Opinion
Civil Action No. 1:20-cv-271
03-11-2021
WESLEY MASSEY, Petitioner, v. LEE ESTOCK and ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
Judge Susan Paradise Baxter
REPORT AND RECOMMENDATION
I. RECOMMENDATION
Wesley Massey is state prisoner in the custody of the Pennsylvania Department of Corrections at SCI Pine Grove. Pending before the Court is his Petition for a Writ of Habeas Corpus. (ECF No. 8.) For the reasons set forth below, it is recommended that the Court dismiss the Petition because Massey has not exhausted his available state court remedies. It is further recommended that the Court deny a certificate of appealability with respect to the claims Massey raised in the Petition and on his motion that he be released immediately to bail pending the outcome of this habeas case, which was denied in a prior order. (See ECF Nos. 7, 16.)
II. REPORT
A. Background
Massey is serving an aggregate term of imprisonment on judgments of sentences imposed by the Courts of Common Pleas of Erie and Crawford Counties. (ECF No. 8 at 1.) His minimum sentence will expire on November 22, 2021. (ECF No. 8-1 at 2.)
Massey initiated this habeas case in September 2020. His Petition for a Writ of Habeas Corpus (ECF No. 8), which he brings pursuant to 28 U.S.C. § 2254, was filed by the Clerk of Court on November 2, 2020 after he paid the filing fee.
In this federal habeas case, Massey seeks an order directing SCI Pine Grove's Superintendent, Lee Estock, to "compassionately release" him to home confinement due to the risk posed by COVID-19. In his Petition and subsequent filings, Massey pointed out that SCI Pine Grove was experiencing an outbreak of COVID-19 and that his underlying medical conditions (diabetes, hypertension, heart disease, and obesity) make him high-risk for mortality if he were to contract COVID-19. He alleged that officials at SCI Pine Grove are deliberately indifferent to his health and safety needs in violation of his Eighth Amendment rights and that they are also violating his substantive due process rights. (ECF No. 8 at 5.) Thus, Massey is not claiming that the judgments of sentences that he is serving are invalid because they were imposed in violation of his constitutional rights. Rather, he is claiming that his current imprisonment as a result of those sentences has been rendered unconstitutional due to the conditions at the facility where he is incarcerated.
Massey already is challenging his conditions of confinement as they pertain to COVID-19 in a separate civil action he filed under 42 U.S.C. § 1983 at Massey v. Wetzel, et al., No. 2:20-cv-722. Massey commenced that civil rights action in May 2020, and in it he filed an injunction motion under Rule 65(b) of the Federal Rules of Civil Procedure in which he requested relief in the form of temporary release to his home, under GPS monitoring. On June 3, 2020, the Court denied his request for injunctive relief to the extent that he sought temporary release from incarceration and ordered briefing and scheduled a hearing on whether alternative injunctive relief was warranted. (ECF No. 6 in No. 2:20-cv-722.) The Court held a telephonic hearing on Massey's injunction motion on June 30, 2020.
On September 19, 2020, the Court issued a Memorandum Order denying Massey's injunction motion. (ECF No. 16 in No. 2:20-cv-722.) It held that he failed to meet his burden of showing that he will face irreparable harm if injunctive relief is not granted and also that he failed to establish a likelihood of success on the merits. The Court concluded that Massey's "allegations of deliberate indifference are unavailing[,]" and found that at officials at SCI Pine Grove have in good faith taken all reasonable and appropriate measures to implement the protocols mandated by the DOC in accordance with the guidelines that have been promulgated by the Center for Disease Control. (Id. at 6-7.)
On November 16, 2020, Massey filed a motion in his § 1983 action asking the Court to reconsider its decision denying him preliminary injunctive relief in light of the then-recent increase in the number of COVID-19 cases at SCI Pine Grove. (ECF No. 22 in No. 2:20-cv-722.) The Court held a telephonic hearing on Massey's motion for December 1, 2020 and denied his motions for reconsideration. (ECF No. 36 in No. 2:20-cv-722.) Massey has appealed that decision.
In the meantime, not long after he initiated this habeas case, Massey filed a motion (ECF No. 4), styled as one for emergency injunctive relief, in which he sought an order from the Court directing that he be released immediately to bail pending the outcome of this habeas case. (See ECF No. 5 at 15.) That motion was denied by order dated November 2, 2020 because Massey did not demonstrate that this case presented the type of extraordinary or exceptional circumstances that would entitle him to bail pending review of his habeas petition. (ECF No. 7.) Massey then filed a motion requesting that the Court grant him a certificate of appealability with respect to the decision to deny his emergency motion for bail. (ECF No. 16.) To the extent that a certificate of appealability is required, it is recommended that the Court deny his request because the federal habeas case should be dismissed for the reasons discussed below.
Massey's Petition has been served upon Respondents. The Court directed that in their answer they had to address: (1) the allegations in the Petition; (2) whether Massey can challenge the conditions of confinement as they relate to the COVID-19 pandemic in a petition for a writ of habeas corpus; and (3) what, if any, state court remedies are available to Massey. See 28 U.S.C. § 2254(b), (c). (ECF No. 12.)
Respondents filed their answer on February 5, 2021. (ECF No. 20.) They assert that the Court should dismiss the Petition because Massey has not availed himself of available remedies under state law. They also assert that a habeas petition is not the appropriate means for Massey to challenge his current conditions of confinement; that the Petition should be dismissed because it is duplicative of his § 1983 civil action; and that Massey cannot established that his Eighth Amendment rights are being violated.
Massey's reply was due by March 8, 2021. Local Rule 2254.E.2. No reply has been filed as of the time of the issuance of this Report and Recommendation.
B. Discussion
28 U.S.C. § 2254 is the federal habeas statute that applies to persons, such as Massey, who are "in custody pursuant to the judgment of a State court[.]" 28 U.S.C. § 2254(a). See, e.g., Felker v. Turpin, 518 U.S. 651 (1996) ("Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to 'a person in custody pursuant to the judgment of a State court.'"); Coady v. Vaughn, 251 F.3d 480, 484-85 (3d Cir. 2001). This statute permits a federal court to entertain an application for habeas corpus relief from a state prisoner, in relevant part, "only on the ground that he or she is in custody in violation of the Constitution . . . of the United States." 28 U.S.C. § 2254(a). The purpose of a writ of habeas corpus is to challenge the legal authority under which a prisoner is held in custody. See, e.g., Keitel v. Mazurkiewicz, 729 F.3d 278, 280 (3d Cir. 2013) (citing, inter alia, Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). Massey carries the burden of proving that he is entitled to the writ. See, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017).
It has long been the rule in the Third Circuit that a state prisoner cannot challenge the conditions of confinement in habeas action. See, e.g., Williams, et al. v. Sec'y Pennsylvania Dep't of Corr., 459 F. App'x 87, 88-89 (3d Cir. 2012) (citing Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002)); Lopez v. Wetzel, No. 12-cv-96, 2012 WL 345215, *1-5 (W.D. Pa. Feb. 1, 2012). However, throughout the past year courts have had to consider whether conditions of confinement can be litigated in a habeas case due to the unique threat posed by the COVID-19 pandemic to incarcerated individuals. The Court of Appeals in Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020) held that immigration detainees could challenge their conditions of confinement as they relate to COVID-19 in a habeas petition under 28 U.S.C. § 2241. It did not expressly extend that rule to state prisoners who are in custody pursuant to a criminal judgment. Hope, 972 F.3d at 324 ("Although the context of the vast majority of habeas cases involve challenges to criminal judgments, the language of the habeas statute justifies resort to the writ by non-prisoner detainees.") (emphasis added). The Court of Appeals also observed that habeas corpus is an extraordinary remedy and would only be available to attack conditions of confinement in extreme cases. Id.; see also Money v. Pritzker, et al., 453 F Supp. 3d 1103, 1119 (N.D. Ill. 2020) (concluding that "it is abundantly clear" that the state prisoners in the case before it could proceed with their COVID-19 related claims under § 1983, and that it was "at least plausible—though far less certain—that they also have a right to seek habeas relief as well.")
The Court need not decide at this time whether Massey can challenge his COVID-related conditions of confinement in a § 2254 habeas action and, if so, whether his claims have merit. That is because Massey has not exhausted his available state court remedies.
In their answer, Respondents explain that "Massey has a very direct state law remedy in a state law habeas action" under 42 PA. CONS. STAT. § 6502(a) and that he has not exhausted that available state law remedy. (ECF No. 20 at 3-4.) A federal habeas petitioner must complete the exhaustion of his available state-court remedies before a district court may determine the merits of his habeas claims. Congress codified this requirement at 28 U.S.C. § 2254(b) and (c) for state prisoners in custody pursuant to a state court judgment. Those provisions provide:
(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.
- - -
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The exhaustion requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). Federal court intervention would be premature whenever a state procedure still affords a petitioner with an opportunity to obtain relief from the judgment of sentence that he seeks to attack in a federal habeas proceeding. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1998) ("The exhaustion requirement does not foreclose federal relief, but merely postpones it."). See also O'Sullivan v. Boerckel, 526 U.S. 838, 842-49 (1999); Parker v. Kelchner, 429 F.3d 58, 61 (3d Cir. 2005) ("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.") (internal citations and quotations omitted).
In his Petition, Massey indicated that he believed that he satisfied the exhaustion requirement because in May 2020 he filed an unsuccessful application for extraordinary relief with the Supreme Court of Pennsylvania asking it to exercise its King's Bench jurisdiction. There is no basis to conclude that this is a proper mechanism under state law to exhaust the claims at issue in this habeas case, particularly in light of Respondents' explanation that the remedy available to Massey under state law is a state habeas petition filed under 42 PA. CONS. STAT. § 6502(a). In order to show that he has satisfied the exhaustion requirement, Massey must demonstrate that he raised his federal constitutional claims to the state courts through the proper vehicle, not just that he raised a federal constitutional claim before a state court at some point. See, e.g., O'Sullivan, 526 U.S. at 845 (a petitioner must have presented a claim through the "established" means of presenting a claim in state court at the time); Ellison v. Rogers, 484 F.3d 658, 660-62 (3d Cir. 2007) (the petitioner's claims of ineffective assistance were not exhausted properly even though he had raised those claims on direct review. State law required that ineffective assistance claims be raised in state post-conviction review and the petitioner had not sought such review).
Here, there is no basis for the Court to conclude that "there is an absence of State corrective process" or that "circumstances exist that render such process ineffective to protect the rights of" Massey. 28 U.S.C. § 2254(b)(1)(B). Accordingly, Massey must exhaust his available state court remedies before the Court may consider his request for federal habeas relief. See, e.g., Clauso v. Warden, No. 20-cv-5521, 2020 WL 2764774 (D. N.J. May 27, 2020) (dismissing state prisoner's COVID-19 related § 2254 habeas petition for failure to exhaust state court remedies), certificate of appealability denied in Clauso v. Administrator South Woods State Prison, et. al., No. 20-2157 (3d Cir. Sept. 16, 2020); Maclin v. Rewerts, No. 1:20-cv-595, 2020 WL 4362300, *4 (W.D. Mich. July 30, 2020) (state prisoner seeking habeas relief due to COVID-19 must file a state court habeas action in order to meet exhaustion requirement); see also Money, 453 F Supp. 3d at 1134-36.
The general rule is that a district court should dismiss a federal habeas petition if the petitioner has available state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269, 273-79 (2005). The Court should apply that rule in this case and dismiss the Petition without prejudice to Massey commencing another federal habeas case if, after the completion of his litigation of a state habeas petition, he does not receive the relief he seeks in state court.
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from...the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). It also provides that "[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). This Court need not issue a certificate of appealability because "[a] district court's order dismissing, without prejudice, a petition for federal habeas relief for failure to exhaust state-court remedies is not a final appealable order, since it explicitly entitles the petitioner to renew habeas proceedings upon completion of review of his claims in the state court system." Brian R. Means, FEDERAL HABEAS MANUAL § 12.30, Westlaw (database updated May 2020); see also Gacho v. Butler, 792 F.3d 732, 735-37 (7th Cir. 2015). To the extent a certificate of appealability determination is required with respect to the Court's decision to dismiss Massey's Petition, or the decision to deny his motion requesting that he be released immediately to bail (see ECF Nos. 7, 16), Petitioner is not entitled to one because jurists of reason would not find it debatable whether this habeas case should be dismissed because Massey has not exhausted available state court remedies. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. CONCLUSION
Based upon the foregoing, it is recommended that the Court dismiss Massey's Petition for a Writ of Habeas Corpus without prejudice and deny a certificate of appealability with respect to the claims Massey raised in the Petition (ECF No. 8) and on the decision to deny his motion to be released immediately to bail pending the outcome of this habeas case (ECF No. 16). Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge Date: March 11, 2021