United States District Court, E.D. Pennsylvania
OPINION REPORT AND RECOMMENDATION, ECF NO. 9 -
F. LEESON, JR., UNITED STATES DISTRICT JUDGE
2017, Petitioner Randy Jenrette filed a pro se writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging the
sufficiency of evidence for his conviction of attempted
murder in the Philadelphia County Court of Common Pleas and
alleging ineffective assistance of counsel for failing to
investigate exculpatory witness testimony, failing to advise
and consult on whether to testify, and for stipulating to the
authenticity of handwritten letters.
Judge Thomas J. Rueter issued a Report and Recommendation
(“R&R”) concluding there was sufficient
evidence to convict Jenrette for attempted murder and his
counsel was not ineffective for failing to investigate
exculpatory witness testimony, for failing to advise and
counsel on whether to testify, and for stipulating to the
authenticity of handwritten letters. The Magistrate Judge
recommends that the habeas petition be denied and that no
certificate of appealability be granted.
filed objections to the R&R. Specifically, he objected to
the Magistrate Judge's conclusions regarding the
sufficiency of evidence for his conviction of attempted
murder and his ineffective assistance of counsel claim
asserting his attorney failed to advise and consult on
whether to testify at trial. After de novo review, this Court
overrules the objections and adopts the findings and
conclusions in the R&R. The habeas petition is denied.
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 F. App'x. 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).
Court has conducted de novo review and overrules
Jenrette's objections to the R&R. Magistrate Judge
Rueter thoroughly reviewed the issues presented in this case,
and succinctly analyzed the facts and applicable legal
authority. The findings and conclusions in the R&R are
adopted and incorporated herein. This Court writes separately
only to address Jenrette's objections.
objections, Jenrette asserts, “[t]he fact that the
state courts reduced the mens rea under Pennsylvania
law from specific intent (a premeditated and deliberate act)
to malice (a criminally reckless act) denied [P]etitioner due
process of law.” See Objs., ECF No. 16. He
cites to Commonwealth v. Predmore, 199 A.3d 925 (Pa.
Super. Ct. 2018) to support his theory. However,
Predmore is inapposite to Jenrette's case.
Predmore is a state habeas petition challenging the
mens rea of attempted murder in which the petitioner
initially aimed his weapon at the chest and face of the
victim, pointed his weapon at the ground, allowed the victim
to flee, and then fired his weapon at the victim three times
with two bullets striking the victim in the calf.
Predmore, 199 A.3d at 929. In this instance,
Jenrette, unlike the petitioner in Predmore, did not
point his weapon down after originally pointing it at the
head and chest of the victim. Rather, Jenrette waited for the
victim to exit the store he was patronizing, immediately
pointed his weapon at the victim when the victim exited the
store and fired five rounds at the victim as the victim
attempted to flee striking him in the calf, ankle, and a
graze wound to the hip. See Commonwealth v.
Reyes-Diaz, 2014 WL 10936640, *13 (Pa. Super. Ct. 2014)
(sustaining a conviction for attempted murder where the
victim was shot through the upper leg, stating “[i]t is
not necessary that the shooter actually hit a vital part of
the body to sustain a conviction for attempted
murder”), appeal denied, 628 Pa. 639 (Pa.
2014). Moreover, while Predmore was decided on
direct appeal, the instant matter is before the Court on
federal habeas review. A federal district court owes
“considerable deference” to the state court.
See Coleman v. Johnson, 566 U.S. 650, 656 (2012)
(citing 28 U.S.C.§ 2254(d)). The Pennsylvania Superior
Court determined that there was sufficient evidence to
support Jenrette's conviction. Jenrette has failed to
provide extraordinary or compelling reasons to depart from
the state court's opinion. Accordingly, Jenrette's
objection is overruled.
next objects to his counsel's performance for allegedly
failing to consult and advise whether to testify. However,
this objection is belied by the record. Jenrette's Second
Amended PCRA Petition admits counsel consulted and advised
whether to testify. See Second Amended PCRA Petition
¶¶ 78-88. It is evident from Jenrette's own
admissions his counsel discussed testifying and recommended
not testifying because if Jenrette testified on his own
behalf, he would subject himself to impeachment due to his
prior criminal record. This decision was a matter of trial
strategy. Resultantly, Jenrette's objection is overruled.
the Antiterrorism and Effective Death Penalty Act of 1996
(‘AEDPA'), a ‘circuit justice or judge'
may issue a COA [certificate of appealability] only if the
petitioner ‘has made a substantial showing of the
denial of a constitutional right.'” Tomlin v.
Britton, 448 Fed.Appx. 224, 227 (3d Cir. 2011) (citing
28 U.S.C. § 2253(c)). “Where a district court has
rejected the constitutional claims on the merits, . . . the
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For the reasons set
forth herein, jurists of reason would not find the
Court's assessment debatable or wrong.
de novo review, this Court agrees with the Magistrate Judge
that the habeas petition lacks merit. Jenrette's
objections to the R&R are overruled. This Court adopts
the findings and ...