Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

King v. McGinley

United States District Court, E.D. Pennsylvania

December 30, 2019

BRIAN KING, Petitioner,
v.
SUPERINTENDENT THOMAS MCGINLEY, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

          ORDER

          DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE

         AND NOW, this 30th day of December, 2019, after considering the petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by the pro se petitioner, Brian King (“King”) (Doc. No. 2), the response to the petition filed by the respondents (Doc. No. 10), United States Magistrate Judge Jacob P. Hart's report and recommendation (Doc. No. 11), and King's objections to the report and recommendation (Doc. No. 18); accordingly, it is hereby ORDERED as follows:

1. King's objections to the R&R (Doc. No. 18) are OVERRULED;[1]
2. The Honorable Jacob P. Hart's report and recommendation (Doc. No. 11) is APPROVED and ADOPTED;
3. The petition for a writ of habeas corpus (Doc. No. 2) is DENIED;
4. King 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 5. The clerk of court shall mark this case as CLOSED.

---------

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 objections to the R&R, King repeats his arguments included in his habeas petition, namely that (1) trial counsel was ineffective for failing to object to the admission of the letter sent to his co-conspirator, Tyreek Wilford (“Wilford”), (2) the trial court erred by limiting cross-examination of Wilford, (3) the prosecutor's remarks purported vouching for the credibility of Wilford resulted in prosecutorial misconduct, and (4) trial counsel failed to adequately investigate the case and challenge the sufficiency of the evidence. Compare Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody at 22-28, Doc. No. 2, with Pet'r's Objs. to the R. & R. (“Objs.”) at 8, 20-29, Doc. No. 18. In addressing these claims, Judge Hart concluded that “King is not entitled to relief because the claims are procedurally defaulted and/or meritless.” R. & R. at 4, Doc. No. 11. In his objections, King maintains that this was due to his “inability to fully articulate his ineffective assistance of counsel theories in the State Courts and exhaust his present claims.” Objs. at 16.

According to King, his

PCRA counsel, (retained) Counsel, Robert Marc Gamburg and (court appointed) counsel Stephen T. O'Hanlon failed [him] in their representation and failed to defend his interest, [as they] failed to communicate and cooperate with [him] about his collateral review of claims of ineffective assistance of counsel, even after [he] made several attempts to articulate his issue[s] to both Attorneys and was just ignored.

Id. King argues that his PCRA attorneys abandoned him during collateral review and this was prejudicial and constituted a miscarriage of justice. Id. King also maintains that because the state court does not accept hybrid or pro se filings when petitioner has counsel, he was unable to timely present the issues he wanted to raise in the state courts due to the ineffectiveness of his PCRA counsel and the failure of his counsel to consult with him about his wishes. Id.

The court will first address King's argument about ineffective assistance of PCRA counsel as an excuse to procedural default before turning to briefly addressing petitioner's underlying claims. In certain cases, ineffective assistance of PCRA counsel can serve as cause and prejudice to excuse procedural default of ineffective assistance of trial counsel claims that could not ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.