WADIS v. THE COMMONWEALTH OF PA. et al

Filing 9

ORDER THAT PETITIONER'S OBJECTIONS ARE OVERRULED. JUDGE PERKIN'S REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED. THE HABEAS PETITION IS DENIED AND DISMISSED WITHOUT PREJUDICE. A CERTIFICATE OF APPEALABILITY SHALL NOT ISSUE. SIGNED BY HONORABLE L. FELIPE RESTREPO ON 12/3/2014. 12/4/2014 ENTERED AND COPIES MAILED TO PRO SE.(uh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE WADIS
v.
COMMONWEALTH OF PA., et al.

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CIVIL ACTION

NO. 14-1899

ORDER
AND NOW, this 3rd day of December, 2014, upon consideration of the Petition for Writ
of Habeas Corpus, the Report and Recommendation (“R&R”) of United States Magistrate Judge
Henry S. Perkin recommending denial and dismissal of the habeas petition without prejudice, and
petitioner’s Objections to Judge Perkin’s R&R, it is hereby ORDERED that:
1. Petitioner’s Objections (ECF Document 7) are OVERRULED;1
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Under 28 U.S.C. § 636(b)(1) and Local R. Civ. P. 72.1(IV)(b), the Court makes a de
novo determination of those portions of the R&R to which there are objections, and in providing
for a “de novo determination,” Congress intended to permit “whatever reliance a district judge, in
the exercise of sound judicial discretion, chose to place” on a magistrate judge’s proposed
findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676 (1980). The court
may accept, reject or modify, in whole or in part any of the findings or recommendations. Id. at
673-74. Here, Judge Perkin noted that petitioner has improperly filed one habeas petition which
includes claims challenging two separate cases - one in Montgomery County (where postconviction proceedings are pending) and one in Philadelphia (in the pretrial stage at the time of
the R&R). Furthermore, as Judge Perkin’s R&R points out, to the extent that petitioner raises
claims cognizable in the federal habeas petition filed, petitioner has failed to satisfy the
exhaustion requirement. Moreover, he has failed to show extraordinary circumstances sufficient
to excuse the failure to exhaust. Petitioner’s conclusory, vague, and unsupported assertions of
what he believes to be a “flamboyant conspiracy” against him are insufficient to overcome
principles of federalism which dictate respect for the authority and ability of state courts to
protect constitutional rights in the first instance. “It is axiomatic that a federal habeas court may
not grant a petition for a writ of habeas corpus unless the petitioner has first exhausted the
remedies available in the state courts.” Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997)
(citing 28 U.S.C. § 2254(b)(1)(A)), cert. denied, 532 U.S. 919 (2001); Toulson v. Beyer, 987
F.2d 984, 986 (3d Cir. 1993). In the event that a federal court determines there exists a
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2. Judge Perkin’s Report and Recommendation (Doc. 5) is APPROVED and
ADOPTED;
3. The habeas petition (Doc. 1) is DENIED and DISMISSED, w/o prejudice;
4. A Certificate of Appealability shall not issue in that a reasonable jurist could
not conclude that it would be improper for this Court to dismiss the petition without prejudice.

BY THE COURT:

s/ L. Felipe Restrepo
L. FELIPE RESTREPO
UNITED STATES DISTRICT JUDGE

possibility of state court review, the petition should be dismissed without prejudice. See Banks v.
Horn, 126 F.3d 206, 213 (3d Cir. 1997); Toulson, 987 F.2d at 987. Requiring exhaustion of state
remedies “addresses federalism and comity concerns by ‘afford[ing] the state courts a meaningful
opportunity to consider allegations of legal error without interference from the federal
judiciary.’” Lambert, 134 F.3d. at 513 n.18 (quoting Toulson, 987 F.2d at 986). Although the
exhaustion rule is a matter of comity and not jurisdiction, it “should be strictly adhered to
because it expresses respect for our dual judicial system.” Caswell v. Ryan, 953 F.2d 853, 857
(3d Cir. 1992) (quoting Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990)), cert. denied, 504
U.S. 944 (1992); see also Burkett v. Love, 89 F.3d 135, 137 (3d Cir. 1996) (“Pursuing state
remedies is not a mere formality.”). The petitioner has the burden of proving all facts entitling
him to a discharge from custody as well as demonstrating that he has met all procedural
requisites entitling him to relief. Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982). Thus,
“[t]he habeas petitioner bears the burden of proving that he has exhausted available state
remedies.” Toulson, 987 F.2d at 987.
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