The opinion of the court was delivered by: Stewart Dalzell, J.
AND NOW, this 16th day of February, 2011, upon consideration of Ravanna Spencer's petition for writ of habeas corpus (docket entry # 3), the Commonwealth's answer to the application for habeas corpus relief (docket entry # 10), Spencer's brief in reply to the Commonwealth's answer (docket entry # 16), the Report and Recommendation of the Honorable David R. Strawbridge (docket entry # 19), Spencer's pro se Objections to the Report and Recommendation ("Objs.") (docket entry # 22), and the Court finding that:
(a) Ravanna Spencer seeks federal habeas relief from his state convictions for robbery, theft, and a firearms offense after a bench trial in the Court of Common Pleas of Philadelphia County; Spencer was convicted of these crimes on February 22, 2003; the Pennsylvania Superior Court affirmed his conviction on January 18, 2006, and he did not seek review of his conviction in the Pennsylvania Supreme Court;
(b) Spencer filed a pro se claim pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq., on March 29, 2006; the PCRA Court appointed counsel, but the appointed counsel soon thereafter sent the PCRA Court a Finley letter requesting that he be permitted to withdraw as counsel because he found Spencer's claims to be wholly frivolous; the PCRA Court permitted counsel to withdraw and dismissed the petition without a hearing;
(c) Spencer appealed to the Pennsylvania Superior Court on June 4, 2007, by filing a notice of appeal, but failed to file a Pa. R. App. P. 1925(b) statement of matters complained of on appeal as ordered by the PCRA Court on June 8, 2007, despite having been granted two enlargements of time to do so; the Superior Court declined to decide the issues Spencer raised in his PCRA petition and affirmed the dismissal of the petition on December 10, 2008;
(d) Spencer sought no further appeal or other request for collateral relief until filing his petition for habeas relief in the Middle District of Pennsylvania on December 11, 2009 (Spencer dated his handwritten petition December 7, 2009); the matter was transferred to this District on February 16, 2010;
(e) Judge Strawbridge considered whether there may be 2 arguable merit to the contention that Spencer's limitation period should be equitably tolled (because he was denied access to the courts when his legal papers were taken from him during a prison transfer), but concluded that because Spencer failed to exhaust his state remedies his claims are procedurally defaulted;
(f) Spencer objects to Judge Strawbridge's Report and Recommendation and claims that (1) his claims should not be procedurally defaulted because he established cause and prejudice by showing that Judge Sarmina did not send him everything that he needed to file a Rule 1925(b) statement after he asked her to replace his legal files, which were destroyed,
(2) his claims should not be procedurally defaulted because he has established cause and prejudice by showing that the prison law library was inadequate, and (3) that a failure to file a Pa.
R. App. P. 1925(b) statement does not constitute a procedural default on independent and adequate state law grounds;
(g) Where a claim is procedurally defaulted, we may only entertain a petition for federal habeas relief where the petitioner shows "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750 (1991);
(h) With regard to Spencer's first claim that his right of access to the courts was violated because Judge Sarmina did not send him everything he needed to replace his destroyed legal files, Objs. at unnumbered pages 2-3, Judge Strawbridge found that "Spencer has not rebutted in any way the presumption that Judge Sarmina's assistance in fact rectified the deficiency in his legal papers," R&R at 11; but Spencer provides with his Objections a sworn declaration averring that Judge Sarmina sent him only his trial transcripts and nothing more; before Spencer's legal file had been destroyed, he had been in possession of "trial transcripts, preliminary hearing transcripts. . . and exhibits," Objs., Ex. A-17; Spencer claims that receiving the trial transcripts alone did not cure the "years of research [he] did and the case law [he] accumulated to support [his] issues";
(i) But pursuant to Edwards v. Carpenter, 529 U.S. 446, 451-454 (2000), Spencer's claim that his legal file was destroyed, and that this prevented him from filing a timely Rule 1925(b) statement (like a claim of ineffective assistance of counsel) is itself "an independent constitutional claim. . . [that must] first [be] raised in state court," id. at 451-52;
(j) Spencer could have raised a related claim in a new PCRA petition, seeking reinstatement of his appellate rights, but that time has now passed, ...