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Fry v. Krysevig

January 17, 2007


The opinion of the court was delivered by: Muir, U.S. District Judge

Petition filed 10/02/06

(Judge Muir)



On October 2, 2006, Petitioner Christopher Fry, an inmate at the State Correctional Institution in Cresson, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fry is proceeding pro se and in forma pauperis. The Respondents are the Superintendent of the institution where Fry is incarcerated, the District Attorney of Fulton County, and the Attorney General of Pennsylvania.

The claims in Fry's habeas corpus petition stem from his convictions in the Fulton County Court of Common Pleas of indecent assault, corruption of a minor, involuntary deviate sexual intercourse, and indecent exposure. The victim of those offenses was a 6 year old boy. The trial resulting in those convictions concluded on January 30, 2002, and on June 11, 2002, Fry was sentenced to a total aggregate term of incarceration of 10 to 20 years. Fry unsuccessfully appealed his convictions to the Pennsylvania Superior Court. His attempts to obtain post-conviction relief in the Pennsylvania state courts pursuant to the Pennsylvania Post Conviction Relief Act also failed.

In his § 2254 petition Fry contends that: 1) the admissions he made in an inculpatory statement given to the police and introduced at trial were coerced; and 2) his trial counsel was ineffective for failing to call a witness who could have impeached the trial testimony of the victim's mother. Although Fry lists a third claim in the documents he has filed in this court, it need not be addressed separately because it is simply a restatement of Fry's other two claims.

The Respondents filed an answer to Fry's petition on December 15, 2006. After being granted an extension of time in which to do so, on January 8, 2007, Fry filed his reply brief. His habeas petition is ripe for disposition.

As a general rule, a state prisoner must exhaust available state court remedies before seeking habeas relief in federal court. 28 U.S.C. §§ 2254(b) and (c); Rose v. Lundy, 455 U.S. 509, 515-20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). An exception to this requirement exists where exhaustion is not possible "because the state court would find the [unexhausted] claims procedurally defaulted." Toulson, 987 F.2d at 987.

A habeas corpus petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Gonce v. Redman, 780 F.2d 333, 336 (3d Cir. 1985). Exhaustion is not complete unless the trial court, Pennsylvania's intermediate appellate court, and the Supreme Court of Pennsylvania have been presented with the substance of petitioner's claims. See Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888 (1995); Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992), cert. denied, 506 U.S. 1089 (1993).

Our analysis of whether Fry exhausted each of the claims in his § 2254 petition begins with the claim that certain admissions made to a police officer in a written statement were the product of unlawful coercion. Fry did not raise that claim in the direct appeal of his convictions. Fry's first attempt to obtain relief on that claim was in a Post Conviction Relief Act petition he filed in the Pennsylvania trial court. The court determined that Fry had "waived this issue by failing to raise it on direct appeal." (August 1, 2005, Opinion and Order of the Fulton County Court of Common Pleas, p. 7)

An unexhausted claim which may no longer be raised in the state courts because of a procedural bar, such as a prior waiver of the claim or the failure to raise the claim in a timely petition, is considered to have been defaulted. Lambert v. Blackwell, 134 F.3d 506, 518 (3d Cir. 1997). A federal court may address the merits of a defaulted claim only where the petitioner establishes "cause and prejudice" for the default or that a "miscarriage of justice" would result from not considering an unexhausted claim. Coleman v. Thomas, 510 U.S. 722, 731 (1991); Murray v. Carrier, 477 U.S. 478 (1986).

Fry's claim regarding his allegedly coerced admissions is now barred from further state court review by the one-year statute of limitations in Pennsylvania's Post Conviction Relief Act. See 42 Pa. C.S.A. § 9545. Consequently, that claim has been procedurally defaulted.

Fry has completely failed to address the prerequisites for excusing his default of those claims. Our examination of this file does not indicate that there are any circumstances justifying the failure to exhaust his state remedies. In such a case, where it is futile to return the unexhausted claim to state court, "the district court may not go to the merits of the barred claims, but must decide the merits of the claims that are exhausted and not barred." Toulson, 987 F.2d at 987 (citing ...

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