The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
(Magistrate Judge Mannion)
Pending before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Malachy Mannion (Doc. No. 26), which recommends that Petitioner's petition filed pursuant to 28 U.S.C. § 2254 be denied.*fn1 Petitioner has filed objections to the R&R. (Doc. No. 27.) The Court has reviewed Petitioner's objections and has found them to be without merit. Accordingly, the Court will adopt the R&R in full.
In 1996, Petitioner was charged and convicted of involuntary deviate sexual intercourse, sexual assault, indecent assault, simple assault, and aggravated indecent assault. (Doc. No. 26 at 2.) After a hearing, Petitioner was classified as a sexually violent predator and was sentenced to an aggregate term of ninety-eight months to life imprisonment. (Id.)
In 1999, after Petitioner filed a petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), his sentence was vacated and Petitioner's direct appeal rights were reinstated. (Id. at 3.) On November 23, 1999, Petitioner was resentenced to ninety-eight months to twenty-six years imprisonment. (Id.) Petitioner directly appealed that sentence to the Pennsylvania Superior Court. (Id.) His appeal was denied, as was his following petition for an allowance of appeal with the Supreme Court of Pennsylvania. (Id.)
Beginning on January 3, 2003, Petitioner filed the first of numerous pro se PCRA petitions. (Id. at 3-4.) Specifically, Petitioner filed a "Plain English Motion for a New Trial on the Ground of After-Discovered Evidence," a "Petition to File an Amended Petition for [PCRA] Relief," two amended PCRA petitions, a motion for waiver of counsel, and a memorandum of law in supported of his amended PCRA petition. (Id. at 4.) He also filed an appeal to the Superior Court of Pennsylvania, seeking to remove appointed PCRA counsel, which the Superior Court quashed. (Id.) At a hearing, the PCRA court permitted Petitioner to orally amend his PCRA petition, and subsequently denied Petitioner's PCRA petition. (Id.) The PCRA court denied petitioner's request to proceed prose. (Id. at 4-5.)
Petitioner then appealed the PCRA court's denial of his petition to the Superior Court of Pennsylvania, alleged that his appointed PCRA counsel was ineffective, and sought to proceed pro se. (Id. at 5.) The Superior Court denied Petitioner's motion and petition, and remanded the case to the lower court. (Id.) The lower court permitted Petitioner to proceed pro se on appeal, and, after reviewing his supplemental brief, the Supreme Court denied Petitioner's PCRA petition. (Id. at 5-6.)
On May 27, 2008, Petitioner filed a petition for relief pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner's habeas corpus petition contains six grounds for relief. First, Petitioner claims that his trial counsel was ineffective in failing to have his admissions to his then-girlfriend Linda Voytko suppressed. (Doc. No. 26 at 7.) Second, Petitioner claims that his trial counsel was ineffective for failing to ascertain several discovery violations relating to Voytko and her contact with the prosecuting attorney. (Id. at 7-8.) Third, Petitioner claims that trial counsel was ineffective for failing to answer his questions relating to his sentencing exposure and chance of success at trial, when faced with a plea offer from the government. (Id. at 8-9.) Fourth, Petitioner claims that his trial counsel was ineffective for failing to refile an improvidently filed motion for new trial after letters to Voytko, which were to be used only for impeachment, were brought to the jury room during deliberations. (Id. at 9-10.) Each of the preceding four ineffective assistance claims are lodged not only against Petitioner's trial counsel, but also against his appellate counsel who failed to raise these arguments on appeal. (See id. at 7-10.)
Fifth, Petitioner claims that the prosecutor's closing argument included several improprieties, which resulted in prosecutorial misconduct and a violation of due process. (Id. at 11.) Specifically, Petitioner argues that it was improper for the prosecutor to call him a liar and to ask the jury to use their common sense and find that there was blood on his clothing. He also argues that the prosecutor misstated or misrepresented when Voytko went to the district attorney's office. (Id. at 19.) Petitioner argues that his trial counsel's failure to object to the closing argument resulted in ineffective assistance of counsel. (Id. at 11.)
Petitioner's sixth ground for relief is that "cumulative misconduct and denial of effective assistance of counsel combined to deny due process." (Id.) Specifically, Petitioner asserts: (1) that the Commonwealth failed to provide necessary discovery which would have led to valuable impeachment evidence; (2) that the Commonwealth improperly used the fact that petitioner had lied to his girlfriend to attack his credibility, believability, and character; and (3) that ADA Shwed's closing argument was improper. (Id. at 12.) Petitioner argues that trial and appellate counsel were ineffective for failing to raise these instances of misconduct, and that this ineffectiveness of counsel denied him a fair and adequate direct appeal, thereby denying his due process rights. (Id. at 13.)
C. Report and Recommendation
On April 8, 2011, Magistrate Judge Mannion issued an R&R, recommending that Petitioner's petition for habeas corpus relief be denied. (Doc. No. 26.) He found that Petitioner had not exhausted the claims for relief in grounds two, three, or six. (Id. at 17; see also 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . .").) Magistrate Judge Mannion also found that grounds four and five were partially unexhausted. (Id. at 18-19.) With respect to ground four, Magistrate Judge Mannion found that Petitioner did not properly exhaust the issue of whether appellate counsel was ineffective in failing to raise trial counsel's alleged ineffectiveness, and, with respect to ground five, Petitioner failed to raise the issue regarding the prosecutor's alleged misstatements or misrepresentations of evidence during closing arguments. (Id.) Therefore, Magistrate Judge Mannion recommended that these unexhausted and procedurally defaulted claims for relief be dismissed. (Id. at 19.)
Next, after reviewing the merits of the exhausted claims in grounds one, four, and five, Magistrate Judge Mannion recommended that these claims also be dismissed, and that Petitioner's petition ...