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April 5, 2004.

PALAKOVICH, et al.[fn1]

The opinion of the court was delivered by: JACOB HART, Magistrate Judge

*fn1 John Palakovich is the Superintendent of the State Correctional Institution at Smithfield, Pennsylvania, where Charles Truett is currently serving his sentence.


This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Smithfield, Pennsylvania. For the reasons that follow, I recommend that the petition be dismissed without prejudice.


  On August 14, 1996, after a guilty plea before the Honorable Rayford A. Means, of the Court of Common Pleas of Philadelphia County, Pennsylvania, Truett was convicted of theft by receiving stolen property, unauthorized use of automobile and other vehicles, and possession of a controlled substance. Commonwealth v. Truett, C.P. 96-03-0793; C.P. 96-07-0337 (Pa. Ct. Com. PL filed on April 4, 2002). Truett received a sentence of three years' probation and court costs for the theft by receiving stolen property charge, and a concurrent sentence of two years' probation and court costs for the other charges. Id.

  On May 13, 1999, the court found Truett had violated his probation and revoked probation. Id. The court further issued concurrent sentences of 11 1/2 to 23 months' imprisonment for each bill, with an additional five years' consecutive probation. Id.

  After serving his imprisonment, Truett was once again found in violation of his probation. Id. Truett had tested positive for cocaine on five separate occasions, failed to report for two required urinalysis tests, was arrested twice for knowingly and intentionally possessing a controlled substance, and failed to appear at two scheduled court listings. Id. On January 22, 2002, Judge Means held a violation of probation hearing, where Truett was given an opportunity to speak on his own behalf. N.T. 1/22/04 at 4. Judge Means found Truett in violation of his probation. Commonwealth v. Truett, C.P. 96-03-0793; C.P. 96-07-0337 (Pa. Ct. Com. PL filed on April 4, 2002). Therefore, Judge Means terminated his probation and imposed concurrent new sentences of two and one-half to five years' imprisonment and one to two years' imprisonment. Id.

  One week after the January 22, 2002 hearing, Truett filed a Motion to Modify and Reconsider Sentence, alleging the sentence was excessive. This motion was denied. Id. On September 10, 2002, Truett filed a direct appeal to the Superior Court. In this appeal, Truett raised two issues:
1. The Appellant was denied a basic due process right, and a right guaranteed by express provision of the Pennsylvania Rules of Criminal Procedure, when, following revocation of probation, the Court below moved to sentencing without providing the Appellant with an opportunity for allocution.
2. The Lower Court erred and abused its discretion in imposing a term of imprisonment . . . by failing to ensure that it had adequate and sufficient information, through a current presentence investigation or comparable sources, to enable it to determine the circumstances of the offense and the character of the defendant.
Brief for Petitioner at 13 § 20, Commonwealth v. Truett, 609 EDA 2002. On April 29, 2003, the Superior Court found these issues had been waived by Truett because he failed to raise them during the proceedings, themselves, or in his post sentence Motion to Modify and Reconsider Sentence. Commonwealth v. Truett, 609 EDA 2002, at 2. Despite the court's holding that the claims had been waived, it went on to discuss the merits of Truett's claims. Id. The court found neither claim had merit, since Truett was given an opportunity, although "very brief," to allocute at his sentencing and a pre-sentence report was unnecessary given Judge Means' personal knowledge and involvement with this case. Id.

  Truett then filed a petition for allowance of appeal in the Pennsylvania Supreme Court. In his brief, Truett claimed the trial court denied him his right of allocution and sentenced him without a pre-sentence investigation report. In addition, Truett challenged the Superior Court's determination when he claimed: (1) "the Superior Court fail[ed] to recognize its statutory and its constitutional authorities related to the Legality of the Conviction, or, Revocation, and Sentence;" and (2) "the Superior Court also err[ed] in its legal recognition of legal authority to Sua-Sponte Review of the ILLEGALITIES OF SENTENCES AND THE LACK OF JURISDICTION OF THE TRIAL COURT TO IMPOSE ANY SENTENCE." Brief for Petitioner at iii, Commonwealth v. Truett, 834 A.2d 1142 (table) (Pa. 2003) (C.P. 96-03-0793; C.P. 96-07-0337) (emphasis in original). On October 14, 2003, the Pennsylvania Supreme Court declined to review this case. Commonwealth v. Truett, 834 A.2d 1142 (table) (Pa. 2003).

  On October 30, 2003, Truett filed this petition for writ of habeas corpus. In his petition, Truett makes four claims:
1. Petitioner is unlawfully held in custody in full violation of U.S. Constitution under an expired sentence. In a circumstance where all State Officials and state forums has [sic] completely refused to correct. 2. The Pennsylvania Superior failed to follow it's Statutory and Constitutional created duty. . . . As the full panolopy [sic]of the U.S. Constitutional protections apply to the process, such process of failure to review legality of the sentence, violates the U.S. Constitution: a State default.
3. Petitioner was denied a legally provided right of allocution before sentencing. . . . Such denial of such legally provided right foreclosed upon this Petitioner's opportunity to address the Court regarding the complete lack of Jurisdiction to impose any sentence.
4. Petitioner was illegally sentenced under triple jeopardy by a Court whom [sic] lacked jurisdiction to impose. The Petitioner, after being placed twice in jeopardy as it related to sentencing on an expired sentence, was illegally sentenced a third time regarding an expired sentence.
Plaintiff's Petition for Writ of Habeas Corpus at 9-10. In response, the District Attorney has asserted that the claim related to allocution is not cognizable in habeas and that all other claims have not been properly exhausted before the state courts. Since the District Attorney's assertions are correct, I recommend that this petition be dismissed without prejudice.
A. Cognizability of the Right of Allocution
  Only those in custody in violation of the laws of the United States are entitled to habeas corpus review under 28 U.S.C. § 2254(a). Hence, "federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 83 (1983) (citing Engle v. Isaac. 457 U.S. 1141 (1982)). The right of allocution is recognized as a procedural matter at sentencing, not a substantive right. FED. R. CRIM. P. 32(c)(3)(C); PA. R. CRIM. P. 1405; Hill v. United States, 368 U.S. 424 (1962); Commonwealth v. Barton. 458 A.2d 571 (Pa. Super. 1983). In Hill, the Supreme Court described the failure of a trial court to grant a right of allocution as "not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present `exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" 368 U.S. at 428 (quoting Bowen v. Johnston, 306 U.S. 19, 27 (1939)). Since the right of allocution is not guaranteed by due process, it is not a cognizable claim in a habeas petition. See, e.g., United States v. Li, 115 F.3d 125 (2d Cir. 1997) (holding no constitutional right to allocution even when affirmative request for allocution is denied); Scrivner v. Tansy, 68 F.3d 1234 (10th Cir. 1995) (finding allocution raises no constitutional error cognizable in non-capital federal habeas cases); United States v. Coffey, 871 F.2d 39 (6th Cir. 1989) (holding no due process right to allocution); United States v. Prince, 868 F.2d 1379 (5th Cir. 1989) (finding no constitutional right to allocution); Story v. Kindt, 957 F. Supp. 716 (W.D. Pa. 1997) (holding allocution claim not cognizable in habeas petitions). Therefore, Truett's allocution claim is not cognizable, and the claim must be dismissed.*fn2

  B. Exhaustion of the Remaining Claims

  Under federal law, a petitioner must exhaust the remedies available in the state court before federal review can occur. 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement is only met when the petitioner fairly presents the same claim(s) that he is presenting in his habeas petition to all available levels of the state judicial system. Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 7 (1982); Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); Doctor v. Walters. 96 F.3d 675, 678 (3d Cir. 1996). To be fairly presented, the "petitioner must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless, 172 F.3d at 261. Therefore, for a federal court to review a petitioner's claim, a substantially equivalent claim must have been presented to the state courts.

  In the present case, Truett has raised novel claims at each level of review, and the only claim that has been fully exhausted is the alleged failure of the trial court to allow the right of allocution, which we have already discussed. Before the trial court, the only issue Truett raised in his reconsideration and notice of appeal was his assertion that the sentence imposed was excessive. Before the Pennsylvania Superior Court, Truett did not raise an excessive sentence claim, but, instead, alleged that the trial court erred in failing to give him the right of allocution and abused its discretion by failing to review a pre-sentence report. Before the Pennsylvania Supreme Court, Truett carried both the allocution and the pre-sentence report claims, but added two ...

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