United States District Court, M.D. Pennsylvania
John E. Jones III Judge
3, 2019, Petitioner Sawud Davis, (“Davis”), a
Pennsylvania state inmate presently confined at the State
Correctional Institution at Retreat, Hunlock Creek,
Pennsylvania, initiated the above petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). The
petition has been given preliminary consideration and,
because the claims contained in the petition are unexhausted
the Court will dismiss the petition without prejudice.
See 28 U.S.C. § 2243. See also R.
Governing § 2254 Cases R.4.
to the petition, on January 20, 2014, Davis pled guilty to
three counts of third degree murder and one count of robbery
in Court of Common Pleas of Luzerne County No.
CP-40-CR-0003752-2012. (Doc. 1, p. 1). He received a sentence
of twenty to forty years imprisonment. (Id.). He did
not file a direct appeal. (Id. at 2).
September 19, 2018, he filed a petition pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§9541-9546, raising claims of newly discovered
evidence and ineffective assistance of plea counsel.
(Id. at 3). The PCRA court dismissed the petition as
untimely on March 21, 2019. (See electronic docket,
Commonwealth of Pennsylvania v. Sawud Davis, 705 MDA
2019). Davis filed a timely appeal which is presently pending
in the Superior Court of Pennsylvania. (Id.)
filed the instant petition on July 3, 2019 with the heading
“Protective.” (Doc. 1, p. 1). He states
“[t]his petition is being filed out of caution due to
the PCRA Court denied PCRA petition as untimely….
Petitioner appealed to the Superior Court of PA and the
appeal is still pending.” (Id. at 13). He
seeks a stay of this matter pending a decision from the
Superior Court. (Id.).
habeas petition may be brought by a prisoner who seeks to
challenge either the fact or duration of his confinement.
Preiser v. Rodriguez, 411 U.S. 475, 494 (1973);
Tedford v. Hepting, 990 F.2d 745, 748 (3d Cir.
1993). United States Code Title 28, Section 2243 provides in
relevant part that “A court, justice or judge
entertaining an application for a writ of habeas corpus shall
forthwith award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or
person detained is not entitled thereto.” Id.
Further, habeas corpus petitions are subject to summary
dismissal pursuant to Rule 4 (“Preliminary
Consideration by the Judge”) of the Rules Governing
Section 2254 Cases in the United States District Courts
(2001), which 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.” Although a pro
se habeas petition and any supporting submissions must
be construed liberally and with a measure of tolerance,
see Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998),
Lewis v. Attorney General, 878 F.2d 714, 721-22 (3d
Cir. 1989), United States v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969), a federal district court can dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief.
See Lonchar v. Thomas, 517 U.S. 314, 320 (1996);
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985).
See also 28 U.S.C. §§ 2243, 2254, 2255.
For instance, a petition may be dismissed without review of
an answer when the petition is frivolous, or obviously
lacking in merit, or where . . . the necessary facts can be
determined from the petition itself...” Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970).
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;
or (B)(i) there is an absence of available State corrective
process; or (ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1). Thus, a state prisoner applying for
a writ of habeas corpus in federal court must first
“exhaust[ ] the remedies available in the courts of the
State, ” unless “there is an absence of available
State corrective process[ ] or ... circumstances exist that
render such process ineffective. . . .” See Rose v.
Lundy, 455 U.S. 509, 515 (1982); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding
that “Supreme Court precedent and the AEDPA mandate
that prior to determining the merits of [a] petition, [a
court] must consider whether [petitioner] is required to
present [his or her] unexhausted claims to the [state's]
petitioner exhausts state remedies by presenting his federal
constitutional claims to each level of the state courts
empowered to hear those claims, either on direct appeal or in
collateral post-conviction proceedings. See, e.g.,
O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999)
(“requiring state prisoners [in order to fully exhaust
their claims] to file petitions for discretionary review when
that review is part of the ordinary appellate review
procedure in the State”); Lambert v.
Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding
that a collateral attack in state court is not required if
the petitioner's claim has been considered on direct
appeal); 28 U.S.C. § 2254(c) (“An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if
he has the right under the law of the State to raise, by any
available procedure, the question presented.”) Once a
petitioner's federal claims have been fairly presented to
the state's highest court, the exhaustion requirement is
satisfied. Castille v. Peoples, 489 U.S. 346, 350
(1989); Picard v. Connor, 404 U.S. 270, 275 (1971).
The petitioner generally bears the burden to prove all facts
establishing exhaustion. Toulson v. Beyer, 987 F.2d
984, 987 (3d Cir.1993).
is not, however, a jurisdictional requirement; rather, it is
designed to allow state courts the first opportunity to pass
upon federal constitutional claims, in furtherance of the
policies of comity and federalism. Granberry v.
Greer, 481 U.S. 129, 131, 134-35 (1987); Rose,
455 U.S. at 516-18. Exhaustion also has the practical effect
of permitting development of a complete factual record in
state court, to aid the federal courts in their review.
Rose, 455 U.S. at 519. Consequently, a district
court may use its inherent power to dismiss, sua
sponte, a petition which concedes that the prisoner
failed to exhaust his state court remedies and which facially
violates a bar to suit. Ray v. Kertes, 285 F.3d 287,
293 n. 5 (3d Cir. 2002). See also Sulaski v.
Lindsay, CV-06-2482, 2007 WL 1031457, at *1 (M.D.Pa.
March 29, 2007) (Rambo, J.) (relying on Ray for
sua sponte dismissal of an unexhausted § 2241
it is clear from the face of the petition, and confirmed by
information contained in the Superior Court electronic docket
sheet, that Davis has not yet exhausted his state remedies.
Consequently, the petition will be dismissed. The dismissal
is without prejudice to his right to pursue federal habeas
relief upon complete exhaustion of available state court
CERTIFICATE OF APPEALABILITY
to 28 U.S.C. § 2253(c), unless a circuit justice or
judge issues a certificate of appealability
(“COA”), an appeal may not be taken from a final
order in a proceeding under 28 U.S.C. § 2254. A COA may
issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that ...