The opinion of the court was delivered by: JAMES MELINSON, Chief Magistrate Judge
REPORT AND RECOMMENDATION
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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 ...