Opinion
CIVIL 1:22-CV-510
04-07-2022
MICHAEL SHANE MCCREARY, Petitioner, v. CUMBERLAND COUNTY PROBATION, et al., Respondents.
Wilson, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Statement of Facts and of the Case
This is a pro se habeas corpus petition which now comes before us for our consideration. The petitioner, Michael McCreary, was convicted in the Court of Common Pleas of Cumberland County of firearms and false report charges on a plea of nolo contendere and received a probationary sentence in October of 2020. Commonwealth v. McCreary, CP-21-CR-0002798-2019. Dissatisfied with this outcome, McCreary filed a petition in state court under Pennsylvania's PostConviction Relief Act (PCRA), seeking to set aside this conviction and sentence. That state court petition was denied on February 22, 2022 and McCreary has appealed this adverse ruling. That appeal remains pending. Thus, it is evident that McCreary has not yet fully exhausted his state court remedies.
This is a fatal flaw, since one of the statutory prerequisites to a state prisoner seeking habeas corpus relief in federal court is that the prisoner must “exhaust[] the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Therefore, the instant case presents a model of an unexhausted petition, since the petitioner seeks federal habeas corpus review of a state case which has not yet been fully adjudicated on appeal. In light of the fact that this is undeniably an unexhausted federal habeas corpus petition, the question before this Court is how best to address what is currently a premature and procedurally flawed petition. For the reasons set forth below, it is recommended that this petition be dismissed without prejudice to renewal of the petition once the petitioner has properly exhausted his state remedies.
II. Discussion
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides in pertinent part: “If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court.
In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in [sic] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
(b)(1) 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; ....
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254 (a) and (b).
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may “entertain an application for a writ of habeas corpus in [sic] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates “the Constitution or laws or treaties of the United States,” section 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a “fundamental defect which inherently results in a complete miscarriage of justice” or was completely inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to section 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
Furthermore, state prisoners seeking relief under section 2254 must also satisfy specific, and precise, procedural standards. Among these procedural prerequisites is a requirement that the petitioner “has exhausted the remedies available in the courts of the State” before seeking relief in federal court. 28 U.S.C. § 2254(b). Section 2254's exhaustion requirement calls for total exhaustion of all available state remedies. Thus, a habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. See Whitney v. Horn, 280 F.3d. 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). As the Supreme Court has aptly observed, “a rigorously enforced total exhaustion rule” is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid the federal courts in their review of a section 2254 petition. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been “fairly presented” to the state courts, and the claims brought in federal court must be the “substantial equivalent” of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in seeking state relief, since it is well-settled that a claim of “likely futility on the merits does not excuse failure to exhaust a claim in state court.” Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005). Moreover:
Because of the important societal interests fostered by § 2254(c)'s exhaustion requirement, “[t]he habeas petitioner carries the burden of proving exhaustion of all available state remedies,” which includes full exhaustion through PCRA litigation and appeals of any legal issues which were not adjudicated on direct appeal. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).Bressi v. Solomon, No. 1:21-CV-1187, 2021 WL 4786788, at *4 (M.D. Pa. Aug. 10, 2021), report and recommendation adopted, No. 1:21-CV-01187, 2021 WL 4776751 (M.D. Pa. Oct. 13, 2021).
When presented with a plainly unexhausted petition, like the instant petition, the court has several courses available to it. First, the court can dismiss the petition without prejudice, so that the petitioner can either return to state court and totally exhaust his claims or proceed in federal court on a petition which raises only wholly exhausted issues. Rose, 455 U.S. 509. This total exhaustion approach facilitates the important goals of federalism and comity that are essential to the exhaustion rule and allows for complete legal and factual development of these cases in the state legal system before petitions are presented in federal court.
However, because strict compliance with this total exhaustion rule can create procedural dilemmas for some petitioners, the courts have adopted another procedure which may be employed in a limited number of cases, a “stay and abeyance” procedure in which the federal habeas petition is stayed pending exhaustion of state remedies by the petitioner. Rhines v. Weber, 544 U.S. 269 (2005). Yet, while granting a stay and abeyance is an available procedure, it is not a preferred course of action in these cases. Because a “stay and abeyance” procedure, if used too frequently, can undermine the policies favoring prompt and orderly resolution of state habeas petitions, the Supreme Court has held that:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.Rhines, 544 U.S. at 277. Therefore, in order to qualify for a stay and abeyance, a petitioner should “satisf[y] the three requirements for a stay as laid out in Rhines: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics.” Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
In this case, it is evident that the exhaustion doctrine applies since this federal habeas petition clearly contains legal claims which have not been fully exhausted in state court. Indeed, this federal pleading is the very model of an unexhausted petition which the court ordinarily should dismiss without prejudice so the petitioner can return to state court and totally exhaust these claims. Rose, 455 U.S. 509. Further, in this case, we recommend dismissal of this action, in lieu of any stay and abeyance, because we find that this petitioner has failed to “satisf[y] the three requirements for a stay as laid out [by the Supreme Court] in Rhines: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics.” Heleva, 581 F.3d at 192.
Nor can McCreary avoid this outcome by arguing that exhaustion of these state remedies on his part should be excused due to the futility of exhausting those state remedies. Because of the strong policies favoring exhaustion of state remedies, petitioners who seek to be excused from this requirement must make an exacting showing to forego this exhaustion requirement. Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004); see also Cristin v. Brennan, 281 F.3d 404, 411 (3d Cir. 2002) (refusing to excuse exhaustion in the face of 27-month delay). As a practical matter, the exhaustion requirement will only be excused in extreme cases where “inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable.” Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986).
Here, the state court docket in McCreary's pending state case reveals that the state courts have consistently endeavored to promptly address his claims. Moreover, the docket indicates that the trial court ruled upon McCreary's PCRA petition and he is currently pursuing a state court appeal of this adverse decision. Therefore, we cannot say that “inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable,” Wojtczak, 800 F.2d at 354, and the petitioner has not provided sufficient justification or excuse for this failure to exhaust his state legal remedies which would warrant foregoing the exhaustion requirement that is plainly prescribed by law. Accordingly, the failure to exhaust these state remedies should not be excused, and his petition for writ of habeas corpus should be dismissed.
Thus, in this case the petitioner simply has not met the requirement of full and proper exhaustion of his state remedies prior to proceeding in federal court. Moreover, he has provided no justification or excuse for this failure to exhaust his state legal remedies which would warrant foregoing the exhaustion requirement that is plainly prescribed by law. Therefore, the failure to fully and properly exhaust these state remedies should not be excused, and his petition for writ of habeas corpus should be dismissed without prejudice to renewal, if necessary, once these state court remedies are exhausted.
III. Recommendation
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, (Doc. 1), IT IS RECOMMENDED that the Petition be DISMISSED, without prejudice, and that a certificate of appealability should not issue.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.