MCBRIDE v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 17

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION IS DISMISSED WITHOUT PREJUDICE; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISITICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 3/24/14. 3/24/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ROND R. McBRIDE,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Respondents.

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CIVIL ACTION

NO. 13-1768

ORDER
AND NOW, this 24th day of March 2014, upon consideration of the Report and
Recommendation of United States Magistrate Judge M. Faith Angell (Doc. No. 14) and
Petitioner Rond R. McBride’s timely objections thereto (Doc. No. 15), and upon independent
review of McBride’s Petition for Relief From a Conviction or Sentence By a Person in State
Custody (Doc. No. 5) and his supplement thereto (Doc. No. 6), it is hereby ORDERED as
follows:
1. The Report and Recommendation (Doc. No. 14) is APPROVED and ADOPTED.
This Court must make “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C).
McBride writes that he “would like to object to the Report [and] Recommendation,” but
acknowledges that his objections “will not do any good because [he] did not exhaust state
court remedies.” (Pet’r’s Objections 1 (capitalization omitted), Doc. No. 15.) McBride
explains that, on October 22, 2013, he filed a petition for relief pursuant to
Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. § 9541, et seq.
(Id.) The state-court docket indicates that this petition is pending before the Court of
Common Pleas of Delaware County. See Docket 10, Commonwealth v. McBride, No.
CP-23-CR-5057-2009 (Ct. Com. Pl. Delaware Cnty. Jan. 6, 2014); see also Docket 5,
Commonwealth v. McBride, No. CP-23-CR-5222-2012 (Ct. Com. Pl. Delaware Cnty.
Jan. 2, 2014).

“One of the threshold requirements for a § 2254 petition is that, subject to certain
exceptions, the petitioner must have first exhausted in state court all of the claims he
wishes to present to the district court.” Heleva v. Brooks, 581 F.3d 187, 189 (3d Cir.
2009). “The exhaustion requirement ensures that state courts have the first opportunity to
review federal constitutional challenges to state convictions and preserves the role of
state courts in protecting federally guaranteed rights.” Evans v. Court of Common Pleas,
Delaware Cnty., Pa., 959 F.2d 1227, 1230 (3d Cir. 1992). In Pennsylvania, a state
prisoner exhausts her claims by presenting those claims to the Superior Court on direct
appeal or by presenting those claims to the Pennsylvania courts in a PCRA petition. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding that “state prisoners must give
the state courts one full opportunity to resolve any constitutional issues” before
presenting those issues to the federal courts); Lambert v. Blackwell, 387 F.3d 210, 233
(3d Cir. 2004) (holding that “review from the Pennsylvania Supreme Court [is]
‘unavailable’ for purposes of exhausting state court remedies under § 2254(c)”);
Holloway v. Horn, 355 F.3d 707, 718 (3d Cir. 2004) (“A petitioner who has raised an
issue on direct appeal is not required to raise it again in a state post-conviction
proceeding.” (internal quotation marks omitted)).
McBride’s petition indicates that he raised none of his claims for habeas relief on direct
appeal because his counsel was “ineffective.” (Habeas Pet. 9, 10–11, 12, 14, Doc. No. 5;
accord Crim. Docketing Statement 3, Doc. No. 5, at 22; Commonwealth v. McBride, No.
820 EDA 2013, slip op. at 7–8 (Pa. Super. Ct. Sept. 9, 2013), Doc. No. 15, at 42). And
the Pennsylvania courts have yet to resolve McBride’s PCRA petition. Under these
circumstances, we must dismiss McBride’s petition because he has not given the
Pennsylvania courts one full opportunity to resolve his claims.
2. The Petition (Doc. No. 5) is DISMISSED WITHOUT PREJUDICE.
3. A certificate of appealability SHALL NOT issue.
4. The Clerk of Court shall mark this matter CLOSED for statistical purposes.

BY THE COURT:
/s/ Legrome D. Davis
Legrome D. Davis, J.

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