REPORT AND RECOMMENDATION

THOMAS J. RUETER, Magistrate Judge.

Presently before the court is a pro se Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the State Correctional Institution Forest, in Camp Hill, Pennsylvania. For the reasons that follow, the court recommends that the petition be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On January 31, 2007, petitioner was sentenced by the Honorable Rayford A. Means in the Court of Common Pleas of Philadelphia County to an aggregate sentence of seven to fourteen years imprisonment, after he was found guilty of knowingly possessing cocaine and possessing cocaine with the intent to deliver. (Resp. Ex. A at 1.)

The state appellate court summarized the evidence presented at trial as follows:

Commonwealth v. Jackson, 945 A.2d 763 (Pa, Super. Q. 2007) (Table). (Resp. Ex. A at 1-4.)

Prior to trial, petitioner moved to suppress the cocaine and also moved to compel the disclosure of the confidential informant. The motions were denied. Id. at 4. Prior to sentencing, petitioner filed motions for a new trial arguing, inter alia, that trial counsel ineffectively failed to pursue a claim that police did not knock and announce their presence before entering Ms house. Such motions also were denied. Id. at 5: see also, N.T. 1/31/07 at 66-67.

Petitioner appealed to the Pennsylvania Superior Court, arguing that (1) the trial court erred in denying his motion to suppress physical evidence; (2) the motions court erred in denying the motion to compel disclosure of the confidential informant; (3) the trial court erred in removing petitioner's chosen counsel and denying new counsel a continuance; and (4) the trial court erred in finding police knocked and announced their presence when they executed the warrant.1 (Resp. Ex, A at 5-18.) The Pennsylvania Superior Court affirmed the judgment of sentence in a memorandum opinion dated December 27, 2007. (Resp. Ex. A at 6-18.). The Supreme Court of Pennsylvania denied petitioner's request for discretionary review on June 22, 2009. Commonwealth v. Jackson, 973 A.2d 1006 (Pa. 2009) (Table).

On July 13, 2009, petitioner filed a pro se petition for state post-conviction relief pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat, Ann, § 9541, et seq. Petitioner argued that (1) the search warrant was executed prematurely, without the triggering event taking place; (2) the knock and announce rule was violated; (3) the trial court erred in denying the motion to suppress; and (4) trial counsel was ineffective for failing to litigate a motion to disclose the confidential informant. Counsel, who was subsequently appointed, filed an Application to Withdraw Appearance and a "no merit" letter in accordance with Commonwealth v. Finley, 481 U.S. 551 (1987) and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). By Order dated July 16, 2010, the PCRA court dismissed the petition. Petitioner did not appeal the dismissal.

On July 7, 2011, petitioner filed a pro se petition for habeas corpus relief. Petitioner raises nine issues: (1) the evidence was insufficient to support his convictions; (2) the "warrant used was not the proper vehicle, plus the information used was solely based on a CI who's credibility was never pre-established;" (3) judicial bias and malicious prosecution; (4) trial counsel was ineffective for failing to "properly act on any reasonable strategy ... [and] never challenged any of the District Attorney's insufficient evidence;" (5) the prosecutor obtained the conviction through "manipulation of testimony, hearsay, and non-existant, credentialed, confidential informant;" (6) petitioner's due process rights to a speedy and fair trial were violated; (7) petitioner's due process rights were violated when insufficient evidence was presented at the preliminary hearing; (8) the convictions were against the weight of the evidence; and (9) the court conducted an "illegal side bar conversation" which resulted in an "illegal stipulation" concerning the search warrant. (Pet. at 9-10.) The Commonwealth responded on February 16, 2012, arguing that petitioner is not entitled to relief on any of his claims. (Resp, at 5-13.)

II. DISCUSSION

Petitioner's habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The provisions of the AEDPA relevant to the instant matter provide as follows;

28 U.S.C. § 2254(d)(1) and (2).

The Supreme Court has instructed that the "contrary to" and "unreasonable application" clauses in Section 2254(d)(1) should be viewed independently. With respect to Section 2254(d)(1), a federal habeas petitioner is entitled to relief under the "contrary to" clause only if "the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 361 413 (2000). The Court in Williams was careful to note that most cases will not fit into this category, which is limited to direct and unequivocal contradiction of Supreme Court authority. Id. at 406-08, See also Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) (en banc) (to prove entitlement to relief under "contrary to" clause, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; ... petitioner must demonstrate that Supreme Court precedent requires the contrary outcome") (emphasis in original).

Under the "unreasonable application" clause, a federal habeas court may not issue the writ simply because that court concludes "that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411. Relief is appropriate only where the state court decision is also objectively unreasonable. Id. The Supreme Court recently explained that where "it is the state court's application of governing federal law that is challenged, the decision `must be shown to be not only erroneous, but objectively unreasonable,'" Waddington v, Sarausad, 555 U.S. 179, 190 (2009) (quoting Middletonv. McNeil, 541 U.S. 433, 436 (2004)). See Appel v. Horn, 250 F.3d 203, 209 (3d Cir. 2001) ("A state court decision will be an `unreasonable application' if (1) `the state court identifies the correct governing legal rule from [the] Court's cases but unreasonably applies it to the facte of the particular ... case;' or (2) `the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'") (quoting Williams, 529 U.S. at 407).

With respect to 28 U.S.C. § 2254(d)(2), which dictates that federal habeas relief may be granted when the state court adjudication was based on an unreasonable determination of the facts in light of the evidence presented, the petitioner must demonstrate that a reasonable fact-finder could not have reached the same conclusions given the evidence. If a reasonable basis existed for the factual findings reached in the state courts, then habeas relief is not warranted. Campbell v. Vaughn, 209 F.3d 280, 290-91 (3d Cir. 2000). Furthermore, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also Appel, 250 F.3d at 209 (The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts.) (citing 28 U.S.C. § 2254(e)(1)) (quotation omitted).

C. Petitioner's Claims

1. Procedurally defaulted claims — Claims 1.3, 4, 5, 6, and 7

Respondent contends that the following claims raised by petitioner are procedurally defaulted because petitioner did not exhaust his state court remedies; (a) petitioner's first claim that the evidence was insufficient to support his convictions; (b) petitioner's third claim that the trial judge was biased against him and that the prosecutor manipulated the rules of evidence to obtain the conviction; (c) petitioner's fourth claim that trial counsel was ineffective for failing to "properly act on any reasonable strategy, ... [and] never challenged any of the District Attorney's insufficient evidence;" (d) petitioner's fifth claim that the prosecutor obtained the conviction through "manipulation of testimony, hearsay, and non-existant, credentialed, confidential informant;" (e) petitioner's sixth claim that his due process rights to a speedy and fair trial were violated; and (f) petitioner's seventh claim that his due process rights were violated when insufficient evidence was presented at the preliminary hearing. (Resp. at 8-11.)

It is welt established that a prisoner must present all of his claims to a state's intermediate court, as well as to its supreme court, before a district court may entertain a federal petition for habeas corpus. 28 U.S.C. § 2254(b)(1)(A); O'Suilivan v. Boerckel, 526 U.S. 838, 845, 847 (1999); Evans v. Court of Common Pleas. Del. County. Pa., 959 F.2d 1227, 1230 (3d Cir. 1992).2 "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992).

However, when the petitioner cannot obtain state court review of his claims because of noncompliance with state procedural rules, the doctrine of procedural default generally bars federal habeas corpus review. Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); Sistrunk v. Vaughn, 96 F.3d 666, 674-75 (3d Cir. 1996). The Supreme Court stated:

Coleman, 501 U.S. at 735 n.1. Upon a finding of procedural default, review of a federal habeas petition is barred unless the habeas petitioner can show: "(1) the procedural rule was not independent and adequate; (2) cause for his failure to comply with state procedural rules and prejudice resulting therefore; or (3) that a fundamental miscarriage of justice will occur if not considered." Peterkin v. Horn, 176 F.Supp.2d 342, 353 (E.D. Pa. 2001). The adequacy requirement requires a court to determine whether the state rule in question was "firmly established and regularly followed." Beard v. Kindler, ___ U.S. ___, 130 S.Ct. 612, 617-18 (2009) (internal citations and quotations omitted).

Petitioner can demonstrate cause for procedural default if he can show that some objective factor external to the defense impeded or prevented his ability to comply with the state procedural rules. Caswell, 953 F.2d at 862. The cause must be "something that cannot fairly be attributed to [the petitioner.]" Coleman, 501 U.S. at 753. To show prejudice, petitioner must present evidence that this factor did more than merely create a possibility of prejudice; it must have "worked to [petitioner's] actual and substantial disadvantage." Murray v. Carrier, 477 U.S. 478, 494 (1986) (emphasis in original) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Additionally, the fundamental miscarriage of justice exception to procedural default is concerned only with "actual" innocence and petitioner must show that in light of new evidence it is more likely than not that no reasonable juror would have convicted him absent the claimed error. Schlup v. Delo, 513 U.S. 298, 327 (1995).

As respondent correctly asserts, the following claims were not presented to any state court for review, and therefore, have not been exhausted in the state courts: (a) petitioner's first claim that the evidence was insufficient to support his convictions; (b) petitioner's third claim that the trial judge was biased against him and that the prosecutor manipulated the rules of evidence to obtain the conviction; (c) petitioner's fourth claim that trial counsel was ineffective for failing to "properly act on any reasonable strategy ... [and] never challenged any of the District Attorney's insufficient evidence;" (d) petitioner's fifth claim that the prosecutor obtained the conviction through "manipulation of testimony, hearsay, and non-existant, credentialed, confidential informant;" (e) petitioner's sixth claim that his due process rights to a speedy and fair trial were violated; and (f) petitioner's seventh claim that his due process rights were violated when insufficient evidence was presented at the preliminary hearing. See Pet, at 9-10,3 These claims are now procedurally defaulted, as they cannot be reviewed by the state courts because of the one-year statute of limitations contained in 28 U.S.C. § 2244(d)(1). This court cannot excuse the procedural default because petitioner has not alleged or shown cause for the default and actual prejudice therefrom, or that failure to consider the claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749-50, Thus, petitioner's claims one, three, four, five, six, and seven must be denied because they are procedurally defaulted.

2. Non-cognizable claims — Claims 2,8 and 9

Petitioner raises several other claims. In his second claim, petitioner contends that police used an "improper warrant," claiming that the "warrant used was not the proper vehicle, plus the information used was solely based on a CI who's credibility was never pre-established." (Pet, at 9.) In his ninth claim, petitioner argues that the court conducted an "illegal side bar conversation" which resulted in an `Illegal stipulation" to a "magical warrant," (Pet. at 9-10.) In his eighth claim, petitioner argues that the convictions were against the weight of the evidence. Id. Each of these claims is not cognizable on habeas review.

a. Issuance and Execution of Search Warrant — Claims 2 and 9

Inasmuch as petitioner raises issues concerning the issuance and execution of the search warrant in claims two and nine, such claims are not cognizable on habeas review. In these claims, petitioner avers specifically that an "improper warrant" was used and that a stipulation entered into at trial resulted in a "magical warrant." See Pet. at 9, Such claims raise purely issues of state law which are not cognizable in a federal habeas corpus proceeding, "[I]t is not the province of a federal habeas court to re-examine state court determinations on state law questions. ..." Johnson v. Rosemeyer, 117 F.3d 104, 109 (3d Cir. 1997). "The federal courts have no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension" Id. (quoting Geschwendt v. Ryan, 967 F.2d 877, 888-89 (3d Cir. 1992)).

Furthermore, a habeas petitioner may not raise a Fourth Amendment claim if the petitioner has had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465 (1976); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994); Gilmore v. Marks, 799 F.2d 51, (3d Cir. 1986). The Supreme Court In Stone stated that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 494,

In the present case, petitioner received a full and fair opportunity to litigate his Fourth Amendment claims In the state courts. At trial, plaintiff's counsel filed a motion to suppress the evidence, based on the sufficiency of the search warrant. See Commonwealth v. Jackson, C.P. 0405-0283, 559 EDA 2007, slip op. at 4 (CP. Phila. Co. Mar. 28, 2007). The motion was granted with respect to the evidence found in the car, but was denied with respect to the evidence found in the house. Id. After petitioner was found guilty, new counsel filed post-verdict motions, arguing issues of ineffectiveness of counsel and violations of the knock and announce rule in connection with the execution of the warrant. Id. The court conducted numerous hearings concerning the alleged knock and announce violation. See NX 5/10/06, N.T, 5/15/06, N.T. 10/4/06, N.T. 12/12/06. These issues also were addressed by the Superior Court on direct appeal. See Resp. Ex. A at 6-9, 14-19. The Superior Court analyzed the totality of the circumstances to determine whether probable cause existed for the issuance of the search warrant based upon information received from the confidential informant. Id. at 7-9. The court held that the affidavit supporting the warrant application relied upon fresh, detailed information from a "palpably reliable source" and the warrant was to be served after petitioner entered into another drug transaction with the confidential informant. Id. at 8-9. The Superior Court concluded that the trial court did not err by denying the suppression motion. In addition, the Superior Court analyzed the application of the knock and announce rule to the execution of the search warrant. Id. at 14-19. The Superior Court noted that the trial court's decision to deny petitioner's post-verdict motion was based on a fundamental credibility determination. Id. at 18. The Superior Court refused to disturb the trial court's finding and deemed petitioner's claim meritless. Id. at 18-19, Moreover, PCRA counsel noted in the Finley letter that issues relating to the issuance and execution of the search warrant were raised on direct appeal.

Given the foregoing, the record demonstrates that petitioner received a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. Petitioner's second and ninth claims concerning the issuance and execution of the search warrant are not, therefore, cognizable in a habeas proceeding. These claims should be denied.

b. Weight of the Evidence — Claim 8

In petitioner's eighth claim, petitioner challenges the weight of the evidence presented against him. (Pet. at 9.) As respondent points out, this claim is not cognizable on habeas review.

A challenge to the weight of the evidence requires an evaluation of the credibility of the evidence presented at trial Tibbs v. Florida, 457 U.S. 31. 37-38 (1982). In Tibbs, the United States Supreme Court upheld a finding of the Florida Supreme Court, noting that;

457 U.S. at 37-38 (internal citations omitted). Furthermore, in habeas proceedings, federal courts are bound by the factual findings of the state courts. 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a state court shall be presumed to be correct."); Rotan v. Vaughn, 445 F.3d 671, 679 (3d Cir. 2006) ("Generally, federal courts defer to state appellate court determinations of fact."). As a result, a habeas court cannot reassess the weight of the evidence which was before a state court. Marshall v. Lonberger, 459 U.S. 422, 434-35 (1983) (federal courts are not permitted "to redetermine [the] credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). Accordingly, petitioner's claim that challenges the weight of the evidence presented against him is not cognizable on habeas review, See Green v. Fisher, 2011 WL 6046915, at *11 (E.D. Pa. May 23, 2011) ("[Challenges to the weight of the evidence produced at trial are not cognizable in federal habeas proceedings"), approved and adopted, 2011 WL 6046904 (E.D. Pa. Dec. 6,2011); Ming v. Tennis, 2007 WL 1030329, at *2 n.1 (E.D. Pa. Feb. 13, 2007) (A claim alleging that the evidence was against the weight of the evidence "is not a cognizable claim under § 2254 because it requires an assessment of the credibility of the evidence presented at trial, and state court credibility findings may not be redetermined on habeas review."), approved and adopted, 2007 WL 954107 (E.D. Pa. Mar. 28, 2007); Alamo v. Frank, 1999 WL 79659, at *1 n.2 (E.D, Pa. Jan. 15, 1999) ("It is beyond the province of this court to consider the weight, as opposed to the sufficiency, of the evidence."); Smith v. Vaughn, 1997 WL 338851, at *8 (E.D. Pa. June 17, 1997) ("[A] federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence."). Petitioner's eighth claim, therefore, should be denied.

III. CONCLUSION

For all of the above reasons, the court makes the following:

RECOMMENDATION

AND NOW, this 30th day of April, 2012, the court respectfully recommends that the petition for a writ of habeas corpus be DENIED, and that no certificate of appealability be issued.4

Petitioner may file objections to this Report and Recommendation. See Loc, R. Civ, P. 72.1. Failure to file timely objections may constitute a waiver of any appellate rights,

ORDER

AND NOW, this day of __, 2012, upon consideration of the pleadings and record herein, and after review of the Report and Recommendation of Magistrate Judge Thomas J. Rueter, it is hereby

ORDERED

that;

NOTICE

Enclosed herewith please find a copy of the Report and Recommendation filed by United Slates Magistrate judge Rueter, on this date in the above captioned matter. You are hereby notified that within fourteen (14) days from the date of service of this Notice of the filing of the Report and Recommendation of the United States Magistrate Judge, any party may file (in duplicate) with the clerk and serve upon ail other parties written objections thereto (See Local Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report & Recommendation shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.

In accordance with 28 U.S.C. § 636(b)(1)(B), the judge to whom the case is assigned will make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made, The judge may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge, receive further evidence or recommit the matter to the magistrate judge with instructions,

Where the magistrate judge has been appointed as special master under F.R.Civ.P 53, the procedure under that rule shall be followed.