Opinion
Civil Action No. 03-3158.
July 19, 2004
ORDER
AND NOW, this ____ day of July, 2004, upon consideration of the Petition for Writ of Habeas Corpus (docket no. 1) and Respondent's Answer thereto, and upon a de novo review of the issues raised by Petitioner's Objections to the Report and Recommendation of Magistrate Judge Thomas J. Reuter ("RR"), it is ORDERED that the RR is ADOPTED and the Petition is DENIED for the reasons articulated by Magistrate Judge Reuter. It is FURTHER ORDERED that no certificate of appealability shall issue.
Magistrate Judge Reuter correctly deferred to the state courts' holding that the jury instructions did not violate state law, see RR at 7, and, considered as a whole, did not violate Petitioner's due process rights by creating ambiguity regarding an element of the crime of conviction. See RR at 9-10. Magistrate Judge Reuter also appropriately deferred to the state courts' factual finding that Commonwealth witness Loehrs did not rely on any promises of leniency and their legal conclusion that the prosecutor's statements did not trigger the disclosure requirements of Brady v. Maryland, 373 U.S. 83 (1963). See RR at 14. Petitioner's counsel cannot be ineffective for failing to raise meritless claims. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999); United States v. Fulford, 825 F.2d 3, 9 (3d Cir. 1987).