Opinion
Civil Action Case No. 03-6879.
September 1, 2004
ORDER
AND NOW, this 1st day of September, 2004, upon independent consideration of the Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2254 and the response thereto, and after review of the Report and Recommendation of United States Magistrate Judge Diane M. Welsh, and the petitioner's objections thereto, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus is DENIED and DISMISSED; and,
3. A certificate of appealability shall not issue since, for the reasons set forth in the Report and Recommendation, a reasonable jurist could not conclude that the Court would be incorrect in dismissing petitioner's procedurally defaulted habeas claim, and petitioner has not made a substantial showing of the denial of a constitutional right with regard to his remaining claims.
The Report and Recommendation of Magistrate Judge Welsh is a thorough and thoughtful review of all of the issues raised by the petitioner. The objections do not raise any new arguments except for the argument that the Report and Recommendation concludes incorrectly that the petitioner's seventh claim is procedurally defaulted. The petitioner appears to blame ineffective assistance of counsel for his failure to present the seventh claim to the Superior Court on his PCRA appeal. The petitioner, however, proceeded pro se on his PCRA appeal to the Superior Court. He did raise his second through sixth claims on his PCRA appeal. He has presented no legally cognizable reason as to why he did not also present the seventh claim. All of the other issues raised in the objections were thoroughly explored by the Magistrate Judge, and the Court agrees with the analysis and conclusions of Judge Welsh.