Opinion
Civil Action 21-658
06-17-2021
LG STREET, Petitioner, v. SUPERINTENDENT KEVIN J. RANSOM; and ATTORNEY GENERAL OF THE STATE OF COMMONWEALTH OF PENNSYLVANIA, Respondents.
Re: ECF No. 4
Nora Barry Fischer, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
I. RECOMMENDATION
It is respectfully recommended that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 4, filed by Petitioner LG Street (“Petitioner”) be dismissed without prejudice because Petitioner currently is exhausting his statecourt remedies. It further is recommended that a certificate of appealability be denied, to the extent that one is required.
II. REPORT
A. Relevant Background
On May 20, 2019, Petitioner was convicted of Assault on a Law Enforcement Officer, Aggravated Assault, Firearms Not to be Carried without a License, and various other crimes in the Court of Common Pleas of Allegheny County in Commonwealth v. Street, No. CP-02-CR-0759-2018. Petitioner was sentenced to an aggregate term of twenty to forty years' incarceration on the same date. He challenges that judgment of sentence in the Petition, which was received by this Court on May 18, 2021. ECF Nos. 1 and 4.
The Pennsylvania 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 May 10, 2021, Petitioner filed a motion for relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. § 9541 et seq. This is confirmed in the Petition itself. ECF No. 4 at 3. As of the date of this Report and Recommendation, the PCRA petition is still pending.
B. Legal Analysis
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.
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 -
(A) the applicant has exhausted the remedies available in the courts of the State[.]
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).
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).
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 Petitioner 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.
In the instant case, Petitioner is currently litigating a challenge to his May 20, 2019, conviction and sentence in a pending PCRA proceeding. Accordingly, this Court must dismiss his federal habeas petition. The dismissal should be without prejudice to Petitioner commencing another federal habeas case if, after the completion of his state court remedies, he does not receive the relief he that seeks in state court.
Furthermore, the issuance of a certificate of appealability is not warranted. The Antiterrorism and Effective Death Penalty Act of 1996 (“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 2021) (citations omitted). See also Gacho v. Butler, 792 F.3d 732, 735-37 (7th Cir. 2015).
If a certificate of appealability determination is required, this Court should conclude that the Petitioner 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 reasons set forth herein, it is respectfully recommended that the Petition, ECF No. 4, be dismissed without prejudice. It further is recommended that a certificate of appealability be denied, to the extent that one is required.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011).