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.

Magistrate Judge Sitarski correctly found that claims one and two of the Petition are unexhausted and procedurally defaulted, which petitioner does not deny. See 28 U.S.C. § 2254(b)(1). Therefore, such claims are only reviewable if petitioner can demonstrate (a) cause for the default and actual prejudice; or (b) that failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 452-453, 120 S.Ct. 1587, 1592, 146 L.Ed.2d 518, 552-553 (2000); Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2456, 115 L.Ed.2d 640 (1991).

In his Objections, petitioner does not articulate cause for his procedural default. Furthermore, Magistrate Judge Sitarski correctly concluded that petitioner failed to demonstrate a "miscarriage of justice." To meet the "miscarriage of justice" standard, petitioner must present new, reliable evidence which shows that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 864, 130 L.Ed.2d 808, 832 (1986).

Petitioner contends that "new evidence" demonstrates that the testimony of the Commonwealth's "key witness", Jose Toro, was fabricated and that without this testimony he would not have been convicted. Petitioner claims that it was impossible, as Mr. Toro testified at trial, that petitioner confessed to him the November 27, 2002 murder for which petitioner was convicted within the days following the crime. He alleges that Mr. Toro was actually incarcerated during that time—specifically, from November 22, 2002 through October 22, 2003. Petitioner submitted, among other things, an affidavit of Jose Toro recanting his testimony. He also provided an affidavit of Marcus Toro, Jose Toro's brother, stating that Jose Toro was incarcerated from November 22, 2002 until October 2003.

Magistrate Judge Sitarski correctly concluded that petitioner failed to meet the high standard of demonstrating actual innocence. See Schlup, 513 U.S. at 321, 115 S.Ct. at 864, 130 L.Ed.2d at 832. The evidence submitted, including Exhibit C to the Petition, show that Jose Toro was released on bail on September 19, 2002, and not in custody again until December 11, 2002, which debunks petitioner's theory that Mr. Toro was in prison at the time of the confession.

Furthermore, Magistrate Judge Sitarski correctly found that the affidavits of Jose and Marcus Toro, which were provided almost twelve years after the events at issue and which are contradicted by other evidence, lack credibility and do not meet the "reliable evidence" standard. See Schlup, 513 U.S. at 321, 115 S.Ct. at 864, 130 L.Ed.2d at 832 (1986); see also Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 869, 122 L.Ed.2d 203, 227 (1993).

With respect to petitioner's third claim of actual innocence, Magistrate Judge Sitarski correctly concluded that this claim, even if cognizable, would fail because it would require an even higher burden of proof than the "miscarriage of justice" standard discussed above with respect to petitioner's other claims. See Gibbs v. Diguglielmo, No. 09-cv-04766, 2015 WL 93934 at *4 (E.D.Pa. Jan. 5, 2015) (Rufe, J.) (explaining that the Third Circuit has not addressed whether a freestanding claim of actual innocence is cognizable on habeas review, but that if it were, the Supreme Court has suggested it would require an even higher standard than Schlup).