Opinion
Civil Action No. 04-2373.
September 29, 2004
MEMORANDUM and ORDER
Daemon Ellis, Petitioner, who is serving a life sentence at the Pennsylvania State Correctional Institution at Bellefonte, asks this court to grant him habeas corpus relief under 28 U.S.C. § 2254. After a careful and independent review pursuant to 28 U.S.C. § 636, we find the petition contains three unexhausted claims. Since habeas relief is only available for claims for which state remedies are exhausted, we approve the Report and Recommendation of Magistrate Judge Peter F. Scuderi and overrule the objections of Petitioner.
§ 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies vailable in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254.
On November 14, 2003, a capital jury convicted Ellis on one count of first-degree murder and two counts of attempted murder in Philadelphia County Court of Common Pleas and imposed a penalty of life imprisonment. The judge later sentenced Ellis to two consecutive terms of 10 to 20 years' incarceration on the attempted murder counts.
Ellis appealed his conviction to the Pennsylvania Superior Court, which affirmed his judgment of sentence on February 4, 2002. Commonwealth v. Ellis, 797 A.2d 1022 (Pa.Super. 2002). The Pennsylvania Supreme Court denied allocatur on July 16, 2002. Commonwealth v. Ellis, 805 A.2d 520 (Pa. 2002). On October 2, 2002, Ellis filed a petition for Post Conviction Collateral Relief (PCRA), 42 Pa.C.S. § 9541 et seq., raising a number of issues, including ineffective assistance of counsel. On December 30, 2003, the PCRA court dismissed the petition. On January 29, 2004. James S. Bruno, Esquire, filed a notice of appeal on Ellis's behalf.
Bruno failed to file a Superior Court docketing statement and the Superior Court directed the PCRA court to determine whether Bruno had abandoned his client. On May 21, 2004, the PCRA judge replied Bruno would file a docketing statement and "is not abandoning his client." Superior Court docket, 380 EDA 2004, at 4. On July 14, 2004, the Superior Court directed the PCRA court to remove Bruno from the case, appoint new counsel and withhold all fees from Bruno. The Superior Court ordered a new briefing schedule on the return of the record, and retained jurisdiction. Ellis raises four questions in this petition, three of which involve ineffective assistance of counsel, the same claims pending before the Superior Court.
DISCUSSION
Ellis's petition is a mixture of exhausted and unexhausted claims. This Court may not consider the merits of a petition for a writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied if the federal claim was fairly presented to the state appellate courts. Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004). The exhaustion requirement includes all appeals. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001). A petition that contains even one unexhausted claim must be dismissed as a mixed petition. Rose v. Lundy, 455 U.S. 509, 519 (1982). Ellis's case is still pending before the Superior Court. There is no danger a dismissal will deprive Ellis of his right to a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act, because the one-year limitation does not begin to run until his state court judgment becomes final, which will not occur until the appeal of the denial of PCRA is complete.
Pub.L. No. 104-132, 110 Stat. 1214, codified in relevant part at 28 U.S.C. §§ 2241- 2255.
Because Ellis's petition contains two claims which are now pending before the Superior Court, this court must dismiss the petition as mixed under Rose. Accordingly, we enter the following order:
ORDER
AND NOW, this 28th day of September, 2004, it is hereby ORDERED that the petition for a writ of habeas corpus is DISMISSED, without prejudice and no certificate of appealability will be granted.