United States District Court, M.D. Pennsylvania
October 2, 2017, the Court received and filed a petition for
a writ of habeas corpus (Doc. No. 1), submitted pursuant to
28 U.S.C. § 2254 by pro se Petitioner
Christopher Lee Sirmons, an individual currently incarcerated
at the State Correctional Institution Greene, located in
Waynesburg, Pennsylvania. The Court has reviewed the petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts, 28 U.S.C. foll. §
2254. For the following reasons, the petition will be denied
November 6, 2015, following a jury trial, a jury found
Sirmons guilty of two counts of aggravated assault and two
counts of simple assault. Commonwealth v. Sirmons,
CP-14-CR-1770-2014. On December 17, 2015, Sirmons was
sentenced to consecutive terms of two to four years'
imprisonment for each aggravated assault conviction,
consecutive to the sentence Sirmons was already serving.
Commonwealth v. Sirmons, CP-14-CR-1770-2014. Sirmons
filed a post-sentence motion on December 18, 2015,
challenging the Court of Common Pleas' refusal to issue a
proposed point for charge. Id. Following a hearing
on February 8, 2016, the Court of Common Pleas denied the
post-sentence motion. Id. Sirmons then filed a
notice of appeal on February 10, 2016, to the Superior Court
of Pennsylvania. Id.; Commonwealth v.
Sirmons, No. 261 MDA 2016 (Pa. Super. Ct.). Sirmons
raised one issue on appeal to the Superior Court: “Did
the trial court erroneously refuse to give [Sirmons']
requested point for charge….” Commonwealth
v. Sirmons, No. 261 MDA 2016. On September 9, 2016, the
Superior Court affirmed the decision of the lower court.
to the Superior Court's September 9, 2016 Order affirming
the Court of Common Pleas, Sirmons filed a PCRA petition on
August 29, 2016 with the Court of Common Pleas of Centre
County. Commonwealth v. Sirmons, CP-14-CR-1770-2014.
Sirmons was ordered to file an amended PCRA petition on
January 6, 2017, and it appears that an amended PCRA petition
was filed on August 14, 2017. Id. On September 27,
2017, a briefing order was issued by the PCRA Court.
Id. The Court of Common Pleas of Centre County's
docket sheet reveals that the PCRA petition is currently
pending before the PCRA Court.
his direct appeal and PCRA petition were pending, Sirmons
filed a federal habeas petition pursuant to 28 U.S.C. §
2254 with this Court on January 27, 2016. Sirmons v.
Zaken, et al., No. 1:16-cv-141 (M.D. Pa. May 25, 2016).
This Court dismissed Sirmons' petition without prejudice
for his failure to exhaust his state court remedies.
Id. at Doc. Nos. 8 and 9. Then, on October 2, 2017,
Sirmons filed another federal habeas petition pursuant to 28
U.S.C. § 2254 with this Court. (Doc. No. 1.) In the four
grounds for relief set forth by Sirmons in his instant
petition, he acknowledges that he did not appeal any of these
grounds on direct appeal. (Id. at 11.) Sirmons also
acknowledges that he has a pending PCRA petition currently
before the PCRA court. (Id. at 12.)
corpus petitions are subject to summary dismissal pursuant to
Rule 4 of the Rules Governing Section 224 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254. Rule 4
provides, in pertinent part: “If it plainly appears
from the petition and any attached exhibits that the petition
is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the
petitioner.” Based upon the petition and the state
court dockets, the Court finds this petition to be
seeking federal habeas corpus relief, the provision of the
federal habeas corpus statute at 28 U.S.C. § 2254(b)
requires a state prisoner to exhaust available state court
remedies. To comply with the exhaustion requirement, a state
prisoner first must have “fairly presented” his
constitutional and federal law issues to the state courts
through direct appeal, collateral review, state habeas
proceedings, mandamus proceedings, or other available
procedures for judicial review. See, e.g.,
Castille v. Peoples, 489 U.S. 346, 351 (1989);
Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1996).
To “fairly present” a claim, a petitioner must
present a federal claim's factual and legal substance to
the state courts in a manner that puts them on notice that a
federal claim is being asserted. McCandless v.
Vaughn, 172 F.3d 255, 261 (3d Cir. 1999).
petitioner must invoke “one complete round” of
the applicable state's appellate review process, thereby
giving the courts of that state “one full
opportunity” to resolve any issues relevant to such
claims. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (holding that a petitioner must present every
claim raised in the federal petition to the state's trial
court, intermediate appellate court and highest court before
exhaustion would be considered satisfied). The exhaustion
doctrine is rooted in the tradition of comity, and the state
must be given the “initial opportunity to pass upon and
correct alleged violations of its prisoners'
[constitutional] rights.” Alston v.
Diguglielmo, No. 07-CV-2618, 2009 WL 2096214 (E.D. Pa.
July 14, 2009) (quoting case omitted). The petitioner has the
burden of establishing that exhaustion has been satisfied.
Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
apparent from the face of Sirmons' petition that he has
not exhausted his state-court remedies. As is evident from
the petition and the dockets of the Court of Common Pleas of
Centre County, Sirmons' PCRA petition is presently
pending before the PCRA Court. See Commonwealth v.
Sirmons, CP-14-CR-1770-2014. Thus, this Court must allow
for state proceedings to conclude before entertaining
Sirmons' habeas petition.
Sirmons' PCRA petition remains pending, a subsequent
filing will not be barred by the one-year statute of
limitations. Under 28 U.S.C. § 244(d)(1), a state
defendant has one year to file a § 2254 petition. For
our purposes, that period starts to run from the date the
conviction becomes final, defined in § 2241(d)(1)(A) as
“the date on which the judgment became final by the
conclusion of a direct review or the expiration of the time
for seeking such review.” The limitations period is
also tolled for the “time during which a properly filed
application for State post-conviction relief or other
collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2).
the current status of his state proceedings, even on the
strictest calculation of the limitations period, Sirmons has
time to return to federal court after exhausting his state
court remedies. Accordingly, the Court will dismiss the
petition without prejudice to Sirmons' right to refile
promptly at the conclusion of his state court proceedings.
See Myers v. Warden of SCI-Albion, No. 4:08-cv-100,
2010 WL 1838178, at *5 (M.D. Pa. May 6, 2010) (dismissing
habeas petition without prejudice to allow the state
proceedings to conclude before entertaining the unexhausted
claim in federal court).