Opinion
Civil Action No. 04-5057.
December 27, 2004.
REPORT AND RECOMMENDATION
Currently pending before the Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner who is currently incarcerated in the State Correctional Institution in Mercer, Pennsylvania. For the reasons which follow, the Court recommends that the petition be denied and dismissed without prejudice.
I. PROCEDURAL HISTORY
On August 25, 2003, following a non-jury trial in the Philadelphia County Court of Common Pleas before Judge Bradley Moss, petitioner was convicted of criminal trespass, theft by receiving stolen property, and simple theft. On November 18, 2003, after obtaining pre-sentence and mental health reports, Judge Moss sentenced petitioner to 12-24 months of incarceration, to be followed by five years of reporting probation. Petitioner filed a direct appeal with the Superior Court of Pennsylvania on December 8, 2003. Although it is not clear whether petitioner filed a motion, on December 19, 2003, upon reconsideration, the trial court issued an order removing the probation component of the sentences for theft and theft by receiving stolen property, but not altering the sentence for criminal trespass. After petitioner indicated that he did not wish to be represented by counsel for his appeal, by order dated April 16, 2004, the Superior Court remanded the case and directed the trial court "to conduct an on the record determination as to whether the Appellant's waiver of counsel is knowing, intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988. . .". The matter was re-assigned to the Honorable Chris R. Wogan because Judge Moss was no longer sitting on the Court of Common Pleas. Judge Wogan attempted to conduct the colloquy on July 13, 2004, August 4, 2004 and on October 21, 2004, which was to be done by video conference between the court and petitioner's prison. However, according to the docket entries, at the last two listings petitioner refused to participate. The colloquy is now scheduled for January 13, 2005. In the meantime, petitioner filed a Writ of Mandamus in the Pennsylvania Supreme Court on May 24, 2004, alleging ineffective assistance of counsel and that he had been deprived of his right to proceed pro se when his attorney continued to act as stand-by counsel. On August 31, 2004, the Supreme Court of Pennsylvania issued an order granting petitioner leave to file original process and denying his Petition for Writ of Mandamus and/or Extraordinary Relief.
This procedural history was compiled from a review of petitioner's Petition for Writ of Habeas Corpus and the response and exhibits filed by the District Attorney's Office.
On July 14, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging the following grounds for relief:
1. Denial of effective assistance of counsel because the court abused his pro se status by imposing waived counsel back on petitioner as stand by counsel, for not allowing petitioner the right to cross-examine witnesses or testify on his own behalf, counsel's refusal to investigate the site of the crime and evidence, and refusal to file a motion for a Brady violation;
2. Prosecutorial misconduct for the failure to disclose evidence favorable to petitioner because investigator he hired was not permitted to photograph piping materials;
3. Denial of due process resulting from Judge Moss' refusal to order the court reporter to furnish a transcript for appellate review and failure to file a written opinion for post-trial motion; and
4. Prosecutorial misconduct and trial court misconduct resulting from refusal to allow petitioner the right to cross-examine a witness himself and threats of force by court deputy.
The Commonwealth responds by arguing that the instant petition is premature and should be dismissed without prejudice.
II. FAILURE TO EXHAUST STATE COURT REMEDIES
Respondent argues that petitioner's claims are procedurally defaulted as a result of his failure to exhaust state court remedies. Bound by the prevailing jurisprudence, the Court finds merit to the argument and recommends dismissal without prejudice due to the fact that petitioner's direct appeal is currently pending in state court.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right, under state law, to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350, reh'g denied, 490 U.S. 1076 (1989). A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise, they risk depriving state courts of the "opportunity to correct their own errors, if any."Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). Where, however, a return to state court would be futile because there is an absence of available state corrective process, the exhaustion requirement is satisfied. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), cert. denied, 531 U.S. 1082, 121 S. Ct. 785 (2001). Accordingly, the Third Circuit has held that exhaustion is not required if there is inordinate delay in state procedures,Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir. 1991), or if state officials have obstructed the petitioner's attempts to obtain state remedies, Mayberry v. Petsock, 821 F.2d 179 (3d Cir.), cert. denied, 484 U.S. 946, 108 S.Ct. 336 (1987).
Notably, exhaustion is not a jurisdictional requirement, but rather a rule of comity. Evans v. Court of Comm on Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992), cert. dismissed, 506 U.S. 1089 (1993).
In the case at bar, petitioner's appeal is currently pending in state court, giving him the opportunity to raise his claims. The fact that petitioner has refused to participate in the colloquy when previously scheduled certainly does not indicate that there is an absence of state corrective procedure. There clearly has not been any inordinate delay in the state procedures. In fact, the colloquy has already been listed on three occasions and is currently scheduled for January. Once petitioner participates in the colloquy to determine if he can proceed pro se, his appeal can then be heard. In light of this ongoing state court activity, this Court must, under 28 U.S.C. § 2254(b), dismiss the claims without prejudice as unexhausted. The doctrine of comity "teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.'" Rose v. Lundy, 455 U.S. 509, 518 (1982) (quotations omitted). Certainly, if we were to act on the petition at this time, we would be stepping on the toes of the state court and usurping its right to consider claims before it without interference from the federal judiciary.
This Court's refusal to hear petitioner's claims on the merits at this time does not preclude him from returning to the Court once he has exhausted his claims through the state courts. Should petitioner not be satisfied with the results from the state courts, he may file, in a timely manner, a new Petition for Writ of Habeas Corpus. At the current time, however, we must act within the principles of comity and decline to entertain the petition on its merits.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this ____ day of December, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED AND DISMISSED WITHOUT PREJUDICE. There is no probable cause to issue a certificate of appealability.