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November 22, 2005.

LOUIS FOLINO, Respondent.

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



Jaribu Igwe Mutope is an inmate confined at the State Correctional Institution at Greene (SCI-Greene), Pennsylvania. He filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 17, 2004. In the petition, Mutope challenges his aggregate sentence of 39 months to 22 years after being found guilty of Criminal Trespass, Criminal Attempt to Commit Criminal Trespass, Resisting Arrest and Criminal Mischief (2 Counts) by a Lebanon County Court of Common Pleas jury.*fn1 On December 8, 2004, an order was issued providing Mutope with the notice required 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). (Doc. 6.) Because Mutope failed to notify the court as to whether he desired to proceed on the petition as filed or withdraw his petition and file a new, all-inclusive petition, the court is proceeding on the original petition as filed. A Show Cause order directing Respondent to answer the allegations in the petition was thereafter issued on February 23, 2005. (Doc. 7.) Following the grant of an enlargement of time, Respondent submitted a response to the petition along with a supporting memorandum and exhibits on April 6, 2005. (Docs. 15-17.) A traverse was submitted by Mutope on May 11, 2005.*fn2 The petition is ripe for consideration at this time. For the reasons that follow, the petition will be denied.


  The pertinent facts and procedural history are extracted from the Superior Court of Pennsylvania's February 1, 2001 opinion on Mutope's direct appeal from his judgment of sentence, as well as the September 29, 2003 opinion on his appeal from the denial of his PCRA.

On April 29, 1997, appellant attempted to enter the residence of Robert Keefer by striking and breaking the glass pane of his front door. When his attempt was unsuccessful, appellant proceeded to the home of Officer Gregory Bender, where he forced open the front door. After struggling with Bender in the living room, appellant fled to the second floor and escaped through a window. Police eventually apprehended appellant on the front porch of the Bender residence. Following a jury trial, appellant was convicted and sentenced as indicated above. On June 5, 1998, appellant filed a motion for new trial or in arrest of judgment, which was denied. Thereafter, appellant filed a motion for appeal nunc pro tunc. The court found no legitimate basis advanced which justified appellant's failure to file a direct appeal, and thus, denied the motion. On August 25, 1999, appellant filed a petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, based upon the ineffectiveness of counsel in failing to file a timely direct appeal. Following a hearing, the trial court granted relief to appellant. . . .
(Doc. 17, Respondent's Exhibits, Ex. 15, Pa. Super. Ct. Op. dated 9/8/03 at 1-2.)

  On April 20, 2000, Mutope filed a direct appeal nunc pro tunc. In the appeal, he raised two grounds — (1) sufficiency of the evidence to support his conviction of attempted criminal trespass at the Keefer residence, criminal trespass at the Bender residence, and resisting arrest and (2) ineffective assistance of trial counsel.*fn3 On February 1, 2001, the Pennsylvania Superior Court affirmed the judgment of sentence. A petition for allowance of appeal was denied by the Pennsylvania Supreme Court on May 10, 2001.

  On August 15, 2001, Mutope filed his first PCRA petition.*fn4 Counsel was appointed and an evidentiary hearing thereafter conducted on August 27, 2002. On August 27, 2002, the PCRA petition was denied. On September 16, 2002, an appeal was filed with the Pennsylvania Superior Court. The issues raised on appeal were whether trial counsel was ineffective in proceeding to trial without the testimony of Officer Barrett and for not urging Mutope to testify on his own behalf. Also raised was the issue of whether PCRA/appellate counsel was ineffective in failing to raise the ineffective trial counsel grounds at the first PCRA hearing. On September 29, 2003, the Superior Court issued an opinion finding that the first two issues raised by Mutope had been waived or previously litigated, and denying the petition with regard to the third issue. No appeal to the Pennsylvania Supreme Court was pursued.

  The instant petition for writ of habeas was thereafter filed on September 17, 2004. In the petition Mutope raises the following two grounds: (1) ineffective assistance of counsel in failing to call the only two witnesses (Officer Barrett and Petitioner) who could provide Petitioner with an appropriate defense — duress and justification and (2) violation of the due process clause based upon the trial court's failure to give duress and justification instructions to the jury sua sponte.



  Under 28 U.S.C. § 2254, federal habeas courts review state criminal convictions for violations of "the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). They do not correct errors in state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Smith v. Horn, 120 F.3d 400, 414 (3d Cir. 1997).

  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); Cristin v. Brennan, 281 F.3d 404, 410-11 (3d Cir. 2002). The state courts must have been presented with the substance of Petitioner's claims. "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, Picard v. Connor, 404 U.S. 270, 275 (1971); Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). In Duncan v. Henry, 115 S.Ct. 887, 888 (1995), which concerned exhaustion of an evidentiary issue, the United States Supreme Court relying on Picard, held: "If a habeas petitioner wishes to claim that an evidentiary ruling at a state trial denied him the due process of law guaranteed by the Fourteenth Amendment he must say so, not only in federal court, but in state court."

  Further, a petitioner must have pursued his claims through "`any available procedure.'" Id. at 410 (quoting 28 U.S.C. § 2254(c)). Another avenue of relief available for exhaustion purposes is 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." ...

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