The opinion of the court was delivered by: Judge McClure
Petitioner Daniel B. Storm ("Petitioner" or "Storm"), an inmate presently confined at the Cresson State Correctional Institution ("SCI-Cresson") in Cresson, Pennsylvania, commenced this pro se action by filing a petition for writ of habeas corpus ("petition") pursuant to the provisions of 28 U.S.C. § 2254. Storm challenges his 2006 Lebanon County conviction. For the reasons set forth below, the petition will be dismissed without prejudice for failure to exhaust state court remedies.
On or about May 14 and 15, 2005, Storm provided alcohol to and engaged in various forms of sexual contact with K.C., a fifteen-year old girl. (See Respondent's Memorandum of Law, Rec. Doc. No. 16-2 at 1.) Storm performed oral sexual intercourse on K.C. and requested that she do the same to him. (See id. at 2.)
Ultimately, the parties ended up engaging in vaginal sexual intercourse. (See id.) Storm also took photographs of K.C. (See id.) The incident occurred at Storm's home. (See id. at 1.)
On May 22, 2005, during an interview with Pennsylvania State Police Trooper James Biever, Storm acknowledged that he knew K.C. and had met her at church several years before. (See id. at 2.) He also admitted to engaging in oral sex with K.C. (See id.) Although he initially denied it, eventually he also admitted to engaging in vaginal sexual intercourse with K.C. (See id.) Storm also showed Pennsylvania State Police Trooper O'Neill four (4) photographs that he had taken of K.C. during their May 2005 encounter. (See id.) Trooper O'Neill observed that K.C. was in a partially nude state in all of the photographs. (See id.)
On June 8, 2005, Storm was charged with one (1) count of Involuntary Deviate Sexual Intercourse, one (1) count of Statutory Sexual Assault, one (1) count of Aggravated Indecent Assault, one (1) count of Sexual Abuse of Children, one (1) count of Corruption of Minors, one (1) count of Indecent Assault, and one (1) count of Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors. (See id. at 1.)
Storm waived his preliminary hearing on September 19, 2005. (See id.) On December 22, 2005, Storm entered a guilty plea before the Honorable John C. Tylwalk. On April 26, 2006, Storm appeared before Judge Tylwalk for his hearing and sentencing pursuant to Megan's Law. See 42 Pa. Cons. Stat. Ann. § 9791 et seq. At that time, Storm was found to be a sexually violent predator and was sentenced to a term of imprisonment of twenty (20) months to four (4) years in the state correctional institution. (See id. at 2-3.) No direct appeal was filed. (See id. at 3.) On April 30, 2007, Storm filed petition under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., in the Lebanon County Court of Common Pleas. (See id.) For unknown reasons, the PCRA court did not issue a Rule to Show Cause until almost one (1) year later on April 21, 2008. (See id. n. 5; Criminal Docket Sheet, Rec. Doc. No. 16-16 at 11.) On the same date, counsel was appointed to represent Storm. (See id. at 3.) At an evidentiary hearing on February 12, 2009, testimony was offered by Storm and the attorney who represented him at the time of his guilty plea. (See id.) On July 22, 2009, Storm's PCRA petition was dismissed. (See id.) On August 21, 2009, Storm filed a notice of appeal to the Pennsylvania Superior Court that still is pending.*fn1 (See id.)
Storm initially filed the instant petition raising due process, prosecutorial misconduct, and ineffective assistance of counsel claims in the United States District Court for the Eastern District Court. (See Rec. Doc. No. 1.) Because he is challenging a conviction in the Lebanon County Court of Common Pleas, which is located in this District, his petition was transferred to this Court on August 14, 2009. (See Rec. Doc. Nos. 1-3.) In accordance with United States v. Miller, 197 F.3d 644 (3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), on September 3, 2009, this Court issued a formal notice to Storm that he either could have his petition ruled on as filed, or withdraw his petition and file one all-inclusive § 2254 petition within the one-year statutory period prescribed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Rec. Doc. No. 5.) On September 14, 2009, Storm filed his notice of election requesting that the court rule on the petition as filed. (Rec. Doc. No. 7.) Prior to filing his notice of election, Storm also filed an application for bail. (Rec. Doc. No. 6.)
By Order dated October 15, 2009, Respondents were directed to file responses to the petition and application for bail within twenty (20) days. (Rec. Doc. No. 8.) Following a request for a sixty (60) day extension of time, which was granted, on December 31, 2009, responses to the petition (Rec. Doc. No. 16) and application for bail (Rec. Doc. No. 15) were filed. Although Storm was given the opportunity to file a reply, the deadline for filing a reply has passed, and no reply has been filed.
Therefore, the petition is ripe for review.
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); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). "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).*fn2
The exhaustion requirement "is not a 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 ...