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May 10, 1985


The opinion of the court was delivered by: POLLAK


 In a Memorandum dated February 5, 1985, I determined that petitioner in this habeas corpus proceeding had exhausted all appropriate state remedies. Accordingly, I remanded the case to United States Magistrate William F. Hall, Jr. for consideration of the merits of the petition. Soon thereafter, the District Attorney of Philadelphia, one of the respondents herein, moved for reconsideration of my ruling on the question of exhaustion. Petitioner has not replied to that motion for reconsideration.

 Petitioner was convicted in the Court of Common Pleas for Philadelphia County of robbery, rape, kidnapping, aggravated assault and criminal conspiracy. Petitioner, through counsel, then appealed to the Superior Court, which, on October 29, 1982, affirmed petitioner's conviction. Both of the issues raised in petitioner's current pro se application for habeas corpus were raised in the trial court and were discussed in the opinion of the Superior Court.

 Petitioner filed a pro se application for allocatur to the Pennsylvania Supreme Court long after the thirty days allowed for such an application had expired. See 42 Pa. Cons. Stat. Ann. ยง 5571. Petitioner's application to the Supreme Court noted that it was not timely filed but claimed that petitioner had not been advised by his counsel of the Superior Court decision and did not learn of it through other means until May 1983. The application for allocatur then discussed the legal issues which had been raised in the trial court and the Superior Court as well as a claim that petitioner's counsel had been ineffective in failing to inform petitioner of the Superior Court action or the time limitations for a proper appeal to the Supreme Court.

 In 1984, the Supreme Court denied the application for allocatur "without prejudice to seek relief under the Post Conviction Hearing Act." There was no elaboration of the basis for the Supreme Court's decision. Petitioner has not sought relief on these claims through any other state procedure.

 Respondent does not dispute that the issues raised in the current petition for habeas corpus were presented to and considered by the trial court and the Superior Court, and, further, that they were raised in the brief submitted by petitioner to the Pennsylvania Supreme Court. However, respondent does disagree with the conclusion embodied in my Memorandum of February 5, 1985, that the untimely presentation of these issues to the Pennsylvania Supreme Court exhausted petitioner's state remedies.

 It is now settled that a habeas corpus petitioner need not pursue remedies which might be available under the Pennsylvania Post Conviction Hearing Act if he has raised the same issues on direct review of his conviction. United States ex rel. Schultz v. Brierley, 449 F.2d 1286 (3d Cir. 1971); United States ex rel. Fletcher v. Maroney, 413 F.2d 16 (3d Cir. 1969). However, to exhaust state remedies on direct appeal, the petitioner must present the issues to the highest state court in which decision can be had. E.g., Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 (1953).

 That highest state court need not, however, have ruled on the merits of the claims for them to have been sufficiently presented for purposes of exhaustion. United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975). Under the law in this circuit, a denial of allocatur by the Pennsylvania Supreme Court "constitutes a sufficient presentation for purposes of exhaustion." United States ex rel. Turner v. Rundle, 438 F.2d 839, 845 (3d Cir. 1971).

 Respondent notes, however, that state remedies are not exhausted if the denial of leave to appeal by the highest state court "could not be fairly taken as an adjudication of the merits of claims presented and where normal state channels for review were available." Pitchess v. Davis, 421 U.S. 482, 95 S. Ct. 1748, 1752, 44 L. Ed. 2d 317 (1975). Respondent argues that petitioner's untimely application to the Pennsylvania Supreme Court meant that the denial of allocatur could not be taken as consideration of the merits of the petition, particularly when the Supreme Court denied allocatur "without prejudice to seek relief under the Post Conviction Hearing Act." Furthermore, respondent asserts that a further channel for direct review of petitioner's claims is available.

 The mechanism for obtaining consideration of the merits of petitioner's untimely appeal which is suggested by respondent is an appeal nunc pro tunc. Although there is no statute or rule of court which allows such an untimely appeal in Pennsylvania, the appeal nunc pro tunc is occasionally allowed when the appellant establishes that the failure to file a timely appeal was the result of "fraud or its equivalent" or a "breakdown in the court's operation." Commonwealth v. Englert, 311 Pa. Super. 78, 457 A.2d 121, 124 (Pa. Super. 1983). In the present case, respondent argues that the statements in petitioner's untimely application for allocatur would not have been enough to allow the Supreme Court to determine whether a nunc pro tunc appeal was appropriate. Therefore, in respondent's view, the Pennsylvania Supreme Court's order should be read as a direction to petitioner to take his claims that his counsel was ineffective in failing to protect petitioner's appellate remedies through the procedures established by the Post Conviction Hearing Act. If petitioner satisfies the courts considering his application for post conviction relief that his counsel was ineffective, respondent asserts, petitioner would be permitted to take a nunc pro tunc appeal to the Supreme Court. In support of this scenario, respondent points to the decisions in Commonwealth v. Kersten, 333 Pa. Super. 343, 482 A.2d 600, 602 (Pa. Super. 1984), and Commonwealth v. Jefferson, 430 Pa. 532, 243 A.2d 412 (1968), which were nunc pro tunc appeals taken after ineffective assistance of appellate counsel had been found through a Post Conviction Hearing Act adjudication of that question.

 Respondent's position would thus require petitioner to adjudicate fully his allegations of ineffective assistance of counsel through the Post Conviction Hearing Act process despite the fact that those ineffective assistance claims are not part of the present habeas corpus petition. Petitioner's failure, according to respondent, is not that he has failed to exhaust his remedies on the question of ineffective assistance of counsel, but that exhaustion of those remedies is the only means by which petitioner can fully exhaust the necessary state remedies on the substantive issues presented in the habeas corpus petition.

 As a preliminary matter, it is necessary to consider the validity of respondent's assumption that the Pennsylvania Supreme Court's order cannot be taken to reflect consideration of the merits of the application for allocatur. Due to the cryptic language used in that order, it is difficult to determine the court's intention. Although there is some difference of opinion among the federal courts as to the proper construction of a denial of appellate relief when no reasons are given by the court, it has been suggested by the Court of Appeals for the Ninth Circuit in Thompson v. Procunier, 539 F.2d 26, 28 (1976), that:

Where a petition for a writ of habeas corpus presenting a federal constitutional question is denied by a state court with no reason given, we will assume that the state court has had an opportunity to pass on the merits ...

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