United States District Court, E.D. Pennsylvania
STEWART DALZELL, District Judge.
AND NOW, this 17th day of September, 2014, upon consideration of petitioner Hatcher's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (docket entry # 1), our July 23, 2014 Order referring this matter to the Honorable Lynne A. Sitarski for a report and recommendation (docket entry # 3) pursuant to Local Rule 72.1 and 28 U.S.C. §636(b)(1)(B), Judge Sitarski's August 27, 2014 report and recommendation ("R&R") (docket entry # 4) to which petitioner filed a memorandum in support of the writ of habeas corpus and objections, and the Court finding that:
(a) On September 9, 2011, after a jury trial in the Philadelphia Court of Common Pleas, petitioner Hatcher was sentenced to a term of thirty to sixty years' incarceration for attempted murder, aggravated assault and firearm possession in connection with an April 2, 2010 attack, R&R at 1;
(b) The present pro se petition arises from Hatcher's post-conviction efforts after the Pennsylvania Superior Court affirmed Hatcher's judgment of sentence on June 5, 2013, id. at 2;
(c) On March 17, 2014, Hatcher filed a pro se Post-Conviction Relief Act ("PCRA") petition, and on March 25, 2014 he moved for removal of counsel; his counsel petitioned to withdraw six days later, id., and, as Judge Sitarski noted, the Superior Court did not rule on any of these motions;
(d) On April 21, 2014, Hatcher's counsel filed a "Supplemental PCRA Amended PCRA petition" and Hatcher himself filed a "writ of habeas corpus ad subjiciendum, " both of which are currently pending before the Court of Common Pleas, id.;
(e) On June 23, 2014, Hatcher filed the instant petition for writ of habeas corpus, setting forth two grounds for relief: "Violation(s) of Art. 3 § 2 in the 6th Amend. U.S. Const. Right to proceed pro'se [sic] to preserve issues" and "Art. 3 § 2 Governmental interference in Due Process violations, " id.; see also Pet. at 5, 7;
(f) Judge Sitarski construed Hatcher's claims to allege that his post-conviction counsel failed to file a timely PCRA petition; filed an unauthorized amended petition; and that the state court's refusal to permit him to proceed pro se denied him the right to a writ of habeas corpus ad sebjiciendum, R&R at 4-5;
(g) She dismissed Hatcher's pro se Section 2254 petition because it was apparent on the face of the petition that he had failed to exhaust his available remedies in state court, id. (citing Lonchar v. Thomas , 517 U.S. 314, 320 (1996) ("Of course, a district court is authorized to dismiss a petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court[.]") (internal citation and quotation marks omitted); see also O'Sullivan v. Boerckel , 526 U.S. 838, 848 (1999) ("[W]e ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state court.")(emphasis in original);
(h) Hatcher contests Judge Sitarski's conclusions in his self-styled memorandum in support of the writ of habeas corpus and his objections to her report, see docket entries ## 5 and 6;
(i) Pursuant to 28 U.S.C. § 636, we must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which" petitioner objects;
(j) Hatcher contends in his memorandum that he seeks relief here because of the "obstacles of silence" in the Commonwealth court that has his motions before it, Mem. at 1;
(k) He also argues that his counsel misrepresented to him that he had filed a PCRA petition and sent him trial transcripts when, Hatcher alleges, counsel had done neither and also claims there were irregularities at trial (e.g., misrepresentation of evidence; prosecutorial misconduct; and the failure of the Commonwealth to prove every element of the charge beyond a reasonable doubt) which he still seeks to contest, id. at 2-4;
(l) We construe Hatcher's objections to revisit these claims and argue that he should be excused from the exhaustion requirement, while seeking an order from this Court to "impos[e] the lower State Court to respond so-that [sic] exhaustion warrants sufficient and appropriate ...