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RIVERS v. COMMONWEALTH OF PENNSYLVANIA

November 18, 2005.

MARC X. RIVERS (MUHAMMAD), Petitioner,
v.
THE COMMONWEALTH OF PENNSYLVANIA, Respondent.



The opinion of the court was delivered by: JAMES MUNLEY, District Judge

MEMORANDUM

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.

Background

  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 follows:
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.

  Discussion

  I. Section 2254

  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 exhausted ...


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