The opinion of the court was delivered by: DuBOIS, J.
Petitioner, Leon Lewis, was found guilty by a jury of thirteen counts of robbery, four counts of criminal conspiracy and five violations of the Uniform Firearms Act (V.U.F.A.) for carrying a firearm on public streets and, on June 3, 2004, was sentenced to an aggregate term of 120 to 140 years incarceration. Commonwealth v. Lewis, No. 1850 EDA 1999 slip op. At 1 -3 (Pa. Super. Ct. Oct. 12, 2000). After direct appeals, and after seeking relief pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), Lewis filed a pro se petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 in this Court on September 8, 2008. United States Magistrate Judge M. Faith Angell submitted to the Court a Report and Recommendation dated February 2, 2010 ("R & R") in which she recommended that the Petition be dismissed. Lewis filed an Objection to Report and Recommendation on February 18, 2010 and an Amended Objection to Report and Recommendation on May 12, 2010.
Lewis's first objection is that Magistrate Judge Angell filed her R & R without access to the state court record. Second, he argues that Grounds One through Five of his Petition are exhausted, and thus not procedurally defaulted, because he presented the grounds in state court. Finally, he asserts that Grounds Six and Seven of his Petition are not procedurally defaulted because the PCRA Appellate Court's ruling rests on a rule that is neither an independent nor adequate basis for decision.
Lewis's Objections are sustained in part and overruled in part. Lewis's Objection to the analysis in the R & R regarding Grounds One through Five is overruled. The Court approves and adopts those portions of the analysis in the R & R related to Grounds One through Five in their entirety. However, the Court sustains Lewis's Objection to the analysis in the R & R related to Grounds Six and Seven. The analysis in the R & R concluding that Grounds Six and Seven were waived based on an independent and adequate state rule is rejected. The Court reviews those grounds on their merits and, for the reasons set forth below, denies them.
The facts of this case are described in detail in the R & R. The Court will not repeat them in this Memorandum except as is necessary to explain its rulings on Lewis's Objections.
A. General Objection -- Access to State Court Record
Lewis raises the general objection that Magistrate Judge Angell issued her Report and Recommendation without the benefit of access to the state court record. This objection is without merit. As Magistrate Judge Angell explained in the first footnote of the R & R, she reviewed Lewis's Petition, the Commonwealth's Answer (along with its exhibits), the Petitioner's reply, his Amended Reply, Lewis's correspondence, and the state court record. (R & R at 1 n.1). This Court has confirmed that Magistrate Judge Angell was in possession of the state court record, and -- as the numerous references to the various state-court proceedings makes clear -- the Court is confident that Magistrate Judge Angell carefully reviewed the record before filing her R & R. (See Docket Entry No. 6, No. 08-4498, Jan. 13, 2009) (acknowledging receipt of state court record in The Chambers of Magistrate Judge Angell.)
B. Objections to the Analysis of Grounds One Through Five in the Report and Recommendation Magistrate Judge
Angell concluded that grounds One through Five of Lewis's Petition were procedurally defaulted because the factual and legal bases of such grounds were not presented to the state courts. Lewis objects, drawing the Court's attention to briefs he filed in state court, which he claims contain the legal and factual basis of Grounds One through Five. Lewis's objection is without merit. In none of the documents submitted to this Court does Lewis present the legal and factual bases of Grounds One though Five. Because Lewis did not present both the factual and legal bases of these grounds in state court, they are unexhausted and, therefore, procedurally defaulted. (R & R at 10) (quoting Gattis v. Snyder, 278 F.3d 222, 231 (3d Cir. 2001)). Accordingly, the Court overrules Lewis's Objections to the conclusion of the R & R that Grounds One through Five of Lewis's Petition are procedurally defaulted and approves and adopts the analysis of those grounds in the R & R. Grounds One through Five are dismissed.
C. Objections to the Analysis of Grounds Six and Seven in the Report and Recommendation
Ground Six of Lewis's Petition is a so-called "layering" claim*fn1 contending that his counsel were ineffective at each stage of the judicial process for failing to argue that a motion to suppress should have been filed because evidence was gathered during a thirty-three hour delay between his arrest and arraignment. The R & R concludes that this ground was improperly presented to the PCRA Appellate Court, waived, and, as a result, is procedurally defaulted. ( R & R at 18-19.)
Ground Seven of Lewis's Petition asserts what he describes as a "constructive" denial of counsel claim. Specifically, he claims that "[o]n January 7, 1993, a hearing was held at City Hall, Courtroom # 146 in the Philadelphia Municipal Court. There has never been an attorney of record who represented petitioner at that proceeding or at this so-called consolidation proceeding." (Petition at 15.) In his November 14, 2006 pro se statement to the PCRA Appellate Court -- a document not referenced in the R & R, but contained in the record -- Lewis explains that he was scheduled to appear in Municipal Court, at City Hall, on January 7, 1993 for proceedings related to his misdemeanor V.U.F.A. charges. However, Lewis claims the authorities did not transfer him from S.C.I. Graterford to City Hall so that he could attend the hearing, and that no attorney was there to represent him. As a result, the misdemeanor V.U.F.U charges were consolidated with felony charges pending in the Philadelphia Court of Common Pleas and a bench warrant was issued for his arrest.
The PCRA Appellate Court dismissed Lewis's constructive denial of counsel claim, one of the five he presented to that court. Three out of those five claims were expressly deemed waived by that court due to improper layering. In the PCRA Appellate Court's analysis of the constructive denial of counsel claim at the end of its opinion, the court explained that the claim "merely reasserts his previous waived and unavailing claims." (Commonwealth v. Lewis, No. 3143 EDA 2006 slip op. at 10 (Pa. Sup. Ct. Dec. 31, 2007) ("2007 PCRA App.") In doing so, the PCRA Appellate Court appears to have treated the constructive denial of counsel claim similarly to the three claims it deemed waived as a result of improper layering. Accordingly, the R & R concluded that Ground Seven was procedurally defaulted, and ...