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Tapper v. Kerestes

United States District Court, E.D. Pennsylvania

August 3, 2018

IAN TAPPER, Petitioner,
v.
JOHN KERESTES, et al., Respondents.

          ORDER

          EDUARDO C. ROBRENO, J.

         AND 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 follows:

1. The Report and Recommendation is APPROVED and ADOPTED;[1]
2. Petitioner's Objection to the Report and Recommendation is OVERRULED;[2]
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 issue;[3]and
5. The Clerk shall mark this case CLOSED.

         AND IT IS SO ORDERED.

---------

Notes:

[1] 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. § 636(b)(1)(C).

[2] 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. 43.

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 ...


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