Furthermore, district judges have wide latitude regarding how they treat recommendations of the magistrate judge. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Indeed, by providing for a de novo determination, rather than a de novo hearing, Congress intended to permit a district judge, in the exercise of the court's sound discretion, the option of placing whatever reliance the court chooses to place on the magistrate judge's proposed findings and conclusions. I may accept, reject, or modify, in whole or in part, any of the findings or recommendations made by the magistrate judge. Id.

Petitioner objects to this finding and asserts that the cause of any procedural defaults was the ineffective assistance of PCRA counsel. Magistrate Judge Hart did not address this objection because he concluded that petitioner acted pro se without counsel in his PCRA proceedings.

A federal court may not grant "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court" unless "the applicant has exhausted the remedies available in the courts of the State". 28 U.S.C. § 2254(b)(1)(A). A claim is proced-urally defaulted if it is unexhausted and the statute of limitations has passed for bringing the claim.

Nevertheless, a federal court reviewing a petition for habeas corpus under 28 U.S.C. § 2254 may reach the merits of a procedurally defaulted claim if the prisoner can show cause and prejudice for the default or that a miscarriage of justice would result from upholding the default. See Coleman v. Thompson, 501 U.S. 722, 749, 111 S.Ct. 2546, 2564, 115 L.Ed.2d 640, 669 (1991).

A miscarriage of justice would result where "[p]etitioner can show that a `constitutional violation has probably resulted in the conviction of one who is actually innocent.'" English v. Vaughn, No. 00-cv-05358, 2005 WL 1677967 (E.D.Pa. July 15, 2005) (Surrick, J.) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808, 836 (1995)).

Cause for procedural default may be established where a petitioner demonstrates "[i]nadequate assistance of counsel at initial-review collateral proceedings". Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272, 282 (2012).

Magistrate Judge Hart correctly found that petitioner cannot overcome procedural default on the basis that a miscarriage of justice would result from barring his claims because he "has not demonstrated that he is actually innocent of the crimes of which he was convicted". R&R at page 6.

In analyzing whether petitioner can establish cause for his procedural default under Martinez, Magistrate Judge Hart concluded that Martinez does not apply to petitioner's claims because he mistakenly concluded that petitioner filed an amended pro se PCRA petition after his PCRA counsel was permitted to withdraw, and also filed a pro se PCRA appeal. Therefore, Magistrate Judge Hart concluded, petitioner alone is to blame for not exhausting Grounds 4 through 18 of his Habeas Corpus Petition.

Petitioner disputes both that his PCRA counsel withdrew, and that he filed a pro se appeal. Review of the record reveals that petitioner is correct—there is no evidence that his PCRA counsel's request to withdraw was ever granted. In fact, the same attorney (Robert P. Brendza, Esquire) who represented petitioner in his PCRA proceedings filed his PCRA appeals to the Superior Court of Pennsylvania and the Supreme Court of Pennsylvania.

Appendix N to the government's Answer is the decision of the Chester County Court of Common Pleas denying petitioner's PCRA petition. Magistrate Judge Hart, in his R&R, cites this decision for his finding that petitioner's attorney was permitted to withdraw, after which petitioner filed a pro se amended petition. However, the state court decision reflects that an amended petition was filed by petitioner's counsel, not by petitioner pro se. It states:

Answer, Appendix N at pages 3-4 (emphasis added).

Furthermore, petitioner's criminal docket sheet from the Chester County Court of Common Pleas indicates that petitioner was represented by Attorney Robert P. Brendza in his PCRA proceedings and that Attorney Brendza filed an Amended Petition for Post Conviction Collateral Relief on behalf of petitioner. See Appendix A to the government's Answer at pages 31, 33. The government submitted a copy of the Amended Petition for Post Conviction Relief Pursuant to 42 Pa.C.S. 9541 et seq. ("Amended Petition"), which was written by Robert P. Brendza, Esquire, who identifies himself as Attorney for Defendant. See Answer, Appendix O. Furthermore, the transcript of petition-er's PCRA hearing indicates that Robert P. Brendza, Esquire, appeared on behalf of petitioner. See Answer, Appendix P.

The Chester County Court of Common Pleas docket sheet also indicates that Robert Peter Brendza filed a Notice of Appeal to the Superior Court of Pennsylvania from the denial of petitioner's PCRA petition. Answer, Appendix A at page 34. Attorney Brendza also filed a Concise Statement of the Matters Complained on Appeal with the Superior Court on behalf of petitioner. Id. at 35.

Petitioner's docket sheet for his PCRA appeal before the Superior Court of Pennsylvania lists Robert Peter Brendza as counsel for petitioner and indicates that petitioner was not pro se. See Answer, Appendix F. The Brief in Support of Appellant's Appeal of Order Denying his PCRA Petition was written by Robert P. Brendza, Esquire. See Answer, Appendix K.

The docket sheet for petitioner's Petition for Allowance of Appeal to the Supreme Court of Pennsylvania also lists Robert Peter Brendza as attorney for petitioner and indicates that petitioner was not pro se. See government's Answer, Appendix G.

Accordingly, the record demonstrates that petitioner was not acting pro se during his PCRA proceedings or PCRA appeals. Therefore, this matter is remanded to Magistrate Judge Hart to re-address whether Martinez applies to petitioner's claims and, if so, the merits of those claims.