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United States District Court, E.D. Pennsylvania

July 27, 2004.


The opinion of the court was delivered by: ARNOLD RAPOPORT, Magistrate Judge


Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Gene Bowman, a/k/a Alexander Brown ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the Philadelphia Detention Center located in Philadelphia, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied without prejudice and dismissed without an evidentiary hearing. It is also recommended that Petitioner's two remaining outstanding Motions should be denied.


  Petitioner was arrested and charged with retail theft on May 15, 1994. After pleading guilty, Petitioner was sentenced to five years probation on October 17, 1994. Petitioner filed a federal habeas corpus petition on February 12, 1999, using the name John Hayes. Petitioner claimed the following in that petition: (1) his conviction was obtained by a violation of the protection against double jeopardy; (2) his conviction was obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to him. United States Magistrate Judge Carol Sandra Moore Wells recommended on September 2, 1999 that the petition should be dismissed with prejudice because all of the claims were defaulted due to Petitioner's failure to seek a direct appeal or file a timely PCRA petition. The Honorable William J. Yohn approved and adopted Judge Wells' Report and Recommendation ("R&R") on November 17, 1999, thereby dismissing the petition with prejudice.

  Petitioner filed a second federal habeas petition on March 11, 1999, using the name John Hooks. This second petition contained the same claims in the first petition. On September 2, 1999, Judge Wells issued a second R&R in which she recommended that the petition should be dismissed with prejudice because all of the claims were defaulted due to Petitioner's failure to seek a direct appeal or file a timely PCRA petition. Judge Yohn again approved and adopted the second R&R on November 17, 1999, and dismissed the petition with prejudice.

  A violation of probation hearing regarding Petitioner's retail theft sentence was held on October 1, 2003, and Petitioner was re-sentenced to eleven and one-half to twenty-three months imprisonment. Petitioner filed a pro se petition for post-conviction collateral relief on December 12, 2003, and was appointed counsel. According to Respondents, the petition is still active, and a status hearing is scheduled for August 11, 2004.

  Petitioner filed the instant pro se habeas Petition on February 11, 2004, using the name Gene Bowman. The instant Petition contains the following claims: (1) denial of access to the state courts; (2) denial of effective assistance of counsel due to a conflict of interest with the Public Defender and failure of the Public Defender to file appeals; and (3) denial of the right to appeal and/or breakdown in the process of the court as all appeals filed except the post-sentence motion were not entertained or disregarded in error as being time-barred and the sentence is grossly disproportionate to the offense. This case was assigned to the Honorable Norma L. Shapiro, and on February 13, 2004, Judge Shapiro ordered Petitioner to re-style this Petition as arising under 28 U.S.C. § 2254, instead of 28 U.S.C. § 2241. On March 8, 2004, Petitioner filed a motion for "Jurisdictional Court Order Transfer." On July 19, 2004, Respondents filed their Response, in which they contend that the Petition is successive, and Petitioner's claims are unexhausted.

  II. DISCUSSION. The pending PCRA petition seeks the grant of a nunc pro tunc appeal for the following claims: (1) Petitioner's Public Defender failed to file post-sentence motions; (2) the Public Defender failed to file an appeal following the imposition of a back-time sentence for a parole violation; and (3) the Public Defender was operating under a conflict of interest because Petitioner had sued the Public Defender's Office for violation of his civil rights. There is no amended PCRA petition in the state court record.

  Respondents incorrectly claim that all of the claims in the instant Petition are identical to the claims in the pending December 12, 2003 PCRA petition. On the contrary, only some of the claims contained in the instant Petition are the same as those in the pending PCRA petition. Since the identical claims are capable of state exhaustion and are currently being acted upon in the state court, Respondents argue that this Petition should be dismissed without prejudice to Petitioner's filing a timely habeas petition after exhausting his claims in state court. A review of this Petition reveals that although some of the claims have been presented in the state PCRA action, other claims have never been presented to the state court. Thus, none of Petitioner's claims are properly exhausted for purposes of habeas review.*fn2 Petitioner still has the right under Pennsylvania law to raise the questions he raises in this Petition, and not only are remedies available in state court, Petitioner is actively pursuing them.

  An exception to the exhaustion requirement is made "only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (citations omitted); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). The United States Court of Appeals for the Third Circuit has held that "our case law forecloses a District Court from excusing exhaustion `unless state law clearly forecloses state court review of claims which have not previously been presented to a state court.'" Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001) (quoting Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000) (emphasis in original)). Petitioner does not acknowledge his failure to exhaust his state remedies, and it is unclear that no avenue or relief would be available to Petitioner if he returned to state court to complete litigation of the claims in his PCRA petition, and if he attempts to litigate his newly raised claims in state court.

  It is also unclear whether the claims in Petitioner's PCRA case are procedurally barred in the state court. The Third Circuit has advised that "[a]s a matter of general practice, we assume that a district court which has excused exhaustion but has not yet embarked upon proceedings of substance will stay its hand once there is reliable evidence that the state action has been reactivated." Walker v. Vaughn, 53 F.3d 609, 615 (3d Cir. 1995). Also, "in cases where there is any doubt about the availability of a state remedy, the claim must be dismissed." Coady, 251 F.3d at 489 (citing Lines, 208 F.3d at 163).

  Finally, Petitioner will not be prejudiced by a dismissal of this Petition without prejudice for technical procedural reasons. Although Respondents argue that this is Petitioner's third habeas petition, and he must first seek permission from the Third Circuit to file it because it is a successive petition, Petitioner will likely be able to file another petition when the claims become ripe for adjudication, and such petition will not be considered new since the merits of the claims were never reviewed by a federal court. See Slack v. McDaniel, 529 U.S. 473, 487-490 (2000). However, in the event that Petitioner chooses to submit another habeas petition, he must still comply with the AEDPA's filing requirements and file such a petition within one year of the date his Pennsylvania PCRA petition, including any related proper appeal, is no longer pending.

  Petitioner has also filed two other Motions, the first is titled "Motion for Court Order Injunction to Prevent Defendants Albert Snite, Jr., the Commonwealth of Pennsylvania and Philadelphia Defender Association from Retaliating With Acts of Reprisals Against Plaintiff and Harassing Him With Attempts and Threats (With Intimidations) of Having Him Wrongfully Committed in a Mental Health Hospital Institution," and the second is entitled "Motion to Compel Defendants Answer and Response to Plaintiff Habeas Corpus Petition by August 19, 2004 or Be Fined and/or Penalized and Sanctioned If Not Met." The Motion to Compel should be denied as moot because Respondents filed their Response to the Petition on July 19, 2004. The Motion for Injunctive Relief challenges the conditions of Petitioner's confinement, and as such, should also be denied without prejudice because such actions are properly brought pursuant to 42 U.S.C. § 1983. See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002) (stating "when the challenge is to a condition of confinement such that a finding in plaintiff's favor would not alter his sentence or undo his conviction, an action under § 1983 is appropriate").

  Accordingly, this Petition should be denied without prejudice, and I make the following: RECOMMENDATION

  AND NOW, this ____ day of July, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED without prejudice and DISMISSED without an evidentiary hearing. Petitioner's Motion to Compel should be DENIED as moot, and the Motion for Injunctive Relief should be DENIED without prejudice. There is no probable cause to issue a certificate of appealability.

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