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July 30, 2004.

MARTIN L. DRAGOVICH, et al., Defendants.

The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge


AND NOW, this 30th day of July, 2004, upon careful and independent consideration of the petitioner's Petition for Writ of Habeas Corpus, and the respondents' Response to the Petition, and after review of the Report and Recommendation ("R&R") of the United States Magistrate Judge James R. Melinson, and the petitioner's Objections thereto, IT IS HEREBY ORDERED that:
(1) The petitioner's Objections are OVERRULED;
(2) The Report and Recommendation is ADOPTED, with the additional comments below;

  (3) The Petition for Writ of Habeas Corpus is DENIED and DISMISSED without an evidentiary hearing; and

  (4) The petitioner has failed to make a showing of a denial of a constitutional right; thus, a certificate of appealability is DENIED.

  On July 19, 2002, in the Court of Common Pleas of Philadelphia County, the petitioner was convicted of possession of a controlled substance with intent to deliver, criminal use of a communication facility, delivery of a controlled substance and criminal conspiracy. The petitioner represented himself during the jury trial, with Thomas McGill acting as backup counsel. The petitioner was sentenced on October 3, 2002 to a term of five to ten years.

  On October 24, 2002, the petitioner's direct appeal counsel, Mitchell Scott Strutin, filed a timely notice of appeal on behalf of the petitioner. The Superior Court affirmed the judgment on December 16, 2003. The petitioner did not petition the Pennsylvania Supreme Court for allowance of appeal, and he did not file a Post-Conviction Relief Act ("P.C.R.A.") petition.

  The petitioner raises the following three claims in his pro se Petition for Writ of Habeas Corpus: (1) appellate counsel on direct appeal was ineffective, in that there were numerous arguments he did not raise; (2) the petitioner was denied the right to direct appeal; and (3) Pennsylvania Rule of Criminal Procedure 600(G) is unconstitutional. Pet. at 9-10.

  The Magistrate Judge's R&R recommended that the petition be dismissed because the petitioner's claims are unexhausted. The Court adopts the R&R but writes separately to address the argument raised in the petitioner's objections to the R&R. The petitioner argues that he raised the issues of ineffectiveness of appellate counsel and denial of direct appeal to the Superior Court of Pennsylvania in his motion for appointment of new appellate counsel. The Superior Court denied the motion on August 22, 2003. The petitioner argues that the order was a final order and the only review available was discretionary review in state Supreme Court, which he is not required to seek.

  The cases upon which the petitioner relies do not support his argument. The Supreme Court in Dennett v. Hogan, 414 U.S. 12, 13 (1973) simply remanded a case in which a Court of Appeals judge had not realized that the petitioner requested counsel. In Commonwealth v. Sliva, 204 A.2d 455, 456 (Pa. 1964), the court held that a criminal defendant has a right to counsel for his appeal to Superior Court. These cases do not show that a motion for appointment of new appellate counsel can exhaust habeas claims.

  The exhaustion requirement is based upon a notion of comity. The Supreme Court stated, "Comity thus dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief." O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (citations omitted). The question here is whether the petitioner's motion to the state Superior Court for appointment of new appellate counsel should be considered as providing the state court with that opportunity.

  The Court finds that the motion does not satisfy the exhaustion requirement. Although the grounds for his request for new appellate counsel are the same as for his habeas claim of ineffective assistance, the state Superior Court did not treat the request as a claim of ineffectiveness. The court applied state court cases, except for Jones v. Barnes, 463 U.S. 745 (1983), which holds that defense counsel is not constitutionally required to raise every nonfrivolous claim. The state court cases, and the court order denying the motion, do not rely upon Strickland v. Washington, 466 U.S. 668 (1984), or federal law at all.*fn1 The petitioner did not exhaust his claims, because the state courts did not have an opportunity to review his federal law claims.

  The petitioner's claim that he was effectively denied his right to direct appeal because appellate counsel failed to raise certain issues is similarly not exhausted. The Petition for a Writ of ...

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