United States District Court, E.D. Pennsylvania
MITCHELL S. GOLDBERG, J.
NOW, this 5th day of August, 2019, upon
consideration of the Honorable Timothy R. Rice's Report
and Recommendation (ECF No. 13), Petitioner's objections
filed thereto (ECF No. 19), and Respondents' response
(ECF No. 23), I find as follows:
Factual and Procedural Background
June 2009, Petitioner, Tyreese Copper, was tried for the
shooting death of Reginald James in Philadelphia County.
Commonwealth v. Copper, Crim. No.
CP-51-CR-0007129-2009 (Phila. C.C.P. 2009). The evidence
established that, on February 18, 2009, James and Davina
Sparks were together in a car when an individual approached
and tried to open the passenger door. When James got out of
the car, another man emerged and shot James several times.
James was taken to a nearby hospital, where he was pronounced
Petitioner's father, Anderson, told the police that he
saw Petitioner shoot James. Another witness told the police
that, a few days prior to the murder, James broke into
Petitioner's home and stole a safe filled with money.
Sparks also identified Petitioner as the shooter during a
photo array one day after the murder.
Prior to trial, the state court held a hearing on
Petitioner's Motion to Suppress, which concerned
Sparks's identification of Petitioner during the photo
array. While Sparks initially identified Reginald Span as one
of the shooters, she ultimately identified Petitioner as the
shooter. Sparks later claimed that the detectives told her
before showing her the photo array that “Spahn was the
wrong guy, ” and that the “right guy” was
in the photo array. The court heard and credited the
testimony from the detectives that such statement never
Petitioner was convicted of first-degree murder, acquitted of
carrying a firearm without a license and possession of an
instrument of crime, and sentenced to life in prison. The
Pennsylvania Superior Court affirmed the conviction and
sentence. Petitioner did not seek review from the
Pennsylvania Supreme Court. On March 19, 2015, Petitioner
filed a petition for relief under the Pennsylvania
Post-Conviction Relief Act (“PCRA”). In May 2017,
the PCRA court dismissed the petition, and the Pennsylvania
Superior Court affirmed.
Petitioner timely filed a habeas corpus petition, alleging
that trial counsel was ineffective for the following reasons:
(a) failing to object to the medical examiner's
testimony; (b) failing to object to the clearing of the
courtroom, (c) failing to raise a due process objection to
Spark's photo array identification, (d) failing to hire
an eyewitness identification expert, (e) failing to challenge
Anderson's police statement, (f) failing to object to the
Government's closing argument, (g) failing to hire a
ballistics expert, (h) failing to more specifically object to
the jury instruction, and (i) failing to investigate
Spark's religious beliefs. Petitioner also argues that
the evidence was insufficient to support his first-degree
murder conviction. Finally, Petitioner raises a due process
claim, alleging that the trial court refused to grant a
mistrial and gave an improper jury instruction. (Pet., ECF
matter was referred to the Honorable Timothy R. Rice for a
report and recommendation (“R&R”). (Order,
Oct. 30, 2018, ECF No. 3.) After extensive briefing, oral
argument, and evidentiary hearings, Judge Rice issued his
R&R on April 3, 2019. (R&R, Apr. 3, 2019, ECF No.
13.) Petitioner filed objections on May 20, 2019, to which
the Government responded on June 4, 2019. (ECF Nos. 19,
district court conducts a de novo review where an
objection to the report and recommendation is made. Where no
objection is filed, the review is “clear error.”
See Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984).
Petitioner filed twelve objections. The United States Court
of Appeals for the Third Circuit has held that providing
complete de novo review where only a general
objection is offered “would undermine the efficiency
the magistrate system was meant to contribute to the judicial
process.” Goney v. Clark, 749 F.2d 5, 6 (3d
Cir. 1984). Thus, if objections to a report “merely
rehash an argument presented to and considered by a
magistrate judge, ” de novo review is not
required. Gray v. Delbiaso, No. 14-4902, 2017 WL
2834361, at *4 (E.D. Pa. June 30, 2017); see also King v.
Bickell, No. 13-2118, 2017 WL 1178068, at *5 (M.D. Pa.
Mar. 30, 2017) (holding that argument that “is merely a
rehashing of the arguments” already made to the
Magistrate Judge are not entitled to de novo
review); Davis v. Wetzel, No. 14-4160, 2017 WL
264061, at *4 (E.D. Pa. Jan. 20, 2017) (same)). As nine of
Petitioner's Objections are a precise “rehashing of
the arguments” presented to and considered by the
Magistrate Judge, I decline to give them de novo
However, the following two objections cite to additional law,
and I ...