The opinion of the court was delivered by: Hon. William T. Prince
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge William T. Prince (Doc. 20), filed on November 12, 2010 which recommends that the petition for writ of habeas corpus filed by Petitioner Charles Diggs ("Petitioner" or "Diggs") be denied. After being granted an extension of time within which to do so, Petitioner filed objections to the R&R on January 28, 2011. (Doc. 24). Accordingly, this matter is ripe for our review.
For the reasons that follow, the R&R shall be adopted, the Petitioner's objections overruled and the petition shall be denied.
A. Claims in the Petition
In the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 Diggs presents two grounds for overturning his conviction: (1) that by failing to disclose certain items of evidence that defense counsel could have used to show bias on the part of the prosecution's star witness, Jack Singer ("Singer"), the prosecutor violated the duty imposed by Brady v. Maryland, 373 U.S. 83 (1963); and (2) that by failing to correct testimony from the star witness that was known to be false, the prosecutor violated the dictates of Giglio v. United States, 405 U.S. 150 (1972).
As a threshold matter, we note that Magistrate Judge Prince recommends that the only claim to be properly considered on the instant petition is Diggs' Brady claim. The Magistrate Judge aptly noted that Diggs did not properly preserve the Giglio claim in the state courts, thus it cannot be considered by us. See Stevens v. Del. Corr. Ctr., 295 F. 3d 361, 369 (3d Cir. 2002)(quoting Whitney v. Horn, 280 F. 3d 240, 250 (3d Cir. 2002))(a habeas petitioner must "fairly present" all federal claims to the highest state court before bringing them in federal court). Diggs does not object to this recommendation, and because we agree with the Magistrate Judge on this point, we shall only consider the Petitioner's Brady claim herein.
In 1977, Diggs was convicted, after a jury trial, of kidnaping and murder in the first degree of Nancy White. He was sentenced to life in prison for the murder and a consecutive term of ten to twenty years for the kidnaping. Diggs challenged his conviction through a direct appeal, a federal habeas corpus action, and a petition in state court under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541-46, all unsuccessfully.
On November 6, 2000, Diggs filed a second PCRA petition, claiming he was denied a fair trial and due process. In support of this claim, Diggs referred to a statement in the Commonwealth's brief to the Superior Court filed in Diggs' first PCRA action, which read: "The Commonwealth presented the testimony of Jack Singer. While incarcerated at Erie County as a parole violator on a burglary conviction, Singer contacted the State Police in Harrisburg and the Dauphin County District Attorney's Office in June 1976 representing that he had information concerning the case." (Doc. 20, p. 2). This information, that Singer had contacted the police while incarcerated, had not come to light in the 1977 trial.*fn1
Thus, Diggs claimed that this statement concerning Singer revealed that he was convicted on the basis of false testimony, and that evidence potentially impeaching Singer had been withheld in violation of Brady.
In January 2002, the PCRA court denied Diggs' petition, finding that Diggs had failed to show that a miscarriage of justice had occurred. On appeal from this decision, the Superior Court remanded for an evidentiary hearing to determine Singer's status at the time of trial and the time of his first contact with the District Attorney; what the District Attorney knew ...