Opinion
Civil Action No. 04-1784.
June 8, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court recommends that the petition be dismissed without prejudice for failure to exhaust state court remedies.
I. BACKGROUND
According to petitioner, he pled guilty in 1999 to possession with intent to deliver marijuana in the Court of Common Pleas for Philadelphia County. He was sentenced to eighteen months of probation and ordered to pay court costs and a laboratory fee in the aggregate amount of $345.00. (Trial Transcript, 6/3/99, at 13.) He neither appealed his conviction to the Superior Court of Pennsylvania nor filed a petition pursuant to the Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541,et seq. (Petition at 10-11.) On the basis of his conviction, petitioner later was ordered deported to his native Jamaica.Id. at 3-4.
In his petition, petitioner contends that his "guilty plea was unknowing and involuntary." (Petition at 2.) A review of the June 3, 1999 trial transcript, however, reveals that petitioner agreed to an "open stipulated trial." (Trial Transcript, 6/3/99, at 4.) Petitioner entered a plea of not guilty. Id. at 9. The Assistant District Attorney explained the procedure for the stipulated trial to petitioner during the proceeding as follows: "The Commonwealth will mark and move pieces of paperwork in for the judge to consider and the judge will look at the paperwork and based on that he will make his decision." Id. at 7. The court found petitioner guilty of the charges against him. Id. at 10.
By way of this petition, petitioner challenges his conviction for possession with intent to deliver marijuana. Petitioner alleges that his state law conviction is invalid because counsel provided ineffective assistance of counsel when he advised petitioner to plead guilty to the drug offense and by not advising petitioner of the effect of the drug conviction on subsequent deportation proceedings.
Petitioner has filed another habeas corpus petition pursuant to 28 U.S.C. § 2241, challenging the INS's decision ordering petitioner removed to Jamaica. The case is assigned to the Honorable Timothy J. Savage (Docket No. 04-0761).
This court did not order the District Attorney for Philadelphia County to respond to the petition since it is clear that petitioner has not exhausted his state court remedies as required by 28 U.S.C. § 2254(a). Accordingly, the petition should be summarily dismissed. See Rule 4 of the Rules Governing Section 2254 Cases ("If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.).
II. DISCUSSION
A federal court may not entertain the merits of a prisoner's petition for a writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied if the federal claim was fairly presented to the state appellate courts. Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004). It is well established that a prisoner must present all of his claims to the trial court, the state's intermediate court, as well as to its Supreme Court, before a district court may entertain a federal petition for habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999). "Before exhaustion will be excused, state law must clearly foreclose state court review of the unexhausted claims." Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). Unless a state court has concluded that a petitioner "isclearly precluded from state court relief, the federal habeas claim should be dismissed for nonexhaustion, even if it appears unlikely that the state will address the merits of the petitioner's claim." Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1997) (emphasis in original), cert. denied, 532 U.S. 919 (2001).
Here, petitioner never presented any of his claims to the Pennsylvania Superior and Supreme Courts. Thus, unless the petitioner's claims are clearly precluded from further review in the state courts, the petition should be dismissed for failure to exhaust state court remedies.
Petitioner's ineffective assistance of counsel claims could be raised in a PCRA petition. However, a PCRA petition may be barred now by the one year statute of limitations contained in 42 Pa. Cons. Stat. Ann. § 9545(b)(1). This section requires the filing of a PCRA petition within one year from the date on which his judgment of sentence became final. Section 9545 contains three exceptions to the one year filing requirement. Id. at §§ 9545(b)(1)(i), (ii), and (iii). See also Lambert, 134 F.3d at 523-24 (discussing the three exceptions to the limitations period.) One of the exceptions is when the claim is predicated on facts unknown to the petitioner and which could not have been ascertained by the exercise of due diligence. 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(ii). Any petition invoking an exception in section 9545(b)(1), must be filed within sixty days "of the date the claim could have been presented." 42 Pa. Cons. Stat. Ann. § 9545(b)(2). To invoke the section 9545(b)(1)(ii) exception, a "petitioner must supply the precise date upon which he discovered his after-discovered evidence" so that the court can determine whether the exception has been timely invoked. Commonwealth v. Herrold, 776 A.2d 994, 998 n. 3. (Pa.Super. 2001). In his petition, petitioner only stated the following:
The exceptions to the one year statute of limitations are set forth in 42 Pa. Cons. Stat. Ann. § 9545(b)(1) as follows:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(ii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held to apply retroactively.
42 Pa. Cons. Stat. Ann. § 9545(b)(1).
Next it was recently petitioner learn [sic] at the prison law library that his trial court [sic] was inefective [sic] since petitioner was allowed to give up his rights to a [sic] open trial, under the false imprison [sic] he had a deal, and that he could not be deported based on counsel [sic] instruction.
(Petition at 11.) It is unclear exactly when petitioner learned of the facts which are the basis of his claim. His habeas corpus petition is dated April 12, 2004, so if he learned the above facts on that date, he still is within the sixty day time period of section 9545(b)(2). Thus, it is possible that petitioner still could file a timely PCRA petition under the section 9545(b)(1)(ii) exception.
No state court has concluded that petitioner cannot file a PCRA petition or that any of the three exceptions to the PCRA's one year statute of limitations do not apply. As of today, this court cannot predict with certainty how the state court would resolve the issue. Accordingly, this court should dismiss the petition without prejudice for failure to exhaust state court remedies.Lambert, 134 F.3d at 518; Toulson, 987 F.2d at 986-87.
Accordingly, this 8th day of June, 2004, it is respectfully
RECOMMENDED
that the petition for a writ of habeas corpus be DISMISSED, without prejudice, for failure to exhaust state court remedies, and that no certificate of appealability be granted.