Opinion
Civil Action No. 04-2810.
August 24, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Mahanoy in Frackville, Pennsylvania. The petition presents unexhausted claims. As such, I recommend that it be dismissed.
FACTS AND PROCEDURAL HISTORY:
On January 24, 2003, after a bench trial before the Honorable David N. Savitt, Middleton was convicted of first degree murder, robbery, and burglary. Judge Savitt sentenced Middleton to life imprisonment.
Because Middleton intended to challenge the effectiveness of his trial counsel, Judge Savitt granted trial counsel's request to withdraw from Middleton's case and appointed counsel to represent Middleton on appeal. However, no direct appeal was filed on Middleton's behalf. On December 23, 2003, after Middleton became aware that no direct appeal had been filed, he filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, ("PCRA"), 42 Pa.C.S.A. §§ 9541-9551, seeking reinstatement of his direct appellate rights.
On June 25, 2004, after being unable to obtain any confirmation that his PCRA petition had been properly filed, Middleton filed this petition for habeas corpus, claiming that a "complete breakdown in the advocacy process" resulted in the denial of his right to appeal. He claims that he was unlawfully arrested and convicted in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Finally, Middleton refers to the claims that he originally sought to appeal in the state system, including numerous allegations of ineffective assistance of trial counsel.
In response to the habeas petition, the District Attorney asserts that Middleton's claims are unexhausted. Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). According to 28 U.S.C. § 2254(c),
[a]n applicant 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.
Here, Middleton is pursuing his appeal in the state courts. Unbeknownst to him, the PCRA petition was docketed. Despite the fact that Middleton sent the petition to the wrong place, the Clerk of Quarter Sessions forwarded the petition on to the PCRA Unit and the petition was properly filed. Counsel has been appointed to represent Middleton and the case is currently scheduled for a status hearing before Judge Savitt on October 13, 2004. See PCRA Case Computer Display, attached.
Although we can understand Middleton's concern about the filing of his PCRA petition, especially in light of his allegations concerning the denial of his right to a direct appeal, the state appellate process is now underway. Until the state courts have had an opportunity to review Middleton's allegations of error, comity requires that the federal court dismiss the case. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)).
Similarly, although there has been some confusion about the filing of Middleton's appeals, the minor delays involved do not amount to the type of inordinate delay for which the federal court has excused the exhaustion requirement. See Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1991) (eleven year delay);Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986) (unexplained three year delay in post conviction proceeding).
At this point, there is no need to stay consideration of Middleton's habeas petition. Such action is appropriate when dismissal of the petition could jeopardize the timeliness of a later filed petition. See Crews v. Horn, 360 F.3d 146 (3d Cir. 2004) (staying a mixed petition when a pending PCRA petition could be dismissed as untimely, which would not toll the habeas limitations period). Here, Middleton's PCRA petition was clearly timely, filed within one year of his conviction. Thus, the appropriate disposition of Middleton's habeas petition is dismissal. Once he has exhausted his state court remedies, Middleton can return to the federal court, if necessary, mindful of the limitations period imposed by 28 U.S.C. § 2244(d).
For the foregoing reasons, I make the following:
RECOMMENDATION
AND NOW, this 24th day of August, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.