The opinion of the court was delivered by: Rufe, J.
Before the Court are Petitioner Muwsa Green's Objections to the
Report and Recommendation ("R&R") of United States Magistrate Judge
Lynne A. Sitarski. For the reasons that follow, the Court will
overrule Petitioner's Objections, approve and adopt the Report and
Recommendation, and deny the Petition for habeas corpus
Petitioner seeks relief from a lengthy sentence of imprisonment imposed by the Honorable Gwendolyn N. Bright of the Court of Common Pleas of Philadelphia County. The sentence and conviction arise out of two separate incidents consolidated by the trial court. The first occurred on October 27, 2007, when, while incarcerated for another crime, Petitioner forced another male prisoner to perform oral and anal sex. The second occurred on November 4, 2007, when Petitioner assaulted a sixteen-year-old girl before raping her four times. Petitioner pled guilty to two counts of deviate sexual intercourse, one count of terroristic threats, and two counts of simple assault with respect to the first incident, and to robbery, rape, carrying a firearm without a license, and simple assault with respect to the second.
On December 5, 2008, Petitioner was sentenced in both cases. Petitioner did not file a direct appeal of the sentences. However, on April 9, 2009, pursuant to the Pennsylvania Post-Conviction Relief Act ("PCRA"), *fn1 Petitioner filed a pro se petition for relief with the Philadelphia Court of Common Pleas. The PCRA Court appointed counsel who, on May 24, 2010, filed a Finley letter asserting that the petition lacked merit. *fn2 On July 21, 2010, the PCRA Court sent Petitioner notice of its intent to dismiss the petition, attaching the Finley letter. Petitioner filed a response to the Finley letter on July 27, 2010. By order, the PCRA Court dismissed the petition as meritless on September 16, 2010. Petitioner did not file an appeal to the Superior Court of Pennsylvania. Petitioner did, however, file a "Motion to Compel the Common Pleas Court to Rinder [sic] and [sic] on a Sentencing Matter, etc." and a "Motion in Preaecipe [sic] Commanding the Lower Court of Common Pleas to Descend an Opinion Under Praecognita" in the Superior Court, both of which were denied for lack of jurisdiction.
Petitioner filed his Petition for Writ of Habeas Corpus in this Court on February 11, 2011, *fn3 and filed an Amended Petition on March 21, 2011. *fn4 The case was referred to Magistrate Judge Sitarski for an R&R. On August 26, 2011, Judge Sitarski filed an R&R finding that Petitioner had failed to exhaust his state court remedies and recommending that the Petition be denied. *fn5 Petitioner has filed objections and supplemental objections to the R&R. *fn6
Petitioner advances four arguments in support of his contention that the Court should not approve and adopt the R&R and should instead grant his Petition. First, he claims he never received a copy of the September 16, 2010 PCRA dismissal order, which prevented him from presenting his claims on collateral review. Second, he argues that a subsequent PCRA petition would not be time-barred. Third, Petitioner asserts that he can overcome his procedural default because he was mentally incompetent at the time he entered his guilty plea. Finally, he submits that he never received the notice from the PCRA Court as required by Pennsylvania Rule of Criminal Procedure 907.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), *fn7 "a district court shall
entertain an application for writ of habeas corpus [filed on] behalf
of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States." *fn8
Where, as here, the habeas petition is referred to a
magistrate judge for a report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B), a district court conducts a de novo
review of "those portions of the report or specified proposed
findings or recommendations to which objection is made," and "may
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." *fn9
The PCRA requires that a petitioner exhaust his available state
court remedies before filing suit in federal court. *fn10
Title 28, United States Code, Section 2254 provides in
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the ...