The opinion of the court was delivered by: District Judge Sean J. McLaughlin
SEAN J. McLAUGHLIN, District Judge.
This action, filed pursuant to 28 U.S.C. § 2254, was referred to U.S. 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. Petitioner raises two claims for habeas relief. In his first claim, he contends that his court-appointed trial attorney, A.J. Adams, Esquire, provided him with ineffective assistance for failing to file a direct appeal. Petitioner did not raise this claim before the PCRA Court, and in his second claim he contends that the attorney who was appointed to represent him in that proceeding, William J. Hathaway, Esquire, was ineffective for failing to do so.
On March 7, 2012, the Magistrate Judge issued a Report and Recommendation ("R&R") [ECF No. 16] in which she recommended that both of Petitioner's claims be denied and that a certificate of appealability be denied. Petitioner has filed Objections [ECF No. 17] 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. We agree with the Magistrate Judge that he is not entitled to habeas relief or a certificate of appealability on his stand-alone claim that his PCRA counsel, Hathaway, was ineffective. However, in light of the U.S. Supreme Court's recent decision in Martinez v. Ryan, - U.S. -, 132 S.Ct. 1309 (2012), we shall remand the case back to the Magistrate Judge for an evidentiary hearing to determine whether Petitioner can overcome the procedural default of his claim that Adams was ineffective for failing to file a direct appeal and, if he can, whether that claim has merit.
As set forth in the R&R, on October 28, 2008, Petitioner appeared before the Court of Common Pleas of Erie County with his counsel, Adams. He pleaded guilty to conspiracy to commit burglary and conspiracy to commit robbery. On December 1, 2008, the court sentenced him to a term of incarceration of 36-108 months with time credit for 200 days on one count, and to a consecutive sentence of 42-108 months of imprisonment on the other count.
Petitioner contends that immediately after he was sentenced he told Adams to file a post-sentence motion and a direct appeal. He contends that Adams assured him that he "would file said appeal." [ECF No. 2 at 2]. Petitioner has attached to his petition a letter that he claims he sent to Adams on December 3, 2008, via the Erie County Clerk of Court, in which he asked about "what steps" Adams was taking to remedy errors Petitioner believed had occurred with regard to his sentences. He also instructed Adams to file a motion to withdraw his guilty plea. [ECF No. 1-1 at 17, Pet's Ex. C]. Adams did not file a post-sentence motion or a direct appeal.
A few months later, on March 30, 2009, Petitioner filed a pro se PCRA motion. He raised the following two claims:
(1) Adams provided me with ineffective assistance because he "told me I would receive a county sentence [of] 11 1/2 -- 23 months" and therefore "misguided [me] in taking my plea."
(2) my prior record score was incorrect: "During my sentencing, the charges I was being sentenced for were also used as a prior conviction to jump my [prior record] score up. I have no prior adult convictions and I was categorized as a repeated felony offender."*fn1
(CP Dkt. No. 9 at 3). Petitioner did not contend, as he does now, that Adams was ineffective for failing to file a direct appeal.
On April 9, 2009, the PCRA Court appointed Attorney Hathaway to represent Petitioner. Petitioner has attached to his petition a letter he contends that he sent to Hathaway, dated April 13, 2009, instructing him to raise in an amended PCRA motion the claim that Adams was ineffective for failing to comply with his directive to file a post-sentence motion and an appeal. In the letter, Petitioner wrote: "I have not received any response from [Adams] concerning that matter. Therefore, I was abandoned on that issue pertaining to the appeal of my sentence and the withdrawal of my plea." [ECF No. 1-1 ...