United States District Court, E.D. Pennsylvania
KENDALL C. RICHARDSON, Petitioner,
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 -
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
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.
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 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.
STANDARD OF REVIEW
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).
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 in light of the evidence presented in the
state court proceeding”). This objection is therefore
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,  the R&R, and
all of Richardson's objections, but writes separately
only to address certain objections. 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).
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.
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. 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 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)).
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. 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.
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