The opinion of the court was delivered by: Hillman, 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 Jason Wilkins ("Wilkins"), on or about April 14, 2009. Petitioner did not submit a complete application to proceed in forma pauperis, nor did he pay the requisite $5.00 filing fee. 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, Wilkins is a state prisoner who was sentenced pursuant to a state court judgment of conviction entered in the Superior Court of New Jersey, Law Division, Burlington County, on June 16, 2000, on charges of armed robbery, aggravated assault, and several weapons offenses. (Petition, ¶¶ 1, 2 and 5).
Wilkins filed a direct appeal from his sentence with the Superior Court of New Jersey, Appellate Division. His sentence was affirmed on October 20, 2003. The Supreme Court of New Jersey denied certification on January 22, 2004. (Pet., ¶ 9).
Wilson next filed his first state post-conviction relief ("PCR") petition on February 17, 2004. The state PCR court denied the petition on June 15, 2006. (Pet., ¶¶ 11(a)(1) and (8)). Wilson appealed the decision to the Appellate Division on August 21, 2006. The Appellate Division affirmed denial of the PCR petition on October 31, 2007. (Pet., ¶¶ 11(b)(3), (8)). The Supreme Court of New Jersey denied certification, but Wilkins does not provide the date of the denial in his petition.
Thereafter, Wilkins states that he filed another state PCR petition, and that this petition or state proceeding is still pending in state court. (Pet., ¶ 11(c)).
Wilkins now brings this habeas petition under 28 U.S.C. § 2254, challenging his state court conviction and sentence.
Wilkins 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 ...