The opinion of the court was delivered by: Slomsky, J.
Before the Court is the Petition of Aaron L. Bell ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks review of his pro se petition for collateral relief under the Pennsylvania Post-Conviction Relief Act (PCRA) based on alleged ineffective assistance of counsel. For purposes of this Opinion, the Court has considered the Petition for Writ of Habeas Corpus (Doc. No. 1), Petitioner's Revised Habeas Corpus Petition (Doc. No. 4), the Response to the Petition for Writ of Habeas Corpus (Doc. No. 10), Petitioner's Response to State's Answer (Doc. No. 13), United States Magistrate Judge M. Faith Angell's Report and Recommendation (Doc. No. 16), Petitioner's Objection to Magistrate Judge Angell's Report and Recommendation (Doc. No. 18), and the pertinent state court record.
Following a review of the filings by the parties and the state court record, Magistrate Judge Angell issued a Report and Recommendation that the Petition for Habeas Corpus be denied and dismissed without an evidentiary hearing. (Doc. No. 16.) Petitioner filed an objection to the Report and Recommendation. (Doc. No. 18.) For reasons that follow, the Court will approve and adopt with modification Magistrate Judge Angell's Report and Recommendation (Doc. No. 16) and deny the Petition for Habeas Corpus.
II. FACTUAL BACKGROUND*fn1
In December 2002, following a jury trial before the Honorable M. Teresa Sarmina in the Philadelphia Court of Common Pleas, Petitioner Aaron L. Bell was found guilty of first degree felony robbery and criminal conspiracy. On January 23, 2003, Petitioner was sentenced to a term of imprisonment of not less than five years and not more than ten years on the robbery charge. On the charge of criminal conspiracy, Petitioner was sentenced to a term of imprisonment of not less than five years and not more than ten years, to run concurrently with the robbery sentence.
Initially, Petitioner took no direct appeal. He filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act (PCRA) on April 14, 2003. PCRA counsel had originally filed a Finley letter, see Commonwealth v. Finley, 550 A2d 213 (PA. Super. 1988), advising the PCRA court that Petitioner had failed to raise any meritorious issues on appeal. However, upon further review, the PCRA court discovered that Petitioner had requested that his trial counsel file an appeal but counsel never did so. As a result, on April 16, 2004, the PCRA court reinstated Petitioner's appellate rights nunc pro tunc. See Commonwealth v. Bell, October Term, 2001 No. 0817, slip op. at 1-2 (C.C.P. Philadelphia County, June 15, 2004); (Doc. No. 10, Exhibit ("Ex.") I at 27-28).
On his reinstated direct appeal to the Pennsylvania Superior Court, Petitioner raised two claims of trial court error relating to the instructions to the jury. On May 20, 2005, the Superior Court affirmed the conviction, finding that Petitioner's failure to object at trial caused him to waive review of the issues on appeal and, moreover, that the issues were without merit. Commonwealth v. Bell, 1203 EDA 2004, slip op. at 3-4 (Superior Court, May 20, 2005); (Doc. No. 10, Ex. J). Petitioner did not seek review in the Supreme Court of Pennsylvania but instead filed a pro se PCRA petition on July 14, 2005. (See Doc. No. 10, Ex. K.) Therein, Petitioner asserted a claim of ineffective assistance of trial counsel. The PCRA court performed an independent review of Petitioner's case. On June 23, 2006, the PCRA court denied the petition. (See Doc. No. 10, Ex. Q.) On July 24, 2006 Petitioner filed a notice of appeal to the Superior Court of Pennsylvania. (See Doc. No. 10, Ex. R.) On November 14, 2007, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Bell, No. 2059 EDA 2006, slip op. (Superior Court, November 14, 2007), (Doc. No. 10, Ex. T). Petitioner next sought allowance of appeal in the Supreme Court of Pennsylvania. (See Doc. No. 10, Ex. U.) On June 24, 2008, the Supreme Court denied the Petition for Allowance of Appeal. Commonwealth v. Bell, No. 706 EAL 2007 Order (Supreme Court, June 24, 2008), (Doc. No. 10, Ex. V.)
On October 9, 2008, Petitioner signed and dated an Application for Writ of Habeas Corpus (the "Application"), which was filed in this Court on October 14, 2008 (Doc. No. 1). As Ordered by the Court, (see Doc. No. 2), Petitioner subsequently filed a Petition for Writ of Habeas Corpus on the proper form on December 4, 2008 (Doc. No. 4) (together with the Application, the "Petition"). The Petition set forth several claims of ineffective assistance of counsel, trial court error, and prosecutorial misconduct. On March 6, 2009, the Commonwealth filed a Response to Petition for Writ of Habeas Corpus arguing that Petitioner is not entitled to habeas relief because the claims that he put forth are either procedurally defaulted or lacking in merit. (Doc. No. 10.) As noted, on May 17, 2010, Magistrate Judge M. Faith Angell issued a Report and Recommendation concluding that the Petition be denied and dismissed without an evidentiary hearing. On June 2, 2010, Petitioner filed pro se an objection to the Report and Recommendation (Doc. No. 18).
Petitioner objects to Magistrate Judge Angell's findings because (1) claims of ineffective assistance of counsel are distinct from the underlying claim of trial court error and must be reviewed under a separate standard and (2) Petitioner's claims of ineffective assistance of counsel were raised in a timely manner and thus were not waived. Petitioner's brief raises other "issues" that, while cloaked as objections to the Report and Recommendation, are no more than restatements of arguments made previously and are outside the scope of review for purposes of this Opinion.*fn2
The Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made . . . the Court may accept, reject, or modify, in whole or in part, the findings or recommendation made by the magistrate judge." 28 U.S.C. § 636(b). Following an independent review of the pertinent record, the Court finds that Petitioner's Habeas Petition was properly denied, although for reasons that differ slightly from those in the Report and ...