United States District Court, E.D. Pennsylvania
the Court is Ricky Dockery's ("Petitioner") pro
se Petition for a Writ of Habeas Corpus. On November 18,
2014, Petitioner filed the instant Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No.
February 13, 2017, Magistrate Judge Henry S. Perkin issued a
Report and Recommendation ("R&R") recommending
that the Petition be denied. (Doc. No. 28 at 35.) On March 3,
2017, Petitioner filed Objections to the Magistrate
Judge's Report and Recommendation. (Doc. No. 30.) The
Court has reviewed this case de novo, including
Petitioner's Objections, and for reasons that follow, the
Court will adopt Magistrate Judge Henry S. Perkin's
Report and Recommendation to deny the Petition.
facts in this case are taken from the Report and
Recommendation of United States Magistrate Judge Henry S.
Perkin (Doc. No. 28.) and are as follows:
direct appeal, the Pennsylvania Superior Court summarized the
facts of this case as follows:
On the night of April 6, 2005, at approximately 10:50 p.m.,
Allan [sic] Johnson was shot and killed outside 1933 South
18th Street, Philadelphia[.] Ten minutes earlier,
Johnson had been walking up the 1900 block of South
18th Street towards Mifflin Street, when he
stopped to talk to Aziza Sidberry, a friend from the
neighborhood[, ] Johnson was leaning up against a van as he
spoke with Sidberry.
About ten minutes into the conversation, [Appellant] rode up
on a black and gray mountain bike in between the vehicle that
Johnson was leaning on and the car in front of him.
[Appellant] then pulled out a silver .9 [sic] millimeter
handgun and fired three shots at Johnson. Johnson was hit in
the neck and the chest, and later died. Sidberry watched
[Appellant] ride off on the bike towards Mifflin Street.
Dr. Bennett Preston, Assistant Medical Examiner of the City
of Philadelphia, conducted an autopsy on the decedent's
body which revealed that the decedent had been hit once in
the left neck and once in the left chest. Dr. Preston, who
removed ballistic evidence from the decedent's body, also
determined that the cause of death was multiple gunshot
wounds and the manner of death was a homicide.
Officer Joseph Cosgrove found three fired cartridge cases
from a .9 millimeter handgun next to the decedent. Police
Officer Kenneth James Lay of the Philadelphia Firearms
Identification Unit examined the ballistic evidence recovered
from the crime scene. Officer Lay determined that all three
fired cartridge cases were .9 millimeter Luger, manufactured
by Remington, and they were all fired from the same firearm.
Mr. Lay also examined the ballistic evidence recovered from
the decedent's body, and determined that the two bullets
that hit Johnson were fired from the same gun, and were
consistent with .9 millimeter fired projectiles.
After a defense motion in limine, the Court allowed the
introduction of 25 .9 millimeter bullets recovered from a
magazine of an UZI [sic] recovered from defendant's
resident pursuant to the execution of a search warrant. In
the magazine, Detective Steven Mostovyk found 25 rounds of .9
millimeter semiautomatic ammunition, 20 of which were
Remington manufacture. The magazine that the ammunition was
found in was not from the murder weapon.
Commonwealth v. Dockery, 1434 EDA 2007 (Pa. Super.
July 28, 2008), pp. 2-3 (quoting Trial Ct. Op., July 25,
2007, pp. 2-3); Resp., Ex. A at ...