The opinion of the court was delivered by: Jones, J.
Before the Court are the Objections of Winston Stidham ("Petitioner") (Docket No. 13) ("Objections") to the Report and Recommendation ("R&R") issued on February 20, 2009, by Magistrate Judge David R. Strawbridge (Docket No. 10). In addition, the Court ordered David A. Varano, et al., ("Respondents") to file a brief in response to Petitioner's Objections. After careful consideration of the foregoing, the Court will adopt Judge Strawbridge's Report and Recommendation in its entirety and decline to issue a Certificate of Appealability.
For the purposes of judicial economy, the Court will not restate the facts of this matter here. Rather, the Court is satisfied with the factual background as delineated in the R&R, which was based upon Petitioner's form Petition for Writ of Habeas Corpus, Petitioner's Memorandum of Law in support thereof, the District Attorney's Response to the Petition for Writ of Habeas Corpus, and Petitioner's Reply to the District Attorney's Response ("Reply"), and, as necessary, relevant state court documents and the state court record.
In his objections to the Magistrate Judge's R&R, Petitioner restates the facts as he presented them at trial. Unlike Petitioner's version, the Commonwealth's presentation of the facts, as reflected in the R&R, is consistent with the record at trial and the Pennsylvania courts' determinations. The Pennsylvania courts' version is presumed correct under the federal habeas statute, and Petitioner can only overcome that presumption by presenting clear and convincing evidence to the contrary. 28 U.S.C.A. § 2254(e)(1) (West 2006); Sumner v. Mata, 449 U.S. 539 (1981). The Court finds that Petitioner has presented no credible evidence to sustain his burden.
Accordingly, the Court will adopt the factual recitation contained in the R&R.
II. Procedural Background*fn1
Petitioner was found guilty of second degree murder, three counts of robbery, criminal conspiracy, and possession of an instrument of crime after a jury trial held before the Honorable Eugene Clarke, Jr., on July 22, 1997. The convictions followed upon Petitioner's second trial on these charges, after the first resulted in a mistrial when the jury was unable to agree upon a verdict. On October 2, 1997, Judge Clarke imposed a sentence of life imprisonment on the murder conviction, two consecutive terms of 30 to 60 months imprisonment for the robberies, a concurrent term of 30 to 60 months for the criminal conspiracy, and a concurrent term of 6 to 60 months for the possession of an instrument of crime.
After his conviction and sentencing, Petitioner filed a timely direct appeal with the Superior Court of Pennsylvania. That court affirmed the judgment of sentence on July 27, 1999. The Pennsylvania Supreme Court, on March 16, 2000, then denied Petitioner's request for allocatur. Stidham then filed a pro se petition on March 8, 2001 seeking relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. §§ 9541-9546. Counsel was appointed to represent him, but on November 22, 2002, the PCRA court formally rejected the petition and denied post-conviction relief. Petitioner appealed, and the Superior Court remanded Petitioner's claims back to the PCRA court. Upon remand, the PCRA court, on July 16, 2006, once again rejected Stidham's petition. The Superior Court this time affirmed that decision on October 2, 2007, and the Pennsylvania Supreme Court denied discretionary review on April 16, 2008.
On June 26, 2008, Stidham filed the present habeas action. (Docket No. 1). In his Petition, he set out eight separate Sixth Amendment claims asserting ineffectiveness of trial counsel for: (1) "conceding Petitioner's guilt during his opening statement to the jury;" (2) failure to object to the prosecution's allegedly "discriminatory use of peremptory strikes in jury selection;" (3) failure to object to a particular jury instruction regarding a witness's "prior failures to identify" Petitioner; (4) "failure to secure the appearance at trial of a known and available eyewitness" who, according to Petitioner, would have corroborated Petitioner's trial testimony "in full;" (5) failure to object to an allegedly "leading" supplemental jury instruction; (6) failure to object to the prosecution's elicitation of "an unqualified witness'[s] expert ballistic opinion;" (7) failure to object to the prosecutor's emphasis upon Petitioner's alleged "post-arrest silence;" and (8) "cumulative error." The District Attorney of Philadelphia County (the "District Attorney") filed a Response to the petition on September 30, 2008 (Doc. 7) asserting that the specific claims one through seven were lacking in merit and that the final "cumulative error" claim was unexhausted. (Resp. at 7-23).
Magistrate Judge David R. Strawbridge issued an R&R on February 20, 2009. Judge Strawbridge agreed with the District Attorney and recommended that the Petition be dismissed.
III. Jurisdiction and Legal Standards
The District Court has jurisdiction over Petitioner's application for habeas relief ...