The opinion of the court was delivered by: James Knoll Gardner United States District Judge
NOW, this 22nd day of June, 2011, upon consideration of the following documents:
(1) Petition for Writ of Habeas Corpus by a Person in State
Custody filed by petitioner Bryan Becker pro se on January 28,
2009 *fn1 (Document 3); together with
Memorandum of Law in Support of § 2254 Motion, which memorandum
was filed by petitioner on November 3, 2008 *fn2
(2) Answer to Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, which answer was filed by v. respondents on November 23, 2009 (Document 10); together with Memorandum of Law filed by respondents on November 23, 2009 (Document 10);
(3) Reply to Respondent's Claims for 28 U.S.C. § 2254 Habeas Corpus Petition, which reply was filed by petitioner on December 3, 2009 (Document 12);
(4) Report and Recommendation of United States Magistrate Judge Timothy R. Rice filed April 26, 2010 (Document 16);
(5) Objections to the Report and Recommendation of the Magistrate Judge, which objections were filed by petitioner on May 6, 2010 (Document 17); and
(6) Response in Opposition to Objections to Report and Recommendation, which response was filed by respondents on November 1, 2010 (Document 20), it appearing after review of this matter that Magistrate Judge Rice's Report and Recommendation correctly determined the legal and factual issues presented in the petition for habeas corpus relief, IT IS ORDERED that the objections of petitioner to the Report and Recommendation of Magistrate Judge Rice are overruled.*fn3
Petitioner is incarcerated at the State Correctional Institution Rockview in Bellefonte, Pennsylvania, where he is serving a nine- to thirty-year sentence, imposed by the Court of Common Pleas of Delaware County. A jury convicted him of various crimes stemming from his internet communications with law enforcement officials posing as a thirteen-year-old boy, and his arrival at an agreed-upon meeting with the putative boy. (I note that the Report and Recommendation stated at page 2 that petitioner is serving a nine-to thirteen-year sentence, however, the Delaware County Court of Common Pleas Certificate of Imposition of Judgment of Sentence confirms that the sentence is for nine to thirty years.)
Petitioner raises what appear to be two objections to the Report and Recommendation. Each will be addressed in turn. The factual and procedural history underlying petitioner's request for federal habeas relief is well-summarized in the Report and Recommendation at pages 1-5, and is incorporated here.
Petitioner's first objection argues that Magistrate Judge Rice erred in holding that five of petitioner's claims were not exhausted and were procedurally defaulted. Without providing specific argument, petitioner alleges that "several issues" were "properly preserved" in his Post-Conviction Relief Act ("PCRA") petition, and that it is "impossible" for the issues "the Superior Ct. [of Pennsylvania] waived" not to be preserved. (Objections at 1.) Petitioner's second objection appears to contest Magistrate Judge Rice's decision that petitioner's claims for prosecutorial misconduct and ineffective assistance of counsel in relation to the testimony and cross examination of his parole officer are meritless. (Objections at 1.)
Petitioner's first objection is without merit. Magistrate Judge Rice correctly determined that the four claims deemed to be waived by the Superior Court of Pennsylvania on PCRA appeal, and the claim raised for the first time on habeas review, are unexhausted and procedurally defaulted. (Report and Recommendation at 8-10.) I agree with Magistrate Judge Rice's conclusion that petitioner has not shown cause and actual prejudice, or a miscarriage of justice, to excuse the default. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Accordingly, I overrule the first objection.
Petitioner's second objection is also without merit. Petitioner broadly asserts that Magistrate Judge Rice's decision regarding petitioner's claims for prosecutorial misconduct and ineffective assistance of counsel was "unethical". (Objections at 2.) However, petitioner makes no specific or substantive objections beyond restating the arguments he raised in his habeas petition. In addition, Magistrate Judge Rice properly applied the deferential review required by the Antiterrorism and Effective Death Penalty Act of 1996,28 U.S.C. § 2254(d), to the remaining ...