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October 31, 1979

UNITED STATES of America ex rel. James T. CUNNINGHAM
Julius T. CUYLER, Superintendent, State Correctional Institution, Graterford, Pennsylvania, et al.

The opinion of the court was delivered by: DAVIS NAYTHONS


In April, 1977, following a court trial without a jury, James Cunningham was found guilty of (1) knowingly and intentionally possessing a controlled substance and (2) manufacture, delivery or possession with intent to manufacture or deliver a controlled substance. Subsequently, Mr. Cunningham was sentenced to serve a term of two to ten years imprisonment. On direct appeal, the Superior Court of Pennsylvania affirmed Per curiam the judgment of sentence. Thereafter, the Supreme Court of Pennsylvania denied relator's petition for leave to appeal.

 Since Mr. Cunningham's conviction and appeal, relator has filed a total of three petitions under Pennsylvania's Post-Conviction Hearing Act, 19 P.S. § 1180-1 Et seq. The third of these petitions, filed June 25, 1979, is still pending in the Pennsylvania state courts.

 On June 28, 1979, less than one week after the filing of his third P.C.H.A. petition, relator filed a federal petition for habeas corpus relief alleging claims identical to those raised in his currently pending state P.C.H.A. petition. Relator alleges the following claims *fn1" in his petition for writ of habeas corpus:

(1) that he was illegally and unlawfully incarcerated in the State Correctional Institution following his conviction;
(2) that he was deprived of procedural due process in violation of the law when the trial court failed to review properly his claims through post-trial motions; and
(3) that counsel was ineffective for a number (eleven) of reasons.

 This Court, upon receipt of the federal habeas corpus petition, referred the matter to Magistrate Edwin Naythons for a preliminary review. Magistrate Naythons' Report and Recommendation determined that all but one of relator's claims were without merit. An independent review of the entire record has convinced the Court that Magistrate Naythons' ultimate conclusion is correct and that the writ should not be granted. Therefore, the Court adopts Magistrate Naythons' Recommendation and those parts of his Report that are consistent with the discussion that follows.


 Generally, a federal court will only consider a petition for habeas corpus when it appears that "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (Supp. 1977); U.S. ex rel. Herwegh v. Commonwealth of Pennsylvania, 423 F.2d 1203 (3d Cir. 1970); U.S. ex rel. Bower v. Banmiller, 232 F. Supp. 627, 629 (E.D.Pa.1964). This principle, which has been codified into the federal law, is generally known as the "exhaustion doctrine" and an examination of the reasoning behind it serves to show the prudency of this Court's adherence to it.

 It is well established that "the purpose of the exhaustion doctrine is to permit the state courts to correct any errors which may have crept into their criminal process without interference from outside sources." U.S. ex rel. Laughlin v. Russell, 282 F. Supp. 106 (E.D.Pa.1968). The Supreme Court in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), has explained the history and purpose of this doctrine:

(I)t would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation . . . . Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter. Darr v. Burford, 339 U.S. 200, 204 (,70 S. Ct. 587, 590, 94 L. Ed. 761). The rule of exhaustion "is not one defining power but one which relates to the appropriate exercise of power." Bowen v. Johnston, 306 U.S. 19, 27 (, 59 S. Ct. 442, 446, 83 L. Ed. 455). Fay v. Noia, supra, at 419-20, 83 S. Ct. at 839.

 Thus, for the reasons that appear below, this Court may not and will not decide the merits of relator's petition on issues which have not been exhausted at the state court level. *fn2"


 The Third Circuit in U.S. ex rel. Hickey v. Jeffes, 571 F.2d 762 (3d Cir. 1978), held that state prisoners who have perfected their state court appeals have thereby exhausted their state court remedies and do Not need to file a P.C.H.A. petition in order to seek federal habeas corpus relief. See also, U.S. ex rel. Geisler v. Walters, 510 F.2d 887 (3d Cir. 1975) (federal habeas corpus allowed where P.C.H.A. petition was filed but denied); U.S. ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971) (federal habeas corpus available where P.C.H.A. was not filed at all). The ...

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