The opinion of the court was delivered by: Pisano, District Judge
This matter is before the Court on Petitioner Eric E. Criss's Petition for habeas corpus relief under 28 U.S.C. § 2254 and an Application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). Based upon Petitioner's affidavit of indigency, the Court will grant the Application to proceed in forma pauperis. For reasons discussed below, the Petition for habeas corpus relief must be dismissed without prejudice for failure to exhaust state court remedies.
According to the allegations contained in the Petition, Petitioner is currently incarcerated following a sentence which was entered on February 17, 2011.
On or about March 4, 2011, only approximately two weeks subsequent to his sentencing date, Petitioner submitted to this Court a Petition for a writ of habeas corpus under 28 U.S.C. § 2254. He asserts the grounds for relief regarding pre-trial bail issues, violation of right to a speedy trial, and unlawful arrest.
In his Petition, Petitioner states: "I was found guilty by a jury on 12/08/2010 and my attorney has not filed my appeal as of todays [sic] date, but I do plan on appealing my conviction and my sentence if relief is not granted and I was sentenced on January 17, 2011 to 20 yrs."
Petitioner has not yet attempted to exhaust his state court remedies before filing the instant Petition.
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 is not sufficient; the legal theory and factual predicate must also be the same. Id. at 277.
Further, Petitioner has neither asserted nor demonstrated an absence of available state process. Before exhaustion will be excused on this basis, "state law must clearly foreclose state court ...