United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Ellison filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C.§ 2254 on February 16, 2016. On February 28,
2017, Magistrate Judge Marilyn Heffley issued a Report and
Recommendation (R&R) recommending that the petition be
denied. (ECF No. 19.) Ellison did not file any objections and
the Court approved and adopted the R&R after reviewing it
for clear error. (ECF No. 22.) Ellison subsequently moved for
relief from final judgment, alleging that he never received a
copy of the R&R in prison and thus was unable to file
timely objections. (ECF No. 23.) The Court granted
Ellison's motion, vacated its Order and reopened the case
to allow Ellison to submit objections. (ECF No. 27.)
Upon consideration of the record, Magistrate Judge
Heffley's R&R, and Ellison's objections thereto,
the Court adopts the R&R and denies Ellison's
was convicted of third-degree murder and possessing an
instrument of crime in the Court of Common Pleas of
Philadelphia County on January 15, 2010. Commonwealth v.
Ellison, No. 3191 EDA 2014 (Pa. Ct. Com. Pl. Phila.
Cnty. Feb. 27, 2015) [hereinafter “PCRA Rule 1925
Op.”]. The court sentenced Ellison to seventeen
and a half to thirty-five years' imprisonment for
third-degree murder and two terms, running concurrently, of
one-half to five years' imprisonment for possessing an
instrument of crime on April 1, 2010. Id. Ellison
filed a direct appeal and the Pennsylvania Superior Court
affirmed the trial court's decision on February 18, 2011.
Id. Subsequently, Ellison petitioned for an
allowance of appeal which the Pennsylvania Supreme Court
denied on August 11, 2011. Id.
filed a pro se petition under Pennsylvania's
Post Conviction Relief Act (“PCRA”) on June 25,
2012. Id. at 1-2. After counsel was appointed,
Ellison filed an amended PCRA petition on November 19, 2013.
Id. at 2. The PCRA court dismissed the amended
petition for lack of merit on October 31, 2014.
Commonwealth v. Ellison, No. MC-51-CR-0006190-2008
(Pa. Ct. Com. Pl. Phila. Cnty. Oct. 31, 2014). Ellison
appealed and the Pennsylvania Superior Court affirmed. PCRA
Rule 1925 Op. at 5. The Pennsylvania Supreme Court denied
Ellison's petition for allowance of appeal on December
31, 2015. Commonwealth v. Ellison, 114 A.3d 1038
of habeas corpus shall not be granted unless the 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 Supreme
Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Additionally, before a federal court can grant a petition for
a writ of habeas corpus, the petitioner must exhaust the
remedies available in state court. Lambert v. United
States, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28
U.S.C. § 2254(b)(1)(A). If a petitioner does not exhaust
state remedies, the petitioner must “demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991).
facts of this case are set forth in detail in Judge
Heffley's R&R and need not be repeated here.
“[F]or the portion of the R&R to which no objection
[is] made, the Court reviews the R&R for clear
error.” Harris v. Mahally, No. 14-2879, 2016
WL 4440337, at *4 (E.D. Pa. Aug. 22, 2016). The Court reviews
de novo the specific portions of the R&R to
which a party objects. See 28 U.S.C. §
636(b)(1); see also Cont'l Cas. Co. v. Dominick
D'Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998).
The Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
Additionally, Local Rule of Civil Procedure 72.1 IV(c)
states: “All issues and evidence shall be presented to
the magistrate judges, and unless the interest of justice
requires it, new issues and evidence shall not be raised
after the filing of the Magistrate Judge's Report and
Recommendation if they could have been presented to the
magistrate judge.” See also Fowler v.
Mooney, No. 14-1768, 2015 WL 6955434, at *1-2 (E.D. Pa.
Nov. 9, 2015); Yarbrough v. Klopotoski, No. 09-336,
2009 WL 4673862, at *1-2 (E.D. Pa. Dec. 8, 2009). Here,
Ellison has two objections, both regarding the
“sufficiency of the evidence claims.” (Pet.'s
Objections, at 2, ECF No. 28.) He did not present either
issue to Magistrate Judge Heffley and is not permitted to
raise them now unless the interest of justice requires it.
first objection, Ellison argues that trial counsel should
have impeached witness Anna Cannon. Ellison's objection
is without merit and the Court agrees with the R&R that
in light of the other evidence presented, there is no
reasonable probability that the result of the trial would
have been different had trial counsel impeached Ms. Cannon as
Ellison feels he should have. The R&R states
“Cannon made her identification from the photographic
array at the hospital on the night the victim was murdered,
one day after she observed Ellison threaten the
victim.” (R&R, at 13, ECF No. 19.) The trial
transcript confirms this. Specifically, Cannon testified that
she observed Ellison threaten the victim on October 17, 2007.
(Commonwealth v. Ellison, No CP-51-CR-0008489-2008
(Pa. Ct. Com. Pl. Phila. Cnty. Jan. 13, 2010), Trial Tr. vol.
1, 92:10-94:7, Jan. 13, 2010) [hereinafter “Trial
Tr.”]. The victim was shot on October 18, 2007. (Trial
Tr. vol. 1, 17:13-20:16.) When Cannon arrived at the hospital
that night, she viewed a photo book and identified Ellison as
the person who threatened the victim. (Id. 97:6-20.)
On cross-examination, counsel clarified that Cannon viewed
the photos at the hospital. (Id. 100:15-21.) In his
objection, Ellison asserts that “the Statement of
Cannon states that she identified [Ellison] from a photo
array on the same date that the victim was murdered.”
(Pet.'s Objections, at 2.) Ellison argues that there is a
conflict between Cannon's testimony and Cannon's
statement regarding when she identified him and that as a
result, trial counsel had an obligation to impeach the
witness which “could have led to the determination that
Cannon's statement was fabricated.” (Id.)
There is no conflict between these statements. Both
statements indicate that Cannon identified Ellison from the
photo array on the night he was shot, once Cannon was at the
second objection, Ellison argues that trial counsel failed to
“raise a sufficiency of the evidence claim”
because of a conflict between Police Officer Centeno's
testimony and that of Patricia Chapman. Again, the objection
is meritless. Ellison argues that between the two accounts,
there is a conflict regarding when the police arrived on the
scene. (Pet.'s Objections, at 4.) Ellison suggests that
if the police were on the scene before Chapman arrived, they
could have witnessed the victim allegedly telling Chapman
that the Petitioner, “Poodie, ” shot him.
(Id.) Ellison alleges that his trial counsel should
have objected and that the evidence was “misapprehended
and/or overlooked by this Honorable District Court.”
(Id.) The testimony does not conflict.
asserts that Officer Centeno testified that the victim's
family was on the scene when Officer Centeno arrived.
(Pet.'s Objections, at 4.) Officer Centeno did testify
that when he arrived, he helped three other officers place
the victim in the back of the police car. (Trial Tr. vol. 1,
18:10-19:14.) Officer Centeno also stated that there were
some family members standing around. He knew that because one
of the individuals stated “that's my brother”
in reference to the victim. (Id.) Chapman testified
that when she arrived at the scene, she saw her brother, the
victim, lying on the ground holding his stomach with a couple
of people around him. (Id. 111:8-18.) At that point,
Chapman asked her brother what happened to which he replied
that Poodie shot him. (Id. 111:14-25.) After that,
the police arrived on the scene and Chapman told the police
to get her brother to the hospital as soon as possible.
(Id. 114:1-7.) On cross-examination, Chapman
confirmed this series of events. She testified that when she
arrived on the scene, other civilians were present, but the
police were not there yet- they were just pulling up.