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Zepprinans v. Kaufman

United States District Court, E.D. Pennsylvania

October 28, 2019

DALONZO M. ZEPPRINANS, Petitioner,
v.
SUPERINTENDENT KEVIN KAUFMAN, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PA, Respondents.

          ORDER

          EDWARD G. SMITH, J.

         AND NOW, this 28th day of October, 2019, p after considering the petition for writ of habeas corpus under 28 U.S.C. § 2254 filed by the pro se petitioner, Dalonzo M. Zepprinans (“Zepprinans”) (Doc. No. 1), the respondents' response to the petition (Doc. No. 15), the state-court record, the report and recommendation by United States Magistrate Judge Thomas J. Rueter (the “R&R”) (Doc. No. 16), petitioner's response to the respondents' response to the petition (Doc. No. 17), Zepprinans' first set of objections to the R&R (Doc. No. 20), the Judge Rueter's supplemental report and recommendation (the “Supplemental R&R”) (Doc. No. 22), and Zepprinans' timely filed second set of objections to the Supplemental R&R (Doc. No. 23), it is hereby ORDERED as follows:

         1. The clerk of court is DIRECTED to REMOVE this action from civil suspense and RETURN it to the court's active docket;

         2. Zepprinans' objections to the R&R and Supplemental R&R (Doc. No. 23) are OVERRULED;[1]

         3. The Honorable Thomas J. Rueter's R&R (Doc. No. 16) and Supplemental R&R (Doc. No. 22) are APPROVED and ADOPTED;

         4. The petitioner's petition for writ of habeas corpus (Doc. No. 1) is DENIED;

         5. The petitioner has not made a substantial showing of the denial of a constitutional right and is therefore not entitled to a certificate of appealability, 28 U.S.C. § 2253(c)(2);[2] and

         6. The clerk of court shall mark this case as CLOSED.

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Notes:

[1] The court conducts a de novo review and determination of the portions of the report and recommendation by the magistrate judge to which there are objections. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); see also E.D. Pa. Loc. R. Civ. P. 72.1(IV)(b) (providing requirements for filing objections to magistrate judge's proposed findings, recommendations or report).

In his second set of objections to the Supplemental R&R, Zepprinans repeats his arguments (included in his petition, memorandum of law, and first set of objections to the R&R) about there being insufficient evidence/an unreasonable application of the law that goes against the weight of the evidence, failure of counsel to call a material witness, judicial bias, and ineffective assistance of counsel for failing to conduct pre-trial investigation. See Second Obj. to Second R&R (“Suppl. Objs.”) at 1-11, Doc. No. 23. Because Zepprinans submitted the first set of objections to the R&R prior to the Supplemental R&R and Zepprinans had the opportunity to and did restate these objections once receiving the Supplemental R&R, the court is largely considering the second set of objections here. Before addressing these objections, the court will briefly address the timeliness of the Zepprinans' reply to respondents' response to his petition.

The court is aware that Zepprinans filed his reply brief late because he claims that the prisoner mailing system delayed his receipt of the respondents' response to his habeas petition. See Obj. to Premature R&R at 1-2, Doc. No. 20. While Judge Rueter's supplemental report and recommendation takes notice of the fact that Zepprinans' reply was technically untimely filed, Suppl. R&R at 3-4, Doc. No. 22, Judge Rueter considered the arguments raised in the reply brief in the Supplemental R&R in the interests of justice. Id. at 4. Therefore, Zepprinans' case is not prejudiced by the fact that he, through no fault of his own, seemingly received the respondents' response eleven days prior to filing of the R&R.

Regarding Zepprinans' objections to the R&R and Supplemental R&R, he contends that the lack of evidence in the state court record demonstrates that the state court decision was unsupported by sufficient evidence. See Suppl. Objs. at 4, 8. More specifically, Zepprinans argues that the state court's factual determination is “‘objectively unreasonable in light of [n]o evidence' being presented in the State court proceeding, nor in this Federal Court[.]” Id. at 3. Zepprinans' claim under 28 U.S.C. § 2254(d)(2), however, should be considered in conjunction with section 2254(e)(1), which provides that “a determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of “rebutting the presumption of correctness by clear and convincing evidence.” Id.; Miller-El v. Cockrell,537 U.S. 322, 340 (2003). In this case, Zepprinans has not met this high burden of rebutting the presumption of correctness. ...


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