The opinion of the court was delivered by: BRODERICK
United States Magistrate Peter B. Scuderi has filed a report with a recommendation that Leon McClendon's petition for habeas corpus be denied. The petitioner was convicted in state court of robbery and simple assault, and is currently serving a sentence of ten to twenty years. Although the respondent contended that the defendant had failed to exhaust his state court remedies, Magistrate Scuderi determined that the petitioner had exhausted his state remedies, and further determined that the petitioner had not been denied his Sixth Amendment rights to a speedy trial and effective assistance of counsel as alleged in the petition. The petitioner has objected to the Magistrate's report and recommendation. This Court agrees with Magistrate Scuderi that the petitioner's constitutional claims are without merit, and will approve and adopt his report and recommendation denying the writ.
With respect to the respondent's contention that the petitioner failed to exhaust his state court remedies, an elaboration on the discussion in the Magistrate's report appears warranted. The record shows that petitioner was arrested on May 26, 1978 on charges of robbery, theft, aggravated and simple assault, possession of the instruments of crime, and recklessly endangering another person. His case was originally listed for trial on November 9, 1978. Under Pa.R.Crim.P. 1100, the original expiration date of the period for the commencement of petitioner's trial was November 22, 1978.
Rule 1100 of the Pennsylvania Rules of Criminal Procedure provides in relevant part that:
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court's inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
On November 9, 1978, petitioner's newly appointed public defender made it clear that he was not prepared to go to trial and requested an extension of time to investigate a possible alibi defense. The Commonwealth then submitted an oral application for an extension of the Rule 1100 date. After some discussion, the Court extended the expiration date to January 27, 1979. See Transcript of Rule 1100 Petition. On November 30, 1978, petitioner submitted a pro se petition for dismissal of charges under Rule 1100, alleging that he had been deprived of his right to a speedy trial. Petitioner's motion was denied and he was brought to trial on January 4, 1979. A jury found him guilty of robbery and simple assault, and acquitted him of the other charges.
On May 30, 1979, the trial court denied the petitioner's post-trial motions, which included supplemental motions alleging ineffective assistance of counsel and Rule 1100 violations. In a decision dated November 13, 1981, the Pennsylvania Superior Court found no Rule 1100 violation or ineffective assistance of counsel, and affirmed the trial court's judgment of sentence.
The petitioner then filed a pro se petition for allocatur nunc pro tunc in the Pennsylvania Supreme Court on March 2, 1982. He alleged that he had not been informed of the Superior Court's decision until December 18, 1981, and thus had been unable to file his petition for allocatur within the requisite thirty days. See Pa.R.A.P. 1113(a). His petition to the Pennsylvania Supreme Court alleged that his speedy trial rights under Rule 1100 and the United States Constitution had been violated, and that he had been denied effective assistance of counsel. The Pennsylvania Supreme Court remanded the matter to the Court of Common Pleas for a determination of indigency and appointment of counsel. On March 31, 1982, the Court of Common Pleas appointed counsel and authorized the petitioner to pursue his appeal in forma pauperis. Counsel was allowed to file an amended petition for allocatur nunc pro tunc on June 1, 1982. This amended petition likewise raised petitioner's speedy trial and ineffective assistance of counsel claims. On September 9, 1982, the Pennsylvania Supreme Court denied both the pro se and amended petitions in per curiam orders without opinion.
The respondent contends as a threshold matter that the petitioner's "untimely petition for allowance of appeal, see Pa. R.A.P. 1113(a), did not serve fairly to present the Rule 1100 issues to the Pennsylvania Supreme Court, and thus did not exhaust state remedies." Respondent's Answer to Petition For Writ of Habeas Corpus at 2. Respondent relies upon United States ex rel. Lopinson v. Marks, 409 F. Supp. 683 (E.D. Pa. 1976), aff'd 547 F.2d 1166 (3d Cir. 1977). In Marks, the district court indicated that the particular claim presented in the habeas corpus petition "quite clearly" was not raised in the petitioner's first appeal to the Pennsylvania Supreme Court or in his petition for reargument. 409 F. Supp. at 686. The Marks court determined that even assuming that the claim at issue had been raised in a subsequent ...