The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
The Petitioner, Steven Wheatley ("Petitioner") an inmate incarcerated at the State Correctional Institution at Mahanoy filed this pro se Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. In the Petition, Petitioner challenges his March 9, 2001 conviction in the Monroe County Court of Common Pleas with respect to his shooting of a police officer victim on three grounds; (1) insufficient evidence to support attempted criminal attempt to commit murder and aggravated assault convictions; (2) ineffective assistance of trial counsel in failing to adequately investigate and obtain forensic testimony; and (3) ineffective assistance of trial counsel in failing to request an appropriate jury instruction. (Rec. Doc. 1 at 6-9).
The case was referred to United States Magistrate Judge Thomas M.
Blewitt.*fn1 Thereafter, on September 20, 2006, Magistrate Judge Blewitt issued a Report and Recommendation (doc. 15) recommending that the Petition for Habeas Corpus be denied with respect to its three claims. The Magistrate Judge further recommended that the Petitioner's Motion for Leave to Conduct Discovery and for Appointment of an Expert (doc. 12) be denied because no further information is required to decide Petitioner's habeas claims. Petitioner timely filed objections to Magistrate Judge Blewitt's Report and Recommendation. (Rec. Docs. 16 and 17).
On October 18, 2006, this Court entered a Memorandum and Order (doc. 18) adopting Magistrate Judge Blewitt's Report and Recommendation with respect to the denial of Claim Two, ineffective assistance of trial counsel for failing to obtain forensic testimony. As a corollary, we adopted Magistrate Judge Blewitt's recommendation that the Petitioner's Motion for Leave to Conduct Discovery and for Appointment of an Expert be denied. We did, however, remand to the Magistrate Judge Petitioner's Claim One, insufficiency of the evidence claim, to apply the standard of review espoused in Brieghner v. Chesney, 301 F. Supp. 2d 354 (M.D. Pa. 2004), aff'd. 156 Fed. Appx. 539 (3d Cir. 2005)(Non-Precedential). We further indicated to the Magistrate Judge that the Report and Recommendation misquoted the Pennsylvania Superior Court with respect to the name of the police officer who sprayed pepper spray in the Petitioner's face, and we remanded so that the Magistrate Judge would correct this misquotation. We also remanded Claim Three to the Magistrate, interpreting that claim to be that trial counsel was ineffective for failing to request a jury instruction regarding involuntariness.
Objections to Magistrate Judge Blewitt's report were due by November 17, 2006. On that date, Petitioner filed objections to the report. (Rec. Docs. 20 and 21). The matter is therefore ripe for our review.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2001 Petitioner was found guilty, by a jury, in the Court of Common Pleas of Monroe County, Pennsylvania, of attempted homicide and related charges, namely aggravated assault and reckless endangerment with respect to his shooting of Police Officer Rice. The Court also found the Petitioner guilty of possession of a firearm by a former convict. On April 11, 2001, the Petitioner was sentenced to an aggregate term of fifteen to thirty years incarceration.
On April 23, 2001, Petitioner filed a post-sentence motion raising several issues regarding his finding of guilt and sufficiency of the evidence against him. On June 4, 2001, Petitioner also filed a motion challenging his sentence. The trial court denied these post-sentence motions on June 29, 2001.
On July 24, 2001, the Petitioner filed a direct appeal of his judgment of his sentence with the Superior Court of Pennsylvania. The Superior Court affirmed the Petitioner's conviction on August 16, 2002. On September 15, 2002, the Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court, which the Supreme Court denied on August 26, 2003.
On April 22, 2004, the Petitioner filed a pro se Petition for Post Conviction Relief Act ("PCRA") with the Court of Common Pleas. Counsel was appointed to represent Petitioner relative to his PCRA petition. On October 13, 2004, Petitioner, through his counsel, filed an amended PCRA petition, limiting his ineffective assistance of counsel claims to four issues, including the two ineffective assistance of counsel claims included in the present Petition.
The Court of Common Pleas denied the PCRA petition on February 17, 2005. The Petitioner appealed to the Superior Court of Pennsylvania on March 3, 2005, and the Superior Court affirmed the Court of Common Pleas's "excellent" decision on October 27, 2005. (Rec. Doc. 5, Ex. 9). On November 15, 2005, the Petitioner filed a Petition for Allowance of Appeal with the Pennsylvania Supreme ...