The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Presently before the Court is the pro se Petition for Writ of Habeas Corpus ("Petition") filed under the provisions of 28 U.S.C. § 2254 by Petitioner Zouheir Saul Fakhouri ("Petitioner" or "Fakhouri"), an inmate presently confined at the Mercer State Correctional Institution ("SCI Mercer") in Mercer, Pennsylvania. (Doc. 5.) For the reasons set forth below, the Petition will be dismissed without prejudice for failure to exhaust state court remedies.
A. Criminal Conviction and Direct Appeal Proceedings
On July 25, 2008, Fakhouri was convicted by a jury sitting in the Pike County Court of Common Pleas of two (2) counts of Delivery of a Controlled or Counterfeit Substance; two (2) counts of Possession with Intent to Manufacture or Deliver a Controlled or Counterfeit Substance; two (2) counts of Criminal Use of a Communication Facility; and two (2) counts of Possession of a Controlled or Counterfeit Substance. (Doc. 12, Response, ¶ 1.) On September 25, 2008, Fakhouri was sentenced to a term of thirty (30) months to not more than sixty (60) months in a state correctional facility. (Id. ¶ 3.)
Fakhouri filed a direct appeal from his judgment of sentence to the Pennsylvania Superior Court. (Id. ¶ 4.) In its September 3, 2009 opinion affirming his judgment of sentence, the Pennsylvania Superior Court set forth the following relevant facts of the case as summarized by the trial court:
On March 22, 2007, Stacy Cambria, a confidential informant (CI) working with the Pennsylvania State Police Vice unit contacted [Appellant] regarding the purchase of a controlled substance, specifically cocaine. The CI placed a phone call to [Appellant] using a cellular phone issued to Trooper Gina Tasselmeyer. Trooper Tasselmeyer dialed the phone number provided by the CI to ensure the number being dialed was actually the number provided by the CI. Trooper Tasselmeyer was present during the telephone call which lasted approximately 15 seconds. [Appellant] told the CI to meet him at the corner of Decker and Cantebury to complete the purchase.
Prior to meeting [Appellant] at the location, Trooper Tasselmeyer searched both the CI and CI's vehicle and provided the CI with two hundred dollars ($200) in serialized U.S. currency. The CI and Trooper Tasselmeyer proceeded to the pre-determined meeting location in the CI's vehicle. They parked along the shoulder of the roadway.
[Appellant] was not yet present when they arrived at the location. [Appellant] arrived shortly thereafter and the CI entered [Appellant's] vehicle. [Appellant] then drove down the road before coming back about a minute and a half later. The CI then exited [Appellant's] vehicle and got back into her vehicle with the trooper and handed her one foil packet. After the transaction was complete, Trooper Tasselmeyer then searched the CI and CI's vehicle again and found no money, weapons, or controlled substances.
The following day, March 23, 2007, another purchase was arranged by the CI with [Appellant]. As on March 22, the trooper used her state issue[d] cellular phone to dial the phone number provided by the CI. The CI was again provided with serialized U.S. currency and the CI and vehicle were searched prior to leaving for the location. They thereafter proceeded to the same location as the previous buy and again parked alongside the roadway. [Appellant] subsequently arrived and motioned for the CI to follow him in his vehicle. They parked alongside the roadway and the CI again exited her vehicle and entered [Appellant's] car.
After approximately one minute, the CI got back into her vehicle and handed Trooper Tasselmeyer a paper towel containing two foil packets. After the transaction was completed, the CI and vehicle were again searched. The contents of the two packets tested positive for cocaine following a field test and lab testing at the Wyoming laboratory. (Doc. 12-19 at 1-2, 9/3/09 Pa. Super. Ct. Op.) The Pennsylvania Superior Court summarized the issues raised by Fakhouri in his brief on direct appeal as follows:
1. Whether the pre-arrest delay violated Appellant's right to due process?
2. Whether the testimony and evidence presented at trial failed to prove the elements of the crime of criminal use of communication facility, beyond a reasonable doubt?
3. Whether the testimony and evidence presented at trial failed to prove the elements of the crime of delivery of a controlled or counterfeit ...