Opinion
Civil Action No. 03-722.
August 19, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at State Correctional Institution ["SCI"] Smithfield at Huntingdon, Pennsylvania, where he is serving parole back-time. Petitioner is challenging a future aggregate sentence of two to four years for driving while under the influence and related offenses. See Habeas Petition [Docket Entry No. 3] at p. 12 ¶¶ 17(a) and (b). For the reasons which follow it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed for failure to exhaust state remedies, and that Petitioner's motion for summary judgment be denied.
I. BACKGROUND
In preparing this Report and Recommendation I have reviewed the following documents: Mr. Jordan's § 2254 original and re-filed habeas petitions and brief in support (with attached exhibits), the Commonwealth's response, Petitioner's traverse, his motion for summary judgment, Petitioner's Petition for Writ of Mandamus, and a supplemental response by the Commonwealth. I requested the Petitioner's state court records, which have not forwarded to my chambers. In the absence of the state court records, I will, therefore, rely upon the facts as presented by the parties, focusing on undisputed facts and noting areas of disagreement, if any.
On July 10, 1998, following a jury trial before the Honorable Richard B. Klein of the Court of Common Pleas of Philadelphia County, Petitioner was convicted of driving while under the influence of alcohol and drugs, and failing to stop at an accident involving personal injury. The charges arose from Mr. Jordan's involvement in a May 12, 1997 accident. The facts underlying Petitioner's conviction were described by the Superior Court as follows:
According to Petitioner, he was originally tried on March 13, 1998 for his involvement in the May 12, 1997 accident. After this proceeding ended in a mistrial, a second jury trial before Judge Klein was conducted. See Brief in Support of Petitioner's Motion for Summary Judgment [Docket Entry No. 23] at p. 1.
"On May 12, 1997, Appellant [Petitioner] failed to stop immediately after he accidently drove his pick-up into the back of a motorcycle, throwing the motorcyclist violently from his bike. A motorist who witnessed the collision followed Appellant for five blocks, obtained Appellant's license plate number, and returned to the accident scene where he gave the number to an investigating officer. Officers eventually stopped Appellant's truck as he was driving in the direction of the accident, and they observed Appellant to appear intoxicated. Appellant was arrested after he admitted drinking rum earlier in the day with his passenger. A blood sample drawn approximately two hours after the accident tested positive for marijuana and contained a blood alcohol level of .263 percent."Commonwealth's Response to Petition for Writ of Habeas Corpus [Docket Entry No. 21]: Exhibit "B" (Superior Court opinion dated May 7, 2001) at pp. 1-2.
Hereinafter "Commonwealth's Response."
On December 15, 1998, after denying post-verdict motions, Judge Klein sentenced Petitioner to an aggregate term of two to four years imprisonment. Id. at p. 2.
Petitioner was sentenced to two to four years for failing to stop at the scene of an accident involving personal injury; he was sentenced to a concurrent term of one to two years for driving under the influence of alcohol and drugs. Commonwealth's Response: Exhibit "A" (January 20, 2000 Trial Court Opinion) at p. 1.
A timely notice of appeal to the Superior Court was filed. On appeal, Petitioner raised the following issues: (1) whether the evidence in support of the Leaving the Accident conviction was sufficient; and (2) whether the trial court abused its discretion in sentencing outside the sentencing guidelines based on charges of which Petitioner was acquitted. Id. at pp. 2-3.
On May 7, 2001, the Superior Court affirmed the judgment of sentence, concluding that the there was sufficient evidence to support the leaving the accident scene conviction and that Petitioner's sentencing issue had been waived. Id. at pp 3-6.
While his direct appeal was pending before the Superior Court, Petitioner filed a habeas petition in this Court, arguing many of the same grounds set forth in the instant habeas petition. See Civil Action No. 00-80. In this earlier habeas petition, Mr. Jordan asserted, inter alia, as he does here, that the state process is "illusory in fact" and that the Commonwealth "has destroyed [his] mistrial transcripts as well as his retrial transcripts." See CA No. 00-80: Docket Entry No. 9 [February 16, 2000 Report and Recommendation] at pp. 2-4.
On June 16, 2000, Judge Kauffman dismissed Petitioner's first habeas petition without prejudice for failure to exhaust state remedies. Id.: Docket Entry No. 12. Judge Kauffman held that the absence of a full trial transcript, as alleged by Petitioner, does not exempt him from the habeas exhaustion requirement of § 2254. Id.
Petitioner appealed to the Third Circuit, and while the matter was on appeal, filed for an emergency hearing before Judge Kauffman. Both the motion for an emergency hearing, and the appeal, were denied. See CA No. 00-80: Docket Entry Nos. 18 and 19.
From the records before me, it does not appear that Petitioner sought allocatur review in the Pennsylvania Supreme Court.
The Commonwealth contends that Petitioner sought discretionary review, which was denied by the Pennsylvania Supreme Court on November 15, 2001. However, the citation given, 796 A.2d 979 (Pa. 2001), is for a "Chris Jordan." Petitioner, in detailing his ten prior state and federal petitions, does not refer to an allocatur request on direct appeal. Because it is not material to the discussion in this Report and Recommendation, I will assume arguendo that Petitioner did not seek allocatur review on direct appeal.
On May 6, 2002, Petitioner filed a letter and petition for writ of habeas corpus relief with the Administrative Office of the Pennsylvania Courts. This petition was deemed to be a petition under the Post Conviction Relief Act ["PCRA"], 42 Pa.C.S. § 9542. Counsel was appointed to represent Mr. Jordan. On October 1, 2002, counsel filed a no-merit Finley letter, arguing that Petitioner's claims were without arguable merit and that there were no additional issues to be raised in an amended PCRA petition. Commonwealth's Response: Exhibit "D" (June 24, 2003 PCRA Court Opinion) at p. 2.
Commonwealth v. Finley, 550 A.2d 213 (PA. Super. 1988).
On November 12, 2002, the Court dismissed Mr. Jordan's PCRA petition and permitted counsel to withdraw from further representation. Id.
According to Petitioner, in the years 1999-2002, he filed the following additional motions/petitions in state courts which have been decided: Writ of Habeas Corpus in the Supreme Court of Pennsylvania ("denied without comment" on January 5, 2000); a mandamus action in the Supreme Court of Pennsylvania ("dismissed without comment" on September 18, 2000); a "petition for remission and challenge to reconstruction of the trial record" in the Superior Court ("Petitioner denied access to the courts" on July 26, 2000); a "writ of habeas corpus/waiver of counsel" filed in the Philadelphia Court of Common Pleas ("result; none"); and a "petition for writ of habeas corpus/application of relief" in the Supreme Court of Pennsylvania ("dismissed without comment" on March 25, 2002).
During the same time period, Petitioner filed the following actions in federal court: a habeas petition which was dismissed on June 16, 2000 ( See fn.5); a second habeas corpus petition [CA No. 01-3976], alleging due process violations by the Pennsylvania Board of Probation and Parole [PBPP], which was dismissed as meritless on March 12, 2002; and a third habeas petition [CA No. 01-4067], again alleging due process violations by PBPP, which, on September 24, 2001, was dismissed without prejudice and consolidated with 01-3976.
Petitioner appealed the denial of his second habeas petition. The appeal was denied on the ground that Petitioner did not make a substantial showing of the denial of a constitutional right. See CA No. 01-3976: Docket Entry No. 20.
On January 14, 2003, Petitioner filed an appeal nunc pro tunc in the Superior Court. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 2.
On April 2, 2003, Mr. Jordan filed a variety of motions in the Superior Court, including: a motion for transcription of all trial proceedings, an application for relief/petition for writ of habeas corpus and an application for immediate hearing on petition for habeas corpus and application for relief. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 3.
In a May 5, 2003 Order, the Superior Court made the following rulings:
(1) To the extent that the transcript is available, the PCRA Court must provide copies of all notes of testimony that it deems necessary and relevant to the appeal. With regard to the missing notes of testimony which appear unavailable, Petitioner's request for transcription was denied without prejudice to his right to prepare a statement in the absence of the missing transcripts.
(2) Petitioner's motion for release on nominal bail, and his request to dismiss all charges (as set forth in his motion for application for relief/petition for writ of habeas corpus) were denied.
(3) Petitioner's request for a new trial was denied without prejudice to raise the claim in his appellate brief. and (4) Petitioner's application for an immediate hearing on the pending petition for writ of habeas corpus was denied.Commonwealth's Response: Exhibit "E" (May 5, 2003 Superior Court Order).
On May 8, 2003, Petitioner filed an application for summary relief. This motion was denied by the Superior Court in a June 12, 2003 Order. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 4.
On June 18, 2003, Petitioner filed an "application for bail and remand" Id.
On June 24, 2003, the PCRA Court filed an opinion in support of the denial of PCRA relief. Commonwealth's Response: Exhibit "D" (June 24, 2003 PCRA Court Opinion) at p. 1.
On July 14, 2003, Petitioner filed an "application for relief." He filed a brief on August 7, 2003. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 4.
In an August 22, 2003 Order, the Superior Court made the following rulings:
(1) Within thirty days, the PCRA Court must make a determination on Petitioner's request for bail. After the PCRA Court ruled, Petitioner would permitted to re-apply in the Superior Court for release pending appeal.
(2) Petitioner's application for summary relief and the record were remanded to the PCRA Court.
(3) The PCRA Court must forthwith provide Petitioner with copies of all available trial transcripts.
(4) The Commonwealth must within twenty-one days review Petitioner's statement in lieu of trial transcripts and serve any objections/proposed amendments.
(5) The briefing schedule before the Superior Court was vacated to be reestablished after the PCRA Court ruled on the remanded matters.Petitioner's Traverse [Docket Entry No. 24]: Exhibit "2" (August 22, 2003 Superior Court Order).
On September 11, 2003, the PCRA Court provided Petitioner with a video conference hearing. Id.: Exhibit "5" ("Motion to Recuse") at ¶ 14.
On November 17, 2003, Petitioner filed a motion to recuse in the PCRA Court, asking the hearing judge to recuse, arguing "because of the attitudes of the court as well as this courts unwillingness to act in accordance with law, the hearing court has a fixed and substantial bias against Petitioner and his impartiality is fairly in question because of his statements, beliefs and actions." Id. at ¶ 23.
On January 8, 2004, Petitioner filed an "application to enforce order of appellate court pursuant to Pa.R.A.P. 2591(b)." Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 5.
By Order dated January 30, 2004, the PCRA Court, following a hearing, denied Petitioner's request for bail pending PCRA appeal, concluding that Petitioner did not show the requisite compelling reasons for bail pending appeal to be granted. Petitioner's "Petition for Writ of Mandamus to a United States District Court" [Docket Entry No. 25]: "Exhibits X Through J" (January 30, 2004 PCRA Court Order).
By Order dated February 3, 2004, the Superior Court made the following rulings:
(1) Upon consideration of Petitioner's application to enforce order of appellate court pursuant to Pa.R.A.P. 2591(b) and his application for relief, the PCRA Court must forthwith notify the Superior Court of its decision on Petitioner's request for bail. and (2) The PCRA Court must forward to Petitioner a copy of the statement in lieu of trial transcripts as soon as it becomes available.Id.: "Exhibits F Through G" (February 3, 2004 Superior Court Order).
On February 23, 2004, Petitioner filed the following motions in the Superior Court: a "motion for remand to lower court for an evidentiary hearing /or to create a record for appellate review," and an application for bail. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 6.
By Order dated March 16, 2004, the Superior Court made the following rulings:
(1) Petitioner's motion to remand to the lower court for an evidentiary hearing and/or to create a record for appellate review was deferred to the panel of the Superior Court assigned to decide the merits of Petitioner's habeas claims. and (2) Petitioner's motion for bail was denied.Petitioner's "Petition for Writ of Mandamus to a United States District Court" [Docket Entry No. 25]: "Exhibits X Through J" (March 16, 2004 Superior Court Order).
On March 31, 2004, Petitioner filed, in the Superior Court, an application for clarification of the March 16, 2004 Order. Commonwealth's Supplemental Response (Letter dated August 13, 2004): Exhibit (Appeal Docket Sheet for 673 EDA 2003) at p. 7.
By Order dated April 21, 2004, the Superior Court denied Petitioner's application for clarification, advising him that his motion to remand to the lower court for an evidentiary hearing will be decided by the Superior Court panel assigned to decide the merits of his PCRA appeal. Petitioner's "Petition for Writ of Mandamus to a United States District Court" [Docket Entry No. 25]: "Exhibits X Through J" (April 21, 2004 Superior Court Order).
On February 3, 2003, Mr. Jordan filed the instant habeas petition. At the Court's direction, he re-filed his claims on a current § 2254 form. In his revised habeas petition, Petitioner raises the following nine grounds:
(1) "Denial of Petitioner's right to a prompt preliminary hearing and the denial of Petitioner's right to exculpatory evidence. Petitioner is entitled to a prompt preliminary hearing within ten days after a complaint is filed against him and is entitled to information relating to where petitioner may obtain a sample of his blood for personal chemical testing, however, and without good cause shown, the preliminary hearing was delayed for 102 days as a tactical measure to conceal the whereabouts of where petitioner could obtain a sample of his blood and to permissibly destroy exculpatory evidence."
(2) "Denial of Petitioner's right to exculpatory and impeachment evidence. After initially being tried for D.U.I., Aggravated Assault and related offenses, Petitioner filed motions for the production of the mistrial transcripts which was [sic] vital to Petitioner's defense to show the inability of the Commonwealth's expert witness to prove that Petitioner had a B.A.C. of .10% or more at the time of operating his vehicle and show inconsistent, contradictory, inadmissible evidence and perjured testimony at Petitioner's retrial."
(3) "Denial of competent or qualified assistance of counsel. On July 3, 1998, the very day of Petitioner's retrial, the court appointed counsel to represent Petitioner. Court appointed counsel had not obtained any preliminary, suppression hearing, mistrial transcripts or discovery. Moreover, counsel did no interviews of any witnesses, including Petitioner himself and conducted no investigations or research of the law as it would relate to Petitioner's alleged crimes which precluded counsel from effectively cross examining the prosecutions witnesses, exposing perjured testimony, objecting to inadmissible evidence and, inter alia, objecting to Petitioner being tried on a [sic] unconstitutional statute as well as presenting a defense in Petitioner's behalf."
(4) "Denial of Petitioner's constitutional right to counsel at all critical stages of trial. On July 8, 1998, two days before the conclusion of Petitioner's trial, court appointed counsel requested leave to attend a business meeting in Florida and/or Las Vegas. The trial court, without consulting with Petitioner and without seeking and/or obtaining waiver of counsel from Petitioner or appointing substitute counsel for Petitioner, allowed court appointed counsel to attend his business meeting thereby denying Petitioner the right to summation of the evidence, objections to the prosecutions closing arguments, objections to the trial court directed verdict against Petitioner, objections to the trial courts instructions on the unconstitutional statute 75 Pa.C.S.A. § 3731(a)(5); objections to the trial courts new instruction on flight were said instruction was irrelevant to the questions posed by the jury' a request of the specific charges that the jury was finding Petitioner guilty of and the polling of the jury."
(5) "Denial of Petitioner's constitutional right to an appeal in compliance with due process. Petitioner contends that he was denied his constitutional right to a meaning appeal [sic] where court appointed trial counsel, who was also appellate counsel, refused to have any contact or communication with Petitioner in lieu of the fact that counsel was absent for the last two days of Petitioner's trial and in lieu of the fact that three of the five days of trial testimony was untranscribable. [sic] Moreover, counsel even refused to obtain the trial courts notes on Petitioner's retrial although the trial court allegedly offered them."
(6) "Denial of Petitioner's right to access to the courts. Despite numerous filings with the courts alleging the denial of counsel' the denial of a transcripts or a equivalent [sic] picture; counsel's refusal to communicate with Petitioner; and counsel's refusal to represent Petitioner, the appellate courts refused to entertain any of Petitioner petitions/motions, conduct a hearing on Petitioner's claims or order counsel and/or the Commonwealth to respond to Petitioner constitutional allegations."
(7) "Denial of Petitioner's right to self representation. Despite the waiver of counsel before and after appointment of counsel, the post conviction court refused to conduct a hearing to determine the knowing and intelligent waiver of counsel and/or why Petitioner elected to proceed without counsel."
(8) "Denial of effective assistance of counsel and access to the courts on collateral review. Despite Petitioner's knowingly and intelligent waiver of counsel the court forced an attorney to represent Petitioner who then refused to have any contact or communication with Petitioner, refused to address any of Petitioner's constitutional or otherwise claims and deliberately made numerous misrepresentations to the PCRA Court regarding facts and law involved in Petitioner's case."
(9) "Denial of access to courts. Petitioner was denied his 1st Amendment right to meaningful access to the courts where the PCRA Court refused to address any of Petitioner's claims or grant Petitioner an evidentiary hearing despite Petitioner's presentation of evidence contrary to court appointed PCRA Counsel's no merit letter and proof that there was no record for court appointed counsel to review."Revised Habeas Petition [Docket Entry No. 3] at pp. 9-10.
On November 26, 2003, the Commonwealth filed a response to Mr. Jordan's habeas petition, arguing that, in light of the pending PCRA appeal before the Superior Court, the petition should be dismissed without prejudice for failure to exhaust state remedies. Commonwealth's Response [Docket Entry No. 21] at pp. 11-12.
Petitioner filed a traverse to the Commonwealth's response, asserting that he has exhausted state remedies by "afford[ing] each of the state courts two or more opportunities to resolve, inter alia, the deprivation of counsel at trial and on appeal and in each and every instance, the state courts have not only refused to address the claims presently before this court, despite numerous and serious constitutional violations alleged by Relator, but has also failed to require or demand that the Respondents file an answer to Relator's claims." Petitioner's Traverse [Docket Entry No. 24] at p. 3. In the alternative, should this court find that Petitioner has failed to exhaust, he requests the failure to exhaust be excused "where the state courts have consistently ignored Relator's federal claims of illegal and unconstitutional restraint throughout all proceedings on direct appeal of his conviction and where the PCRA Court has not only failed to address Relator's claims, but has also obstructed any hope of appellate review. Moreover, consideration that Relator has been trying for the past seven (7) years to have these claims addressed by the state courts would constitute inexcusable and/or inordinate delay." Id. at p. 10.
With regard to the pending PCRA appeal, Petitioner argues "no appeal can be had in the Superior Court where there is no record for said court to review and the lower court has thwarted every attempt of Relator to do so." Id. at p. 6.
On December 18, 2003, Petitioner filed a motion for summary judgment. In this motion he seeks "partial summary judgment against Respondent State as to their continued restraint and detention of Relator being in violation of Relator's 5th, 6th, 13th and 14th Amendment Rights of the United States Constitution." According to Petitioner, "the undisputed facts of this case show that the plaintiff was tried and convicted without the assistance of counsel and with no effective remedies for redress in the state courts." Petitioner's Motion for Summary Judgment [Docket Entry No. 23] at pp. 1-3.
On June 21, 2004, Petitioner filed a "Petition for Writ of Mandamus to A United States District Court," asking the Third Circuit to order this Court to issue a ruling on his habeas petition. Petitioner's Mandamus Petition [Docket Entry No. 25].
On August 13, 2004, I directed the Commonwealth to file a supplemental response to Petitioner's habeas petition, updating this Court as to the status of his PCRA appeal. See Docket Entry No. 27.
By letter dated August 13, 2004, the Commonwealth submitted a supplemental response, with a current PCRA Appeal docket attached.
II. DISCUSSION
The exhaustion rule, codified in 28 U.S.C. § 2254, requires a federal court to postpone habeas corpus jurisdiction, absent exceptional circumstances, until "the applicant has exhausted the remedies available in the courts of the State". The exhaustion requirement is rooted in considerations of comity; the statute is designed to protect the role of the state court in enforcement of federal law and to prevent disruption of state judicial proceedings. Rose v. Lundy, 102 S.Ct. 1198, 1203 (1982); Castille v. Peoples, 109 S.Ct. 1056, 1059 (1989).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(b) (1) An application for 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.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(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.
In order to demonstrate compliance with the exhaustion requirement, a habeas petitioner must show that each claim which forms the basis of his federal habeas petition has been "fairly presented" to the State courts. Castille v. Peoples, 109 S.Ct. At 1060 (1989); Picard v. Connor, 404 U.S. 270, 275 (1971). Absent exceptional circumstances, Petitioner must first present all of his constitutional claims to the Superior Court of Pennsylvania and then the Supreme Court of Pennsylvania before seeking relief in federal court. See Picard v. Connor, 404 U.S. at 275 (1971); Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984).
The burden is on the habeas petitioner to prove all facts which entitle him to a discharge from custody, including the facts relevant to the exhaustion requirement. Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir. 1987).
In the instant case, as Petitioner himself admits, there is a PCRA appeal pending in the Superior Court of Pennsylvania. The PCRA action challenges the same future sentence which Petitioner is attacking in his habeas petition, and raises the same claims. Petitioner has not exhausted his habeas claims as required under § 2254.
Petitioner argues that any failure to exhaust should be excused because he has given the state courts numerous opportunities to address his claims which have been ignored for seven years.
Federal courts may entertain the merits of a petition for habeas corpus where no remedy exists at the state level or when the state process would frustrate the use of an available remedy. See 28 U.S.C. § 2254(b)(1)(B)(i) and (ii). Inexcusable or inordinate delay may render the state remedy effectively unavailable. Travis v. Meyers, 36 Fed.Appx. 486, 487 (3d Cir.) ( citing Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994)), cert. denied, 537 U.S. 959 (2002).
There is no single, comprehensive test for inordinate delay. However, it must rise to the level of "exceptional circumstances." "If it appears that the prisoner's rights have become an `empty shell' or that the state process is a `procedural morass' offering no hope of relief, then the federal courts may excuse the prisoner from exhausting state remedies and may directly consider the prisoner's constitutional claims." Hankins v. Fulcomer, 941 F.2d 246, 249-250 (3d Cir. 1991).
Delays of eleven, five, twelve and three years have been found sufficient to excuse the exhaustion requirement. Story, 26 F.3d at 405 (3d. Cir. 1994). To date, the shortest delay held, by the Third Circuit, to render state collateral proceedings ineffective for purposes of the exhaustion requirement is thirty-three months. Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir.), cert. denied, 537 U.S. 897 (2002).
In the instant case, Mr. Jordan filed a letter and habeas petition (deemed to be a PCRA petition) on May 6, 2002. The PCRA Court denied this petition on November 12, 2002. The delay between November 12, 2002 and January 14, 2003, when Petitioner filed a PCRA appeal nunc pro tunc in the Pennsylvania Superior Court, is not attributable to the Commonwealth. Since January 14, 2003, Petitioner has filed no less than ten additional pleadings in the Superior Court. The Superior Court has issued six orders in Petitioner's case, and has remanded the matter back to the PCRA Court for additional proceedings. At this point, Mr. Jordan is awaiting a ruling on his PCRA claims by the Superior Court panel assigned to decide his appeal. Given the flurry of pleadings which have been promptly ruled upon by the Superior Court, the delay attributable to need to remand to the PCRA Court, and the current status of the PCRA appeal, the approximately twenty-one month delay before the Superior Court does not rise to the exceptional circumstances. See Cristin, 281 F.3d at 411 (3d Cir. 2002) (declining to reduce the threshold of delay to twenty-seven months were there is activity in the state courts and the petitioner was merely awaiting a ruling). It is not appropriate for this Court to excuse the exhaustion requirement in Mr. Jordan's case.
Thus, I make the following recommendation.
RECOMMENDATION
Consistent with the above discussion, it is recommended that Mr. Jordan's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, be DISMISSED WITHOUT PREJUDICE for failure to exhaust state remedies. It is further recommended that his motion for summary judgment be denied, and a finding be made that there is no probable cause to issue a certificate of appealability.