United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
Mark Stout (“Stout”) filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging a judgment and conviction imposed in the Court of
Common Pleas of Luzerne County, Pennsylvania. (Doc. 1). For
the reasons discussed below, the court will deny the
about December 20, 2013, Stout was charged with 200 counts of
possession of child pornography and one count of criminal use
of a communication facility. (Doc. 1; Commonwealth v.
Stout, No. CP-40-CR-258-2014 (Pa. Ct. Com. Pl. Luzerne
Cty.)). On September 26, 2014, Stout pleaded guilty to the
March 24, 2015, Stout entered a guilty plea to two more
counts of possession of child pornography and another count
of criminal use of a communication facility. (Doc. 15-1, at
3-4, Disposition Sheet). Also on March 24, 2015, Stout was
sentenced on both criminal informations to an aggregate term
of imprisonment of 7½ to 15 years. (Id.)
Stout filed two motions to reconsider his sentence.
(See Doc. 15-1, at 7). On April 28, 2015, the
motions were denied. (Id.)
filed a timely direct appeal. (Doc. 15-1, at 5, Notice of
Appeal; see also Commonwealth v. Stout, 1143 MDA
2015 (Pa. Super.)). On December 30, 2015, the appeal was
discontinued. (Doc. 15-1, at 76-77, Superior Court's
Notice of Discontinuance of Action).
February 12, 2016, Stout filed a timely pro se
petition for post-conviction collateral relief pursuant to
the Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. §§ 9541-46. (Doc. 15-1, at 80-88, PCRA
Petition). The PCRA court dismissed the petition, without
prejudice, as premature.
20, 2016, Stout filed another timely pro se PCRA
petition. (Doc. 15-1, at 90-99, PCRA Petition). Counsel was
appointed to represent Stout and subsequently submitted a
“no merit” letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en
banc). (See Doc. 15-1, at 107-08). The PCRA
court granted the motion to withdraw filed by PCRA counsel.
(See id.) On August 22, 2016, the PCRA court
dismissed the petition. (Doc. 15-1, at 102, PCRA Court
Order). Stout filed a timely notice of appeal to the
Pennsylvania Superior Court challenging the effectiveness of
his plea counsel. (Doc. 15-1, at 105, Notice of Appeal;
see also Commonwealth v. Stout, 1600 MDA 2016 (Pa.
Super.)). On July 17, 2017, the Pennsylvania Superior Court
affirmed the PCRA court's decision denying the petition.
Commonwealth v. Stout, 2017 WL 3017081 (Pa. Super.
2017). Stout did not file a petition for allowance of appeal
with the Pennsylvania Supreme Court.
November 15, 2017, Stout filed the instant petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
Standards of Review
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). A habeas
corpus petition pursuant to § 2254 is the proper
mechanism for a prisoner to challenge the “fact or
duration” of his confinement. Preiser v.
Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36
L.Ed.2d 439 (1973). “[I]t is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions.” Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Rather, federal habeas review is restricted to claims based
“on the ground that [petitioner] is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a);
Estelle, 502 U.S. at 68.
corpus relief cannot be granted unless all available state
remedies have been exhausted, or there is an absence of
available state corrective process, or circumstances exist
that render such process ineffective to protect the rights of
the applicant. See 28 U.S.C. § 2254(b)(1). The
exhaustion requirement is grounded on principles of comity in
order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to
state convictions. See Werts v. Vaughn, 228 F.3d
178, 192 (3d Cir. 2000).
prisoner exhausts state remedies by giving the “state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court
system requires that the petitioner demonstrate that the
claims in question have been “fairly presented to the
state courts.” Castille v. Peoples, 489 U.S.
346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To
“fairly present” a claim, a petitioner must
present its “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); see also
Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir. 2007)
(recognizing that a claim is fairly presented when a
petitioner presents the same factual and legal basis for the
claim to the state courts). While the petitioner need not
cite “book and verse” of the federal
Constitution, Picard v. Connor, 404 U.S. 270, 278,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971), ...