Opinion
Civil Action No. 04-2189.
August 20, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution Rockview Prison in Bellefonte, Pennsylvania. The petition presents unexhausted as well as exhausted claims. As such, it is a mixed petition and I recommend that it be dismissed.
FACTS AND PROCEDURAL HISTORY :
The charges involved in this habeas petition arose from a killing on December 7, 1999. During a bench trial, Knight was convicted of first degree murder and other related offenses, and sentenced to life imprisonment.
Knight then appealed to the Superior Court of Pennsylvania, alleging that: (1) there was insufficient evidence to support his murder conviction; and (2) that his motion to suppress his statement to the police was improperly denied by the trial court. The Superior Court affirmed the trial court's judgment.Commonwealth v. Knight, 850 A.2d 10 (Pa.Super. 2004).
Subsequently, on May 27, 2004, Knight filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551. This case is currently pending, and a status hearing is scheduled for October 28, 2004.
Finally, on May 20, 2004, Knight filed this petition for habeas corpus and a thirteen page "Informal Request Brief Motion for [A] Habeas Corpus To Be Filed in This Court." In the documents, he claims:
1. The evidence was insufficient to support a first degree murder conviction;
2. The trial court erred in failing to suppress the petitioner's confession, because counsel was not present;
3. The Commonwealth erred by charging the petitioner with first degree murder when self-defense negated the specific intent to kill;
4. Counsel was ineffective for failing to challenge the admissibility of petitioner's exculpatory statements;
5. Counsel was ineffective for failing to present the defense of justifiable homicide or self-defense.DISCUSSION :
Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). According to 28 U.S.C. § 2254(c),
[a]n 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.
This statute has been interpreted as requiring that both the legal theory and the facts supporting a federal claim must be fairly presented to the state courts before bringing a habeas corpus petition. Landano v. Rafferty, 897 F.2d 661, 669-670 (3d Cir.), cert. denied, 498 U.S. 811 (1990). This ensures "that the same method of legal analysis that is used by the federal court in resolving the petitioner's claim was also readily available to the state court when it adjudicated the claim."Id. To decide whether a claim has been fairly presented to the state court, the court should examine both the state court decisions, as well as the briefs submitted to the state courts. Gonce v. Redman, 780 F.2d 333, 336 (3d Cir. 1985).
The state court decisions establish that Knight's first two claims were presented to the Superior Court during his direct appeal. Because these two claims have been "fairly presented to the state court," it is clear that Knight has exhausted his first two claims.
However, Knight did not present the remainder of his claims to the Superior Court in his direct appeal. Nevertheless, he does have an avenue through which to seek redress in state court, the PCRA, and he has already elected to file for relief. On October 28, 2004, Knight has a status hearing regarding his state collateral review petition. Since Knight has an avenue through which to present his remaining claims to the state courts, claims three through five are unexhausted for habeas corpus purposes. Therefore, Knight has presented this court with a "mixed petition," one containing exhausted and unexhausted claims, and the petition should be dismissed. See Rose v. Lundy, 455 U.S. 509 (1982).
Although the Third Circuit Court of Appeals permits a federal court to stay a mixed petition if dismissal of the petition could jeopardize the timeliness of a later filed petition, see Crews v. Horn, 360 F.3d 146 (3d Cir. 2004), such is not the case here. Knight has filed a timely collateral appeal, and his PCRA petition is currently pending for a status hearing on October 28, 2004. At this point, it does not appear that there are any state procedural bars to Knight presenting his claims in the PCRA Court. Thus, at the conclusion of the state collateral review, he could again file a habeas petition, if necessary.
While Knight's petition should be dismissed, he has the option, in his objections to this Report, to request to withdraw his unexhausted claims. See Peoples v. Fulcomer, 882 F.2d 828, 832 (3d Cir. 1989). If Knight chooses to withdraw his unexhausted claims, the district court may remand the case to the undersigned for consideration of Knight's two exhausted claims. However, once the federal court addresses the merits of any of Knight's claims, he would be required to obtain the permission of the Third Circuit Court of Appeals in order to file any subsequent petition for habeas corpus in which he presents the withdrawn claims or any other claims. 28 U.S.C. § 2244(b)(3)(A).
For the foregoing reasons, I make the following:
RECOMMENDATION
AND NOW, this 20th day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED AS MIXED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.