Opinion
CIVIL ACTION NO. 03-4873
February 19, 2004
REPORT AND RECOMMENDATION
Presently before the Court are a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Birdell Brockington ("Petitioner"), pursuant to 28 U.S.C. § 2254, and an Application for Permission to Withdraw the Petition Without Prejudice (Dkt. No. 12). The Petitioner is currently incarcerated at the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that the Application to Withdraw the Petition should be granted, and the Petition should be denied and dismissed without prejudice and without an evidentiary hearing.
This information is taken from the Record of this case including the Petition for Writ of Habeas Corpus, the Response, and all attachments to those pleadings.
Petitioner was tried by a jury before the Honorable Edward D. Reibman in the Court of Common Pleas of Lehigh County, and Petitioner was convicted on May 22, 1998, of first degree. murder, conspiracy to commit first degree murder, burglary, criminal trespass, theft by unlawful taking, and receiving stolen property. Judge Reibman sentenced Petitioner to life imprisonment on May 26, 1998, and on November 25, 1998, Judge Reibman denied Petitioner's post-verdict motions. Petitioner'sappeal with the Pennsylvania Superior Court was denied on July 31, 2000. See Commonwealth v. Brockincrton, 764 A.2d 1119 (Pa.Super. 2000)(Table). On December 14, 2000, the Supreme Court of Pennsylvania denied Petitioner's appeal. See Commonwealth v. Brockincrton, 764 A.2d 1064 (Pa. 2000).
On August 25, 2003, Petitioner filed the instant Petition for Writ of Habeas Corpus containing nine different claims, including: (1) highly suggestive illegal identification (Pet. at 9); (2) admission of a codefendant's statement at trial Id. at 9-10); (3) the Commonwealth used the testimony of Norman Blatt, Esquire, to bolster the credibility of Mr. Beeson (Id. at 10); (4) prosecutorial misconduct using plea negotiations at trial (Id.); (5) three different claims of prosecutorial misconduct (Id. at 9a); (6) weight and sufficiency of the evidence was insufficient to justify a verdict of guilty (Id.); and (7) the trial court erred in allowing the jury to view certain evidence during its deliberations. (Id.) Respondents oppose the Petition and contend that none of Petitioner's claims were meritorious.
After the Petition was filed and assigned to this Court for preparation of a Report and Recommendation, Petitioner sought an extension of time in which to file a Memorandum in Support of the Petition. Due to Petitioner's pro se status, this Court granted the extension, and also granted an extension of time for Respondents to amend their Response to address any additional issues contained in Petitioner's Memorandum. Petitioner did notfile a Memorandum in support of his Petition, but on February 3, 2004, Petitioner filed an Application for Permission to Withdraw the Petition Without Prejudice. Respondents have not filed a response to that Application.
II. DISCUSSION.
In his Application, Petitioner seeks permission from this Court to withdraw his Petition without prejudice. After filing his Petition in this Court, Petitioner received information from his appellate counsel and the state court regarding exhaustion of his appellate rights. Moreover, Judge Reibman, Petitioner's trial judge, issued an Order on January 12, 2004, allowing Petitioner to file a Petition for Allowance of Appeal nunc pro tunc to the Pennsylvania Supreme Court within thirty days from January 12, 2004. Thus, Petitioner seeks permission from this Court to withdraw the instant Petition in order to further pursue his state court appeal.
Because Petitioner has not yet exhausted his state court remedies, this request should be granted. Petitioner is advised, however, that any subsequent Petition filed by him may be subject to the one-year limitation provision located in 28 U.S.C. § 2244(d).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ___ day of February, 2004, IT IS RESPECTFULLY RECOMMENDED that the Application for Permission to Withdraw the Petition for Writ of Habeas Corpus should be GRANTED and the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED and DISMISSED without prejudice. There is no probable cause to issue a certificate of appealability.