The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is a petition for a writ of
habeas corpus filed by state court inmate Marc X. Rivers pursuant
to 28 U.S.C. § 2254. The matter has been fully briefed and is
ripe for disposition.
According to the petition, the Luzerne County Pennsylvania
Court of Common Pleas entered judgments of conviction against
petitioner on August 28, 2003 and April 26, 2004. He was
convicted of terroristic threats, two counts of disorderly
conduct, two counts of resisting arrest, one count of harassment
and one count of contempt of court.*fn1
Petitioner appealed to the Pennsylvania Superior Court.
According to that court's opinion the background facts are as
On August 28, 2003, at his PFA hearing, appellant was
ordered to refrain from threatening, harassing, or
contacting Cleatrice Dempsey. Appellant became
agitated with the court's decision and stated Dempsey
had kidnapped his child and that Islam gives him the
right to chop off Dempsey's feet and hands and
crucify her. Appellant then turned directly to
Dempsey and stated he was going to get her. Appellant
was held in contempt of court and immediately
sentenced to 6 months incarceration at the Luzerne
County Correctional Facility. Two deputies then
attempted to place appellant under arrest, but he resisted by locking his elbows,
swinging his arms, and striking one of the deputies
in the stomach. During this time, appellant continued
to quote Islamic religious passages and aver he was
going to kill Dempsey upon his release from jail.
Superior Court opinion dated October 18, 2004.
The Superior Court denied his appeal on October 18, 2004.
Petitioner then filed an "In Forma Pauperis Verified Statement"
with the Pennsylvania Supreme Court. The court notified the
petitioner that filing such a statement would not preserve the
deadline for filing a petition for allowance of appeal, which was
November 17, 2004.
The petitioner knew that he could not make the November 17,
2004 filing deadline, (Doc. 2, Memorandum in support of petition
at 8) and therefore, he filed a motion for extension of time. The
Supreme Court received the motion for extension of time on
November 18, 2004, but did not immediately rule on it. Petitioner
next sent a petition for allowance of appeal beyond the November
17th deadline. On December 8, 2004, the Supreme Court sent a
notice to the petitioner indicating that the petition for
allowance of appeal was being retained pending the decision on
the motion for an extension of time.
On December 22, 2004, the court denied the motion for an
extension of time, which rendered the petition for allowance of
appeal untimely. Thus, the court indicated that the petition for
allowance of appeal could not be addressed.
Petitioner then filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 asserting that the State
courts have violated his federal constitutional rights.
Petitioner also seeks to recover damages pursuant to
42 U.S.C. § 1983. He requests the following in damages: nominal damages of
one thousand dollars per day incarcerated; ten trillion dollars
in compensatory damages and ten trillion dollars in punitive
damages. (Doc. 1, ¶ 12 D). After a careful review we find that
the petitioner's habeas corpus petition and section 1983 claim should be denied.
In pertinent part, 28 U.S.C.A. § 2254 reads:
"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