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Albert E. Brooke v. Warden

April 13, 2011

ALBERT E. BROOKE, PETITIONER
v.
WARDEN, CARBON COUNTY CORRECTIONAL FACILITY*FN1 , RESPONDENT



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On March 11, 2011, Petitioner Albert E. Brooke ("Petitioner" or "Brooke"), who presently is confined at the Carbon County Correctional Facility in Nesquehoning, Pennsylvania, initiated the action referenced above at Civil No. 1:11-CV-0463 by filing a Petition for Writ of Habeas Corpus under the provisions of 28 U.S.C. § 2254. On March 14, 2011, a nearly identical Petition submitted by Brooke was docketed at Civil No. 1:11-CV-0472. The second Petition differs from the first only in that Brooke slightly alters his statement of supporting facts as to grounds one and three. Because the Petitions are substantively the same, the consolidation of the Petitions into one action would be appropriate. However, upon screening the Petitions, it is apparent that Brooke has failed to exhaust state court remedies, and therefore, as more fully explained below, we shall grant his Motions requesting leave to proceed in forma pauperis in both actions for the sole purpose of filing the Petitions, and the Petitions will be dismissed.

In his Petition*fn2 , which was prepared on a form petition for use by individuals in state custody to challenge confinement under the provisions of 28 U.S.C. § 2254, Brooke answers "not applicable" to the questions asking him to provide information relating to the conviction he is challenging, his appeal from his conviction, and any collateral review he sought of his judgment of sentence. His first ground for relief in this Court is that he never has been charged with anything, and instead has been thrown in the hole without having been arraigned or afforded the opportunity to post bail. (See Civil No. 1:11-CV-0463, Doc. 1 at 5; Civil No. 1:11-CV-0472, Doc. 1 at 5.)

Brooke second ground essentially is a re-statement of his first ground in that he states "no arrest, no arraignment" and again complains that he never appeared before a magistrate to set bail and was instead thrown in the county jail in the R.H.U. [Restricted Housing Unit] to cover-up that he is there. (See Civil No. 1:11-CV-0463, Doc. 1 at 6; See Civil No. 1:11-CV-0472, Doc. 1 at 6.) Brooke's states his third ground as "personal injury," and refers to beating, hitting, and throwing him around and states that his left leg is all black and blue. (See Civil No. 1:11-CV-0463, Doc. 1 at 8; See Civil No. 1:11-CV-0472, Doc. 1 at 8.) Brooke's request for relief is mostly illegible in both Petitions, but it is possible to make out that he is requesting his release from jail, the award of $10,000 per day, and expungement of his record. (See Civil No. 1:11-CV-0463, Doc. 1 at 14; See Civil No. 1:11-CV-0472, Doc. 1 at 13.)

Independent research by this Court reveals the following additional relevant background:

In disposing of Brooke's pro se petition for post-conviction collateral relief, the Court of Common Pleas of Carbon County, Pennsylvania, summarized the background with respect to Brooke's entry into a negotiated plea agreement and sentencing as follows:

On August 11, 2004, Albert Edward Brooke (defendant) pled nolo contendere to one count of aggravated indecent assault [footnote omitted] (F2), two counts of corruption of minors [footnote omitted] (M1), and two counts of endangering the welfare of a child [footnote omitted] (M1), in the case docketed to no. 128 CR 2003 for incidents involving his stepdaughter when she was 5 and 6 years old; defendant also pled nolo contendere to one count of corruption of minors (M1) and one count of endangering the welfare of a child (M1), in the case docketed to no. 129 CR 2003, for incidents involving his 4-year-old stepson. Defendant's pleas were entered pursuant to a negotiated plea agreement in which the majority of the charges filed were to be nolle prossed, several consisting of felonies of the first degree. [footnote omitted.] Under this agreement, defendant was to receive an aggregate sentence of four to eight years' imprisonment in a state correctional facility, followed by 20 years' probation. The plea agreement was accepted by this court and, in accordance with the agreement, defendant was sentenced on the same date. [footnote omitted.]

Commonwealth v. Brooke, 7 Pa. D. & C. 5th 129, 2008 WL 6053237 (Pa. Com. Pl. 2008).

The criminal docket in Brooke's case in the Court of Common Pleas of Carbon County at Docket No. CP-13-CR-0000128-2003 shows the following recent developments relating to Brooke's present confinement in the Carbon County Correctional Facility:

On February 15, 2011, the Carbon County Probation Department filed a Motion to Revoke Special Probation. (See Commonwealth of Pennsylvania v. Albert Edward Brooke, CP-13-CR-0000128-2003, Page 88.)*fn3 By Order dated February 16, 2011, the Court of Common Pleas of Carbon County granted a motion for an arrest warrant for revocation of special probation. (See id.) The arrest warrant was issued and returned on February 17, 2011. (See id., Page 89.) Upon motion of the Carbon County Probation Department, a preliminary hearing scheduled on February 18, 2011 was continued to March 4, 2011. (See id.) By Order dated March 2, 2011, upon entry of a stipulation whereby Brooke waived his right to a preliminary revocation (Gagnon I) hearing, the hearing that had been scheduled for March 4, 2011 was waived, and a hearing on the Motion to Revoke Special Probation was scheduled for March 31, 2011. (See id., Page 90.) On March 4, 2011, the Court granted a motion for the appointment of conflict counsel, and conflict counsel was appointed to represent Brooke. (See id., Page 91.) The March 31 hearing subsequently was re-scheduled, and, as of the date of this Memorandum, the docket reflects that it is scheduled for April 25, 2011 at 1:15 PM, and that counsel for Brooke was served with notice of the hearing by First Class mail. (See id., Page 92.)

DISCUSSION

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).*fn4

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 a prisoner's federal rights." Gibson, 805 F.2d at 138. A habeas corpus petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. Lines v. ...


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