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July 8, 1993


Ditter, Jr.

The opinion of the court was delivered by: J. WILLIAM DITTER, JR.


In 1987, William Cornish, a state prisoner, was afforded a remand of the petition he had filed under the Post-Conviction Relief Act, 42 Pa. C.S.A. ยง 9541 et seq. Successive counsel for Mr. Cornish delayed hearings on the petition so that his claims have still not been heard. *fn1" On February 4, 1993, Cornish filed this pro se habeas petition contending that the delay in these state collateral proceedings has violated his constitutional right to effective assistance of counsel and to due process of law. Cornish also asks that I consider his PCRA claims regarding alleged trial errors directly.

 I agree with the recommendation of Magistrate Judge Naythons that I dismiss Cornish's petition, but differ with his reasoning in the following way.

 I. Ineffective Assistance of Counsel

 Magistrate Judge Naythons held that Cornish's ineffective assistance of counsel claim must fail because Cornish never had a sixth amendment right to counsel in his state collateral proceedings. He states that Pennsylvania v. Finley, 481 U.S. 551, 557, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and Tillett v. Freeman, 868 F.2d 106, 108 (3d Cir. 1989), require this result.

 This conclusion overstates Finley. In Finley, the Supreme Court held that where a petitioner has no constitutional right to appointed counsel, such as in a collateral post-conviction proceeding, he or she is not entitled to the procedures mandated in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), regarding the withdrawal of attorneys. Anders had held that when an attorney appointed to represent an indigent defendant on direct appeal finds the case frivolous and wants to withdraw, the attorney must submit, with the request for withdrawal, a brief highlighting anything in the record which arguably supports the appeal. See Anders, 380 U.S., at 744. Finley only held that these procedures are not required where a petitioner's right to counsel is based in state law (as it is in Pennsylvania PCRA proceedings) rather than in the Constitution. See Finley, 481 U.S., at 554-55. Finley did not hold that every habeas claim alleging ineffective assistance of counsel in state collateral proceedings must be dismissed. *fn2"

 There may be other reasons to bar habeas claims alleging ineffective assistance at state collateral proceedings, *fn3" although I am not inclined to agree with them. I consider Judge Joseph Lord's reasoning in Forrest v. Fulcomer, No. 89-7377, 1990 WL 9370 (E.D. Pa. Feb. 1, 1990), persuasive. He said: "a rule which excludes all errors in post-conviction proceedings, constitutional or otherwise, from the remedy of habeas corpus [hardly] comports with the historical purpose and function of the writ." Id. at *2. He also quoted Dickerson v. Walsh, 750 F.2d 150 (1st Cir. 1984), which had called the majority rule barring these habeas claims "neither consonant with the basic policies of habeas corpus relief nor Supreme Court rulings." Id. at 153.

 In any event, I do not need to decide whether habeas relief is available where the allegation of ineffective assistance of counsel is based on delays in the collateral proceedings, because in this case, at least, the matter is moot. The only relief I could grant Cornish, assuming his claim had merit, would be to waive the requirement that he exhaust all his state remedies. Unlike with ineffective trial counsel, I cannot grant a new trial. Unlike with federal defendants, I cannot order new counsel or in some other way speed the hearing along. I can only deem Cornish's state petitions futile and hear his claims myself. *fn4"

 Were I to consider the claims on their merits, however, I would need, as Magistrate Judge Naythons concluded, to dismiss Cornish's claims as an abuse of the writ. Habeas petitioners are required to raise all colorable claims in their initial petitions to a district court. See McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). In 1979, Cornish filed a habeas petition here in which he could have, but did not, raise the trial errors which he now alleges. See Magistrate Judge Naythons' discussion, at 4-6. Absent demonstrations of cause for and prejudice from this delay, or in the alternative, presentation of facts showing that a miscarriage of justice will result if I refuse to hear his claims, Cornish's petition must be dismissed. See id. at 6-7.

 II. Due Process

 Cornish reiterates in his objections to the magistrate judge's report that the six-year delay in state court itself has violated his right to due process. Due process violations require action (or inaction) by the state. Here, the conduct of Cornish's attorneys in failing to appear for hearings and in requesting numerous continuances cannot be attributed to the state. Moreover, even if the delay could somehow be attributed to the state (for having granted the attorneys' requests, for example), I could again only waive the exhaustion requirement -- which would, as I have explained, only lead me to dismiss Cornish's claims as an abuse of the writ.

 Cornish's petition for habeas relief must be denied. An order follows.


 AND NOW, this 8th day of July, 1993, it is hereby ordered that:

 1. The Report and Recommendation of Magistrate Judge Naythons, filed April 5, 1993, is approved and adopted except to the extent addressed in the accompanying opinion.

 2. The petition for writ of habeas corpus is denied and dismissed.

 3. There is no probable cause for appeal.


 J. William Ditter, Jr.

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