The opinion of the court was delivered by: (Judge Brann)
(Magistrate Judge Blewitt)
On December 8, 2011, petitioner, Luis Hernandez, filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The respondents are Supt. Sauers, The District Attorney of York, PA and The Attorney General of the State of Pennsylvania. Hernandez brings his petition on four grounds. He alleges that: first, he had ineffective assistance of trial counsel; second, he did not have a fair trial because of statements the prosecutor made during the opening argument; third, he did not have a fair trial because of statements the prosecutor made during the closing argument; and fourth, he had ineffective assistance of trial counsel because trial counsel failed to correct testimony presented at Hernandez's preliminary hearing that trial counsel admits was perjured and, furthermore, that he had ineffective assistance of counsel for his Post Conviction Relief Act (PCRA) petition because his PCRA counsel also failed to correct the allegedly perjured testimony.
At the time Hernandez brought the instant petition, it was a mixed petition, in that some of the grounds for relief were unexhausted in state court.*fn1 Thus,
Herndandez requested this court grant him a stay and abeyance of the petition.
However, at the time of the instant memorandum and order, the one unexhausted ground in Hernandez's petition has now been exhausted by the Pennsylvania Superior Court; consequently, the issue of a stay and abeyance is now moot.
Respondents filed a response to the petition on April 26, 2012. (Doc. No.
12). Hernandez filed his traverse on June 13, 2012. (Doc. No. 16). Magistrate Judge Thomas M. Blewitt filed a twenty-eight page report and recommendation on October 1, 2012. (Doc. No. 17). Judge Blewitt granted an extension of time within which to file objections to the report and recommendation until November 13, 2012. Hernandez did not file objections, but filed a Motion to Amend/Correct the Petition. (Doc. No. 20).
This the matter is now ripe for disposition. Now, therefore, the report and recommendation of the magistrate judge will be adopted in full, and the petition will be dismissed.
A district court reviews de novo those portions of a magistrate judge's report and recommendation to which a party objects. L.R. 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
The undersigned will adopt the report and recommendation of the magistrate judge in full. The magistrate judge found that the motion to stay in abeyance was moot, recommended that grounds one, two and three be dismissed on the merits and recommended that ground four be dismissed because the petitioner procedurally defaulted on his claim. Judge Blewitt should be commended on his report and recommendation; he wrote a full and thorough report that accurately addressed all but one of the issues. The undersigned is adopting his report and recommendation in full. However, although further analysis will not change outcome of the case, in that the petition will still be dismissed, in the interest of completeness, there is one unaddressed issue that must be addressed by this Court.
In his traverse, Hernandez argues based on Martinez v. Ryan, that this Court should not dismiss his fourth ground for relief, namely that PCRA counsel was ineffective, by basing the dismissal on the reasoning that Hernandez procedurally defaulted on that claim. 132 S. Ct. 1309; 182 L. Ed. 272 (2012). Hernandez argues that based on Martinez, this Court should hear his claim that his PCRA counsel was ineffective for failure to argue that trial counsel was ineffective for failing to correct the testimony by a witness in the preliminary hearing, testimony that trial counsel admitted that he believed was perjured.
The general rule is that, "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254." 28 U.S.C. §2254(i). However, in Martinez, supra, the Supreme Court was presented with the issue of "whether a federal habeas court may excuse a procedural default of an ineffective-assistance claim when the claim was not properly presented ...