The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge
This Court previously entered an order (Doc. No. 3) directing the District Attorney of Northampton County to file an answer to the habeas petition in this matter and a memorandum of law with supporting exhibits pursuant to Rule 5 fol. 28 U.S.C. § 2254 on or before August 2, 2010 on behalf of Respondents. The District Attorney filed an answer to the petition and consolidated memorandum of law dated July 12, 2010 (Doc. No. 5) and appears to have submitted an otherwise identical answer dated July 14, 2010 but appending exhibits that were referred to but omitted (presumably inadvertently) from the original answer. (Doc. No. 6 (hereinafter "Ans.").)
In their submission, Respondents assert that "Petitioner's federal habeas petition should be dismissed for failing to exhaust the remedies available to him in the courts of the Commonwealth of Pennsylvania and for the untimely filing of said petition." (Ans. at 3.) Inasmuch as our preliminary review of this submission reveals Respondents' misapprehension of the authorities upon which they rely for these propositions, we provide the following explanation for our order that Respondents submit a further answer to the petition.
Respondents first assert that Petitioner has not satisfied the requirement of the federal habeas statute to exhaust state court remedies before seeking federal relief. Respondents note that Petitioner pursued a direct appeal of his conviction in the Superior Court of Pennsylvania and also sought further review in the Supreme Court of Pennsylvania. They note, however, that on PCRA review, Petitioner did not seek state Supreme Court review of the Superior Court decision issued on January 13, 2010. (Ans. at 2-3.) This characterization of the procedural history matches that outlined by Petitioner in his petition. (Doc. No. 1 (hereinafter "Pet.") at 5-6.)
Respondents aver that not all of the grounds for relief asserted by Petitioner in this federal habeas petition were included in his direct appeal - the only appeal that reached the state Supreme Court - and that federal habeas relief is not available as to any claims raised only on PCRA review because of the fact that Petitioner did not seek state Supreme Court consideration on PCRA appeal. (Ans. at 4-5.) Specifically, Respondents contend:
A habeas petitioner must petition the Supreme Court of Pennsylvania for allowance of appeal before he can claim to have exhausted state judicial remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728 (1999); see also Swartz v. Meyers, 204 F.3d 417, 422 (3d Cir. 2000). (Ans. at 3.)
There is no question that the habeas statute provides that "[a]n applicant [for habeas relief] shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section [requiring exhaustion of available remedies before the federal court may grant habeas relief], if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Respondents' authorities interpreting the effect of this rule and applying them in Pennsylvania, however, are outdated. The Third Circuit Court of Appeals addressed this issue at length several years ago in Lambert v. Blackwell, 387 F.3d 210 (3d Cir. 2004):
The exhaustion doctrine "turns on an inquiry into what procedures are 'available' under state law." O'Sullivan v. Boerckel, 526 U.S. 838, 847, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). And the Supreme Court has declined to interpret the "any available procedure" language of § 2254(c) to require "a state prisoner to invoke any possible avenue of state court review." Id. at 844, 119 S.Ct. 1728 (emphasis in original). Thus "state prisoners do not have to invoke extraordinary remedies when those remedies are alternatives to the standard review process and where the state courts have not provided relief through those remedies in the past." Id. (citing Wilwording v. Swenson, 404 U.S. 249, 249-50, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) (per curiam)). "Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims." Id. (emphasis in original).
Lambert, 387 F.3d at 232. The Lambert court further noted that Justice Souter, in his concurring opinion, interpreted O'Sullivan to have:
[left] open the possibility that a state prisoner is [ ] free to skip a procedure even when a state court has occasionally employed it to provide relief, so long as the State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for the purpose of exhaustion. It is not obvious that either comity or precedent requires otherwise.
Lambert, 387 F.3d at 232 (quoting O'Sullivan, 526 U.S. at 850 (Souter, J., concurring) and referring also to id. at 861 (Stevens, J., dissenting) and id. at 864 (Breyer, J., dissenting)). Turning to the application of these principles in Pennsylvania, the Lambert court then observed:
The Pennsylvania Supreme Court, apparently taking its cue from Justice Souter's concurrence, issued the following order on May 9, 2000:
[W]e hereby recognize that the Superior Court of Pennsylvania reviews criminal as well as civil appeals. Further, review of a final order of the Superior Court is not a matter of right, but of sound judicial discretion, and an appeal to this court will be allowed only when there are special and important reasons therefor. Pa.R.A.P. 1114. Further, we hereby recognize that criminal and post-conviction relief litigants have petitioned and do routinely petition this Court for allowance of appeal upon ...