United States District Court, E.D. Pennsylvania
REPORT AND RECOMMENDATION
CAROL SANDRA MOORE WELLS, Chief Magistrate Judge.
Presently before this court is a Petition for a Writ of Habeas Corpus filed by Benjamin Lee Santiago ("Petitioner"), pro se, pursuant to 28 U.S.C. § 2254. Petitioner is a state prisoner serving an aggregate sentence of 20 to 40 years at the State Correctional Institution Rockview. He seeks habeas relief based on claims that counsel rendered ineffective assistance and a Brady/Giglio violation. The Honorable Stewart Dalzell referred this matter to the undersigned for preparation of a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons set forth below, it is recommended that the habeas petition be DISMISSED with prejudice, because Petitioner's claims are procedurally defaulted.
I. BACKGROUND AND PROCEDURAL HISTORY
The Court of Common Pleas of Lancaster County, Pennsylvania summarized the facts leading to Petitioner's arrest and conviction as follows:
On June 21, 2006, at approximately 10:00 p.m., police were dispatched to 143 Old Dorwart Street in Lancaster City where David and Amy Blodgett and family and friends had been celebrating David and Amy's wedding as well as Amy's birthday. Upon arrival, police found that both David and Amy Blodgett had suffered gunshot wounds. Four individuals were eventually arrested for the incident. Three of them, [Petitioner], Carlos Delgado, and Edward Smith were tried together in a trial held April 11 through April 17, 2007. The fourth man, David Smith, testified against his three co-defendants at the trial.
During the trial, there was much debate and conflicting testimony as to who possessed a weapon, who actually shot a gun and how many shots were fired. Amy believed that there were three or more shots fired; however, she also stated that she never actually saw a gun. David Smith, the co-defendant who was not on trial, testified that both [Petitioner] and Carlos Delgado pulled out guns after arriving at the home. David Smith also testified that [Petitioner] fired the first of the four or five shots.
After the shooting, [Petitioner] gave the gun to his friend Brandon Norwood. Then, [Petitioner] and his girlfriend, Michelle Heaps, fled. They were apprehended in Richmond, Virginia on their way to Georgia. Detective Nathan Nickel of the Lancaster City Bureau of Police traveled to Richmond to interview [Petitioner] and later obtained a statement. At that point, [Petitioner] acknowledged that he was the shooter.
Michelle Heaps testified at trial that, on the evening of the shooting, [Petitioner] left her home with a gun after talking on the phone with co-defendant, David Smith. About five or ten minutes later, Heaps heard gunshots. After she heard the shots, [Petitioner] called her and told her that he thought he shot two people.
The testimony showed that the defendants' actual target was Michael Santiago, Amy Blodgett's brother-in-law. Amy Blodgett testified that at one point during the evening, she saw her sister arguing with the defendants on the front porch of her house. Michael then came to the door and one of the defendants said, "I just want my $185." Then, Amy testified that they started shooting.
Amy suffered multiple injuries as a result of the gunshot, including loss of her left kidney, spleen and half of her pancreas. David stayed in the hospital for almost two weeks following the shooting and suffered from complications thereafter, due to the doctor's inability to remove the bullet from his body.
Commonwealth v. Santiago, No. 4013 CR 2006, slip op. at 1-3 (Ct. Com. Pl. Lancaster County. Sept. 28, 2007); Commonwealth Exhibit ("Com. Ex.") L. A jury convicted Petitioner of two counts of aggravated assault, criminal conspiracy to commit aggravated assault, firearms not to be carried without a license and three counts of recklessly endangering another person ("REAP"). Id. at 5. Petitioner was sentenced to an aggregate term of twenty to forty years of incarceration plus a fine, costs and restitution. Com. Ex. D at 27-29.
On June 22, 2007, Petitioner filed a post-sentence motion to modify and reduce his sentence. Com. Ex. E at -. The trial court denied the motion on July 3, 2007. Com. Ex. F at . On July 24, 2007, Petitioner filed an appeal to the Pennsylvania Superior Court, at which point his counsel withdrew. Com. Ex. G at ; Com. Ex. H at -. New counsel was retained and filed a Concise Statement of Matters Raised on Appeal to the Superior Court on August 14, 2007. Com. Ex. I at 1-2. On April 30, 2008, the Superior Court affirmed the judgment. Com. Ex. M at 7. Petitioner did not seek allocatur. Resp. at 3.
On April 16, 2009, Petitioner, via counsel, sought relief under the state Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-46. Com. Ex. N at 1-3. The PCRA Court conducted evidentiary hearings and ordered post-hearing briefs, which Petitioner's counsel declined to file. Com. Ex. P at . Accordingly, on August 24, 2009, the PCRA Court dismissed the PCRA petition. Com. Ex. Q at . On October 16, 2009, Petitioner filed, pro se, a nunc pro tunc notice of appeal to the Pennsylvania Superior Court. Com. Ex. R at -. The PCRA Court, issued an opinion, on December 28, 2009, explaining its August 24, 2009 dismissal. Com. Ex. S at -. On October 8, 2010, the Superior Court remanded the case to the PCRA Court with instructions to appoint new counsel and determine when Petitioner received notice of the dismissal of his PCRA petition. Com. Ex. T at 6. Next, on December 13, 2010, following a hearing, the PCRA Court found Petitioner's pro se appeal timely, because he filed it within thirty days of receiving notice of the PCRA dismissal from his attorney; the PCRA Court appointed new counsel and ordered counsel to file a separate appeal. Com. Ex. U at . Petitioner filed an appeal on December 22, 2010. Com. Ex. Y at app. E. The Superior Court affirmed the PCRA dismissal on September 27, 2011. Com. Ex. Y at app. A. Allowance of appeal was denied by the Pennsylvania Supreme Court on November 30, 2012. Com. Ex. Z at .
Petitioner filed the instant habeas petition, on December 5, 2012,  asserting that: (a) trial counsel was ineffective for failing to request an instruction on the voluntariness of his statement and (b) there was a Brady/Giglio violation in regards to Commonwealth witness David Smith ("Smith") who negotiated a plea deal with the Commonwealth in exchange for his testimony against Petitioner, despite his testimony to the contrary. Pet. at 9. The ...