Opinion
Civil Action 2:22-cv-219
12-02-2022
KENNETH WILSON, Petitioner, v. DISTRICT ATTORNEY OF WESTMORELAND COUNTY, et al., Respondents.
PATRICIA L. DODGE, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
NORA BARRY FISCHER, JUDGE
I. RECOMMENDATION
Before the Court is the Petition for a Writ of Habeas Corpus (ECF 3) and related “Motion for Habeas Corpus” (ECF 25) filed by state prisoner Kenneth Wilson in which he challenges the judgment of sentence imposed on him by the Court of Common Pleas of Westmoreland County at criminal docket number CP-65-CR-3983-2019. It is respectfully recommended that the Court dismiss the Petition and Motion without prejudice because Wilson is currently exhausting his state court remedies on direct appeal and will have additional state court remedies available to him once his direct appeal has concluded.
II. REPORT
A. Relevant Background
In July 2020, Wilson appeared before the Court of Common Pleas of Westmoreland County and pleaded guilty to one count each of tampering with public records or information, theft by deception, theft of services, and tampering with records or identification. Attorney Gregory L. Cecchetti (“trial counsel”) represented Wilson at the time.
On May 25, 2021, the trial court sentenced Wilson to an aggregate sentence of two to four years' incarceration to be followed by a three-year term of probation. Wilson, through counsel, filed a post-sentence motion arguing that the trial court erred by failing to give him sentencing credit for time served from August 29, 2019 to July 24, 2020. Following a hearing on that motion, the trial court entered another sentencing order reflecting 142 days of credit for time served, but not the 330 days that Wilson had requested. Wilson v. Commonwealth, No. 1009 WDA 2021, 2022 WL 3149332, *1-2 (Pa. Super. Ct. Aug. 8, 2022).
Wilson, though counsel, filed a direct appeal with the Superior Court of Pennsylvania in which he argued that the trial court erred in its calculation of credit for time served. Id. at *2. Attorney James Robinson then entered his appearance on Wilson's behalf.
The Superior Court recently issued Wilson v. Commonwealth, No. 1009 WDA 2021, 2022 WL 3149332 (Pa. Super. Ct. Aug. 8, 2022) affirming Wilson's judgment of sentence. It held that Wilson is not entitled to any additional sentencing credit. Wilson, through counsel, filed a petition for allowance of appeal. That petition is currently pending before the Supreme Court of Pennsylvania at Docket Number 239 WAL 2022.
In the meantime, earlier this year Wilson commenced this habeas action by filing a Petition for a Writ of Habeas (ECF 3), and then the related Motion for Habeas Corpus (ECF 24). Wilson raises numerous claims of trial counsel's alleged ineffectiveness related to the sentence he received. He also appears to be challenging the term of the sentence the trial court imposed. (ECF 3 at 5-8; ECF 24 at 1-3.)
Respondents have filed their Answer (ECF 15) in which they contend that the Court should dismiss this habeas action because Wilson has not exhausted his available state-court remedies. Wilson has filed a Reply (ECF 25).
B. Discussion
State prisoners must complete the exhaustion of their available state-court remedies before a district court may determine the merits of their habeas claims. Congress codified this requirement at 28 U.S.C. § 2254(b) and (c). These provisions 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.
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(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.
The exhaustion requirement is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). Federal court intervention would be premature whenever a state procedure still affords a petitioner with an opportunity to obtain relief from the judgment of sentence that he seeks to attack in a federal habeas proceeding. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1998) (“The exhaustion requirement does not foreclose federal relief, but merely postpones it.”).
The general rule is that the district court must dismiss a federal habeas petition when the petitioner has available remedies in state court. See, e.g., Rhines v. Weber, 544 U.S. 269, 273-79 (2005) (discussing the general rule as set forth in Rose v. Lundy, 455 U.S. 509 (1982) and the limited exception to it, which does not apply in this case).That rule applies here. There is no basis to exempt Wilson from the exhaustion requirement under either § 2254(b)(1)(B)(i) or (ii). Wilson is litigating his claims of trial court error in his direct appeal, which has not yet concluded. Once that direct appeal does conclude Wilson can, if he chooses, file in state court a petition for collateral relief under Pennsylvania's Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541 et seq. and raise his claims that trial counsel was ineffective.
After Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), federal habeas courts were faced with how to resolve the interaction between AEDPA's one-year statute of limitations (codified at 28 U.S.C. § 2244(d)) and the pre-AEDPA rule set forth in Lundy that required that federal courts dismiss without prejudice habeas petitions that contain unexhausted claims. Rhines, 544 U.S. at 275. In Rhines, the Supreme Court held that in order to avoid predicaments that may arise in attempting to comply with AEDPA's statute of limitations while at the same time exhausting claims in state court, a state prisoner may file a “protective” habeas petition in federal court and ask the district court to stay the federal habeas proceeding until state remedies are exhausted. There is no reason to stay this case while Wilson exhausts his statecourt remedies. His judgment of sentence is not yet final and, therefore, AEDPA's statute of limitations has not even begun to run. Gonzalez v. Thaler, 565 U.S. 134, 149-54 (2012) (judgment becomes final under 28 U.S.C. § 2244(d)(1)(A) at the conclusion of direct review or the expiration of time for seeking such review).
Wilson asserts that he attempted with no success to file a pro se PCRA petition with the trial court in September 2021. (ECF 25 at 1.) The trial court appropriately explained to Wilson that it lacked jurisdiction to consider the petition because his case was on appeal to the Superior Court at that time. Moreover, that pro se PCRA petition was premature because the proper time to file such a petition is after the conclusion of direct review or the time for seeking such review. The Court further notes that in Pennsylvania, a petitioner must raise claims of ineffective assistance of trial counsel in a PCRA proceeding and not beforehand, such as on direct appeal. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (abrogated in part on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021)).
Therefore, the Court should dismiss the Petition (ECF 3) and Motion for Habeas Corpus (ECF 24) without prejudice to Wilson commencing another federal habeas case if, after the exhaustion of his state-court remedies, he does not receive the relief he seeks in state court. See, e.g., Ball v. Pennsylvania Dep't of Corr., No. 2:19-cv-76, 2019 WL 7906095, at *1 (W.D. Pa. Aug. 27, 2019), report and recommendation adopted, 2020 WL 709501 (W.D. Pa. Feb. 12, 2020) (dismissing without prejudice petitioner's habeas petition because he still had available to him state court remedies); Hairston v. Beard, No. 2:10-cv-1119, 2011 WL 5151951 (W.D. Pa. Oct. 28, 2011) (same).
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from.. .the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that “[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To the extent a certificate of appealability determination is required, see Lauderdale-El v. Indiana Parole Bd., 35 F.4th 572, 578 (7th Cir. 2022), Wilson is not entitled to one because jurists of reason would not find it debatable whether his claims should be dismissed because he is exhausting his state-court remedies. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. CONCLUSION
Based upon the foregoing, it is respectfully recommended that the Court dismiss the Petition (ECF 3) and Motion for Habeas Corpus (ECF 24) without prejudice and deny a certificate of appealability. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Wilson is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).