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Foster v. Albino

April 28, 2009


The opinion of the court was delivered by: Simandle, District Judge


1. On March 30, 2009, the Clerk received a petition seeking a writ of habeas corpus ("Petition"); the Petition was submitted by Ivan D. Foster ("Petitioner"), an inmate currently confined at the Southern State Correctional Facility, Delmont, New Jersey. See Docket Entry No. 1. The Petition, a 154-page document, presented a potpourri of Petitioner's letters (to this Court and to other entities), as well as letters to Petitioner drafted by numerous state entities, Petitioner application asserting jurisdiction under § 2241, Petitioner's civil complaint asserting § 1983 jurisdiction, plus numerous transcripts and prosecutorial memoranda (taken or submitted, apparently, during Petitioner's recent criminal proceedings), etc. See Docket Entry No. 1. The best this Court could surmise, Plaintiff intended to seek his immediate release from custody on the grounds of various challenges to his arrest, indictment and incidents of his criminal proceedings (suggesting a claim of malicious prosecution), although the submission included Plaintiff's statements that he suffers of enlarged heart and high blood pressure, thus, vaguely hinting at the possibility of Eighth and/or Fourteenth Amendments medical care claims.

2. Three days later, i.e., on April 3, 2009, the Clerk received a letter from Petitioner. See Docket Entry No. 2. The letter, mainly consisting of legal arguments fostering general points of "legal fairness," informed the Court of Petitioner's opinion that he has been "in jail illegally for 20 months" and that he was "coerced into taking a plea deal or else go to trial with fabricated evidence." Id. at 1. The letter also asserted that the Petition should be addressed on emergent basis because "it would be unjust to delay hearing this petition, because the state Appellate court has been given adequate opportunity to address the U.S. Constitutional deprivation and has chosen not to and to not adhere to the comity doctrine of granting injunctive relief as a result of prosecution brought in Bad Faith." Id. at 1-2 (capitalization in original).

3. Eleven days later the Clerk received another letter from Petitioner. See Docket Entry No. 3. This latest submission (addressed, for the reasons not entirely clear to this Court, to Chief Judge Garrett E. Brown) asserted that the abstention doctrine enunciated in Younger v. Harris, 401 U.S. 37 (1971), was inapplicable to Petitioner's instant application in light of the fact that Petitioner is seeking a writ of habeas corpus. See id. at 2.

4. Further, on April 24, 2009, Petitioner's letter of April 21, 2009 was filed with the Court, see Docket Entry No. 4, requesting that his Petition be processed under 28 U.S.C. § 2241(c)(3) instead of 28 U.S.C. § 2254.

5. Petitioner's public record provided by the New Jersey Department of Corrections indicates that Petitioner was convicted on June 13, 2008. See >.

6. This Court does not have jurisdiction to review the instant petition under § 2241, since § 2241 is not an alternative to 28 U.S.C. § 2254. See Felker v. Turpin, 518 U.S. 651, 662, (1996) ("authority to grant habeas corpus relief to state prisoners is limited by 28 U.S.C. § 2254, which specifies the conditions under which such relief may be granted to a person in custody pursuant to the judgment of a state court"); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) ("Congress has attached restrictions to Section 2254 proceedings that should not be circumvented by permitting a petitioner to go forward under the more general authority conferred by Section 2241"). In Coady the Court of Appeals for the Third Circuit determined that:

[W]ith respect to habeas petitions Filed by state prisoners pursuant to Section 2254, Congress has restricted the availability of second and successive petitions through Section 2244(b). (footnote omitted). Allowing Coady to file the instant petition in federal court pursuant to Section 2241 without reliance on Section 2254 would circumvent this particular restriction in the event that Coady seeks to repetition for habeas relief and would thereby thwart Congressional intent. Thus, applying the "specific governs the general" canon of statutory construction to this action, we hold that Coady must rely on Section 2254 in challenging the execution of his sentence.

Accordingly, Petitioner must rely on § 2254 to challenge his detention, and -- if the Court is to address the Petition under § 2241 -- it must dismiss the Petition for lack of subject matter jurisdiction.

7. The Court has the power to construe the Petition as a § 2254 application. However, such construction would not cure the Petition's shortcomings. The sole sentence included in Petitioner's multiple submissions addressing the issue of his exhaustion of state remedies reads as follows: "the state Appellate court has been given adequate opportunity to address the U.S. Constitutional deprivation." This sentence suggests that Petitioner's challenges to his conviction are either currently pending before the Appellate Division or were not undertaken altogether, or were recently dismissed, but -- in any event -- this sentence indicates that Petitioner did not seek certification from the Supreme Court of New Jersey with regard to his challenges.*fn1 Therefore, the Petition appears facially unexhausted.

8. 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); Rose v. Lundy, 455 U.S. 509, 515 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993); Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996); see also 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 courts of a state must be afforded an "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250 (1971); Picard v. Connor, 404 U.S. 270, 275 (1971); Evans v. Court of Common Pleas, Del. Cty., Pa., 959 F.2d 1227, 1230 (3d Cir. 1992), cert. dismissed, 506 U.S. 1089 (1993). Exhaustion is not a jurisdictional requirement; rather, it is designed to allow state courts the first opportunity to pass upon federal constitutional claims, in furtherance of the policies of comity and federalism. See Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 516-18; Evans, 959 F.2d at 1230; O'Halloran v. Ryan, 835 F.2d 506, 509 (3d Cir. 1987). 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. See Rose, 455 U.S. at 519; Castille v. Peoples, 489 U.S. 346, 349 (1989). 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 post-conviction proceedings. See Ross v. Petsock, 868 F.2d 639 (3d Cir. 1989); see also 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"); 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. See Picard, 404 U.S. at 275; Castille, 489 U.S. at 350. The petitioner generally bears the burden to prove all facts establishing exhaustion. See Toulson, 987 F.2d at 987. This means that the claims heard by the state courts must be the "substantial equivalent" of the claims asserted in the federal habeas petition. See Picard, 404 U.S. at 275. Reliance on the same constitutional provision is not sufficient; the legal theory and factual predicate must also be the same. See id. at 277. Where any available procedure remains for the applicant to raise the question presented in the courts of the state, the applicant has not exhausted the available remedies. See 28 U.S.C. § 2254(c). Federal courts have consistently adhered to the exhaustion doctrine "for it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Picard v. Connor, 404 U.S. 270, 275 (1971) (citations and internal quotation marks omitted).

9. Here, since Petitioner's challenges to his June 13, 2008, conviction appear to be unexhausted, the Petition is subject to dismissal for failure to meet the exhaustion requirement.*fn2 Therefore, the Petition will be dismissed without prejudice to Petitioner's filing of a timely § 2254 petition upon exhaustion of his state courts remedies.*fn3

10. Petitioner's Fourth and Fourteenth Amendment challenges to the circumstances of his arrest and indictment, and his malicious prosecution claim, as well as his vague statements about his medical needs hinting at potential Eighth and/or Fourteenth Amendments claims, are dismissed without prejudice to Petitioner's filing an appropriate civil rights complaint setting forth these non-habeas challenges.

11. The AEDPA provides that an appeal may not be taken to the court of appeals from a final order in a § 2254 proceeding unless a judge issues a certificate of appealability ("COA") on the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court held: "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. Here, the Court denies Petitioner a certificate of appealability ...

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