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.
REPORT AND RECOMMENDATION
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
FACTS AND PROCEDURAL HISTORY:
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.
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.
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
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
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 ...