Opinion
CIVIL NO. 1:CV-08-1658.
July 7, 2009
MEMORANDUM
I. Introduction
On September 5, 2008, Amadeo Nocchi, currently a state inmate at SCI-Dallas, Dallas, Pennsylvania, filed this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. He asserts one ground for relief, that his right against double jeopardy was violated when his sentence took into account a prior criminal offense.
The Commonwealth opposes the petition on several grounds, among them that Petitioner has failed to exhaust state-court remedies. We agree that Petitioner has failed to exhaust his state-court remedies and will deny the petition on that basis.
II. Background
The record reveals the following. Petitioner pled guilty in the Court of Common Pleas of Luzerne County, Pennsylvania, to two offenses of delivering a controlled substance, namely, cocaine. The offenses were charged in two separate dockets, No. 40-CR-2467-2004 and No. 40-CR-2468-2004. On January 3, 2005, Petitioner was sentenced to 15 to 60 months on each offense to be served concurrently under house arrest. No direct appeal was taken. On September 8, 2005, this sentenced was revoked and Petitioner was sentenced to 15 to 60 months in prison.
On December 22, 2005, Petitioner filed a petition under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541- 9546, alleging that trial counsel was ineffective in not arguing that Pa. R. Crim. P. 600 was violated when he was not sentenced within 180 days. (Doc. 17-2, CM/ECF p. 2). On February 24, 2006, the trial court denied the PCRA petition. ( Id., pp. 10-11). On August 24, 2006, Petitioner filed the same PCRA petition, which was denied by order of August 24, 2006, docketed on August 28, 2006. ( Id., p. 12). On January 3, 2007, Petitioner filed the same PCRA petition again, and it was denied by order of January 3, 2007, docketed on January 4, 2007. ( Id., p. 13). On January 10, 2008, Petitioner filed a fourth PCRA petition, asserting that his trial counsel was ineffective in not arguing that his sentencing calculation was incorrect under state law because it was based on a quantity of cocaine between 100 and 1,000 grams and Petitioner had delivered less than 2.5 grams. ( Id., p. 14). That petition is still pending.
III. Discussion
IV. Conclusion
28 U.S.C. § 2254Villot v. Varner373 F.3d 327337 see 28 U.S.C. § 22534See22
Given the passage of time, it appears that Petitioner cannot return to state court to litigate his double jeopardy claim, so exhaustion could be said to be excused here since Petitioner no longer has an available state-court remedy, see Arce v. Outlaw, No. 4:CV-05-2479, 2007 WL 465570, at *9 (M.D. Pa. Jan. 10, 2007), but Petitioner has failed to argue cause-and-prejudice or a miscarriage of justice that would excuse the resulting procedural default. Id.
ORDER
AND NOW, this 7th day of July, 2009, it is ordered that:
1. The petition (doc. 1) for writ of habeas corpus under 28 U.S.C. § 2254 is denied for failure to exhaust state-court remedies.
2. A certificate of appealability is denied.
3. The Clerk of Court is directed to close this case.