The opinion of the court was delivered by: Pisano, 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 Brian W. Samuels ("Samuels"), on or about October 31, 2008. Petitioner did not submit an 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, Samuels is a state prisoner who allegedly was convicted on January 25, 2002. He further contends that the New Jersey Supreme Court "reversed for the purpose of correction" on January 31, 2007. Samuels claims that there was insufficient evidence "to warrant a true bill for any crime other than conspiracy to distribute possible narcotics (which were never discovered) and aiding and abetting a convicted felon to possess a weapon and simple assault. At no time did any of the two accused parties announce a robbery or intention to rob. Hence the prosecution maliciously and vindictively altered the truth." (Petition at pg. 2).
Samuels attaches several pages from the Monmouth County Grand Jury hearing transcript dated July 20, 2000, which indicate an offense date of May 4, 2000, and which contains the testimony of a police officer Jeff Pilone, a patrolman with the Long Branch Police Department. The New Jersey Department of Corrections offender search indicates that Samuels was sentenced on February 13, 2009, to an aggregate prison term of 40 years for the offenses of aggravated assault, robbery, and resisting arrest and eluding police occurring on May 4, 2000. It also shows that Samuels was sentenced on July 26, 2002 to four years in prison for another offense occurring on the same date of May 4, 2000. He had been incarcerated from July 26, 2002 until February 16, 2007 for that offense.
In his petition, it appears that Samuels is alleging that a new indictment charging him with robbery was issued sometime after his initial trial in 2002. Samuels states that he filed a motion to dismiss that indictment for lack of jurisdiction, on August 15, 2008, in state court. The state court judge presiding in that criminal proceeding denied Samuels' motion on August 15, 2008.
Consequently, it appears from the face of Samuels' petition and his allegations that his state criminal proceedings were still pending at the time he filed this federal habeas petition under 28 U.S.C. § 2254. Moreover, since the filing of this habeas petition, Samuels has been convicted and sentenced for the robbery offense, which he challenges in his habeas petition. He does not indicate that he has filed any direct appeal from his state court conviction.
Samuels 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 ...