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Murray v. Tuttle

United States District Court, M.D. Pennsylvania

February 8, 2017

JOHN TUTTLE, Respondent


          Matthew W. Brann United States District Judge


         This pro se petition for writ of habeas corpus was filed by Shawn Christian Murray. Named as Respondent is Chairman John Tuttle of the Pennsylvania Board of Probation and Parole (Parole Board).[1]

         Murray states that he was convicted of terroristic threats in the Court of Common Pleas of Franklin County, Pennsylvania on January 7, 2010, (No. 1694 of 2009. Murray was sentenced to a six (6) to twelve (12) month term of confinement and a 36 month term of probation that same day. Petitioner indicates that his probation in the above matter was subsequently violated and he was resentenced on December 18, 2013.

         Following an appeal to the Superior Court of Pennsylvania, the probation violation sentence was vacated on June 24, 2014 and the case remanded for resentencing. On August 13, 2014, Petitioner states that he was resentenced to serve a nine (9) to sixty (60) month probation violation term with credit for time served. Murray did not pursue a state court appeal of the resentencing.

         Petitioner's pending action contends that the resentence did not award him the “full time credit he is entitled to” and constitutes “an aggregate illegal sentence exceeding the statutory minimum.” Doc. 1, p. 2. Murray adds that his present argument was included in his direct appeal to the Superior Court.

         Following service of the petition, the Respondent filed a motion to dismiss Petitioner's action for failure to exhaust state remedies, noting that Murray still has adequate available state court remedies. See doc. 10. Petitioner has opposed the request for dismissal.


         A § 2254 habeas corpus petition may be brought by a state prisoner who seeks to challenge either the fact or duration of his confinement in prison. See Preiser v. Rodriguez, 411 U.S. 475, 486-87 (1973). Federal habeas corpus review is available only “where the deprivation of rights is such that it necessarily impacts the fact or length of detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). More recently, in Suggs v. Bureau of Prisons, Civil No. 08-3613, 2008 WL 2966740 *4 (D. N.J. July 31, 2008), the district court reiterated that in cases where “a judgment in Petitioner's favor would not affect the fact or duration of Petitioner's incarceration, habeas relief is unavailable.”

         Respondent contends that following Murray's August 13, 2014 resentencing, he did not file a post-sentence motion or an appeal to the Superior Court. Petitioner also did not challenge the legality of the August 13, 2014 resentence via a petition pursuant to Pennsylvania's Post Conviction Relief Act (PCRA).[2] As a result, respondent concludes that Petitioner never exhausted his available remedies under Pennsylvania state law and that his procedurally defaulted claims should not be entertained by this Court.

         Petitioner counters that he did everything possible to comply with the exhaustion of state remedies requirement and that his pending claims were incorporated within his direct appeal from his December 18, 2013 sentencing. As such, Murray contends that the merits of his habeas petition were fairly presented to the Superior Court and should be considered.

         Title 28 United States Code Section 2254(b)(1) provides that an application for a writ of habeas corpus filed on behalf of a person in custody pursuant to the judgment of a State court cannot be granted unless the applicant has exhausted the remedies available in the courts of the State; there is an absence of available state corrective process; or there are existing circumstances which render the state process ineffective.[3] The exhaustion requirement is not a mere formality. It serves the interests of comity between the federal and state systems, by allowing the state an initial opportunity to determine and correct any violations of a prisoner's federal rights. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).

         The United States Court of Appeals for the Third Circuit has stated that “[U]nder 28 U.S.C. § 2254(c), such a petitioner shall not be deemed to have exhausted the remedies available in the courts of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001).

         “A state prisoner is generally barred from obtaining federal habeas relief unless the prisoner has properly presented his or her claims through one ‘complete round of the State's established appellate review process.'” Woodford v. Ngo,548 U.S. 81, 92 (2006) (internal citations omitted); O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)(while exhaustion does not require state prisoners to invoke extraordinary remedies, the state courts must be afforded one full opportunity to resolve any constitutional issues via completion of the State's established appellate review process). The United States Supreme Court in O'Sullivan explained, that state prisoners must “file petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” Id. at 847. The Supreme Court added that, in determining whether a state prisoner has preserved an issue for presentation in a ...

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