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WENGER v. DESUTA

United States District Court, E.D. Pennsylvania


July 13, 2004.

LEONARD LEE WENGER
v.
SUPERINTENDENT DESUTA, et al.

The opinion of the court was delivered by: JAMES GILES, Chief Judge, District

ORDER

AND NOW, this ____ day of July, 2004, upon careful and independent consideration of the petition for a writ of habeas corpus, the answer thereto, and after a review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, and petitioner's objections, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DISMISSED;
3. A certificate of appealability if not granted; and
4. Petitioner's Motion to Object to the Recommendation for Dismissal of, and Request to Amend Petition of Habeas Corpus (Docket #12) is DENIED. In this motion petitioner argues that his second issue was misworded and, were he permitted to amend his submission, the legal issue would not be procedurally defaulted as found in the Report and Recommendation. He states that his amended issue is that his conviction violates the due process clause of the Sixth and Fourteenth Amendments because the prosecution failed to prove every element of the crime of aggravated assault. Petitioner argues that this claim was properly exhausted and, to support this contention, he includes an attachment ("Exhibit 3") that was allegedly provided to the state court along with his state PCRA petition. Assuming that the state court did receive this document, petitioner still has not properly exhausted his claim. Exhibit 3 demonstrates only that petitioner raised a claim for failure to present adequate evidence of aggravated assault under state law. Exhaustion requires that petitioner has fairly presented an issue to the state court. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). To be considered fairly presented a claim must be the "substantial equivalent" of that presented in the state court, and must require "the same method of legal analysis." Id. Here, petitioner only raised a state issue in his PCRA petition and only cited state authority for its support. Now he seeks to bring a federal claim before this court. Such claim was not fairly presented in his state petition and is not exhausted. Thus, the claim is procedurally defaulted and cannot be considered on the merits.

20040713

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