Prout v. Wingard

Filing 11

MEMORANDUM and ORDER adopting 6 Report and Recommendation of Chief Magistrate Judge Carlson; denying petitioner's objections 9 ; DISMISSING petition for writ of habeas corpus and declining to issue a certificate of appealability; Clerk of Court is directed to CLOSE this case. Signed by Honorable James M. Munley on 5/20/13 (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH PROUT,
Petitioner

:
No. 3:12cv1901
:
:
(Judge Munley)
v.
:(Chief Magistrate Judge Carlson)
:
TREVOR WINGARD,
:
Respondent
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
:
No. 3:12cv2471
JOSEPH PROUT,
:
Petitioner
:
(Judge Munley)
:(Chief Magistrate Judge Carlson)
v.
:
:
TREVOR WINGARD,
:
Respondent
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Chief Magistrate Judge Martin C.
Carlson’s report and recommendation that the above-captioned habeas
corpus petitions be dismissed. Petitioner Joseph Prout has filed objections
to the report and recommendation, and they are ripe for disposition.
Background
Petitioner was convicted in Pennsylvania state court for offenses
involving forgery in May 2012. (Doc. 1 ¶¶ 1-5 in No. 3:12cv1901 and Doc.
1 ¶¶ 1-5 in No. 3:12cv2471). Petitioner filed the two instant habeas
corpus petitions pursuant to 28 U.S.C. § 2254 regarding this conviction.

Magistrate Judge Carlson suggests that the petitions should be dismissed
for failure to exhaust state court remedies. Petitioner has filed objections
to the report and recommendation, bringing the case to its present posture.
Jurisdiction
We have jurisdiction pursuant to 28 U.S.C. § 2241, which provides
that “[w]rits of habeas corpus may be granted by the . . . district courts . . .
.” See also 28 U.S.C. § 1331(“The district courts shall have original
jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.”).
Standard of review
In disposing of objections to a magistrate judge’s report and
recommendation, the district court must make a de novo determination of
those portions of the report to which objections are made. 28 U.S.C. § 636
(b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir.
1987). This court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The district
court judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions. Id.
Discussion
Petitioner seeks a writ of habeas corpus regarding his state court
conviction. Before filing a petition for a writ of habeas corpus under 28

2

U.S.C. § 2254, a state court prisoner must exhaust his state court
remedies. 28 U.S.C. § 2254(b)(1)(A). “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.” 28 U.S.C. §
2254(c). To exhaust his claims, a petitioner must fairly present them to the
highest state court. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000).
“The exhaustion requirement ensures that state courts have the first
opportunity to review convictions and preserves the role of state courts in
protecting federally guaranteed rights.” Caswell v. Ryan, 953 F.2d 853, 856
(3d Cir.1992). The petitioner bears the burden of establishing exhaustion of
his state court remedies. Id.
The law further provides that “[i]f it 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.” Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Court, 28 U.S.C. foll. § 2254.
Here, it can be determined from the face of the petitions that state
court remedies have not been exhausted. Petitioner states that he has
appealed his conviction to the Pennsylvania Superior Court, and the
appeal is still pending. (Doc. 1, ¶ 9, No. 3:12cv2471). As petitioner’s

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appeal has not been completed, he has not exhausted his state court
remedies and the instant petitions for a writ of habeas corpus are
premature. We will thus adopt Magistrate Judge Carlson’s report and
recommendation and dismiss these two petitions.1 An appropriate order
follows.2

1

Our dismissal will be “without prejudice” because we are dismissing
for a failure to exhaust state court remedies. If the petitioner at some point
does exhaust his state court remedies, it might then be appropriate for him
to file a section 2254 motion.
2

Petitioner’s objections to the report and recommendation do not
provide a reasoned argument to counter the Magistrate Judge’s analysis.
He merely claims, without citation to any legal authority, that the
exhaustion rule is a general rule and not an invariable command. He
further states that exhaustion is not required if such exhaustion would be
futile or inadequate. He makes no cogent argument that exhaustion is
futile or inadequate in the cases at bar. The remainder of his brief is not
legally sound. He discusses contract law and Pennsylvania constitutional
law. He concludes that Pennsylvania has no constitutional authority to
enact a criminal code. Such arguments are without merit.
4

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH PROUT,
Petitioner

:
No. 3:12cv1901
:
:
(Judge Munley)
v.
:(Chief Magistrate Judge Carlson)
:
TREVOR WINGARD,
:
Respondent
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
:
No. 3:12cv2471
JOSEPH PROUT,
:
Petitioner
:
(Judge Munley)
:(Chief Magistrate Judge Carlson)
v.
:
:
TREVOR WINGARD,
:
Respondent
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER

AND NOW, to wit, this 20th day of May 2013, it is hereby ORDERED
as follows:
1) Chief Magistrate Judge Carlson’s reports and recommendations
(Doc. 8 in No. 3:12cv1901 and Doc. 6 in No. 3:12cv2471) are hereby
ADOPTED;
2) Petitioner’s objections (Doc. 11 in No. 3:12cv1901 and Doc. 9 in
No. 3:12cv2471) are hereby DENIED; and
3) The petitions for writ of habeas corpus pursuant to 28 U.S.C. §

5

2254 (Doc. 1 in both cases) are hereby DISMISSED without prejudice;
4) The court declines to issue a certificate of appealability in either
case; and
5) The Clerk of Court is directed to close these cases.
BY THE COURT:

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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