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Altawarh v. Wetzel

United States District Court, E.D. Pennsylvania

October 26, 2017

KHALID ALTAWARH, Petitioner,
v.
JOHN WETZEL, et al., Respondents.

          ORDER

          EDWARD G. SMITH, Judge

         AND NOW, this 26th day of October, 2017, after considering the petition for writ of habeas corpus (Doc. No. 1), the respondents' response thereto (Doc. No. 5), the state-court record, United States Magistrate Judge Marilyn Heffley's report and recommendation (Doc. No. 9), and the petitioner's objections to the report and recommendation (Doc. No. 12); accordingly, it is hereby ORDERED as follows:

         1. The Clerk of Court is DIRECTED to remove this action from civil suspense and RETURN it to the court's active docket;

         2. The petitioner's objections to the report and recommendation (Doc. No. 12) are OVERRULED;[1]

         3. The Honorable Marilyn Heffley's report and recommendation (Doc. No. 9) is APPROVED and ADOPTED;

         4. The petitioner's petition for writ of habeas corpus (Doc. No. 1) is DENIED;

         5. The petitioner has not made a substantial showing of the denial of a constitutional right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2); and

         6. The Clerk of Court shall mark this case as CLOSED.

---------

Notes:

[1] The court conducts a de novo review and determination of the portions of the report and recommendation by the magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b) (providing requirements for filing objections to magistrate judge's proposed findings, recommendations or report).

Altawarh first objects to Magistrate Judge Heffley's conclusion that his trial counsel was not ineffective when counsel did not object to the fact that Altawarh was sentenced for attempted first degree murder despite the Commonwealth charging him with criminal homicide. See Pet.'s Written Objs. to the R. & R. of the Magistrate (“Objs.”) at 1-5, Doc. No. 12. In support of this objection Altawarh cites Commonwealth v. Kemmerer, 584 A.2d 940 (Pa. 1991), to argue that Magistrate Judge Heffley erred by relying on Commonwealth v. Polimeni, 378 A.2d 1189 (Pa. 1977) because Kemmerer “expressly overruled” Polimeni. See Id. at 2-3. Altawarh's reliance on Kemmerer is misplaced.

In Kemmerer, the Supreme Court of Pennsylvania addressed whether the government was barred under former Pennsylvania Rule of Criminal Procedure 1120(d) from bringing a second prosecution for second degree murder, third degree murder, and voluntary manslaughter “after the first jury found the [defendant] not guilty on charges of first degree murder and involuntary manslaughter, ” but could not reach a verdict on the other charges. See Kemmerer, 584 A.2d at 941 (alteration to original). The Court explained that the issue was whether the charges of second degree murder, third degree murder, and voluntary manslaughter were “necessarily included” in the first degree murder and involuntary manslaughter charges for which the jury found the defendant not guilty. See Id. at 943 (“In the instant matter, then, we must ascertain whether the charges remaining against appellee are necessarily included in the offenses of which he has been acquitted.”). Unlike in Kemmerer, here the issue is not preclusion. Rather, the issue is whether a charge of criminal homicide under 18 Pa. C.S. § 2501 is sufficient for the jury to find the defendant guilty of first degree murder under section 2502. It is.

Not only does the language of section 2501 explicitly state that “[c]riminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter, ” but Kemmerer itself acknowledges this reality. In Kemmerer, the Court noted that the defendant was charged with “one count of criminal homicide . . . .” Id. at 940. Yet, the jury ultimately considered whether the defendant had committed first, second, or third degree murder (as well as involuntary and voluntary manslaughter). See Id. at 941-42. Whether the jury in the first case was allowed to consider first degree murder when the defendant had only been charged with criminal homicide was never at issue on appeal in Kemmerer. Rather, the issue was whether the prosecution could ...


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