Filed: Aug. 15, 2018
Latest Update: Aug. 15, 2018
Summary: MEMORANDUM CAROL SANDRA MOORE WELLS , Magistrate Judge . This habeas corpus case has been remanded by the Honorable Paul S. Diamond. Upon consideration of the parties' recent filings, the undersigned concludes that, to address Judge Diamond's concerns, an evidentiary hearing should be held. This Memorandum will explain the scope of the hearing. By separate order, counsel will be appointed, as required by Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Cour
Summary: MEMORANDUM CAROL SANDRA MOORE WELLS , Magistrate Judge . This habeas corpus case has been remanded by the Honorable Paul S. Diamond. Upon consideration of the parties' recent filings, the undersigned concludes that, to address Judge Diamond's concerns, an evidentiary hearing should be held. This Memorandum will explain the scope of the hearing. By separate order, counsel will be appointed, as required by Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Court..
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MEMORANDUM
CAROL SANDRA MOORE WELLS, Magistrate Judge.
This habeas corpus case has been remanded by the Honorable Paul S. Diamond. Upon consideration of the parties' recent filings, the undersigned concludes that, to address Judge Diamond's concerns, an evidentiary hearing should be held. This Memorandum will explain the scope of the hearing. By separate order, counsel will be appointed, as required by Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts.
As explained in the May 31, 2017 Report and Recommendation ("Report"), Petitioner initially raised four claims, three of which had multiple parts. Report at 6. In an amended petition filed over a year later, Petitioner added a fifth claim, alleging his actual innocence. Id. The Report found that claim 5 was not cognizable, and claims 2(d), 3(c), 4(a)-(b) and 4(d) were procedurally defaulted. Report at 7-12. The remainder of Petitioner's claims — 1, 2(a)-(c), 2(e), 3(b), and 4(c) — lacked merit under the appropriate standard of review. Report at 14-24.
Petitioner objected, on July 3, 2017, raising for the first time a due process claim1 based upon Han Tak Lee v. Glunt, 667 F.3d 397 (3d Cir. 2012).2 Presenting this new claim constitutes a violation of Judge Diamond's February 17, 2016 order, because that order informed Petitioner that he was barred from raising new claims after the filing of the Report, if he could have presented the claim before the Report was issued.3 Despite Petitioner's violation of the February 17, 2016 order, Judge Diamond has directed the undersigned to consider whether an evidentiary hearing is appropriate for Petitioner's due process claim and the related, but distinct, actual innocence claim, a claim that could serve to excuse the procedural defaults of claims 2(d), 3(c), 4(a)-(b) and 4(d). See House v. Bell, 547 U.S. 518, 536-37 (2006). The undersigned will conduct an evidentiary hearing to decide whether the August 22, 2018 letter has sufficient probative value to either establish a due process violation or excuse Petitioner's numerous procedural defaults. In order to do so, David Dawkins and Ebony Dawkins should testify so that the undersigned can evaluate their credibility.4
If the undersigned concludes that Petitioner satisfies the requirements of actual innocence, he can excuse any procedural defaults; hence, all of his defaulted claims could be reviewed on their merits. House, 547 U.S. at 536-37. Therefore, for purposes of efficiency, the evidentiary hearing will also cover Petitioner's defaulted ineffective assistance claims, which are 4(a)-(b) and 4(d). Trial counsel (Louis D. Nicholson, Petition at 17), direct appellate counsel (David B. Mischak, id.) and, perhaps, Petitioner are expected to testify concerning these claims. Petitioner's remaining defaulted claims can be adjudicated based on the existing evidentiary record.
An implementing Order will be issued.
