The opinion of the court was delivered by: District Judge Sean J. McLaughlin
Magistrate Judge Susan Paradise Baxter
SEAN J. McLAUGHLIN, District Judge.
This habeas action filed by Petitioner, Buwlus A. Muhammad, a/k/a Paul Cooper, pursuant to 28 U.S.C. § 2254 was referred to United States Magistrate Judge Susan Paradise Baxter for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Local Rules for Magistrate Judges. On August 1, 2011, the Magistrate Judge issued a Report and Recommendation ("R&R") [ECF No. 28] recommending that the petition be denied with respect to each of Petitioner's claims and that a certificate of appealability ("COA") be denied. She further recommended that Respondents' motion to quash [ECF No. 23] be denied and Petitioner's motion in which he seeks to quash Respondents' motion [ECF No. 27] be dismissed as moot. On August 11, 2011, Petitioner filed Objections [ECF No. 29] to the R&R.
Where, as here, objections have been filed, the Court is required to make a de novo determination as to those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1). Accordingly, this Court has carefully examined de novo all claims raised by Petitioner in his Objections and we agree with the Magistrate Judge that he is not entitled to habeas relief or a COA on any of his claims. Petitioner's Objections are overruled and we approve and adopt the R&R, as supplemented herein. We write only to address his contention that Claims 2(b) and 3 are not procedurally defaulted.*fn1
The Magistrate Judge recommended that the following claims be denied as procedurally defaulted:
Claim 2 Petitioner's constitutional rights were violated because . (b) his pre-trial/stand-by counsel was ineffective for failing to investigate evidence of his mental health and request an evaluation for competency; and, Claim 3 His constitutional rights were violated because of the "use of government powers and authority to commit fraud . the certified records and trial evidence discovered and established that the Erie County Prison officials falsified incident reports, and fabricated evidence [and] in doing so withheld exculpatory evidence to facilitate criminal prosecution."
Petitioner raised these same claims in his PCRA proceeding. In a Memorandum issued on October 19, 2010, the Superior Court of Pennsylvania held that they were waived pursuant to Rule 2116 of the Pennsylvania Rules of Appellate Procedure because Petitioner failed to list them in the "Statement of Questions Involved" section of his appellate brief. Commonwealth v. Muhammad, No. 491 WDA 2010, slip op. at 5-6 (Pa.Super. Oct. 19, 2010). Rule 2116 provides that "[n]o question will be considered unless it is stated in the statement of questions involved[.]" The Magistrate Judge explained that, based upon the Superior Court's decision, Petitioner had procedurally defaulted Claims 2(b) and 3.
In his Objections, Petitioner points out that in their Answer, Respondents stated that "there was no violation of Pennsylvania's procedural rules which would serve to invoke the procedural default doctrine." [ECF No. 17 at 10]. Although this is true, Respondents filed their Answer before the Superior Court had issued its October 19, 2010 Memorandum. Therefore, the procedural default defense was not available to them at the time that they made that statement.
That the Respondents did not raise the defense, however, does not bar this Court from considering it. We have "the authority to raise the issue of procedural default sua sponte." Evans v. Secretary Pennsylvania Dept. of Corr., 645 F.3d 650, 656 n.12 (3d Cir. 2011). See also Sweger v. Chesney, 294 F.3d 506, 520 n.3 (3d Cir. 2002); Szuchon v. Lehman, 273 F.3d 299, 321 n.13 (3d Cir. 2001); Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997); Day v. McDonough, 547 U.S. 198, 206 (2006) ("While the issue remains open in this Court . the Courts of Appeals have unanimously held that, in appropriate circumstances, courts, on their own initiative, may raise a petitioner's procedural default[.]"). As the U.S. Court of Appeals for the Third Circuit has explained:
"We retain this discretion because the doctrine of procedural default, while not a jurisdictional rule, 'is grounded upon concerns of comity between sovereigns and often upon considerations of judicial efficiency.' . 'Because these concerns substantially implicate important interests beyond those of the parties, it is not exclusively within the parties' control to decide whether such a defense should be waived.'"
Sweger, 294 F.3d at 520 n.13 (quoting Szuchon, 273 F.3d at 312 n.13, which quoted Hardiman v. Reynolds, 971 F.2d 500, 503 (10th Cir. 1992)).
In conclusion, it is within this Court's discretion to apply the procedural default doctrine to Claims 2(b) and 3, and we agree with the Magistrate Judge that ...