The opinion of the court was delivered by: (Judge Jones)
(Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
One of the statutory prerequisites to a state prisoner seeking habeas corpus relief in federal court is that the prisoner must "exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The instant case presents a model of an unexhausted petition, since the pleadings reveal that there is still active on-going state court post-conviction litigation pending in the petitioner's case. Moreover, it is undisputed that the petitioner is well aware of his obligation to fully exhaust these state court remedies before proceeding in federal court since this is the second unexhausted petition filed by Myers with this court. Furthermore, Myers is also well aware of the consequences which flow from failing to exhaust these state court remedies, since Myers prior unexhausted petition was dismissed by this court in 2010 for failure to exhaust these remedies. In light of the fact that this is undeniably an unexhausted federal habeas corpus petition, the question before this court is how best to address what is currently a premature and procedurally flawed petition. For the reasons set forth below, it is recommended that this petition be dismissed without prejudice to renewal of the petition once the petitioner has properly exhausted his state remedies.
II. Statement of Facts and of the Case
The background of this case was aptly summarized by this court in May of 2010, when we last dismissed one of Myers' federal habeas corpus petitions as unexhausted. At that time we explained that:
Following an incident on April 8 and 9, 2005, during which Myers brutally beat and then sexually assaulted his girlfriend, he was charged with involuntary deviate sexual intercourse, terroristic threats, simple assault, and rape. (SeeDoc. 15, Response, at 2.) A jury trial was held in the Luzerne County Court of Common Pleas on May 2 through 4, 2006, after which the jury convicted Myers of involuntary deviate sexual intercourse, simple assault, and terroristic threats. (See id.) The jury was unable to reach a verdict on the charge of rape, and the trial court declared a mistrial on that charge. (See id.
On August 10, 2006, the trial court conducted a sentencing hearing after which it imposed a sentence of eight and one half (8 1/2 ) to twenty (20) years imprisonment on the count of involuntary deviate sexual intercourse; a consecutive sentence of sixteen (16) months to five (5) years on the count of terroristic threats; and a consecutive sentence of twelve (12) to twenty-four (24) months on the count of simple assault. (See id.)
Myers v. SCI Albion, No. 4:08-CV-100, (Doc. 16, p.p. 2-3.)
In this May 2010 opinion, we also explained that, following this 2006 sexual assault conviction, Myers had actively pursued numerous post-conviction claims in the state courts, none of which had been fully exhausted at the time that we dismissed Myers' first federal habeas corpus petition. (Id.)
Examination of Myers' state court docket, a copy of which is attached as Appendix A to this Report and Recommendation, confirms that this case remains the subject of on-going, and active, state post-conviction litigation, and has been the subject of continuous legal proceedings in both the trial and appellate courts of Pennsylvania since 2010. Thus, it appears from the state court proceedings, that there has been constant and on-going state court litigation of this case since Myers' 2006 conviction, litigation that Myers himself acknowledges is still active and pending. (Doc. 6.)
Thus, at present Myers clearly has not exhausted his state appeals, and remedies under Pennsylvania's Post Conviction Relief Act (PCRA), 42 Pa. C.S.A. §§ 9541, et seq. Myers' petition, therefore, presents us with the paradigm of an unexhausted federal habeas corpus petition, a petition whose claims have not been properly presented and exhausted in the state courts. Since the petitioner has not satisfied this threshold legal requirement prescribed by statute by exhausting his state remedies before proceeding into federal court, we submit that this petition is subject to summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides in pertinent part: "If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court. In order to obtain federal habeas corpus relief, a state prisoner seeking to invoke the power of this court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 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.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies available in the courts of the State; . . . . . . . . . . . .
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies ...