United States District Court, E.D. Pennsylvania
MEMORANDUM - ORDER
DARNELL JONES, II J.
NOW, this 7th day of August, 2019, upon careful and
independent consideration of the record in this case, the
Report and Recommendation of the Honorable David R.
Strawbridge, United States Magistrate Judge
(“R&R”), (ECF No. 9), Petitioner's
Objections and Supplemental Objections to the Report and
Recommendation, (ECF Nos. 15, 17), and Respondents'
Opposition thereto (ECF No. 23), it is hereby ORDERED as
1. The Report and Recommendation is APPROVED
2. The Objections to the R&R, (ECF No. 15), and
Supplemental Objections to the R&R, (ECF No. 17), are
3. The Petition for Writ of Habeas Corpus, (ECF No. 1), is
DENIED WITH PREJUDICE;
4. There is no probable cause to issue a certificate of
5. The Clerk of Court is directed to CLOSE
this case for statistical and all purposes.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
13, 2017, pro se Petitioner Nelson Vazquez filed a
timely and exhausted Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (the
“Petition”) alleging that insufficient evidence
supported his state court convictions. Petition (ECF No. 1).
Specifically, Mr. Vazquez argues that his convictions for
second-degree murder, attempted murder, conspiracy to commit
robbery, robbery, aggravated assault, and various firearm
offenses rested on “inherently unreliable, inconsistent
and contradictory” eyewitness testimony. Petition, p.
7; see also R&R, p. 1. Consequently, he seeks
habeas relief based on his contention that his convictions
were not supported by sufficient evidence. R&R, at 1
(ECF No. 9); see also Petition, p. 4. On July 17,
2017, the Court referred the Petition to the Honorable David
R. Strawbridge for a report and recommendation
(“R&R). (ECF No. 2). He recommended that the
Petition be dismissed after reviewing it, the
Respondents' Answer thereto (ECF No. 8), and the state
before the Court are Mr. Vazquez's Objections and
Supplemental Objections (ECF Nos. 15, 17) to the R&R (ECF
No. 9). The Court originally adopted the R&R after Mr.
Vazquez failed to timely file objections thereto in
accordance with Local Rule 72.1 IV(b). (ECF No. 12). The
Court later vacated that Order based upon Mr. Vazquez's
motion filed under Rule 60(b)(6), wherein he asserted that he
did not timely file objections because he had never received
the R&R. (ECF No. 13, p. 2). Upon a review of the
R&R, the Objections to the R&R (the
“Objections”), Supplemental Objections to the
R&R (“Supplemental Objections”), and
Respondents' Opposition to the Objections and
Supplemental Objections (ECF No. 23), the Court will overrule
the Objections and Supplemental Objections and approve and
adopt the R&R in toto.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), codified at 28 U.S.C. § 2254(d),
a federal court may grant habeas relief where the state
court's adjudication of the claims “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 “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceedings.” 28 U.S.C. § 2254(d). Any factual
determinations made by the state court “shall be
presumed correct” and the petitioner must rebut this
presumption with a showing of “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). Moreover, and
importantly, “credibility findings may not be
redetermined on habeas review.” Kirnon v.
Klopotoski, 620 F.Supp.2d 674, 699 (E.D. Pa. 2008)
(citing Marshall v. Lonberger, 459 U.S. 422, 434
Objections to a Report ...