United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior U.S. District Judge.
the Court are the counseled Second Amended Petition for Writ
of Habeas Corpus Under 28 U.S.C. § 2254
(“Petition”) filed on behalf of Petitioner, David
Jordan (ECF No. 36), the Report and Recommendation of United
States Magistrate Judge Cynthia Reed Eddy recommending
dismissal of the Petition (“R&R”), (ECF No.
53), and Petitioner's counseled Objections to the R&R
(ECF No. 56). Petitioner avers that counsel was
ineffective with respect to the two-day state court bench
trial that resulted in Petitioner's conviction of Third
Degree Murder. In particular, Petitioner's Objections
relate to counsel's conduct regarding forensic and other
evidence related to his defense. For the following reasons,
the Report and Recommendation will be adopted, as
supplemented, the Petition will be dismissed without an
evidentiary hearing, and a certificate of appealability will
STANDARD OF REVIEW
filing of timely objections requires the court to “make
a de novo determination of those portions of the
report or specified findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see
also Goney v. Clark, 749 F.2d 5, 6 (3d Cir. 1984). In
doing so, 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). The Court may, in the
exercise of sound judicial discretion, rely on a magistrate
judge's proposed findings and recommendations. United
States v. Raddatz, 447 U.S. 667, 676 (1980);
Goney, 749 F.2d at 7. “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,
148 (3d Cir. 2016). With regard to the portions of the
R&R to which no objections are made, the District Court
should “satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72(b), advisory committee
Petition was referred to Magistrate Judge Eddy, who issued an
R&R recommending that Petitioner's claim of
ineffective assistance of counsel be dismissed without an
evidentiary hearing. Petitioner objects to the Magistrate
Judge's recommendation that the Petition be dismissed.
His objections necessitate a de novo review of the
R&R by this Court. After such a review, the Court finds
that Petitioner's objections do not undermine the
Magistrate Judge's recommendation.
demonstrate that counsel was ineffective, a defendant must
show that counsel's performance fell below "the wide
range of professionally competent assistance" and also
that the deficient conduct prejudiced defendant.
Strickland v. Washington, 466 U.S. 668, 689 (1984).
Because both prongs must be met, the failure to establish one
or the other is fatal to an ineffective assistance claim.
See Buehl v. Vaughn, 166 F.3d 163, 169 (3d Cir.
1999) (quoting Strickland, 466 U.S. at 687). An
ineffective assistance claim may be disposed of on the ground
that the petitioner failed to meet his burden of showing
prejudice, rather than addressing both prongs.
Strickland, 466 U.S. at 697. Indeed, our Court of
Appeals has stated that on habeas review, a court “may
begin and, when dispositive, end with either of
Strickland's two prongs.” Mathias v.
Superintendent Frackville SCI, 876 F.3d 462, 477 (3d
Cir. 2017) (citations omitted). Under the prejudice prong,
the pertinent question is "whether there is a reasonable
probability that, absent the errors," the result would
have been different. Strickland, 466 U.S. at 695. To
demonstrate prejudice, a claimant must show that
counsel's errors had more than "some conceivable
effect on the outcome of the proceeding," and that
counsel's errors were “so serious as to deprive the
defendant of a fair trial.” Id. at 687.
the Magistrate Judge first considered
Strickland's prejudice prong and concluded that
Petitioner failed to show that, but for counsel's
conduct, there is a reasonable probability that the outcome
of the trial would have been different. R&R at pp. 11,
Petitioner argues that the Magistrate Judge “failed to
consider the full scope of the opinion offered by” his
expert, Charles V. Wetli, M.D., Obj. at 6, and that the
Magistrate Judge “failed to appreciate how Dr.
Wetli's opinion undermined the testimony of Dr. Omalu and
Tanail Boyd, and demonstrated the trial court's
misunderstanding of the physical evidence.”
Id. at 23. In support of his objections, Petitioner
returns to the trial testimony, counsel's closing
arguments, the trial court's rulings, Dr. Wetli's
report, and the PCRA testimony and affidavit, and repeats
arguments similar to those already addressed by the
review of the R&R and Petitioner's objections
thereto, the Court is unpersuaded by Petitioner's
arguments. The Magistrate Judge's report contains a
thorough, accurate, and well-reasoned analysis of the facts
and law pertinent to Petitioner's claims. The Court
agrees with the Magistrate Judge's conclusion that
Petitioner's ineffective assistance claim fails at the
prejudice prong, as Petitioner has not shown that there is a
reasonable probability that but for counsel's deficient
performance, the result of the trial would have been
REQUEST FOR EVIDENTIARY HEARING
request for an evidentiary hearing is denied. In cases where
the petitioner is not barred from obtaining an evidentiary
hearing by 28 U.S.C. § 2254(e)(2) or Cullen v.
Pinholster, 563 U.S. 170 (2011), the decision to grant a
hearing rests in the discretion of the court. Palmer v.
Hendricks, 592 F.3d 386, 393 (3d Cir. 2010). There is no
basis for the Court to grant Petitioner's request for an
evidentiary hearing in this case.