The opinion of the court was delivered by: Anita B. Brody, J.
Armando Leyva ("Leyva" or "Petitioner") petitions this Court for a Federal Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. I will deny the petition.
On July 21, 1999, Leyva was tried before Judge Anthony J. DeFino in Philadelphia's Court of Common Pleas on charges of involuntary deviate sexual intercourse, statutory sexual assault, corruption of a minor, indecent exposure, and indecent assault. The victim, L.B., was fourteen years old when the alleged events occurred. At the end of the trial, Judge DeFino found Leyva guilty of statutory sexual assault and corruption of a minor, in violation of 18 Pa. C.S.A. §§ 3122.1 and 6301. Leyva was sentenced to eleven and one-half to twenty-three months imprisonment, followed by three years probation.
Represented by new counsel, Leyva sought direct and collateral state court review of his conviction, fully exhausting all of the claims he presents here. On August 5, 2004, Leyva filed the instant petition for Writ of Habeas Corpus. His petition raised five grounds for relief:
(1) Trial counsel was ineffective because he (a) failed to withdraw in order to testify about the efforts of L.B.'s mother to obtain $5,000 from Leyva in exchange for dropping all the charges against him, and (b) failed to call L.B.'s mother as an adverse witness.
(2) Trial counsel was ineffective for (a) failing to withdraw his representation in order to testify after L.B. stated at trial that she was pressured by trial counsel to drop the charges against Lopez, and (b) having a conflict of interest because he previously represented Lopez.
(3) Trial counsel was ineffective and had a conflict of interest because he failed to present evidence that L.B.'s mother was motivated to lie (and to pressure her daughter to lie) because she was cooperating with the government in an unrelated case.
(4) Trial counsel was ineffective for failing to request evidence of L.B.'s mother's cooperation agreement with the government in an unrelated case. Moreover, the government's failure to turn over this evidence rendered his conviction unconstitutional.
(5) Trial counsel was ineffective for failing to introduce evidence about L.B.'s previous accusation against Jose Rojas.
Leyva v. Williams, et al., 504 F.3d 357, 362 (3d Cir. 2007). Leyva's fourth claim also alleged that the prosecution violated its obligation to turn over L.B.'s journal to the defense. On August 12, 2004, I referred the case to Magistrate Judge Caracappa. She issued a Report and Recommendation on March 2, 2005 (the "First R&R"). She recommended that claim 1(a) was procedurally defaulted because Leyva failed to comply with a Pennsylvania rule that requires missing witnesses to submit affidavits showing their availability and willingness to testify. She recommended that claims 1(b), 2(a), 3, and 4 were procedurally defaulted because Leyva failed to comply with a provision of the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S. § 9541, et seq., that requires the petitioner to be "currently serving a sentence of imprisonment, probation or parole for the crime." 42 Pa. C.S. § 9543(a)(1)(i). Magistrate Judge Caracappa recommended that I deny claims 2(b) and 5 on the merits. Leyva failed to object and, on March 30, 2005, I adopted and approved the First R&R. Leyva then appealed to the Third Circuit. The Third Circuit vacated the dismissal of claims 1(a), 1(b), 2(a), 3, and 4, writing:
First, Leyva's failure to submit an affidavit to establish that his trial counsel or the complainant's mother were available and willing to testify does not result in procedural default of claim 1, because an affidavit requirement is not an "adequate" state ground. Second, Leyva's failure to comply with Pennsylvania's custody requirement does not bar review of claims 2(a), 3, and 4, because Leyva's noncompliance with this requirement did not result from any failure on his part.
Finally, we agree with the government that claim 2(b), concerning trial counsel's prior representation of Wilfredo Lopez, was properly denied by the Magistrate Judge on the merits.
Leyva, 504 F.3d at 365. On December 11, 2007, I referred the matter to Magistrate Judge Caracappa for a Report and Recommendation on Leyva's remaining claims (the "Second R&R"). After an evidentiary hearing on September 30, 2008, Judge Caracappa recommended that I dismiss all of Leyva's claims. On June 10, 2009, Leyva filed the following objections to the Second R&R:
* Trial counsel provided ineffective assistance of counsel because he failed to withdraw to testify that the complainant's mother offered to drop the charges in exchange for $5,000 (claim 1(a)),
* Trial counsel provided ineffective assistance of counsel because he failed to withdraw to testify about the complainant's statement to him that her prior allegations of sexual assault against another man were false and made at the behest of her mother (claim 2(a)),
* The Commonwealth violated its Brady obligations by failing to provide the defendant with a copy of the cooperation plea agreement the Commonwealth entered into with the complainant's mother in an unrelated homicide case (claim 4), and
* The Commonwealth violated its Brady obligations by failing to provide the defendant with a copy of the complainant's missing journal (claim 4).*fn1
A district court reviews de novo "those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). See also Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts. A district court, however, "may not reject a finding of fact by a magistrate judge without an evidentiary hearing, where the finding is based on the credibility of a witness testifying before the magistrate judge." Hill v. Beyer, 62 F.3d 474, 482 (3d Cir. 1995).
Any determinations of factual issues made by a state court are presumed to be correct. 28 U.S.C. § 2254(e). State courts are also entitled to deference with respect to their legal conclusions. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "the state court's decision must stand unless it is 'contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Lam v. Kelchner, 304 F.3d 256, 263 (3d Cir. 2002) (citing 28 U.S.C. § 2254(d)(1)). A state court decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at" an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). An unreasonable application of law occurs when the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. In this case, the state courts never addressed Leyva's current claims on the merits. Thus, I do so in the first instance here.
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
After conducting an evidentiary hearing on November 9, 2009, I make the following findings of fact and conclusions of law:
A. Ineffective Assistance of Counsel
Leyva makes two claims based on ineffective assistance of counsel. Both claims argue that Charles Peruto, Jr. ("Peruto"), Leyva's trial attorney, should have withdrawn from representing Leyva so that Peruto could have testified at trial. First, Leyva argues that Judge Caracappa should have found that Peruto was ineffective because he failed to withdraw to testify about the complainant's statement to him that her allegations of sexual assault against another man in another case were false and that she made them at her mother's direction (claim 2(a)). Second, Leyva argues that Judge Caracappa erred by failing to find that Peruto ...