Opinion

CHUKWU v. KAUFFMAN

Court
District Court, E.D. Pennsylvania
Filed
Jun 30, 2020
Cited by
0 cases
Authority
More cited than 28.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOUIS CHUKWU,

Petitioner,

CIVIL ACTION

V. NO. 18-236

K. KAUFFMAN, et al.,

Respondents.

ORDER

AND NOW, this 30th day of June 2020, upon consideration of Petitioner Louis Chukwu’s

Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1), and after

review of the Report and Recommendation of United States Magistrate Judge David R.

Strawbridge (Doc. No. 23), Petitioner’s First Motion to Reopen Habeas Proceedings (Doc. No.

27), Petitioner’s Motion to Reopen the Judgment of the Court Pursuant to Rule 60(b) (Doc. No.

28), and the pertinent record in this case, it is ORDERED that:

1. The Report and Recommendation (Doc. No. 23) is APPROVED and ADOPTED.!

1 On March 7, 2013, a jury in Pennsylvania state court found Petitioner guilty of aggravated

indecent assault of a person under 13, indecent assault of a person under 13, unlawful contact

with a minor, and corruption of a minor. (Doc. No. 23 at 3.) Petitioner did not appeal his

conviction to the Pennsylvania Superior Court. (Id.) Instead, on February 10, 2014, Petitioner

filed a petition for relief under the Pennsylvania Post Conviction Relief Act (““PCRA”). (Id. at

4.) On May 4, 2015, the PCRA court held an evidentiary hearing, after which it denied the

petition. (Id.) Petitioner appealed the decision of the PCRA court to the Pennsylvania Superior

Court. (Id.) On January 9, 2017, the Superior Court affirmed the denial. Id.) On January 12,

2018, Petitioner filed the instant Petition for Writ of Habeas Corpus. (Id.)

The Court referred the Petition to United States Magistrate Judge David R. Strawbridge for a

Report and Recommendation. On November 26, 2019, Judge Strawbridge issued the Report

and Recommendation and found that all claims in the Petition were procedurally defaulted for

failure to exhaust remedies in state court. (Id. at 5-6.) The Magistrate Judge also found that

Petitioner’s claims were without merit and therefore no relief under Section 2254 was

warranted. (Id.) Petitioner did not file any objections to the Report and Recommendation.

Instead, on March 16, 2020, Petitioner filed two motions: (1) Petitioner’s First Motion to

Reopen Habeas Proceedings (Doc. No. 27), and (2) Petitioner’s Motion to Reopen the

Judgment of the Court Pursuant to Rule 60(b). (Doc. No. 28.) Petitioner alleges the same

claim in both Motions, a claim he never presented to the Pennsylvania state courts or to

Magistrate Judge Strawbridge.

Petitioner alleges in his Motions that at his trial Detecttve Thomas Brown fabricated his

testimony when he stated that he interviewed the victim, R.F., on September 4, 2011. (Doc.

No. 27 at 1-2.) R.F and her father, according to Petitioner, testified at trial that the incident

occurred during the night between September 4, and September 5, 2011 so Brown could not

have interviewed R.F. on September 4, 2011. (No. 28 at 13-4, 19-20.) Based upon this

dichotomy, Petitioner alleges that the prosecutor who tried his case was aware of the timeline

conflict and concealed it, even though the testimony of Brown, the victim, and her father was

elicited at trial. (No. 27 at 1-2.) For reasons discussed below, this claim of prosecutorial

misconduct is without merit. In addition, the Court has reviewed the findings made by

Magistrate Judge Strawbridge in the Report and Recommendation, and though they are not

objected to, the findings are correct.

(1) The Claim Raised in Petitioner’s Two Motions is Procedurally Defaulted

For Failure to Exhaust State Court Remedies.

In Petitioner’s two Motions, he alleges prosecutorial misconduct occurred during his trial. As

noted, he argues that Detective Brown fabricated his testimony regarding when he interviewed

the victim, R.F., and that the prosecutor was aware of the timeline conflict and concealed it.

(Id.)

This claim of prosecutorial misconduct was never presented to any court in Pennsylvania, and

was never raised with Magistrate Judge Strawbridge. Under 28 U.S.C. § 2254(b)(1), habeas

corpus relief is “ordinarily available only for a claim where Petitioner has exhausted the

corrective processes available in the state courts.” (Doc. No. 23 at 4.); See 28 U.S.C. §

2254(b)(1). “It is axiomatic that a federal habeas court may not grant a petition for writ of

habeas corpus filed by a person incarcerated from a judgment of state court unless the petitioner

has first exhausted the remedies available in the state courts.” Lambert v. Blackwell, 134 F.3d

506, 513 (3rd Cir. 1997). Petitioner must give 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). Accordingly, since the

claim of prosecutorial misconduct was never raised at all in state court, the exhaustion

requirement has not been fulfilled.

There are two exceptions to the failure to exhaust that would allow Petitioner to bring his claim

before this Court. The first exception is commonly referred to as “cause and prejudice.”

Coleman v. Thompson, 501 U.S. 722, 746 (1991). If Petitioner can provide a justifiable cause

for not presenting the claim, and show that he was prejudiced, this would excuse his failure to

exhaust. Id. The second exception is if he can make a showing of factual innocence.

McCleskey v. Zant, 499 U.S. 467, 495 (1991) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454

(1986).) In this case, however, Petitioner has not shown cause and prejudice to excuse his

failure to exhaust all his state court remedies and has not presented evidence of factual

innocence. And at no point in his state court case did Petitioner raise the issue of prosecutorial

misconduct related to Detective Brown’s testimony. Therefore, Petitioner’s claim of

prosecutorial misconduct is procedurally defaulted for failure to exhaust state court remedies.

(2) Petitioner Has Waived His Prosecutorial Misconduct Claim

Because He Has Failed to Follow Court Rules.

Petitioner did not raise the claim of prosecutorial misconduct regarding Detective Brown in

his Petition for Writ of Habeas Corpus. He raises this claim for the first time in his two

Motions. And even if his claim of prosecutorial misconduct is construed as an objection to the

Report and Recommendation, the claim has been waived.

Because Petitioner’s claim asserted in his two motions is a new one, it cannot be raised before

this Court under Eastern District of Pennsylvania’s Local Rule 72.1(1V)(c), which provides:

All 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.

E.D. Pa. Civ. R. 72.1(1V)(c).

Because Petitioner’s claim of prosecutorial misconduct regarding Detective Brown was not

raised until after the filing of the Magistrate Judge’s Report and Recommendation, and the

interest of justice does not require that it be heard now, the claim is waived.

28 U.S.C. §636(b)(1) governs the process by which a district court judge makes a de novo

determination of a Magistrate Judge’s Report and Recommendation. It provides:

Within fourteen days after being served with a copy, any party may serve and

file written objections to such proposed findings and recommendations as

provided by rules of court. 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. A judge of the court may accept,

reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate judge. The judge may also receive further evidence or recommit

the matter to the magistrate judge with instructions.

28 US.C. § 636(b)(1).

In the Eastern District of Pennsylvania, Local Rule 72.1(1V)(b) governs a petitioner’s

objections to the report and recommendation of a magistrate judge. (E.D. Pa. Civ. R.

72.1(1V)(b).) Under that rule, a petitioner must “specifically identify the portions of the

proposed findings, recommendations or report to which objection is made and the basis for

such objections.” Henry v. Smith, 2017 U.S. Dist. LEXIS 106426, at *4 (E.D. Pa. July 10,

2017) (citing Savior v. Superintendent of Huntingdon SCI, No. 11-5639, 2012 WL 4206566,

at *1 (E.D. Pa. Sept. 20, 2012)).

In neither Petitioner’s First Motion to Reopen Habeas Proceedings (Doc. No. 27) nor in his

Motion to Reopen the Judgment of the Court Pursuant to Rule 60(b) (Doc. No. 28) does

Petitioner raise an objection to the Magistrate Judge’s Report and Recommendation. These

Motions are based on a claim of prosecutorial misconduct regarding Detective Brown that was

not raised in the original Petition. In his two Motions, Petitioner does not “specifically

identify” the part of the Report and Recommendation to which he is objecting. Henry, 2017

U.S. Dist. LEXIS at *4. Since 28 U.S.C. § 636(b)(1) states that this Court shall make a de

novo review of the portions of the findings or recommendations “to which objection is made,”

and Petitioner makes no objection to the Report and Recommendation of the Magistrate Judge,

Petitioner has waived consideration of his prosecutorial misconduct claim because he has not

followed court rules requiring him to raise the claim before the Magistrate Judge in the first

instance. (28 U.S.C. § 636(b)(1).)

(3) Petitioner’s Claim of Prosecutorial Misconduct Also Would Fail on the Merits.

Petitioner makes his prosecutorial misconduct contention under Federal Rule of Civil

Procedure 60(b)(3). (Doc. No. 27 at 1.)

Rule 60(b)(3) provides:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion

and just terms, the court may relieve a party or its legal representative from a

final judgment, order, or proceeding for the following reasons: ...

(3) fraud (whether previously called intrinsic or _ extrinsic),

misrepresentation, or misconduct by an opposing party; ...

Fed. R. Civ. P. 60(b)(3).

In Pray v. Department of Justice, the Third Circuit held that a 60(b)(3) claim fails when an

argument of fraud and misrepresentation is made with “nothing more than speculation.” Pray

v. Department of Justice, 290 Fed.-Appx. 501, 504 (3rd Cir. 2008). In that case, a petitioner’s

habeas corpus petition was denied because his 60(b)(3) allegation that the Government

conducted an illegal wiretap provided “no affirmative evidence” of the violation alleged. Id.

2. The Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is DENIED.

3. Petitioner’s First Motion to Reopen Habeas Proceedings (Doc. No. 27) is DENIED.

Here, the trial record shows the following answers by Detective Brown to the prosecutor’s

questions:

Q. Now, detective, were you working as a detective with the Special Victims

Unit on September 4th of 2011?

A. I was

Q. Okay. And do you remember meeting with a child named [R.F.]?

A. Yes

Q. Detective, how did [R.F.] come to meet you that day?

A. She was brought in by, I believe, 19th District officers in reference to an

allegation of a sexual assault.

(Doc. No. 29 at 57.)

Detective Brown’s testimony does not show emphatically that he met with R.F. on September

2011. (Id.) He merely said he was working as a Detective with the Special Victims Unit on

that day. (Id.) Next, he was asked if he remembers meeting with R.F. (Id.) Then he was asked

how he had come to meet R.F. that day, which could refer to the day he met her, as opposed to

September 4, 2011, when he was working in the Special Victims Unit. (Id.) The same jury

that heard Brown’s testimony about working in the Special Victims Unit on September 4, 2011

and about meeting with R.F., also heard from R.F. and her father, who both testified that the

incident occurred during the night between September 4th and September Sth. (Doc. No. | at

41-3, 50.)

There 1s nothing inherently contradictory between the testimony of Detective Brown and that

of R.F. and her father. And even if there was some contradiction, their credibility was judged

by the same jury at trial. Moreover, the fact that the testimony of all three witnesses was

elicited by the prosecutor shows that she was not concealing this evidence. With “no

affirmative evidence” that the prosecutor knew that Detective Brown was lying in his

testimony, Petitioner has not shown that the prosecutor knowingly presented false testimony.

Pray, 290 Fed.Appx. at 504. Thus, there was no prosecutorial misconduct and Petitioner’s

claim amounts to “nothing more than speculation.” Id.

For all of the above reasons, Petitioner’s two Motions will be denied.

4. Petitioner’s Motion to Reopen the Judgment of the Court Pursuant to Rule 60(b) (Doc. No.

28) is DENIED.

5. A Certificate of Appealability shall not issue because a reasonable jurist could not conclude

that the Court is incorrect in denying and dismissing the Motion because Petitioner has

failed to make a showing of a denial of a federal constitutional right. 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473 (2000).

6. The Clerk of Court shall close this case for statistical purposes.

BY THE COURT:

/s/Joel H. Slomsky, J.

JOEL H. SLOMSKY, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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