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July 16, 2004.

ONZIE TRAVIS, Petitioner
ROBERT MEYERS, et al., Respondents.

The opinion of the court was delivered by: JAMES MELINSON, Chief Magistrate Judge


Presently before this court is a pro se petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner, Onzie Travis, is currently on parole and resides at 249 West Abbotsford Avenue, Philadelphia, Pennsylvania. For the reasons which follow, this court recommends that the petition be DENIED with prejudice.


  On June 1, 1995, in the Court of Common Pleas of Philadelphia County, Travis pled guilty to delivery of a controlled substance and criminal conspiracy. In exchange for this plea, the Commonwealth agreed to nolle pros the remaining charges against him. On July 31, 1995, prior to sentencing, Travis withdrew his guilty plea and his case was listed for trial.

  On November 6, 1995, following a jury trial, Travis was convicted of delivery of heroin. Travis was sentenced to six (6) to fifteen (15) years' imprisonment on November 21, 1995. On August 27, 1996, his appeal from the judgment of sentence was dismissed by the Superior Court of Pennsylvania for failure to file a brief. Commonwealth v. Travis, No. 4265 Philadelphia 1995. The Supreme Court of Pennsylvania denied allocatur on April 28, 1997. Commonwealth v. Travis, No. 803 E.D. Allocatur Docket 1996.

  On June 9, 1997, Travis filed his first petition for a writ of habeas corpus. This petition was summarily dismissed because it was clear from the face of the petition that Travis had failed to exhaust his state remedies. Travis v. Mazurkiewicz, et al., 97-CV-3925 (J. Waldman, July 8, 1997). The United States Court of Appeals for the Third Circuit denied a certificate of appealability on January 29, 1998. Travis v. Mazurkiewicz, et al., Civil Action No. 97-1594.

  On March 17, 1998, pursuant to the direction of the federal court, Travis filed a pro se petition for collateral review pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541 et seq. Counsel was appointed to represent Travis in these collateral proceedings; however, at Travis's request, counsel was relieved and Travis was permitted to proceed pro se. On April 13, 1999, the Commonwealth agreed that Travis's direct appeal rights should be reinstated nunc pro tunc and counsel was appointed to represent Travis. On May 27, 1999, Travis was again permitted to proceed pro se and counsel was permitted to withdraw.

  Travis perfected his appeal and a briefing schedule was issued. Thereafter, Travis filed a motion to defer briefing and a motion to correct the certified record. On July 20, 1999, the Superior Court vacated its briefing schedule and remanded the case to the trial court to consider the motion to correct the record. The trial court supplemented the record and provided Travis with transcripts from his guilty plea, trial, and sentencing hearings. On October 7, 1999, Travis then filed a brief raising twenty-one issues for review. The Commonwealth filed its brief on February 11, 2000. Travis filed a reply on February 23, 2000.*fn1 The Superior Court entered a judgment order on September 27, 2000, again remanding this matter to the trial court because "the record does not include, and [Travis] has apparently not been provided with, a transcript of the voir dire or the proceeding granting the withdrawal of his guilty plea." Commonwealth v. Travis, No. 1510 EDA 1999 (Sept. 27, 2000, slip op. at 2). Accordingly, the case was "remanded to the trial court for thirty days in order to provide [Travis] with the necessary transcripts or, if the proceedings were never recorded to so advise, and to resolve [Travis's] outstanding motions to correct the record. Id. On March 2, 2001, the Superior Court again asked the trial court to advise of the status of the transcripts. By order dated March 12, 2001, the trial court advised the Superior Court that it had obtained a transcript of the plea withdrawal proceedings and forwarded it to Travis. The trial court further advised that there was no transcript available of the voir dire proceedings. On April 3, 2001, the trial court denied Travis's motion to correct the record.

  The case was then returned to the Superior Court and a new briefing schedule was issued. Travis filed a supplemental brief in which he raised four additional issues. The Commonwealth filed its brief addressing the merits of the claims raised. Travis then filed a "Supplemental Letter Reply Brief." The Superior Court affirmed the judgment of sentence in a memorandum opinion on January 3, 2003. Commonwealth v. Travis, 797 A.2d 377 ( Pa. Super. 2002) (table). On July 2, 2002, the Supreme Court of Pennsylvania denied Travis's request for allowance of appeal. Commonwealth v. Travis, No. 54 E.D. Allocatur Docket 2002.

  Thereafter, Travis filed the instant petition in which he claims that the Superior Court erred: 1) in finding no prejudice resulting from the failure to furnish transcripts within a reasonable time; 2) in holding that his falsification of transcripts claim was without merit; 3) in holding that there was no prosecutorial misconduct or ineffective assistance of counsel; 4) in permitting the Commonwealth to address issues that it had not addressed in its initial brief; 5) in holding that curative instructions were adequate when voir dire was missing; and 6) in holding that his sentence was not vindictive. The Commonwealth denies that Travis is entitled to habeas relief because the claims raised provide no basis for federal relief, are procedurally defaulted, or are without merit. Travis has also filed a traverse addressing various issues raised by the Commonwealth's response and presenting further argument in support of his claims.


  Absent exceptional circumstances, a federal court will not entertain the claims of a habeas petitioner unless he has exhausted all available state remedies. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 845-848 (1999); Vasquez v. Hillery, 474 U.S. 254 (1986); Picard v. Connor, 404 U.S. 270 (1971). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). The policy behind the total exhaustion doctrine is rooted in the notion of comity: the state must be given the initial opportunity to pass upon and correct the alleged violations of the petitioner's constitutional rights. O'Sullivan, 526 U.S. at 844-45; Picard, 404 U.S. at 275. Exhaustion does not require that the highest state court rule on the merits of a petitioner's claim, but only that said court be given the opportunity to do so. Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984). To satisfy the exhaustion requirement, the petitioner must fairly present every claim included in a federal habeas petition to each level of the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995); O'Sullivan, 526 U.S. at 846-47; Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996).

  In order to be eligible for federal habeas relief, Williams must establish that the state court's adjudication of the merits of his claims: "1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d) (1), (d)(2); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1504 (2000). In addition, any factual determinations made by the state court shall be presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e).

  The United States Supreme Court in Williams set forth a two-part test for analyzing claims under § 2254(d) making it clear that the "contrary to" and "unreasonable application" clauses of § 2254(d) have independent meaning. First, under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently from the Supreme Court on a set of materially indistinguishable facts. Id. at 1519. Second, under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 1520. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was unreasonable." Id. "A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant ...

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