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Jovan Simon v. Michael Wenerowicz

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


October 12, 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

Presently before this court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Jovan Simon ("Simon") and the response thereto. Simon, who is currently incarcerated in the State Correctional Institution in Graterford, Pennsylvania, challenges his incarceration for possession with intent to deliver a controlled substance. For the reasons that follow, I shall permit Simon thirty additional days to respond to me with his answer to whether he wishes to proceed at this time or after he has completed litigating additional claims in the state court.

FACTS AND PROCEDURAL HISTORY:

After a bench trial before the Honorable Joan A. Brown, Court of Common Pleas of Philadelphia County, Simon was found guilty of possession with intent to deliver a controlled substance. On January 29, 2004, Simon was sentenced to a mandatory term of four to eight years of imprisonment.

Simon filed a direct appeal arguing that (1) the evidence was insufficient to prove that Simon possessed the drugs in the house and (2) the prosecutor acted improperly by eliciting testimony from police officers regarding prior criminal conduct by Simon.

The Pennsylvania Superior Court affirmed the judgment of sentence on March 3, 2009. Commonwealth v. Simon, No. 2567 EDA 2007 (Pa. Super. March 3, 2009) (unpublished memorandum). The Pennsylvania Supreme Court denied Simon's petition for allowance of appeal on September 22, 2009. Commonwealth v. Simon, No. 138 EAL 2009 (Pa. Sept. 22, 2009).

Simon filed a petition for a federal writ of habeas corpus on August 31, 2010, *fn1 claiming:

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 Simon's prior criminal conduct.

Respondents have filed an answer to Simon's habeas petition asserting that Simon is not entitled to federal habeas relief because his claims are meritless.

On August 31, 2010, the same date as the filing of the instant habeas petition, Simon 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., attacking the same conviction. *fn2 See Resp't Answer, at Ex. "D." In his PCRA petition, Simon alleges actual innocence and presents a layered claim of ineffective assistance of counsel for failure to investigate the owner of the residence where the relevant drugs were found. As of September 27, 2011, the Philadelphia District Attorney confirmed that Simon's PCRA petition is still pending in PCRA court. *fn3

On August 16, 2011, I issued a Memorandum and Order instructing Simon to advise the court if he wishes to proceed with his habeas petition as filed, or if he would like the instant petition dismissed without prejudice while he pursues his state court remedies. Although Simon's response was due by September 15, 2011, Simon has not responded to my order. DISCUSSION:

A federal court, absent unusual circumstances, should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254. Under § 2254(c), a petitioner will not be deemed to have exhausted available state remedies if he had the right under the law of the state to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 526 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts"); see also Picard v. Connor, 404 U.S. 270 (1971). The habeas corpus petitioner has the burden of proving exhaustion of all available state remedies. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C.A. § 2254). Overall, the exhaustion requirement advances the goals of comity and federalism while reducing "piecemeal litigation." Duncan v. Walker, 533 U.S. 167, 180 (2001).

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") with the goal of streamlining federal habeas proceedings. Rhines v. Weber, 544 U.S. 269, 277 (2005). Among other things, the AEDPA restricts the ability of federal courts to award relief to state prisoners who file second or successive habeas petitions. See Burton v. Stewart, 549 U.S. 147, 152 (2007). Before a second or successive habeas petition is filed in the district court, a petitioner must file a motion in the Court of Appeals seeking an order authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). The Court of Appeals "may authorize the filing of the . . . successive application only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2244(b)(2)." *fn4 Burton, 549 U.S. at 153.

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. § 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). However, Simon has a pending PCRA petition which sets forth claims not presented in the instant petition. If I were to rule on Simon's habeas petition as filed, Simon may be barred from presenting any of his pending PCRA claims in a second or successive federal habeas petition unless he satisfies the narrow exceptions found under § 2244(b)(2).

In my last order I did not state what I would do if Simon failed to respond. Thus, in an abundance of caution and in order to give Simon the full benefit of federal habeas review, I shall wait an additional 30 days for his response. However, if he again fails to respond, I will dismiss the instant habeas petition without prejudice to allow Simon to exhaust all of his claims in state court. *fn5

An appropriate order follows.


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