The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On March 30, 2007, petitioner Michael E. Siluk, Jr., an inmate at the State Correctional Institution at Rockview, an institution located in the Middle District of Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent is Franklin J. Tennis.*fn1 Petitioner challenges his 2002 state court convictions. Siluk was convicted of four counts of rape, aggravated assault, sexual assault, two counts of aggravated indecent assault, two counts of robbery, two counts of simple assault, and involuntary deviate sexual intercourse.
Siluk presents six grounds for attacking his state court convictions: Ground 1: Conviction obtained by the denial of Sixth Amendment right to confrontation; Ground 2: Conviction obtained through a court that lacked jurisdiction over the crimes; Ground 3: Denial of effective assistance of counsel; Ground 4: Conviction obtained through evidence obtained pursuant to an unlawful arrest: Ground 5: Conviction obtained through the denial of procedural due process of law; Ground 6: conviction obtained through the denial of due process of law.
Respondent has filed a response to the petition and a memorandum of law. (Rec. Doc. Nos. 17 and 21). Petitioner filed a traverse. (Rec. Doc. No. 26). The matter is ripe for disposition.
Now, therefore, for the following reasons we will deny the petition for writ of habeas corpus.
1. Exhaustion of State Remedies
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires state prisoners who have filed a § 2254 habeas petition to exhaust available state court remedies with respect to every claim raised in the federal petition. "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - the applicant has exhausted the remedies available in the courts of the State. . ." 28 U.S.C. § 2254(b)(1)(A).
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." Id. The exhaustion doctrine does not require prisoners to file repetitive petitions. Id. at 844 (internal citations omitted). The exhaustion doctrine has not required prisoners to raise the same issues when petitioning for collateral relief that have already been decided by direct review. Id. However, a prisoner must seek review in a state court of last resort when that court has discretionary control over its docket. Id. at 845.
In response to this case, the Pennsylvania Supreme Court issued an Order that an individual convicted of a crime in Pennsylvania need not lodge a discretionary appeal to that court in order to exhaust direct appeal rights; appeal to the Superior Court will suffice. In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, No. 218 Judicial Administration Docket No. 1 (Pa. May 9, 2000).
Before AEDPA was enacted, the Supreme Court held in Rose v. Lundy, 455 U.S. 509 (1982), that federal district courts could not adjudicate "mixed petitions," that is, petitions that contained even a single unexhausted claim. However, Lundy was decided fourteen years before ADEPA was enacted, when there was no statute of limitations on the filing of federal habeas corpus petitions. "AEDPA preserved Lundy's total exhaustion requirement, but it also imposed a 1-year statute of limitations on the filing of federal petitions." Rhines v. Weber, 125 S.Ct. 1528, 1533 (2005). As a result of the interplay between the total exhaustion requirement and the one-year statute of limitations, petitioners who filed a timely but mixed petition in federal court ran the risk of forever losing their opportunity for federal review of the unexhausted claims. See id. As a result, the Supreme Court held that district courts may stay mixed petitions and hold them in abeyance in order to permit a habeas corpus petitioner to return to state court to complete exhaustion of his claims. See id at 1534. A "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 1535. "Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id. However, "stay and abeyance should be available only in limited circumstances." Id. "A mixed petition should not be stayed indefinitely." Id. "[T]he district court's discretion in structuring the stay is limited by the timeliness concerns reflected in the AEDPA." Id. "Thus, district courts should place reasonable time limits on a petitioner's trip to state court and back." Id. "And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all." Id. A district court generally should not deny a stay and dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. See id. Additionally, "if a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief." Id.
We are presented here with a mixed petition. Petitioner brings his habeas petition based on grounds of the Sixth Amendment right to confrontation, jurisdiction of the court of conviction, ineffective assistance of counsel, evidence should have been excluded because it was obtained pursuant to unlawful arrest, and violations of due process of law.
On appeal to the Court of Common Pleas of Dauphin County (apparently by post-sentence motion under Pa.R.Crim.P. 720(B)), petitioner raised six grounds (Rec. Doc. No. 22-3 at 69-84): 1) the court erred in denying a change of venue; 2) the court erred in not severing the cases; 3) the court lacked subject matter jurisdiction to adjudicate based on the location of the crime; 4) there was insufficient evidence to sustain the conviction; 5) the court erred in sustaining an ...