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DEBROUEX v. ERICKSON

United States District Court, E.D. Pennsylvania


September 1, 2004.

TROY DEBROUEX
v.
SUPERINTENDENT ERICKSON, et al.

The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge

REPORT AND RECOMMENDATION

Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that follow, the court recommends that the petition be dismissed, without prejudice, for failure to exhaust state court remedies.

I. BACKGROUND

  On April 3, 2002, petitioner was convicted of aggravated assault and violation of the Uniform Firearms Act in the Court of Common Pleas for Philadelphia County (C.P. No. 0595 01/02). (Petition ¶¶ 2-5.) The court sentenced petitioner to a term of imprisonment of five to fifteen years. (Petition ¶ 2.) Petitioner filed a motion for reconsideration and/or to modify his sentence which was denied on June 9, 2004. Petitioner did not appeal to the Superior Court of Pennsylvania. (Petition ¶ 11.)

  II. DISCUSSION

  A federal court may not entertain the merits of a prisoner's petition for a writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is satisfied if the federal claim was fairly presented to the state appellate courts. Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004). It is well established that a prisoner must present all of his claims to the trial court, the state's intermediate court, as well as to its Supreme Court, before a district court may entertain a federal petition for habeas corpus. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847 (1999); Evans v. Court of Common Pleas, Del. County, Pa., 959 F.2d 1227, 1230 (3d Cir. 1992).*fn1 "Before exhaustion will be excused, state law must clearly foreclose state court review of the unexhausted claims." Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993). Unless a state court has concluded that a petitioner "is clearly precluded from state court relief, the federal habeas claim should be dismissed for nonexhaustion, even if it appears unlikely that the state will address the merits of the petitioner's claim." Lambert v. Blackwell, 134 F.3d 506, 517 (3d Cir. 1997) (emphasis in original), cert. denied, 532 U.S. 919 (2001).

  Since petitioner has not exhausted his state court remedies, the court need not require the Commonwealth to file an answer and the petition should be summarily dismissed, without prejudice. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."). III. CONCLUSION

  Accordingly, the court makes the following:

RECOMMENDATION
  AND NOW, this 1st day of September, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED, without prejudice, and that no certificate of appealability ("COA") be granted.*fn2


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