Opinion
Civil Action No. 05-4760.
March 15, 2006
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Steven Harrison Smith ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is not currently incarcerated. For the reasons that follow, it is recommended that the Petition should be denied without prejudice and dismissed without an evidentiary hearing.
I. PROCEDURAL HISTORY.
Petitioner was arrested on August 24, 2004, and was subsequently charged with aggravated assault, recklessly endangering another person, simple assault, and resisting arrest. On October 24, 2004, Petitioner filed a federal petition for writ of habeas corpus. That petition, Civil Action No. 04-cv-4934, was assigned to the Honorable Jan E. Dubois, who dismissed the case without prejudice on May 26, 2005, because Petitioner neither tendered the required filing fee nor apprised the Court of his proper mailing address.
On September 6, 2005, Petitioner filed the instant pro se Petition for Writ of Habeas Corpus, containing virtually identical claims as the October 24, 2005 petition, i.e., that the 9th Police District in the City of Philadelphia engaged in hate crimes, microagression, color of crime, and kidnapping. On March 7, 2006, Petitioner was convicted in the Municipal Court of Philadelphia County of simple assault and was sentenced to one year of reporting probation. Respondents contend that Petitioner has not exhausted his state court remedies, and the Petition must be denied without prejudice and dismissed without an evidentiary hearing.
II. DISCUSSION.
Petitioner has not exhausted his state remedies. In order to exhaust a claim, Petitioner must present his claim for every level of state court review. Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Conner, 404 U.S. 270, 275 (1971)). A state prisoner must exhaust the remedies available to him in state courts before he may obtain federal habeas review of his Petition. See 28 U.S.C. § 2254(b)(1)(A). The burden is on the petitioner to prove that he has appropriately exhausted his available state court remedies. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993).
An exception to the exhaustion requirement is made "only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (citations omitted); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The United States Court of Appeals for the Third Circuit has held that "our case law forecloses a District Court from excusing exhaustion `unless state law clearly forecloses state court review of claims which have not previously been presented to a state court.'" Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001) (quoting Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000) (emphasis in original)). Here, Petitioner is not foreclosed from state court review of his claims.
The Third Circuit has advised that, "in cases where there is any doubt about the availability of a state remedy, the claim must be dismissed." Coady, 251 F.3d at 489 (citing Lines, 208 F.3d at 163). Petitioner will not be prejudiced by a dismissal of this Petition without prejudice. He will be able to file another petition when the subject claims, to the extent that they are cognizable, become ripe for adjudication. Such petition will not be considered new since the merits of the claims were never reviewed by a federal court. See Slack v. McDaniel, 529 U.S. 473, 487-490 (2000).
Petitioner must return to state court to litigate his unexhausted claims in a timely manner so as not to exceed the one-year period of limitations for federal habeas actions established by the AEDPA. The PCRA also includes a statute of limitations which requires a post-conviction action to be instituted within one year of the date upon which the conviction under attack became final. See 42 Pa. C.S.A. § 9545 (1), (3). Petitioner is advised that the federal statute of limitations continues to run, except for the period in which a properly filed state collateral action, or PCRA proceeding, is pending. See 28 U.S.C. § 2244 (d)(2). Due to principles of comity, this Court must deny the instant Petition without prejudice.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 15th day of March, 2006, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. section 2254 should be DENIED without prejudice and DISMISSED without an evidentiary hearing. There is no probable cause to issue a certificate of appealability.