United States District Court, W.D. Pennsylvania
KEITH L. KAMMERDEINER, Petitioner,
SUPT. MICHAEL CLARK, THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, and DISTRICT ATTORNEY OF ARMSTRONG COUNTY, PENNSYLVANIA, Respondents.
Kathleen M. Charlton, District Attorney Armstrong County
Cynthia Reed Eddy U.S. Magistrate Judge
Keith L. Kammerdeiner, is a state prisoner. He filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). (ECF No. 1).
He challenges the judgment of sentence imposed upon him in
2013 by the Court of Common Pleas of Armstrong County at
docket number CP-03-CR-0000758-2012. No direct appeal was
filed a petition for collateral relief under
Pennsylvania's Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. § 9541 et seq.
Following a hearing, the petition was denied in November of
2015. On July 13, 2016, the Superior Court of Pennsylvania
affirmed the denial of the PCRA petition. Commonwealth v.
Kammerdeiner, 154 A.3d 855, 2016 WL 5210817 (Pa. Super.
about June 8, 2017,  Petitioner filed the instant petition for
habeas relief. The Petition appears to raise four (4) issues,
two of which are ineffective assistance of counsel claims,
one Brady violation claim, and a denial of due
process and fair trial claim. Petitioner paid the filing fee
and this Court issued an order directing the United States
Marshal to serve the habeas petition on the Respondents.
22, 2018, Respondents filed the pending motion to dismiss, in
which they argue that the Petition should be dismissed
because it is a “mixed petition” as Petitioner is
presenting both exhausted and unexhausted
claims. (ECF No. 14).
before presenting a petition for writ of habeas corpus to a
federal court, a person in state custody must exhaust all
remedies provided in the state courts. 28 U.S.C. §
2254(b). A mixed petition, that is, one which contains both
exhausted and unexhausted claims, must be dismissed. Rose
v. Lundy, 455 U.S. 509, 510 (1982). However, if the
unexhausted claims are procedurally defaulted in the state
courts, the petition is not a mixed petition.
Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). The
court may “excuse” the exhaustion requirement as
“futile” if it is clear that petitioner's
unexhausted claims are now barred from review under state
law. Gray v. Netherland, 518 U.S. 152, 161
(1996). Futility is established where
“exhaustion is not possible because the state court
would refuse on procedural grounds to hear the merits of the
claims.” Lines, 208 F.3d at 163. Here,
requiring Petitioner to return to state court to attempt to
litigate his “unexhausted” claims would be
“futile” because he is now foreclosed from
litigating those claims on the merits under Pennsylvania law.
Thus, those claims are now procedurally
has the opportunity to make the argument in his reply to
Respondents' answer that he can overcome any default he
if can establish “cause and prejudice” or under
the “fundamental miscarriage of justice”
exception, which provides that a procedural default may be
excused if the petitioner presents evidence of “actual
innocence” that is “so strong that a court cannot
have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless
constitutional error[.]” Schlup v. Delo, 513
U.S. 298, 316 (1995).
upon all of the foregoing, the Respondents' motion to
dismiss is DENIED. Respondents must file an
answer to the petition by June 25, 2018.
Respondents should address the merits of the claims that were
presented to the state courts. They should also address
whether the Petitioner can overcome the default of any claim
he has raised in his federal habeas petition that he did not
also raise on appeal in the state courts. The
Petitioner's reply to the Respondents' answer is due
within 30 days of the date the Respondents file the answer.
 The Petition is hand dated as being
executed on June 8, 2017. The petition was received and filed
by the Clerk on June 19, 2017.
 “The federal habeas statute
requires state prisoners to exhaust available state court
remedies before seeking federal relief.” Nara v.
Frank,488 F.3d 187, 197 (3d Cir. 2007) (citing 28
U.S.C. § 2254(b)(1)). Exhaustion “addresses
federalism and comity concerns by ‘affording the state
courts a meaningful opportunity to consider allegations of
legal error without interference from the federal
judiciary.” Parker v. Kelchner,429 F.3d 58,
61 (3d Cir. 2005) (quoting Toulson v. Beyer, 987
F.2d 984, 986 (3d Cir. 1993), which quoted Vasquez v.
Hillery,474 U.S. 254, 257 (1986)). Importantly, in
order to exhaust a claim, “state prisoners must give
the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O 'Sullivan v. Boerckel,526 U.S. 838, 845
(1999). In Pennsylvania, this requirement means that a