The opinion of the court was delivered by: (judge Caputo)
(MAGISTRATE JUDGE BLEWITT)
Presently before the Court is Magistrate Judge Blewitt's Report and Recommendation ("R & R") (Doc. 79) to Petitioner David Mandeville's Petition for Writ of Habeas Corpus (Doc. 1), Motion for Relief from Judgment (Doc. 28), Motion for Respondent to Furnish Missing Records (Doc. 73), and Motion for Discovery (Doc. 74.) The Magistrate Judge recommends that the Petition be denied with respect to all claims, the motion for relief from judgment be denied as moot, and the discovery motions be denied. Petitioner filed timely objections to the R & R. Because Petitioner was not denied effective assistance of counsel and the state court reasonably determined that Petitioner failed to invoke his right to counsel during his custodial interrogations, the Petition for a writ of habeas corpus will be denied.
On June 15, 2009, Petitioner, an inmate at SCI-Smithfield, Huntingdon, Pennsylvania, filed, pro se, the instant Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1.) In 1998, Petitioner was sentenced to life in prison after he was convicted of first degree murder, robbery, burglary, theft by unlawful taking, and criminal conspiracy in the Court of Common Pleas of Wayne County, Pennsylvania. (Id.) Petitioner now challenges his conviction and sentence. (Id.)
The Petition raises nine claims for relief. In Ground One, Petitioner states that he was questioned by police and denied counsel, despite his request; this issue was raised by Petitioner on direct appeal, but not in his Post Conviction Relief Act (""PCRA") proceedings. (Id.) Ground Two is for the trial court's refusal to excuse a juror who knew the victim's brother and son in Petitoner's trial; this issue was raised by Petitioner on direct appeal, but not his PCRA proceedings. (Id.)*fn1 Ground Three alleges that the trial court gave an improper jury instruction regarding the definition of reasonable doubt; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Id.) Ground Four relates to trial counsel's failure to object to a jury instruction regarding the burden of proving the specific intent to kill; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Id.) Grounds Five, Six and Seven raise the issue of ineffective assistance of counsel for trial counsel's failure to object to improper remarks made by the prosecutor, and failure to elicit favorable testimony from two witnesses; Petitioner did not raise these issues on direct appeal, but did raise them in his PRCA proceedings. (Id.) Ground Eight claims ineffective assistance on the part of appellate counsel; Petitioner did not raise this issue on direct appeal, but did raise it in his PRCA proceedings. (Id.) Finally, Ground Nine argues that "counsel was ineffective for the cumulative effect of all or any of the previously raised grounds for ineffective assistance of counsel." (Id.)
II. Relevant Procedural History
As set forth in Magistrate Judge Blewitt's R & R, following his March 19, 1998 life sentence, Petitioner filed a post-sentence motion with the trial court claiming the evidence was insufficient to support his conviction. (Doc. 79, 8.) The trial court denied this motion on April 6, 1998. (Id.) Petitioner then filed a direct appeal with the Pennsylvania Superior Court on May 1, 1998. (Id.) Petitioner raised the issues asserted in Grounds One and Two of the instant Petition on direct appeal with the Superior Court. (Id.)*fn2 The Superior Court affirmed his judgment of conviction on August 3, 1999. (Id. at 9.) Next, on February 4, 2000, the Pennsylvania Supreme Court denied Petitioner's request for permission for allowance to file an appeal. (Id.)
Petitioner then filed a PCRA Petition on January 19, 2001 in the Court of Common Pleas. (Id. at 10.) The PCRA court vacated Petitioner's conviction for theft by unlawful taking but denied the remainder of the PCRA Petition on December 5, 2006. (Id.) Petitioner, on January 2, 2007, filed an appeal regarding the trial court's disposition of his PCRA Petition. (Id.) The Superior Court, on October 18, 2007, found that the Petitioner's January 19, 2001 Petition was not timely filed and affirmed the trial court's order denying the Petition. (Id.) Additionally, the Superior Court noted that even if Petitioner had timely filed his PCRA Petition, none of the issues complained of on appeal merited relief. (Id. at 11.)
Thereafter, on November 16, 2007, Petitioner filed a Petition for Allowance of Appeal regarding the Superior Court's October 18, 2007 decision. (Id.) The Pennsylvania Supreme Court denied Petitioner's request on March 2, 2009. (Id.)
On May 1, 2009, Petitioner filed an amended PCRA petition with the Court of Common Pleas of Wayne County. (Id.) This petition was dismissed by the Court of Common Pleas on December 14, 2009. (Id.)
Petitioner commenced the instant habeas action in this Court on June 15, 2009. On November 23, 2009, the Court dismissed Petitioner's Writ of Habeas Corpus finding that the Petition had been untimely filed. (Id. at 12) The Third Circuit affirmed the denial of Petitioner's Petition on July 18, 2010. (Id.)
On August 3, 2010, the Pennsylvania Superior Court affirmed the decision of the Court of Common Pleas to dismiss Petitioner's amended PCRA petition. However, the Superior Court acknowledged that it miscalculated the time in determining that Petitioner's original PCRA Petition was untimely filed. (Id.)
As a result of the Superior Court's August 3, 2010 decision, the United States Supreme Court remanded this matter to the Third Circuit. (Id.) The Third Circuit then remanded the case to this Court on January 5, 2011. (Id.)
III. The Report and Recommendation
On February 22, 2012, Magistrate Judge Blewitt issued a Report and Recommendation recommending that the instant Petition be denied on the merits. (Id. at 37.) The Magistrate Judge also recommends that the Motion for Relief from Judgment (Doc. 28) be denied as moot and the discovery motions (Docs. 73; 74) be denied. As noted, Ground One of the Petition asserts that "evidence was obtained and introduced against Petitioner as a result of questioning by police that continued after Petitioner stated that he wished to consult an attorney." (Doc. 1.) Magistrate Judge Blewitt concludes that Petitioner is not entitled to habeas relief on this Ground because "at no time in this case did Petitioner specifically request counsel. He was given his Miranda warnings on four occasions and engaged in discussions with the police after waiving his Miranda rights on all occasions." (Doc. 79, 18.)
Grounds Three through Nine raise ineffective assistance of counsel claims. (Doc. 1.) According to Magistrate Judge Blewitt, these claims should be analyzed under the "deferential standard of 28 U.S.C. § 2254(d)" "since the Pennsylvania Superior Court decided Petitioner's ineffective assistance of trial counsel claims under standards that are basically the same as the Strickland standard." (Doc. 79, 22.) Applying the deferential § 2254(d) standard, Magistrate Judge Blewitt finds that Ground Three fails to raise a viable ineffective assistance of counsel claim because the Superior Court's decision that the trial court did not dilute the Commonwealth's burden of proof by equating "reasonable doubt" with the phrase "real doubt" is not contrary to Supreme Court precedent or an unreasonable application of federal law. (Id. at 23-24.)
Ground Four asserts that trial counsel was ineffective for "failing to object to the Trial Court's instruction which removed the Commonwealth's burden of proving specific intent of Petitioner, in this multi-accomplice case without first finding that Petitioner had the requisite specific intent to kill." (Doc. 1.) The Magistrate Judge concludes that Ground Four lacks merit because "the entire jury instruction given by the trial court . . . included 'specific intent.'" (Doc. 79, 25.)
Petitioner's next claim of ineffective assistance by trial counsel, Ground Five, asserts that "trial counsel was per se ineffective for failing to object to improper remarks by the prosecutor which were prejudicial and improper, and indulged in personal assertions of the Defendant's guilty (sic)." (Doc. 1.) The Magistrate Judge finds Ground Five to lack merit because "Pennsylvania law clearly allows a prosecutor to argue the evidence introduced at trial which shows the criminal defendant is lying." (Doc. 79, 25-26.)
As to Ground Six,"trial counsel was per se ineffective for failing to elicit favorable testimony from Linda Lopatofsky," (Doc. 1), Magistrate Judge Blewitt asserts that "counsel's decision not to cross examine the witness does not rise to the level of Strickland." (Doc. 79, 26.) Ground Seven raises a similar argument, "trial counsel was per se ineffective for failing to elicit favorable testimony from Commonwealth's witness, Kathleen Torrick, by asking her if the Defendant was one of her assailants." (Doc. 1.) The Magistrate Judge rejects Petitioner's ineffective assistance argument finding that the decision not to cross examine Ms. Torrick was a sound decision of trial strategy. (Doc. 79, 27.)
Ground Eight asserts that "appellate counsel (who was the same as trial counsel) failed to federalize (i.e. state a federal question for federal review) on appeal regarding issue #2 on direct appeal." (Doc. 1.) Magistrate Judge Blewitt reasons that "Petitioner did not exhaust this claim as a federal claim and he is not able to return to state court to exhaust it. Thus, it is procedurally defaulted. Also, we have found that Petitioner has not demonstrated cause and prejudice and that he has not demonstrated that he is actually innocent." (Doc. 79, 33.)
As to Petitioner's final claim, Ground Nine, Petitioner asserts that "counsel was ineffective for the cumulative effect of all or any of the previously raised grounds for ineffective assistance of counsel." (Doc. 1.) Due to the overwhelming evidence of guilt, the Magistrate Judge concludes that the cumulative prejudicial effect of the errors did not rise to a level of substantial and injurious effect. (Doc. 79, 35.)
The Magistrate Judge also recommends that Petitioner's Motion for Relief from Judgment (Doc. 28) be denied as moot. Additionally, based on his recommendations to the merits of Petitioner's claims, Magistrate Judge Blewitt recommends denying Petitioner's discovery motions because further discovery would not benefit the Petitioner or the Court.
Petitioner filed timely objections to the R & R. (Doc. 82.) As such, Magistrate Judge Blewitt's recommendations, and Petitioner's objections thereto, are ripe for disposition.
A. Relevant Legal Standards
1. Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report. Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)). However, this only applies to the extent that a party's objections are both timely and specific. Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984) (emphasis added). In conducting a de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the law permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F.Supp. 328, 330 (M.D. Pa.1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F.Supp. 375, 376--77 (M.D. Pa. 1998).
2. Habeas Corpus Petitions Pursuant to 28 U.S.C. § 2254
The instant Petition was filed pursuant to 28 U.S.C. § 2254. Section 2254 allows a federal court to grant habeas corpus relief to prisoners "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." 28 U.S.C. § 2254(a). Since it was filed after April 1996, the Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Wilson v. Beard, 589 F.3d 651, 657 (3d Cir. 2009).
Section 2254(b) provides, in pertinent part:
(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 courts of the State; or (B) (i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. 28 U.S.C. § 2254(b). Ordinarily, a state prisoner must exhaust his federal claims in state court before seeking habeas relief in federal court. See Evans v. Sec'y Pa. Dep't of Corr., 645 F.3d 650, 657 (3d Cir. 2011) (citing Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000)). "Exhaustion requires a petitioner to 'fairly present' his federal claims to the pertinent state court before bringing those claims to federal court." Id. (quoting Leyva v. Williams, 504 F.3d 357, 365 (3d Cir. 2007)). "The exhaustion requirement is deemed satisfied when a petitioner has presented his claims to the state courts but the state courts have refused to consider the claims on the ...