The opinion of the court was delivered by: Jan E. Dubois, J.
AND NOW, this 13th day of February, 2009, upon considerationof the Petition for Writ of Habeas Corpus under to 28 U.S.C. § 2254, filed by petitioner, Keith Smith, the Response filed by Respondents, Petitioner's Reply, and the record in this case, and after review of the Report and Recommendation of United States Magistrate Judge Arnold C. Rapoport dated January 30, 2009, Objection to Magistrate Judge Report and Recommendation, and respondent's Response to Petitioner's Objections, IT IS ORDERED as follows:
1. The Report and Recommendation of United States Magistrate Judge Arnold C. Rapoport dated January 30, 2009, is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE and without an evidentiary hearing;
3. The Objection to Magistrate Judge Report and Recommendation filed by petitioner is OVERRULED; and,
4. A certificate of appealability will not issue because reasonable jurists would not debate whether the petition states a valid claim of the denial of a constitutional right or this Court's procedural rulings with respect to petitioner's claims. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The facts of the case are detailed in the Report and Recommendation of United States Magistrate Judge Arnold C. Rapaport dated January 30, 2009, with which the Court agrees. The Court writes at this time only to address the issue presented in the Objection filed by petitioner.
Petitioner was found guilty of first degree murder and related charges after a trial before a death-eligible jury in the Court of Common Pleas of Philadelphia County. After a penalty phase hearing, the jury set the penalty for the first degree murder conviction at life imprisonment. Petitioner was thereafter sentenced to life without the possibility of parole, and consecutive sentences of two and one-half to five years imprisonment for related crimes. The conviction arose out of the killing of Clifton Walker on October 15, 1999.
Petitioner's federal habeas petition was filed on June 27, 2008. Liberally read, petitioner makes three claims in the Petition: (1) the Post-Conviction Relief Act ("PCRA") court's refusal to conduct an evidentiary hearing violated his due process rights; (2) counsel was ineffective in failing to investigate an alibi defense; and, (3) counsel was ineffective in failing to object to hearsay evidence regarding an argument between petitioner and his brother, Kelly Smith.
Petitioner's Objection is based on the argument that "the state court's adjudication that petitioner's claim that [trial] counsel was ineffective for failing to object to the hearsay evidence regarding the argument [between petitioner and his brother, Kelly Smith] was not contrary to, or an unreasonable application of Supreme Court law" was "erroneous and unreasonable." Report and Recommendation ("R&R") at 12-14. Continuing, petitioner also claims that it was error for the magistrate judge to rely on the opinion of the Superior Court which stated, in part, that "even if counsel had raised a timely objection, admitting the evidence was not ...