AZILLE v. COMMONWEALTH OF PENNSYLVANIA

Filing 20

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED; JUDGE SITARSKI'S DECEMBER 6, 2013 REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; AZILLE'S MOTION TO RELEASE DEFENDANT ON NOMINAL BAIL IS DENIED; FOR THE REASONS STATED IN ABOVE, WE DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND THE CLERK OF COURT SHALL CLOSE THIS CASE STATISTICALLY. SIGNED BY HONORABLE STEWART DALZELL ON 2/24/14. 2/25/14 ENTERED AND COPIES MAILED TO THE PLAINTIFF.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER AZILLE
v.
COMMONWEALTH OF
PENNSYLVANIA

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CIVIL ACTION

NO. 13-5446

ORDER
AND NOW, this 24th day of February, 2014, upon consideration of petitioner Peter
Azille’s pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (docket entry # 1)
and his amended petition (docket entry #3), our Order referring this matter to the Honorable Lynne
A. Sitarski for a report and recommendation (docket entry # 4), Judge Sitarski’s report and
recommendation (“R&R”) (docket entry # 6), Azille’s objections thereto (docket entry # 10), and
Azille’s motion for order (docket entry # 7), and the Court finding that:
(a)

As Judge Sitarski writes, Azille was arrested on May 18, 2013 and charged

with rape by forcible compulsion, sexual assault, indecent assault without consent of the other
person, recklessly endangering another person, and indecent assault on a person who is
unconscious, R&R at 1;
(b)

On May 19, 2013, he was ordered held on $125,000 bail, and on September

3, 2013, the Commonwealth court held a pretrial conference during which defense counsel made
several discovery requests, id. at 1-2;
(c)

In September, Azille filed, pro se, motions in the Commonwealth court for

dismissal, modification of bail, for new counsel, for discovery, for a bill of particulars, and for
habeas corpus, id. at 2;

(d)

His trial in the Commonwealth court is currently scheduled for May 19,

(e)

Judge Sitarski observes that though the federal courts “do have jurisdiction

2014, id.;

over pretrial habeas petitions brought pursuant to § 2241”, we may only exercise such jurisdiction
“after the petitioner has satisfied the exhaustion requirement by presenting his claim through one
full round of the state’s established appellate procedures”, id. at 3 (citing Wilson v. Beard, No. 02374, No. 02-374, at *8 (E.D. Pa. Apr. 20, 2012) (Padova, J.));
(f)

Here, Azille has “failed to exhaust his state court remedies by fairly

presenting his claims through one full round of the Pennsylvania established appellate process”,
id.;
(g)

Mindful that “[j]urisdiction without exhaustion should not be exercised at

the pretrial stage unless extraordinary circumstances are present”, Moore v. DeYoung, 515 F.2d
437, 444 (3d Cir. 1975), and finding no extraordinary circumstances, Judge Sitarski concludes that
“the Pennsylvania courts are the proper forum for addressing the claims in the instant petition”,
and she recommends dismissing the petition without prejudice to the filing of a petition pursuant to
28 U.S.C. § 2254, R&R at 4-5;
(h)

Azille objects that he “has indeed [e]ncountered extraordinary

circumstances in state court which would prohibit him from going on[e] full round of the
Pennsylvania appellate process” because the state court has returned portions of motions he has
filed to him, Pet. Obj. at 1;

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(i)

Moreover, Azille argues that he “has been held in question for 221 days in

direct violation of federal speedy trial rights, when the state is aware of exculpatory evidence to
clear petitioner[’s] name,” id. at 4;
(j)

We do not find that this constitutes an extraordinary circumstance where

petitioner is represented by counsel who can ensure that his motions are properly filed, compare
Moore, 515 F.2d at 446 (finding that the state’s failure to try petitioner for several years did not
constitute “extraordinary circumstances” justifying “federal intervention prior to exhaustion of
state court remedies”);
(k)

Finally, Local Appellate Rule 22.2 of the Rules of the United States Court of

Appeals for the Third Circuit provides that “at the time a final order denying a habeas petition . . .
is issued, the district court judge will make a determination as to whether a certificate of
appealability should issue”;
(l)

Such a certificate should issue only if the petitioner demonstrates that

“reasonable jurists could debate” whether the petition states a valid claim for the denial of a
constitutional right, Slack v. McDaniel, 529 U.S. 473, 484 (2000); and
(m)

We do not believe that reasonable jurists could debate the conclusion that

Azille failed to exhaust his remedies and that no extraordinary circumstances excused this failure
to exhaust, and so we decline to issue a certificate of appealability;
It is hereby ORDERED that:
1.

Petitioner’s objections (docket entry # 10) are OVERRULED;

2.

Judge Sitarski’s December 6, 2013 report and recommendation (docket

entry # 6) is APPROVED and ADOPTED;
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3.

Azille’s motion to release defendant on nominal bail (docket entry # 7) is

4.

For the reasons stated in (m) above, we DECLINE to issue a certificate of

DENIED;

appealability; and
5.

The Clerk of Court shall CLOSE this case statistically.
BY THE COURT:
/s/ Stewart Dalzell, J.

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