The opinion of the court was delivered by: Wolfson, 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 Tormu E. Prall ("Prall"), on or about December 11, 2008. Petitioner submitted an incomplete application to proceed in forma pauperis, which does not include a certification from an authorized official at Mercer County Correction Center ("MCCC") regarding petitioner's account balance. See Local Civil Rule 81.2(b). However, for the reasons stated below, the petition will be dismissed without prejudice at this time for failure to exhaust state court remedies, and the action will be closed without assessing any fees or costs.
According to the allegations contained in the petition, Prall is a state prisoner, currently confined at the MCCC in Trenton, New Jersey, challenging a finding of guilt entered in absentia by the Superior Court of New Jersey, Law Division, Mercer County, in November 2007. Prall was found guilty of pirated audiovisual works and unstamped cigarettes. It is not clear from the petition whether a judgment of conviction has been entered, or whether Prall has been sentenced for this New Jersey state court conviction.
Prall admits that he has not filed a direct appeal from his conviction. He states that his trial counsel did not consult with any appellate counsel, nor did he attempt to file an appeal on Prall's behalf. Prall also contends that since he has not been sentenced, he cannot file an appeal.
Prall also provides a colorful explanation for his absence at trial, excuses for his admittedly "irrational and bizarre behavior," and how all of these factors raise doubt as to his competence to stand trial. He seems to use these arguments to support his failure to exhaust state court remedies. Specifically, he asserts a mistrust of the state court judges, prosecutors, and his own trial counsel, and claims prejudicial pretrial publicity.
Consequently, Prall brings this habeas petition under 28 U.S.C. § 2254, challenging his state court conviction.
Prall 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 ...