The opinion of the court was delivered by: Paul Diamond, J.
Petitioner Matthew Phelan objects to the Magistrate's recommendation that I deny his habeas corpus petition. 28 U.S.C. § 2254. I will overrule Petitioner's counseled objections and adopt the Magistrate's Report and Recommendation.
In May 2005, Petitioner was convicted by a jury in the Lehigh County Common Pleas Court of theft by unlawful taking, receiving stolen property, access device fraud, and criminal conspiracy. See Commonwealth v. Phelan, No. 237 EDA 2006 (Pa. Super. Ct. Sept. 15, 2006). Petitioner was sentenced in July 2005 to six to twelve years imprisonment. Id.
The Commonwealth presented evidence that on January 29 and 30, 2004, Petitioner and William Reinisch stole cash and credit cards from lockers at the Bethlehem YMCA. Id. During his direct examination at trial, Reinisch testified that the Petitioner and Reinisch met in the "late afternoon or early evening" of January 29, 2004 after stealing cash and credit cards from YMCA member John Vargo. Id. at 9; (Doc. No. 11, Ex. D). On cross-examination, Rienisch was asked the specific time of his January 29th meeting with Petitioner. Id at 9-10; (Doc. No. 11, Ex. D).
Reinisch could not remember the exact time and again stated that he met Petitioner in the "late afternoon, early evening." Defense counsel then asked, "You said, I believe, 4:30. Was that approximately right?" Reinisch answered in the affirmative. Id. at 9-10; (Doc. No. 11, Ex. D).
On May 5, 2009, the jury submitted the following question to the court during deliberations: "what time did [Reinisch] say [Petitioner] arrived at Bordeaux or what time did Jamie Bordeaux say [Petitioner] arrived at the office." Id. at 9; (Doc. No. 11, Ex. D.) The trial judge asked the court monitor to review the taped trial record for an answer. The monitor found Reinisch's response on direct examination that Petitioner arrived in the "late afternoon, early evening." After playing to counsel the recording of Rienisch's response, the trial judge asked the monitor if he had also reviewed Reinisch's cross-examination. The monitor responded that he had reviewed Reinisch's entire testimony. (Doc. No. 11, Ex. D.) Evidently, the monitor missed Reinisch's agreement on cross-examination that the approximate time of his meeting with Petitioner was 4:30. The trial judge asked both counsel to determine if their trial notes included anything that was "different from what the court monitor played and that maybe somehow it had been overlooked." Defense counsel responded "I don't think so." (Doc. No. 11, Ex. D) After reviewing his own notes once again, the trial judge responded to the jury's question with a note stating, "William Reinisch testified that it was 'late, late afternoon, early evening.'" The trial judged asked if there were any objections to his note. Both defense counsel and the prosecutor stated that they had no objection. Id. at 11; (Doc. No. 11, Ex. D).
The jury convicted petitioner of all charges. In his post-trial motions, which the trial court denied, Petitioner did not raise any claim related to the trial court's response to the jury's question. On direct appeal to the Pennsylvania Superior Court, Petitioner argued for the first time that the trial court's incorrect response was an abuse of discretion under Pennsylvania law. The Superior Court affirmed, holding that "defense counsel's failure to object on the record to the trial court's response to the jury question has caused the issue on appeal to be waived." Commonwealth v. Phelan, No. 237 EDA 2006, at 11 (Pa. Super. Ct. 2006). The Supreme Court denied allocatur. Commonwealth v. Phelan, 919 A.2d 956 (Pa. 2007) (table). Petitioner then sought to raise the Reinisch issue under Pennsylvania's Post Conviction Relief Act. The PCRA court denied relief on December 15, 2008 because Petitioner failed to subpoena Reinisch or otherwise present Reinisch's allegedly exculpatory testimony. Petitioner did not appeal that denial. (Doc. No. 1.)
On January 22, 2009, Petitioner filed the instant pro se petition for habeas relief. 28 U.S.C. § 2254; (Doc. No. 1.) Petitioner claimed that the trial judge's failure to inform the jury of Reinsich's testimony that his meeting took place at approximately 4:30 violated Petitioner's Sixth Amendment right to a fair trial and his Due Process rights under the Fifth and Fourteenth Amendments. (Doc. No. 1.) On March 11, 2009, I referred the case to a Magistrate Judge for a Report and Recommendation. (Doc. No. 4.) The Magistrate has recommended that I deny the § 2254 petition. (Doc. No. 13.) On August 3, 2009, Petitioner filed counseled objections to the Report; the Commonwealth responded on September, 9, 2009. (Doc. Nos. 14, 16.)
The extent of my review of the Magistrate's Report is committed to my discretion. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). I may "accept, reject or modify, in whole or in part, the [M]agistrate's findings or recommendations." Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001). I must review de novo, however, those portions of the Report to which specific objection is made. 28 U.S.C. § 636(b)(1)(C); see generally Goney v. Clark, 749 F.2d at 6-7.
The Magistrate concluded that Petitioner's claim has been procedurally defaulted on two grounds: (1) the independent and adequate state grounds doctrine precludes review of Petitioner's habeas claim, and (2) the instant claim was not fairly presented to the Pennsylvania courts. (Doc. No. 13.) The Magistrate Judge concluded that because Petitioner had not demonstrated cause and prejudice to excuse any procedural default, § 2254 relief should be denied. Petitioner objects only to the Magistrate's conclusions that there exists an adequate and independent state ground and that there exist no cause and prejudice to excuse any procedural default. (Doc. No. 14.) He has not addressed the conclusion that he failed to fairly present his claim in state court. (Doc. No. 14.)
A claim is procedurally defaulted so that "a federal court may not review it on the merits if a state court's decision rests on a violation of a state procedural rule. This procedural bar applies only when the state rule is 'independent of the federal question [presented] and adequate to support the judgment.'" Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. Oct. 3, 2007) (citations omitted). The requirements of "independence" and "adequacy" are distinct. Id. Under the independence requirement, "[a] state procedural ground will not bar federal habeas relief if the state law ground is so 'interwoven with federal law' that it can not [sic] be said to be independent of the merits of a petitioner's federal claims." Johnson v. Pinchak, 392 F.3d 551, 557 (3d Cir. 2004). "A state rule ...