IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JEFFREY WAYNE BAKER, : CIVIL NO. 3:15-CV-1675

:

Petitioner : (Judge Munley) 

v. :

:

COMMONWEALTH OF :

PENNSYLVANIA, PA STATE :

ATTORNEY GENERAL, :

:

Respondents:

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

 MEMORANDUM

On August 28, 2015, petitioner Jeffrey Wayne Baker (“petitioner”), a Pennsylvania

state inmate presently confined at the State Correctional Institution at Huntingdon,

Huntingdon, Pennsylvania, initiated the above petition for writ of habeas corpus pursuant to

28 U.S.C. § 2254. (Doc. 1.) The petition has been given preliminary consideration and, for

the reasons discussed below, the court will dismiss this action without prejudice. See 28

U.S.C. § 2243. See also R. Governing § 2254 Cases R.4. 

I. Background

Petitioner represents that he currently has pending a petition pursuant to the Post

Conviction Relief Act (“PCRA”), 42 PA. CONS. STAT. §§ 9541-46 challenging his Court of

Common Pleas of Cumberland County conviction. (Doc. 1, pp. 1, 3). Specifically, the

petition is pending in the Superior Court of Pennsylvania at docket number 755 MDA 2015. 

According to the electronic docket appellate briefing was completed on September 30, 2015. 

see http://ujsportal.pacourts.us.

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II. Discussion

A habeas petition may be brought by a prisoner who seeks to challenge either the fact

or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 494 (1973); Tedford v.

Hepting, 990 F.2d 745, 748 (3d Cir. 1993). United States Code Title 28, Section 2243

provides in relevant part that “A court, justice or judge entertaining an application for a writ

of habeas corpus shall forthwith award the writ or issue an order directing the respondent to

show cause why the writ should not be granted, unless it appears from the application that the

applicant or person detained is not entitled thereto.” Id. Further, habeas corpus petitions are

subject to summary dismissal pursuant to Rule 4 (“Preliminary Consideration by the Judge”)

of the Rules Governing Section 2254 Cases in the United States District Courts (2001),

which provides in pertinent part: “If it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss

the petition and direct the clerk to notify the petitioner.” Although 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), a

federal district court can dismiss a habeas corpus petition if it appears from the face of the

petition that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320

(1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985). See also 28 U.S.C. §§ 2243, 2254,

2255. For instance, a petition may be dismissed without review of an answer when the

petition is frivolous, or obviously lacking in merit, or where . . . the necessary facts can be

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determined from the petition itself. . . . ” Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970).

“An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted unless it appears that— (A) the

applicant has exhausted the remedies available in the courts of the State; or (B) (i) there is an

absence of available State corrective process; or (ii) circumstances exist that render such

process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b) (1). Thus, 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. . . .” See

Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d

Cir.1997) (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”).

A petitioner exhausts 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, 847

(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”); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (finding that a collateral

attack in state court is not required if the petitioner’s claim has been considered on direct

appeal); 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the

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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. Castille v. Peoples, 489 U.S. 346, 350 (1989); Picard v.

Connor, 404 U.S. 270, 275 (1971). The petitioner generally bears the burden to prove all

facts establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993).

Exhaustion is not, however, 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. Granberry v. Greer, 481 U.S. 129, 131, 134–35

(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. Consequently, a district court may use its inherent power to

dismiss, sua sponte, a petition which concedes that the prisoner failed to exhaust his state

court remedies and which facially violates a bar to suit. Ray v. Kertes, 285 F.3d 287, 293 n.

5 (3d Cir. 2002). See also Sulaski v. Lindsay, CV-06-2482, 2007 WL 1031457, at *1

(M.D.Pa. March 29, 2007) (Rambo, J.) (relying on Ray for sua sponte dismissal of an

unexhausted § 2241 petition).

Here, it is clear from the face of the petition, and confirmed by review of the superior

court electronic docket, that petitioner has not exhausted his state remedies and he does not

allege any facts that would suggest that the post-conviction remedies afforded by

Pennsylvania law are effectively unavailable. As petitioner has clearly failed to exhaust his

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state remedies, this petition will be dismissed without prejudice for failure to exhaust

available state court remedies.1

III. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of

appealability (“COA”), an appeal may not be taken from a final order in a proceeding under

28 U.S.C. § 2254. A COA may issue only if the applicant has made a substantial showing of

the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322

(2003). 

“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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason would not find the procedural

disposition of this case debatable. Accordingly, no COA will issue.

IV. Conclusion

For the reasons set forth above, the petition will be dismissed without prejudice.

1

No opinion is expressed as to the merits of the claims raised in the petition. 

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An appropriate order will issue.

BY THE COURT:

s/James M. Munley

JUDGE JAMES M. MUNLEY

United States District Court

Dated: 10/6/15

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