Opinion
Civil Action No. 03-5181.
March 22, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the Curran Fromhold Correctional Facility in Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On October 12, 2002, petitioner was arrested and charged with the following:
(1) rape;
(2) sexual assault;
(3) statutory sexual assault;
(4) indecent assault;
(5) unlawful restraint;
(6) endangering the welfare of children;
(7) corrupting a minor;
(8) simple assault; and
(9) recklessly endangering a person.
A jury trial was held before the Honorable William J. Mazzola of the Philadelphia County Court of Common Pleas on February 27, 2004. On March 4, 2004, the jury reached its verdict, convicting petitioner on counts 1, 2, 3, 4, 6, and 7. The remaining charges had previously been withdrawn by the Commonwealth. Petitioner is scheduled to be sentenced on April 8, 2004.
Petitioner filed his Petition for Writ of Habeas Corpus on September 15, 2003, about five months before his trial commenced. Petitioner alleges that his trial was unreasonably delayed by the Commonwealth, and thus, that his constitutional right to a speedy trial was violated.
Respondent retorts that petitioner failed to exhaust his state remedies, and thus is not entitled to habeas review or relief.
II. EXHAUSTION
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, 119 S.Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under the state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 So. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. 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 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 So. Ct. 750 (1983).
In the Third Circuit, exhaustion has been held to apply in the pre-trial context. In Moore v. DeYoung, 515 F.2d 437, 443-44, n. 6 (3rd Cir. 1975), the court noted that there is a "strong federal policy against entertaining an application for habeas corpus relief before a trial in a state court." Only in the most extraordinary circumstances will the exhaustion requirement be excused.Moore, 515 F.2d at 443, 446.
As noted above, respondent contends that review of petitioner's pre-trial habeas claim is inappropriate at this juncture because petitioner has failed to exhaust his state remedies. We agree. Petitioner has failed to make any appeal to the Pennsylvania state courts. Petitioner has merely asserted a constitutional claim prior to the commencement of his trial, and such an action does not rise to the level of extraordinary.
Petitioner's trial began on February 27, 2004, approximately sixteen months after his arrest. In Dickerson v. Louisiana, 816 F.2d 220 (5th Cir. 1987), the court held that a five year delay in bringing the petitioner to trial did not amount to extraordinary circumstances entitling petitioner to pre-trial habeas review. More recently, Judge Schiller held that a twenty-nine month delay of trial was not enough, on its own, to be considered an extraordinary circumstance. McLaine v. Chiovero, 2002 WL 31455888 (E.D.Pa). Thus, petitioner has failed to prove that his claim is cognizable on federal habeas review.
Because petitioner has failed to exhaust his remedies in state court, his petition must be dismissed without prejudice.
Therefore, I make the following: