United States District Court, Western District of Pennsylvania
REPORT and RECOMMENDATION
Robert C. Mitchell, United States Magistrate Judge
It is respectfully recommended that the petition of Erik Isom for a writ of habeas corpus (ECF 4) be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, that a certificate of appealability be denied.
Erik Isom an inmate at the State Correctional Institution at Smithfield has presented a petition for a writ of habeas corpus. Isom is presently serving a three and half to ten year sentence imposed following his conviction by a jury of burglary, criminal trespass, attempted theft by unlawful taking, conspiracy to commit burglary, and conspiracy to commit theft by unlawful taking at No. CP-63-CR-2123-2007 in the Court of Common Pleas of Washington County, Pennsylvania. This sentence was imposed on August 15, 2008.An appeal was filed in the Superior Court which Court affirmed the judgment of sentence on February 12, 2010 and leave to appeal was denied by the Pennsylvania Supreme Court on November 1, 2010.
Subsequently, on June 7, 2011 a post-conviction petition was filed and as of the date the answer was filed here, three years had elapsed and that petition is still pending.
On March 1, 2013, Isom submitted a habeas corpus petition which was docketed at 2:13-cv-301. On May 14, 2013, the respondent filed a motion to dismiss based on failure to exhaust state court remedies as a result of the pendency of the state post-conviction petition. On July 3, 2013, we recommended that the motion be granted. In adopting the Report and Recommendation on July 24, 2013, the District Judge wrote that the "petition for writ of habeas corpus is DISMISSED, WITHOUT PREJUDICE to Petitioner seeking further relief if his post-conviction petition is not resolved [ ] by the trial court in 90 days, or he exhausts his state court remedies, as appropriate" (emphasis in original).
After patiently awaiting disposition of his post-conviction petition, on February 20, 2014, Isom submitted the instant petition contending that the post-conviction petition had yet to be resolved. On February 25, 2014 service was ordered and on March 11, 2014, the respondent moved for an extension of time to answer. That motion was granted in part and the respondents were granted until April 14, 2014 to reply. When no reply was forthcoming, on May 5, 2014, we entered an order to show cause why the petition should not be granted as it appeared that it was unopposed. On May 12, 2014, the respondent moved for an extension of time to answer; that request was granted and on May 19, 2014 an answer was filed conceding that as of that date the post-conviction petition had not been acted upon.
It is provided in 28 U.S.C. §2254(b) that:
An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
This statute represents a codification of the well-established concept which requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411 U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez, supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995). As the Court observed in U.S. ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir.1975) "'it is the legal issues that are to be exhausted, not the petitioner (citation omitted).' " In this case, the record reveals and the Commonwealth concedes that an inordinate delay has occurred and that there is a reasonable basis for waiving the exhaustion requirement since it is one of comity and not jurisdictional. Rose v. Lundy, 455 U.S. 509 (1982). Accordingly, we address the merits of the petition.
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) “was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States, ” or (2) “involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas ...