Opinion
Civil Action No. 03-1534.
July 16, 2004
ORDER
AND NOW, this 16th day of July, 2004, upon consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa, IT IS HEREBY ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for writ of habeas corpus is DISMISSED without prejudice.
3. There is no probable cause to issue a certificate of appealability.
4. The Clerk of the Court shall mark this case closed for statistical purposes.
Peay has failed to present the following claims in state court: (i) that he was framed for the crimes of which he was convicted, (ii) that this conviction was obtained by fabricated evidence, and (iii) that his trial counsel was ineffective for failing to subpoena John Lewis, for failing to properly cross-examine witnesses, and for failing to introduce certain transcripts. Since Peay failed to present these claims to the state court, these claims are unexhausted for purposes of habeas corpus and must be dismissed. Rose v. Lundy, 455 U.S. 509 (1992).
In order to exhaust these claims, Peay may present them in a petition filed pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9551. If Peay fails to obtain relief in PCRA court, he may appeal that decision to the Pennsylvania Superior Court and Pennsylvania Supreme Court before this claim would be considered exhausted.