The inevitable conclusion that Benson presents the same issues in his habeas and § 1983 actions, when viewed in the light of federal-state comity concerns and the holding of Heck, compels the further conclusion that Benson's § 1983 action is not cognizable, unless Benson can prove that his sentence, or more specifically the calculation of the duration of his sentence, has been invalidated by a state tribunal or impugned by the grant of federal habeas relief.
The explicit language of the federal habeas corpus statute requires a petitioner to exhaust available state remedies before filing a petition in federal court. See 28 U.S.C. § 2254(b) and (c). Benson contends that he has exhausted his state court remedies by attempting to file a petition for a writ of habeas corpus in the Law Division of the Superior Court of New Jersey, Union County. Benson states that this is "the only [State] remedy available . . . to address the issues." Petitioner's Response Brief at 7. Benson is mistaken. As noted above, decisions of the Parole Board are reviewable in the Appellate Division of the Superior Court of New Jersey.
Nor may this court excuse the exhaustion requirement simply because the petitioner has attempted to address a petition for state habeas relief to the improper authority. See Ex Parte Hawk, 321 U.S. 114, 116, 88 L. Ed. 572, 64 S. Ct. 448 (1944) (application for an extraordinary writ of habeas corpus does not serve to exhaust state remedies where the normal appellate channels for review were available).
It is clear from the face of Benson's petition that he has not exhausted his state remedies before either the Appellate Division of the Superior Court of New Jersey, or the NJSPB's own administrative appeals process. It is not clear from his petition that Benson has even sought administrative review of the Parole Board's alleged failure to grant him a timely hearing. Surely Benson's allegation that the Law Division improperly failed to consider his state habeas petition, between May 1, 1996, and July 22, 1996, cannot amount to "inordinate delay" such as would excuse the exhaustion requirement. See Story v. Kindt, 26 F.3d 402, 405 (3d Cir.), cert. denied, 130 L. Ed. 2d 506, 115 S. Ct. 593 (1994); Carter v. Vaughn, 62 F.3d 591, 594 (3d Cir. 1995).
In view of petitioner's apparent failure to challenge his parole eligibility date, as calculated by the Parole Board, through the administrative review process, or through the appropriate state appellate process, much less any assertion that such review has been concluded on the merits, "any current action by this Court would be premature and wholly at odds with Section 2254." United States v. Flannigan, 1991 U.S. Dist. LEXIS 19636, No. 91 C 7770, 1991 WL 278467 *1 (N.D. Ill. Dec. 23, 1991); see also Rose, 455 U.S. at 522. Accordingly, Benson's habeas petition will be dismissed for failure to exhaust available state remedies. A dismissal for failure to exhaust, however, is without prejudice, and Benson may, if he chooses, refile his petition with this court after he has exhausted his state remedies. In dismissing Benson's petition, this court intimates no view regarding the merits of the claims contained therein.
Benson's habeas petition will be dismissed because he has failed to exhaust his state remedies. Likewise, because Benson seeks to attack the duration of his sentence in his § 1983 suit, and because his claim that the Parole Board acted illegally has not been vindicated in either a state appellate proceeding or federal habeas proceeding, Benson's § 1983 suit must also be dismissed without prejudice.
STEPHEN M. ORLOFSKY
United States District Judge
Dated: December 6, 1996
This matter having come before the Court on the motion of the Respondents, New Jersey State Parole Board, et al., to dismiss the petition for a writ of habeas corpus in Civil Action No. 96-3599, and on the motion of Defendants, Mary Keating DiSabato, et al., for summary judgment in Civil Action No. 96-3944 on Benson's claims under § 1983, Henry A. Benson, appearing pro se, and Jennifer L. Kleppe, Esq., Deputy Attorney General of New Jersey, appearing on behalf of the Respondents/Defendants; and,
The Court having considered the motions, and the papers filed in support thereof and in opposition thereto, as well as the petition and the complaint, for the reasons set forth in this Court's OPINION filed concurrently with this ORDER;
It is on this 6th day of December, 1996, ORDERED that:
1. The within actions, docketed as Civil Actions Nos. 96-3599 and 96-3944, are consolidated for all purposes in this court;
2. The Respondents' motion to dismiss in Civil Action No. 96-3599 is GRANTED and the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE, based upon the Petitioner's failure to exhaust state court remedies;
3. The Petitioner's Response to the Respondents' motion in Civil Action No. 96-3599, styled a Cross Motion to Grant Benson's Writ of Habeas Corpus Petition, is DISMISSED;
4. The motion of Defendants, Mary Keating DiSabato, et al., in Civil Action No. 96-3944 for summary judgment on Benson's claims under § 1983, is DISMISSED WITHOUT PREJUDICE and the Complaint in this action is DISMISSED WITHOUT PREJUDICE, with permission to refile if and when Plaintiff can demonstrate that the Parole Board's determination of the duration of his sentence has been reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.
STEPHEN M. ORLOFSKY
United States District Judge