The opinion of the court was delivered by: Judge Conner
Presently before the court is a petition for writ of habeas corpus (Doc. 1) in which petitioner, Rodney Rodgers ("Rodgers"), challenges a Pennsylvania state conviction.*fn1 Rodgers seeks relief based upon trial court error as well as the ineffective assistance of defense counsel. For the reasons that follow, the petition will be denied with respect to the claim of trial court error. The issue of ineffective assistance of counsel will proceed to a hearing.
On September 8, 2000, following a jury trial, Rodgers was found guilty of criminal attempt to commit criminal homicide, sentenced to a period of incarceration of twenty to forty years, and ordered to pay restitution and costs of prosecution. (See Doc. 12-1 at 4.) He appealed his judgment of sentence to the Superior Court of Pennsylvania (see Doc. 12-1 at 13), raising, inter alia, the claim that the trial court erred by prohibiting his witnesses from testifying about specific instances involving the victim. (See Doc. 12-1 at 19, 40.) The judgment of sentence was affirmed.*fn2 See Commonwealth v. Rodgers, 790 A.2d 343 (Pa. Super. Ct. 2001). Rodgers timely filed a petition for allowance of appeal with the state supreme court. (Doc. 12-2 at 48.) The petition was denied on April 25, 2002.*fn3 See Commonwealth v. Rodgers, 797 A.2d 912 (Pa. 2002).
Thereafter, Rodgers filed a petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-9546, raising a number of issues, including that "[t]rial counsel rendered ineffective assistance in not objecting to the Commonwealth venire jury list which did not contain a cross section of the community" in violation of the Sixth Amendment and Fourteenth Amendment due process and equal protection clauses. (Doc. 12-3 at 11, 14, 16.) At that time, Rodgers requested production of "the venire composition of an all white jury list of potential jurors [list of persons for petit jury selection]" to determine why "the venire jury did not have a cross section of Defendant's peers [from a] cross section of the community." (Doc. 12-3 at 14 (citing Batson v. Kentucky, 476 U.S. 79 (1986))).
During the PCRA hearing, Rodgers was questioned about the array and he responded as follows: "When I looked at the jury pool, I didn't want no [sic] parts of the jury because there was [sic] no minorities whatsoever." (Doc. 12-3 at 37.) Rodgers testified that he raised this concern with defense counsel and that defense counsel responded simply: "[T]his is the jury that you have to deal with." (Doc. 12-3 at 38.) When defense counsel was asked about the composition of the jury pool at the PCRA hearing, she stated:
If Mr. Rodgers says that they were all white people, I would have no reason to disagree with him, and I can't say I have anything written down to indicate otherwise. I'm sure he made a comment to the effect of this isn't a jury of my peers, and I explained . . . it's a random selection and that whoever gets brought in[,] gets brought in; and unless those people indicated that they couldn't be fair and impartial, that those would be the people we would be picking from. (Doc. 12-3 at 79.) The PCRA court denied the petition. (Doc. 12-3 at 100.)
Rodgers timely appealed the PCRA court's order to the superior court. (Doc. 12-4 at 28.) He again raised the issue "that trial counsel was ineffective for failing to object to an all-white jury panel assembled for his trial." (Doc. 12-4 at 29.) In its brief in opposition to the appeal, the Commonwealth acknowledged that a defendant has "a right to a jury drawn from a panel which represents a cross-section of the community." (Doc. 12-4 at 15.) The Commonwealth also acknowledged that Rodgers has "a right to require a state not to deliberately and systematically exclude members of his race from the jury panels and from the juries ultimately drawn from those panels" but reminded the superior court that Rodgers "must prove systematic exclusion." Id.
Inexplicably, the superior court concluded that Rodgers waived the issue of whether his attorney was ineffective for failing to challenge the composition of the venire. The superior court summarily concluded that Rodgers "failed to raise this issue in his direct appeal and his petition for post-conviction relief," and that he raised the issue for the first time on appeal from the PCRA denial. (Doc. 12-4 at 31.)*fn4 Thus, Rodgers' PCRA appeal was denied.
Rodgers subsequently filed a petition with the state supreme court for allowance of appeal in which the sole issue presented was whether the superior court improperly denied PCRA relief based upon the erroneous assumption that the ineffective assistance of counsel claim was waived. (Doc. 12-4 at 44, 47.) Rodgers argued that the first available opportunity for him to raise the issue was in his PCRA petition, and that the issue was clearly raised in the petition. (Doc. 12-4 at 47-48.) The petition for allowance of appeal was denied without opinion. (Doc. 12-4 at 65.)
Rodgers commenced the instant action pursuant to 28 U.S.C. § 2254, contending that: (1) the trial court committed reversible error by prohibiting defense counsel from introducing evidence of the victim's prior criminal acts and (2) defense counsel was ineffective for failing to object to an all-white jury panel. (Doc. 1 at 5-6.) The matter is presently ripe for disposition.
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973). "[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is restricted to claims based "on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67-68; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997).
Further, habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one ...