United States District Court, E.D. Pennsylvania
LEREX R. DOOLEY, Petitioner
ERIC TICE et al., Respondents
E. K. PRATTER, UNITED STATES DISTRICT JUDGE.
February 25, 2019, the Court granted Petitioner Lerex R.
Dooley leave to file an addendum to his objections to
Magistrate Judge Caracappa's December 3, 2018 Report and
Recommendation. See Order (Doc. No. 30). Mr. Dooley
now seeks "Leave To Supplement the Record to the ORDER
of . . . The 25th Day of February, 2019." See
Pet'r's Mot. for Leave to Suppl. R. (Doc. No. 36).
Mr. Dooley invokes Federal Rule of Appellate Procedure
10(e)(2) and asks the Court to supplement the record with two
declarations, both by Mr. Dooley, to "bring clarity to
when certain after / newly discovered evidence was submitted
to the state court, support the Habeas claims without
changing its nature, and rebut points raised by the
Respondent." Id. For the reasons below, the
Court denies Mr. Dooley's request.
Rule of Appellate Procedure 10(e)(2)(B) permits a district
court to correct an omission or misstatement of the district
court record and forward a certified supplemental record for
use on appeal. Fed. R. App. P. 10(e)(2). Mr. Dooley's
case is still pending in this Court, making Rule 10(e)(2)(B)
Local Rule of Civil Procedure 72.1(IV)(c) instructs that
"[a]ll issues and evidence shall be presented to the
magistrate judges, and unless the interest of justice
requires it, new issues and evidence shall not be raised
after the filing of the Magistrate Judge's Report and
Recommendation if they could have been presented to the
magistrate judge." First, Mr. Dooley signed the
declarations he seeks to add to the record on August 30,
2019, after Magistrate Judge Caracappa had already filed her
Supplemental Report and Recommendation on August 15, 2019.
See Pet'r's Mot. for Leave to Suppl. R Exs.
A, B (Doc. No. 36); Suppl. R. & R (Doc. No. 34). Second,
Mr. Dooley's declarations do not raise issues or evidence
that could not have been presented to Magistrate Judge
Caracappa. Rather, the Court finds that the issues Mr. Dooley
raises were in fact already presented.
declaration is discussed in turn, but first a brief
background. Both declarations surround Kevin Hiller-a witness
from Mr. Dooley's trial-and his unredacted 302 proffer.
See Pet'r's Mot. for Leave to Suppl. R. Exs.
A, B (Doc. No. 36). At the time of Mr. Dooley's trial,
only a redacted version of Mr. Hiller's proffer was
available. See Pet'r's Mot. for Leave to
Suppl. R. Ex. B (Doc. No. 36). Mr. Dooley only first obtained
the unredacted version years later, after the PCRA court had
already issued an opinion in Mr. Dooley's case.
The First Declaration
first declaration, Mr. Dooley argues that the claims set out
in grounds one and three of his petition are not procedurally
defaulted. See Pet'r's Mot. for Leave to
Suppl. R. Ex. A (Doc. No. 36). Mr. Dooley already raised this
argument in his objections to Magistrate Judge
Caracappa's December 3, 2018 Report and Recommendation,
and the Court referred the case back to Magistrate Judge
Caracappa to address those very arguments. See Order
(Doc. No. 30).
Dooley then argues that the PCRA court's conclusion that
"[t]here is no evidence that Hiller perpetrated a
homicide or was otherwise 'involved' in a
homicide" was unreasonable. Pet'r's Mot. for
Leave to Suppl. R. Ex. A (Doc. No. 36). Again, Mr. Dooley
already raised this argument in his Motion for Leave to File
Addendum, and Magistrate Judge Caracappa fully addressed it
in her Supplemental Report and Recommendation. See
Pet'r's Mot. for Leave to File Addendum at 4 (Doc.
No. 29); Suppl. R. & R. at 19 (Doc. No. 34)
("Because the 2007 Agreement connects Hiller in some way
to a 'murder' we can agree that the PCRA court's
conclusion was questionable.").
Mr. Dooley's first declaration asserts that his
ineffective assistance of counsel claim related to his
attorney's failure to argue prosecutorial misconduct is
not defaulted. See Pet'r's Mot. for Leave to
Suppl. R. Ex. A (Doc. No. 36). Magistrate Judge Caracappa
already liberally construed Mr. Dooley's claims and
reviewed the merits of his ineffective assistance of counsel
claim. See Suppl. R. & R. at 19 (Doc. No. 34)
(finding Mr. Dooley's ineffective assistance of counsel
claim defaulted without excuse, but deciding
"[nevertheless, for the sake of judicial efficiency [to]
review the merits of petitioner's claim").
all the arguments raised in Mr. Dooley's first
declaration were previously raised by Mr. Dooley and
addressed by Magistrate Judge Caracappa, the interest of
justice does not require supplementing the record with their
The Second Declaration
Dooley's second declaration first notes that the
unredacted version of the 302 proffer was not uncovered until
after the PCRA court had issued an opinion in Mr.
Dooley's case. See Pet'r's Mot. for
Leave to Suppl. R. Ex. B (Doc. No. 36). He argues that this
caused findings and assertions of the PCRA court and the
prosecutors to go unchallenged. Id. However,
Magistrate Judge Caracappa was already fully aware of this
timing when evaluating Mr. Dooley's claims. See
Suppl. R. & R. at 17 (Doc. No. 34) ("The unredacted
version of the 302 proffer was uncovered by petitioner's
mother on February 20, 2016, after the PCRA court issued its
Opinion on August 4, 2015.").
Dooley then argues that the prosecutors and law enforcement
officers in his case possessed Mr. Hiller's unredacted
302 proffer at the time of his trial because the unredacted
proffer was eventually provided "by individuals
prosecuted in the 'same jurisdiction'" as Mr.
Dooley. Pet'r's Mot. for Leave to Suppl. R. Ex. B
(Doc. No. 36). Mr. Dooley has already raised this issue.
See Pet. for Writ of Habeas Corpus at 13 (Doc. No.
1) ("The unredacted version was apart [sic] of the
discovery in the Commonwealth's case involving the 2006
murder. The Philadelphia Distrit [sic] Attorney's Office
prosecuted the murder charge and made an agreement to give
Hiller immunity. There is no excuse . . . not to have known
about the unredacted version of the FD-320 Proffer. For
purposes of a Brady ...