The opinion of the court was delivered by: Judge Kosik
Before the court are Petitioner's Objections, filed May 30, 2006, (Doc. 34) to the Report and Recommendation (Doc. 31) of Magistrate Judge J. Andrew Smyser. For the reasons which follow, we will overrule the Petitioner's Objections, adopt the Report and Recommendation of the Magistrate Judge, dismiss the petition for writ of habeas corpus, and close this case.
Petitioner pleaded guilty to criminal trespass, theft, possession of a controlled substance and simple assault in the Court of Common Pleas of Lackawanna County on August 16, 2001. Pursuant to the plea agreement, the court refrained from sentencing Petitioner, and Petitioner agreed to complete a drug treatment program. Petitioner acknowledged that he subsequently violated the plea agreement by not abiding by the requirements of the drug treatment program. On October 10, 2003, the court held a hearing on the Commonwealth's petition to terminate, and sentenced Petitioner to a term of 18 to 56 months. Neither the transcript of the plea hearing, nor that of the sentencing hearing, evidence that the court notified Petitioner of his right to appeal. Petitioner took no direct appeal from the guilty plea or the sentence. Petitioner similarly failed to file a petition for post-conviction relief in state court.
On October 11, 2005, Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claimed that the guilty plea was entered unlawfully, involuntarily and unknowingly, and in violation of his due process rights. Petitioner further asserted a claim of actual innocence. On November 24, 2005, the defendants filed an answer (Doc. 16) to the petition, one day after the date mandated by Magistrate Judge Smyser in his order of November 3, 2005. In their response, the defendants contended that Petitioner failed to exhaust his state remedies. Petitioner filed a motion to "Deem Respondents' Procedural Defenses Waived" on January 9, 2006. (Doc. 19). Petitioner argued that the defendants waived any defenses to the petition when they neglected to file an answer within the time allotted by the court.
On January 26, 2006, Magistrate Judge Smyser filed an order denying Petitioner's motion and noting that it was not clear that there were any state remedies available for Petitioner to pursue as the time for state court appeals had passed. (Doc. 21). The Magistrate Judge ordered the defendants to file a supplemental response to the petition. The defendants were directed to indicate whether their defense rested upon Petitioner's failure to exhaust state court remedies, or was based upon procedural default. The latter occurs when a petitioner fails to pursue available state court appeals within the time allotted by state court procedures. The Magistrate Judge further ordered that the defendants respond to Petitioner's motion to deem procedural defenses waived and to respond to Petitioner's claim of actual innocence. The defendants filed a supplemental response and Petitioner filed a reply thereto. (Docs. 29 and 30).
On May 3, 2006, Magistrate Judge Smyser filed a Report and Recommendation suggesting that we dismiss the petition on the basis of procedural default. (Doc. 31). The Magistrate Judge further determined that Petitioner had not established his claim of actual innocence. Petitioner filed objections thereto on May 30, 2006, after seeking an extension of time from the court. (Doc. 34). Petitioner's objections are contained in seventeen numbered paragraphs, but essentially consist of four arguments. Petitioner asserts that the defendants waived the affirmative defense of procedural default when they failed to raise it in their initial response, that the Magistrate Judge improperly raised procedural default sua sponte, that the Magistrate Judge erred in suggesting that Petitioner failed to establish actual innocence, and that Petitioner's failure to file state court appeals should be excused as the court did not advise him of his right to appeal.*fn1
A party may object to the Report and Recommendation of a Magistrate Judge within ten days after service of the Report. Local Rule 72.3. When objections are filed to a Report and Recommendation of a Magistrate Judge, we must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted to rely upon the Magistrate Judge's proposed recommendations to the extent we, in the exercise of sound discretion, deem proper. See United States v. Raddatz, 447 U.S. 667, 676 (1980); see also Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
A. Petition Procedurally Defaulted
We will address and dispose of Petitioner's first two objections concurrently as our holding that the Magistrate Judge acted appropriately in raising the issue of procedural default moots Petitioner's contention that the defendants waived the defense of procedural default. In Coleman v. Thompson, 501 U.S. 722 (U.S. 1991), the Supreme Court held that habeas petitions submitted by state prisoners who failed to pursue the state court appeals available within the time allotted by the state should be dismissed with limited exceptions. The Court held: "[w]e now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
The Supreme Court clarified that procedural default is not a jurisdictional matter, and does not preclude the federal courts from reviewing habeas petitions where the petitioner failed to pursue all state court appeals. Trest v. Cain, 522 U.S. 87, 89 (1997). The Trest court further held that "procedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter." Id. (citations and quotations omitted). Nonetheless, the Third Circuit has determined that courts may raise the defense of procedural default on their own motion. See Hull v. Freeman, 932 F.2d 159, 164 n.4 (3d Cir. 1991), overruled on other grounds, Caswell v. Ryan, 953 F.2d 853 (3d Cir. 1992). Many other circuit courts have taken a similar approach and determined that it is permissible for a court to raise the defense sua sponte. See Magouirk v. Phillips, 144 F.3d 348, 358 (5th Cir. 1998) (holding "federal district court may . . . raise a habeas petitioner's procedural default sua sponte and then apply that default as a bar to further litigation of petitioner's claims"); Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993); Hardiman v. Reynolds, 971 F.2d 500, 504 (10th Cir. 1992); Burgin v. Broglin, 900 F.2d 990, 997-98 (7th Cir. 1990).
In the present case, Petitioner acknowledges that he did not pursue direct or collateral appeals through the Pennsylvania courts. His argument here is that the defendants waived the procedural default defense when they failed to raise it in their initial response to the petition for writ of habeas corpus and that the Magistrate Judge improperly raised the issue sua sponte. Petitioner is correct in asserting that the Commonwealth waived the defense of procedural default when they failed to raise it in their response to the petition. See Trest, 522 U.S. at 89. The Magistrate Judge, however, acted within the discretion afforded him by 28 U.S.C. § 2254 and the Third Circuit when he raised the issue of procedural default in an attempt to clarify defendants' assertion that Petitioner had not exhausted his state court remedies. See Hull, 932 F.2d at 164 n.4 (holding federal court may raise procedural default sua sponte). Petitioner cannot be heard to complain that he was ambushed by the Magistrate Judge's order as procedural default and the pleaded defense of exhaustion of state court remedies are substantially similar and because Magistrate Judge Smyser afforded all parties the opportunity to brief the procedural default issue prior to issuing the Report and Recommendation. Given that the issue was properly raised by the Magistrate Judge in his January 26, 2006, order, and because Petitioner admits that he did not pursue direct and collateral appeals in state court, we will overrule ...