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KEMPER v. VARNER

ANTHONY J. KEMPER, Petitioner
v.
BEN VARNER, Warden, and THE PENNSYLVANIA ATTORNEY GENERAL, Respondents.



The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge

MEMORANDUM AND ORDER

On August 7, 2002, the petitioner, an inmate incarcerated at the Pennsylvania State Correctional Institution at Smithfield ("SCI-Smithfield"), Huntingdon, Pennsylvania, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1). The petitioner challenges his criminal conviction and sentencing in the Luzerne County Court of Common Pleas. He claims ineffective assistance of counsel, and seeks to have his guilty plea set aside.

The petitioner applied to proceed in forma pauperis, which was granted, and a show cause order was issued on August 28, 2002. (Doc. Nos. 2, 3). A response to the petition and supporting documentation were filed on January 24, 2003, and February 11, 2003, respectively. (Doc. Nos. 9, 11). The respondent filed a supplemental response on May 4, 2004. (Doc. No. 16). The petition will now be given preliminary consideration pursuant to Rule 4 of the Rules Governing Section 2254 cases, 28 U.S.C. foll. § 2254. I. BACKGROUND

  On May 2, 1995, the petitioner pled guilty to 3 counts of criminal homicide, 1 count of burglary, and 2 counts of theft by unlawful taking. Subsequent to the plea colloquy, he was sentenced on the same date to 3 consecutive life imprisonment terms on the homicide counts; 10 to 20 years imprisonment on the burglary charge, to run consecutively to the 3 life terms, and 2 terms of 3½ to 7 years imprisonment on the theft by unlawful taking charges, also to run consecutively to the other terms.

  On May 9, 1995, the petitioner wrote to his court appointed attorney, and advised him that he wished to file a Post Conviction Relief Act ("PCRA") petition, and a direct appeal, and that he wished to withdraw his guilty plea. Counsel replied that he would not take any further action on the matter because the petitioner had waived his right to withdraw his guilty plea as part of the plea bargain.*fn1 (Doc. No. 1, attachments).

  On June 24, 1996, the petitioner filed a pro se PCRA motion with the trial court in which he alleged ineffective assistance of counsel, and that the guilty plea was unlawfully induced. The trial judge appointed new counsel to represent the petitioner. On February 14, 1997, the trial court granted the petitioner's motion to withdraw the PCRA petition. (Doc. No. 11, Luzerne County Court of Common Pleas Record, case number 1995-CR-0000816).

  On July 20, 2001, the petitioner filed an application for an appeal nunc pro tunc with the trial court in which he alleged that his direct appeal rights had expired due to ineffective assistance of counsel. The trial court denied the application on August 1, 2001. On or about September 20, 2001, the petitioner filed an appeal nunc pro tunc with the Pennsylvania Superior Court wherein he sought reinstatement of his appeal rights. The petitioner again argued that his direct appeal rights expired as a result of ineffective assistance of counsel. By Opinion and Order dated July 8, 2002, the Superior Court denied the appeal. The Court concluded that the only avenue available to the petitioner to challenge his conviction and sentence, including the claims of ineffective assistance of counsel and a guilty plea unlawfully induced, was to have filed a timely PCRA petition, which the petitioner did not do. (Doc. No. 11, Memorandum and Order of the Pennsylvania Superior Court dated July 8, 2002). The petitioner did not file an appeal of the Superior Court's decision. This federal habeas corpus petition was filed on August 7, 2002.

  In the original response, the respondent argued that the petition should be dismissed for failure to exhaust state court remedies. Based upon inaccurate representations made by the petitioner regarding the procedural history of this case,*fn2 the court erroneously concluded that the petitioner had exhausted state court remedies, and so directed the respondent on March 30, 2004, to fully brief the legal issues raised by the petitioner. On May 4, 2004, the respondent filed a supplemental response which maintains that the petitioner cannot state an ineffective assistance of counsel claim pursuant to Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the respondent argues that the petitioner cannot show that any prejudice to him resulted from an alleged failure by counsel to file a direct appeal because the petitioner has not stated, nor can he state, any cognizable claim. (Doc. No. 16).

  II. DISCUSSION

  The petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254. Section 2254(b)(1) requires that before bringing a petition under that section, the state prisoner must first exhaust available state remedies. In determining whether a state prisoner has preserved an issue for consideration in a federal habeas corpus petition, the court must determine not only whether the prisoner has exhausted his state remedies, but also whether he has "fairly presented" his claims to the state court. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). As a result, with only limited exceptions, federal courts will refrain from addressing the merits of any claim raised by a habeas petitioner that was not properly exhausted in state court. Coleman v. Thompson, 501 U.S. 722, 750 (1991). "The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights." Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1997). The burden rests with the petitioner to establish that his claims have been exhausted in the state courts. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).

  Where state procedural rules bar a petitioner from seeking further relief in the state courts, "the exhaustion requirement is satisfied because there is an absence of available State corrective process, 28 U.S.C. § 2254(b)." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). This does not mean, however, that the federal courts can, without more, determine the merits of the petition. Instead, where claims are deemed exhausted because of a state procedural bar, they are considered procedurally defaulted, and federal courts may not consider their merits unless the petitioner "establishes `cause and prejudice' or a `fundamental miscarriage of justice' to excuse the default." Id. To the extent that the petitioner may now be procedurally barred from doing so, he must establish "cause and prejudice" or a "fundamental miscarriage of justice" to excuse the default. In order to establish "cause", the Supreme Court has stated that a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rules." Murray v. Carrier, 477 U.S. 478 (1986). For instance, the Court noted that where a factual or legal basis for a claim was not reasonably available to counsel or where interference by government officials made compliance impracticable, "cause" for the procedural default would be established. Id.

  The petitioner has represented to this court that he filed a PCRA petition in the trial court in which he raised the issues of "[D]enial of post-sentence motions due to ineffective assistance of counsel" and "unknowing and involuntary plea bargain" and that the petition was "denied."(Doc. No. 1, ¶¶ 11 (a)(3) and (5)). Our review of the submitted record and Luzerne County Docket Report on the petitioner's case indicates that the PCRA petition was not denied, but that the trial court granted a motion to withdraw the petition on February 14, 1997. (Doc. No. 11).

  Furthermore, the record reflects that in his brief in support of his appeal of the trial court's denial of his application for nunc pro tunc appeal, the petitioner represented to the Pennsylvania Superior Court that:
. . . [PCRA] counsel did not amend the Appellant's [pro se] PCRA which was subsequently dismissed by the court below. Counsel further failed to file an appeal from the dismissal of the PCRA . . .
. . . [A]ppellant filed a PCRA petition claiming counsel was ineffective in failing to file post sentence motions. Counsel was appointed, who never filed an amended PCRA petition to reflect that claim of the Appellant not making a knowing and intelligent waiver of his appellate rights . . . The Appellant's PCRA was subsequently dismissed by the court below. No appeal from the judgment of the PCRA court was taken . . .
(Doc. No. 11, Brief For The Appellant, pp. 6, 9).

  As indicated above, the burden rests with the petitioner to establish that his claims have been exhausted in the state courts. The petitioner has not produced a record of the alleged dismissal of the PCRA petition. The Luzerne County Docket Report, however, does plainly indicate that the PCRA petition was withdrawn. Therefore, based on the record before the court, the petitioner has not established that his claims have been exhausted in the state courts. As a result, the claims ...


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