The opinion of the court was delivered by: William W. Caldwell United States District Judge
The pro se petitioner, Steward Steckley, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in the Court of Common Pleas of Schuylkill County, Pennsylvania, for sexual abuse of children by possession of child pornography. He has also filed a motion for a preliminary injunction requesting, among other things, discharge from custody. The magistrate judge has filed a report and recommendation, recommending that the petition be dismissed without prejudice for failure to exhaust state-court remedies and that the motion for a preliminary injunction be denied.
We are considering Petitioner's objections to the report, which assert that extraordinary circumstances excuse his failure to exhaust. When a petitioner objects to any portions of the magistrate judge's report and recommendation, we must make a de novo determination of those portions. 28 U.S.C. § 636(b)(1). Otherwise, we may accept, reject, or modify, in whole or in part, the Magistrate Judge's recommendations. Id. For the following reasons, we will accept the report and recommendation and dismiss the petition.
On August 10, 2009, Petitioner was charged by way of an information. On December 10, 2009, a jury found him guilty. On June 30, 2010, the court sentenced him to twenty-five to fifty years' imprisonment. Commonwealth v. Steckley, No. CP-54-CR-1215-2009 (Schuylkill County). His trial counsel, a court-appointed public defender, represented him on direct appeal. On August 16, 2011, the Pennsylvania Superior Court affirmed his conviction. Commonwealth v. Steckley, No. 1738 MDA 2010 (Pa. Super. Ct.). On September 15, 2011, the same counsel filed a petition for allowance of appeal with the Pennsylvania Supreme Court. Commonwealth v. Steckley, No. 681 MAL 2011 (Pa.). That petition is still pending.*fn1
In the meantime, on August 2, 2011, Petitioner filed the instant petition under section 2254. On September 8, 2011, the magistrate judge filed his report and recommendation, recommending that the petition be dismissed without prejudice for failure to exhaust state-court remedies.
This court is authorized to issue writs of habeas corpus under 28 U.S.C. § 2254(a) for persons "in custody pursuant to the judgment of a State court" when the custody violates the Constitution or federal law. However, we cannot grant the writ if the petitioner has not exhausted his available state-court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy exhaustion, a petition must present every claim raised in the federal petition to each level of the state courts." Dreher v. Pinchak, 61 F. App'x 800, 805 (3d Cir. 2003)(nonprecedential). In Pennsylvania, a petitioner need only raise his claims to the level of the superior court to satisfy the exhaustion requirement because, pursuant to Pennsylvania Supreme Court Order 218, discretionary review in the state supreme court by way of a petition for allowance of appeal is deemed unavailable. Boyd v. Waymart, 579 F.3d 330, 368 (3d Cir. 2009).
At the time the magistrate judge filed his report, the superior court
had affirmed the conviction, but Petitioner had not yet filed his
petition for allowance of appeal in the supreme court. It is not
apparent from the petition or the documents filed by Petitioner the
claims Petitioner raised on direct appeal. Nonetheless, the magistrate
judge recommended dismissal for failure to exhaust.*fn2
The magistrate judge reasoned that Petitioner could not have
exhausted all of his claims on direct appeal because he was claiming
ineffective assistance of counsel in his federal petition and
claims are not generally handled on direct appeal. He also noted that
Petitioner was represented on appeal by his trial counsel, against
whom he was claiming ineffectiveness. The magistrate judge therefore
recommended dismissal for failure to exhaust as Petitioner could not
have exhausted state remedies on all of his claims.
The procedural backdrop of this case has changed since the magistrate judge filed his report. As noted, Petitioner has filed a petition for allowance of appeal in the Pennsylvania Supreme Court. That petition is pending. Thus Petitioner has failed to exhaust his state-court remedies on all his claims, not just the ones presented on direct appeal. In reaching this conclusion, we recognize that as a result of Order 218, Petitioner did not have to seek relief in the supreme court. However, once he did, the exhaustion requirement applies. See Andrews v. Sauers, No. 11-1921, 2011 WL 4047492, at *2 (E.D. Pa. Aug. 18, 2011)(exhaustion requirement is not satisfied when the petitioner still has an allocator request pending in the supreme court and 2254 petition would be dismissed without prejudice as premature); Soto v. Wynder, No. 07-4720, 2008 WL 249816, at *2 (E.D. Pa. Jan. 29, 2008) (exhaustion requirement is not satisfied when the petitioner still has a petition for allowance of appeal pending in the state supreme court and 2254 petition would be denied without prejudice).*fn3
In his objections, Petitioner argues that exhaustion should be excused because of extraordinary circumstances. We view this argument as one that would allow us to entertain the petition because "circumstances exist that render the [available] state corrective process ineffective to protect the rights of" Petitioner. 28 U.S.C. § 2254(b)(1)(B)(ii). Upon review of the objections, for the most part the circumstances relied on are the grounds presented for vacating Petitioner's conviction, or complaints he has about rulings in his state-court appellate proceedings. These are not circumstances that render Petitioner's state remedies ineffective. Petitioner has also listed cases recognizing that exhaustion is not always required. However, he does not argue how these cases are relevant to his own. Petitioner also relies on a claim of actual innocence. But a showing of actual innocence is a way of allowing consideration of procedurally defaulted claims when a petitioner can no longer satisfy the exhaustion requirement, see Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010); Fisher v. Rozum, F. App'x , , 2011 WL 3325883, at *3 (3d Cir. 2011) (nonprecedential), not a way of bypassing the exhaustion requirement in the first instance.
Petitioner also objects to the magistrate judge's denial of his request for appointment of counsel to assist him with the decision to either proceed with his 2254 petition as filed or withdraw it and file another more inclusive petition.*fn4
The magistrate judge denied appointment of counsel by order dated September 8, 2011. Under Local Rule 72.2, Petitioner was required to appeal the magistrate judge's order within fourteen days after it was issued, but he did not file his objections until September 29, 2011. Even if we treated Petitioner's objection as a timely appeal of the order, we would dismiss it. It is apparent that Petitioner is not entitled to counsel as he has plainly failed to exhaust state remedies. Failure to appoint counsel might have been problematic if we were going to consider his petition on the merits. The same reasoning applies to the magistrate judge's decision to treat him as having elected to proceed with his current petition. Dismissal of this petition for failure to exhaust state remedies will have no effect on his right to file another petition, after he has exhausted ...