Opinion
Civil Action No. 04-2809.
November 8, 2004
ORDER
AND NOW, this 8th day of November, 2004, upon careful and independent consideration of Ronald Wongus's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the memorandum accompanying his petition (collectively, docket entry # 1), the respondents' answer to the petition, the Report and Recommendation of the Honorable Charles B. Smith (docket entry # 9), and Wongus's objections to the Report and Recommendation (docket entry # 10), and the Court finding that:
(a) Judge Smith explained that we could dismiss the petition without prejudice because Wongus failed to exhaust the state procedures for challenging the February 19, 2004 denial of parole, see Report and Rec. at 4-6; see also Carter v. Muller, 45 F. Supp. 2d 453, 455 (E.D. Pa. 1999) (Katz, J.) ("[T]he Pennsylvania courts provide a single avenue of relief to prisoners claiming their parole denials were unconstitutional: a mandamus action in the Commonwealth Court's original jurisdiction.");
(b) Based on Wongus's failure to exhaust the available state procedures, Judge Smith recognized the we "could dismiss this case without prejudice and instruct petitioner to return to the state courts," Report and Rec. at 6, but he also proceeded to discuss the merits of the case and, on that basis, recommended that we deny Wongus's petition;
(c) Although Wongus now objects to Judge Smith's analysis of the merits, he does not argue that he availed himself of the available state procedures for challenging the denial of parole;
(d) To avoid the difficult constitutional questions that Wongus's petition raises, we shall simply deny it without prejudice for Wongus's failure to exhaust his state remedies;
We do not mean to suggest that we disagree with Judge Smith's thoughtful consideration of the merits. See Report and Rec. at 6-14. Rather, we simply decline to reach them before the state courts have had an opportunity to consider them.
(e) Given this resolution of the case, Wongus has not made a substantial showing of the denial of a constitutional right, and we shall not issue a certificate of appealability, see 28 U.S.C. § 2253(c)(3);
It is hereby ORDERED that:
1. Wongus's objections are OVERRULED;
2. The Report and Recommendation is APPROVED and ADOPTED IN PART;
3. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE;
4. We DECLINE to issue a certificate of appealability; and
5. The Clerk shall CLOSE this civil action statistically.