United States District Court, E.D. Pennsylvania
C. DARNELL JONES, II J.
NOW, this 17th day of September, 2019,
upon careful and independent consideration of the Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(ECF No. 1-1), the Report and Recommendation of the Honorable
Henry S. Perkin, United States Magistrate Judge (ECF No. 23),
Petitioner's Objections to the Report and Recommendation
(ECF No. 27) and Petitioner's Motion to Supplement (ECF
No. 29), it is hereby ORDERED as follows:
1. This case is returned to ACTIVE
2. The Report and Recommendation (ECF No. 23) is
APPROVED and ADOPTED.
3. The Objections to the Report and Recommendation are
construed with the Motion to Supplement (ECF Nos. 27, 29) and
4. The Petition for Writ of Habeas Corpus (ECF No. 1-1) is
DENIED WITH PREJUDICE.
5. There is no basis for the issuance of a certificate of
6. The Clerk of Court is directed to CLOSE
this case for statistical and all other purposes.
Background and Procedural History
Ernest Wesley Rykard (“Rykard”) does not object
to the recitation of the relevant factual and procedural
background set forth in the Report and Recommendation
(“R&R”). See Obj. R&R (ECF No.
27); see also Mot. Supp. (ECF NO. 29). As such, and
upon independent verification of the record, this Court
adopts the following facts and procedural history set forth
by Magistrate Judge Perkin.
Here, the record reveals that Ms. Rosario-Casanova testified
in detail as to [Petitioner's] involvement in the
formulation of the plan to rob the victim and
[Petitioner's] involvement in executing the plan. Ms.
Rosario-Casanova testified that on November 29, 2006, she,
Jacquin Carr, Rachel Rikita, and [Petitioner] decided to
drive to the victim's house and rob him of cocaine. N.T.
3/5/08, at 495-520. Ms. Rikita called the victim and asked to
buy 2 eight-balls of cocaine. Id. at.497. The group
drove to the victim's house. Id. at 503. Jacquin
Carr and [Petitioner] were lying in wait for the victim to
come outside. Id. at 506. When the victim came
outside, Jacquin Carr and [Petitioner] grabbed the victim and
held him down. Id. at 509. Jacquin Carr held the
victim down while [Petitioner] pointed a gun at the
victim's head and Ms. Rosario-Casanova took drugs from
the victim's pockets. Id. at 509-511. Ms.
Rosario-Casanova testified that while Jacquin Carr held the
victim face-down on the ground, [Petitioner] aimed the gun at
the back of the victim's head. Id. at 513. Ms.
Rosario-Casanova got back into the car, and [Mr. Carr and
Petitioner] joined her shortly. Id. at 517. The
group then fled. Id. Ms. Rikita's testimony
corroborated Ms. Rosario-Casanova's. See Id. at
647-659. Commonwealth v. Rykard, No. 1399 MDA 2008;
Respondents' Exhibit I at p. 5.
Rykard was arrested and tried before a jury in the Court of
Common Pleas of Lancaster County before the Honorable Dennis
E. Reinaker. On May 22, 2008, he was found guilty of second
degree murder. On April 1, 2008, petitioner was sentenced to
Rykard appealed. On May 14, 2009, the Superior Court of
Pennsylvania affirmed the conviction, and on November 30,
2009, the Supreme Court of Pennsylvania denied further
review. Commonwealth v. Rykard, No. 1399 MDA 2008;
Respondents' Exhibit I.
On October 25, 2010, Rykard filed a pro se petition
for collateral review in state court pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. § 9541, et seq. Counsel was
appointed to represent petitioner, but after reviewing the
record, he filed a “no merit” letter, pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988). In the letter, PCRA Counsel addressed his reasons for
not pursuing the four claims in Rykard's pro se
PCRA petition and a fifth claim that petitioner had asked him
to pursue. Respondents' Exhibit M.
On December 31, 2010, the PCRA Court issued a notice of
intent to dismiss pursuant to Rule 907, advising petitioner
of his right to file further pro se challenge.
Respondents' Exhibit N. On May 23, 2011, petitioner filed
a response to the notice of intent to dismiss, arguing that
the no merit letter was deficient and raising several new
claims. Respondents' Exhibit O. On May 27, 2011, the PCRA
Court dismissed the petition.
Petitioner appealed the dismissal. On September 18, 2012, the
Superior Court of Pennsylvania affirmed the denial of the
PCRA petition. Commonwealth v. Rykard, 1120 MDA
2011; Respondents' Exhibit V. On May 2, 2013, the
Pennsylvania Supreme Court denied the petition for allowance
On May 21, 2013, petitioner filed the present habeas petition
and a related memorandum of law in the Middle District of
Pennsylvania, raising seven claims, several with subparts.
Upon review, the Court transferred the petition to this Court
for review, since petitioner's conviction was obtained
against him in the Court of Common Pleas for Lancaster
County, which is located in the Eastern District of
Pennsylvania. [The Honorable C. Darnell Jones received his
case and referred it to the Honorable Henry S. Perkin, United
States Magistrate Judge, for a Report and Recommendation. ECF
No. 2.] The Commonwealth filed a response to the habeas
petition on August 26, 2013.
On January 2, 2015, petitioner filed a motion for stay and
abeyance in this case, which was granted by the Honorable C.
Darnell Jones, II, on February 25, 2015.
On December 19, 2016, this Court ordered petitioner and the
Commonwealth to file an update regarding the status of this
case in state court. The Commonwealth argued that the stay
should be lifted. Petitioner sought to continue the stay.
In addition to the seven claims included in his original
petition and memorandum of law, petitioner has submitted
eleven additional claims through several supplemental
pleadings. In total, eighteen claims have been presented to
this Court. For the reasons set forth below, we conclude that
the eleven claims included in Rykard's supplemental
filings are barred by the statute of limitations. Further, we
conclude that seven claims [t]hat were timely submitted are
meritless. Accordingly, we recommend that his petition be
dismissed with prejudice.
R&R at 1-3 (ECF No. 23).
careful, complete and exceedingly thorough review of the
relevant filings, Magistrate Judge Perkin recommended that
the Petition be denied. R&R at 3. Rykard timely filed
objections (the “Objections”) to the R&R (ECF
No. 27), which this Court considers herein. Rykard then filed
a Motion to Supplement his Objections (ECF No. 29), which is
also considered herein. For the brief reasons ...