Opinion
Civil Action No. 04-604.
May 13, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. The Commonwealth of Pennsylvania ("Respondent") has filed a letter response in opposition. Raheem Jones ("Petitioner") currently is incarcerated at the Pine Grove Correctional Facility at Indiana, Pennsylvania. He asserts several ineffective assistance of counsel claims. See Petitioner's Federal Habeas Petition ("Pet.") at 9-10. The Honorable Robert F. Kelly referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, this unexhausted petition should be dismissed, without an evidentiary hearing and without prejudice to Petitioner's right to refile at the conclusion of state court proceedings.
I. BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history were gleaned from the Petition for Writ of Habeas Corpus, the Commonwealth's response thereto, the Superior Court Docket ("Dkt.") dated May 12, 2004 (Attachment "A" to this Report and Recomm endation).
Petitioner, on February 16, 1999, before the Honorable Ricardo C. Jackson, pled guilty to aggravated assault, firearms not to be possessed by minors, and possession of an instrument of crime. See Respondent's Brief ("Resp.") at Exh. "A" (Petitioner's Brief to the Superior Court of Pennsylvania). Although the Commonwealth recommended a sentence of six and one-half to twenty years of imprisonment, Judge Jackson sentenced Petitioner to ten to twenty years of confinement to be followed by probation. See id. Petitioner appealed his convictions to the Pennsylvania Superior Court, alleging defense counsel ineffectiveness in informing him the trial court was bound by the prosecution's sentencing recommendation and for failing to withdraw his guilty plea at sentencing. See id. On August 16, 2000, the Superior Court affirmed Petitioner's convictions. See Commonwealth v. Jones, 764 A.2d 1124 (Pa.Super.Ct. Aug. 16, 2000). Petitioner did not seek review in the Pennsylvania Supreme Court, hence his conviction became final on September 15, 2000.
On June 28, 2001, Petitioner sought relief, pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. § 9541, et seq., raising the identical ineffectiveness claims raised on direct appeal. See Commonwealth v. Jones, No. 694 (Ct. Com. Pl. Phil. Cty. March 31, 2003); see also Resp. at 2. Petitioner further claimed defense counsel was ineffective for failing to object to the trial court's "defective" counsel colloquy. See id. On March 31, 2003, the PCRA court dismissed the action as previously litigated. See Jones, No. 694 at 1-2; see also Pet. at 6. Next, on April 23, 2003, Petitioner appealed to the Pennsylvania Superior Court, insisting that his guilty plea was not previously litigated. See Resp. at Exh. "A."
Although the appeal of Petitioner's PCRA case was still pending, on January 16, 2004, Petitioner filed the instant pro se petition in the United States District Court for the Western District of Pennsylvania. Petitioner asserts that defense counsel was ineffective for not attempting to withdraw his guilty plea after sentencing and for advising Petitioner that the trial court was required to follow the prosecution's sentencing recommendation. See Pet. at 9-10. Respondent contends, and this court finds Petitioner's request for federal review to be premature, inasmuch as all available state remedies have not yet been exhausted.
Subsequently, this case was transferred to this court. See E.D. Pa. Docket, 04-cv-00604 entry No. 1.
II. DISCUSSION
It is well settled that, absent exceptional circumstances, a federal court will not determine the merits of claims contained in a habeas corpus petition, until they have been exhausted in state court. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd 30 F.3d 1488 (3d Cir. 1994). Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). The policy behind the total exhaustion doctrine is rooted in our tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of a petitioner's constitutional rights. See also Picard v. Connor, 404 U.S. at 275 (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)); see also Tillett v. Freeman, 868 F.2d 106 (3d Cir. 1989).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(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 available 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 . . .
(c) an applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Traditionally, to exhaust his claims, a petitioner must fairly present the identical claims (on both fact and theory) he wants the federal habeas Court to review to all levels of the state judicial system, including the state's highest court. See Anderson v. Harless, 459 U.S. 4 (1982); Gibson v. Scheidmantal, 805 F.2d 135 (3d Cir. 1986); Evans v. Ct. Com. Pl., 959 F.2d 1227 (3d Cir. 1992) (claim must have been presented to intermediate appellate court, as well as state's highest court); Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982). However, because the Supreme Court of Pennsylvania, on May 9, 2000, through adoption of Rule No. 218 of Judicial Administration pronounced that convicted criminals need not appeal to the state's highest court to exhaust their claims, a habeas claim processed through the Pennsylvania Superior Court will be deemed exhausted. See Mattis v. Vaughn, 128 F. Supp.2d 249, 260-261 (E.D. Pa. 2001 Antwerpen, J.) (concluding that "principles of deference to Supreme Court dicta and of comity towards the state courts, which is the basis of the exhaustion doctrine, require us to respect the pronouncement of the Pennsylvania Supreme Court in Order No. 218.")
Pennsylvania R. 218 of Judicial Administration provides as follows:
We hereby declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. When a claim has been presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief.
Although Petitioner herein has presented his claims to state court, he has not given that forum adequate time to rule on the merits of his assertions. Hence, his federal claim, not yet exhausted, is unreviewable. While federal courts may deviate from the exhaustion requirement and intervene in highly exceptional circumstances, such an exception would be justified only if Petitioner lacked any real opportunity to obtain redress in the state court, or if the corrective process was so clearly deficient as to render futile any effort to obtain relief. See Duckworth v. Serrano, 454 U.S. 1 (1981). Petitioner cannot meet these stringent requirements to obtain premature federal review of his claim.
First, Petitioner clearly has an avenue of redress. In fact, on April 23, 2003, he filed a notice of appeal in the state's intermediate court. See Dkt. at 2. This review will clarify the record and possibly provide the relief Petitioner seeks. Second, nothing contained in this record suggests that an inordinate delay in the adjudication of Petitioner's claims has occurred in the past or will occur. Finally, Petitioner has neither alleged nor shown any deficiency or irregularity in the state corrective process or other justification sufficient to warrant exemption from the exhaustion rule.
To the contrary, Petitioner's claims appear to be progressing appropriately. The state court docket reflects that, on April 23, 2003, Petitioner filed an appeal; on December 15, 2003, the Superior Court received the trial court record; and, on March 30, 2004, Petitioner filed his brief. See id at 4. The Commonwealth was granted an extension to file its reply brief. See id. As of May 12, 2004, the docket reflects that Petitioner's case is "awaiting consideration." See id. at 1.
Since no special circumstances warrant early federal review of Petitioner's claims and inasmuch as the state claims, if resolved favorably to Petitioner, may obviate the need for federal habeas review or relief, the policy behind exhaustion would be served best by dismissing this petition, without prejudice to Petitioner's right to refile promptly at the conclusion of state court proceedings. Based on Petitioner's non-exhaustion, in light of the pendency of his state action to correct the alleged deficiency, Petitioner has failed to make a showing of a denial of a constitutional right. Thus, a certificate of appealability should not be granted.
Failure to file another habeas petition (within, approximately 79 days of the conclusion of state court proceedings) could result in a procedural default under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A"), 28 U.S.C. § 2244(d)(1)(A), thereby precluding Petitioner from ever obtaining federal habeas review of his claim. Accordingly, if state procedures do not afford Petitioner relief, he should promptly refile his fed eral action.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 13th day of May, 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE to Petitioner's right to refile at the conclusion of state court proceedings. Petitioner has not demonstrated a substantial violation of any constitutional right. Therefore, there is no probable cause to issue a certificate of appealability.