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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHELDON CRAIG JACKSON

v.

LOUIS S. FOLINO, et al.

: CIVIL ACTION 

:

: NO. 05-1427

: 

:

MEMORANDUM AND ORDER

Kauffman, J. February 12, 2007

Now before the Court is the petition of Sheldon Craig Jackson (“Petitioner”) for a Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated in State Correctional

Institution Greene in Waynesburg, Pennsylvania. For the reasons that follow, the Petition will be

denied.

I. Background

On June 15, 2004, Petitioner pled nolo contendere to charges of attempted sexual assault

and corrupting the morals of a minor, and was sentenced to an aggregate term of incarceration of

six to twelve years. Petitioner did not pursue a direct appeal after he was convicted and

sentenced. On August 12, 2004, he filed a petition with the Philadelphia Court of Common Pleas

seeking relief under Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S.A. § 9541 et seq.

(“PCRA”). On March 25, 2005, prior to the resolution of his PCRA petition, Petitioner also filed

the instant federal petition for habeas corpus.

This Court designated United States Magistrate Judge Diane M. Welsh to submit a

Report and Recommendation on the Petition. See 28 U.S.C. § 6369(b)(1)(B); Local R. Civ. P.

72.1(I)(b). In her original Report, issued on August 8, 2005, Magistrate Judge Welsh

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recommended that the petition be denied without prejudice because Petitioner, whose PCRA

petition was still pending, had clearly failed to exhaust his state remedies. After Magistrate

Judge Welsh issued her Report, but prior to this Court’s consideration of the matter, Petitioner’s

PCRA petition was denied by the Philadelphia Court of Common Pleas and Petitioner did not

appeal. Because the Magistrate Judge’s Report and Recommendation was issued prior to the

conclusion of Petitioner’s PCRA proceedings, the Court will review this action de novo.

II. Analysis

Petitioner argues in his Petition that his trial counsel was ineffective because he failed to

file a motion to dismiss the charges against him based upon the violation of his right to a speedy

trial, as guaranteed by Rule 600 of the Pennsylvania Rules of Criminal Procedure. Respondents

argue that Petitioner is barred from raising this claim in federal court because he never exhausted

it in state court. Respondents further argue that, because Petitioner has forfeited the opportunity

to further litigate his claims in state court, he is also procedurally barred from raising them in

federal court.

A state prisoner must first present all federal claims to the state courts before a district

court may reach them on federal habeas corpus review. 28 U.S.C. § 2254(b)-(c); O'Sullivan v.

Boerckel, 526 U.S. 838, 843 (1999). To comply with this requirement, a petitioner generally is

required to give the state courts a “full and fair opportunity” to address the merits. Id. at 844. A

“full and fair opportunity” means presenting the issue in a manner that puts the state court on

notice that the claim is being pursued so that the state court has a chance to resolve that claim.

Procedural default occurs where a petitioner fails to exhaust state remedies and the court

to which he would have been permitted to present his claims would now find such claims

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procedurally barred. Coleman v. Thompson, 501 U.S. 722, 735 (1990); Whitney v. Horn, 280

F.3d 240, 252 (3d Cir. 2002). To overcome procedural default in these circumstances, a

petitioner must show either cause for the default and actual prejudice as a result of the alleged

error or a fundamental miscarriage of justice if the claim is not considered. Edwards v.

Carpenter, 529 U.S. 446, 451 (2000).

 Petitioner raised his ineffective assistance of counsel claim, for the first time, in his

PCRA petition to the Philadelphia Court of Common Pleas. Geoffrey V. Seay, Esquire, was

appointed by the Court of Common Pleas to represent Petitioner, but upon review of the record,

he concluded that there were no issues of arguable merit and requested withdrawal from the case. 

After independently reviewing the record, the Honorable Eugene J. Maier dismissed the petition

and permitted Seay to withdraw on February 23, 2006. Petitioner did not appeal.

As a result of Petitioner’s failure to appeal the dismissal of his PCRA petition, the instant

Petition, which raises the same claim, is procedurally defaulted. As stated above, a petitioner is

generally required to exhaust his state remedies by giving the state courts a “full and fair

opportunity” to address the merits of his claims. As the United States Supreme Court has

explained, the full and fair presentation doctrine requires petitioners to “give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete round of the State's

established appellate review process.” O'Sullivan, 526 U.S. at 845; Lines v. Larkins, 208 F.3d

153, 159 (3d Cir. 2000) (“All claims that a petitioner in state custody attempts to present to a

federal court for habeas corpus review must have been fairly presented to each level of the state

courts.”), cert. denied, 531 U.S. 1082 (2001). Under this holding, “the state appellate courts

must reach the merits of the federal claim at some point, after which, in Pennsylvania, the state

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Supreme Court's denial of discretionary review can be sufficient to preserve the federal claim.” 

Marra v. Larkins, 46 Fed. Appx. 83, 92 (3d Cir. 2002). 

In this case, Petitioner failed to raise his ineffective assistance of counsel claim with the

proper state appellate court, the Pennsylvania Superior Court, either on direct appeal or after the

denial of his PCRA petition. Accordingly, he has failed to exhaust his state remedies. 

Furthermore, Petitioner has no further available remedy for the litigation of his claim in the state

court system because the PCRA’s statute of limitations prevents any further collateral attacks on

his conviction. Accordingly, his claim is not only unexhausted, it is procedurally barred. See

Coleman v. Thompson, 501 U.S. 722, n.1 (1991).

While the Court finds that Petitioner's claim is defaulted, a procedural default may be

excused upon a showing of both “cause” and “prejudice” resulting from the alleged error. See

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2682 (2006); House v. Bell, 126 S.Ct. 2064, 2076

(2006). Even assuming arguendo that Petitioner could show cause for his procedural default, he

cannot demonstrate prejudice. To establish prejudice, he must show “that [the alleged errors]

worked to his actual and substantial disadvantage, infecting his entire trial with errors of

constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). Here, even if

Petitioner’s counsel had timely filed a motion to dismiss the indictment, the motion would have

been denied. Under Pennsylvania Rule of Criminal Procedure 600, a criminal defendant may

have the charges against him dismissed only after the expiration of 365 days. Pa. R.Crim. P.

600(G). Petitioner, was arrested on October 6, 2003 and pled guilty on June 15, 2004, well short

of the required 365 days.

Finally, a federal court may hear a defaulted claim if the petitioner meets the stringent

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burden of demonstrating that “the constitutional violations he alleges have probably resulted in

the conviction of one who is actually innocent, such that a federal court's refusal to hear the

defaulted claims would be a ‘miscarriage of justice.’” House, 126 S.Ct. at 2087, citing Schlup v.

Delo, 513 U.S. 298, 326 (1995). A petitioner asserting such a claim must establish that “it is

more likely than not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt.” Schlup, 513 U.S. at 327. “To be credible, such a claim requires petitioner to

support his allegations of constitutional error with new reliable evidence-whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence-that was not presented at trial.” Id. at 324. Because Petitioner has not come forward

with any new evidence, his procedural default cannot be excused by a claim of actual innocence.

III. Conclusion

Petitioner’s claim is procedurally defaulted and will be dismissed. Because Petitioner has

not made the requisite showing of the denial of a constitutional right, a certificate of appealability

will not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHELDON CRAIG JACKSON

v.

LOUIS S. FOLINO, et al.

: CIVIL ACTION 

:

: NO. 05-1427

: 

:

AND NOW, this 12 day of February, 2007, for the reasons set forth in the th

accompanying Memorandum, it is ORDERED that:

1. The Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, is

DENIED and DISMISSED;

2. Because there is no probable cause to issue a certificate of appealability, a

certificate of appealability shall not issue.

BY THE COURT:

/s/ Bruce W. Kauffman 

BRUCE W. KAUFFMAN, J.

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