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May 26, 2004.


The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge


Presently before the Court is a Petition for Writ of Habeas Corpus filed by Mel Johnson pursuant to 28 U.S.C. § 2254. Petitioner is currently incarcerated at the State Correctional Institution in Frackville, Pennsylvania. For the reasons which follow, the habeas petition should be denied and dismissed.


  Following a trial in the Court of Common Pleas of Philadelphia, petitioner was convicted of aggravated assault and recklessly endangering another person after he hit the victim, his girlfriend, with his car and caused her serious injury. See Commonwealth v. Johnson, No. 2490 EDA 2001, Mem. Op. at 1 (Pa. Super. filed Oct. 24, 2002); Commonwealth v. Johnson, No. 2742 Phila. 1997, Mem. Op. at 8 (Pa. Super. filed Aug. 26, 1998). Petitioner was sentenced to serve an aggregate term of ten to twenty (10-20) years in prison. See Pa. Super. Ct. Op. filed 10/24/02, at 1.

  Petitioner filed a direct appeal to the Superior Court, and that appeal was dismissed without prejudice on February 7, 1997, for failure to file a brief. Id. Petitioner subsequently filed a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-46, which resulted in the reinstatement of his appellate rights nunc pro tunc, and on August 26, 1998, the Pennsylvania Superior Court affirmed the judgment of sentence.*fn2 See Pa. Super. Ct. Op. filed 10/24/02, at 1 (citing Commonwealth v. Johnson, 726 A.2d 412 (Pa. Super. 1998) (table)); Pa. Super. Ct. Op. filed 8/26/98, at 8. On March 30, 1999, the Supreme Court of Pennsylvania denied allowance of appeal. See Pa. Super. Ct. Op. filed 10/24/02, at 1 (citing Commonwealth v. Johnson, 1999 WL 172451 (Pa. Super. Mar. 30, 1999)).

  Thereafter, petitioner filed a PCRA petition, and following the appointment of counsel, counsel filed an Amended PCRA Petition. In the Amended PCRA Petition, petitioner "raised a single claim of ineffectiveness of counsel, based on counsel's failure to raise a challenge to the sufficiency of the evidence." See Pa. Super. Ct. Op. filed 10/24/02, at 2. "Specifically, [petitioner] contended that the prosecution did not establish that [petitioner] had the mens rea required to sustain the conviction for aggravated assault." Id. at 2; see also Am. PCRA Pet. filed 5/22/00, at 2. On October 24, 2002, following the PCRA Court's denial of the Amended PCRA Petition, the Superior Court found petitioner's claim without merit and affirmed the denial of PCRA relief. See Pa. Super. Ct. Op. filed 10/24/02, at 3-4. Pennsylvania's Supreme Court denied allowance of appeal on April 9, 2003. See Commonwealth v. Johnson, 821 A.2d 586 (Pa. Apr. 9, 2003) (table).

  Petitioner thereafter filed the present habeas petition alleging the following grounds for relief: (1) the conviction and sentence is not supported by sufficient evidence since "the facts and evidence in this case . . . demonstrate[] the victim was not injured by an automobile;"*fn3 and (2) although the charges against petitioner "were based upon reckless conduct," the prosecutor improperly argued "alternate theories including intentional conduct, that was not even charged." See Hab. Pet. at 9-10. The Response to the habeas petition alleges that petitioner's present claims are procedurally barred, and in any event, are without merit. See Resp. to Hab. Pet. at 15-21.


  The failure to "fairly present" federal claims in state court, where no state remedy remains available, "bars the consideration of those claims in federal court by means of habeas corpus because they have been procedurally defaulted." Cristin v. Brennan, 281 F.3d 404, 410 (3d Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 731 (1991)). cert. denied, Cristin v. Wolfe, 537 U.S. 897 (2002). "By refusing to consider claims that have been procedurally defaulted in state court, [the procedural default] doctrine `encourage[s] state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.'" Cristin, 281 F.3d at 410 (quoting Rose v. Lundy, 455 U.S. 509, 518-19 (1982)).

  In Coleman v. Thompson, 501 U.S. at 750, the Supreme Court explained the exceptions to the procedural default doctrine:
In all cases in which a state prisoner has defaulted his federal claims in state court[,] . . . federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate the failure to consider the claims will result in a fundamental miscarriage of justice.
See Cristin, 281 F.3d at 409 n.5 (quoting Coleman, 501 U.S. at 750). To satisfy the cause and prejudice requirement, "a petitioner must demonstrate some objective factor external to the defense that prevented compliance with the state's procedural requirements." Cristin, 281 F.3d at 412 (quoting Coleman, 501 U.S. at 753): see also Werts v. Vaughn, 228 F.3d 178, 192-93 (3d Cir. 2000) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)), cert. denied, 532 U.S. 980 (2001). The "cause" alleged must be "something that cannot fairly be attributed to" the petitioner. Coleman, 501 U.S. at 753.

  In the alternative to showing cause and prejudice, a petitioner must show that failure to review the federal habeas claim will result in a "miscarriage of justice." See Werts, 228 F.3d at 193. "Generally, this exception will apply only in extraordinary cases, i.e., `where a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (quoting Murray, 477 U.S. at 496). "To show a fundamental miscarriage of justice, a petitioner must demonstrate that he is actually innocent of the crime . . . by presenting new evidence of innocence." Cristin, 281 F.3d at 412 (quoting Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001) (citations omitted)).

  In the present case, petitioner failed to fairly present his present claims to the Pennsylvania courts on direct appeal or on post-conviction appeal. See, e.g., Pa. Super. Ct. Op. filed 10/24/02, at 2-3; Pa. Super. Ct. Op. filed 8/26/98, at 8-9. Furthermore, petitioner no longer has a remedy by which the state courts could consider his present claims because he is now barred from raising those claims in another PCRA Petition. See 42 Pa. C.S.A. § 9545(b)(1). In particular, a subsequent PCRA petition would now be time-barred under the PCRA's one-year time limit on filing petitions, including second or subsequent petitions.*fn4 See Walker, 2003 WL 115951, at * 1. Where "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas." Coleman, 501 U.S. at 735 n.*.

  Thus, petitioner's claims are procedurally defaulted, and since petitioner fails to show "cause and prejudice" or a "fundamental miscarriage of justice" to excuse his underlying default, the Court may not consider the merits of petitioner's defaulted claims.*fn5 See Cristin, 281 F.3d at 409 n.5 (quoting Coleman,. 501 U.S. at 750); see also Werts, 228 F.3d at 194. Accordingly, the petition should be denied and dismissed.

  Pursuant to Local Appellate Rule 22.2 of the Rules of the United States Court of Appeals for the Third Circuit, at the time a final order denying a habeas petition is issued, the district judge is required to make a determination as to whether a certificate of appealability ("COA") should issue. Under the AEDPA, "a COA may not issue unless `the applicant has made a substantial showing of the denial of a constitutional right.'" Slack v. ...

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