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Futrell v. Varano

United States District Court, Third Circuit

October 25, 2013

DAVID VARANO, et al., Respondents.


MARTIN C. CARLSON, Magistrate Judge.


The petitioner in this habeas corpus proceeding, Jameel Futrell, is an inmate in the custody of the Pennsylvania Department of Corrections. He is currently housed at the State Correctional Institution in Coal Township, Pennsylvania where he is serving a 12-24 year sentence that was imposed on September 24, 2007, after Futrell was convicted of drug trafficking and criminal conspiracy in York, Pennsylvania.

Futrell initiated this habeas corpus proceeding by filing a petition for relief on December 13, 2012. After Futrell confirmed his election to proceed on his claims pursuant to 28 U.S.C. § 2254 (Doc. 9), the Court issued an order to show cause directing the respondents to file a response to the petition. (Doc. 10) After being granted an enlargement of time, the respondents filed a motion to dismiss the petition on June 3, 2013, together with a brief in support, and the records from Futrell's trial, appeal, and post-conviction proceedings in state court. In their motion, the respondents assert that although Futrell's petition for relief was timely filed shortly before the expiration of the statute of limitations applicable to state habeas petitions, many of Futrell's claims are unexhausted because he did not present them to the Pennsylvania state courts on direct review or as part of his petition for relief under Pennsylvania's Post-Conviction Relief Act. With respect to the only claim that the respondents concede is exhausted, the respondents argue that Futrell is not entitled to relief as a matter of law.

Upon consideration, we tentatively agree with the respondents that Futrell's petition appears to be almost entirely unexhausted; indeed, Futrell seems to admit as much, as he represents throughout the petition that he is presenting most of the claims for the first time in this proceeding.[1] However, like the respondents, we also find that large sections of Futrell's petition are illegible or otherwise unintelligible, and prevent the Court from engaging in an adequate review of Futrell's claims. Accordingly, for the reasons explained below, we will recommend that the Court stay these habeas proceedings for a fixed period of time in order to provide Futrell the opportunity to move to have this case held in abeyance while he seeks further review in state court of the unexhausted claims he has brought in this proceeding. Alternatively, a stay of a fixed duration would afford Futrell a reasonable opportunity to submit an amended petition that is complete and legible in all respects, in the event Futrell declines to seek further state review of his claims.[2]


On September 7, 2007, Jameel Futrell was sentenced to a term of imprisonment of 12 to 24 years for drug trafficking and criminal conspiracy. Futrell appealed his conviction on October 23, 2007. On September 17, 2008, the Pennsylvania Superior Court affirmed the conviction. Futrell, who was at this time represented by counsel, did not file a petition for review to the Pennsylvania Supreme Court. On March 27, 2009, Futrell filed a PCRA petition to reinstate his appellate rights, and the petition was granted on May 15, 2009.

On June 12, 2009, Futrell filed a petition for allocatur with the Pennsylvania Supreme Court. On November 17, 2009, the Pennsylvania Supreme Court denied the petition and declined further review. Futrell did not file a petition for a writ of certiorari with the United States Supreme Court, which caused his state convictions and sentence to become final as of February 15, 2010.

247 days later, on October 20, 2010, Futrell filed a PCRA petition. On April 26, 2011, the PCRA court denied Futrell's petition. Futrell, through his counsel, filed a notice of appeal to the Pennsylvania Superior Court. On May 13, 2011, Futrell filed a statement of matters complained of on appeal. Sometime thereafter, Futrell moved to proceed on his PCRA appeal pro se . Following a hearing on June 6, 2011, Futrell was granted leave to proceed pro se .

Now proceeding on his own behalf, on June 30, 2011, Futrell filed a second statement of matters complained of on appeal. On February 12, 2012, the Superior Court denied Futrell's appeal. Futrell appealed to the Pennsylvania Supreme Court, and the appeal was denied on August 22, 2012.

113 days later, on December 13, 2012, Futrell filed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging numerous claims that his trial, appellate, and post-conviction counsel were ineffective in a variety of respects. Based on the foregoing calculations, it appears that Futrell filed his petition for relief 360 days after his state conviction became final, and thus five days before the one-year statute of limitations applicable to state habeas petitions would have expired. See 28 U.S.C. § 2241(d). The Commonwealth responded to the petition by moving to dismiss on June 3, 2013.


A. Exhaustion and Procedural Default

State prisoners who turn to the federal courts seeking habeas corpus relief are often called upon to chart a course between competing procedural shoals. Prisoners who file their federal petitions prematurely may run afoul of one of the statutory prerequisites to a state prisoner seeking relief in federal court, namely "exhaust[ion of] the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Prisoners who delay filing a petition for habeas relief may find that the one-year statute of limitations applicable to habeas petitions under 28 U.S.C. § 2244, now bars their access to federal court. Prisoners thus must often endeavor to navigate between these competing procedural requirements as they seek collateral relief from their state criminal convictions.

Although perhaps not intended by the petitioner, the petition for relief presently before the Court presents an example of this procedural dilemma. Futrell filed his petition for federal habeas relief 360 days after his conviction became final in the state courts, five days before the one-year limitations period would have expired. At the same time, Futrell filed a petition in which he conceded that many of the claims he attempts to raise before this Court were never presented to the state courts. Futrell suggests that this failure is an example of his counsel's ineffectiveness, but he nonetheless has acknowledged at the outset that many of his claims are unexhausted.

At the same time, the lengthy petition that Futrell filed with the Court is also, in many respects, illegible or unintelligible due to the copy of the petition being too faded to read. The illegibility of this document causes the Court in many instances to be unable to review and understand the nature of Futrell's claims, and any further explanation he may have attempted to provide regarding his efforts to exhaust his claims before the state courts, or to more fully explain the basis for his claims.

B. State Prisoner Habeas Relief-The Legal Standard

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 ...

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