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July 27, 2004.

MATTHEW K. KEMP, SR., Petitioner,
JEFFERY BEARD, et al. Respondent.

The opinion of the court was delivered by: CHARLES SMITH, Magistrate Judge


Currently pending before this Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a petitioner incarcerated in the State Correctional Institute at Waynesburg, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.


  On October 24, 1997, following a jury trial before the Honorable Rayford Means of the Philadelphia Court of Common Pleas, petitioner was found guilty of two counts of robbery, criminal conspiracy and violations of the Uniform Firearms Act. Judge Means initially imposed sentence after the verdict but subsequently vacated the sentence. On April 23, 1998 petitioner entered a plea of guilty to charges pending in an unrelated case. The two cases were consolidated for sentencing. In the instant case, Judge Means sentenced petitioner to consecutive sentences of ten to twenty years for the two counts of robbery and five to ten years for criminal conspiracy. Petitioner filed a timely appeal to the Pennsylvania Superior Court. Terry McCallum, Esquire, the trial counsel appointed to petitioner, continued to represent petitioner on direct appeal. In the appeal, petitioner raised a claim of trial court error based on the trial judge's questioning of a witness. On June 15, 1999, the Pennsylvania Superior Court affirmed the judgments of sentence, finding that the opinion of Judge Means fully and correctly disposed of the issue. Commonwealth v. Kemp, 742 A.2d 206 (Pa. Super 1999). Petitioner did not seek discretionary review by the Pennsylvania Supreme Court.

  On January 24, 2001, petitioner filed a pro se petition for state collateral review pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A § 9541, et seq, alleging unlawful sentence and ineffective assistance of trial counsel. The court appointed David Rudenstein, Esquire to represent petitioner. Upon reviewing petitioners pro se filing, Mr. Rudenstein filed a motion to withdraw from the case, because he concluded that the PCRA petition was time-barred. Following an independent review of the record, the PCRA court concluded that the petition was untimely, depriving the court of jurisdiction. Accordingly, the court dismissed the petition and granted counsel's motion to withdraw. Petitioner appealed pro se. On August 14, 2003, the Superior Court of Pennsylvania affirmed the PCRA court's dismissal of the petition as untimely. Commonwealth v. Kemp, 833 A.2d 1146 (Pa. Super 2003). Subsequently, on February 24, 2004 the Pennsylvania Supreme Court denied petitioner's request for allowance of appeal. Commonwealth v. Kemp, 844 A.2d 551 (Pa. 2004).

  On April 9, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus. In this document, petitioner sets out the following claims:
1. The sentence imposed was unlawful because it exceeded the maximum sentence allowed by law. 2. Trial/direct appeal counsel and post-conviction counsel were ineffective for not pursuing the claims raised herein this petition, before state court.
3. Trial counsel was ineffective based upon his failure to investigate an eyewitness and his failure to adequately prepare for trial.
Respondent now alleges that all the issues raised in this petition are procedurally defaulted. Furthermore, respondent alleges that petitioner fails to demonstrate that he can overcome the default. Having considered both parties' arguments, we proceed to a discussion of the matter before us.


  All of petitioner's claims suffer from procedural default, which precludes our consideration of the merits.*fn1 The procedural default barrier, in the context of habeas corpus, precludes federal courts from reviewing a state petitioner's habeas claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553, reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991). "In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. This rule applies regardless of whether the state law relied upon is substantive or procedural, id., and rests in part on respect for the integrity of procedures "employed by a coordinate jurisdiction within the federal system." Wainwright v. Sykes, 433 U.S. 72, 88, 97 So. Ct. 2497, 2507, reh'g denied, 434 U.S. 880, 98 S.Ct. 241 (1977). Although the issue of procedural default is best addressed by the state courts in the first instance, a federal court may dismiss a petition as procedurally barred if state law would unambiguously deem it defaulted. Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995).

  In the case at bar, respondent contends that all of petitioner's claims are procedurally defaulted because they were never exhausted in state court and could not be so now. Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). Generally, in the case of an unexhausted petition, the federal courts should dismiss it without prejudice, otherwise, they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman, 501 U.S. at 735 n. 1; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). The logic underlying this rule is that "[i]n the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court." Coleman, 501 U.S. at 732.

  None of petitioner's claims were ever fairly presented to the state courts, thereby branding them unexhausted for purposes of federal habeas review. Petitioner failed to raise any of the current claims alleged in the instant habeas corpus petition on direct appeal. The only claim petitioner raised on direct appeal was trial error based on the judge's questioning of a witness, which is not a claim in the instant petition. Thus, petitioner failed to exhaust the claims in the instant petition on direct appeal.

  Furthermore, such claims were not exhausted through any post-conviction proceeding. Although petitioner filed a PCRA petition on January 24, 2001, alleging all the claims raised in the instant habeas petition, the PCRA court dismissed the petition as untimely under the PCRA statute. 42 Pa. Cons. Stat. § 9545(b) (1998). This application of state court's procedural rule constitutes an "independent and adequate" ground for barring federal review of petitioner's habeas petition.

  The Pennsylvania Supreme Court has conclusively established that the one-year statute of limitations acts as a jurisdictional bar and is not subject to equitable tolling. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). Accordingly, any current attempt by petitioner to file a second PCRA petition raising these claims would certainly be deemed untimely. Because petitioner cannot now return to the Pennsylvania courts, the multiple unexhausted claims become procedurally defaulted for purposes of habeas review.

  Findings of procedural default do not automatically foreclose all further federal review. To survive procedural default in the federal courts, the petitioner must either "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

  While petitioner does not allege fundamental miscarriage of justice, he does put forth two arguments for the cause and prejudice exception. The cause and prejudice analysis embraces two separate elements. A demonstration of cause sufficient to survive dismissal "must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the state's procedural rule." Caswell v. Ryan, 953 F.2d 853, 862 (3d Cir.), cert. denied, 504 U.S. 944, 112 S.Ct. 2283 (1992) (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)); see also Jones v. Frank, 28 F. Supp.2d 956, 963 (E.D. Pa. 1998), aff'd, 202 F.3d 254 (3d Cir. 1999), cert. denied, 529 U.S. 1088, 120 S.Ct. 1720 (2000). Once cause is shown, petitioner bears the additional burden of proving some resulting prejudice, i.e. that errors at trial ...

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