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November 14, 2005.

JOHN J. KLING, Petitioner,
ROBERT W. MEYERS, Respondent.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge


I. Introduction

John J. Kling is presently serving a sentence of twelve (12) to thirty (30) years imprisonment at the State Correctional Institution at Rockview, Pennsylvania. He filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 10, 2003. In the petition, he challenges his 1998 conviction for third degree murder, aggravated assault, reckless endangerment and possession of marijuana following a jury trial in the Court of Common Pleas of Fulton County, Pennsylvania. On initial screening, the court dismissed the petition as time-barred pursuant to 28 U.S.C. § 2244(d) and directed that the case be closed. A motion for reconsideration filed by Petitioner was granted after Petitioner provided support to the court establishing that his petition had been timely filed.*fn1 The petition is presently before the court for disposition. For the reasons that follow, the petition will be denied.

  II. Background

  The following facts are extracted from the Superior Court of Pennsylvania's May 7, 1999 opinion on Petitioner's direct appeal from his conviction.

On August 28, 1996, appellant was driving his red Chrysler Conquest near McConnellsburg when he noticed a black Chevrolet Camaro in his rear view mirror. The Camaro, driven by Larry Seville, took off after appellant and both automobiles began racing up a curvy mountain road known as Scrub Ridge. At speeds in excess of 80 m.p.h., both vehicles reached the crest of Scrub Ridge, and with appellant in the lead, the improvident competitors began descending the mountain road.
The first downside mile from the top of Scrub Ridge is riddled with eight substantial curves and five cautionary speed signs. Nevertheless, appellant maintained his excessive speeds, pulling away from the Camaro and disappearing into the blind curves. Through the second of these curves, appellant was on the wrong side of the road and nearly hit Jean Pepple traveling the opposite direction in her minivan. In spite of this near collision, appellant neither slowed down nor took action to mitigate the obvious danger from his racing.
Approaching the eighth major curve on the downslope, appellant swung into the no-passing zone and blew past two pickup trucks traveling in front of him. He then headed into the sharp double curve at nearly 70 m.p.h., crossed the center line again, and struck a vehicle driven by Helen Mellott. The collision, eight-tenths of a mile after appellant ran Ms. Pepple off the road, killed Ms. Mellott instantly and left her ten-year-old son with a ruptured artery to his liver.
On December 17, 1997, following a jury trial, appellant was found guilty of third degree murder, aggravated assault, recklessly endangering another person, and possession of marijuana. He was sentenced to prison for an aggregate term of twelve to thirty years. . . .
(Doc. 15, Ex. 3, Pa. Super. Ct. Op. dated May 7, 1999 at 1-2.)

  Kling filed a direct appeal from his conviction to the Pennsylvania Superior Court raising the following grounds: (1) insufficient evidence to establish malice; (2) trial court error in denying requested jury charges and (3) trial court error in ruling on evidentiary matters. The Superior Court affirmed the lower court's judgment on May 7, 1999. See Commonwealth v. Kling, 731 A.2d 145 (Pa.Super. 1999). He thereafter filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court which was denied on October 20, 1999. See Commonwealth v. Kling, 745 A.2d 1219 (Pa. 1999).*fn2

  On October 12, 2000, Kling filed a petition under the Pennsylvania Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9501, et seq., raising ineffective assistance of counsel claims. The PCRA petition was denied by the Fulton County Court of Common Pleas on January 9, 2002. This decision was appealed to both the Pennsylvania Superior Court and Supreme Court. Kling thereafter filed the pending habeas corpus petition wherein he raises the sole claim challenging the sufficiency of the evidence. Kling argues that the evidence adduced at trial does not support a conviction for third degree murder or aggravated assault because he did not have the requisite state of mind to commit such crimes. He states that the evidence fails to demonstrate the required element of malice.


  A. Exhaustion

  A federal court will not grant a state prisoner's petition for a writ of habeas corpus unless available state-court remedies on the federal constitutional claim have been exhausted. 28 U.S.C. § 2254 (b)(1); Stevens v. Del. Corr. Ctr., 295 F.3d 361, 369 (3d Cir. 2002). The exhaustion requirement is satisfied only if the petitioner can show that he fairly presented the federal claim at each level of the established state-court system for review. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). "Fair presentation" of a claim means that the petitioner "must present a federal claim's factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted." McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999) (citations omitted); See also, Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004).

  Another avenue of relief is also available for exhaustion purposes — that of collateral review under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq., "which permits motions for post-conviction collateral relief for allegations of error, including ineffectiveness of counsel, unlawfully induced guilty pleas, improper obstruction of rights to appeal by Commonwealth officials, and violation of constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991).*fn3

  Respondent argues that Kling has failed to exhaust the sole ground raised in his petition — the challenge to the sufficiency of the evidence regarding malice. Respondent admits that "[o]n appeal, the sufficiency of the evidence was carefully reviewed by the Pennsylvania Superior Court. . . ." (Doc. 16 at 5.) There is also no question that a petition for allowance of appeal was pursued to the Pennsylvania Supreme Court. Respondent argues, however, that when raising the sufficiency of the evidence issue in state court, Kling failed to explicitly state that his claim was based on federal law and, as such, the state courts were never put on notice that a federal claim was being asserted by Kling. (Doc. 11 at 4.)

  Pursuant to 28 U.S.C. § 2254 (b)(2), an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. Thus, because the court finds the petition to lack merit, it is unnecessary to make a ...

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