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December 31, 2003.


The opinion of the court was delivered by: PETER SCUDERI, Magistrate Judge


Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Kevin Powell ("Petitioner"), an individual currently incarcerated in the State Correctional Institution in Rockview, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.


  The following facts were determined at trial:
On the evening of October 1, 1998 at 10:00 p.m., [Petitioner], along with a codefendant [sic], Marcus Johnson, robbed Mr. Kyuing Jang, the proprietor of the Serve Right Food Market at 239 So. 10th Street, Philadelphia. While [Petitioner] acted as a lookout, and the driver of the "getaway" car, which was double-parked outside the store, co-defendant Marcus Johnson exited the vehicle, entered the market with a .380 caliber handgun and announced a hold up. Mr. Jang gave Johnson $500.00, and Johnson then left the store, re-entered [Petitioner's] car and [Petitioner] drove the car away. Philadelphia Police Officer Burrell had observed [Petitioner] in the illegally double-parked car, and had observed Johnson enter and exit the store. Officer Burrell then pursued the vehicle, and was assisted in the chase by other officers, who finally apprehended [Petitioner] several blocks away, near the Vine Street Expressway entrance. A handgun, in plain view, was confiscated from the front passenger seat, and found to be operable. Subsequently, it was discovered that the vehicle being operated by [Petitioner] belonged to one Rose Fisher, who had parked it on Heather Road, Upper Darby, at 8:30 a.m. that morning, and had discovered it missing at 4:30 p.m. Ms. Fisher had not given [Petitioner] or anyone else permission to operate the vehicle.
Commonwealth v. Powell, No. 0422 May 1999, at 1-2 (Phila. C.C.P. July 23, 2002). Petitioner was arrested and charged with robbery, criminal conspiracy, possession of an instrument of crime, and unauthorized use of a motor vehicle.

  On August 8, 2000, Petitioner entered a plea of nolo contendere to all charges before the Honorable James J. Fitzgerald, Court of Common Pleas of Philadelphia County,. In accordance with the plea agreement, Petitioner was sentenced to five (5) to twelve (12) years of imprisonment for robbery and criminal conspiracy, concurrent with any other sentences imposed that day.*fn1 Sentence was suspended for possession of an instrument of crime and unauthorized use of a motor vehicle.

  Petitioner did not file a petition for reconsideration of his sentence, make any attempt to withdraw his plea, or file a direct appeal. Instead, on May 10, 2001, Petitioner filed a pro se petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq., raising one (1) claim: that he did not receive the benefit of his negotiated plea agreement because the state parole board refused to allow his back time to be served concurrently with the robbery sentence. Counsel appointed to represent Petitioner in his PCRA matter subsequently filed a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 ( Pa. Super. 1988), certifying that he had reviewed Petitioner's claim and concluded that there were no meritorious issues to advance before the PCRA court. On March 22, 2002, the PCRA court dismissed Petitioner's PCRA petition as meritless. Commonwealth v. Powell, No. 0422 May Term 1999 (Phila. C.C.P. March 22, 2002).

  Petitioner appealed the denial of PCRA relief to the Pennsylvania Superior Court, arguing that appointed counsel's "no merit" letter failed to meet the requirements of Pennsylvania law, under Finley, and that the trial court's sentence was illegal. On April 29, 2003, the Superior Court affirmed the denial of PCRA relief. Commonwealth v. Powell, No. 1131 EDA 2002 (Pa. Super. April 29, 2003). In discussing Petitioner's Finley claim, the Superior Court concluded that Petitioner's initial PCRA petition contained three (3) possible claims: (1) ineffective assistance of trial counsel for failing to inform Petitioner that his back-time sentence could not run concurrently with his current sentence; (2) unlawful inducement of a plea; and (3) improper calculation of sentence. Id. at 4-5. The court found that the first two (2) of these possible claims were meritless, and that the illegal sentence claim was not cognizable on PCRA review. Id. at 5-7.

  Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

  On June 9, 2003, Petitioner filed the instant pro se petition for writ of habeas corpus,*fn2 arguing: (1) his plea of nolo contendere was unlawfully induced; (2) ineffectiveness of counsel in the plea bargaining process; and (3) the trial court imposed an unlawful sentence. On November 24, 2003, Respondents filed an answer asserting that Petitioner's claims are unexhausted and procedurally defaulted and, in the alternative, that the claims are meritless.


  A. Exhaustion and Procedural Default

  A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant part that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a petitioner "fairly present" each claim in his petition to each level of the state courts, including the highest state court empowered to consider it. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State*fn3 to raise, by any available procedure, the question presented"); O'Sullivan v. Boerckel 526 U.S. 838, 848 (1999). In order for a claim "to have been `fairly presented' to the state courts,. . . it must be the substantial equivalent of that presented to the state courts. In addition, the state courts must have available to it the same method of legal analysis as that to be employed in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000): see also Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) ("The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights"). The habeas petitioner bears the burden of showing that his or her claims have been "fairly presented" to the state courts, and that the habeas claims are the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983).

  The exhaustion requirement may be excused if it would be futile for the petitioner to seek relief in the state court system, or if the particular circumstances of the case render the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also Szuchon v. Lehman, 273 F.3d 299, 323 n.14 (3d Cir. 2001) ("Exhaustion will be excused as `futile' if `the state court would refuse on procedural grounds to hear the merits of the claims'") (quoting Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)); Werts, 228 F.3d at 192 (same).

  Where a petitioner fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim may nevertheless be considered on federal habeas if the petitioner "demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("We . . . require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim") (emphasis in original). Also, ...

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