The opinion of the court was delivered by: Padova, J.
Before the Court is Glen Byrd's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On February 15, 2011, Chief United States Magistrate Judge Thomas J. Rueter filed a Report and Recommendation that recommends denying the Petition in its entirety. Petitioner has filed objections to the Report and Recommendation. For the reasons that follow, we overrule Petitioner's objections, adopt the Report and Recommendation as set forth herein, and deny the Petition with prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 2004, a jury convicted Glen Byrd of two counts of first degree murder, carrying a firearm without a license, and possession of an instrument of crime arising from the January 3, 2001 murders of Lawrence Guillaume and Jamal Small.*fn1 Commonwealth v. Byrd, May Term 2001, No. 0356-357, slip op. at 1-3 (Phila. Cnty. Ct. of Common Pleas Sept. 2, 2004) ("Byrd I"). The Pennsylvania Superior Court summarized the testimony of four of the witnesses at Byrd's trial as follows. Patricia Kirby testified that Lawrence Guillaume and his sister-in-law Carla were at her apartment on the night of January 3, 2001. Commonwealth v. Byrd, No. 2723 EDA 2004, slip op. at 1 (Pa. Super. Ct. Dec. 7, 2005) ("Byrd II"). Byrd, who was wearing a red hooded sweatshirt and bright yellow ski jacket, banged on Patricia's door and asked to speak with Guillaume. Id. at 1-2. Patricia saw Jamal Small behind Byrd when Guillaume went outside her apartment to speak with Byrd. Id. at 2. After Patricia went back inside her apartment, she heard a noise that she thought was gunfire. Id. She went outside and saw Jamal Small "crawling and moaning outside her door." Id. She did not see Byrd. Id. After the police and paramedics arrived, Patricia went back outside and saw Guillaume laying dead in the bushes outside her apartment. Id.
Lavern McCall testified that he knew Byrd and Jamal Small from the neighborhood. Id. On the night of January 3, 2001, McCall saw Byrd, who was wearing a yellow and red jacket, talking with Small by the bushes near Patricia's apartment. Id. (internal quotation marks omitted). A short time later, McCall saw Byrd and Small standing at Patricia's open front door, through which he could also see Guillaume. Id. McCall subsequently heard between four and six gunshots and saw Byrd walk away from Patricia's apartment. Id. McCall also testified that he saw a fourth man, Nate, at Patricia's door and, "after the gunshots, Nate left the house and walked away quickly." Id. at 2 n.5.
Leslie Rollins testified that she was Guillaume's girlfriend. Id. She lived across the street from Patricia and had known Byrd for years. Id. At 2-3. She was in her home around 11:30 p.m. on January 3, 2001, when she heard gunshots. Id. at 3. She looked outside her window two or three seconds later and saw Byrd, "wearing a yellow jacket with a red hood, run on Patricia's side of the street." Id.
Jerome Small, Jamal Small's brother, testified that he spoke to Byrd shortly after the shooting. Id. Byrd told Jerome that: "(1) Jamal had brandished a gun; (2) as the men struggled for the gun, [Byrd] shot Lawrence; and (3) [Byrd] did not shoot Jamal." Id.
The Superior Court also noted that Guillaume was shot five times and was pronounced dead at the scene. Id. at 3. Small was shot once in the chest and died at the hospital. Id. The police recovered a gun at the scene. Id. Byrd's fingerprints were not on the gun. Id.
On April 7, 2004, the jury sentenced Byrd to life imprisonment for each count of first degree murder. Byrd I at 1. A sentencing hearing was held on May 19, 2004, during which the trial court sentenced Byrd to two terms of life imprisonment, the trial court did not impose any additional penalties for Byrd's other counts of conviction. Id.
Byrd filed a post-sentence motion for relief on May 25, 2004. Id. That Motion was denied on September 2, 2004. Id. Byrd then appealed to the Pennsylvania Superior Court, which affirmed his conviction and sentence on December 7, 2005. Byrd II at 1. Byrd's appeal to the Pennsylvania Supreme Court was denied on July 26, 2006. Commonwealth v. Byrd, 903 A.2d 536 (Pa. 2006) (Table).
On January 3, 2007, Byrd filed a pro se petition under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. (the "PCRA"). Commonwealth v. Byrd, May Term 2001, No. 0357 1/1, slip op. at 1 (Phila. Cnty. Ct. of Common Pleas Dec. 6, 2007) ("Byrd III"). Byrd's attorney filed an amended petition on August 15, 2007. Id. Byrd's PCRA petition raised two claims for relief based on the ineffectiveness of his trial counsel: (1) his trial counsel unreasonably advised him not to testify at this trial, and (2) his trial counsel failed to object to improper remarks made by the prosecutor during closing arguments. Id. at 2. The trial court found that these claims lacked merit and dismissed Byrd's PCRA petition on December 6, 2007. Id. Byrd appealed to the Pennsylvania Superior Court, which affirmed on September 9, 2009. Commonwealth v. Byrd, No. 21 EDA 2008, slip op. at 1 (Pa. Super. Ct. Sept. 9, 2009).
Byrd filed the instant Petition on March 11, 2010. He raises four claims for relief: (1) his trial counsel was ineffective for advising him not to testify at trial; (2) his trial counsel was ineffective for failing to object to improper comments and misstatements made by the prosecution during opening and closing arguments; (3) there was insufficient evidence to support his convictions for first degree murder and weapons offenses; and (4) the trial court failed to suppress a witness statement even though the prosecution did not disclose that statement prior to trial. The Magistrate Judge recommended that the Petition be denied as to all four claims. Byrd objects to the Magistrate Judge's recommendations with respect to the first three claims.
Where ahabeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . [T]he court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for habeas corpus may be granted only if (1) the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). "Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence." Werts v. Vaughn, 228 F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).
Byrd objects to the Magistrate Judge's recommendation that we deny his two claims for relief based on the ineffectiveness of his trial counsel and his claim that the evidence admitted at trial was insufficient to support his ...