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July 5, 1983

Glen R. JEFFES and the Attorney General of the State of Pennsylvania and the District Attorney of Philadelphia County

The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Presently before the court is a pro se petition for habeas corpus filed by David Almeida who is presently serving a 17-40 year sentence at Graterford Prison. The petitioner has also filed an application to proceed in forma pauperis but has paid the filing fee.

 The petitioner was tried in the Court of Common Pleas for the County of Philadelphia in April 1978. He was found guilty by a jury of robbery, burglary, aggravated assault and criminal conspiracy. Following the denial of post-verdict motions, petitioner appealed to the Superior Court of Pennsylvania.

 Petitioner was represented by an attorney in his appeal to the Superior Court. That attorney was not the same person who represented Almeida at trial. In the brief submitted by petitioner's attorney, it was argued that the trial judge erred in his instruction to the jury with respect to accomplice testimony. Petitioner himself also placed before the Superior Court a pro se supplement to counsel's brief claiming that his counsel at trial was ineffective for allegedly failing to preserve objections to the court's instruction. A panel of the Superior Court granted a new trial, finding the court erred in its instruction to the jury and that trial counsel was ineffective.

 The Commonwealth sought and was granted en banc reargument. The Superior Court en banc affirmed petitioner's conviction, finding no error in the court's charge to the jury. The court also found trial counsel had not waived objection to the court's instruction, thereby making the issue of effectiveness of counsel moot.

 Petitioner then filed a pro se application for allowance of appeal with the Pennsylvania Supreme Court which was denied. In his application for allowance of appeal, petitioner again alleged that the trial court erred in its instruction to the jury concerning accomplice testimony. Petitioner also claimed he was denied effective assistance of counsel on appeal.

 In his petition for habeas corpus to this court, petitioner alleges, inter alia, that he was denied effective assistance of counsel at trial. Although this issue was raised in petitioner's pro se supplemental Superior Court brief, none of the grounds upon which petitioner alleges ineffective assistance at trial were raised in his petition to the Pennsylvania Supreme Court. Petitioner has therefore failed to exhaust his available state remedies with respect to this issue. Where a habeas corpus petition contains exhausted and unexhausted claims, the court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). Upon dismissal, a petitioner may either return to state court with his or her unexhausted claims or proceed in federal court with the exhausted claims.

 Although the Superior Court did not address several grounds petitioner set forth supporting his claim of ineffective assistance of trial counsel, exhaustion "does not require that the state courts have actually ruled on the merits of the claims, but merely that they have had those contentions presented to them." Ray v. Howard, 486 F. Supp. 638 (E.D.Pa.1980). Petitioner's allegations of ineffective assistance of counsel were therefore exhausted with respect to the Superior Court. Thus, he would be required to return to the Supreme Court.

 The exhaustion rule is one of comity, "designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, supra, 455 U.S. at 518, 102 S. Ct. at 1203. However, "the comity policy underlying the exhaustion doctrine is satisfied where no state remedies are then available to a habeas corpus petitioner." Choice v. Pennsylvania Board of Parole, 448 F. Supp. 294, 296 (M.D.Pa.1977); see also United States ex rel. Johnson v. Johnson, 531 F.2d 169, 173 (3d Cir.1976).

 Although the petitioner failed to exhaust all his claims before the Supreme Court, if his petition is dismissed, he will be foreclosed from pursuing a remedy in state court. Under Rule 1113 of the Pennsylvania Rules of Appellate Procedure, "a petition for allowance of appeal shall be filed with the prothonotary of the Supreme Court within 30 days after entry of the order of the Superior Court. . . ." Because thirty days have passed since the order of the Superior Court was entered, if petitioner is forced to go back to the Supreme Court, he will be barred by the limitation period. In such circumstances, the exhaustion requirement is satisfied.

 Petitioner's failure to exhaust his claims with respect to effectiveness of trial counsel raises the issue of whether he deliberately bypassed state remedies. A "federal habeas corpus judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts, on the ground that in so doing he has forfeited his state court remedies." Choice v. Pennsylvania Board of Parole, supra, at 296; quoting Humphrey v. Cady, 405 U.S. 504, 517, 92 S. Ct. 1048, 1056, 31 L. Ed. 2d 394 (1971) (emphasis supplied). In view of the fact petitioner was not represented by counsel in drafting his petition to the Supreme Court and because his focus appears to have been guided by the issues addressed by the Superior Court en banc, we conclude his failure to exhaust his state remedies was not deliberate.

 Because petitioner's state remedy is unavailable and because we have concluded he did not deliberately bypass state remedies, the court will address petitioner's claims on the merits.

 Initially, petitioner contends that the trial court's instruction to the jury with respect to accomplice testimony was erroneous, constituting a denial of due process. "As a general rule, errors in instructions of a trial court to a jury in a state criminal trial are not reviewable in federal habeas proceedings. . . . They are not constitutional errors unless they are so fundamentally unfair as to deprive ...

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