In addition, it is readily apparent that Petitioner has also based his habeas petition on ineffective assistance of counsel; first as to his original trial proceeding (Claim C), and secondly, as to his prior PCHA petitions (Claim D). These claims are very much related. The Court has previously determined that Claim D has not been exhausted. Furthermore, the Court will now conclude that Relator's Claim C, has been technically exhausted, since this broad issue was effectively raised in his prior PCHA petitions.
Finally, it appears from the record that the substance of Petitioner's fair trial claim (Claim E) has also been "fairly presented" to the state court in previous PCHA proceedings and is therefore, an exhausted issue.
But note, even though Relator has failed to exhaust all of his state court remedies, he still may secure federal review of his habeas claims if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b) (Supp.1977). Mr. Ray, in effect, is thus contending that "inordinate delay" has rendered the state court process ineffective to protect his rights, thereby invoking an adequate basis for the granting of habeas relief.
This argument must be rejected by the Court. Petitioner filed his third PCHA petition on July 9, 1979. The instant federal habeas petition was filed on November 16, 1979. This "delay" of merely four months does not approach the magnitude of time required by the Third Circuit in order to find an "inordinate delay". See Codispoti v. Howard, 589 F.2d 135, 140 (3d Cir. 1978) (twelve year delay in disposing of motion for new trial); U. S. ex rel. Geisler v. Walters, supra at 887 (habeas relief granted only after three year delay in disposing of new trial motion); U. S. ex rel. Senk v. Brierley, 471 F.2d 657 (3d Cir. 1973) (three and one-half year delay in ruling on PCHA petition). Therefore, this Court holds that the asserted delay has not operated to deprive Petitioner of any rights or remedies to which he is entitled.
THE PROBLEM OF THE "MIXED" PETITION
A review of the preceding discussion indicates that the Court is presented with a "mixed" petition. That is, one which contains claims in which state court remedies have been fully exhausted, as well as claims which are still pending in state court and claims still not fully exhausted. Confronted with this situation, the Court is of the opinion that the proper disposition of this matter is to abstain from ruling on any of the claims, until Petitioner has finally exhausted all of his present state claims. Therefore, the state court must first act on Relator's third PCHA petition and any subsequent appeals, before this Court will consider any of the issues raised in the present habeas corpus petition.
Petitioner has indicated these are not finalized.
In U. S. ex rel. Trantino v. Hatrack, 563 F.2d 86 (3d Cir. 1977), cert. denied, 435 U.S. 928, 98 S. Ct. 1499, 55 L. Ed. 2d 524 (1978), the Third Circuit was presented with analogous circumstances. The Circuit, although acknowledging that "instances may be found of federal courts reaching the merits of non-exhausted claims," reaffirmed the principle that "deviation from the exhaustion requirement can only be permitted "in those rare instances where justice so requires'." Id. at 95. In Trantino, the appellate court was faced with three claims, one of which it found to be unexhausted. The Court noted that "several circuits have gone so far as to hold that federal court consideration of any claim in a federal habeas petition must await the exhaustion of every claim in that petition. See Galtieri v. Wainwright, 545 F.2d 942, 943 (5th Cir. 1977) (aff'd, regarding exhaustion en banc, 582 F.2d 348 (5th Cir. 1978)); James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976)." U. S. ex rel. Trantino v. Hatrack, supra at 96.
Although not explicitly adopting this view in Trantino, the Court did add: "(This Rule) is a further indication of increasing insistence on strict compliance with the exhaustion requirement." Id. at 96. The Circuit, even though one claim was not exhausted, did find that each of Trantino's claims were separate and distinct and thus, not so intertwined as to preclude the Court from reaching the merits on the exhausted issues.
Similarly, in Zicarelli v. Gray, 543 F.2d 466, 472-475 (3d Cir. 1977), three Sixth Amendment claims were before the Court. One such claim was found to be exhausted and sufficiently separate and distinct from the other issues, thus enabling the Circuit to address that claim on its merits. On the other hand, the remaining two claims were interrelated. Therefore, even assuming that one such claim was exhausted, the Court found that judicial economy and efficiency would best be served by having both claims first presented in the state court. Thus, the Circuit avoided having one related claim determined in a state court proceeding and the other similar issue determined in a federal court, by requiring exhaustion as to both issues before either would be considered.
In so holding, the Third Circuit has indicated support for the view that when a federal habeas petition contains claims, some of which have been exhausted in the state courts, while others are not exhausted but are interrelated or intertwined with the exhausted claims, then the federal court should decline to hear the entire petition until state remedies as to all claims have been exhausted. Accord : Zemina v. Solem, 438 F. Supp. 455 (D.S.D.1977), aff'd 573 F.2d 1027 (8th Cir. 1978); Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974); U. S. ex rel. Martin v. McMann, 348 F.2d 896 (2d Cir. 1965); Miller v. Hall, 536 F.2d 967 (1st Cir. 1976); Hewett v. State of North Carolina, 415 F.2d 1316 (4th Cir. 1969).
In other words, where the petition contains both exhausted and unexhausted claims that are interrelated, the Court may choose to dismiss as untimely the entire petition. But, when the exhausted federal claim is unrelated and/or clearly without merit or frivolous, then the federal court may choose to dispose of that claim rather than to defer action. See U. S. ex rel. Lopinson v. Marks, 409 F. Supp. 683 (E.D.Pa.1976), aff'd 547 F.2d 1166 (3d Cir. 1977); Zicarelli v. Gray, supra at 472.
In the circumstances presently before the Court, Petitioner's various claims can be easily explained as being interrelated. Relator's ineffective assistance of counsel claims (Claims C and D) are necessarily interrelated, since they are linked together in a procedural chain. In addition, Mr. Ray's ineffective assistance of counsel claim in his state PCHA petition, which is currently pending in state court, includes the issues and events relative to his prior state proceedings. Likewise, these claims are intertwined with the other issues present, since their underlying contentions are based in part, on counsels' failure in regard to these other federal claims. One such example being the claim of counsels' failure to raise issues concerning the alleged lack of a fair trial. Therefore, the Court holds that these "intertwined" claims should be left for potential state court determination. See Zemina v. Solem, 438 F. Supp. 455 (D.S.D.1977), aff'd 573 F.2d 1027 (8th Cir. 1974) (where exhausted issues closely related to unexhausted issues were not considered); Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974) (when exhausted claims are closely intertwined with unexhausted claims, all may be returned to the state court).
From the record before us, it is entirely possible that the state court will consider some of the issues raised in Mr. Ray's habeas petition upon the court's determination of the pending PCHA petition. Relator may, in addition, assert new theories or allegations with regard to his pending PCHA petition that will, in effect, require the state court to deal with the exact claims raised in the present habeas petition. Hence, the Court finds the claims stated in Petitioner's habeas corpus petition to be interrelated, and to some extent, dependent upon one another.
Therefore, in the interest of comity and the prevention of federal judicial interference with state court proceedings, the Court will refuse to hear the present habeas corpus petition.
The undesirability of letting a federal court pass upon claims that are so related to issues that a state court will later review (exhaustion of state remedies) is a factor influencing our decision today. See Gonzales v. Stone, 546 F.2d 807 (9th Cir. 1976); U. S. ex rel. Martin v. McMann, 348 F.2d 896 (2d Cir. 1965) (where issues involved were so closely related, they seemed certain to figure in a state hearing to some degree). Furthermore, the Third Circuit's emphasis on the necessity for strict adherence to the exhaustion requirement, see Zicarelli v. Gray, supra ; and the desirability of judicial efficiency and the avoidance of "piecemeal litigation", see Galtieri v. Wainwright, supra ; support the use of the Court's "restraining hand" today. There are occasions where, giving effect to the rationale of the exhaustion doctrine requires sending a Petitioner back to the state court system again. The Court believes that this is just such an occasion.
Accordingly, the petition for a writ of habeas corpus is DENIED without prejudice for failure to exhaust state remedies.