The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner, Carl Biggan ("Petitioner" or "Biggan"), filed the instant petition for writ of habeas corpus ("Petition") pursuant to 28 U.S.C. § 2254. He attacks a sentence imposed by the Court of Common Pleas for Luzerne County, Pennsylvania. (Rec. Doc. 1). A response and traverse having been filed, the Petition is ripe for disposition. For the reasons set forth below, the Petition will be denied.
FACTUAL BACKGROUND/PROCEDURAL HISTORY:
On June 5, 2000, Biggan was found guilty of two (2) counts of aggravated assault and one (1) count of prohibited offensive weapon, and was sentenced to an aggregate term of one hundred twenty-four (124) to three hundred (300) months imprisonment. (Rec. Doc. 2, Appendix B, Pennsylvania Superior Court Memorandum and Opinion dated July 27, 2004). On direct appeal the Superior Court determined that the evidence was insufficient to sustain the conviction for prohibited offensive weapons. See Commonwealth v. Biggan, 778 A.2d 731 (Pa. Super. 2001). Accordingly, the Superior Court vacated only the portion of the judgment of sentence pertaining to the prohibited offensive weapon offense. Id. Biggan's aggregate term of incarceration was thus reduced by sixteen to sixty months. Id. On May 11, 2001, the trial court entered an amended order of sentence consistent with the Pennsylvania Superior Court's opinion, and sentenced Biggan to a term of one hundred eight (108) to two hundred forty (240) months imprisonment. No direct appeal to the Superior Court of Pennsylvania was filed.
On March 7, 2002, Biggan filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. §§ 9541-9546. (Rec. Doc. 2, App. B). He states that he raised "numerous grounds concerning the ineffective assistance of counsel." (Rec. Doc. 1). On February 13, 2003, the trial court denied Biggan's PCRA petition. (Rec. Doc. 2, App. B). Biggan filed a timely notice of appeal to the Pennsylvania Superior Court, raising the following ground for relief:
1. Whether Appellant was denied effective assistance of counsel in that:
a. Trial counsel failed to seek a cautionary instruction and failed to move for a mistrial regarding testimony of concerning (sic) Appellant's alleged prior criminal conduct which was directly elicited by Appellee as well as argument to the jury presented by Appellee regarding this same alleged prior conduct, and only offered an objection to one of these incidents.
b. Appellate counsel failed to raise the issue of trial counsel's failure, cited in subsection (a), above, on direct appeal and also failed to raise on direct appeal the Trial Court's incorrect considerations of the weapons charge (which was later reversed) in imposing sentence upon Appellant; and
c. Post-conviction counsel failed to summon and present testimony from trial and appellate counsel concerning the above-cited failures of same. (Rec. Doc. 2, App. B). On July 27, 2004, the Pennsylvania Superior Court affirmed the PCRA court's denial of Biggan's PCRA petition. (Rec. Doc. 2, App. B). Biggan then filed an "Application for Reargument", which was denied by the Pennsylvania Superior Court on September 27, 2004. (Rec. Doc. 13, traverse). On October 27, 2004, filed a petition for allowance of appeal to the Pennsylvania Supreme Court, which was denied on March 15, 2006. (Rec. Doc. 2, App. A, Order).
On April 14, 2006, Biggan filed the instant Petition in which he states his issue for review as follows:
The Superior Court's affirmance of the PCRA Court's decision is erroneous in that it lets stand judicial fact-finding which greatly enhanced petitioner's sentence in violation of his right to trial by jury, U.S. Const. Amends. VI & XIV, and PA. Const. Art. 1, Sec.9, as noted in Blakely v. Washington, U.S., 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and in affirming the ineffective assistance of prior counsel in failing to properly object to this judicial fact finding and/or preserve same for review. (Rec. 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), the Court issued formal notice to Biggan that he could either have the petition ruled on as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such, but lose his ability to file a second or successive petition, absent certification by the court of appeal, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism Effective Death Penalty Act ("AEDPA"). (Rec Doc. 3). On May 3, 2006, Biggan filed his Notice of Election, indicating that he wished to proceed with his petition for writ of habeas corpus as filed. (Rec. Doc. 4). Thus, a Show Cause Order was issued on June 5, 2006. (Rec. Doc. 5). On October 25, 2006, the District Attorney of Luzerne County filed a response to the petition. (Rec. Doc. 11 ). Petitioner filed a traverse on December 29, 2006. (Rec. Doc. 13).
It is well-established that a federal court may not entertain the merits of a petition for writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).*fn1 Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal ...