Opinion
Civil Action No. 04-2810.
September 30, 2004
MEMORANDUM and ORDER
Andrew Middleton, Petitioner, who is serving a life sentence at the Pennsylvania State Correctional Institution at Frackville, asks this court to grant him habeas corpus relief under 28 U.S.C. § 2254. After a careful and independent review pursuant to 28 U.S.C. § 636, we find Middleton has not exhausted his state remedies. Since habeas relief is only available for claims for which state remedies are exhausted, we approve the Report and Recommendation of Magistrate Judge Jacob P. Hart and overrule the Petitioner's objections.
§ 2254. State custody; remedies in Federal courts
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.28 U.S.C. § 2254.
On January 24, 2003, after a bench trial, the Honorable David N. Savitt found Middleton guilty of first-degree murder and imposed a penalty of life imprisonment. The trial court allowed trial counsel to withdraw from the case and appointed appeal counsel. No appeal was filed. On December 23, 2003, Middleton filed a pro se petition pursuant to the Post Conviction Collateral Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., seeking reinstatement of his direct appeal rights. Counsel has been appointed and a hearing before Judge Savitt is scheduled October 13, 2004.
The record suggests trial counsel was allowed to withdraw because Middleton intended to challenge the effectiveness of trial counsel. Since Middleton was convicted after the Pennsylvania Supreme Court's decision in Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002) (holding claims of ineffective assistance of counsel should be held until collateral review), the change of counsel was unnecessary.
Middleton, however, says he did not receive notice of the appointment of counsel or the hearing scheduled. Middleton, therefore, filed a petition for writ of habeas corpus on June 25, 2004 with this Court, claiming a breakdown in the advocacy process deprived him of his right to appeal. Magistrte Judge Hart recommended dismissing Middleton's petition on grounds his state remedies are unexhausted.
DISCUSSION
This Court may not consider the merits of a petition for a writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied if the federal claim was fairly presented to the state appellate courts. Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004). The exhaustion requirement includes all appeals. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001). A petition that contains even one unexhausted claim must be dismissed as a mixed petition. Rose v. Lundy, 455 U.S. 509, 519 (1982).
Middleton's objections can be fairly read to mount a two-pronged attack on the Report and Recommendation. First, Middleton argues the lack of communication from the First Judicial District and the confusing filing requirements work to deprive him of due process of law sufficient to "render such process ineffective" to protect his rights. 28 U.S.C. § 2254(b)(1)(B)(ii). Middleton's objections also argue "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable." Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004) (holding a delay of seven years excused the exhaustion requirement). If a state remedy is unavailable, the exhaustion requirement is excused. 28 U.S.C. § 2254(b)(1)(B)(i).
Middleton's argument fails on both grounds. First, his PCRA petition was docketed and acted on in a timely fashion; second, 20 months between conviction and PCRA hearing can not fairly be described as inexcusable or inordinate delay. Lee, 357 F.3d at 341. Because Middleton's petition contains claims which are now pending before the PCRA court, this court must dismiss the petition as mixed under Section 2254. Accordingly, we enter the following order:
ORDER
AND NOW, this 30th day of September, 2004, it is hereby ORDERED, the Report and Recommendation of the Magistrate Judge is ADOPTED, the petition for a writ of habeas corpus is DISMISSED without prejudice and no certificate of appealability will be granted.