The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Petitioner Franklin Jack Burr, II, a prisoner currently
confined at Northern State Prison in Newark, New Jersey, has
submitted a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The respondents are Northern State Prison Warden
Lydell Sherrer and the Attorney General of the State of New
Jersey. I. BACKGROUND
This statement of background facts is taken from the petition
and is accepted as true for purposes of this Opinion and
Petitioner was convicted pursuant to a jury trial of Sexual
Assault in the second degree, in violation of N.J.S.A. 2C:14-2,
and Endangering the Welfare of a Child in the third degree, in
violation of N.J.S.A. 2C:24-4. He was sentenced on April 22,
2005, to a term of imprisonment of six years and is currently
incarcerated pursuant to that conviction and sentence.
Petitioner contends that his current confinement is
unconstitutional, and he seeks release, on the following grounds:
(1) the conviction was obtained in violation of numerous
constitutional rights,*fn1 (2) the trial court's refusal to
admit him to bail pending appeal was unreasonable, and (3) he has
been subjected to cruel and unusual punishment at Northern State
Prison, as evidenced by a guard's assault and threats against him
on June 29, 2005.
With respect to Petitioner's claim that he is entitled to bail
pending appeal, Petitioner attaches to his Petition a letter from his counsel, dated July 21, 2005, advising him that the
Superior Court of New Jersey, Appellate Division, denied
Petitioner's motion to admit him to bail pending appeal, and
advising against appealing to the New Jersey Supreme Court,
because the chances of success are so negligible.*fn2 With
respect to the claim that the conviction was obtained in
violation of his constitutional rights, Petitioner does not
describe in the Petition, or attach any documents suggesting, any
pursuit of his state court direct appeal or post-conviction
relief remedies. Petitioner alleges, instead, that there is no
exhaustion requirements, or that he has exhausted his state
remedies, or that no state remedies exist.
As amended by the Antiterrorism and Effective Death penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254 now provides, in pertinent
(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. A. The Eighth Amendment Claim
Petitioner contends that he is entitled to release because he
has been subjected to cruel and unusual punishment while
By this claim, Petitioner does not challenge the legality of
his confinement, but rather the conditions of his confinement.
Release is not a proper remedy for unconstitutional conditions of
confinement. See, e.g., Glaus v. Anderson, 408 F.3d 382
(7th Cir. 2005) and cases cited therein. Instead, the proper
remedies for unconstitutional conditions of confinement are
monetary damages and/or injunctive relief. Id.
It is not appropriate for this Court to construe this claim as
a claim pursuant to 42 U.S.C. § 1983. Petitioner has neither paid
the civil action filing fee of $250 nor applied for leave to
proceed in forma pauperis. Indeed, as there are significant
financial and other consequences to a prisoner proceeding with a
civil rights claim in forma pauperis, see
28 U.S.C. § 1915(b) (payment of the filing fee) and (g) (three-strikes
provision), it would not be appropriate for this Court sua
sponte to convert this action to a civil rights action even if
Petitioner had sought leave to proceed with his habeas action
in forma pauperis. Moreover, it is not apparent that the
Respondent in the habeas action would be the appropriate
defendant in a civil rights action. The events complained of
occurred so recently that it does not appear that any statute of limitations issues would
arise from dismissal at this time. Accordingly, this claim will
be dismissed without prejudice.
B. Exhaustion of State Court Remedies
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. . . ."
28 U.S.C. § 2254 (b) (1). See also Rose v. Lundy, 455 U.S. 509, 515
(1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997),
cert. denied, 532 U.S. 919 (2001) (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] courts").
A 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) (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). This means that the claims heard by the state
courts must be the "substantial equivalent" of the claims
asserted in the federal habeas petition. Picard,
404 U.S. at 275. Reliance on the same constitutional ...