The opinion of the court was delivered by: Hayden, District Judge
This matter is before the court pursuant to a petition for habeas corpus relief under 28 U.S.C. § 2254 filed by petitioner Charles Mitzenius ("Mitzenius"). Petitioner paid the $5.00 filing fee. For the reasons stated below, the petition will be dismissed without prejudice for failure to exhaust state court remedies.
According to the allegations contained in the petition, as well as the state court record provided by petitioner,*fn1 Mitzenius is a state prisoner sentenced pursuant to a state court judgment of conviction entered in the State of New Jersey on or about March 12, 1998. Mitzenius appealed his conviction to the Superior Court of New Jersey, Appellate Division. On April 13, 2000, the Appellate Division affirmed petitioner's conviction in an unpublished opinion. Mitzenius petitioned the Supreme Court of New Jersey for certification. On September 20, 2000, the New Jersey Supreme Court denied certification. Mitzenius does not allege that he filed a petition for certiorari with the Supreme Court of the United States.
Mitzenius states in his petition, at page 6, that he filed his pro se petition for post-conviction relief ("PCR") on or before August 4, 2005, more than four years after his state court judgment of conviction became final. See 28 U.S.C. § 2244(d)(1). The PCR proceedings were held before the Honorable Ira E. Kreitzman, J.S.C., who denied relief on January 12, 2007. Mitzenius admits that he appealed from the Order denying the state PCR petition, and that this state PCR appeal is currently pending.
On or about October 10, 2007, petitioner filed this § 2254 habeas petition. Mitzenius challenges his state court conviction on numerous grounds scattered throughout a rambling and prolix petition. It does not appear from the lengthy petition that Mitzenius presented all of his federal habeas claims before the state court on direct or collateral review. While Mitzenius admits that his state PCR appeal is still pending, he contends that the state will not afford him proper review of his constitutional claims. He asks this Court to consider this federal habeas petition despite the fact that Mitzenius has not fully exhausted his available state court remedies pursuant to 28 U.S.C. § 2254(b).
Mitzenius brings his habeas petition as a pro se litigant. A pro se pleading is held to less stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 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), cert. denied, 399 U.S. 912 (1970).
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 ... ."*fn2 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").
The exhaustion requirement is intended 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 (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.
A petitioner must exhaust 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 (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"); Ross v. Petsock, 868 F.2d 639 (3d Cir. 1989); 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. Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v. Peoples, 489 U.S. 346, 350 (1989).
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 provision ...