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United States District Court, E.D. Pennsylvania

July 16, 2004.


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


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 that:

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 warranted.
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 484-85.

  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.

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