United States District Court, E.D. Pennsylvania
G. SMITH, J.
NOW, this 9th day of January, 2020, after
considering the petition for a writ of habeas corpus under 28
U.S.C. § 2254 filed by the pro se petitioner,
Sharod Graham (“Graham”) (Doc. No. 2), the
response to the petition filed by the respondents (Doc. No.
10), Graham's response to the respondents' response
(Doc. No. 11), United States Magistrate Judge Elizabeth T.
Hey's report and recommendation (Doc. No. 12), and
Graham's motion to vacate the report and recommendation
(Doc. No. 14), it is hereby ORDERED as
clerk of court is DIRECTED to
REMOVE this action from civil suspense and
RETURN it to the court's active docket;
2. The motion to vacate the report and recommendation (Doc.
No. 14) is DENIED.
Honorable Elizabeth T. Hey's report and recommendation
(Doc. No. 12) is APPROVED and
petition for a writ of habeas corpus (Doc. No. 2) is
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);
clerk of court shall mark this case as
 At the time Graham filed his habeas
petition, Michael Overmyer was the superintendent of the
facility where Graham was serving his sentence, the Forest
State Correctional Institution in Marienville, Pennsylvania,
and Graham properly named Mr. Overmyer as the respondent in
this action. Since that time, Derek Oberlander has replaced
Mr. Overmyer as superintendent. Pursuant to Rule 2(a) of the
Rules Governing Section 2254 Cases (requiring state officer
with current custody of petitioner to be named as respondent)
and Rule 25(d) of the Federal Rules of Civil Procedure, the
court has substituted Mr. Oberlander as a respondent in this
 In the motion to vacate the report and
recommendation, Graham attempts to amend his petition to
include a new claim that the evidence presented at trial was
insufficient to sustain a first-degree murder conviction (and
instead only constituted involuntary or voluntary
manslaughter). Def.'s Mot. to Vacate the R. & R. at
1, Doc. No. 14. Before a federal court can turn to the merits
of any habeas claim, a petitioner must comply with the
exhaustion requirement of section 2254(b), by giving
“the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). In the instant case, Graham, through counsel, has
previously raised this issue on direct appeal claiming that
the evidence was insufficient to support the first-degree
murder conviction. Br. for Appellant,
Commonwealth v. Graham, No. 1658 EDA 2012, 2012 WL
8947645 (Pa. Super. Feb. 22, 2013). The Pennsylvania Superior
Court rejected Graham's argument. Commonwealth v.
Graham, No. 1658 EDA 2012, 2013 WL 1125068, at *3 (Pa.
Super. Oct. 21, 2013). The Pennsylvania Supreme Court then
denied Graham's petition for allowance of appeal. Order,
Commonwealth v. Graham, No. 598 EAL 2013, (Pa. June
2, 2014). Therefore, Graham's claim is procedurally
Nonetheless, this claim lacks merit. When it comes to
the constitutional sufficiency of the evidence to support the
[T]he critical inquiry on review of the sufficiency of
the evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. . . . Instead, the relevant question is whether, after
reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
Jackson v. Virginia, 443 U.S. 307, 318-19
(1979) (citations omitted). In rejecting Graham's
sufficiency argument, the Superior Court held that “a
review of the evidence shows that this claim is utterly
lacking in merit. Mr. Beard identified [Graham] as the
individual present behind the deli who savagely beat Ms.
M[redacted] with his fists and fled the scene on the night of
March 24, 2010.” Graham, 2013 WL 11254068, at
*8. Additionally, the Superior Court noted that “the
search of [Graham]'s residence following the death of Ms.
M [redacted] resulted in the seizure of the shirt worn ...