Pino v. Smith et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN A. PINO,
Petitioner,
v.
BARRY SMITH,
SUPERINTENDENT, SCIHOUTZDALE, PA ATTORNEY
GENERAL,
Respondents .

:
:
:
:
:
:
:
:
:
:

1:16-cv-1788
Hon. John E. Jones III

MEMORANDUM
January 11, 2017
On August 29, 2016, petitioner John A. Pino (“Pino” or “Petitioner”), a
Pennsylvania state inmate presently confined at the State Correctional Institution at
Houtzdale, Pennsylvania, initiated the above petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Doc. 1.) Accompanying the petition was Pino’s
motion (Doc. 2) seeking a stay of the proceedings until such time as he exhausted
his state court remedies. An Order (Doc. 7) issued on September 13, 2016,
directing Respondents to file a memorandum of law addressing the merits of the
motion to stay. A response (Doc. 10) was filed on September 23, 2016.

1

The petition has been given preliminary consideration and, for the reasons
discussed below, the court will dismiss the petition without prejudice. See 28
U.S.C. § 2243. See also R. GOVERNING § 2254 CASES R.4, infra.
I.

BACKGROUND
Petitioner represents that his “writ of habeas corpus contains issues that have

not been exhausted in state court. The Petitioner currently has a pending petition
for post-conviction relief, pending in the Court of Common Pleas of Schuylkill
County, Pennsylvania, at docket No. CP-54-CR-1716-2015 [sic].” (Doc. 3, p. 1;
Doc. 10-1, p. 432-44). He further indicates that he is awaiting an evidentiary
hearing on that petition. (Doc. 3, p. 1).
II.

DISCUSSION
A habeas petition may be brought by a prisoner who seeks to challenge

either the fact or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475,
494 (1973); Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir. 1993). United States
Code Title 28, Section 2243 provides in relevant part that “A court, justice or judge
entertaining an application for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the applicant or person
detained is not entitled thereto.” Id. Further, habeas corpus petitions are subject to
2

summary dismissal pursuant to Rule 4 (“Preliminary Consideration by the Judge”)
of the Rules Governing Section 2254 Cases in the United States District Courts
(2001), which provides in pertinent part: “If it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.” Although a pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance, see Royce v. Hahn,
151 F.3d 116, 118 (3d Cir. 1998), Lewis v. Attorney General, 878 F.2d 714, 721–
22 (3d Cir. 1989), United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), a
federal district court can dismiss a habeas corpus petition if it appears from the
face of the petition that the petitioner is not entitled to relief. See Lonchar v.
Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
See also 28 U.S.C. §§ 2243, 2254, 2255. For instance, a petition may be dismissed
without review of an answer when the petition is frivolous, or obviously lacking in
merit, or where . . . the necessary facts can be determined from the petition itself. .
. . ” Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it appears
that— (A) the applicant has exhausted the remedies available in the courts of the
3

State; or (B) (i) there is an absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to protect the rights of the
applicant.” 28 U.S.C. § 2254(b) (1). Thus, a state prisoner applying for a writ of
habeas corpus in federal court must first “exhaust[ ] the remedies available in the
courts of the State,” unless “there is an absence of available State corrective
process[ ] or ... circumstances exist that render such process ineffective. . . .” See
Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997) (finding that “Supreme Court precedent and the AEDPA mandate
that prior to determining the merits of [a] petition, [a court] must consider whether
[petitioner] is required to present [his or her] unexhausted claims to the [state's]
courts”).
A petitioner exhausts state remedies by presenting his federal constitutional
claims to each level of the state courts empowered to hear those claims, either on
direct appeal or in collateral post-conviction proceedings. See, e.g., O’Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999) (“requiring state prisoners [in order to fully
exhaust their claims] to file petitions for discretionary review when that review is
part of the ordinary appellate review procedure in the State”); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding that a collateral attack in state
court is not required if the petitioner’s claim has been considered on direct appeal);
4

28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any available procedure, the
question presented.”) Once a petitioner’s federal claims have been fairly presented
to the state’s highest court, the exhaustion requirement is satisfied. Castille v.
Peoples, 489 U.S. 346, 350 (1989); Picard v. Connor, 404 U.S. 270, 275 (1971).
The petitioner generally bears the burden to prove all facts establishing exhaustion.
Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993).
Exhaustion is not, however, a jurisdictional requirement; rather, it is
designed to allow state courts the first opportunity to pass upon federal
constitutional claims, in furtherance of the policies of comity and federalism.
Granberry v. Greer, 481 U.S. 129, 131, 134–35 (1987); Rose, 455 U.S. at 516–18.
Exhaustion also has the practical effect of permitting development of a complete
factual record in state court, to aid the federal courts in their review. Rose, 455
U.S. at 519. Consequently, a district court may use its inherent power to dismiss,
sua sponte, a petition which concedes that the prisoner failed to exhaust his state
court remedies and which facially violates a bar to suit. Ray v. Kertes, 285 F.3d
287, 293 n. 5 (3d Cir. 2002). See also Sulaski v. Lindsay, CV-06-2482, 2007 WL

5

1031457, at *1 (M.D.Pa. March 29, 2007) (Rambo, J.) (relying on Ray for sua
sponte dismissal of an unexhausted § 2241 petition).
Here, it is clear from the face of the petition, and confirmed by statements
made by Pino in his motion to stay, that he has not yet exhausted his state
remedies. Further, as noted by Respondents in their response to the motion to stay,
a stay is not appropriate under Rhines v Weber, 544 U.S. 269 (2005), because Pino
has not exhausted any of the claims contained in his petition and, as such, is not in
danger of losing timely exhausted claims.
As Petitioner has clearly failed to exhaust his state court remedies, this
petition will be dismissed. The dismissal is without prejudice to Pino’s right to
pursue federal habeas relief upon complete exhaustion of available state court
remedies.
III.

CERTIFICATE OF APPEALABILITY
Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a

certificate of appealability (“COA”), an appeal may not be taken from a final order
in a proceeding under 28 U.S.C. § 2254. A COA may issue only if the applicant
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional
6

claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003).
“When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). Here, jurists of reason would not find the procedural disposition of this
case debatable. Accordingly, no COA will issue.
IV.

CONCLUSION
For the reasons set forth above, the petition will be dismissed without

prejudice.
An appropriate order will issue.

7