The opinion of the court was delivered by: (Judge Caputo)
Presently before the Court is a petition for writ of habeas corpus
28 U.S.C. § 2254, filed on July 22, 2012, by Petitioner Ronald S.
Clark, an inmate currently confined at the Rockiew State Correctional
Institution (SCI-Rockview), in Bellfonte, Pennsylvania.*fn1
(Doc. 1, Pet.) Mr. Clark is challenging sentences imposed by
the Court of Common Pleas of Lackawanna County in June 2009.
In response to the Petition, Respondents filed an Motion to Dismiss the Petition based on Mr. Clark's failure to exhaust his available state court remedies. (Doc. 13, Mot. to Dismiss.) Mr. Clark has filed an opposition brief. (Docs. 18 and 19.) Based on a review of the petition and the response, the Respondents' motion to dismiss will be granted and the petition dismissed without prejudice.
On June 18, 2009, following a jury trial held in the Court of Common
Pleas of Lackawanna County, Mr. Clark was found guilty of two counts
of aggravated assault, two counts of simple assault, two counts of
recklessly endangering another person, terroristic threats, criminal
mischief, unlawful restraint, false imprisonment and harassment. See
Docket of Court of Common Pleas, No. CP-35-CR-0001639-2008.*fn2
He was originally sentenced on October 2, 2009. (Id.)
Following sentencing, the Commonwealth filed a motion for
reconsideration of sentence and Mr. Clark filed post trial motions.
(Id.) On February 22, 2010, the trial court held a hearing on the
Commonwealth's motion for reconsideration of sentence, and granted the
motion. (Id.) On October 22, 2010, Mr. Clark's post trial motions were
In the interim, Mr. Clark, through his counsel, filed a January 27, 2010, notice of appeal to the Superior Court. See Docket of Superior Court, 215 MDA 2010.*fn3 On April 13, 2010, the appeal was dismissed due to Mr. Clark's failure to comply with Pa. R.A.P. 3517. On October 20, 2010, Mr. Clark, again represented by counsel, filed a second notice of appeal. See Docket of Superior Court, 1717 MDA 2010.*fn4
On January 28, 2011, the Superior Court granted Mr. Clark's petition to withdraw his appeal. (Id.)
On November 16, 2010, Mr. Clark's appellate counsel, Attorney Donna DeVita, filed a third notice of appeal. See Docket of Superior Court, 1891 MDA 2010.*fn5 On February 9, 2011, Mr. Clark filed an Application for Relief seeking to proceed pro se. On February 17, 2011, in accordance with Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988), the Superior Court remanded the matter to the trial court to determine whether Mr. Clark's waiver of counsel was knowing, intelligent and voluntary. (Id.) On March 24, 2011, following a Grazier hearing, the trial court granted Mr. Clark's request to proceed pro se, and granted appellate counsel's request with withdraw as counsel of record. See Docket of Court of Common Pleas, No. CP-35-CR-0001639-2008. On September 29, 2011, the Superior Court dismissed Mr. Clark's third appeal after he failed to file a brief. See Docket of Superior Court, 1891 MDA 2010.
On September 13, 2012, Mr. Clark filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 PA. CON. STAT. ANN. §§ 9541 et seq. (Doc. 13-1, PCRA Pet.) Mr. Clark's PCRA petition is presently pending in the Lackawanna County Court of Common Pleas. See Commonwealth v. Clark, No. CP-35-CR-00001639-2008.
Mr. Clark originally filed the instant federal habeas corpus petition in July 2012, but filed an amendment on September 14, 2012. See Docs. 7-9 at ECF p. 5.
The court may "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas petitioner challenging a state conviction must first attempt to present his claim in state court. 28 U.S.C. § 2254(b); Harrington v. Richter, U.S. , , 131 S.Ct. 770, 787, 178 L.Ed2d 624 (2011). This means that the petitioner must fully and fairly present his federal claims through one full round of state court review before filing a federal habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004). The purpose of the exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
The exhaustion requirement is satisfied if a petitioner's claims are either presented to the state courts directly on appeal from the judgment of sentence, or through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). It is not necessary for a petitioner seeking federal habeas relief to present his federal claims to state courts both on direct appeal and in a PCRA proceeding. (Id.) However, a petitioner is not deemed to have exhausted the remedies available to him if he has a right under the state law to raise, by any available ...