The opinion of the court was delivered by: James M. Munley United States District Court
Before the court is the report and recommendation of Magistrate Judge Malachy E. Mannion, which proposes this court dismiss the instant petition for a writ of habeas corpus. Having been briefed, the matter is ripe for disposition.
This case arises out the March 29, 2001 conviction of petitioner Jose Luis Santos for rape, statutory sexual assault, endangering the welfare of children and corrupting the morals of a minor. The conviction took place in Dauphin County, Pennsylvania. A jury on November 17, 2000 convicted petitioner on these charges stemming from the rape of the five-year-old daughter of his girlfriend. The trial court sentenced petitioner on March 29, 2001 to a sentence of between 12 1/2 and 25 years. The Pennsylvania Superior Court upheld the sentence and conviction on June 27, 2002. Petitioner then sought leave to appeal his case to the Supreme Court of Pennsylvania. The Supreme Court declined to hear this appeal on November 13, 2002.
On April 2, 2003, petitioner filed a pro se petition attacking his conviction pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541. Petitioner also filed a motion for post-conviction DNA testing. He received post-conviction counsel for the proceeding under the PCRA, and this counsel filed a supplemental petition. On December 30, 2004, the PCRA court denied petitioner relief under the act and denied him the post-conviction DNA testing he requested. Petitioner appealed this decision to the Pennsylvania Superior Court on January 28, 2005. The PCRA court determined, however, that petitioner failed properly to state the grounds for his appeal and ordered him to file a concise statement of those grounds by April 11, 2005. This ruling relied on Pennsylvania Rule of Appellate Procedure 1925(b). Petitioner mailed the required statement to the PCRA Judge, the District Attorney's Office, and the Superior Court Prothonotary's Office, but failed to file the document with the Clerk of Courts, which Rule 1925(b) requires. Accordingly, the Superior Court affirmed denial of the petition on April 19, 2006, and denied petitioner's motion for reargument on June 22, 2006. Petitioner did not appeal that decision to the Pennsylvania Supreme Court.
Petitioner filed the instant action in the United States District Court for the Eastern District of Pennsylvania on September 16, 2006. (See Doc. 1-2). The petition raises four grounds for granting the petition: (1) that his counsel was ineffective for refusing to offer the results of DNA testing into evidence to demonstrate that petitioner was not the source of sperm found on the victim and that he was innocent of the crimes for which he was accused; (2) that the DNA evidence collected from the scene establishes petitioner's innocence by demonstrating that someone else perpetrated the assault on the victim; (3) that the prosecutor violated petitioner's constitutional rights by using his peremptory challenges to exclude blacks and Hispanics from the jury; and (4) that petitioner's appellate counsel was ineffective for not raising these issues before the appellate court. Noting that the petitioner was housed in the Eastern District of Pennsylvania but his conviction occurred in the Middle District of Pennsylvania, United States District Judge Petrese B. Tucker order the case transferred to this court on November 8, 2006. (Doc. 1). Upon arriving in this court, the case was assigned to Magistrate Judge Mannion for preliminary consideration. The Magistrate Judge granted the petitioner's motion for appointment of counsel (Doc. 13). After the parties briefed the issue, Magistrate Judge Mannion issued his report and recommendation on July 15, 2008 (Doc. 49). The Magistrate Judge recommended that the court deny the petition. The petitioner filed objections to the report and recommendation (Doc. 50) and a brief in support thereof (Doc. 51), bringing the case to its present posture.
Petitioner brought this action pursuant to 28 U.S.C. § 2254. As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
This case concerns petitioner's application for a writ of habeas corpus. To obtain such relief, a petitioner must show that his trial:
(1) resulted in a conviction 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 proceeding. 28 U.S.C. § 2254(d).
Deciding whether a state court decision was "contrary to" federal law requires an "inquiry" into "whether the Supreme Court has established a rule that determines the outcome of the petition." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999). At this stage, "'a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.'" Id. (quoting O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998)). Thus, "it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome." Id.
Petitioner raised four grounds in support of his habeas corpus petition:
1. That the petitioner received ineffective assistance of counsel when counsel refused to file a motion to offer the results of DNA testing to demonstrate that the petitioner was not the source of sperm and to establish the petitioner was innocent of the crime.
2. That petitioner's due process rights were violated when he was convicted of sex offenses when the DNA evidence admitted at trial established that petitioner was not the source of sperm and therefore not guilty of the crime which was committed by another male.
3. That petitioner's due process rights were violated when the prosecutor used his peremptory challenges to exclude Blacks and Hispanics from the jury.
4. That appellate counsel was ineffective for failing to present meritorious issues to the appellate courts.
The magistrate judge recommends that the court find that claims 1, 3 and 4 have been procedurally defaulted and that claim 2 lacks merit. The ...