The opinion of the court was delivered by: POLLAK
Petitioner has filed for habeas corpus relief pursuant to 28 U.S.C. § 2254. He was convicted of aggravated assault and related offenses in the Philadelphia Court of Common Pleas and was sentenced to ten (10) to twenty (20) years imprisonment. Petitioner is now serving that sentence at the State Correctional Institution at Huntingdon.
Petitioner raises two due process claims in his request for habeas relief: 1) that his arrest was illegal and 2) that there was misconduct by the prosecutor during his closing argument to the jury at petitioner's trial. In a direct appeal from his conviction, petitioner raised both of these federal claims. See Commonwealth v. Williams, 316 Pa. Super. 100, 462 A.2d 813 (Pa. Super. Ct. 1983). Rejecting both claims, on July 8, 1983 the Superior Court affirmed petitioner's conviction and sentence. Id. 462 A.2d at 818. Petitioner thereupon filed a Petition for Allowance of Appeal in the Pennsylvania Supreme Court, which denied allocatur on October 21, 1983. In his appeal to the Pennsylvania Supreme Court, petitioner raised only the claim of illegal arrest.
In his Report and Recommendation made pursuant to 28 U.S.C. § 636(b)(1)(B) & (C), Magistrate William F. Hall, Jr., found that petitioner, in not seeking review by the Pennsylvania Supreme Court of the claim of prosecutorial misconduct, had failed to exhaust his state remedies as to that federal claim. Report and Recommendation at 2. Magistrate Hall then concluded, on the authority of Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), that because petitioner had not exhausted his state remedies with respect to both claims presented in his petition for habeas corpus, that petition could not be entertained by this court.
Pursuant to 28 U.S.C. § 636(b)(1) petitioner has filed objections to Magistrate Hall's Report and Recommendation. Petitioner contends that Magistrate Hall's finding that he had failed to exhaust his state remedies was erroneous.
1. Exhaustion of State Remedies
Petitioner agrees that, if he has not exhausted his state remedies for one of his habeas claims, Rose v. Lundy requires this court to deny his petition. He argues, however, that, even though he failed to present his claim for prosecutorial misconduct on appeal to the Pennsylvania Supreme Court, this claim is exhausted within the intendment of 28 U.S.C. § 2254(b) & (c).
It is clear that if petitioner is required to return to the state system to appeal his claim to the Pennsylvania Supreme Court, he will be barred from pursuing that appeal by the limitation period in the Pennsylvania Rules of Appellate Procedure. See Pa. R. App. P. 1113(a). A federal court need not dismiss a habeas petition on exhaustion grounds where an attempt to invoke the state procedure would be futile. See Beaty v. Patton, 700 F.2d 110, 111 (3d Cir. 1983) (per curiam).
The Commonwealth contends, however, that a state remedy other than direct appeal to the Pennsylvania Supreme Court remains open to petitioner. That remedy is collateral attack on the conviction and sentence pursuant to Pennsylvania's Post Conviction Hearing Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9551 (Purdon 1982). Response at 2. However, such post conviction relief is available only if the error relied on has not been "finally litigated or waived." 42 Pa. Cons. Stat. Ann. § 9543(4) (Purdon 1982). And an issue is "finally litigated" when the "Superior Court has ruled on the merits of the issue and the petitioner has knowingly and understandingly failed to avail himself of further appeals." 42 Pa. Cons. Stat. Ann. § 9544(a)(2) (Purdon 1982). Moreover, the Post Conviction Hearing Act establishes a rebuttable presumption that failure to appeal a ruling is a "knowing and understanding failure." 42 Pa. Cons. Stat. Ann. § 9544(c) (Purdon 1982).
In sum, petitioner has no available state remedies for either of his federal claims. This means that he may now ask this court to entertain these federal claims -- unless, within the meaning of Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963), he has engaged in a "deliberate by-pass" of available state relief and thereby foregone entitlement to federal habeas corpus:
If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits -- though of course only after the ...