JAMES KNOLL GARDNER, District Judge.
This matter is before the court on the objections
Because petitioner has not met statutory requirements to have his case heard, and no reasonable jurist could find this procedural ruling debatable, and because petitioner fails to demonstrate denial of a constitutional right, a certificate of appealability is denied.
When objections to a report and recommendation of a magistrate judge are filed, I am required to make a de novo determination of those portions of the report, findings or recommendations to which there are objections. 28 U.S.C. § 636(b)(1); E.D.Pa.R.Civ.P. 72.1(IV)(b). Furthermore, district judges have wide latitude regarding how they treat recommendations of the magistrate judge.
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 his or her sound discretion, the option of placing whatever reliance the court chooses to place on the proposed findings and conclusions made by the magistrate judge. I may accept, reject or modify, in whole or in part, any of those findings or recommendations.
Petitioner raises three objections: First, petitioner seeks an evidentiary hearing to determine whether his trial counsel was ineffective because he abandoned petitioner after sentencing by failing to file a direct appeal. Second, petitioner asserts that the appellate attorney appointed by the court to represent him in his direct appeal abandoned him by failing to provide plaintiff with a copy of the brief filed by appellate counsel pursuant to
As a preliminary matter, respondents contend that petitioner's objections are inadequate because they are unsupported by discussion or citation to applicable federal authority. Furthermore, respondents aver that the petition should be dismissed for the reasons expressed in the Report and Recommendation ("R&R").
Specifically, respondents contend that petitioner's claim of ineffective assistance of trial counsel is unexhausted and procedurally defaulted because petitioner did not properly present his claim of abandonment in the state courts. Moreover, respondents aver that petitioner's response to the
Upon review of the R&R, together with de novo review of this matter, I conclude that the R&R correctly determines that petitioner's federal habeas corpus petition should be denied.
Initially, petitioner contends that his trial counsel was ineffective because he abandoned petitioner after sentencing by failing to file a direct appeal, and he seeks an evidentiary hearing on the issue. However, this objection is merely a restatement of petitioner's federal habeas corpus claim.
For reasons articulated by Magistrate Judge Rapoport in the R&R, I agree that the claim is unexhausted and procedurally defaulted and that petitioner makes no showing of cause and prejudice or a miscarriage of justice to overcome the default. Accordingly, I do not reach the merits of this claim, and no evidentiary hearing is warranted.
However, even assuming that petitioner had exhausted his claim of ineffective assistance of trial counsel, the record establishes that he was not prejudiced by his trial counsel's failure to file an appeal, and therefore no federal habeas relief would be warranted. Specifically, the record demonstrates that petitioner's direct appeal rights were reinstated nunc pro tunc; he was appointed new appellate counsel; he filed a response to appellate counsel's
Moreover, petitioner does not argue that but for trial counsel's ineffectiveness or abandonment, the result of his direct appeal would be different.
Next, petitioner argues that he was abandoned by the court-appointed appellate attorney who represented him in his direct appeal. However, it is unclear whether petitioner's objection asserts that he did not receive a copy of appellate counsel's
Furthermore, the Superior Court of Pennsylvania concluded that petitioner's appellate counsel complied with the
In addition, the Superior Court reached the merits of all claims set forth in petitioner's pro-se filing and issues raised by the
Finally, it appears that petitioner's third objection challenges Magistrate Judge Rapoport's recitation of the procedural history and not his proposed findings or recommendations. I construe petitioner's argument as an assertion that his court-appointed PCRA attorney was ineffective for failing to raise a meritorious claim in petitioner's amended PCRA petition, which was dismissed without an evidentiary hearing for failure to raise any claim of merit.
However, petitioner's argument fails because he did not raise this objection in his original federal habeas corpus petition. As a result, the objection is deemed waived. E.D.Pa.R.Civ.P. 72.1(IV)(c).
In addition, even if petitioner had raised this claim in his federal habeas corpus petition, he would not have been entitled to federal habeas relief for ineffectiveness of PCRA counsel. This is because there is no constitutional right to state post-conviction counsel. 28 U.S.C. § 2254(i);
In
For all the foregoing reasons, I overrule the objections of petitioner to the Report and Recommendation of United States Magistrate Judge Rapoport, approve the petition for habeas corpus without a hearing, deny the request for a certificate of appealability, and direct the Clerk of Court to mark this matter closed for statistical purposes.