United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
NOW, this 3rd day of
August, 2018, after review of the Report and
Recommendation of United States Magistrate Judge Marilyn
Heffley (ECF No. 40) and Petitioner's objection thereto
(ECF No. 43), it is hereby ORDERED as
1. The Report and Recommendation is APPROVED
2. Petitioner's Objection to the Report and
Recommendation is OVERRULED;
3. The Petition for a Writ of Habeas Corpus (ECF No. 1) is
DENIED and DISMISSED WITH
PREJUDICE without an evidentiary hearing;
4. A certificate of appealability shall not
5. The Clerk shall mark this case CLOSED.
IT IS SO ORDERED.
 A district conducts a de novo review
and determination of the portions of the report and
recommendation by a 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). “District Courts,
however, are not required to make any separate findings or
conclusions when reviewing a Magistrate Judge's
recommendation de novo under 28 U.S.C. § 636(b).”
Hill v. Barnacle, 655 Fed. App'x 142, 147 (3d
Cir. 2016). The district “court may accept, reject, or
modify, in whole or in part, the findings and
recommendations” contained in the report. 28 U.S.C.
 Petitioner brings one claim for habeas
relief: that “Collateral Estoppel barred retrial for
the remaining Robbery count and/or barred evidence related to
acquitted counts.” Habeas Pet. at 5, ECF No. 1.
Specifically, he contends that the acquittals of attempted
murder, aggravated assault, and possessing an instrument of
crime, necessarily decided issues - in his favor - that were
central to his conviction, by a second jury, of robbery.
Magistrate Judge Marilyn Heffley filed a report and
recommendation (“R&R”) that the petition be
denied with prejudice without an evidentiary hearing. ECF No.
13. The Court rejected the R&R because it did not include
a review of the trial court records in accordance with
Ashe v. Swenson, 397 U.S. 436, 444-46 (1970). See
ECF No. 17. In the same Order, the Court remanded the case
back to Judge Heffley for a second R&R. Id.
Judge Heffley then filed the instant, second R&R, ECF No.
40, to which Petitioner filed an objection. ECF No.
In his objection, Petitioner argues that that the
second R&R, ECF No. 40, fails to include the
Ashe analysis that was missing in the initial
R&R, ECF No. 13. See Obj., ECF No. 43. This objection it
is without merit.
The R&R, after “examining the record of
[the] prior proceeding, taking into account the pleadings,
evidence, charge, and other relevant matter, ”
Ashe, 397 U.S. at 444, correctly concluded that the
first jury was never asked to make a determination as to
whether Petitioner had threatened the victim with, or put him
in fear of, immediate bodily injury. See R&R 20, ECF No.
40. In contrast, the second jury “could have grounded
its verdict upon” a determination that Petitioner
threatened the victim with, or put him in fear of, immediate
bodily injury, which is “an issue other than that which
the defendant seeks to foreclose from consideration”
United States v. Rigas,605 F.3d 194, 218 (3d Cir.
2010) (quoting Ashe, 397 U.S. at 444), i.e. the use
of a gun. Accordingly, Petitioner has not met his burden to
show that the threat or fear of such injury was an issue