Opinion
No. 04-1697.
September 15, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by William Perkins ("Perkins"), an individual incarcerated in the Coal Township State Correctional Institution. For the reasons that follow, I recommend that the petition be dismissed without prejudice.
FACTS AND PROCEDURAL HISTORY :
This habeas petition is related to two (2) previous habeas petitions, Perkins v. Gillis, C.A. No. 01-5469 (E.D. Pa. April 16, 2002) (Van Antwerpen, J.) (dismissed without prejudice), andPerkins v. Gillis, C.A. No. 02-3484 (E.D. Pa. Jan. 2, 2003) (Van Antwerpen, J.) (dismissed without prejudice), both of which raised claims of inordinate delay in the state court appeal of the instant conviction.
On March 4, 1998, following a bench trial before the Honorable Richard B. Klein, Court of Common Pleas of Philadelphia County, Perkins was found guilty of robbery, assault, and possessing an instrument of crime. Perkins was sentenced to seven (7) to fourteen (14) years of imprisonment on July 9, 1999.
The charges stemmed from a knife point robbery at Moishe's Bakery in Northeast Philadelphia.
On July 29, 1999, Perkins filed a Notice of Appeal with the Pennsylvania Superior Court and the court appointed Jeremy C. Gelb, Esquire, to represent Perkins. Thereafter, a series of events transpired which caused considerable delay in the disposition of Perkins' appeal, the most significant of which involved the loss of notes of testimony encompassing Perkins' suppression hearing, the beginning of his trial testimony, and his post-verdict hearing.
The following is a brief chronology of the events which occurred after Perkins filed his notice of appeal. On September 14, 2000, Perkins requested an extension of time to file his appellate brief. On September 19, 2000, Perkins' request for an extension was granted. On October 12, 2000, Perkins entered an application to Stay the Briefing Schedule, and an Application for Remand. On November 1, 2000, the Pennsylvania Superior Court entered a per curiam order instructing Perkins to file a Statement of Absence of Transcript in accordance with Pa.R.A.P. 1923, by preparing a statement of the proceedings from his suppression hearing that had occurred on February 26, 1998. On November 13, 2000, Perkins filed an Application for Clarification of the Per Curiam Order filed November 1, 2000. On December 13, 2000, a second per curiam order was issued by the Superior Court, directing Perkins to supply statements of proceedings from February 26, 1998, July 29, 1998, and for relevant portions of unavailable trial testimony. On August 13, 2001, Perkins filed his Statement of Absence of Transcript. On September 27, 2001, the Commonwealth filed its response to Perkins' Statement. On October 23, 2001, Judge Klein filed his review and approval of Perkins' Statement. A briefing schedule was set. Perkins thereafter filed a series of requests for extensions of time in which to file a brief. On July 1, 2002, Perkins filed his brief with the Superior Court. On November 1, 2002, the Commonwealth filed its brief in response thereto with the Superior Court.
On July 1, 2002, Perkins filed a brief presenting the following claims:
1) he was denied his right to effective assistance of counsel and to due process of law where a defense investigator conducted a prejudicial photographic identification procedure with the complainant prior to the preliminary hearing;
2) trial counsel's failure to introduce into evidence the police photograph of Perkins taken just hours after the robbery deprived him of his right to effective assistance of counsel;
3) trial counsel's failure to subpoena and call Eileen Perkins and Frank Iaconelli as alibi witnesses at trial deprived him of his right to effective assistance of counsel and to due process of law;
4) trial counsel was ineffective when she opened the door to prejudicial testimony from Perkins' parole officer concerning Perkins' prior convictions, his history of drug abuse, and other inflammatory information which supplied a motive for commission of the robbery;
5) the trial court committed reversible error in ruling that Perkins' parole officer would be permitted to testify as to the hearsay statements allegedly made to him by Perkins' daughter, Nancy Whaley; and
6) he is entitled to a new trial where portions of the notes of testimony of the pretrial, trial and post-trial proceedings are missing and unavailable, and therefore meaningful appellate review is precluded.
On March 28, 2003, the Superior Court affirmed the judgment of sentence, finding Perkins' claims meritless. Commonwealth v. Perkins, No. 2354 EDA 1999 (Pa.Super. March 28, 2003) (unpublished memorandum).
On April 28, 2003, Perkins filed a petition for allowance of appeal in the Pennsylvania Supreme Court raising the same claims he had presented to the Superior Court. The Supreme Court denied allocatur on September 23, 2003. Commonwealth v. Perkins, No. 197 EAL 2003.
On April 15, 2004, Perkins filed the instant petition for writ of habeas corpus claiming:
Generally, a pro se petitioner's habeas petition is deemed filed at the moment he delivers it to prison authorities for mailing to the district court. Burns v. Morton, 134 F.3d 109, 113 (3d Cir. 1998) (citing Houston v. Lack, 487 U.S. 266 (1988)).
1) trial counsel was ineffective for failing to introduce a police photo into evidence;
2) trial counsel was ineffective for failing to subpoena or interview alibi witnesses;
3) trial counsel was ineffective by allowing an investigator to conduct a prejudicial photographic procedure with the victim, prior to a court hearing;
4) trial counsel was ineffective by opening the door to Perkins' past through a witness examination;
5) the trial court committed error in allowing a Commonwealth witness to testify to inflammatory hearsay evidence without any basis in truth or any foundation under the hearsay rules;
6) the Commonwealth violated his due process rights by failing to provide all the notes of testimony from his hearings and trial;
7) appellate counsel was ineffective for failing to argue that the trial court committed error in denying a hearing on claims that trial counsel was ineffective and that the trial judge acted as a witness; and
8) appellate counsel was ineffective for failing to raise a weight of the evidence claim and/or for failing to address Perkins' innocence when there was not proof beyond a reasonable doubt, thereby violating Perkins' due process rights.
Perkins does not couch claims seven (7) and eight (8) in terms of ineffective assistance of appellate counsel on the "Form for Use in Applications for Habeas Corpus Under 28 USC § 2254;"see Pet. at 10-11, however, he expanded upon these claims in his "Concise Memorandum Brief" and incorporated this theory of relief. See Pet'r Mem. of Law, at 11, 62-72.
Respondents have filed an answer to Perkins' federal habeas petition asserting that Perkins is not entitled to federal habeas review at this time because his petition contains both exhausted and unexhausted claims.
DISCUSSION :
A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b). Under § 2254(c), a petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); see also Picard v. Connor, 404 U.S. 270 (1971). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254).
Perkins has not presented claims seven (7) and eight (8) to the state courts on appeal. Because the claims presented in the instant habeas petition are not considered exhausted for purposes of habeas review, this court is barred from further review of Perkins' petition unless his failure to exhaust his state remedies is excused.
The federal courts may excuse the exhaustion requirement if it would be futile for the petitioner to seek relief in the state court system. Duckworth v. Serrano, 454 U.S. 1 (1981); Landano v. Rafferty, 897 F.2d 661 (3d Cir. 1990), cert. denied, 498 U.S. 811 (1990); 28 U.S.C. § 2254(b)(1)(B)(i) and (ii). Returning to state court is not futile in the instant case because Perkins may present his claims in the state court through Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. § 9541 et seq. See Lines v. Larkins, 208 F.3d 153, 164 n. 17 (3d Cir. 2000); see 42 Pa. Cons. Stat. Ann. § 9542 (the PCRA is the sole means of obtaining collateral relief from convictions, encompassing and replacing all other forms of relief, including habeas corpus and coram nobis). Perkins has not filed a PCRA petition with regard to the conviction at issue. Although there is one (1) year statute of limitations for filing a PCRA petition, it appears that Perkins may still file his PCRA petition in a timely fashion. Consequently, because state law does not clearly foreclose state court review of his claims through a PCRA petition, this court does not recommend excusing the exhaustion requirement for Perkins's claim. See Gibson v. Scheidemantel, 805 F.2d 135, 139, 141 (3d Cir. 1986). Accordingly, this petition should be dismissed without prejudice pending exhaustion of state court remedies.
Perkins claims that these claims are "procedurally defaulted;" however, such a characterization is not technically correct because state law does not "clearly foreclose . . . state court review of the unexhausted claims." Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996) (citing Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993)).
Pursuant to the amended PCRA, effective January 16, 1996, collateral actions must be filed within one (1) year of the date the conviction at issue becomes final. 42 Pa. Cons. Stat. Ann. § 9545(b)(1). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of Pennsylvania and the Supreme Court of the United States, or at the expiration of time for seeking the review. 42 Pa. Cons. Stat. Ann. § 9545(b)(3). The Pennsylvania Supreme Court denied Perkins petition for allocatur on September 23, 2003. Therefore, Perkins' conviction became final on or about December 22, 2003, when the time for seeking certiorari in the United States Supreme Court expired. See S.Ct.R. 13(1) (stating petitioners have ninety (90) days to file petition for a writ ofcertiorari). Under the PCRA one (1) year statute of limitations, Perkins would thus have until December 21, 2004, in order to file a timely PCRA petition.
The dismissal of this petition without prejudice does not toll nor waive the limitations period of 28 U.S.C. § 2244. In furtherance thereof, I note that if Perkins submits a "properly filed application" for post-conviction relief to the state court, it would toll the federal statute of limitations. See 28 U.S.C. § 2254(d)(2); Carey v. Saffold, 536 U.S. 214 (2002) (an application for collateral review in state court must satisfy the state's timeliness requirements to be deemed "properly filed"). Notwithstanding, the one (1) year federal statute of limitations does not reset once a "properly filed" application for post-conviction relief has been decided, Johnson v. Hendricks, 314 F.3d 159, 161-162 (3d Cir.), cert. denied, 538 U.S. 1022 (2003), nor is the federal statute of limitations tolled while another federal habeas petition is pending. Perkins is thus forewarned that in filing a new federal habeas petition, he will only have the time left on the one (1) year federal statute of limitations that he has not already used before filing his PCRA petition. If, when Perkins refiles his petition, the court finds that the one (1) year limitations period has run, his petition will be dismissed.
I acknowledge the lengthy amount of time involved in Perkins' direct appeal and appreciate his statement that he "cringes at the thought of trying to go back through [the Pennsylvania] Court System." See Pet'r Mem. of Law, at 63. Nevertheless, judicial comity compels dismissal of this habeas petition pending exhaustion of his state court remedies. See Duckworth v. Serrano, 454 U.S. 1, 4 (1981) (no circumvention of exhaustion requirement is permitted unless there is no opportunity for redress in the state courts because it would be unseemly in our dual system of government for the federal courts to upset a state-court conviction without affording to the state courts the opportunity to correct a constitutional violation).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of September, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE. 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, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections made thereto, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition filed pursuant to 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE.
3. There is no basis for the issuance of a certificate of appealability.