NIXON v. HARPER et al
OPINION dismissing without prejudice for failure to exhaust. Signed by Magistrate Judge Cynthia Reed Eddy on 1/17/2017. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MARK ANTOINE NIXON,
ORLANDO HARPER, Warden ACJ;
STEPHEN ZAPPALLA, JR., D.A.
Commonwealth; BRUCE BEEMER, A.G.
Commonwealth; BILL PADUTO, Mayor,
Civil Action No. 2: 16-cv-1688
United States Magistrate Judge
Cynthia Reed Eddy
Petitioner, Mark Antoine Nixon (“Petitioner” or “Nixon”) filed the instant Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. At the time Nixon filed this petition, he was
a pretrial detainee confined in the Allegheny County Jail awaiting disposition of state criminal
charges on two criminal cases: CP-02-CR-1140-2015 and CP-02-CR-11766-2015.2
The docket sheet for Petitioner’s state criminal cases are available online and this Court
takes judicial notice of them. Those dockets reflect that both cases are in the pretrial stages and
both cases are scheduled for trial before President Judge Jeffrey A. Manning on February 28,
2017. Petitioner is represented in both cases by attorney Patrick J. Thomassey.
The parties consented to jurisdiction by a United States Magistrate Judge. See ECF Nos.
6 and 12. See also 28 U.S.C. § 636(c)(1).
Subsequent to the filing of this petition, Nixon’s federal supervised release was revoked
and he was sentenced on May 19, 2016, to twenty-one months imprisonment. See United States
v. Nixon, 2:04-cr-00037 (W.D.P.A). Although he notified the Court that he had been transferred
to federal custody, it appears that he has not informed the court of his current address. While the
docket reflects that Nixon is confined at NEOCC, the Inmate Locater for the Bureau of Prisons
indicates that Nixon is currently confined at FCI Hazelton.
In the instant Petition for Writ of Habeas Corpus, Petitioner alleges denial of his right to a
speedy trial and ineffective assistance of counsel for “failing to raise speedy trial bail and prompt
trial rule and necessary motions on my behalf.” Petitioner further claims that he is being denied
access to the courts because Judge Manning has failed to consider each of his pro se filings “as a
hybrid representation, and fail to understand that my attorney of record refuses to file the
petitioners/motions on my behalf.” He requests that this Court issue an order granting immediate
dismissal of all charges against him with prejudice.
It is clear that Petitioner is not entitled to habeas relief at this time. First, to the extent
that he has raised any federal constitutional claims in his Petition, he has failed to exhaust them.
28 U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509, 515 (1982); Pace v. DiGuglielmo,
544 U.S. 408, 416-17 (1982); Ellison v. Rogers, 484 F.3d 658, 662-63 (3d Cir. 2007). As
explained by our court of appeals in Moore v. DeYoung, 515 F.3d 437, 443 (3d Cir. 1975),
“jurisdiction without exhaustion should not be exercised at the pre-trial stage unless
extraordinary circumstances are present.”
Petitioner has presented no
allegations that support a finding of “extraordinary circumstances” and therefore has not made a
showing of the need for adjudication by this Court at this time on the merits of his unexhausted
state remedies. Moore, 515 F.3d at 447. Therefore, the Court will dismiss Nixon’s habeas
petition without prejudice. Rose v. Lundy, 455 U.S. 509 (1982).
Further, the Court notes that Petitioner’s pro se filings have not required action by the
state court as he is represented by counsel and Pennsylvania does not permit hybrid
representation. Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). Because Nixon does not
have the right to hybrid representation, he does not have the right to demand that the state trial
court address his pro se motions on the merits.
Last, where state court remedies are unexhausted, “principles of federalism and comity
require district courts to abstain from enjoining pending state criminal proceedings absent
extraordinary circumstances.” Younger v. Harris, 401 U.S. 37 (1981); Moore, 515 F.2d at 44748. Younger abstention will apply when: “(1) there are ongoing state proceedings that are
judicial in nature; (2) the state proceedings implicate important state interests; and (3) the state
proceedings afford an adequate opportunity to raise the federal claims.” Lazaridis v. Wehmer,
591 F.3d 666, 670 (3d Cir. 2010) (quoting Addiction Specialist, Inc. v. Twp. of Hampton, 411
F.3d 399, 408 (3d Cir. 2005)). If the three Younger requirements are satisfied, abstention is
required unless the petitioner demonstrates that the state proceedings are motivated by bad faith,
the state law being challenged is patently unconstitutional, or there is no adequate alternative
state forum where the constitutional issues can be raised. Id. at 670 n. 4 (citing Schall v. Joyce,
885 F.2d 101, 106 (3d Cir. 1989)). These exceptions are to be construed “very narrowly” and
invoked only in “extraordinary circumstances.” Id.; Moore, 515 F.2d at 448. See also Brian R.
Means, POSTCONVICTION REMEDIES, § 10.3 Younger abstention (July 2012).
Here, there is are ongoing state judicial proceedings, as Petitioner is a defendant in two
state criminal prosecutions, and it is clear that granting his request for relief would interfere with
those proceedings. In addition the state’s criminal cases against him undoubtedly implicate the
important state interests of the state’s enforcement of its criminal laws. Finally, Petitioner does
have the opportunity to raise constitutional claims in the context of his state criminal
proceedings. Thus, Petitioner’s claims concerning his ongoing criminal proceedings satisfy the
requirements of abstention, and the instant habeas action does not raise the type of extraordinary
circumstances contemplated under Younger.
Based upon all of the foregoing, Petitioner is not entitled to a writ of habeas corpus under
28 U.S.C. § 2241. The Petition will be dismissed for failure to exhaust. The denial of this
Petition is without prejudice to Petitioner’s ability to timely file another habeas petition, under 28
U.S.C. § 2254 or § 2241 as the circumstances require, following proper exhaustion of available
state court remedies and satisfaction of any other applicable procedural prerequisites.
An appropriate Order follows.
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
Dated: January 17, 2017
MARK A. NIXON
2240 Hubbard Road
Youngstown, OH 44505
MARK A. NIXON
1640 Sky View Drive
Bruceton Mills, WV 26525
Emily B. Grawe
Allegheny County District Attorneys Office
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