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Jovan Simon v. Michael Wenerowicz

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


August 16, 2011

JOVAN SIMON
PETITIONER
v.
MICHAEL WENEROWICZ, ET AL. RESPONDENTS

The opinion of the court was delivered by: J. William Ditter, Jr., Sr. J.

MEMORANDUM AND ORDER

AND NOW, this 16th day of August, 2011, upon consideration of the Petition for Writ of Habeas Corpus, the court makes the following findings and conclusions:

1. On August 31, 2010, Petitioner filed a pro se petition for a federal writ of habeas corpus challenging his incarceration for possession with intent to deliver a controlled substance. In his petition, Petitioner claims that: (1) the evidence was insufficient to support his conviction for possession with intent to deliver a controlled substance and (2) the prosecutor engaged in prosecutorial misconduct when he elicited testimony about prior criminal conduct.

2. On the same date as the filing of the instant habeas petition, Petitioner filed a timely pro se petition in the state court under the Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq., proclaiming his innocence and presenting a layered claim of ineffective assistance of counsel for failure to investigate the owner of the residence where the relevant drugs were found.*fn1 On August 3, 2011, the Philadelphia District Attorney confirmed that Petitioner's PCRA petition is still pending in PCRA court.

3. The claims presented in the instant habeas petition were fully exhausted in the state court on direct appeal and are ripe for federal habeas review. See 28 U.S.C.A. § 2254(b)(1); see also Commonwealth v. Simon, No. 2567 EDA 2007 (Pa. Super. March 3, 2009) (unpublished memorandum); Commonwealth v. Simon, No. 138 EAL 2009 (Pa. Sept. 22, 2009). Therefore, if Petitioner wishes to proceed with his habeas petition as filed, this court will proceed to review the merits of those claims.

4. In proceeding with his case as filed, Petitioner is advised that he risks losing his chance to obtain federal review of his pending PCRA claims because state prisoners are barred from attacking their convictions through second or successive petitions except in very limited circumstances. See 28 U.S.C.A. § 2244(b); Burton v. Stewart, 549 U.S. 147, 152-154 (2007).

5. If Petitioner chooses to amend his habeas petition to include his pending PCRA claims, inclusion of those claims will render his petition ineligible for federal review at this time because the state courts have not been given "a full and fair opportunity" to resolve the claims presented in Petitioner's PCRA petition. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Rose v. Lundy, 455 U.S. 509 (1982) (the inclusion of any unexhausted federal constitutional claim in a habeas petition bars review of the entire petition). Petitioner's habeas petition would be dismissed without prejudice pending exhaustion of his state court remedies. Petitioner would be free to refile an all-inclusive habeas petition when his pending PCRA petition is resolved.*fn2

Accordingly, it is hereby ORDERED that Petitioner shall advise this court within 30 DAYS, or before September 15, 2011, if he wishes to proceed with his habeas petition as filed, or if he would like the instant petition dismissed without prejudice while he exhausts his state court remedies.*fn3

J. William Ditter, Jr.


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