United States District Court, M.D. Pennsylvania
November 18, 2005.
MARC X. RIVERS (MUHAMMAD), Petitioner,
THE COMMONWEALTH OF PENNSYLVANIA, Respondent.
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.
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 the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
42 U.S.C.A. § 2254(b).
More particularly, the law provides:
All claims that a petitioner in state custody
attempts to present to a federal court for habeas
corpus review must have been fairly presented to each
level of the state courts, 28 U.S.C. § 2254(b);
O'Sullivan v. Boerckel, 526 U.S. 838,
119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999) ("we ask not only
whether a prisoner has exhausted his state remedies,
but also whether he has properly exhausted those
remedies, i.e., whether he has fairly presented his
claims to the state courts,"); Doctor,
96 F.3d at 678. Thus, except as we discuss below, and except for
petitions which can be denied on the merits, federal
courts refrain from addressing the merits of any
claim raised by a habeas petitioner that was not
properly exhausted in state court, Coleman v.
Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546,
115 L.Ed.2d 640 (1991). "The exhaustion requirement
ensures that state courts have the first opportunity
to review convictions and preserves the role of state
courts in protecting federally guaranteed rights."
Caswell v. Ryan, 953 F.2d 853, 856 (3d Cir. 1992).
Lines v. Larkins, 208 F.3d 153
, 159 (3d Cir. 2000) (footnotes
omitted). The burden of establishing that such claims were fairly
presented falls upon the petitioner. Id.
If a claim is not fairly presented to the highest state court,
it is not fully exhausted. Exhaustion is satisfied, however, if the petitioner is
barred from seeking further relief in state court by a state
procedural rule. McCandless v. Vaughn, 172 F.3d 255, 260 (3d
Cir. 1999). Where a procedural rule bars the petitioner from
seeking further relief in the state courts, his claims are deemed
"procedurally defaulted." A federal court cannot address the
merits of a procedurally defaulted claim unless the petitioner
establishes cause and prejudice or a fundamental miscarriage of
justice to excuse the default. Lines v. Larkins, 208 F.3d 153,
160 (3d Cir. 2000). We will address cause/miscarriage of justice
and prejudice separately.
A. Cause and miscarriage of justice
Instantly, petitioner has procedurally defaulted on his claims
as he could not bring them before the Pennsylvania Supreme Court
due to his failure to meet the filing deadline. We must therefore
determine whether he has established "cause and prejudice" or a
"fundamental miscarriage of justice" to excuse the default.
According to the United States Supreme Court "cause" is present
where the prisoner can show that some objective factor external
to the defense that impeded his effort to comply with the State's
procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986).
Petitioner has not established cause for his procedural
default. Evidently, he argues that a notice dated November 8,
2004 sent from the Supreme Court misled him or extended the time
limit for submitting his petition for allowance of appeal. We
The notice clearly states that he had thirty (30) days from
October 18, 2004 to appeal the Superior Court decision and
specifically states that the deadline is November 17, 2004.
Petitioner was well aware that this was the deadline as is
illustrated by the admission in his memorandum that he realized
he could not produce his petition in that amount of time and moved for an
extension of time. The court denied the extension of time, which
served as a prohibition to filing the petition for an allowance
Petitioner has not established any external cause that kept him
from filing a timely petition for allowance of appeal.*fn2
In addition, he has not established a fundamental miscarriage of
justice. Accordingly, we cannot address the merits of his claims.
Moreover, prejudice cannot be demonstrated in the instant case,
as the only issues that petitioner could possibly raise in a
federal habeas corpus petition are wholly without merit. The
primary issue advanced by the petitioner is that his criminal
behavior is excused by the Free Exercise of Religion Clause of
the First Amendment of the United States Constitution. He
discusses this issue as a separation of church and state issue.
He further asserts that the Freedom of Speech Clause of the
First Amendment of the United States Constitution excuses his behavior.
He also claims that his arrest and seizure were illegal and that
the court lacked jurisdiction for these same reasons. The
petitioner's position is without merit. The law provides that "the right of free exercise does not
relieve an individual of the obligation to comply with a `valid
and neutral law of general applicability on the ground that the
law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).'") Employment Div., Dep't of Human
Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990).
Moreover, the United States Supreme Court has "never held that an
individual's religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State is free to
regulate." Id. at 878-79, quoted in Congregation Kol Ami v.
Abington Township, 309 F.3d 120, 139 n. 5 (3d Cir. 2002).
Petitioner's argument that his religion and his right to free
speech allow him to kill, threaten or otherwise harm another
regardless of valid State laws is absurd on its face and wholly
without merit. We need not address it any further.
Petitioner has raised no other valid arguments as to why the
court that sentenced him lacked subject matter jurisdiction, or
how he was subject to an illegal arrest and seizure. Accordingly,
even if we could address the merits of his petition, it would be
II. Section 1983
Petitioner has not raised any valid claim that any of his
rights were violated so as to justify a damages claim under
42 U.S.C. § 1983.
The United States Supreme Court has held:
[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, [footnote
omitted] a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus,
28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has
not been so invalidated is not cognizable under §
1983. Heck v. Humphrey, 512 U.S. 477, 486-87(1994)
(emphasis in original).
The convictions of which the petitioner complains in his
petition have not been reversed, expunged, declared invalid or
called into question. Accordingly, he can receive no relief under
section 1983 and that claim shall be dismissed.
Rivers' petition for a writ of habeas corpus pursuant to
section 2254 will be denied. He has procedurally defaulted his
claims and has failed to demonstrate cause and prejudice.
Therefore, we cannot address his claims. Even if we could address
his claims, however, they would be dismissed as wholly lacking in
merit. In addition, the petitioner's claim for damages under §
1983 will be denied as meritless. An appropriate order
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