The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are Respondents' Amended Objections to the September
2, 2003 Report and Recommendation ("R & R") of Magistrate Judge
Arnold C. Rapoport in the above captioned case. In these amended
objections, Respondents notified this Court for the first time that on
January 9, 2003, Petitioner appealed the PCRA Court decision dismissing
his case. When Judge Rapoport issued his September 2, 2003 R & R, he
was unaware of this crucial fact, and, pursuant to this Court's July 29,
2003 Order, reviewed each of Petitioner's claims for relief on their
merits. Had Judge Rapoport known about Petitioner's appeal, the Court is
certain that in his September 2, 2003 R & R, he would have reiterated
the recommendation he made in his June 6, 2003 R & R, where he
recommended that the petition be dismissed without prejudice for lack of
complete exhaustion under Rose v. Lundy, 455 U.S. 509, 522 (1982). This
Court, finally having all of the relevant facts before it, agrees with
Judge Rapoport's June 6, 2003 recommendation and dismisses the petition
without prejudice.
On April 11, 1996, Petitioner filed the first of two pro se petitions
under the Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.
Stat. Ann. §§ 9541-46. In this petition, Petitioner
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requested relief based on one claim that Commonwealth witness
Charles Atwell was supplied sexual favors in exchange for his alleged
false eyewitness testimony implicating Petitioner (the "sexual favors
claim"). The PCRA Court rejected this claim, and the Pennsylvania
Superior Court affirmed on August 11, 2000. Commonwealth v. White,
764 A.2d 1131 (Pa. Super. 2000). The Pennsylvania Supreme Court denied
allocatur. Commonwealth v. White, 771 A.2d 1284 (Pa. 2001).
Petitioner filed the instant pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 on February 13, 2002, advancing the
sexual favors claim and four additional claims for relief not raised in
the aforementioned PCRA proceedings. Approximately two days later, on
February 15, 2002, Petitioner filed a second PCRA petition advancing
these four additional claims. On December 9, 2002, the PCRA Court
dismissed this second PCRA Petition as untimely. Petitioner filed a
Notice of Appeal of this dismissal on January 9, 2003.
On June 6, 2003, Judge Rapoport, without knowledge of the December 9,
2002 PCRA Court dismissal or of Petitioner's appeal, recommended that
Petitioner's pro se Petition for Writ of Habeas Corpus be denied and
dismissed without prejudice as a mixed petition in accordance with Rose
v. Lundy, 455 U.S. 509, 522 (1982). On June 20, 2003, Respondents, with
knowledge of the PCRA Court dismissal but not of Petitioner's appeal,
objected to this recommendation and argued that because the second PCRA
petition had been dismissed as untimely and no appeal had been filed,
Judge Rapoport's recommendation that the petition be dismissed on
exhaustion grounds was improper. On July 29, 2003, this Court did not
approve Judge Rapoport's R & R and remanded to Judge Rapoport for
consideration on the merits of the sexual favors claim, which had been
exhausted, and of the four procedurally defaulted claims where cause and
prejudice or a fundamental miscarriage of justice could be established.
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On September 2, 2003, Judge Rapoport, without knowledge of Petitioner's
appeal, issued a second R & R that the petition should be denied
without prejudice. Judge Rapoport rejected Petitioner's sexual favors
claim on the merits and found Petitioner's other claims procedurally
defaulted because Petitioner had not shown that failure to consider the
claims would result in a fundamental miscarriage of justice. R & R at
8-13.
On September 12, 2003, Respondents objected to this second R & R on
the sole ground that it recommended that the petition be denied and
dismissed without prejudice. On September 24, 2003, Respondents received
a copy of Petitioner's letter to the Clerk of Court [Doc. #22], in which
Petitioner stated that on January 9, 2003, he had filed an appeal of the
second PCRA Court order dismissing his petition as untimely. When
Respondents filed their June 20, 2003 objections to the first R & R
and their September 12, 2003 objections to the second R & R, they
were unaware Petitioner had filed this appeal.*fn1
On September 25, 2003, after discovering that Petitioner had appealed
the second PCRA Court dismissal, Respondents filed amended objections to
the September 2, 2003 R & R. In these amended objections, Respondents
conceded that Judge Rapoport's initial recommendation that the petition
be dismissed for lack of complete exhaustion was correct and should be
adopted.
After consideration of the aforementioned circumstances, and because
there are no longer any objections to Judge Rapoport's June 6, 2003
recommendation, the Court dismisses the petition without prejudice for
failure to exhaust state remedies.
An appropriate Order follows.