United States District Court, E.D. Pennsylvania
July 16, 2004.
COMMONWEALTH OF PENNSYLVANIA, et al.
The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ
of habeas corpus filed by a state prisoner pursuant to
28 U.S.C. § 2254. On December 3, 1998, following a bench trial in the Court
of Common Pleas for Philadelphia County, the petitioner was
convicted of robbery, carrying a firearm on a public street and
numerous other offenses related to his having stolen a Lexus GS
300 on September 4, 1997. The petitioner was sentenced to a term
of incarceration of five to ten years; he was also given a
concurrent probationary sentence. He is currently incarcerated in
a state correctional institution.
In the habeas petition, the petitioner raises the following
eight claims. First, his conviction was obtained by use of a
coerced confession. Second, his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), were violated. Third, his trial
counsel rendered ineffective assistance. Fourth, his trial
constituted a violation of his double jeopardy clause rights.
Fifth, the prosecution withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963). Sixth, the police
violated his Fifth Amendment right not to incriminate himself. Seventh, his
conviction was obtained by use of evidence obtained in violation
of his Fourth Amendment rights. Finally, his conviction should be
vacated as a result of the numerous violations of his rights that
he complains about in his prior claims.
The District Attorney for Philadelphia County has responded to
the habeas petition. The District Attorney argues that the habeas
petition should be dismissed because the petitioner has not
exhausted his state remedies with respect to any of his claims
and because he still has time to present his claims to the state
courts. For the reasons which follow, the court agrees and will
recommend that the habeas petition be dismissed.
Exhaustion of state remedies is required before a federal court
can consider the merits of a habeas petition. See Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing
28 U.S.C. § 2254(b)(1)(A) and Toulson v. Beyer, 987 F.2d 984 (3d Cir.
1993)). In order to exhaust state remedies, the petitioner must
have presented each of his claims to all levels of the state's
courts, that is, to the trial court, to the state's intermediate
appellate court and to the state's highest court. See Evans v.
Court of Common Pleas, Delaware County, 959 F.2d 1227, 1230
(1992). Thus, a petitioner cannot exhaust state remedies simply
by presenting his claims to the state's highest court in a
petition for discretionary review. See Castille v. Peoples
489 U.S. 346, 351 (1989).
After being convicted, the petitioner did pursue a direct
appeal. In the Superior Court of Pennsylvania, the petitioner
only presented two claims: (1) the evidence was insufficient to
sustain his firearm convictions because the firearm in his
possession was inoperable; and (2) the trial court erred in imposing concurrent
probationary sentences for his convictions on charges of simple
assault, recklessly endangering another person, unauthorized use
of a motor vehicle and making terroristic threats. See
Commonwealth v. Sumter, No. 1139 EDA 2002, slip op. at 2 (
Pa. Super. Oct. 6, 2003). After the Superior Court rendered its
decision, the petitioner sought allowance of appeal from the
state supreme court. The state supreme court denied allowance of
appeal on February 24, 2004. The petitioner did not then seek
certiorari from the United States Supreme Court.
It is apparent that neither of the claims the petitioner raised
on direct appeal is the same as any of the petitioner's habeas
claims. Thus, the court must conclude that the petitioner did not
exhaust his state remedies on direct appeal with respect to any
of his habeas claims.*fn1 Because the petitioner has not
exhausted his state remedies with respect to any of his claims,
the court should not address his claims and, instead, should
dismiss the habeas petition.
The petitioner has not yet pursued relief under Pennsylvania's
Post Conviction Relief Act, 42 Pa. C.S.A. § 9541 et seq.
("PCRA"). It is through a PCRA petition that the petitioner could
seek to exhaust state court remedies. Although the PCRA has a
one-year statute of limitations, it just began to run for the
petitioner on May 24, 2004, the date his conviction became final on direct review.*fn2
See 42 Pa. C.S.A. § 9545(b)(1), (3). Thus, the petitioner has
until May 25, 2005 to file a PCRA petition.*fn3 In these
circumstances, it is appropriate to dismiss his habeas petition
and allow the petitioner to seek PCRA relief.*fn4
The court will also consider whether to recommend granting a
certificate of appealability ("COA"). Because the court has
disposed of the petition on the ground that the petitioner has
failed to exhaust his state court remedies, in order for the
petitioner to obtain a COA, he must show "that jurists of reason
would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Slack v. McDaniel,
529 U.S. 473, 484 (2000). In Slack, the Supreme Court went on to explain
Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the
district court erred in dismissing the petition or
that the petitioner should be allowed to proceed
further. In such a circumstance, no appeal would be
Id. Further, the Supreme Court indicated that, since the
petitioner must make showings with respect to both the procedural
issue and the underlying, constitutional issue, a court may
resolve the COA question if either showing is lacking. Id. at
The court has found that the petitioner has not exhausted any
of his habeas claims on direct appeal. This conclusion is based
upon well-established precedent. The court has also found that
the petitioner can still file a timely PCRA petition in
Pennsylvania's courts in an effort to exhaust state court
remedies. This conclusion is based on a plain reading of the PCRA
statute. In the court's view, reasonable jurists would not debate
these conclusions and would concur in the decision to dismiss the
habeas petition based on the lack of exhaustion.
The court's recommendation follows. RECOMMENDATION
AND NOW, this day of July, 2004, for the reasons contained in
the preceding Report, it is hereby RECOMMENDED that the petition
for a writ of habeas corpus be DISMISSED. It is further
RECOMMENDED that a certificate of appealability not be granted. ORDER
AND NOW, this day of, 2004, after careful and independent
consideration of the petition for a writ of habeas corpus, the
response thereto and after review of the Report and
Recommendation of Diane M. Welsh, United States Magistrate Judge,
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; and
3. A certificate of appealability is not granted.