WILLIAM H. YOHN, Jr. District Judge.
Petitioner Quang Van Nguyen, a prisoner at the Graterford State Correctional Institution in Montgomery County, Pennsylvania, has filed a petition under 28 U.S.C. § 2254 for writ of habeas corpus. Upon consideration of the petition, the Commonwealth's response, the Magistrate Judge's report recommending dismissal of the petition, and petitioner's objections thereto, the court will overrule petitioner's objections, adopt the report and approve the recommendation.
I. FACTUAL AND PROCEDURAL HISTORY
A. Factual background and trial
Petitioner Quang Van Nguyen ("Nguyen") and several co-conspirators planned to rob a massage parlor in Philadelphia, and to extort further money from the business under threat of continued violence. (Resp. to Pet. for Writ of Habeas Corpus ("Resp.") Ex. A. at 2.) On August 3, 1995, Nguyen and his co-conspirators entered the massage parlor to execute the robbery. (Resp. Ex. A. at 2-3.) At the start of what would be a two hour ordeal Todd Manga, a security guard for the parlor, was shot and killed. (Resp. Ex. A. at 3, 4.) Co-defendant Thanh Van Tran ("Tran") and an unindicted co-conspirator "Hieu" both possessed and fired guns during this incident. (Resp. Ex. A. at 3.) Thereafter, the co-conspirators, including Nguyen, forced the parlor's female employees to their respective rooms and robbed them. (Resp. Ex. A. at 3.) Throughout these robberies, Tran brandished his weapon and threatened the women if they did not come forward with their money. (Resp. Ex. A. at 3.) Nguyen also retrieved and "neutralized" a surveillance camera. (Resp. Ex. A. at 3.) Over the course of these two hours a customer to the parlor who happened upon the robbery was also held captive and robbed of his money and jewelry. (Resp. Ex. A. at 3-4.) Prior to leaving, Nguyen and his co-conspirators handcuffed the parlor's manager, Jackie Kim, and forced the female employees to undress before tying them up with telephone wire. (Resp. Ex. A. at 4.) Following the robbery, the co-conspirators returned to a home where they divided the proceeds. (Resp. Ex. A. at 4.)
As a result of the robbery and homicide Nguyen was arrested. (Resp. Ex. A. at 4.) Beginning on February 3, 1999, Nguyen and four co-defendants (Thanh Van Tran, Loc Tran, Hue Tri Phan, and Phu Nguyen) were jointly tried before a jury in the Court of Common Pleas of Philadelphia County. (Resp. Ex. A. at 4-5.) The Commonwealth's case rested heavily on the testimony of co-conspirator Minh Nguyen, who had previously pled guilty before the trial court. On March 1, 1999, Petitioner Nguyen was found guilty of second-degree murder, criminal conspiracy and four counts of robbery. (Resp. Ex. A. at 5.) On April 19, 1999 Nguyen was sentenced to a mandatory life term for the murder conviction and an aggregate concurrent 20-40 years for the conspiracy and robbery convictions. (Resp. Ex. A. at 5.) Nguyen filed a post-sentence motion to modify his sentence, which was denied by operation of law on September 8, 1999. (Resp. Ex. A. at 5.)
B. Direct Appeal
On October 14, 1999, Nguyen filed a counseled notice of appeal to the Pennsylvania Superior Court ("Superior Court"). On January 2, 2001, the trial court filed a Pennsylvania Rule of Appellate Procedure 1925(a) opinion (hereinafter "1925(a) opinion"). (R. D10) On July 30, 2001, the Superior Court dismissed Nguyen's appeal because counsel failed to file a brief. (R. D12). Thereafter, by letter dated August 6, 2001, the Prothonotary of the Superior Court denied "appellant's applications for reconsideration and reinstatement."
On September 4, 2001, Nguyen filed a pro se motion for post conviction relief, pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA") 42 Pa. Cons. Stat. Ann. § 9541 et seq., seeking reinstatement of his direct appeal rights nunc pro tunc. (R. D13.) On February 13, 2002, by administrative order, Nguyen was appointed PCRA counsel. (R. D16.) On July 17, 2002, the PCRA court reinstated Nguyen's appeal rights nunc pro tunc and appointed appellate counsel. (R. D17.)
On July 31, 2002, Nguyen's appellate counsel filed a notice of appeal nun pro tunc to the Pennsylvania Superior Court. (R. D18) Finally, on October 21, 2002, more than three years after Nguyen received his life sentence, his first counseled statement of matters complained of on appeal was filed, raising four issues for review: (1) the evidence was insufficient to sustain the verdicts of second degree murder, robbery and criminal conspiracy; (2) the verdicts were against the weight of the evidence; (3) the trial court erred in admitting the testimony of Commonwealth witness Minh Nguyen; (4) the trial court erred in instructing the jury on how to consider the evidence and misrepresented the evidence when instructing the jury. (R. D22.) On December 18, 2002, the trial court filed its 1925(a) opinion. (R. D23.)
On December 17, 2003, the Superior Court filed a memorandum opinion dismissing Nguyen's appellate claims and affirming the judgment of sentence. Commonwealth v. Nguyen, No. 2452 EDA 2002, slip op. at 14 (Pa.Super. Dec. 17, 2003). The Superior Court reached the merits on Nguyen's sufficiency of the evidence claim for second degree murder finding that, contrary to Nguyen's argument, the evidence established that the co-conspirators' intent to commit the robbery was formed prior to Manga's murder. Id. at 8-10. However, the Superior Court held that Nguyen's sufficiency of the evidence claims as to robbery and criminal conspiracy were waived under Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure ("Pa. R.A.P."). Id. at 10-11. The weight of the evidence claim was waived because Nguyen failed to raise the issue before the trial court in a post-trial motion pursuant to Rule 607 of the Pennsylvania Rules of Criminal Procedure. Id. at 12. Nguyen's challenge to the admission of Minh Nguyen's testimony was waived both because Nguyen failed to point to where the issue had been preserved in the record, pursuant to Pa. R.A.P. 2117(c) and 2119(e), and because the record did not indicate that Nguyen had preserved the issue by objecting to the admission of the testimony at trial, as required by Pa. R.A.P. 302(a). Id. at 13. Nguyen's challenge to the jury instruction was also waived because it was not objected to at trial. Id. at 14. Except for the jury instruction claim, the Superior Court noted that even absent waiver Nguyen's claims were without merit. Id. at 10-14. On February 7, 2006, Nguyen filed a petition for allowance of appeal in the Pennsylvania Supreme Court which was denied on August 9, 2006.
C. State collateral review
On August 29, 2007, Nguyen filed a pro se PCRA petition raising ineffective assistance of counsel claims. (R. D26.) On August 8, 2008, Nguyen filed a second pro se PCRA petition. (R. D25.) The court appointed PCRA counsel who filed an amended PCRA petition on October 28, 2009, raising a layered ineffective assistance of counsel claim for trial and appellate counsels' failure to raise objections to the trial court's deviation from the Pennsylvania Standard Criminal Jury Instructions ("PSCJI") concerning second-degree murder liability for the actions of co-conspirators. (R. D 27.) On July 16, 2010, the PCRA court dismissed Nguyen's petition as lacking merit.
On August 26, 2010, having failed to file a timely notice of appeal, Nguyen's PCRA counsel filed a petition to reinstate Nguyen's PCRA appellate rights nunc pro tunc. (R. D30.) The PCRA court granted the petition on September 17, 2010 (R. D31.), and Nguyen then filed a counseled notice of appeal to the Superior Court on September 21, 2010 (R. D 32.). In his statement of matters complained of, Nguyen raised two issues: (1) the PCRA court erred in denying his layered claim for ineffective assistance of trial and appellate counsel; and (2) the trial court's jury charge deviated from the Pennsylvania Suggested Standard Criminal Jury Instructions to the extent that the Commonwealth was not required to prove that the co-conspirators had a shared intent to commit robbery prior to its occurrence. (R. D34.) On December 16, 2010 the PCRA court issued its 1925(a) opinion finding that the trial court had adequately instructed the jury "that [Nguyen] could be convicted of second degree murder only if the jury found that the killing occurred while [Nguyen] was a partner with the killer in committing ...