Finally, he alleged that his petition for allocatur was untimely because his appellate counsel had been ineffective in failing to advise him of the Superior Court's decision and in failing to preserve his right to file a timely petition for allocatur. On June 29, 1984, the Pennsylvania Supreme Court dismissed Ross' petition for allocatur nunc pro tunc "without prejudice to petitioner's rights under the Post-Conviction Hearing Act" (PCHA) (42 Pa.Cons.Stat.Ann. § 9541 et seq.).
On August 23, 1984, Ross filed a second petition for a writ of habeas corpus in this Court. Ross v. Fulcomer, No. 84-4036 (E.D. Pa. 1984). He noted that he had, as directed by the Court in his first habeas petition, filed a petition for allocatur nunc pro tunc, which the Pennsylvania Supreme Court had denied without prejudice to his rights under the PCHA. He raised in the second habeas petition all of the issues he had raised in his first habeas petition. However, he also included allegations of ineffective assistance of trial and appellate counsel, which issues were not raised in his direct appeal. In a Memorandum and Order dated October 29, 1984, this Court observed that "as to the issues raised in the Superior Court on direct appeal, it would appear that petitioner has exhausted his state remedies" in view of the Pennsylvania Supreme Court's disposition of his petition for allocatur nunc pro tunc. Ross v. Fulcomer, No. 84-4036, slip op. at 1-2 (E.D. Pa. 1984). However, in view of the fact that this second habeas petition included claims of ineffective assistance of counsel that were not presented to the state court in his post-trial motion or on direct appeal, the Court determined that his petition would again be dismissed because of the inclusion of those unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The Court stated that "Petitioner may either drop the unexhausted claims and proceed solely on the exhausted grounds, or he may wish to exhaust all his claims in the state courts under the Post-Conviction Hearing Act before returning to federal court." Ross v. Fulcomer, No. 84-4036, slip op. at 2 (E.D. Pa. 1984).
Ross then filed this present petition -- his third federal habeas petition -- on November 26, 1984, raising only those issues which he presented to the Superior Court on direct appeal. Ross v. Fulcomer, No. 84-5774 (E.D. Pa. 1984). He has not included any allegations of ineffective assistance of counsel. The Magistrate nevertheless has recommended that this petition again be dismissed for failure to exhaust state remedies. The Magistrate reasoned that Ross did not "fairly present" his claims to the Pennsylvania Supreme Court in his petition for allocatur nunc pro tunc because his petition included claims of ineffective assistance of counsel, and that the general practice of the Pennsylvania Supreme Court with respect to such claims which were not raised on direct appeal is to dismiss the petition without prejudice to the petitioner's right to proceed under the PCHA. The Magistrate also noted that Ross had failed to follow the order of the Pennsylvania Supreme Court directing him to an available state remedy, i.e., a PCHA petition. This Court must, therefore, review the exhaustion requirement of 28 U.S.C. § 2254 as applicable to the circumstances of this case.
A petitioner for a writ of habeas corpus in the federal court bears the burden of showing that all of his claims were fairly presented to the highest state court, so that it had the opportunity to rule on the "substantial equivalent" of each of the claims presented to the federal court. Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42 (3d Cir. 1984); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). The exhaustion requirement of 28 U.S.C. § 2254(b)-(c) "has been judicially interpreted to mean that claims must have been presented to the state courts; they need not have been considered or discussed by those courts. " Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984), citing Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971). Thus, if a claim is actually presented to the highest state court -- for example, in the petitioner's brief -- exhaustion does not require that the state court actually ruled on the merits of the claim. Smith v. Digmon, 434 U.S. 332, 98 S. Ct. 597, 54 L. Ed. 2d 582 (1978); Swanger v. Zimmerman, 750 F.2d at 291. Indeed, even where the state court expressly did not consider the merits of a claim on the ground that it was deemed waived as a result of a procedural default, the claim must be considered to be exhausted if presented to the state court. See Swanger v. Zimmerman, 750 F.2d at 296 n.8. Furthermore, the Third Circuit has determined that "[a] denial of allocatur . . . or a similar refusal to entertain an appeal constitutes a sufficient presentation for purposes of exhaustion." United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 n.11 (3d Cir. 1975). Finally, it is well-settled in this Circuit that a habeas petitioner who has presented all of his claims to the Pennsylvania Supreme Court need not also exhaust his remedies under the PCHA. Swanger v. Zimmerman, 750 F.2d at 295; Codispoti v. Howard, 589 F.2d 135 (3d Cir. 1978); United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971).
In the present case, the Magistrate reasoned that although all of Ross' grounds for relief in this habeas petition had been presented to the Pennsylvania Supreme Court, they had been presented in a "procedurally defective manner" which had prevented that court from ruling on their merits. The Magistrate decided that the inclusion of an ineffective assistance of counsel claim required the Pennsylvania Supreme Court, in accordance with its general practice, to refer Ross to his remedies under the PCHA. It appears that in cases where a defendant files an untimely appeal or a petition for allocatur nunc pro tunc, alleging that counsel's ineffectiveness was responsible for the untimeliness of the appeal or petition, the Pennsylvania appellate courts generally dismiss or deny such appeals or petitions without prejudice to the petitioner's right to file a petition under the PCHA, wherein the petitioner could raise his ineffective assistance of appellate counsel claim and request the PCHA court to grant him leave to file an appeal or an allocatur petition nunc pro tunc. See generally Commonwealth v. Miranda, 296 Pa. Super. 441, 442 A.2d 1133 (1982). However, there have been cases where a defendant has alleged (by way of explaining the untimeliness of his petition for allocatur) that his counsel failed to advise him of the the disposition of his direct appeal, and the Pennsylvania Supreme Court apparently has reviewed the petition without regard to its untimely filing. See McClendon v. Jeffes, 578 F. Supp. 115 (E.D. Pa 1983). Indeed, it cannot be determined with certainty the extent to which any denied petition for allocatur -- timely or untimely -- was reviewed "on the merits." In the present case, it is impossible to determine whether the Pennsylvania Supreme Court's brief reference to Ross' PCHA rights was directed to his claims of ineffective assistance of counsel, the claims he raised in his direct appeal, or some combination of those claims.
In Moore v. Fulcomer, No. 84-5036, slip op. (E.D. Pa. February 5, 1985), a state prisoner seeking a writ of habeas corpus in the federal court had, like Ross, filed an untimely petition for allocatur in the Pennsylvania Supreme Court, alleging that his appellate counsel had been ineffective in failing to inform him of the Superior Court's decision. In Moore, as in this case, the Pennsylvania Supreme Court had denied Moore's untimely petition for allocatur without prejudice to his right to seek relief under the PCHA. In Moore, as in this case, all of the claims raised in the habeas petition also had been raised in the petition for allocatur. Judge Pollak of this Court determined that (1) the Pennsylvania Supreme Court's denial of allocatur "without prejudice" constituted a sufficient presentation of Moore's claims to the highest state court for the purposes of the habeas exhaustion requirement, and (2) that Moore was not required to pursue any further remedies under the PCHA. Moore v. Fulcomer, supra, slip op. at 4.
All of the claims raised by Ross in this habeas petition were presented to the Superior Court and to the Pennsylvania Supreme Court in his petition for allocatur. He has filed two previous petitions for a writ of habeas corpus in this Court, and after the dismissals of each of those two petitions, he dutifully attempted, without the benefit of counsel, to comply with this Court's directions. It would be fundamentally unfair to now require him to return once again to the state court to commence a PCHA proceeding, apparently with respect to an isolated claim of ineffective assistance of counsel (a claim he is not pressing before this Court), solely in order to seek leave to file another petition for allocatur nunc pro tunc in which he may again present his claims to the Pennsylvania Supreme Court. Such a requirement would consume months of additional and unnecessary litigation. Furthermore, it must be noted that many petitioners for habeas relief in the federal court who have failed to present any petition for allocatur to the Pennsylvania Supreme Court have been deemed to have exhausted their state remedies (because filing a petition for allocatur nunc pro tunc was determined to be futile), and have received a review of the merits of their habeas petitions so long as there is no evidence in the record that their failure to present their claims to the Pennsylvania Supreme Court was a "deliberate by-pass" of the appellate process. See, e.g., Thomas v. Zimmerman, 583 F. Supp. 701 (E.D. Pa. 1984); Almeida v. Jeffes, 566 F. Supp. 852 (E.D. Pa. 1983); Choice v. Pennsylvania Board of Parole, 448 F. Supp. 294 (M.D. Pa. 1977); cf. Beaty v. Patton, 700 F.2d 110 (3d Cir. 1983). It would be anomalous for the federal courts to review the merits of the claims of those petitioners who never sought review from the Pennsylvania Supreme Court while declining to review (on the basis of an indeterminate one line per curiam order from the Pennsylvania Supreme Court) the claims of petitioners like Ross, who have presented their claims to Pennsylvania's Superior and Supreme Courts.
The exhaustion requirement is a rule of comity "designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoner's federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S. Ct. 407, 409, 30 L. Ed. 2d 418 (1971), quoting Fay v. Noia, 372 U.S. 391, 438, 83 S. Ct. 822, 848, 9 L. Ed. 2d 837 (1963). The state courts have been given that opportunity with respect to all of the claims Ross raises in this petition. The "mere possibility of success in additional [state] proceedings" does not bar federal review of claims which already have been presented to all the state appellate courts. Codispoti v. Howard, 589 F.2d at 142 (citations omitted). If the Pennsylvania Supreme Court did not reach the merits of Ross' claims because his pro se petition was procedurally defective, an issue of waiver, rather than a failure of exhaustion, is presented. As the Third Circuit has emphasized, "it is the legal issues that are to be exhausted, not the petitioner." United States ex rel. Geisler v. Walters, 510 F.2d at 893. This Court has determined that Ross has satisfied the exhaustion requirement of 28 U.S.C. § 2254, and need not return to the state court to pursue a PCHA remedy.
In its response to Ross' petition for a writ of habeas corpus, the Commonwealth contends if Ross' claims are deemed to be exhausted, this Court nevertheless may not review the merits of those claims because Ross' apparent failure to obtain a review of the merits of his claims by the Pennsylvania Supreme Court constitutes a "procedural default" which precludes federal review of those claims. Assuming that the Pennsylvania Supreme Court did not reach the merits of the claims raised in this habeas petition because his petition for allocatur was procedurally defective, Ross nevertheless will not be barred from raising those claims in this Court absent a showing that his "default" was a "deliberate bypass" of the appellate procedure. See Beaty v. Patton, 700 F.2d at 113, citing Wainwright v. Sykes, 433 U.S. 72, 91-94, 97 S. Ct. 2497, 2508-2510, 53 L. Ed. 2d 594 (1977) (Burger, C.J., concurring). In this case, especially given Ross' efforts to seek a review of his claims in both state and federal court, this Court has determined that there is no basis in the record from which it could find that Ross' failure to receive a review of the merits of his claims by the Pennsylvania Supreme Court constituted a deliberate bypass of that appellate procedure. See Moore v. Fulcomer, No. 84-5036, slip op. at 4 n.1 (E.D. Pa. February 5, 1985); Thomas v. Zimmerman, 583 F. Supp. at 705; Almeida v. Jeffes, 566 F. Supp. at 854.
Finally, the Court notes that the Superior Court did not consider Ross' claim that the Pennsylvania Rape Shield Law is unconstitutional because Ross' appellate counsel apparently did not notify the Attorney General of Pennsylvania that he was challenging the constitutionality of the statute, as required by Pa.R.App.P. 521. See Commonwealth v. Ross, No. 621 October Term, 1978, slip op. at 14 (Superior Court 1980). Ross' statutory claim was raised at trial, and also was raised and briefed in Ross' post-trial motions and in his appeal. Because the failure to comply with Pa.R.App. P. 521 involves a procedural default in connection with an appellate proceeding, and because in fact the issue was raised in the appeal, the "deliberate bypass" waiver standard applies. See Diggs v. United States, 740 F.2d 239, 244 (3d Cir. 1984); Beaty v. Patton, 700 F.2d at 113; cf. United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 440-43 (3d Cir. 1982). Again, there is no basis in this record from which this Court could conclude that the failure to notify the Commonwealth's Attorney General of the existence of the constitutional challenge to the statute could in any way be deemed a deliberate bypass of the appellate procedure, and indeed the Commonwealth does not contend that the non-compliance with Pa.R.App.P. 521 constitutes a waiver of that claim in this Court.
For all the reasons set forth above, this Court has determined that Ross has exhausted his state remedies with respect to all of the issues raised in this petition for a writ of habeas corpus, and that he has not waived any of those claims for purposes of federal review. Accordingly, this matter will be referred back to Magistrate Scuderi for further proceedings not inconsistent with 28 U.S.C. § 636, including a report and recommendation on the merits of the claims. An appropriate order follows.
AND NOW, this 1st day of May, 1985, upon consideration of the report and recommendation of United States Magistrate Peter B. Scuderi and the petitioner's objections thereto, for the reasons stated in this Court's Memorandum of May 1, 1985,
IT IS HEREBY ORDERED that, in accordance with the accompanying Memorandum, this petition is referred back to Magistrate Scuderi for further proceedings not inconsistent with 28 U.S.C. § 636, including a report and recommendation on the merits of the petitioner's claims.
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