The opinion of the court was delivered by: Hayden, District Judge
This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Raheem Taylor ("Taylor"), on or about May 8, 2008. Petitioner submitted an application to proceed in forma pauperis, but he did not provide a certification from an authorized officer at the River Front State Prison certifying the amount presently on deposit in petitioner's institutional account, as required by Local Civil Rule 81.2(b). Taylor's affidavit of indigency otherwise avers that he has no funds or resources to pay the filing fees and costs of this action. For the reasons stated below, however, the petition will be dismissed without prejudice at this time for failure to exhaust state court remedies.
According to the allegations contained in the petition, Taylor is a state prisoner sentenced pursuant to a state court judgment of conviction entered in the Superior Court of New Jersey, Burlington County, on or about March 9, 2007. Taylor was convicted on one count of robbery and sentenced to five years in prison with an 85% parole disqualifier. (Petition at ¶ 1).
Taylor complains that his public defender did not timely file an appeal with the Superior Court of New Jersey, Appellate Division, despite Taylor's requests for him to do so. Taylor then attempted to file an appeal nunc pro tunc, but his appointed counsel filed an untimely appeal on his behalf that is apparently being considered on direct review. Petitioner states that he has sent various letters to the public defenders telling them that he wishes to proceed pro se on his appeal because he is dissatisfied with their efforts, or as he contends, lack of effort, on appeal. Taylor complains that there is a backlog in state court appeals and that his appeal, as filed by counsel, will not be considered by the Appellate Division for nineteen months, the average time for disposition of appeals. This would represent about one-third of Taylor's prison sentence. (Petition at ¶¶ 3-15).
Taylor contends that he will suffer irreparable harm from the state court's normal delay in resolving his direct appeal. Therefore, he seeks conditional habeas relief of release on bail pending resolution of his appeal, or an Order by this Court directing the state court to rule on Taylor's appeal within 60 days.
Taylor 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 ... ."*fn1 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 ...