MARROW v. COMMONWEALTH OF PENNSYLVANIA

Filing 6

ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION IS DISMISSED WITH PREJUDICE AND HIS FEDERAL LAW CLAIMS ARE DISMISSED WITHOUT PREJUDICE; A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE; THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE LEGROME D. DAVIS ON 1/31/14. 1/31/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TRACY MARROW,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA, EX AL, ETC.,
Respondent.

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CIVIL ACTION

NO. 13-4777

ORDER
AND NOW, this 31st day of January 2014, upon consideration of Petitioner Tracy
Marrow’s Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus (Doc. No. 1-1), the
Report and Recommendation of United States Magistrate Judge Timothy R. Rice (Doc. No. 3),
Petitioner’s Objections to the Report and Recommendation (Doc. No. 4), and Petitioner’s
Amended Complaint (Doc. No. 5), 1 it is hereby ORDERED as follows:
1. The Report and Recommendation (Doc. No. 3) 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). Petitioner Tracy Marrow objects to four parts of the Report
and Recommendation.
First, Marrow argues that his Petition should not be dismissed for failure to name the
proper respondent. (Pet’r’s Objections ¶ 10, Doc. No. 4.) This objection is moot
because, regardless of whom Marrow names as respondent, we decline to exercise
jurisdiction over Marrow’s unexhausted federal-law claims, and may not exercise
jurisdiction over his state-law claims.
Second, Marrow objects to the finding that he failed to exhaust his state-court
remedies. Marrow argues that he exhausted these remedies by filing a motion in July
2013 with the Court of Common Pleas of Philadelphia County that raised his speedy
trial claims. (See Pet’r’s Objections ¶ 11.) This objection is overruled because “the

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Marrow’s “amended complaint” does not purport to make any substantive changes to
his Petition; it merely names four additional respondents. (See Am. Compl. ¶¶ 2–4, Doc. No. 5.)

state prisoner must give the state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999); see also Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 490–91 (1973) (holding, in a case filed under § 2241, that the petitioner
“ha[d] exhausted all available state court remedies” where he had “made repeated
demands for trial to the courts of [the state], offering those courts an opportunity to
consider on the merits his constitutional claim of the . . . denial of a speedy trial,” and
the “state courts rejected the claim”). Marrow has not given the Pennsylvania courts
a full opportunity to resolve his speedy trial claims. Accordingly, Marrow has not
exhausted his state-court remedies. We decline to “permit the derailment of a
pending state proceeding by [Marrow’s] attempt to litigate constitutional defenses
prematurely in federal court.” Braden, 410 U.S. at 493.
Third, Marrow objects to the finding that he has not presented an extraordinary
circumstance excusing his failure to exhaust. In support of this objection, Marrow
argues the merits of his speedy trial claims. (See Pet’r’s Objections ¶ 12.) However,
even if Marrow is correct that a speedy trial violation has occurred, he has not
established an extraordinary circumstance excusing his failure to exhaust. See Moore
v. DeYoung, 515 F.2d 437, 446–47 (3d Cir. 1975) (“perceive[ing] nothing in the
nature of the speedy trial right to qualify it as a per se ‘extraordinary circumstance’
. . . which would warrant pre-trial, pre-exhaustion habeas corpus relief”); cf. Gibson
v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986) (“An exception is made to the
exhaustion requirement [in 28 U.S.C. § 2254] only where the petitioner has no
opportunity to obtain redress in the state court or where the state corrective process is
so deficient as to render any effort to obtain relief futile.”). Marrow must present his
speedy trial claims to the Pennsylvania courts before presenting them here.
Fourth, Marrow objects to the Report and Recommendation’s finding that violations
of state law are not cognizable under § 2241. Marrow argues that his Petition
presents cognizable, federal-law claims. (See Pet’r’s Objections ¶ 13.) This
objection is moot because, even if the Petition asserts federal-law claims, those claims
are unexhausted. For the reasons discussed in the preceeding paragraph, we decline
to exercise habeas jurisdiction over Marrow’s unexhausted claims.
2. The Petition (Doc. No. 1) is DISMISSED. Specifically, Marrow’s state-law claims
are dismissed with prejudice, see 28 U.S.C. § 2241(c)(3), and his federal-law claims
are 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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