United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
C. Carlson United States Magistrate Judge.
Statement of Facts and of the Case
a pro se state prisoner habeas corpus petition which
now comes before us for our consideration. In its current
form, Burbage's habeas corpus petition demands a great
deal of the reader. This petition is far from a model of
clarity, but this confusion may be a product of Burbage's
circumstances, since it appears that Burbage has in recent
years faced at least four criminal prosecutions in Franklin
County, Pennsylvania. Commonwealth v. Burbage, No.
CP-28-CR-0000766-2016; Commonwealth v. Burbage, No.
CP-28-CR-0001513-2016; Commonwealth v. Burbage, No.
CP-28-CR-0001977-2016; Commonwealth v. Burbage, No.
CP-28-CR-0002091-2017. From state court dockets it appears
that three of these cases are pending trial in July of
2018. The remaining case appears to have
resulted in a conviction, and it seems that Burbage is
currently serving a state sentence in this
pro se habeas corpus petition seems to relate to one
of these pending state cases, which is scheduled for trial
this summer. Commonwealth v. Burbage, No.
CP-28-CR-0000766-2016. To the extent that it can be
understood, Burbage's petition seems to attempt to
litigate some search and seizure issues in this state case,
and complains about alleged delays in the scheduling of this
trial. The petition also suggests that Burbage has pursued an
erratic and eccentric course in attempting to litigate these
issues. Not content to fully litigate these claims in a
straightforward fashion in the course of this pending state
criminal case, it appears that Burbage has on occasion filed
some sort of writs or extraordinary petitions with the Court
of Common Pleas and the Pennsylvania Supreme Court, all of
which appear to have been rebuffed by the courts.
efforts, while random, eccentric and imaginative, in our view
do not constitute full and proper exhaustion of these legal
claims in state court. 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). Therefore, the instant case
presents a model of an unexhausted petition, since the
petitioner seeks federal habeas corpus review of a state case
which has not yet been fully adjudicated at trial.
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.
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.
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 ...