C.S.A. ' 9541 et seq. At the same time, he filed an Amended Post-Conviction Relief Act Petition in the Philadelphia Court of Common Pleas. The claims petitioner seeks to litigate in this Court are, at least in part, identical to the claims he is currently pursuing in state court. Because the state courts have not yet passed upon those issues, the claims have not been properly exhausted in the state system and cannot provide a basis for relief in federal court. This authority raises the question of whether returning petitioner's unexhausted claims to state court would be futile.
Petitioner faces two possible procedural barriers in state court.
At least some of petitioner's unexhausted claims may be treated as waived under this provision by Pennsylvania's courts. Accordingly, we conclude that a return to state court would not be futile. The Third Circuit recently addressed, in Lambert , the question of whether it would be futile for a petitioner to return to state court where she is apparently barred by the PCRA's statute of limitations. Lambert held that an otherwise barred petition might nonetheless be heard by a state court under one of the exceptions to the PCRA's statute of limitations. Under the prior statute which did not contain a statute of limitations provision, the Pennsylvania courts were lenient in allowing collateral review after long delays, especially in situations involving ineffective assistance of counsel.