townsend cites to the trial
transcript for the assertion that Townsend's recorded
statement was largely a repeat of information he had said to
officers, Townsend mischaracterizes the transcript. Detective
Lake testifies to the audio recording made of Townsend's
statement, stating: “When Mr. Townsend first came into
the interview room with us, we spoke to him without any audio
recording. This lasted for approximately two hours . . . .
[H]is story had actually changed during that time, and
progressed. We asked Mr. Townsend if he would be willing to
memorialize his statement in some fashion. He advised us that
he would prefer to go on tape . . . which we did.”
Notes of Testimony, vol. III, 150:17-151:4. Here, Detective
Lake testifies that Townsend agreed to repeat his statement
after the audio recording began, not that Townsend agreed to
repeat his statement after being given his Miranda warnings.
Accordingly, Townsend's objection is overruled.
Report and Recommendation (Doc. No. 15) is APPROVED and
petition for a writ of habeas corpus (Doc. No. 1) is
DISMISSED without an evidentiary hearing. See Campbell v.
Vaughn, 209 F.3d 280, 287 (3d Cir. 2000).
certificate of appealability shall issue because reasonable
jurists would not debate the correctness of this Court's
ruling and Petitioner has failed to make a substantial
showing of the denial of a ...