Opinion
Civil Action No. 04-2085.
June 21, 2004
REPORT AND RECOMMENDATION
Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution in Lancaster County, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
On July 2, 2003, several months after a Protection From Abuse Order (PFA) was entered against petitioner, he pled guilty to two counts of indirect criminal contempt. Petitioner was sentenced to two six-month periods of probation, which were to run consecutively, and as well, he was to comply with several special conditions. Petitioner failed to meet these conditions, and was found to have violated his probation on January 20, 2004. Specifically, petitioner failed to report to his probation officer, failed to find gainful employment, and was in possession of weapons and drug paraphernalia. On March 31, 2004, the trial court sentenced petitioner to six months in jail for violating his probation.
Shortly thereafter, petitioner filed a motion to modify his sentence. The government responded, and on May 4, 2004, the Court of Common Pleas denied the motion. Petitioner failed to appeal the denial.
On May 7, 2004, petitioner filed the instant Petition for Writ of Habeas Corpus, alleging the following:
(1) Falsely charged with crimes;
(2) Not permitted to call favorable witnesses to testify on his behalf;
(3) Not permitted to postpone sentencing when retained attorney was not present; and
(4) Violation of right to trial.
Respondent retorts that petitioner has not exhausted his state remedies, and thus, is not entitled to habeas review.
II. PROCEDURAL DEFAULT
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 So. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process," in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demand, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 So. Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would not find the claims procedurally barred . . . there is procedural default for the purpose of federal habeas . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S.Ct. 27 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3rd Cir. 1999). The procedural default barrier precludes federal courts from reviewing a state petitioner's federal claims if the state court decision is based on a violation of state procedural law that is independent of the federal question and adequate to support the judgment. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional . . . [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id., at 732.
As noted above, respondent contends that petitioner's failure to present any of his claims to the state courts constitutes a failure to exhaust, which, in turn, results in procedural default of petitioner's claims. We agree, and as such, we must dismiss the petition in its entirety.
Therefore, I make the following: