Opinion
Civil Action No. 18-02 Erie
08-10-2018
JAMIE CRUZ, Petitioner, v. COMMONWEALTH, et al., Respondents.
Judge Nora Barry Fischer
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION I. RECOMMENDATION
State prisoner Jamie Cruz ("Cruz") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 5). Federal district courts have a pre-service duty to screen and summarily dismiss habeas petitions that plainly show the petitioner is not entitled to relief. See Rule 4 of the Rules Governing Section 2254 Cases In the United States District Courts. For the reasons set forth below, it is recommended that the Court summarily dismiss Cruz's petition without prejudice because he is exhausting his state-court remedies. II. REPORT
A. Relevant Background
In March 2017, Cruz appeared before the Court of Common Pleas of Erie County in his case at Commonwealth v. Cruz, No. CP-25-CR-2299-2016 and pleaded guilty to counts of terroristic threats, simple assault, receiving stolen property, and stalking. The Court of Common Pleas sentenced Cruz on May 9, 2017. He challenges that judgment of sentence in the petition for a writ of habeas corpus that he filed with this Court. (ECF No. 5).
The state courts' docket sheets are available online at https://ujsportal.pacourts.us and this Court shall take judicial notice of them. They show that on or around September 29, 2017, Cruz filed a motion for collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. In October 2017, the PCRA court appointed William J. Hathaway, Esq., to represent Cruz. On or around April 20, 2018, the PCRA court issued an order that dismissed Cruz's request for collateral relief. Cruz is currently litigating his appeal of that decision to the Superior Court of Pennsylvania at appellate docket number 728 WDA 2018.
B. Discussion
A federal habeas petitioner must complete the exhaustion of his available state-court remedies before a federal district court may determine the merits of his habeas claims. This exhaustion requirement is codified at 28 U.S.C. § 2254(b)(1)(A), which provides:
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 -
The 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).(A) the applicant has exhausted the remedies available in the courts of the State[.]
The general rule is that a district court must dismiss a federal habeas petition if the petitioner is exhausting his available state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269, 273-79 (2005) (discussing the general rule as set forth in Rose v. Lundy, 455 U.S. 509 (1982) and the limited exception to it, which does not appear to apply here). Because Cruz is currently litigating challenges to his May 9, 2017, judgment of sentence in his PCRA proceeding, this Court must dismiss his federal habeas petition. The dismissal should be without prejudice to Cruz commencing another federal habeas case if, after the completion of his state court remedies, he does not receive the relief he seeks in state court.
After Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal habeas courts were faced with how to resolve the interaction between AEDPA's one-year statute of limitations (codified at 28 U.S.C. § 2244(d)) and the pre-AEDPA rule set forth in Lundy that required that federal courts dismiss without prejudice habeas petitions that contain unexhausted claims. Rhines, 544 U.S. at 275 ("As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with 'mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.") In Rhines, the Supreme Court held that in order to avoid predicaments that may arise in attempting to comply with AEDPA's statute of limitations while at the same time exhausting claims in state court, a state prisoner may file a "protective" habeas petition in federal court and ask the district court to stay the federal habeas proceeding until state remedies are exhausted. If Cruz believes that this Court should stay this case while he exhausts his state-court remedies (instead of dismissing it without prejudice), he must explain in objections to this Report and Recommendation why the Court should follow that course. --------
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 make a certificate of appealability determination 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, WestlawNext (database updated May 2017) (citations omitted). See also Gacho v. Butler, 792 F.3d 732, 735-37 (7th Cir. 2015). If a certificate of appealability determination is required, the Court should conclude that the Cruz is not entitled to one since jurists of reason would not find it debatable whether the petition should be dismissed. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Cruz's petition for a writ of habeas corpus be dismissed without prejudice.
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, Cruz is 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/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge Dated: August 10, 2018 cc: Nora Barry Fischer
United States District Judge Notice by first class mail to all of the following:
Jamie Cruz
MY5474
SCI ALBION
10745 Route 18
c/b 13-15
Albion, PA 16475-0002
Pennsylvania Office of Attorney General
16th Floor, Strawberry Square
Harrisburg, PA 17120
Jack Daneri, Esq.
Erie County District Attorney's Office
Erie County Courthouse
140 West Sixth Street
Erie, Pennsylvania 16501