The opinion of the court was delivered by: McLaughlin, J.
Petitioner Roberto Robles filed a petition for habeas corpus in this Court pursuant to 28 U.S.C. § 2254. The petitioner, who is currently incarcerated in state court, challenges his conviction for three counts of aggravated assault, four counts of recklessly endangering another person and one count each of carrying a firearm without a license and possession of an instrument of a crime, for which he has been sentenced to twelve and a half to twenty-five years. The Court referred the petition to Magistrate Judge M. Faith Angell, who has filed a Report and Recommendation that the petition be denied and dismissed without an evidentiary hearing and that there is no basis to issue a certificate of appealability.
The petitioner, through his appointed counsel, has filed five objections to the Report and Recommendation. After independent consideration, for the reasons set out below, the Court will adopt the Report and Recommendation, overrule the objections, and deny the petition without a hearing.
I. Objection One: Exhaustion of Petitioner's Claims
The petitioner's first objection is that "the Magistrate Judge erred in finding that none of the Petitioner's five claims raised in state court [was] procedurally defaulted" because the petitioner contended that "all his claims were exhausted and the Magistrate erred in her conclusion that they were not." This objection is, in part, misplaced because the Report and Recommendation expressly finds all five of the claims raised in the petitioner's habeas petition to be procedurally defaulted. The Report and Recommendation finds that the petitioner failed to properly exhaust any of these claims in state court, that remand of these unexhausted claims to state court would be futile because they are time-barred, and that all these claims are procedurally defaulted. See Report and Recommendation at 15-16. The Court therefore interprets this objection as directed to the Magistrate Judge's finding that none of the petitioner's five habeas claims has been properly exhausted in state court. Upon independent review, the Court finds no error in this finding.
The five claims raised in the petitioner's habeas petition are: 1) the alleged denial of effective assistance of trial and appellate counsel from that counsel's failure to file a statement of the errors complained of on appeal, as required by Pennsylvania Rule of Appellate Procedure 1925(b);*fn1 2) the alleged denial of the petitioner's constitutional right to appeal caused by the Pennsylvania Superior Court's failure to remand the petitioner's case to the trial court to allow him to perfect his direct appeal; 3) the alleged unconstitutionality of the Pennsylvania Post-Conviction Relief Act ("PCRA") because it does not provide a remedy for ineffective assistance of PRCA counsel; 4) the trial court's alleged lack of subject-matter jurisdiction over the petitioner's case based on an alleged lack of a criminal complaint or information "for the complaining witness that Petitioner went to trial for"; and 5) the petitioner's alleged actual innocence.
There is no question that the last three of the petitioner's five habeas claims have not been fairly presented in state court. Neither the petitioner's submissions on his direct appeal or his submissions in PCRA proceedings mention the unconstitutionality of the PCRA, the alleged lack of subject- matter jurisdiction over his case, or his alleged actual innocence.*fn2
As to the first two of the petitioner's habeas grounds, the petitioner has argued that they should be considered to have been fairly included in the grounds he raised in his PCRA petition. In the Report and Recommendation, the Magistrate Judge finds that neither argument was raised in the petitioner's original and amended PRCA petition. This Court disagrees with the Report and Recommendation to the extent that it finds that these arguments were not raised in the petitioner's PCRA petitions to the state trial court. This disagreement does not affect the Report and Recommendation's conclusion that these arguments were not exhausted, however, because the Court agrees with the Report and Recommendation that these arguments were not raised in the petitioner's PCRA appeal. The petitioner therefore failed to fairly present these claims to all levels of the state judicial system as required for exhaustion. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).*fn3
The petitioner's initial pro se PCRA petition raised two alleged errors:
(1) trial counsel did not provide effective representation to defendant, dur[ing] direct appeal to the superi[or] court by not filing rule 1925(b) Statement as directed by the trial court, thus causing defendant['s] appeal [to be] waived[; and] (2) trial counsel or court never timely informed defendant of this error, defendant was never given notice, or given the good faith opportunity to file pro se/nunc pro tunc and/or rectify the 1925(b) statement as directed by the court.
Petitioner's Appx. at 20.
After the petitioner was appointed PRCA counsel, the petitioner filed an amended petition. The memorandum of law in support of the amended petition raised a different issue:
Whether the petitioner is entitled to PCRA relief where prior counsel, who represented the petitioner throughout the trial and appellate stages, was derelict in his duty for failing to properly raise and preserve the issue of improper comments made by the prosecutor during closing argument.
Pet. Appx. at 32. The amended petition, itself, however, in addition to stating this new ground, also restated the two grounds raised in the ...