The opinion of the court was delivered by: Kauffman, J.
Now before the Court is the pro se Petition of James Lenegan ("Petitioner") for Writ of Habeas Corpuspursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated in the State Correctional Institution in Graterford, Pennsylvania. For the reasons that follow, the Petition will be denied.
On April 29, 2005, following trial by jury, Petitioner was convicted of burglary, criminal mischief, criminal trespass, and possession of an instrument of crime. He was sentenced to a term of eighteen months to six years for the burglary and a consecutive term of one to three years for the possession of an instrument of crime. Petitioner appealed to the Superior Court of Pennsylvania, which affirmed the judgment and sentence on November 16, 2006. The Pennsylvania Supreme Court denied Petitioner's application for allowance of appeal on March 20, 2007.
On May 22, 2007, Petitioner filed the instant Petition seeking habeas corpus relief. He asserts that he received ineffective assistance of counsel because his trial counsel allegedly denied his constitutional right to testify on his own behalf, and because his counsel on direct appeal failed to raise the constitutional nature of his claims. He also asserts that the trial court erred when it denied his suppression motions, and that there was insufficient evidence to support the conviction.*fn1
The Court designated United States Magistrate Judge Linda K. Caracappa to submit a Report and Recommendation.*fn2 Magistrate Judge Caracappa recommended that the Court deny the Petition. Petitioner has objected to portions of the Report and Recommendation.*fn3 After de novo review, the Court will approve and adopt the Report and Recommendation. See 28 U.S.C. § 636(b)(1)(C).
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §§ 2241 et seq., which places substantive limitations on the collateral relief available in federal court. Section 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision 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) (emphasis added). The AEDPA also requires deference to state court factual findings: "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A. Alleged Ineffective Performance of Trial Counsel
Petitioner claims that his trial counsel was ineffective because he advised against testifying based on an erroneous belief that Petitioner had a prior burglary conviction that could be used to impeach him. See Pet 4--5. The Superior Court rejected the claim because Petitioner was not prejudiced by the decision not to testify. See Commonwealth v. Lenegan, Slip. Op. at 8--9 (Pa. Super. Ct. Nov. 16, 2006); see also United States v. Teague, 935 F.2d 1525, 1534 (11th Cir. 1992) (en banc) (stating that when a Petitioner claims that defense counsel denied him the right to testify, the claim should be analyzed as a claim of ineffective assistance of counsel). Magistrate Judge Caracappa reached the same conclusion. See Report and Recommendation 10--11. Petitioner argues that "for the Magistrate to claim that it was in the [P]etitoner's best interest not to testify . . . is error." Objections at 3.
The Sixth Amendment of the United States Constitution establishes the right to effective assistance of counsel. To demonstrate a Sixth Amendment violation, Petitioner must prove: (1) that his "counsel's performance was deficient" and (2) that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner's burden under the first prong of Strickland is to show that his counsel's representation fell below an "objective standard of reasonableness." Id. at 688. Under the second prong, "[i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The question, instead, is whether "there is a reasonable probability that, but for ...