The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.
Petitioner Robert Holman, a state prisoner, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Presently before the court is the second Report and
Recommendation of the Magistrate
Judge recommending that the petition be denied and
dismissed.*fn1 In arriving at that recommendation, the
Magistrate Judge found that petitioner had not shown cause and
prejudice or a fundamental miscarriage of justice with respect to
his three procedurally defaulted claims and that his remaining
claims are either not cognizable in a federal habeas petition or
are without substantive merit.
Petitioner has filed objections to this second Report and
Recommendation. After de novo consideration of petitioner's
objections, respondents' response to those objections and
petitioner's reply to that response, the court will overrule
petitioner's objections, adopt the second Report and
Recommendation, and deny and dismiss the petition.*fn2
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 1992, after a jury trial in the Court of Common
Pleas for Philadelphia County, petitioner was convicted of
robbery and violating the Uniform Firearms Act. On April 7, 1993,
after denying petitioner's post-trial motions, the Court of
Common Pleas sentenced petitioner to a term of ten (10) to twenty
(20) years imprisonment. Petitioner obtained new counsel and
appealed to the Superior Court of Pennsylvania, which, on October
27, 1994, denied petitioner's claims and affirmed his sentence.
Petitioner filed a petition for allowance of appeal to the
Pennsylvania Supreme Court, which was denied on January 19, 1995.
On March 7, 1995, petitioner filed a pro se petition for
collateral review under Pennsylvania's Post-Conviction Relief Act
("PCRA"), 42 Pa.Cons.Stat.Ann. § 9541 et seq. New counsel was
appointed. After review of the record, new counsel filed a "no
merit" letter with the PCRA court, indicating that there were no
issues of merit and requested permission to withdraw as counsel.
On October 7, 1996, the PCRA court dismissed petitioner's
petition and permitted counsel to withdraw.
Petitioner appealed the dismissal of his PCRA petition to the
Superior Court of Pennsylvania, which, on November 25, 1997,
affirmed the dismissal by the PCRA court. Petitioner then filed a
pro se petition for allowance of appeal to the Pennsylvania
Supreme Court, which was denied on June 26, 1998.
On August 14, 1998, petitioner filed the instant petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
various substantive claims. The case was referred to Magistrate
Judge Diane M. Welsh for a Report and Recommendation. On February
8, 1999, the Magistrate Judge issued a Report and Recommendation,
concluding that the petition was a "mixed petition" because it
contained both exhausted and unexhausted claims. Because the
status of the applicable law at that time was not settled, the
Magistrate Judge recommended that the mixed petition be dismissed
without prejudice for failure to exhaust state court remedies.
See 2/8/99 Report & Recommendation.
Upon consideration of respondents' objections and after
reviewing the recent Pennsylvania Supreme Court's decision of
Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998), and
its progeny, this court sustained respondent's objections and
disapproved the Report and Recommendation. See Holman v.
Gillis, 58 F. Supp.2d 587, 589 (E.D.Pa. 1999). In so doing, this
court concluded that it could be confidently stated that the
Pennsylvania Supreme Court will consistently and regularly apply
the 1995 amendments to the PCRA. Id. at 596. Specifically, the
one-year statute of limitations for filing such petitions would
be treated as a procedural bar to all untimely PCRA petitions
not qualify for any of three articulated exceptions.*fn3 Id.
Therefore, remanding the case to state court would necessarily be
futile. Id. Instead, this court remanded the matter to the
Magistrate Judge for consideration of the claims petitioner had
shown to be exhausted and for a determination as to whether
petitioner established cause and prejudice or a fundamental
miscarriage of justice with respect to the procedurally defaulted
claims. Id. at 597-98.
On December 22, 1999, the Magistrate Judge issued her second
Report and Recommendation, to which petitioner has objected.*fn4
After reviewing the legal standards applicable to petitions filed
under § 2254, the court will discuss petitioner's objections in
Section 2254 provides relief to prisoners incarcerated by the
state only if such custody is "in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a).
With respect to the appropriate standard of review for federal
courts, the pertinent provisions of § 2254 provide:
An application for a writ of habeas on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
28 U.S.C. § 2254(d). Moreover, "a determination of a factual
issue made by the 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). The Third Circuit has articulated a two-part analysis
in reviewing federal habeas claims. First, the court must
determine if the state court decision was "contrary to" Supreme
Court precedent governing the ground for relief, such that a
contrary outcome is required. See Matteo v. Superintendent
S.C.I. Albion, 171 F.3d 877, 890 (3d Cir.), cert. denied, ___
U.S. ___, 120 S.Ct. 73, 145 L.Ed.2d 62 (1999). Second, barring
that demonstration, a habeas writ should not be granted "unless
the state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent." Id. Indeed,
even if the federal habeas court disagrees with the state court
decision, habeas relief is not appropriate. Id.
In his habeas corpus petition, petitioner asserted the
following grounds for relief:
(1) his arrest "was unlawful and without warrant;"
(2) he was denied the right to confront his accuser,
"the actual ...