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Vazquez v. Mooney

United States District Court, E.D. Pennsylvania

August 7, 2019

NELSON VAZQUEZ, Petitioner,
v.
VINCENT MOONEY, et al., Respondents.

          MEMORANDUM - ORDER

          C. DARNELL JONES, II J.

         AND 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 follows:

1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Objections to the R&R, (ECF No. 15), and Supplemental Objections to the R&R, (ECF No. 17), are OVERRULED.
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 appealability; and
5. The Clerk of Court is directed to CLOSE this case for statistical and all purposes.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On June 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.[1] 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 court record.

         Pending 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.

         II. STANDARD OF REVIEW

         A. Antiterrorism and Effective Death Penalty Act

         Under 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 (1983).

         B. Objections to a Report ...


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