Opinion
Civil Action No. 04-2373.
September 14, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For the reasons stated below, this court recommends that the petition be dismissed, without prejudice, for failure to exhaust state court remedies.
I. BACKGROUND
On November, 13, 2003, petitioner was convicted in the Court of Common Pleas for Philadelphia County of first-degree murder, attempted murder of Kasimir Devine, attempted murder of Michael Brown, and possession of an instrument of crime. (No. 9905-0311.) The jury sentenced petitioner to life imprisonment for the first-degree murder conviction. Later, the court sentenced petitioner to two consecutive terms of ten to twenty years on the two attempted murder convictions and a concurrent term of two and one-half to five years on the possession conviction.
Petitioner appealed to the Superior Court, which affirmed his conviction and sentence on February 4, 2002. Commonwealth v. Ellis, 797 A.2d 1022 (Pa.Super.Ct. 2002). The Pennsylvania Supreme Court denied allocatur on July 16, 2002. Commonwealth v. Ellis, 805 A.2d 520 (Pa.Super.Ct. 2002).
On October 2, 2002, petitioner filed a pro se petition pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541, et seq., raising a number of claims, including the ineffective assistance of counsel claim raised in the present habeas petition. On December 30, 2003, the PCRA court dismissed the petition.
Petitioner appealed the dismissal of the PCRA petition to the Pennsylvania Superior Court. (Doc. No. 380-EDA-2004.) The court is awaiting the filing of briefs by the parties.
On June 1, 2004, petitioner filed the present petition for a writ of habeas corpus and memorandum of law in support of the petition. He raises, inter alia, the following issues: (1) trial counsel was ineffective for failing to request a change of venue due to pre-trial publicity and for failing to request suppression of perjured testimony; (2) numerous errors at petitioner's trial violated the petitioner's constitutional rights; (3) the evidence was insufficient to convict the petitioner; (4) the trial court erred in not granting his request for a mistrial or a new trial; (5) the trial court erred in allowing "wrong statements" to be made during the jury trial; and (6) petitioner was convicted of first degree murder based on perjured testimony. On September 7, 2004, the Commonwealth filed a Response and requested that the petition be dismissed because it contains both exhausted and unexhausted claims.
II. DISCUSSION
A federal court may not entertain the merits of a prisoner's 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). It is well established that a prisoner must present all of his claims to the trial court, the state's intermediate court, as well as to its Supreme Court, before a district court may entertain a federal petition for habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). "Before exhaustion will be excused, state law must clearly foreclose state court review of unexhausted claims." Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). Unless a state court has concluded that a petitioner "is clearly precluded from state court relief, the federal habeas claim should be dismissed for nonexhaustion, even if it appears unlikely that the state will address the merits of the petitioner's claim." Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1997) (emphasis in original), cert. denied, 532 U.S. 919 (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); Morris v. Horn, 187 F.3d 333, 337 (3d Cir. 1999).
Petitioner's ineffectiveness of counsel claim which he raises now in federal court is unexhausted in the state courts. As noted earlier, petitioner raised this claim in the Superior Court and the appeal is pending. Accordingly, the petitioner has filed a mixed petition containing both exhausted and unexhausted claims and, therefore, the petition must be dismissed. III. CONCLUSION
Because a dismissal of the petition will not jeopardize the timeliness of a subsequent petition under 28 U.S.C. § 2244(d), the court should dismiss the petition rather than stay the petition pending the final resolution of the state appellate proceedings. See Crews v. Horn, 360 F.3d 146, 153 (3d Cir. 2004).
Accordingly, the court makes the following:
RECOMMENDATION
AND NOW, this day of September, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED, without prejudice, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).