The opinion of the court was delivered by: Judge Kosik
Carl E. Johnson is currently an inmate at the State Correctional Institution at Huntingdon (SCI-Huntingdon), Pennsylvania. He filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 11, 2006. Named as Respondent is James L. Grace, Superintendent at SCI-Huntingdon. In the petition, Johnson challenges his 2003 Clinton County conviction and sentence. He raises the sole ground that his due process, equal protection and Eighth Amendment rights were violated when the sentencing court abused its discretion in sentencing him to a cumulative sentence when his co-defendant was involved in the same conduct and received a lesser cumulative sentence. The petition is ripe for consideration and, for the reasons that follow, will be dismissed without prejudice as unexhausted.
On January 24, 2003, Johnson pled guilty in the Court of Common Pleas of Clinton County, Pennsylvania, to five counts of possession with intent to manufacture or deliver a controlled substance; one count of conspiracy; two counts of dealing in proceeds of unlawful activities; one count of criminal use of communications facility; and one count of corrupt organizations. In exchange for the guilty plea, application of the statutory mandatory minimum sentences was waived, and a 150 month minimum sentence recommended with the maximum to be determined by the court. On July 9, 2003, Petitioner was sentenced to an aggregate prison term of 150 to 300 months.
On direct appeal to the Pennsylvania Superior Court, with new counsel appointed, Petitioner raised the single issue that the trial court abused its discretion in sentencing because Petitioner's sentence was "vastly different" from the sentence imposed on another individual arrested as a result of the same criminal investigation. On April 2, 2004, the Superior Court affirmed the judgment of sentence, finding the sole issue raised on appeal to have been waived by inadequate briefing. The Superior Court also found that it could not consider the issue because the Commonwealth objected to Petitioner's failure to comply with Pa.R.A.P. 2119(f). This rule requires that a concise statement of the reasons relied on for allowance of appeal be set forth in the appellate brief as well as a demonstration of the existence of a substantial question that the sentence is inappropriate under the Sentencing Code. (Doc. 3, Ex. A.) Johnson did not pursue the appeal further to the Pennsylvania Supreme Court or file a petition for writ of certiorari in the United States Supreme Court.
On January 3, 2005, Petitioner did file a timely PCRA petition under 42 Pa.C.S. § 9541 et seq. In the petition he alleged that his appellate counsel was ineffective by submitting an inadequate brief on direct appeal. Following the appointment of counsel and a hearing, the PCRA court denied relief on March 28, 2005. An appeal to the Pennsylvania Superior Court was thereafter filed by Petitioner on April 22, 2005.
On December 14, 2005, the Superior Court found that appellate counsel was ineffective, reversing the denial of PCRA relief and reinstating Petitioner's right to direct appeal. (Id., Ex. B, Commonwealth v. Johnson, 889 A.2d 620 (Pa. Super. 2005). The case was remanded to the trial court which then directed Petitioner to file a notice of appeal and statement of matters complained about on appeal. Thereafter, the trial court adopted its previous opinion of September 3, 2003, again affirming the judgment of sentence. Petitioner then filed a timely appeal to the Pennsylvania Superior Court. On August 11, 2006, pursuant to the reinstated rights of direct appeal, the Superior Court affirmed the judgment of sentence. Petitioner did not file an allowance of appeal to the Pennsylvania Supreme Court or seek a writ of certiorari in the United States Supreme Court. On December 11, 2006, he filed the instant habeas petition.
Respondent does not dispute the timeliness of the instant petition. In fact, the response asserts how the petition is timely whether Respondent adheres to the belief that (1) the federal limitations period begins to run anew when direct appeal is reinstated through a state grant of collateral relief or (2) begins to run on the date when the judgment would have become final on his first direct review, and was merely tolled during subsequent collateral and direct appeal proceedings. Pursuant to either calculation, Respondent concedes that the instant petition would be timely.
Respondent argues, however, that the sole claim set forth by Petitioner has never been presented in the state courts and that Petitioner has available state process in which to present his claim. As such, Respondent seeks the dismissal of the petition on the basis of exhaustion.
As a general rule, a state prisoner must exhaust available state court remedies before seeking habeas relief in federal court. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). The exhaustion requirement is satisfied when the state courts have had an opportunity to review and correct alleged constitutional violations. Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992). The exhaustion requirement is not mere formality. It serves the interests of comity between the federal and state systems by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). "Unless it would be patently futile to do so, [state prisoners] must seek relief in state court before filing a federal habeas petition. . . ." Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982).*fn1
A habeas corpus petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Gonce v. Redman, 780 F.2d 333, 336 (3d Cir. 1985). The threshold inquiry in the exhaustion analysis is whether the claims asserted in the habeas corpus petition have been "fairly presented" to the state court. Castille v. Peoples, 489 U.S. 346, 351 (1989); Picard v. Connor, 404 U.S. 270, 275 (1971). Fair presentation requires that the "substantial equivalent" of both the legal theory and the facts supporting the federal claim are submitted to the state courts, and the same method of legal analysis applied in the federal courts must be available to the state courts. Evans, 959 F.2d at 1231; Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
If a petitioner presents unexhausted habeas claims to a federal court, but state procedural rules bar further state court review, the federal court will excuse the failure to exhaust and treat the claims as exhausted. Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); see Teague v. Lane, 489 U.S. 288, 297-98 (1989). Although deemed unexhausted, such claims are considered procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749 (1991); Lines, 208 F.3d at 160. A federal habeas court cannot review the merits of procedurally defaulted claims unless the petitioner demonstrates either cause for the procedural default and actual prejudice, or that a fundamental miscarriage of justice will ...