The opinion of the court was delivered by: Mary A. McLAUGHLIN, J.
AND NOW, this 9th day of September, 2011, upon consideration of the Petition for Writ of Habeas Corpus (Docket No. 1), the Amended Petition for Habeas Corpus (Docket No. 7), the Commonwealth's objections, the responses and replies thereto, petitioner's objections to the Report and Recommendation, and after review of the Report and Recommendation of United States Magistrate Judge Lynne A. Sitarski, IT IS HEREBY ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petitioner's objections are OVERRULED;
3. The Petition for Writ of Habeas Corpus is DISMISSED and DENIED; and
4. Petitioner has neither shown a denial of a constitutional right, nor established that reasonable jurists would disagree with this Court's disposition of his claims. Consequently, a certificate of appealability is DENIED.
5. The Clerk of Court shall mark this case closed for statistical purposes.
The Court discusses below petitioner's objections and explains why they are overruled. The Court will follow the format of the Report and Recommendation and petitioner's objections thereto.
A. Claim No. 3 Subsection (a)-(h), (j)-(k): Ineffective Assistance of Trial Counsel The Report and Recommendation concluded that ten of petitioner's eleven claims of ineffective assistance of trial counsel ("IAC claims") are procedurally defaulted. Gribble raises two objections.
First, Gribble objects that contrary to the Magistrate Judge's assertion, he did, in fact, raise in state court two of his IAC claims for (1) failure to investigate and use character evidence and (2) failure to present any viable defense. See Obj. at 2. Factually, Gribble is correct: he raised these claims in his petitions under the Post Conviction Relief Act ("PCRA"). However, Gribble abandoned both claims in his PCRA appeal. Gribble thus failed to exhaust available state remedies because he did not invoke one complete round of the state appellate review process. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The minor factual error in the Report and Recommendation thus does not alter the conclusion that Gribble procedurally defaulted these claims.
Second, Gribble objects that he established cause to excuse his procedural default because he is entitled to effective assistance of PCRA and PCRA appellate counsel under Pennsylvania law. He argues that his PCRA counsel was ineffective for failing to pursue his IAC claims. However, counsel ineffectiveness constitutes "cause" to excuse only when it is an independent constitutional violation under federal law. See Coleman v. Thompson, 501 U.S. 722, 755 (1991). Because the Sixth Amendment does not entitle a defendant to post-conviction counsel, a claim of ineffective assistance of PCRA counsel does not establish "cause" to excuse procedural default. Hull v. Freeman, 991 F.2d 86, 91 (3d Cir. 1993).*fn1 Therefore, for the reasons set out in the Report and Recommendation, ten of Gribble's IAC claims are procedurally defaulted.
B. Claim No. 3 Subsection (I): Ineffective Assistance of Trial Counsel
The Report and Recommendation concluded that (1) Gribble's IAC claim for withdrawing a motion to suppress should be dismissed as procedurally defaulted, and (2) Gribble's IAC claim for withdrawing a motion to sever should be denied on the merits for failure to show prejudice from a joint bench trial. Gribble objects to both conclusions.
As to the motion to suppress, Gribble's objection merely restates his claim on the merits that trial counsel was ineffective for withdrawing the motion to suppress. Gribble makes no ...