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Boone v. Gilmore

United States District Court, E.D. Pennsylvania

December 19, 2017

RASHON BOONE, Petitioner,
v.
ROBERT GILMORE, Respondent.

          ORDER

          Mitchell S. Goldberg, J.

         AND NOW, this 19th day of December, 2017, upon consideration of “Petitioner's Standard Form Writ of Habeas Corpus in Compliance With Local Civil Rule 9.3(b) and Rule 2 of the Rules Governing Section 2254” (Doc. No. 1), “Amended 2254 Petition” (Doc. No. 6), “Response to the Petition for Writ of Habeas Corpus” (Doc. No. 21), the Report and Recommendation issued by Magistrate Judge Linda K. Caracappa (Doc. No. 22), “Objections to Report and Recommendation” (Doc. No. 28) and “Response to Petitioner's Objections to the Magistrate Judge's Report and Recommendation” (Doc. No. 29), I find as follows:

         1. Following a bench trial on May 15, 2007, Petitioner was convicted of second-degree murder, robbery, criminal conspiracy, and possessing an instrument of crime. On July 10, 2007, petitioner was sentenced to life in prison for second degree murder and a concurrent term of twenty two and one-half years for the other charges. On appeal, the Pennsylvania Supreme Court vacated Petitioner's robbery conviction. Petitioner's sentence and other convictions were not disturbed. (Report pp. 1-3.)

         2. Following the denial of a petition brought under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. §§ 9541 et seq., Petitioner filed the instant, counseled habeas petition on May 12, 2015, raising three grounds for relief:

1. Petitioner's second-degree murder, robbery, and conspiracy convictions are invalid, because they are premised on a knowingly false and fabricated statement made by Monique Bell in violation of due process and fundamental fairness principles and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution;
2. Based on pre-trial evidence trial counsel developed, received, and reviewed, petitioner's second-degree murder, robbery, and conspiracy convictions are invalid under the Sixth Amendment to the United States Constitution, because trial counsel provided objectively unreasonable advice when he advised petitioner to reject three favorable plea deals; and
3. Petitioner's convictions are invalid under the Sixth Amendment to the United States Constitution, because trial counsel failed to investigate, develop, and present readily accessible evidence supporting petitioner's self-defense claim.

(See Habeas Pet. ¶¶ 13-15.)

         3. On December 15, 2015, petitioner filed a counseled amended habeas petition raising one additional ground for relief (the fourth claim):

4. PCRA counsel was ineffective for not incorporating Izaiya Davis's June 21, 2012 affidavit into petitioner's PCRA petition; petitioner's continued incarceration is unconstitutional because his convictions are predicated on what M[r]. Davis' affidavit has proven to be fundamentally unreliable testimony from Joseph Jackson and Aisha McCray, in violation of petitioner's due process rights and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

(See Am. Habeas Pet. ¶ 107.)

         4. On February 28, 2017, Magistrate Judge Linda K. Caracappa filed a Report and Recommendation which recommended that Petitioner's habeas petitions be dismissed.

         5. Petitioner failed to object to the Report and Recommendation within the applicable deadline. On March 20, 2017, I issued an Order adopting the Report and Recommendation and dismissing the habeas petition.

         6. On March 22, 2017, Petitioner's counsel filed a motion requesting that the March 20, 2017 Order be vacated and that Petitioner's right to file objections be “reinstated.” According to counsel, on March 3, 2017, he sent Petitioner a copy of the Report and Recommendation and a letter asking Petitioner whether he wanted to file objections. When counsel did not hear from Petitioner, counsel assumed that Petitioner “no longer wished to litigate his federal petition” and decided not to file objections to the Report and Recommendation. Counsel explains that he sent the March 3, 2017 letter to SCI-Coal Township but, on March ...


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