Opinion
Civil Action No. 04-CV-0701.
June 23, 2004
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, Anthony McKnight, is presently incarcerated at SCI-Chester, in Chester, Pennsylvania. For the reasons set forth below, it is recommended that the petition be DISMISSED without prejudice for failure to exhaust state remedies.
FACTUAL AND PROCEDURAL HISTORY
On July 19, 2002, following a jury trial in the Court of Common Pleas of Philadelphia County, McKnight was found guilty of possession of a controlled substance with intent to deliver, criminal use of a communication facility, delivery of a controlled substance, and criminal conspiracy. On October 3, 2002, McKnight was sentenced to an aggregate term of five (5) to ten (10) years' imprisonment.
McKnight filed a timely direct appeal in the Superior Court of Pennsylvania. On appeal, McKnight raised ten (10) issues of trial court error, and a claim that lead counsel and back-up counsel were ineffective for failing to object to the Commonwealth's cross-examination of McKnight's character witnesses concerning McKnight's use of cocaine. The Superior Court affirmed judgment of sentence in a memorandum opinion dated December 16, 2003.Commonwealth v. McKnight, 844 A.2d 1284 (Pa.Super. 2003). McKnight did not seek permission for allowance of appeal in the Supreme Court of Pennsylvania.
McKnight served as his own counsel at trial and had the assistance of another attorney on standby as backup.
The instant petition, dated March 23, 2004, was filed March 25, 2004. In his petition, McKnight raises numerous instances of ineffective assistance of appellate counsel on direct appeal; and claims that he was denied his right to a direct appeal and that Pa.R.Crim.P. 600(G) is unconstitutional. The Commonwealth has filed its response asserting that the claims raised are unexhausted.
DISCUSSION
Absent exceptional circumstances, a federal court will not entertain the claims of a habeas petitioner unless he has exhausted all available state remedies. 28 U.S.C. § 2254(b);O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999); Vasquez v. Hillery, 474 U.S. 254 (1986); Picard v. Connor, 404 U.S. 270 (1971). 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 behind the total exhaustion doctrine is rooted in the notion of comity: the state must be given the initial opportunity to pass upon and correct the alleged violations of the petitioner's constitutional rights.O'Sullivan, 526 U.S. at 844-45; Picard, 404 U.S. at 275. Exhaustion does not require that the highest state court rule on the merits of a petitioner's claim, but only that said court be given the opportunity to do so. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984).
To satisfy the exhaustion requirement, the petitioner must fairly present every claim included in a federal habeas petition to each level of the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995); O'Sullivan, 526 U.S. at 846-47;Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996).
As set forth above, McKnight did file a direct appeal of his judgment of sentence; however, he did not, and could not, raise any of the instant claims in that appeal. In fact, the Superior Court deferred consideration of McKnight's only claim of ineffective assistance of trial counsel until collateral review pursuant to Pennsylvania law. See Commonwealth v. Grant, 813 A.2d 726 (2002) (claims of ineffective assistance of counsel should not be raised until collateral review). Thus, the instant claims have not been subject to state court review.
Pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541, et seq., petitions for collateral review may be filed within one (1) year of the date judgment becomes final. See 42 Pa. C.S.A. § 9545. McKnight's judgment of sentence became final on or about January 14, 2004; therefore, a state remedy remains available. Because the claims presented are unexhausted, and a state remedy remains available, this court must dismiss the instant petition.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DISMISSED without prejudice for failure to exhaust state court remedies. It is further RECOMMENDED that there is no probable cause to issue a certificate of appealability.