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Richardson v. Kauffman

United States District Court, E.D. Pennsylvania

August 22, 2019

KENDALL C. RICHARDSON, Petitioner,
v.
SUPERINTENDENT KEVIN KAUFFMAN; THE DISTRICT ATTORNEY OF THE COUNTY OF LEHIGH; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          OPINION REPORT AND RECOMMENDATION, ECF NO. 32 - ADOPTED

          JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Kendall Richardson filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state murder conviction and life sentence. Chief Magistrate Judge Linda K. Caracappa issued a Report and Recommendation (“R&R”) concluding that the habeas claims are meritless and/or procedurally defaulted. Richardson filed objections to the R&R. After de novo review, the R&R is adopted. For the reasons set forth below and in the R&R, the habeas corpus petition is denied and dismissed.

         II. BACKGROUND

         The factual and procedural background of this case has been discussed in several prior opinions and will not be repeated in detail here. See, e.g. Order, ECF No. 6; R&Rs, ECF Nos. 11, 24; Opinions, ECF Nos. 16, 29. In sum, on June 1, 2009, Richardson was convicted following a jury trial in the Court of Common Pleas of Lehigh County of first-degree murder, attempted homicide, robbery, and recklessly endangering another person. He was sentenced to a term of life imprisonment. The conviction and sentence were affirmed on direct appeal. Richardson timely sought relief under Pennsylvania's Post-Conviction Collateral Relief Act, 42 Pa. C.S. §§ 9541-9551, (“PCRA”). PCRA relief was denied and that decision was affirmed on appeal. Richardson timely[1] filed the instant petition for writ of habeas corpus raising four claims. While the above-captioned case was pending, Richardson filed a second PCRA petition, which was dismissed by the state courts as untimely.

         III. STANDARD OF REVIEW

         When objections to a report and recommendation have been filed under 28 U.S.C. § 636(b)(1)(C), the district court must make a de novo review of those portions of the report to which specific objections are made. 28 U.S.C. § 636(b)(1)(C); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). “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.Appx. 142, 147 (3d Cir. 2016). The “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).

         IV. ANALYSIS

         Richardson objects to the factual summary in the R&R, arguing that it is misleading. See Obj. 1-4, ECF No. 37. Significantly, the Magistrate Judge took this summary directly from the PCRA opinion dated July 13, 2012. See R&R 1-3 (quoting PCRA Opn., ECF Nos. 10-5, 10-6). The factual summary is therefore presumed to be correct. See 28 U.S.C. § 2254(e)(1) (stating that “a determination of a factual issue made by a State court shall be presumed to be correct”). After de novo review, the Court does not find the summary to be misleading, let alone erroneous. See Gibbs v. Diguglielmo, No. 09-4766, 2015 U.S. Dist. LEXIS 1285, at *7-8 (E.D. Pa. Jan. 5, 2015) (“A petitioner faces a high hurdle in challenging the factual basis for a prior state-court decision rejecting a claim. The prisoner bears the burden of rebutting the state court's factual findings by clear and convincing evidence.”). Moreover, many of the allegedly misleading facts cited by Richardson, such as whether the witness described the perpetrator during her first or her second interview with police, do not alter the Court's determination on the habeas claims. See 28 U.S.C. § 2254(d)(2) (providing that relief under § 2254 “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”); Locke v. Kauffman, No. 15-520, 2016 U.S. Dist. LEXIS 9269, at *8 (E.D. Pa. Jan. 26, 2016) (holding that a “decision adjudicated on the merits in a state court that is based on a factual determination will not be overturned on factual grounds unless deemed to be objectively unreasonable[2] in light of the evidence presented in the state court proceeding”). This objection is therefore overruled.

         Richardson separates his remaining objections as they pertain to claim one, two, or three. This Court has conducted de novo review of the state and federal court records, [3] the R&R, and all of Richardson's objections, but writes separately only to address certain objections.[4] See Hill, 655 Fed.Appx. at 147 (holding that district courts are not required to make separate findings or conclusions when reviewing an R&R).

         A. Richardson's ineffective assistance claim regarding trial counsel's failure to object to the use of out-of-court statements at trial is procedurally defaulted.

         The Magistrate Judge concludes that Richardson's first claim, alleging the ineffective assistance of trial counsel for failing to object to the use of out-of-court statements to refresh the recollection of witnesses, is procedurally defaulted.[5] See R&R 10-14. The R&R explains that although PCRA counsel did not fully brief this issue, it was considered by the PCRA court and rejected on the merits. However, because it was not raised on appeal to the Pennsylvania Superior Court from the denial of PCRA relief, a failure which Martinez[6] does not excuse, the claim is procedurally defaulted. See R&R 14 (“Martinez can only excuse procedural default due to ineffective assistance of appeals counsel during ‘initial-review collateral proceedings.'” (quoting Martinez, 566 U.S. at 16)).

         In his objections, Richardson argues that the claim was not properly presented to the PCRA court because counsel's amended PCRA petition did not raise several issues he had included in the original pro se petition and, also, PCRA counsel completely failed to brief the claim.[7] See Objs. 5-7. Richardson contends that because the claim was not properly presented, the PCRA court should have required counsel to file a supplemental brief pursuant to Rules 902 and 905 of the Pennsylvania Rules of Criminal Procedure, but did not. See Id. at 7-9. Richardson asserts that this obstructed him from exhausting the claim on appeal and excuses his procedural default. See Id. at 9-13.

         Initially, the Court notes that the alleged erroneous application by a state court of its own procedural rule “is not a cognizable claim on habeas.” Tillery v. Horn, 142 Fed.Appx. 66, 68 (3d Cir. 2005) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). It is also not grounds to excuse procedural default. See Tuten v. Tennis, No. 06-1872, 2008 U.S. Dist. LEXIS 62386, at *11 (E.D. Pa. Aug. 13, 2008) (concluding that the habeas petitioner could not show cause for procedurally defaulting his claims by asserting that the state court misapplied its own procedural rules). The Court will next consider, as did the ...


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