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Kammerdeiner v. Clark

United States District Court, W.D. Pennsylvania

May 25, 2018


          Kathleen M. Charlton, District Attorney Armstrong County Courthouse


          Cynthia Reed Eddy U.S. Magistrate Judge

         Petitioner, 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.

         Petitioner 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. 2016).

         On or about June 8, 2017, [1] 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.

         On May 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.[2] (ECF No. 14).

         Generally, 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).[3] 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 defaulted.[4]

         Petitioner 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).

         Based 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.

         So ORDERED.



[1] 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.

[2] “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 petitioner ...

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