Opinion
C.A. No. 03-456 T
November 25, 2003
Report and Recommendation
John Falcone, pro se filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his August 2003 conviction in the Rhode Island state courts of a probation violation. The Attorney General of the State of Rhode Island has moved to dismiss the petition. Falcone has objected. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that the Attorney General's motion to dismiss be granted.
Discussion
On August 6, 2003, petitioner John Falcone was found to have violated the terms and conditions of his probation by a state trial justice. For this violation, the petitioner was sentenced to serve eighteen months incarcerated. Petitioner, without appealing the violation finding or sentence to the Rhode Island Supreme Court, brought this instant writ of habeas corpus contending that his Fourth and Fourteenth Amendment rights were infringed.
However, before a federal court may grant habeas relief, a petitioner must exhaust his remedies available in state court. A petitioner satisfies the exhaustion doctrine by fairly presenting his claims to the highest state court with jurisdiction to consider them. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Picard v. Connor, 404 U.S. 270, 276 (1971). 'This means that the habeas petitioner must have presented the substance of his federal constitutional claim to the state appellate court so that the state court had the first chance to correct the claimed constitutional error." Lanigan v. Maloney, 853 F.2d 40, 42 (1st Cir. 1988). Only if the same factual and legal theory that forms the basis of the petitioner's habeas petition has been presented to the state court will the petition for writ be properly before the federal court.See Scarpa v. Dubois, 38 F.3d 1, 6-7 (1st Cir. 1994);Nadonworthy v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). A claim is not considered exhausted if the petitioner has the right under the law of the state to raise, by any procedure available, the question presented.
In the instant application, petitioner contends that his Fourth and Fourteenth Amendment rights were violated. Although he has avenues in which he can present these claims to the state courts (a direct appeal or motion for post conviction relief pursuant to R.I. Gen. Laws § 10-9.1-1 et seq.), he has failed to do so. Petitioner has not adequately presented any of his claims to the state courts for determination.
Accordingly, I find that the claims the petitioner presents in the instant application are unexhausted. Therefore, the Attorney General's motion to dismiss the habeas petition should be granted. I so recommend.
Conclusion
For the reasons set forth above, I recommend that the Attorney General's motion to dismiss be granted. Any objection to this report and recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision.See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co. 616 F.2d 603 (1st Cir 1980).