Opinion
Civil Action No. 04-2530.
October 12, 2004
REPORT AND RECOMMENDATION
Presently before the Court is the pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Dosh Coverdale ("Petitioner"), pursuant to 28 U.S.C. section 2254, Petitioner's uncontested Motion to Dismiss, and correspondence from Respondents' counsel advising that the Motion to Dismiss is unopposed. Petitioner is incarcerated in the State Correctional Institution in Chester County. For the reasons that follow, it is recommended that the Petition should be denied and dismissed without prejudice.
This information is taken from the Petition for Writ of Habeas Corpus.
On September 14, 1998, Petitioner's fifty-nine month probation was reinstated, his probation was ordered under Delaware supervision, and he was ordered to pay restitution during his probation. The Chester County Probation Department filed a violation of probation report on July 30, 2003 for failure to pay restitution. Following a hearing on July 30, 2003, the hearing officer granted Petitioner a three year non-reporting probation period so that Petitioner could complete his restitution payments. Petitioner was arrested on March 3, 2004, and on March 5, 2004, the Chester County Probation Department lodged a detainer against him for violating his probation.
Petitioner, acting pro se, filed the instant Petition for Writ of Habeas Corpus on June 10, 2004, claiming: (1) a violation of his Fifth and Fourteenth Amendment rights when he did not receive notice of a probation violation or report, and he never received a Gagnon hearing to determine any violation (Pet., p. 9); (2) violation of the protection against double jeopardy (Id. at 9-10); (3) violation under Rule 708 of the Rules of Criminal Procedure (Id. at 10); (4) violation under Rule 456(A) and 18 Pa. C.S.A section 1106(c)(2)(iv) (Id.); and (5) violation of Petitioner's right to bail under the Eighth Amendment of the United States Constitution. (Id. at 10A.) This case was referred to me for preparation of a Report and Recommendation by the Honorable Herbert J. Hutton on July 9, 2004. On September 28, 2004, counsel for Respondents submitted a letter to this Court stating that Petitioner's state court counsel advised that Petitioner would be seeking dismissal of his Petition without prejudice in order to exhaust his state court remedies. Petitioner filed his pro se Motion to Dismiss on October 4, 2004.
II. DISCUSSION.
Petitioner asks this Court to dismiss his Petition without prejudice. Petitioner is represented by counsel at the state court level and some agreement with respect to Petitioner's claims is being reached with the District Attorney. Thus, this Court should "stay its hand" and dismiss, without prejudice, the instant Petition for Writ of Habeas Corpus as unexhausted to allow Petitioner to exhaust his claims in state court. Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the uncontested Motion to Dismiss the Petition for Writ of Habeas Corpus should be GRANTED and the Petition should be DENIED and DISMISSED without prejudice. Petitioner's other outstanding Motion, to Order the Lower Court to Furnish the July 30, 2003 Transcripts, should be DENIED as moot. There is no probable cause to issue a certificate of appealability.