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April 12, 2004.


The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge


Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a state prisoner. Petitioner is currently incarcerated at the State Correctional Institution ["SCI"] Pittsburgh, Pennsylvania, where he is serving a twenty to forty year sentence for attempted homicide and related charges. For the reasons which follow it is recommended that the Petition for Writ of Habeas Corpus be denied and dismissed without an evidentiary hearing.


  On May 19, 1999, following a jury trial before the Honorable Michael A. Georgelis of the Court of Common Pleas of Lancaster County, Petitioner was convicted of attempted homicide, aggravated assault and criminal conspiracy. See N.T. 5/19/99 at pp. 73-81.*fn2 The facts underlying Petitioner's conviction were described by the Superior Court as follows:
"The facts, viewed in the light most favorable to the Commonwealth as verdict winner, show that at approximately 1:00 a.m. on May 10, 1998, the victim, Thomas Coleman, a graduating senior at Franklin and Marshall College in Lancaster, was walking back to his fraternity house alone after an evening of celebratory drinking with friends and classmates at a local tavern. Near the intersection of Prince and Walnut Streets, appellant [Petitioner], who was then sixteen years of age, and a co-hort, came up behind the victim and viciously assaulted him. Appellant and his conspirator wielded knives and together inflicted 21 stab and/or slash wounds to the head, face, neck, chest and back of the victim. In attempting to resist the attack, the victim pulled Appellant's jacket off, the pocket of which contained an identification card. The attack ended and the aggressors fled when a passer-by stopped his vehicle and gave aid to the victim by flashing his lights, blowing his horn, and shouting `break it up.' The passer-by then called the police on a cellular phone. Before police arrived, a good Samaritan drove the victim to the emergency room of nearby Saint Joseph's Hospital. Due to the life threatening nature of his injuries, the victim was transported to the trauma center at Lancaster General Hospital where several emergency surgeries were performed and the victim's life was saved.
When the police arrived at the corner of Prince and Walnut Streets, they found Appellant's jacket with identification card, a pile of bloody clothing and two knives. Appellant was later interviewed by detectives in the presence of his mother. Appellant waived his right to counsel and gave a statement in which he admitted stabbing the victim repeatedly during a fight that allegedly began between the victim and the Appellant's co-hort. Appellant identified one of the knives recovered at the scene, as well as the jacket and identification card as his own. Appellant was arrested and charged as an adult with criminal attempt to commit criminal homicide, aggravated assault, robbery and criminal conspiracy.
At Appellant's preliminary hearing, the robbery charge was dismissed for lack of a prima facie showing. Thereafter, Appellant filed a writ of habeas corpus alleging that no showing was made at the preliminary hearing sufficient to bind Appellant over for trial on the remaining charges. The writ was denied. Prior to trial, the Commonwealth filed a motion in limine, requesting that Appellant not be permitted to introduce expert toxicological evidence of Appellant's voluntary intoxication at the time the offenses were committed. The motion was granted."
See "Answer to The Petition For Writ Of Habeas Corpus" [Docket Entry No. 10]*fn3: Exhibit "A" (April 28, 2000 Superior Court Opinion) at pp. 1-3. On July 9, 1999, Judge Georgelis sentenced Petitioner to twenty to forty years for attempted homicide. The aggravated assault merged with the attempted homicide for sentencing purposes, and no additional sentence was imposed for criminal conspiracy. See N.T. 7/9/99 at pp. 29-30.

  Petitioner did not file post-trial motions. See Commonwealth's Answer: Exhibit "A" (April 28, 2000 Superior Court Opinion) at p. 3.

  On July 29, 1999, Petitioner filed an appeal from the judgment of sentence in the Pennsylvania Superior Court. On appeal, he raised the following claims:
"1. The sentence imposed was excessive.
2. The court erred in denying appellant's writ for habeas corpus relief because no prima facie case for attempted homicide was made out at the preliminary hearing.
3. The evidence at trial was insufficient to sustain the conviction for attempted homicide.
4. The court erred in granting the Commonwealth's in limine motion and in prohibiting appellant from presenting evidence of his voluntary intoxication at trial."
Id. at p. 3.

  In an April 28, 2000 Opinion, the Superior Court rejected all four claims on the merits. Id. at p. 4.

  Petitioner sought discretionary review in the Supreme Court of Pennsylvania. Allocatur was denied on August 24, 2000. See Commonwealth's Answer: Exhibit "B" (August 24, 2000 Order).

  On March 21, 2001, Petitioner filed a pro se petition for collateral relief under the Pennsylvania Post Conviction Relief Act ["PCRA"], 42 Pa. C.S.A. § 9541 et seq. Counsel was appointed. On May 30, 2001, PCRA Counsel filed a Finley letter, asserting that there were no issues of arguable merit. See State Court Record: May 30, 2001 letter addressed to Judge Georgelis from Barry G. Goldman, Esq. [attachment to document identified in the right hand corner as page "27"].

  On June 19, 2001, the PCRA Court denied Mr. Byrnes' request for PCRA relief, without an evidentiary hearing. See State Court Record: June 19, 2001 PCRA Court Opinion [identified in the right hand corner as page "27"].

  Petitioner appealed the denial of PCRA relief. On appeal, he raised the following issues:
"(1) The trial erred in granting the Court's motion in limine and refusing to allow the defense expert to testify as to the effect of voluntary intoxication on the specific intent of appellant;
(2) The confession made by appellant should have been suppressed since defendant was held in custody for more than 6 hours before arraignment; and
(3) Trial counsel was ineffective as a result of his failure to:
(a) establish the defendant's arrest was illegal; and
(b) establish that appellant should have been tried as a juvenile."
See Commonwealth's Answer: Exhibit "C" (October 17, 2002 Superior Court Opinion) at p. 2.

  The Superior Court declined to reach the merits of the first two issues, concluding that the first had been fully litigated on direct appeal, and the second was waived because it could have been raised on direct appeal and was not. With regard to the ineffective assistance of counsel claims, the Superior Court rejected both as meritless. Id. at pp. 2-5.

  On October 25, 2002, Petitioner filed an application for reargument and/or reconsideration in the Superior Court. By Order dated December 18, 2002, the Superior Court denied the application. See Commonwealth's Answer: Exhibit "D" (December 18, 2002 Superior Court Order).

  Petitioner sought discretionary review in the Pennsylvania Supreme Court. Allocatur was denied on April 1, 2003. See Commonwealth's Answer: Exhibit "E" (April 1, 2003 Superior Court Order). On May 5, 2003, Petitioner signed and dated the instant habeas petition. It was filed in this Court on May 9, 2003. See Habeas Petition [Docket Entry No. 1].*fn4

As grounds for habeas relief, Petitioner presents the following issues:
1. "Denial of effective assistance of counsel. Petitioner avers that trial counsel was ineffective for failing to litigate a pretrial motion (suppression) motion. Many factors support this claim: Petitioner was arrested inside a family members home, without a warrant, in violation of the Fourth Amendment, to search the home. The arresting officers received invalid consent to search the home by an uneducated juvenile. The arresting officers never had probable cause to believe Petitioner was inside the home. After arrest, Petitioner gave a coerced confession to the crime. Petitioner at the time of his coerced confession was a juvenile, afraid, and didn't understand the nature of the charges. Because the Petitioner was a juvenile the arresting officers brought his mother as an `interested adult.' What the arresting officers failed to do was take steps to insure that the `interested adult' understood the Petitioner's rights. The coerced confession also was the result of an unnecessary delay in Petitioner's arraignment for eleven (11) hours."
2. "Petitioner avers that trial counsel was ineffective for failing to file a motion to the juvenile division for a `decertification hearing.' Petitioner was a juvenile at the time of his arrest and had the right to be heard by a juvenile judge to determine whether he was amendable to juvenile treatment."
See Habeas Petition at p. 9, and Memorandum In Support of Habeas Petition [Docket Entry No. 13] at pp. 5-11.
  On August 4, 2003, Petitioner sought leave to amend his habeas petition to add a third habeas claim. I granted this request by Order dated August 5, 2003. See Docket Entry Nos. 5 and 7. In his third habeas claim, Mr. Byrnes alleges:
"Plaintiff alleges that trial counsel was ineffective in violation of the Sixth Amendment when he failed to challenge a peremptory challenge made by the prosecutor when the prosecutor used a challenge to eliminate the only hispanic proseptive [sic] juror (#19 Mr. DeJesus) based on race in violation of BATSON and Plaintiff was also denied Equal Protection interpreted by the Supreme Court in Batson v. Kentucky, 106 S.Ct. 1712.
The Plaintiff started trial on May 15, 1999. Plaintiff went to trial with a co-defendant who is hispanic. The victim in the crime was a white male. Because Plaintiff had his trial with a hispanic co-defendant constitutes [sic] a inter-racial crime."
See Motion to Amend Habeas Petition [Docket Entry No. 5] at pp. 1-2.

  On September 8, 2003, the Respondents answered the habeas petition, as amended. They argue that Mr. Byrnes' habeas petition should be denied and dismissed without prejudice because "Petitioner unequivocally fails to meet and satisfy the exhaustion requirement." See Commonwealth's Answer at ¶ 6.

  Petitioner has filed a traverse to the Commonwealth's answer, conceding that his Batson claim is unexhausted, and arguing that his only remaining remedy is this habeas petition. Petitioner has also filed two motions: a motion for summary judgment and a motion for an evidentiary hearing. See Docket Entry Nos. 11, 12, and 14.


 I. Timeliness.

  The Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA" or the "Act"], signed into law on April 24, 1996, significantly amended the laws governing habeas corpus petitions.

  One of the amended provisions, 28 U.S.C. § 2244(d), imposes a one-year statute of limitations on state prisoners who seek federal habeas relief. A habeas petition must be filed within one year from the date on which the petitioner's judgment of conviction becomes final. See 28 U.S.C. § 2244(d)(1).*fn5 In the instant case, Mr. Byrnes' state conviction became final on November 24, 2000, when the time for seeking certiorari review in the United States Supreme Court (90 days) expired. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)("Therefore, a state court criminal judgment is `final' (for purposes of collateral attack) at the conclusion of review in the United States Supreme ...

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