The opinion of the court was delivered by: DuBOIS, J.
Petitioner, John Joseph Volz, was found guilty after a non-jury trial of various offenses related to three incidents in 1996 in which he attempted to or succeeded in kidnapping and sexually assaulting young girls. On June 14, 1998, the Honorable Rayford R. Means of the Philadelphia Court of Common Pleas, who presided over the trial, sentenced petitioner to a total term of imprisonment of 87 to 174 years. Commonwealth v. Volz, No. 2902 EDA 2002, slip op. at 16-19 (Pa. Super. Ct. Oct. 29, 2003).
Following direct appeals and proceedings under the Pennsylvania Post-Conviction Relief Act ("PCRA"), petitioner 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 or about February 23, 2009.*fn1 Attached to that Petition was Petitioner's Motion to Proceed Nunc Pro Tunc.*fn2 United States Magistrate Judge David R. Strawbridge submitted to the Court a Report and Recommendation dated January 29, 2010 ("R & R") in which he recommended that the Petition be denied and dismissed. Petitioner filed Objections to the Report and Recommendation on March 19, 2010, which the Court addresses in this Memorandum.
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 petitioner's Objections.
A. Petitioner's First Claim: Ineffective Assistance of Counsel for Failure to Call Joanmarie Donnelly As a Witness
In his § 2254 Petition, petitioner argues that trial counsel was ineffective for failing to call as a witness his girlfriend at the time, Joanmarie Donelly, whose testimony he claims would have called into question the victims' identification of petitioner and his car. The R & R concluded that this claim (a) was procedurally defaulted, as it was not properly presented as a layered ineffective assistance of counsel claim, and (b) was without merit, as Donnelly's testimony was unlikely to affect the outcome of petitioner's trial. (See R & R 20-33.) In the Objections petitioner presents eight arguments in opposition to the analysis in the R & R with respect to this claim. They are briefly discussed in turn.
First, petitioner objects to the finding that his ineffective assistance of counsel claim is procedurally defaulted. He argues that the Magistrate Judge "misconstrues [p]petitioner's claim" and states that appellate counsel did not "adhere to [p]petitioner's wishes" or "adequately communicate with [p]petitioner" to ensure that the layered ineffective assistance of counsel claim was properly presented in the direct appeal phase. (Pet'r Objs. 2.) In essence, petitioner argues that while his appellate counsel did raise challenges on appeal with respect to trial counsel's performance (see R & R 26 n.18), appellate counsel was also ineffective by failing to include the argument that trial counsel should have called Joanmarie Donnelly as a witness. The Magistrate Judge, in addressing this argument in the R & R, determined that under Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), petitioner was "relie[ved] from any further need to raise ineffective assistance of counsel claims on direct review, but only as to issues of ineffectiveness that had already been 'properly raised and preserved.'" (R & R 26 (quoting Grant, 813 A.2d at 738).) Because petitioner had not yet presented this claim at the time of the Grant decision, the R & R concluded that it "had not been properly raised and preserved and therefore not saved by the Grant rule change." (Id.) The Court agrees that petitioner's claim is procedurally defaulted.
The Superior Court ruled that petitioner's ineffective assistance of counsel claim was waived due to his failure to present a layered claim. That court also determined that, "[i]n any event, even if not waived, upon review of the record we would agree with the trial court that [Volz]'s underlying allegation that trial counsel was ineffective is meritless." Volz, No. 3051 EDA 2006, slip op. at 6-7; (see R & R 22, 33). The R & R concludes that the Superior Court correctly determined that petitioner did not establish that the failure to call Donnelly to testify prejudiced petitioner's case. (See R & R 33.) The Court agrees. Accordingly, the Court approves and adopts the R & R on this issue, and overrules petitioner's objection on this ground.
Second, petitioner argues that the R & R "misconstrues [p]petitioner's claim based on a miscarriage of justice to excuse a procedural default." (Pet'r Objs. 3.) Under Schlup v. Delo, 513 U.S. 298 (1995), petitioner avers that "in light of new evidence" -- specifically, Donnelly's affidavits -- "no reasonable juror [or fact-finder] would have found [p]petitioner guilty beyond a reasonable doubt." (Pet'r Objs. 3 (first set of brackets in original).) The R & R addresses this argument,*fn3 concluding, "[w]e do not find the recent affidavits of Donnelly to constitute new, reliable evidence that [petitioner] was innocent." (R & R 27 n.20.) The Court agrees, and overrules petitioner's objection on this ground.
Petitioner's third and fourth arguments both relate to the significance of Donnelly's testimony as to the identification of petitioner and his car by victims, and thus the Court will consider them at the same time. In his third argument, petitioner claims that the R & R "incorrectly concludes that [p]petitioner has failed to present any new or reliable evidence as to his claim that trial counsel failed to present material evidence pertaining to the identification of [p]petitioner and/or his vehicle," (Pet'r Objs. 3), and in his fourth argument, petitioner avers that the R & R "erroneously rejects [p]petitioner's claim that defense counsel could have used Ms. Donnelly's testimony to pursue a defense based on substantive identification, due to [p]petitioner's lack of a beard and his car[']s lack of a brown-colored top/roof," (id. at 4). The R & R fully addresses the evidence presented by petitioner, and states that "[w]ith respect to the... question of identification, we conclude that Donnelly's proffered testimony, according to her affidavit, would likewise have had no effect upon the outcome of Volz's case in light of the strong evidence of his guilt." (R & R 31.) The Court agrees, and approves and adopts the R & R on these issues. (See R & R 27-33.) Petitioner's objections on these two grounds are overruled.
Petitioner's fifth, sixth, seventh, and eighth arguments all relate to the conclusion in the R & R that petitioner's claim lacks merit. In these paragraphs of his Objections, petitioner argues that the R & R: "erroneously finds a lack of evidence as to [p]petitioner's innocence beyond a reasonable doubt" given Donnelly's affidavits; "errs in finding that Ms. Donnelly's [a]ffidavits do not establish a prima facie case of ineffective assistance of counsel, sufficient enough to warrant an evidentiary hearing"; "errs in speculating that trial counsel had a legitimate tactical reason for not involving Ms. Donnelly"; and "errs in determining that [p]petitioner suffered no prejudice from the failure by trial counsel to conduct a reasonable pretrial investigation and to present Ms. Donnelly." (Pet'r Objs. 5, 6, 7, 9.) The R & R addresses each of these arguments, and concludes that petitioner's claim lacks merit. The Court agrees, and approves and adopts the R & R on these issues. Petitioner's objections on these four grounds are overruled.
B. Petitioner's Second Claim: Due Process Claim Regarding Prosecutor's Alleged Suppression of Donnelly's Testimony
Petitioner also claims that his due process rights were violated when the prosecutor allegedly prevented Donnelly from testifying during petitioner's trial. Petitioner first presented this claim in his second PCRA petition in 2008, which was denied, and petitioner's appeal of that decision is currently pending before the Superior Court. (See R & R 34.) As a result, petitioner has not "exhausted the remedies available in the courts of the State" as required under 28 U.S.C. § 2254(b)(1)(A). (See id.) Respondents argue that, regardless of the exhaustion requirement, petitioner's claim is procedurally defaulted because it was not brought in a timely manner, and thus may be denied on that ground. (Id.) The R & R notes that it could "dispose of this claim on the grounds of procedural default and the failure to... exhaust state court remedies when they were available...." (Id. at 36.) However, the R & R concludes that because Donnelly's failure to testify did not prejudice petitioner's case, the claim may be denied on the merits. (Id.)
In response, petitioner presents two arguments. First, he claims that the R & R "errs in finding that [p]petitioner's claim should be denied on [the] merit[s]," and restates arguments asserted in his ineffective assistance of counsel claim with respect to the significance of Donnelly's affidavits. (Pet'r Objs. 11-12.) For the reasons stated above, the Court adopts that part of the R & R which concludes that Donnelly's failure to testify did not prejudice petitioner's case. The Court overrules petitioner's objection on this issue and denies this due process claim on the merits.
Second, petitioner avers that the R & R "incorrectly concludes that [p]petitioner's claim should possibly be disposed of due to procedural default and failure to exhaust state court remedies." (Id. at 13.) However, as this Court denies this claim on the merits, the objection is overruled.
Related to this claim, petitioner submitted a Motion to Proceed Nunc Pro Tunc with his Petition for Habeas Corpus. In that motion, petitioner argues that relief previously sought on direct appeal and through the PCRA process did not "reveal the true and unadulterated facts pertaining to [petitioner's] [a]ctual [i]nnocence." (Nunc Pro Tunc Mot. 4.) Petitioner asks the Court to "give meritorious consideration to claim(s) of prosecutorial misconduct/'Brady' violation of which Plaintiff diligently attempted to raise for exhaustion of State court remedy, in the past." (Id. at 4.)
The R & R fully addresses petitioner's claim of prosecutorial misconduct, which this Court approves and adopts in full. While petitioner's Motion to Proceed Nunc Pro Tunc attempts to explain why this claim was not made before his second PCRA appeal in 2008, that does not alter this Court's conclusion that this claim must be ...