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March 16, 1998


The opinion of the court was delivered by: DUBOIS



 MARCH 16, 1998

 Before the Court is petitioner's Amended Petition for Writ of Habeas Corpus brought pursuant to 28 U.S.C. § 2254 in which he alleges various constitutional violations in both the guilt and sentencing phases of his capital murder trial. Because the Amended Petition contains both exhausted and unexhausted claims - is a "mixed" petition - the Court concludes that it must be dismissed for failure to exhaust state remedies. See Rose v. Lundy, 455 U.S. 509, 521-22, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). In order to eliminate any risk that petitioner will be barred from re-filing a habeas petition in federal court after exhausting his state remedies, the Court will dismiss the Amended Petition without prejudice to petitioner's right to file a second amended petition pursuant to Federal Rule of Civil Procedure 15(c)(2) upon exhaustion of state remedies.


 On October 3, 1985, petitioner Kenneth Williams was found guilty, by a jury in the Court of Common Pleas of Lehigh County, of murder in the first degree, robbery, theft by unlawful taking or disposition, and receiving stolen property. The evidence produced at trial established that petitioner, on or about October 20, 1983, shot Edward Miller, a trucker with whom petitioner had been travelling. See Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251, 1257 (Pa. 1994). On October 4, 1985, the jury returned a verdict of death for that murder, finding that the aggravating factor of murder in the act of a felony (robbery) outweighed any mitigating factors. Judge James N. Diefenderfer of the Court of Common Pleas imposed a sentence of death on June 29, 1990.

 The Supreme Court of Pennsylvania affirmed the verdict and sentence on August 9, 1994; there is no evidence that petitioner sought a writ of certiorari from the United States Supreme Court. He did, however, file a petition for state post conviction collateral relief pursuant to the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 P.S. § 9541 et. seq., (Purdon's 1982 & Supp. 1997), on December 26, 1995. That action was voluntarily discontinued by motion of petitioner on January 31, 1996.

 The initial petition for a writ of habeas corpus was filed in this Court on December 27, 1995. On January 9, 1997 petitioner filed a second petition for relief under the PCRA; that action is currently pending. By Order of Judge Carol K. McGinley of the Court of Common Pleas dated October 20, 1997, petitioner's second PCRA filing has been stayed in deference to the federal habeas petition before this Court.

 This Court appointed counsel to represent petitioner pursuant to 21 U.S.C. § 848(q)(4)(B) (Supp. 1997). By Order dated February 4, 1997, the Court granted petitioner an extension of time in which to file an Amended Petition. The Amended Petition for Writ of Habeas Corpus was filed on February 14, 1997.


 A. Application of the Anti-Terrorism and Effective Death Penalty Act ["AEDPA"]

 The first issue confronting the Court is the respondents' assertion that the Amended Petition is governed by the Anti-Terrorism and Effective Death Penalty Act ["AEDPA"] of 1996, 110 Stat. 1214, signed into law by President Clinton on April 24, 1996. Respondents argue that although Lindh v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997), held that amended 28 U.S.C. § 2254 does not apply to habeas petitions pending before adoption of the AEDPA, Lindh does not govern this case because it is procedurally distinguishable. In Lindh, respondents argue, the petition had already been decided by the district court and was before the Seventh Circuit at the time the AEDPA was adopted whereas in the case at bar, no decision had been rendered at the time of the AEDPA's adoption. This, however, is a distinction without a difference. The Supreme Court's holding in Lindh is quite clear: the "new provisions . . . generally apply only to cases filed after the Act became effective." 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 at 2068 (emphasis added).

 Respondents next argue that the appropriate date for measuring the time of filing is the date the Amended, not the initial, Petition was filed. Since the Amended Petition was filed on February 14, 1997, the AEDPA would clearly apply. The Court concludes, however, that the petitioner's amendment relates back to the initial filing date, December 27, 1995.

 The Habeas Corpus Rules are silent with respect to the issue of relation back of an amended petition. However, 28 U.S.C. § 2242 provides that a petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." See also Habeas Corpus Rule 11 ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under the rules.").

 Federal Rule of Civil Procedure 15(c)(2) provides that an amendment relates back when the applicable statute of limitations so provides or when "the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Section 2244(d) of Title 28, the statute of limitations governing habeas actions, is silent as to the question of relation back and thus is not inconsistent with Rule 15(c)(2). Accordingly, the Court will apply that rule to this case. Because both petitions allege constitutional defects surrounding the same "occurrence" - petitioner's trial and penalty phases - under Rule 15(c)(2), the Amended Petition relates back to the original filing date. See Williams v. Calderon, 83 F.3d 281, 285 (9th Cir. 1996) (holding that post-AEDPA amendment to pending petition would relate back to filing date). Petitioner filed his initial petition well before the AEDPA was signed into law, and thus his petition will be governed by pre-AEDPA standards.

 The Court notes a related issue not raised by the parties, that is, whether Lindh 's holding is applicable in a capital case. The Lindh Court stated that § 2254(d), the provision at issue before that Court, "governs applications in noncapital cases." 117 S. Ct. at 2061 (emphasis added). The result in Lindh was reached after a comparison of the language of amended 28 U.S.C. § 2254(d) and the language of § 107 of the AEDPA (codified at 28 U.S.C. § 2261 et. seq.). Section 107 creates special provisions governing habeas corpus petitions in capital cases and it applies "to cases pending on or after the date of enactment of this Act," 110 Stat. 1226 (emphasis added); section 107 is, therefore, expressly retroactive. Section 2254, on the other hand, contains no such language and, by negative inference, has no retroactive application.

 In order to take advantage of the provisions of § 107 (which favor the state), a state has to "opt-in" by meeting the criteria of 28 U.S.C. §§ 2261(b)-(c) which provide, in part, that a state must establish "a mechanism" for the appointment and payment of counsel in state post-conviction proceedings. The Third Circuit has held that Pennsylvania is not an "opt-in" state. See Death Row Prisoners of Pennsylvania v. Ridge, 106 F.3d 35 (3d Cir. 1997). As such, capital habeas petitions in Pennsylvania are governed by the default provisions of § 2254. The Court concludes therefore, that because § 2254 governs this case, the fact that petitioner is facing the death penalty does not affect application of Lindh' s holding to this case and the Court will not apply the provisions of the AEDPA retroactively. Accord Green v. Johnson, 116 F.3d 1115 (5th Cir. 1997) (applying Lindh 's holding of non-retroactivity to capital habeas petition filed in Texas, a non-"opt-in" state).

 Exhaustion and Futility

 1. Exhaustion Requirement

 A claim which has not been pursued in all available state court proceedings has not been exhausted. *fn1" Exhaustion "serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights." Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). It is, therefore, well settled that habeas petitions presenting only unexhausted claims generally may not be granted by federal courts. See, e.g., Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).

 Respondents contend that petitioner presents a "mixed" petition - one containing both exhausted and unexhausted claims. The Supreme Court has consistently held that a "mixed" petition must also be dismissed. *fn2" See, e.g., Rose v. Lundy, 455 U.S. 509, 521-22, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991); Castille v. Peoples, 489 U.S. 346, 349, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989); see also Lambert v. Blackwell, 134 F.3d 506, 1997 U.S. App. LEXIS ...

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