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PETERKIN v. HORN

December 16, 1997

OTIS PETERKIN
v.
MARTIN HORN, ET. AL.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 December 16, 1997

 Petitioner, a death-row prisoner, has moved to amend his petition for habeas corpus relief to include a claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). For the reasons set forth below, the motion is denied.

 Factual and Procedural Background

 In September, 1982, Petitioner was tried and convicted in the Court of Common Pleas of Philadelphia County of two counts of first degree murder, robbery and possession of an instrument of crime as the result of the November 29, 1981 robbery and murder of two employees of the Sunoco service station located at Broad and Catherine Streets in South Philadelphia. At the conclusion of the penalty phase of the trial, Mr. Peterkin was sentenced to death. His conviction was subsequently appealed to the Pennsylvania Supreme Court, which affirmed.

 In 1987, the United States Supreme Court denied certiorari and petitioner thereafter filed for relief under the Pennsylvania Post Conviction Hearing Act, 42 Pa.C.S. § 9541, et. seq. raising numerous claims of ineffective assistance of counsel. Following the trial court's denial of that petition, the matter was once again appealed directly to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S. § 9546(d) *fn1" , which again affirmed the trial court in an opinion issued on October 12, 1994. The United States Supreme Court likewise denied Mr. Peterkin's petition for writ of certiorari by order dated June 12, 1995. Petitioner commenced this habeas corpus action on June 27, 1995 with a request for appointment of counsel. This request was granted and appointed counsel filed a Petition for Writ of Habeas Corpus in this Court on December 5, 1996. This motion to amend was thereafter filed on April 23, 1997.

 Standards Governing Motions to Amend

 As a threshold matter, we note that in the time between petitioner's commencement of this habeas action by filing a request for appointment of counsel and the actual filing of the petition itself, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This Act, which took effect on April 24, 1996, amended the federal habeas statute in several ways. Among these changes, the standards for reviewing state court rulings on legal issues and mixed questions of law and fact and the time within which habeas petitions could be filed and ruled upon, were altered. See, e.g, 28 U.S.C. §§ 2254, 2261-2266. Similarly, under 28 U.S.C. § 2266(b)(3)(B), "no amendment to an application for a writ of habeas corpus under this chapter [governing habeas corpus in capital cases] shall be permitted after the filing of the answer to the application, except on the grounds specified in section 2244(b)." *fn2"

 The question of whether these amendments are to be applied retroactively to pending cases depends upon the chapter under which the amendments at issue were drafted. In Lindh v. Murphy, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997), the Supreme Court, finding that chapters 153 and 154 of the Act would have substantive as well as purely procedural effects and that the notes and legislative history underlying chapter 154 reflected the intention that it be given retroactive application, observed that chapter 153's legislative history did not echo this intention. Thus, by negative implication, except where chapter 154 otherwise makes select provisions of chapter 153 applicable to pending cases, the amendments to chapter 153 "were meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act..." 117 S. Ct. at 2063, 2068. See Also : United States v. Skandier, 125 F.3d 178, 180 (1997).

 The case at hand is unique and appears to be one of first impression in that it was commenced not by the filing of a petition for habeas corpus itself but by a request for appointment of counsel to, inter alia, assist in the preparation of such a petition. The waters are further muddied by the fact that while the amendments to § 2266 were promulgated under chapter 154, the amendments to § 2244 were made a part of chapter 153. Saving for the moment our determination of which version of the habeas statute to apply, we shall give petitioner the benefit of the doubt and resolve this motion under a rules analysis. Under 28 U.S.C. § 2242, applications for writ of habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil actions. Amendment of pleadings generally is governed by Fed.R.Civ.P. 15. Subsection (a) of that rule provides, in relevant part:

 A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires...


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