Opinion
CIVIL ACTION NO. 03-1631
September 8, 2003
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. The Comonwealth of Pennsylvania ("Respondent") has filed a letter response in opposition. Todd White ("Petitioner") currently is incarcerated at the State Correctional Institution at Rockview, Pennsylvania. The crux of Petitioner's complaint is that he was sentenced in the aggravated range, illegally, in abuse of prosecutorial discretion, and without evidentiary support. See Petitioner's Federal Habeas Petition ("Pet.") at 9-10. The Honorable Robert F. Kelly referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, this unexhausted petition should be dismissed, without an evidentiary hearing and without prejudice to Petitioner's right to refile at the conclusion of state court proceedings.
I. BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history were gleaned from the Petition for Writ of Habeas Corpus, the Commonwealth's letter brief in response thereto, and the Superior Court Docket ("Dkt.") dated August 28, 2003, Attachment "A" to this Report and Recommendation. The court also reviewed Petitioner's Post-Sentence Motion Pursuant To Rule 1410 and the accompanying letter forwarded July 29, 2003.
On September 24, 2002, following a jury trial before the Honorable M. Teresa Sarmina, in the Court of Common Pleas of Philadelphia County, Petitioner was convicted of twelve counts of robbery, possession of an instrument of crime, criminal conspiracy, rape and involuntary deviate sexual intercourse. See Commonwealth v. White, No. 940, 941 (Ct. Com. PI. Phila. Cty. Oct. Term, 2001); see also Respondent's Brief ("Resp.") at 1. On November 13, 2002, Judge Sarmina sentenced Petitioner to an aggregate term of imprisonment of forty-five and one-half (45 !/2) to one hundred and twenty-three (123) years. See Commonwealth v. White, (Ct. Com PI. Phila. Nov. 18, 2002).
On November 18, 2002, Petitioner filed a Notice of Appeal. See Dkt. at 2. This state court appeal is still pending. See Dkt. at 1-5. Meanwhile, on March 18, 2003, Petitioner filed the instant pro se petition seeking a federal writ of habeas corpus. See Pet. at 9-10. Respondent contends, and this court finds, that Petitioner's request for federal review is premature, inasmuch as his available state remedies have not yet been exhausted.
II. DISCUSSION
It is well settled that, absent exceptional circumstances, a federal court will not determine the merits of claims contained in a habeas corpus petition, until they have been exhausted in state court. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd 30 F.3d 1488 (3d Cir. 1994). Picard v. Connor, 404 U.S. 270, 275 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). The policy behind the total exhaustion doctrine is rooted in our tradition of comity: the state must be given the "initial opportunity to pass upon and correct" alleged violations of a petitioner's constitutional rights. See also Picard v. Connor, 404 U.S. at 275 (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)); see also Tillett v. Freeman, 868 F.2d 106 (3d Cir. 1989). Traditionally, to exhaust his claims, a petitioner must fairly present the identical claims (on both fact and theory) he wants the federal habeas Court to review to all levels of the state judicial system, including the state's highest court. See Anderson v. Harless, 459 U.S. 4 (1982), Gibson v. Scheidmantal, 805 F.2d 135 (3d Cir. 1986); Evans v. Ct. Com. Pl., 959 F.2d 1227 (3d Cir. 1992) (claim must have been presented to intermediate appellate court, as well as state's highest court); Brown v. Cuyler, 669 F.2d 155 (3d Cir. 1982). However, because the Supreme Court of Pennsylvania, on May 9, 2000, through adoption of Rule No. 218 of Judicial Administration pronounced that convicted criminals need not appeal to the state's highest court to exhaust their claims, a habeas claim processed through the Superior Court will be deemed exhausted. See Mattis v. Vaughn, 128 F. Supp.2d 249, 260-261 (E.D.Pa 2001 Antwerpen, J.) (concluding that "principles of deference to Supreme Court dicta and of comity towards the state courts, which is the basis of the exhaustion doctrine, require us to respect the pronouncement of the Pennsylvania Supreme Court in Order No. 218.")
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(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; or
(B)(i) there is an absence of available State Corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant . . .
(c) an 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.
Pennsylvania Rule No. 218 of Judicial Administration provides as follows:
We hereby declare that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing or allowance of appeal following an adverse decision by the Superior Court in order to be deemed to have exhausted all available state remedies respecting a claim of error. When a claim has been presented to the Superior Court, or to the Supreme Court of Pennsylvania, and relief has been denied in a final order, the litigant shall be deemed to have exhausted all available state remedies for purposes of federal habeas corpus relief.
Although Petitioner has presented his claims in state court, he has not given adequate time for that forum to rule on the merits of his assertions prior to instituting this federal habeas action. Hence, Petitioner's federal claim is unexhausted and, consequently, unreviewable. While federal courts may deviate from the exhaustion requirement and intervene in highly exceptional circumstances, such an exception would be justified only if Petitioner lacked any real opportunity to obtain redress in the state court, or if the corrective process was so clearly deficient as to render futile any effort to obtain relief. See Duckworth v. Serrano, 454 U.S. 1 (1981). Petitioner cannot meet these stringent requirements to obtain premature federal review of his claim.
First, Petitioner clearly has an avenue of redress. On November 18, 2002, Petitioner filed his notice of appeal in the state's intermediate court. See Dkt. at 4. This state action may provide the relief herein sought. Second, nothing contained in this record indicates that an inordinate delay in the adjudication of Petitioner's claims has occurred in the past or will occur. Finally, Petitioner has neither alleged nor shown any deficiency or irregularity in the state corrective process or other justification sufficient to warrant exemption from the exhaustion rule.
Petitioner's claims appear to be progressing appropriately. The state court docket reflects that, pursuant to a request to appeal in forma pauperis, Peter A. Levin, Esquire was appointed to represent Petitioner on May 20, 2003. See Dkt. at 2, 4. Appellant's brief and reproduced record were timely filed on July 31, 2003. See id. at 4. The Commonwealth's brief is due today, September 8, 2003. See id. Effective August 1, 2003, the docket reflects that the matter is "awaiting consideration." See Dkt. at 1.
Furthermore, the pending state court action, if resolved favorably to Petitioner, could obviate the need for federal habeas review or relief. Accordingly, the policy behind exhaustion would be served best by dismissing this petition, without prejudice, to Petitioner's right to refile promptly at the conclusion of state court proceedings. Based on Petitioner's failure to exhaust his issue in state courts and the pendency of his state action to correct the alleged deficiency, Petitioner has failed to make a showing of a denial of a constitutional right. Thus, a certificate of appealability should not be granted.
Failure to promptly file at the conclusion of state court proceedings could result in a procedural default under the Antiterrorism and Effective Death Penalty Act of 1966 ("AEDPA"), 28 U.S.C. § 2244(d)(1)(A), thereby precluding Petitioner from ever obtaining federal habeas review of his claim. Accordingly, if state procedures do not afford Petitioner relief, he must promptly refile his federal action. This caution does not, however, suggest that this or any subsequent habeas filing will be deemed timely. Rather, it is to advise Petitioner that failure to act with dispatch upon conclusion of all state court proceedings may cause an avoidable default.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 8th day of September, 2003, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DISMISSED WITHOUT PREJUDICE to Petitioner's right to refile at the conclusion of state court proceedings. Petitioner has not demonstrated a substantial violation of any constitutional right. Therefore, there is no probable cause to issue a certificate of appealability.