Opinion
CIVIL ACTION No. 02-CV-6760
June 10, 2003
REPORT AND RECOMMENDATION
Before this court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner, Ryan Michael Kerwin, is currently incarcerated at the State Correctional Institution — Smithfield in Huntingdon, Pennsylvania. For the reasons that follow, it is recommended that Kerwin's petition be DISMISSED without prejudice for failure to exhaust state remedies.
FACTUAL AND PROCEDURAL HISTORY
A review of the state court record reveals that in the early morning hours of November 4, 1998, Kerwin was involved in an argument with his roommate, Ken Good, during which Kerwin struck Good in the head with a hammer causing a skull fracture. With the help of his friend, Dan Pellicone, Kerwin left his Bucks County apartment, tossed the hammer in neighboring woods, and was driven to a wooded area in Middletown Township. When Pellicone returned to the apartment to pick-up Kerwin's girlfriend, Katie Ireland, the police were already there. After interviewing Pellicone and Ireland, the police located the hammer. The hammer later tested positive for Good's DNA. Pellicone also informed the police of Kerwin's location; however, the police were only able to recover some of Kerwin's personal belongings.
On January 12, 1999, after receiving a tip from an anonymous informant, the police located Kerwin and Ireland at a Red Roof Inn in Langhorne, Pennsylvania. When Ireland opened the door to the room, Kerwin hid in the bathroom and refused to come out. As Detective Tegge approached the bathroom with his gun drawn, he observed Kerwin with a gun in his hands. After repeated orders to drop the gun, Kerwin eventually complied and was arrested.
Kerwin was charged with aggravated assault, and other related charges resulting from the November 4, 1998 attack on Good. Kerwin was also charged with recklessly endangering another person, and possession of a firearm by a convicted felon arising from the circumstances of his arrest on January 12, 1999. The Commonwealth's attempt to consolidate these charges for trial was unsuccessful.
On April 28, 1999, following a jury trial in the Court of Common Pleas of Bucks County, Kerwin was convicted of the November 4, 1998 assault charges. While the jury was deliberating, Kerwin elected to plead guilty to the January 12, 1999 charge of recklessly endangering another person, and to proceed with a non-jury trial on the felon in possession of a firearm charge. Kerwin was also found guilty of this charge.
On June 11, 1999, Kerwin was sentenced on all charges to an aggregate term of four and one-half (4 ½) to nine (9) years' imprisonment. Kerwin did not file a direct appeal.
On April 12, 2000, Kerwin filed a pro se petition for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq. Appointed counsel filed an amended petition and, following a hearing on June 27, 2000, Kerwin's appellate rights were reinstated nunc pro tunc. Thereafter, Kerwin filed a direct appeal in which he raised the following claims: 1) insufficiency of the evidence to support a conviction for aggravated assault; 2) ineffective assistance of trial counsel for failing to challenge a juror; 3) ineffective assistance of trial counsel for failing to object to the prosecution's opening and closing remarks; and 4) trial court error for precluding trial counsel from impeaching the credibility of the victim. The Superior Court of Pennsylvania affirmed the judgment of sentence in a memorandum opinion.Commonwealth v. Kerwin, No. 2986 EDA 2000 (Pa.Super., May 8, 2001). The Supreme Court of Pennsylvania denied Kerwin's petition for allowance of appeal. Commonwealth v. Kerwin, No. 406 MAL 2001 (Pa., October 2, 2001).
On July 25, 2002, Kerwin filed a petition for a writ of habeas corpus in the Middle District of Pennsylvania. This petition was transferred to the Eastern District on August 15, 2002. Kerwin was provided with the current forms for the filing of § 2254 petitions, and he filed his corrected petition on October 11, 2002. In this petition, Kerwin claims that: 1) he was denied the right to appeal and inordinate delay; 2) his conviction was obtained by the failure of the prosecution to disclose evidence favorable to the defendant and by the use of coercion; 3) he was denied the right to cross-examine and impeach the victim; 4) his conviction was obtained by the use of tampered evidence; 5) his conviction was obtained by the use of perjured testimony; 6) his conviction was obtained through prosecutorial misconduct; 7) he was denied the right to a fair and impartial jury; 8) his guilty plea was involuntary; and 9) he was denied the right to a speedy trial and his sentence is illegal. The Commonwealth has filed a response asserting that this petition should be denied because the claims raised are procedurally defaulted or without merit.
A review of the state court docket reveals that the state court appointed counsel to represent Kerwin in the filing of a petition for a writ of certiorari in the Supreme Court of the United States. There was no indication on the docket as to the disposition of this petition. As a result, my chambers contacted appointed-counsel to determine the status of the petition and was advised that the petition was not filed because Kerwin did not respond to counsel's written request that he sign an affidavit in support of his petition. A copy of a letter from counsel in this regard is attached to Kerwin's original habeas corpus petition.
The docket also indicates that Kerwin filed a PCRA petition on January 3, 2003. That petition was not included in the record provided by the state court; however, according to the state court docket, it remains pending.
DISCUSSION
It is well-settled that absent exceptional circumstances a federal court will not entertain a petition for a writ of habeas corpus until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254 (b); O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254 (c). The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of the petitioner's constitutional rights. Picard, 404 U.S. at 275 (quotingWilwording v. Swenson, 404 U.S. 249, 250 (1971)). Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). Thus, each constitutional claim presented in a habeas petition must be exhausted. 28 U.S.C. § 2254 (c); Tillet v. Freeman, 868 F.2d 106 (3d Cir. 1989).If a petitioner has not "fairly presented his claims to the state court and no state avenue of relief remains available, the unexhausted claims may be deemed exhausted. Gray v. Netherland, 518 U.S. 152 (1996). This requirement does not apply when "state procedural rules bar a petitioner from seeking further relief in state courts." Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see also Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). In such cases, exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claim, and thus any attempts to assert the claims would be futile. Id. However, this does not automatically lead to a review of the merits by a federal court because the claims are then considered procedurally defaulted. Lines, 208 F.3d at 160; Coleman v. Thompson, 501 U.S. 722, 749 (1991) (federal review of such claims is precluded if the "prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule"). The petitioner must establish "cause and prejudice" or a fundamental miscarriage of justice for federal review of a procedurally defaulted claim. Id.; Doctor, 96 F.3d at 683.
As set forth above, Kerwin presented only four claims to the Superior Court on direct appeal. The instant petition raises claims not previously presented in the state courts, and Kerwin concedes that his claims are unexhausted. Moreover, Kerwin asserts that the claims have not been presented to the state court because he has been denied his right to appeal. However, a review of the state court record belies this contention and confirms that Kerwin has a PCRA petition pending in the state court. Thus, this court must conclude the instant claims are unexhausted and that there remains an available state remedy.
Kerwin also claims that his appeal in the state court has been inordinately delayed. After reviewing the docket, this court cannot agree. Kerwin's failure to file a direct appeal was remedied by the PCRA court when it reinstated his appellate rights nunc pro tunc. His appeal was filed on October 19, 2000, and the Supreme Court of Pennsylvania denied allocatur on October 2, 2001. In November, 2001, Kerwin filed a second PCRA petition. By December, 2001, new counsel was appointed to represent him in his effort to obtain a writ of certiorari in the United States Supreme Court. It appears that Kerwin's failure to comply with the requests of court-appointed counsel is the cause for any delay in these proceedings. In any event, the adequacy of counsel's representation appears to be at issue in Kerwin's current PCRA petition, which was filed on January 3, 2003. Under these circumstances, this court cannot conclude that Kerwin has suffered an inordinate delay in his state proceedings that would cause this court to excuse the exhaustion requirements of § 2254.
Accordingly, this court makes the following:
R E C O M M E N D A T I O N
AND NOW, this day of June, 2003, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED without prejudice for failure to exhaust state remedies. It is also RECOMMENDED that a certificate of appealability not be granted.