STOKES v. BICKELL et al

Filing 21

ORDER THAT THE PETITIONER'S OBJECTIONS ARE OVERRULED; THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DISMISSED WITHOUT PREJUDICE; THE PETITIONER'S MOTIONS FOR APPOINTMENT OF COUNSEL ARE DENIED AND THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 11/3/14. 11/3/14 ENTERED AND COPIES MAILED TO PRO SE AND EMAILED TO COUNSEL.(jaa, ) Modified on 11/3/2014 (jaa, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MAURICE STOKES (#429758),
Petitioner
vs.
TABB BICKELL, et al.,
Respondents

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CIVIL ACTION

NO. 14-1460

ORDER
AND NOW, this 3rd

day of November, 2014, upon independent review of the petition

for writ of habeas corpus, and after review of the thorough and well-reasoned Report and
Recommendation of United States Magistrate Judge Thomas J. Rueter (Document #17) and the
petitioner’s Objections thereto (Document #19), IT IS HEREBY ORDERED that:
1. The petitioner’s Objections are OVERRULED.1
2. The Report and Recommendation is APPROVED and ADOPTED.
3. The petition for writ of habeas corpus is DISMISSED without prejudice.
4. The petitioner’s motions for appointment of counsel (Documents #3 and 13) are
DENIED.
5. There is no probable cause to issue a certificate of appealability.
BY THE COURT:
/s/ Lawrence F. Stengel
LAWRENCE F. STENGEL, J.

1

The petitioner filed Objections conceding that he had not exhausted all available state
remedies. He asks to be excused from that requirement due to his lack of legal experience and
education, and to his reliance on a fair system. Further, he feels entitled to an exception to the
rule of exhaustion because he did the right thing in testifying for the state and thus placed his life
and the lives of his family in danger. The Third Circuit Court of Appeals has held that exhaustion
is not a jurisdictional requirement, see Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001), but
rather rests on the well-established “interests of comity and federalism [that] dictate that state
courts must have the first opportunity to decide a petitioner’s claims,” Rhines v. Weber, 544 U.S.
269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). Here, it is clear that the
petitioner has not exhausted his state remedies, and that he cannot establish that further review in
the state courts is unavailable. Under these circumstances, I must conclude that a state remedy
remains available to him, and he must proceed with any available appeals or collateral attacks
prior to seeking federal habeas review.