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FRANK v. SUPERINTENDENT TENNIS

June 27, 2005.

SAMUEL FRANK, Jr., Petitioner,
v.
SUPERINTENDENT TENNIS, Respondent.



The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge

MEMORANDUM

I. Introduction.

Petitioner, Samuel Frank, Jr., an inmate at the Rockview State Correctional Institution in Bellefonte, Pennsylvania, commenced this action with a pro se petition for writ of habeas corpus filed pursuant to the provisions of 28 U.S.C. § 2254. (Doc. 1). In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), an Order was issued advising the Petitioner that: (1) he could have the document ruled on as filed, or (2) withdraw his petition and file one, all-inclusive § 2254 petition. Petitioner responded by submitting a Notice of Election in which he opted to have his petition considered as filed. A show cause order was issued, an amended petition was filed, a response and a memorandum in opposition to the petition, along with exhibits were filed, and Petitioner filed a traverse. The petition is presently ripe for disposition, and for the reasons that follow, the petition will be denied.

  II. Background.

  The facts are undisputed. On October 22, 1990, Petitioner pled guilty to the first-degree murder of his mother. Petitioner admitted that on the evening of February 27, 1989, while he was staying at his mother's home, he left the home and walked a quarter of a mile to a cabin where he used a knife to pick the lock of the cabin door. Petitioner stole a shotgun and shells from the cabin, then returned to his mother's home, loaded the shotgun, entered the bedroom where his mother was sleeping, and fatally shot her in the head. After the shooting, Petitioner took his mother's purse and car, and drove to Berwick, Pennsylvania, where he was ultimately apprehended. On February 21, 1991, Petitioner was sentenced to life imprisonment. Thereafter, he filed a petition for relief under Pennsylvania's Post Conviction Relief Act ("PCRA") on February 22, 1994, alleging ineffective assistance of trial counsel as well as other procedural and constitutional errors. Petitioner was appointed PCRA counsel, and after a hearing on August 31, 1995, the petition was denied.

  Petitioner appealed the PCRA denial to the Pennsylvania Superior Court, and the appeal was dismissed, without prejudice, on February 13, 1997, due to PCRA counsel's failure to file a brief. On September 17, 1999, Petitioner was granted leave to file an appeal of the PCRA denial, nunc pro tunc, and Petitioner filed an appeal to the Pennsylvania Superior Court on September 14, 2000. On August 8, 2001, the Superior Court dismissed the appeal for failure to file a brief. On review, the Pennsylvania Supreme Court ordered the Pennsylvania Superior Court to remand the case to the trial court for appointment of new counsel and reinstatement of Petitioner's appellate rights nunc pro tunc. Petitioner's appellate rights were reinstated by the trial court, and on December 24, 2003 the Pennsylvania Superior Court affirmed the denial of PCRA relief.

  The instant petition followed. Petitioner claims ineffective assistance of counsel resulted in an involuntary guilty plea. Respondents claim that Petitioner has failed to exhaust his state court remedies, and Petitioner argues that he has fulfilled the exhaustion requirement.

  III. Discussion

  A. Exhaustion of State Court Remedies

  Petitioner filed the present petition pursuant to the provisions of 28 U.S.C. § 2254. Under § 2254 (b)(1), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." (emphasis added). "An applicant shall not be deemed to have exhausted the remedies available in the court of the State, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). It is well-settled that a state prisoner must present his federal constitutional issues to the highest court of the state before he can present the issues through federal habeas corpus. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-20 (1982); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).

  Petitioner argues that he has exhausted his available remedies by appeal through the Pennsylvania Superior Court, citing In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000) (per curiam) ("Order 218").*fn1 The order states that litigants shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. Id. Thus, Petitioner has exhausted his state court remedies, and the Court will address the merits of the claims raised in Petitioner's amended habeas petition.

  B. Scope of Habeas Review.

  The Antiterrorism and Effective Death Penalty Act, enacted on April 24, 1996, revised the standard of review for cases challenging state convictions pursuant to 28 U.S.C. § 2254. Dickerson v. Vaughn, 90 F.3d 87, 89 (3d Cir. 1996) citing Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, Title I, sec. 104, 110 Stat. 1214 (1996) ("AEDPA"). Section 2254(d), as amended, states as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254.
  In regard to the "contrary to" provision contained in Section (d)(1), the Third Circuit Court of Appeals has stated:
[T]he inquiry must be whether the Supreme Court has established a rule that determines the outcome of the petition. Accordingly, we adopt O'Brien's holding that `to obtain relief at this stage, a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.' In other words, it is not sufficient for the petitioner to show merely that his interpretation of Supreme Court precedent is more plausible than the state court's; rather, the petitioner must demonstrate that Supreme Court precedent requires the contrary outcome.
Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir. 1999) referencing O'Brien v. Dubois, 145 F.3d 16, 24-25 (1st Cir. 1998). To determine whether the state court judgment involved an "unreasonable application" of clearly established federal law, this Court must determine:
"whether the state court's application of Supreme Court precedent was objectively unreasonable. The federal habeas court should not grant the petition unless the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot reasonably be justified under existing Supreme Court precedent. . . . The primary significance of the phrase `as determined by the Supreme Court of the United States' is that federal ...

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