The opinion of the court was delivered by: DuBOIS, J.
Petitioner Draye D. Durham was convicted in 2001 of a series of robberies in the Mount Airy section of Philadelphia in November 2000. He is serving a sentence of 55 years to 110 years at the State Correctional Institution at Coal Township.
Petitioner filed a pro se Petition for Writ of Habeas Corpus ("the Petition") in this Court on October 16, 2007. On July 22, 2008, United States Magistrate Judge Henry S. Perkin submitted to the Court a Report and Recommendation ("R & R"), recommending that all claims in the Petition be denied or dismissed with prejudice without an evidentiary hearing. By Memorandum and Order of September 9, 2009, the Court rejected the R & R on the ground that, in preparing it, Magistrate Judge Perkin did not have the entire state court record before him.
The Magistrate Judge then obtained the state court record and submitted to this Court an Amended Report and Recommendation ("Amended R & R") dated April 15, 2010, once again recommending that all claims in the Petition be denied or dismissed with prejudice without an evidentiary hearing. Petitioner subsequently filed objections to the Amended R & R, which are presently before the Court.*fn1
For the reasons that follow, the Amended R & R is approved and adopted in part -- as supplemented by this Memorandum -- and rejected in part; petitioner's Objections are sustained in part and overruled in part; and all of petitioner's claims are either dismissed with prejudice or denied without an evidentiary hearing.
II. BACKGROUND AND LEGAL STANDARD
The facts of this case and the applicable legal standards are described in detail in the Amended R & R. The Court will not repeat them in this Memorandum except as is necessary to explain its rulings on the Objections.
The Petition sets forth twelve sets of claims; the Magistrate Judge recommended denying or dismissing with prejudice all of them. Petitioner has filed Objections to the Magistrate Judge's conclusion with regard to ten of those sets of claims.
As described below, the Court approves and adopts the Amended R & R as to all but the seventh set of claims.*fn2 As to that set of claims, the Court rejects only the Magistrate Judge's conclusion that petitioner failed to put forth a cognizable federal claim related to the jury charge. Because that claim is meritless, however, the Court denies habeas relief on that ground. The Court approves and adopts the Amended R & R's analysis of the seventh set of claims in all other respects.
Before evaluating petitioner's individual objections to each set of claims, the Court will amplify briefly the Magistrate Judge's discussion of the law of exhaustion and procedural default and explain why the Court does not address the merits of any of petitioner's procedurally defaulted claims.
A. Exhaustion and Procedural Default
As a general matter, a prisoner held pursuant to a state conviction can only obtain federal habeas relief if he has first exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A). Where an unexhausted claim can no longer be presented in state court, it is considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000). A claim is also procedurally defaulted if the state court imposes a procedural bar to review, so long as the procedural rule applied is "'firmly established and regularly followed' at the time of the alleged procedural default." Lewis v. Horn, 581 F.3d 92, 105 (3d Cir. 2009) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)).
Procedural default will only be excused in two circumstances. First, a petitioner can overcome procedural default if he can prove "cause" and "prejudice" for the default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Cause is present where the petitioner can demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice exists where the petitioner shows "not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis omitted)). In the alternative, a petitioner also can overcome procedural default if he can demonstrate that the absence of federal consideration of his claims will lead to a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 315 ...