The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Petitioner William L. Wright, III, is a state prisoner who was convicted of first degree murder and sentenced to death in the Court of Common Pleas of Blair County in April 2000. His direct appeal is currently pending before the Pennsylvania Supreme Court at Commonwealth v. Wright, Capital Appeal Docket No. 403 (Pa.). Wright has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he claims that the Pennsylvania Supreme Court has violated his right to due process because it has not yet issued a decision on his direct appeal. Presently pending before this Court is Respondents' Motion to Dismiss (Doc. No. 21), to which Wright has filed a Reply (Doc. No. 22). For the reasons set forth below, the Court shall deny the motion to dismiss and instead stay this proceeding. The Court shall also direct counsel for Respondents to file a monthly update on the status of Petitioner's direct appeal.
On April 17, 2000, a jury convicted Wright of first degree murder in the killing of James Mowery. It also convicted him of aggravated assault, burglary, simple assault, two counts of recklessly endangering another person, and criminal trespass. Following a separate penalty hearing, the jury sentenced Wright to death. Thereafter, the trial court appointed Wright new counsel, R. Thomas Forr, Jr., Esquire. Forr filed a post-sentence motion. In May of 2001, the trial court presided over a four-day evidentiary hearing. On October 28, 2002, the trial court issued a 75-page Opinion and Order denying Wright's post-trial motion.*fn1
On February 13, 2003, Wright, through Forr, filed a direct appeal with the Pennsylvania Supreme Court. See Commonwealth v. Wright, Capital Appeal Docket 403 (Pa.). (The docket sheet for Wright's direct appeal is available for review on Pennsylvania's Unified Judicial System's website at http://ujsportal.pacourts.us/DocketSheets/Appellate.aspx, and the Court takes judicial notice of it). The record in Wright's case, which includes 28 volumes of testimony, was transmitted to the Pennsylvania Supreme Court on May 19, 2003. Forr and Mary Ann Probst, Esquire, submitted a brief on Wright's behalf*fn2 on August 29, 2003, raising the following fifty-nine claims:
I. Was Appellant's right to due process violated:
A. in that Attorney Passarello was appointed 12 days before commencement of jury selection, and as a result, had virtually no time to prepare for trial?
B. in that Attorney Kling was appointed 5 days prior to the selection of the death penalty jury and did not have time to prepare for a sentencing hearing?
C. in that the Court denied legitimate requests by Attorney Passarello and Attorney Kling for a continuance based on their assertion to the Court that they did not have adequate time to prepare for trial?
D. in that newly appointed counsel had little time to provide forensic experts, ballistic experts, a mitigation expert and an investigator with sufficient information in a timely manner to afford the Appellant the effective assistance of expert testimony?
E. in that the trial date was abruptly moved forward from June to April, 2000 resulting in the investigators not being able to complete portions of their investigation prior to the commencement of the trial?
F. in the manner in which the Court rushed the jury selection, forcing counsel to exclude potentially favorable jurors without an effort at rehabilitation?
G. by the fact he was incarcerated between November 26, 1998 through December 2, 1998 prior to his preliminary hearing without having the opportunity to speak with counsel?
H. by only having a limited time to converse with then Assistant Public Defender, John Siford prior to his preliminary hearing?
I. by being denied an opportunity to meet with counsel between the date of December 2, 1998 and December 21, 1998 when he was sent to Camp Hill, SCI for a mental health evaluation without receiving prior notice or having discussed this matter with his attorney?
J. when appointed counsel, Thomas Hooper, filed pre-trial motions, without the consent of the Defendant and without properly discussing the same with him?
K. when on two or three different occasions he requested that the Court appoint new counsel for him as a result of counsel's refusal to communicate with Appellant?
II. Did the Court err as a matter of law:
A. in denying defense counsel's request for a mistrial based on Attorney Consiglio's statements during closing argument regarding the Appellant's constitutional right to remain silent?
B. by not granting an adequate and timely curative instruction with respect to Attorney Consiglio's reference to Appellant's failure to testify?
C. by providing the jury a questionnaire that was not in conformity with Pennsylvania Rules of Criminal Procedure 1107?
D. when it permitted a religious test concerning a juror's sincere Catholic beliefs to be used in determining whether prospective jurors would serve on the jury?
E. by instructing counsel for the Appellant and the Commonwealth to rearrange the order of their jury selection questioning such that it resulted in a religious test being applied to the jurors or rushed the selection process so that there was no attempt at rehabilitation?
F. in permitting evidence concerning ballistic and DNA evidence to be presented by the Commonwealth even though the defense was not provided with said evidence until after jury selection ...