SMYRNES v. GILMORE et al

Filing 2

Memorandum Order summarily dismissing the petition. The Clerk of Court is to mark this case closed. Signed by Judge Cathy Bissoon on 6/9/17. (jpe)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RICKY SMYRNES,
Petitioner,
v.
ROBERT GILMORE, et al.,
Respondents.

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Civil Action No. 2:17-720
Judge Cathy Bissoon

MEMORANDUM ORDER
Ricky Smyrnes (the "Petitioner") has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In 2013, he was tried in the Court of Common Pleas of
Westmoreland County on charges related to the kidnapping and murder of Jennifer Lee
Daugherty. A jury convicted him of first-degree murder, conspiracy, kidnapping and related
crimes. Following a separate penalty hearing, the jury returned a sentence of death on his firstdegree murder conviction.
The Petitioner pursued a direct appeal with the Supreme Court of Pennsylvania. On
February 22, 2017, that Court issued a decision affirming his judgment of sentence.
Commonwealth v. Smyrnes, 154 A.3d 741 (Pa. 2017).
On April 12, 2017, the Petitioner filed in the Court of Common Pleas a motion for
collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), in which he
claims that his trial counsel provided him with ineffective assistance in violation of his Sixth
Amendment rights. He claims also that there is newly-discovered exculpatory evidence.
(Petition, ¶ 11(a)). On May 4, 2017, the Court of Common Pleas appointed Thomas N. Farrell,
Esq., to represent the Petitioner and issued a scheduling order setting forth the due date for a

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counseled amended PCRA petition. (5/4/17 docket entries on Criminal Docket Sheet in
Commonwealth v. Smyrnes, CP-65-CR-848-2010 (C.P. Westmoreland Co.).1
On or around June 2, 2017, this Court received for filing the Petitioner's pro se petition
for habeas relief, which is governed by 28 U.S.C. § 2254.2 As relief, he seeks an order from this
Court that he be released, retried or, at a minimum, that his sentence of death be vacated.
A federal habeas petitioner must complete the exhaustion of his available state court
remedies before a federal district court may determine the merits of his habeas claims. This
exhaustion requirement is codified at 28 U.S.C. § 2254(b)(1)(A), and provides:
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 State[.]

The requirement is "grounded in principles of comity; in a federal system, the States should have
the first opportunity to address and correct alleged violations of state prisoner's federal rights."
Coleman v. Thompson, 501 U.S. 722, 731 (1991).
The general rule is that a district court must dismiss a federal habeas petition if the
petitioner is exhausting his available state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269,
273-79 (2005) (discussing the general rule as set forth in Rose v. Lundy, 455 U.S. 509 (1982)
and the limited exception to it, which does not apply here). Therefore, because the Petitioner
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The Court takes judicial notice of the state court docket.

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Section 2254(a) provides that a district shall "entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United
States." 28 U.S.C. § 2254(a).
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currently is litigating challenges to his convictions and capital sentence in his PCRA proceeding,
this Court must dismiss his federal habeas petition. The dismissal is without prejudice to the
Petitioner commencing another federal habeas case if, after the completion of his state court
remedies, he does not receive the relief he seeks in state court.
For the reasons stated above, the petition for a writ of habeas corpus is summarily
DISMISSED.3 The Clerk of Court is to mark this case CLOSED.
IT IS SO ORDERED.

June 9, 2017

s\Cathy Bissoon
Cathy Bissoon
United States District Judge

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Section 2253(c)(1)(A) of Title 28 provides that "[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to the court of appeals from…the final
order in a habeas corpus proceeding in which the detention complained of arises out of process
issued by a State court[.]" (Emphasis added). This Court need not make a certificate of
appealability determination. That is because "[a] district court's order dismissing, without
prejudice, a petition for federal habeas relief for failure to exhaust state-court remedies is not a
final appealable order, since it explicitly entitles the petitioner to renew habeas proceedings upon
completion of review of his claims in the state court system." BRIAN R. MEANS, FEDERAL
HABEAS MANUAL § 12:30, WestlawNext (database updated May 2017) (citations omitted). If a
certificate of appealability determination is required, the Court finds that the Petitioner is not
entitled to one.

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